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cdce5ced-efbd-49e6-9cf2-2ab1ac1914f8 | Atchley v. Wood | 51 So. 2d 705 | N/A | Alabama | Alabama Supreme Court | 51 So. 2d 705 (1951)
ATCHLEY
v.
WOOD.
8 Div. 573.
Supreme Court of Alabama.
March 1, 1951.
Marion F. Lusk, Guntersville, for petitioner.
Starnes & Starnes, Guntersville, opposed.
FOSTER, Justice.
The question under review is whether the allegation as to time in a count in trover has been sufficiently proven to justify its submission to the jury. The complaint alleges that the conversion occurred "on or about November 1, 1948."
The transaction related to the cultivation of cotton. The owner of the land was to have as rent one-fourth; plaintiff one-fourth; defendant one-half. Plaintiff carried out his part of the agreement. Defendant sold the entire crop undivided for $670, and paid one-fourth of it to the landlord as rent, declaring that plaintiff was not entitled to anything and refused to pay plaintiff any of the proceeds. This occurred "in the fall of 1948." The opinion of the Court of Appeals is that such evidence does not justify a finding by the jury that this occurred "on or about November 1, 1948", if the jury should so find.
*706 The principle is well understood that if a given and certain date is alleged in pleading, it must be proven. Williams v. McKissick, 125 Ala. 544, 27 So. 922; Mobile, J. & K. C. R. R. Co. v. Bay Shore Lumber Co., 158 Ala. 622, 48 So. 377. In those cases there was no videlicet nor its equivalent. A videlicet means on or about the day specified. J. R. Kilgore & Son v. Shannon & Co., 6 Ala.App. 537(12), 60 So. 520. When it is so alleged, the evidence need not prove the date strictly as laid. Great Atlantic & Pacific Tea Co. v. Crabtree, 230 Ala. 443, 161 So. 508. It shows an express purpose to leave the matter of time uncertain. Central Lumber & Timber Co. v. McClure, 180 Ala. 606, 61 So. 821.
In trover time is not of the essence, and it is only necessary to allege it as nearly as practicable. Abercrombie v. Pell, 235 Ala. 396, 179 So. 371; Corona Coal & Iron Co. v. Bryan, 171 Ala. 86, 54 So. 522.
Where time is alleged under a videlicet, the fact that the evidence does not conform to the exact dates alleged does not constitute a variance. Pollack v. Gunter & Gunter, 162 Ala. 317, 50 So. 155.
Applying those principles here, we think the court and jury may take into consideration the well known facts about the maturity of the cotton crop, when it is ready for sale ordinarily, as well as the circumstance that, unless otherwise stipulated, rent is due November 1st of the current year, section 16, Title 31, Code, along with the evidence that this occurred in the fall. The fall of the year is another name for autumn, which occurs, in popular language in America, in September, October and November (Webster). That statute and those circumstances do not fix November 1st as the day when the rent was paid in this instance, but only aids in determining if it was about that date. The jury could find that the allegation of November 1st in the complaint was satisfied if they find that it was in the fall when the rent was paid, and which was payable without express stipulation in November.
We therefore cannot agree with the Court of Appeals that the affirmative charge was properly given by reason of the failure to prove that the conversion took place on or about November 1, 1948.
The judgment of the Court of Appeals is reversed and the cause is remanded to that court for further consideration.
Reversed and remanded.
LIVINGSTON, C. J., and BROWN, LAWSON, SIMPSON and STAKELY, JJ., concur. | March 1, 1951 |
8c0f5a4e-46c7-4672-84b7-5d7c048ccb48 | Westcott v. Sharp | 54 So. 2d 758 | N/A | Alabama | Alabama Supreme Court | 54 So. 2d 758 (1951)
WESTCOTT
v.
SHARP.
7 Div. 93.
Supreme Court of Alabama.
October 18, 1951.
Rehearing Denied November 23, 1951.
*759 L. Chandler Watson, Jr. and Charles Douglass, Anniston, for appellants.
Merrill, Merrill & Vardaman, Anniston, for appellees.
STAKELY, Justice.
This appeal is from a decree of the equity court, dismissing two cross-bills of the appellants (cross-complainants in the lower court) and awarding the relief prayed for in the complainant's original bill for the sale for division of the lands therein described.
Arthur S. Sharp, a resident of Oxford, Alabama, was married to Vera Henderson on July 5, 1947. They had no children. Arthur Sharp died September 16, 1948. He was survived by his widow Vera Sharp, his sister Malta Wells and two grandnieces, who are minors, Martha Rose Hanson and Sarah Diane Hanson. At the time of his death Arthur Sharp had to his credit in the Anniston National Bank $9,262.01, which Martha Rose Hanson and Sarah Diane Hanson in their cross-bill claim as a trust fund. He also had on deposit in the First National Bank of Anniston $5,312.29. He had two life insurance policies each in the sum of $2,500.00, one payable to Martha Rose Hanson and Sarah Diane Hanson and the other payable to his estate. He also owned real estate, business property, located in Oxford, Alabama, which appears to have had a value of about $5,000.00. Over the building on this property he had erected an apartment, which he furnished and which he was occupying at the time of his marriage.
Vera Sharp obtained letters of administration on the estate of Arthur Sharp in the probate court. Vera Sharp, individually and as administratrix of the estate of Arthur S. Sharp, deceased, and Malta Wells filed a bill against Martha Rose Hanson and Sarah Diane Hanson and their guardian, Mrs. Sallie Mae Westcott, who is their mother, seeking a sale of the real estate for division and for allotment for homestead and dower rights to the widow. In the bill it is alleged that there had not been a final administration of the estate and that the estate can be better administered in the circuit court, in equity. In the bill there is a prayer asking for transfer of the administration of the estate of Arthur S. Sharp, deceased, from the probate court to the circuit court, in equity. The court made an order transferring the administration of the estate of Arthur S. Sharp, deceased, from the Probate Court of Calhoun County, Alabama, to the Circuit Court of Calhoun County, Alabama, in Equity.
The appellants, respondents and crosscomplainants in the court below, in their answer deny in substance that it was necessary to sell the property described in the bill for division between the joint owners or that Malta Wells was a joint owner of the property. It was prayed that the answer be taken as a cross-bill and in the cross-bill by Martha Rose Hanson and Sarah Diane Hanson through their guardian, their mother Mrs. Sallie Mae Westcott, they seek to recover as a trust fund from Vera Sharp individually and as administratrix of the estate of Arthur S. Sharp, deceased, the money on deposit to the credit of Arthur S. Sharp in the Anniston National Bank at the time of his death, consisting of deposits made on certain specific dates and in certain specific amounts, aggregating as aforesaid $9,262.01. The cross-bill also seeks to recover $342.90 alleged to have been received *760 by Arthur S. Sharp from the estate of Leila S. Hanson, deceased, on April 11, 1944, and $750.00 alleged to have been received by Arthur S. Sharp from the sale of the Leila S. Hanson automobile July 11, 1943. In a cross-bill by Martha Rose Hanson individually through her said guardian she seeks to recover from the cross-respondents one diamond stick pin which she claims was owned by Arthur S. Sharp and set apart to her and held by him in his lifetime in trust for her.
Leila Sharp Hanson, now deceased, was a sister of Arthur S. Sharp and had one son named Henry Hanson who was deceased at the time of the filing of the crossbill. He was the father of the two children, Martha Rose Hanson and Sarah Diane Hanson, cross-complainants in this case. It is claimed that Leila Sharp Hanson before her death made a will in which she left and devised all of her property to her brother Arthur S. Sharp, but that prior to and at the time of the execution of the will she established a parol trust in all of her property, that Arthur S. Sharp was made trustee and accepted the trust and agreed to receive the property in trust for the grandchildren of Leila Sharp Hanson, namely Martha Rose Hanson and Sarah Diane Hanson. It is further claimed that all her real estate was sold and the proceeds collected and deposited in the Anniston National Bank to the credit of Arthur Sharp and that Arthur Sharp thereafter declared himself the trustee of this fund in trust for the grandchildren of Leila Sharp Hanson, namely Martha Rose Hanson and Sarah Diane Hanson.
All of the witnesses were examined in open court and testified orally before the trial judge. The court denied relief under the cross-bills and dismissed them. Relief was granted to complainants under the original bill and the property ordered sold for division.
I. It is urged that the cross-bills seek to bring before the court for adjudication matter that is not germane to the subject of the original bill. But the original bill seeks to have the estate of a decedent transferred from the probate court to the equity court so that it can there be better administered. In the original bill lands of the estate are sought to be sold for division among the heirs who are joint owners or tenants in common. Allotment of dower and homestead rights to the widow are also sought. The bill was filed by Vera Sharp in her administrative and individual capacity. Malta Wells, an adult heir, joins as party complainant in filing the bill. When the equity court takes jurisdiction all incidental questions must there be determined. Hamby v. Hamby, 165 Ala. 171, 51 So. 732. The administration of an estate of a decedent is one entire proceeding. It is single and continuous. It is the administration of a trust and the trust is a unity. Faulk v. Money, 236 Ala. 69, 181 So. 256; Dillard v. Gill, 231 Ala. 662, 166 So. 430; Brown v. Olsson, 254 Ala. 695, 49 So. 2d 564. The determination of the ownership of the alleged fund in the Anniston National Bank and the ownership of the diamond pin are incidents in the administration of the estate. These things being true, the cross-bills were not subject to demurrer on this ground. See Graham v. Powell, 250 Ala. 500, 35 So. 2d 175.
II. The evidence is voluminous and it would be impraticable to set it all out. It has been carefully considered. Caples v. Young, 206 Ala. 282, 89 So. 460. There are some facts, however, which stand out without dispute. Arthur S. Sharp, the decedent, and his sister Leila Sharp Hanson together with the son of Leila Sharp Hanson, Henry Hanson, lived together in Oxford, Alabama, as a family from the birth of Henry Hanson until the marriage of Henry Hanson, a few years prior to his death. No information relative to the father of Henry Hanson appears in the case. Arthur S. Sharp was the head of the family and contributed chiefly to the support of Leila Sharp Hanson and her son Henry Hanson. Arthur S. Sharp was a thrifty and industrious man and appears to have been a good and experienced business man. He was generous in providing for his sister and his nephew. He supported them and assisted in the rearing *761 of Henry Hanson and paid the expenses of his education in the local schools at Oxford and later at the University of Alabama. After the marriage of Henry Hanson he continued to assist him and provided money for him when he died and was buried in Oxford, August 25, 1939. Arthur Sharp and his sister Leila Sharp Hanson continued to live together in Oxford until the death of Leila Sharp Hanson on June 3, 1943. Arthur Sharp contributed to the support of Leila Sharp Hanson for several years prior to her death. For about three years prior to her death she was an invalid with a malignant cancer. Soon after the death of Henry Hanson, Arthur Sharp and his sister Leila Sharp Hanson made reciprocal wills, each devising and bequeathing to the other all property in which they had an interest. They owned property jointly in Calhoun County at the time the wills were made. The wills were dated August 31, 1939. This is the will of Mrs. Leila Sharp Hanson on which it is sought to engraft a trust. The will was made approximately three months before the birth of Sarah Diane Hanson. The will of Leila Sharp Hanson which was duly admitted to probate was introduced in evidence. After providing for the payment of just debts and funeral expenses, she devised all of her property "to my brother Arthur S. Sharp, to his sole and separate use forever." There is no mention in the will or provision in the will for any trust whatsoever. In the cross-bill as originally framed it was alleged that Arthur Sharp executed a will, but this feature of the cross-bill was withdrawn by amendment. No will of Arthur Sharp was introduced in evidence. No will of Arthur Sharp was probated. There was some conflict in the evidence as to the existence of such a will at the time of the death of Arthur S. Sharp.
At this point it is necessary to consider the effect on the case of § 149, Title 47, Code of 1940, which is as follows: "No trust concerning lands, except such as results by implication or construction of law, or which may be transferred or extinguished by operation of law, can be created, unless by instrument in writing, signed by the party creating or declaring the same, or his agent or attorney lawfully authorized thereto in writing."
It is obvious that while the statute does not permit the creation of a trust in land except upon compliance with the statute, it does not prohibit the creation of a trust in personalty by parol. According to the evidence at the time Leila Sharp Hanson made her will she owned only real estate. Before her death in 1943 she and Arthur Sharp, who was a joint owner or tenant in common, conveyed some of the real estate to one Hilton. This conveyance was dated September 26, 1942. The mortgage and notes evidencing the purchase price were payable to Leila Sharp Hanson and Arthur S. Sharp. At the time Sarah Diane Hanson had not been born. There is nothing to show that Leila Sharp Hanson sought to set up a trust in writing. The trust sought to be engrafted on her will, if any, rested entirely in parol. As will be shown inferences may be drawn that the other real estate in which Leila Sharp Hanson had an interest was sold by Arthur S. Sharp subsequent to her death and the proceeds deposited to his credit in the Anniston National Bank along with the proceeds of the notes in the Hilton sale. It is contended that § 149 Title 47, Code of 1940, does not apply, because the subject matter of the alleged trust became converted from realty into personalty. This question has been considered by this court in a number of cases. In the case of Moore v. Campbell, 102 Ala. 445, 14 So. 780, 781, it is said: "Clearly, if the agreement, when made, was void by virtue of section 1845 of the Code (now § 149, Title 47), no subsequent act or occurrence could render it valid."
In the case of Chesser v. Motes, 180 Ala. 563, 61 So. 267, it was said: "In the case at bar, when the agreement which is sought to be enforced was made, there had been no conversion of the land into personalty, and the claim of the plaintiff was not under the deed, but is based upon an independent parol agreement between Motes and his wife as to what should be done with the *762 proceeds of the sale of the land when subsequently made by the wife; and said agreement is nonenforceable under the terms of section 3412 of the Code of 1907 (now § 149, Title 47)."
The case of Willard v. Sturkie, 213 Ala. 609, 105 So. 800, sustains the foregoing decisions.
It is insisted however that after the deposits in the Anniston National Bank were made a new trust was set up in these funds for the benefit of Martha Rose Hanson and Sarah Diane Hanson by Arthur S. Sharp. As will appear, there is nothing in writing to show such a trust, but the effort is to establish a parol trust through alleged declarations of Arthur Sharp, Johnson v. Amberson, 140 Ala. 342, 37 So. 273, taken in connection with other evidence, as for example proof that the account in the Anniston National Bank was not used as a checking account. If such a trust was at this latter time sought to be set up, the funds in the bank had clearly then become personal property and the ban of § 149, Title 47, Code of 1940, would not under these circumstances apply. The oral acknowledgment of the trust by Arthur Sharp after the deposits were made is the equivalent of a new declaration of trust. Bogert on Trust and Trustees, Vol. 1, p. 405; Scott on Trusts, Vol. 1, p. 285.
The records of the account of Arthur S. Sharp in the Anniston National Bank were introduced in evidence. This account was opened before the birth of his grandnieces and long before the death of his sister. There is no statement whatsoever in connection with the account on the books of the bank showing in any way that it constituted a trust fund. The bank certainly had no knowledge or notice on its part that it was regarded as a trust fund. The deposits began in October, 1942, and were made at intervals through and including June 26, 1946. Arthur Sharp had to his credit in this account $1,062.11 on October 2, 1942. This was many months before the death of his sister. We see no room for contention that this amount was at that time placed in trust for the appellants or any other person. The amount of some of the other deposits and the dates on which such deposits were respectively made do afford an inference that these deposits represented the proceeds of sale of properties both real and personal which were owned jointly by Arthur S. Sharp and his sister Leila Sharp Hanson. There were no withdrawals from this deposit in the Anniston National Bank after October 2, 1942. In recent years before his death Arthur S. Sharp used the account in the First National Bank of Anniston as a checking account.
There is no doubt that Arthur Sharp held his grandnieces in great affection. He contributed generously to their support and to the purchase of such necessities for them as clothes, etc. There are tendencies of evidence going to show statements made by him in his lifetime that he would see to it that these children would be educated and taken care of.
Prior to his death Arthur Sharp had two policies of insurance on his life each for $2500.00 and each payable to his estate. He caused the name of the beneficiary in one of these policies to be changed from his estate to his grandnieces Martha Rose Hanson and Sarah Diane Hanson.
Malta Wells testified that on a visit to her sister Leila Sharp Hanson she was told by Leila Sharp Hanson that she had made a will giving all of her property to her brother Arthur Sharp, that her reason for devising and giving her property to her brother was on account of the fact that he had supported her and her son Henry Hanson and had paid out a great deal of money for the support of herself and child, that he had always looked after the joint property, paid taxes and insurance on it, paid all the bills for the house and doctors' bills, assisted in rearing Henry Hanson and sending him to school, paid Henry Hanson's funeral expenses and that he had paid the expenses of her illness. There is testimony tending to show that Arthur Sharp stated that in order to provide for the children, he was changing one of his policies so as to make it payable to them.
Tendencies of evidence further show that Arthur Sharp had left the deposit in the Anniston *763 National Bank and had not checked on it because he wished to use this fund as a fund with which to erect a home for himself and his wife.
There are many other details in the evidence which as above stated it is impracticable to attempt to set out but the foregoing gives a general idea of the evidence before the court on the issues made by the cross-bill of Martha Rose Hanson and Sarah Diane Hanson. As stated the court heard the evidence orally and decided the case in favor of the complainants, appellees here, and ordered the property sold for division and denied the prayer of the cross-bills. We have often said that in this situation we will not disturb the decree of the lower court unless it is palpably wrong. We think that this view of the case should apply here. Arthur Sharp was a good and experienced business man. He was bound to have known of the wisdom and value of putting in writing any plan that he might have had for setting up a trust for his grandnieces. But he left no writing of any kind to indicate an intention to establish a trust. On the contrary there is evidence supporting the view that he wanted his property to go to his wife as he felt that he had done sufficiently well by his grandnieces and their father.
Our cases make it clear that if proof of a trust is unsatisfactory, doubtful or uncertain, the relief will not be granted. Lashley v. Lashley, 219 Ala. 312, 122 So. 314; Lauderdale v. Peace Baptist Church, 246 Ala. 178, 19 So. 2d 538; Merchants Nat. Bank of Mobile v. Bertolla, 245 Ala. 662, 18 So. 2d 378.
III. With reference to the claim of Martha Rose Hanson for the diamond stick pin which she set up in her cross-bill, her position is that it was held in trust by Arthur S. Sharp for her benefit. There are tendencies of the evidence from which it might be inferred that Arthur Sharp intended to make a gift of the diamond pin in the future to Martha Rose Hanson but the undisputed evidence shows that it was in his possession at the time of his death. According to Sallie Mae Westcott, the mother of Martha Rose Hanson, she went with Vera Sharp and Malta Wells to the apartment of Arthur Sharp on the Monday after the Sunday on which he was buried but the diamond could not be found. Martha Rose Hanson then said that she knew where he kept it, that it was in a little cedar chest and there the diamond was found in an aspirin box. "We took the diamond home." The next day Vera Sharp came and got it from us, having been advised by her attorney that she should keep everything in her possession until everything was settled. The diamond was kept in the possession of Sallie Mae Westcott and Martha Rose Hanson for one day and then was surrendered to Vera Sharp. Under these circumstances the court could clearly find that the alleged gift was inoperative by virtue of § 129, Title 47, Code of 1940, which provides in substance that parol gifts of personal property are inoperative until the custody, control, management and use of the property passes from the donor to the donee and is possessed by the donee or his agent. In the event the donee is a minor living with her mother, the possession of the mother must be regarded as the possession of the child. The court could find that there was never such delivery by Arthur S. Sharp and possession by the child through her mother as to constitute a valid gift. De Mouy v. Jenson, 255 Ala. 337, 51 So. 2d 506.
Without reference to the statute which is now § 129, Title 47, Code of 1940, this court in McHugh v. O'Connor, 91 Ala. 243, 9 So. 165, stated in effect by way of dictum that where the donor intending to make a gift declares that he holds in trust for another, this dispenses with actual delivery. We find it unnecessary however in the present case to determine whether the foregoing situation constitutes an exception to the operation of the statute. The only proof tending to show that Arthur S. Sharp held the diamond as trustee for his niece is proof after his death of declarations made by Arthur Sharp in his lifetime. These declarations are not sufficient of themselves to establish a completed trust. Merchants Nat. Bank of Mobile v. Bertolla, supra. The trust must come into being at the time the title passes. If there is no sufficient proof upon which to establish a trust as an *764 original proposition, subsequent declarations of the alleged trustee will not suffice. Merchants Nat. Bank of Mobile v. Bertolla, supra. Since we do not think that there is clear and satisfactory proof of the trust in the case at bar, we find it unnecessary to determine whether there is an exception under the foregoing statute, where it is claimed that Arthur Sharp held the diamond in trust for his niece. Authorities supra.
The decree of the lower court will be affirmed.
Affirmed.
LIVINGSTON, C. J., and BROWN and LAWSON, JJ., concur. | October 18, 1951 |
94a90a9c-56e2-4e7d-a523-f1cba33db578 | Fiorella v. City of Birmingham | 48 So. 2d 768 | N/A | Alabama | Alabama Supreme Court | 48 So. 2d 768 (1950)
Sam FIORELLA
v.
CITY OF BIRMINGHAM.
6 Div. 95.
Supreme Court of Alabama.
November 2, 1950.
Rehearing Denied November 30, 1950.
Gibson & Hewitt, of Birmingham, for petitioner.
Chas. H. Brown, Asst. City Atty., of Birmingham, opposed.
STAKELY, Justice.
Petition of Sam Fiorella for certiorari to the Court of Appeals to review and revise the judgment and decision of that Court in the case of Fiorella v. City of Birmingham, Ala.App., 48 So. 2d 761.
Writ denied.
FOSTER, LAWSON and SIMPSON, JJ., concur. | November 2, 1950 |
1c79d6fe-eb5c-476f-bd4f-96b6920af351 | Weems v. Weems | 50 So. 2d 428 | N/A | Alabama | Alabama Supreme Court | 50 So. 2d 428 (1950)
WEEMS
v.
WEEMS.
8 Div. 551.
Supreme Court of Alabama.
November 24, 1950.
Rehearing Denied February 22, 1951.
*429 Potts & Young, of Florence, for appellant.
Bradshaw & Barnett, of Florence, for appellee.
STAKELY, Justice.
The appellant, Beatrice Weems, filed her bill of complaint against her husband John S. Weems for divorce upon the ground of cruelty and reasonable apprehension of great bodily harm or death at his hands. In the bill custody of their three children is sought, Billy Weems 15 years of age, Bobby Weems 11 years of age and Jimmy Weems 9 years of age. In a cross bill the respondent sought the custody of the three children and a money decree for a fund alleged to belong to respondent under circumstances which will be more fully hereinafter set forth. The court made a final decree denying the divorce sought by Beatrice Weems, granting the custody of the eldest child to the mother and granting custody of the two younger children to the father. In its decree the court also ordered the complainant to pay to the respondent the sum of $750. From the foregoing decree Beatrice Weems prosecutes this appeal.
I. No good purpose will be served by setting out all the evidence in this case in detail. James v. James, 242 Ala. 140, 5 So. 2d 616. It is sufficient to say that tendencies of the evidence which support the right of Beatrice Weems to a divorce may be summarized as follows. At the instance *430 of the uncle of John S. Weems, Polk Butler, father of the appellant, went to the home of appellant and appellee near Killen on March 3, 1949. Beatrice Weems met her father at the truck crying and talking about appellee's threats to kill her. She appeared to be frightened. Polk Butler thereupon moved his daughter and the three children to a small house on his place. About a year prior to March 13, 1949 John Weems threatened to kill Beatrice Weems and the three minor children by blowing their brains out. He kept a gun and shells for the gun in the house. Repeatedly, from that time until the family was moved to the place of Polk Butler, he nagged his wife, "threw fits" and repeatedly threatened to kill her. The result was to make her life miserable and cause her to be so extremely nervous as to require medical attention in the spring of 1949. One week prior to the separation of Beatrice Weems and her husband on March 13, 1949, he told her that the devil was after him because of his treatment of her and the children. On March 13, 1949 he came towards her mumbling something which she could not understand "with his fists drawn up." She was so scared that she ran out of the house.
Dr. Waddell, a physician, testified that he examined Beatrice Weems in the spring of 1949 and at that time she was suffering from a nervous condition and insomnia. He testified that in his opinion worry and excitement often caused nervousness of this kind and that he found nothing physically wrong with her. He prescribed a nerve sedative.
Buford Butler, a brother of appellant, testified that he was in a room adjoining the kitchen in March 1949 and that while appellant and appellee were in the kitchen he saw appellee draw his fists on appellant and at this time appellee was mumbling something.
Billy Weems, oldest son of appellant and appellee, testified he was 15 years of age and that about 2 years prior to the trial while he and his father were in a field near their home, his father threatened to kill him if he ran home, that on another occasion his father knocked him down causing his head to strike a table and cutting his head and that he had heard his father while they all lived near Killen, Alabama, threaten to run his mother and his brothers off the place.
On March 16, 1949 on medical advice John S. Weems was committed to the Bryce Hospital for the Insane at Tuscaloosa. He remained there until May 23, 1949, at which time he returned to Lauderdale County. He introduced in evidence four letters which he had received from his wife during this period expressing her love and the love of the children for him and the hope that he would soon get well. He received a fifth and last letter from his wife dated April 1, 1949 in which she stated that she had received a letter from the doctors at Bryce Hospital saying that they could find nothing wrong with him and that she was through with him.
According to Beatrice Weems when she first heard from the medical officers at Bryce Hospital concerning her husband's condition she thought that her husband's cruel treatment of her and their children resulted from mental trouble. When she found out that there was nothing wrong with her husband's mind and that his troubles were purely of a nervous order, she could not then excuse his cruel treatment. She introduced a letter written to her by her husband while he was confined at Bryce Hospital at Tuscaloosa in which he said: "I believe if I get out of here I will do better from now on, if you and the boys can forgive me for the way I done before."
According to the testimony of Beatrice Weems she continued to sleep with appellee and live with him after his threat to kill her which was made about one year prior to the separation but that she completely separated from him when he threatened her on or about March 13, 1949.
In divorce actions predicated on the ground of cruelty any conduct which furnishes reasonable apprehension that the continuance of cohabitation would be attended with bodily harm is legal cruelty though no actual physical violence has been *431 committed. Carr v. Carr, 171 Ala. 600, 55 So. 96; Goodrich v. Goodrich, 44 Ala. 670; Williams v. Williams, 239 Ala. 162, 194 So. 507; Bailey v. Bailey, 237 Ala. 525, 187 So. 453; Pitchford v. Pitchford, 222 Ala. 612, 133 So. 718.
It is true that the appellant continued to live with her husband after his threat to blow out her brains and the brains of the children about one year prior to their separation, but she did not continue to sleep with him after they moved to her father's place in March 1949 and after he threatened to kill her. In cases of this kind condonation is conditional. A renewal of the causes of complaint revives the right of the condoning party to insist upon the former offense. Turner v. Turner, 44 Ala. 437; Black v. Black, 199 Ala. 228, 74 So. 338; Atkins v. Atkins, Ala.Sup., 48 So. 2d 200.
Upon a careful consideration of the evidence and its tendencies we are of opinion that Beatrice Weems is entitled to a divorce and that the court was in error in denying this relief. It is so ordered.
II. We cannot emphasize too often that where the custody of minor children is involved the welfare and best interest of the children is the paramount consideration. Lewis v. Crowell, 210 Ala. 199, 97 So. 691; Hill v. Gay, 252 Ala. 61, 39 So. 2d 384. The undisputed evidence in the case shows that Beatrice Weems is in all respects a fit, suitable and proper person to have the custody of the minor children. Even the appellee concedes that her character is "perfect". The children now live with her in a large and commodious home with her father and mother. This house is situated on a highway along which school busses travel and which convey the children to the public school. The children are properly fed and clothed and they regularly attend religious services with their mother. Polk Butler, the father of Beatrice Weems, testified that his home is open to her and the children and that they are welcome to live in his home as long as they wish.
The record shows that the children desire to live with their mother and on the contrary do not desire to live with their father. Billy Weems testified that he was afraid of his father, that he heard his father threaten to kill his mother and the three children by "blowing their brains out" and on one occasion he threatened to kill Billy while working in a field.
Considering the age of the children, their wishes in the matter are entitled to much weight. Wright v. Price, 226 Ala. 591, 147 So. 886; Chandler v. Whatley, 238 Ala. 206, 189 So. 751; Hill v. Gay, supra.
The testimony in the case is without conflict that John S. Weems, the father, was committed to Bryce Hospital on March 19, 1949 on the advice of Dr. Simpson of Florence, Alabama. Letters written from the hospital by the doctors show that his condition was such that even on May 16, 1949 he was not then ready "to be given a trial at home." He admitted that after his return from the hospital in May, 1949, Billy Weems and Jimmy Weems ran away from school when he went to school to see them. His letter written in March, 1949, which has been referred to, indicates that the children have reason to fear their father.
According to his testimony the children if he receives their custody would live with him in the home of his uncle John H. Weems and his aunt, a sister of John H. Weems. He testified "I think my aunt will help", but neither the uncle nor the aunt testified and there is nothing to show that they will welcome or even accept the children in their home. The record is silent as to what kind of conveniences, physical, moral or otherwise, would be afforded the children in the home of his aunt and uncle. The testimony shows that the appellee has no property or source of income except his earnings which amount to about $3 per day when he is employed. We think it wise for these young brothers to be allowed to grow up together and not be separated in different localities and homes. The custody of the oldest child has already been awarded to the mother by the court. Under all the circumstances in the case, which need not be set out in further detail here, we think that the custody of these three minor boys should be awarded to their mother, the *432 father to have such right of reasonable visitation as the court may direct. In awarding the custody of the two youngest boys to the father, we think the court was in error. Green v. Green, 249 Ala. 150, 30 So. 2d 905; Marsh v. Marsh, 250 Ala. 31, 33 So. 2d 1; Brown v. Brown, 229 Ala. 471, 158 So. 311.
III. In its decree the court ordered appellant to refund to the appellee the sum of $750 and rendered judgment against appellant in favor of appellee for this amount. In about February 1949 the appellee and appellant sold their home realizing from the sale a cash consideration of something more than $2100. It is conceded that the appellant worked and helped to pay for the home. The proceeds of this money were deposited in the State National Bank of Florence, Alabama. Tendencies of evidence also show that before he left for the hospital the appellee authorized the appellant to sell certain farm implements and tools. A sale of these articles brought $228 which was put in the fund. Before he left for the hospital the appellee signed some checks in blank and delivered them to appellant, the idea being that these checks would provide a means for the living expenses of Beatrice Weems and the children. Beatrice Weems transferred the fund to her father, it being her idea that the fund would thereby be better conserved. Out of this fund living expenses were paid and some necessary medical expenses. There appears to be a balance in the fund of about $1242.49. The decree is for the part of this fund which the court thought should go back to the appellee upon his return from the hospital. We have carefully considered the evidence on this phase of the case and see no reason to disturb the decree of the court in this respect, except that the cause is remanded to the lower court for such order as the court may deem best for the maintenance and support of the children, including further orders if necessary in this connection with respect to this fund.
It is urged that the matter here involved is not a proper subject matter for a cross bill since it is not germane to the relief sought in the original bill. We think this objection is not well taken. Riley v. Wilkinson, 247 Ala. 231, 23 So. 2d 582. The purpose of the original bill is for a divorce and the custody and support of the children and since this fund was set up for the support of the wife and children, we see no reason why the equities between husband and wife relating to this fund could not be adjudged in the present case since all matters relating to the marriage relationship, the joint assets of the parties and the custody and support of the children should be settled in one suit in order to avoid further and extended litigation. Dancy v. Dancy, 253 Ala. 207, 43 So. 2d 893; Roubicek v. Roubicek, 246 Ala. 442, 21 So. 2d 244; Stearnes v. Woodall, 218 Ala. 128, 117 So. 643.
We realize that the court's decree was rendered after the case was tried orally before the court and we have often pointed out the presumption which attends a decree rendered under such circumstances but as we said in Chandler v. Whatley, 238 Ala. 206, 189 So. 751, 757, "We cannot and should not evade responsibility, letting it rest with the trial court. When convinced that he has erred, not so much in his finding of facts, as in the application of sound principles of law in such cases, we must so hold." In keeping with the view which we have expressed, the decree of the lower court is affirmed with respect to its judgment for $750, except that the court is authorized to make such further orders with respect to the fund as it may deem best for the support and maintenance of the minor children with consequent reduction in the judgment, and is reversed and rendered so as to grant to Beatrice Weems a divorce from John S. Weems on the ground of cruelty and also to grant to her the custody and control of the three minor children Billy Weems, Bobby Weems and Jimmy Weems, the father to have such right of reasonable visitation as the court may direct. Both Beatrice Weems and John S. Weems are permitted to marry again. Acts 1943, p. 569. The cause is remanded to the lower court so that such orders may be made and such process issued *433 as may be necessary to make effective the decree here made.
Affirmed in part and in part reversed, rendered and remanded.
FOSTER, LAWSON and SIMPSON, JJ., concur. | November 24, 1950 |
9af41a73-48bc-477e-a3aa-fe360c610abc | White v. Henry | 49 So. 2d 779 | N/A | Alabama | Alabama Supreme Court | 49 So. 2d 779 (1950)
WHITE
v.
HENRY.
6 Div. 990.
Supreme Court of Alabama.
December 21, 1950.
Jas. B. Smiley, of Birmingham, for appellant.
Earl McBee and C. Eugene Fowler, of Birmingham, for appellee.
BROWN, Justice.
This is an action of assumpsit by the appellee against the appellant for failing to *780 deliver two truck loads of household goods and other property at the designated place of delivery as provided in the contract between the plaintiff and the defendant, appellant here, and for damage to said property and loss of part thereof.
The case was submitted to the jury on counts 2, 4, 5 and 6 of the complaint and the plea of the general issue pleaded in short by consent. Some of said counts of the complaint aver that the defendant entered into a contract with plaintiff to transport said property from Orlando, Florida, to plaintiff's home eight miles north of Montgomery, where plaintiff's wife was waiting to receive same, for a cash consideration of $110.00 for the haulage and delivery.
There is a conflict in the evidence as to whether the amount paid in advance for the haulage and delivery was the full contract price. The plaintiff's testimony goes to show that it was, but the defendant testified that it was merely an advance payment and that the balance was to be paid upon delivery, said alleged balance being $200.00. The question presented by this conflicting evidence was for the jury.
Plaintiff's evidence goes to show that in the shipment was a number of rabbits kept for breeding purposes; a set of antique Haviland table china that had been in his family for over seventy-five years, that this china was practically destroyed. That this shipment was to be delivered to the plaintiff's wife eight miles north of Montgomery on or before 1:30 o'clock A. M. on the 15th of February, 1945; that the trucks were late in reaching the destination and when they arrived the defendant claimed that there was a balance due for the shipment and refused to deliver same to plaintiff's wife. Defendant carried the property to Birmingham and stored it and kept it in storage for a week or more, refusing to deliver the same unless the claimed balance for haulage, the storage charges and taxes were paid. The plaintiff in order to get his property in its damaged condition paid the alleged claim and taxes under circumstances authorizing an inference that it was paid under protest. The goods in damaged condition were then carried to plaintiff's home and delivered. This suit is brought to recover the excess charges of $366.20 for transportation and storage and the damage to the goods delivered and the loss occasioned by negligence in handling and delay of delivery. The plaintiff's testimony as to the value of the articles lost and as to the amount of the damage is not disputed.
The first assignment of error argued is that the court erred in overruling the defendant's motion for a new trial. This will be treated later.
The second assignment of error is predicated on the refusal by the court of thirty requested written charges including the affirmative charge. As we have shown, the defendant was not due the affirmative charge. Therefore, appellant can take nothing by said assignment of error, which is predicated on this refusal of all thirty of said charges. Sovereign Camp, W. O. W. v. Waller, 232 Ala. 170, 167 So. 563; Taylor v. Taylor, 251 Ala. 374, 37 So. 2d 645.
The only statement made in brief as to the ruling of the court on the demurrer to the complaint, the basis of assignment of error three, is "the court erred in overruling demurrer to counts 2, 4, 5 and 6 and also to count 4, as amended. This, however, would be tantamount to giving the affirmative charge in favor of defendant. This should have been done as pointed out in error No. 2." This statement is merely a repetition of the assignment of error and is not sufficient to invite consideration. Western Union Telegraph Co. v. Benson, 159 Ala. 254, 48 So. 712; 5 Mayfield's Digest, § 32, p. 32.
While there were some objections put to the witness identifying exhibits 2 and 3 and exceptions to the court's rulings thereon, such rulings were not assigned as error, nor was there any objection to the exhibits when offered in evidence. The only objection made to plaintiff's exhibit 4 was a general objection, assigning no ground. Such objection was unavailing upon which to predicate error. Sanders v. Knox, 57 Ala. 80, 81; Johnston v. Isley, 240 Ala. 217, 198 So. 348; Conway v. Robinson, 216 Ala. 495, 113 So. 531; Southern Ry. Co. v. Jordan, 192 Ala. 528, 68 So. 418.
*781 One of the contentions of the defendant was that he did not make the contract for hauling plaintiff's property from Orlando, Florida, but that it was made by American Van Lines, Inc. Said exhibit 6 was offered to show that American Van Lines, Inc. had no certificate of convenience and necessity to haul goods from Orlando to its destination north of Montgomery on U. S. Highway 31. The defendant objected to the proffered evidence because it did not purport to cover the entire authority of the Van Lines and that it did not show that it was a certificate of convenience and necessity in force as of the date of the hauling, February, 1945. The certificate was dated March 22, 1943, and there was evidence offered going to show that all of said certificate was in force as of the date of the transaction involved. The said certificate of convenience and necessity showed that the Van Lines were without authority to make the haul of the property involved.
The argument made in support of said assignment of error in brief is: "The court erred in allowing exhibit No. 6 to be introduced into evidence over the objection of the defendant attempting to show the operating authority of American Van Lines, Inc., of Brooklyn, N. Y. At this point may I point out that this Exhibit, which is a certificate of Public Convenience and Necessity as issued to American Van Lines, Inc., Brooklyn, N. Y., contradicts the Exhibit as shown on page 79 of the transcript because in that exhibit it shows American Van Lines, Inc., Chicago, Illinois, and you will note that the territory involved in these two exhibits are not the same but are of two different companies all together."
There is nothing in the evidence showing that the Van Lines operating out of Brooklyn, N. Y., was not the same corporation that operated out of Chicago. The objection was overruled without error.
The evidence is without dispute that the defendant did not have a certificate of convenience and necessity to engage in the business of transporting goods on the highways over which said haul was made. This fact, however, did not militate against the authority of the parties to make a contract based on a valuable consideration to have said goods transported on the one hand and to agree to transport them on the other.
In the motion for a new trial the appellant by grounds 7, 8, 9 and 10 raised the question that the verdict of the jury is excessive and that there is no competent testimony upon which to base the finding of the jury. The plaintiff testified to the amount paid by him as exacted by defendant in excess of what the plaintiff asserted was the agreed contract price and the question of whether or not the $110.00 paid was the full consideration for transporting the goods was a question for the jury. The plaintiff offered evidence showing that the excess paid was $366.20; that the value of the rabbits lost was $200.00, and that the value of the seven cement blocks lost was $105.00. There was evidence going to show that the antique table and china were broken to pieces and there was evidence going to show that the plaintiff and his wife were deprived of the use of the household goods for a week or more.
The general rule establishing market value as a measure of value of personal property is not absolute and the courts are agreed that the absence of a market value for property injured or destroyed will not remit the owner to nominal damages only. In such a situation the courts will consider such other relevant facts and circumstances as determine the amount necessary to compensate the plaintiff. However, it is to be observed that this rule does not relieve the plaintiff of his burden of offering evidence showing that he has been damaged and the extent or amount of his loss, since the court will not base an award upon mere speculation. Southern Express Co. v. Owens, 146 Ala. 412, 41 So. 752, 8 L.R.A.,N.S., 369; Kates Transfer & Warehouse Co. v. Klassen, 6 Ala.App. 301, 59 So. 355; Sarkesian v. Cedric Chase Photographic Laboratories, Inc., 324 Mass. 620, 87 N.E.2d 745, 12 A.L. R.2d 899, notes 906, 909.
The plaintiff, in the absence of evidence showing market value, may prove other factors of value such as the value of the property to him. Birmingham Ry. L. & P. *782 Co. v. Hinton, 157 Ala. 630, 47 So. 576; Cooney v. Pullman Palace-Car Co., 121 Ala. 368, 21 So. 712, 53 L.R.A. 690; Buerger v. Mabry, 15 Ala.App. 241, 73 So. 135.
After full review of the evidence, we are of opinion that the verdict of the jury for $2,000.00 was excessive, and unless the appellee is content to file a remittitur with the Clerk of the Supreme Court within twenty (20) days from the date of the mandate of conditional affirmance with the Clerk of the Circuit Court of Jefferson County remitting $1,000.00 of said amount, the judgment of the circuit court will be reversed and the case remanded for new trial. If said remittitur is filed, the judgment will stand affirmed.
Affirmed conditionally.
All the Justices concur, except GARDNER, C. J., not sitting. | December 21, 1950 |
543381c6-40c8-47f8-b639-22774aefe64b | Isaacks v. Clayton | 48 So. 2d 536 | N/A | Alabama | Alabama Supreme Court | 48 So. 2d 536 (1950)
ISAACKS
v.
CLAYTON.
7 Div. 8.
Supreme Court of Alabama.
November 9, 1950.
*537 Embry & Embry, of Pell City and T. Eric Embry, of Birmingham, for appellant.
W. T. Starnes, of Pell City, for appellee.
SIMPSON, Justice.
Complainant Isaacks has appealed from a final decree determining a disputed boundary line between coterminous tracts of land, in which decree the court established the line as contended for by the defendant, Clayton. § 2, Title 47, Code 1940; § 129, Title 13, Code 1940.
It is not necessary to describe the disputed area of land other than to observe that the complainant's land was south and the respondent's land north of the disputed line. The area in dispute was about thirty or thirty-five feet in width and extended across a part of the SE¼ of Section 14, Township 16 South, Range 2 East. The evidence was heard ore tenus in open court.
It was the contention of the complainant in the trial below and renewed here that the division line between the lands of the parties was an old established line which had been recognized between the coterminous landowners for more than twenty years and that the respondent, some few years previous to the institution of the suit, caused the land to be re-surveyed, established a new line, and fenced up the disputed area, which complainant owned. Had this been all the evidence, the complainant, of course, would have been entitled to a favorable decree establishing the line as contended for by him. This under the well-known principle that if two owners of adjacent lands agree on a division line between tracts of land, and each holds possession for ten years, claiming to said line, the title becomes perfect without regard to the true location of the boundary line between them. Gunn v. Parsons, 213 Ala. 217, 104 So. 390(2); Branyon v. Kirk, 238 Ala. 321, 191 So. 345; Duke v. Wimberly, 245 Ala. 639, 18 So. 2d 554.
But adverse possession may be abandoned and if one of the adjoining owners repudiates the dividing line and establishes a different line and erects his own fence and holds possession adversely up to said fence line for a period of ten years, the former title of the adjacent landowner is thereby divested. Stated another way, when an adjacent landowner proceeds to enclose his property and erects a fence intended as a line fence and holds actual and exclusive possession to it as such, his possession is adverse and if continued for ten years ripens into title. Denton v. Corr, 253 Ala. 497, 45 So. 2d 288; Brantley v. Helton, 224 Ala. 93, 139 So. 283; Lyons v. Taylor, 222 Ala. 269, 132 So. 171.
Decision here is governed by the last stated principle. The tendency of the evidence for the respondent established rather preponderantly that more than ten years before the institution of the suit he had the division line between the respective tracts of land surveyed to establish the true government line; that it was so established and he immediately erected a division fence and has been in the actual, open, notorious, and exclusive possession thereof continuously since that time and cultivating the land up to the fence. This possession for the stated period perfected his title to the land up to the fence and whatever may have been the condition of the title to the property prior to that time, it cannot avail to dispossess him now.
*538 The claimed fact that the complainant had no actual knowledge of the adverse possession of the disputed strip of land by the respondent in no way detracts from the governing principle or prevents the perfection of the respondent's title. When the possession was thus as open, visible and notorious as it was, notice is imputed to the complainant. "* * * such actual possession, being a patent fact, furnishes evidence of its own existence, and is the equivalent of actual notice of the claim under which it is held." Gerald v. Hayes, 205 Ala. 105, 106, 87 So. 351, 352; 2 C.J.S., Adverse Possession, § 45, p. 560, 561.
The evidence, as observed, was heard orally before the court and under the well settled presumption attending decision under such circumstances, the finding on the issue will not be here disturbed. Huckaba v. Hill, 209 Ala. 466, 96 So. 569; Ray v. Richardson, 250 Ala. 705, 36 So. 2d 89.
We find no error to reverse.
Affirmed.
FOSTER, LIVINGSTON, and STAKELY, JJ., concur. | November 9, 1950 |
a2fb79dc-4454-4386-b4d1-801d59daaa12 | Montgomery Building, Etc. v. Ledbetter E. Co. | 57 So. 2d 112 | N/A | Alabama | Alabama Supreme Court | 57 So. 2d 112 (1951)
MONTGOMERY BUILDING & CONSTRUCTION TRADES COUNCIL et al.
v.
LEDBETTER ERECTION CO., Inc.
3 Div. 600.
Supreme Court of Alabama.
June 28, 1951.
Rehearing Denied January 10, 1952.
Further Rehearing Denied March 6, 1952.
*113 John L. Busby and Earl McBee, Birmingham, for appellants.
Jack Crenshaw and Files Crenshaw, Montgomery, for appellee.
FOSTER, Justice.
The bill of complaint in this case was filed by appellee against appellants, labor organizations which are unincorporated associations, having their places of business in the city and county of Montgomery. The bill alleges in substance, and so far as here material, that Bear Brothers are general contractors and had entered into a contract with Montgomery Towers, Inc., for the construction of a large apartment house in the city of Montgomery in accordance with the plans and specifications. That the complainant entered into a contract with Bear Brothers whereby it agreed to erect and rivet all the structural steel necessary for the erection of said apartment house. The bill alleges that the employees of Bear Brothers are not organized as union labor, and there was not a labor dispute existing between the complainant and any of its employees; that the respondents were not representatives of employees of Bear Brothers, and did not seek to represent the employees of complainant. The bill then alleges that respondents were seeking to force Bear Brothers to recognize or bargain with a labor organization, and to that end respondents placed a picket line across the entrance to the property where the building was being constructed. That the union employees of complainant were not willing to cross that picket line to perform work on said building for the complainant, causing irreparable damage to complainant, and that respondents had declined to remove said picket line so that complainant's employees could continue to work on the job. It is also alleged in the bill:
"(12) That since the establishment of said picket line by the respondents none of the employees of the complainant Ledbetter Erection Company, Inc., will cross said picket line and the erection of said structural steel has been stopped; that if said picket line is maintained complainant will suffer irreparable damage for which it will have no adequate remedy at law; that the remedy of an action and damages provided by section 303 of the Taft-Hartley Act (29 *114 U.S.C.A., section 187) is inadequate; that the complainant's valuable heavy machinery is being kept idle at complete loss to the complainant and complainant has been notified by its employees that if they are prevented from working on this job by reason of said picket line they will be forced to seek employment elsewhere; that in order to keep complainant's experienced crew of workmen together it would be necessary for the complainant to pay said employees even though they remained idle for an indeterminate time at a resulting loss to the complainant for which no adequate damages could be assessed or collected; that complainant's employees have notified complainant that unless said picket line is removed on November 20, they will seek employment elsewhere; that in addition thereto it might become necessary for complainant to default in its contract with Bear Brothers, Inc., as a result of which complainant would be subjected to suits for damages for such breach.
"(13) That said apartment building is being erected under the terms of section 608 of the National Housing Act [12 U.S. C.A. § 1743] under a commitment issued by the Federal Housing Authority certifying that such housing was essential and that there existed in Montgomery a shortage of adequate housing units for rental purposes; that since the erection of said building was begun defense activities at Gunter Field and Maxwell Field have substantially increased; that complainant is informed and believes and on such information and belief avers that the commanding officer at Maxwell Air Force Base, Montgomery, Alabama, has stated publicly that after January 1, 1951, that defense activities at Maxwell Air Force Base will be stepped up to such an extent that said Air Force Base will have a larger personnel than ever before in its history; and before such defense activities were initiated the Chamber of Commerce was asked to ascertain whether the City of Montgomery could absorb 500 additional families and in making said survey the Chamber of Commerce took into consideration the availability of this apartment house under erection which would supply 124 additional rental units; that if the erection of said apartment house is delayed such rental units will not be available for the use of the members of the armed forces or other defense activities in and around Montgomery and the public interest will be inimically affected.
"(14) That complainant and its employees are entirely innocent parties and are in no way engaged in any labor dispute among themselves or with anyone else. That complainant's employees are unwilling to cross said picket line for the reason that if they cross said picket line they might be blackballed and prevented from working on further jobs; that the effect of the continued maintenance of such picket line is therefore to prevent complainant from engaging in business and performing its said contract and also prevents the complainant's employees from engaging in gainful employment in Montgomery to the irreparable injury to both the complainant and its employees.
The case comes here from a decree overruling a motion to dissolve an injunction which was theretofore issued. Upon the hearing of the motion the respondents withdrew an answer to the bill which had been filed and the first twenty-six grounds of the motion, leaving the twenty-seventh ground which is in substance that the complaint complains of a violation of section 8(b) of the National Labor Relations Act, 29 U.S. C.A. § 158(b), and that complainant has an adequate remedy as provided in section 10 of that Act, 29 U.S.C.A. § 160. Respondents further amended their motion to dissolve the injunction by adding grounds twenty-eight to thirty-nine, inclusive. The substance of those grounds of the motion is that the sole and exclusive remedy provided for the acts complained of is section 10 of the National Labor Relations Act as amended, and that the state court is without jurisdiction by reason of the provisions of said section 10.
Appellee, who is the complainant, insists on this appeal that under that status of the pleading the only question presented is the equity of the bill, since there is no answer denying its allegations; and then insists the bill does not show that the questions involved affected the rights of the employees *115 and employers in their relations affecting commerce, and that so far as the allegations of the bill are concerned it relates purely to a local transaction. But the allegations of the bill itself show that reliance is had upon the National Labor Relations Act as amended, 29 U.S.C.A. § 151 et seq., for the purpose of determining whether or not the complainant is entitled to an injunction.
The bill specifically refers to the fact that the alleged picketing is secondary, as defined in section 8(b) (4) of said Act, and that the remedy provided in section 303 of it for damages is inadequate, and that there is no adequate remedy at law.
We will refer to the Act in question as the Labor Management Relations Act of 1947 (or Labor Management Act) for that is the name given to it by section 1 of the Act. It is sometimes called the Taft-Hartley Act, but it is all one and the same Act and serves to amend the National Labor Relations Act of 1935. As amended it is codified in Title 29 U.S.C.A., beginning with section 141. Section 8(b) (4) will be found in Title 29, section 158, U.S.C.A. That section makes it unfair labor practice, so far as here material, for a labor organization or its agent: "(b) (4) to engage in, or to induce or encourage the employees of any employer to engage in, a strike or a concerted refusal in the course of their employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services, where an object thereof is: (A) forcing or requiring any employer or self-employed person to join any labor or employer organization or any employer or other person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person; (B) forcing or requiring any other employer to recognize or bargain with a labor organization as the representative of his employees unless such labor organization has been certified as the representative of such employees under the provisions of section 9".
The bill alleges that the defendants were engaged in an unfair labor practice under such definition, and that contention is not seriously controverted by appellants.
Section 303 of that Act, which is section 187 of Title 29 U.S.C.A., makes it unlawful for any labor organization to engage in or induce or encourage employees, etc., using the same language as in section 8(b) (4), supra. Subsection (b) thereof authorizes a suit in any United States District Court for damages sustained by him by reason of such conduct.
Section 10(a) of said Act is section 160 of Title 29 U.S.C.A., and provides: "The Board is empowered, as hereinafter provided, to prevent any person from engaging in any unfair labor practice (listed in section 8) affecting commerce. This power shall not be affected by any other means of adjustment or prevention that has been or may be established by agreement, law, or otherwise." There was also a proviso added permitting an agreement to submit labor disputes affecting commerce to a state agency.
The question presented on this appeal is whether or not said section 10(a) serves to exclude jurisdiction of a state court to enjoin an unfair labor practice by a labor organization under section 8(b)(4) and section 303, supra, which does not impede the flow of commerce, but which incidentally affects commerce.
The jurisdiction of the board was set up in the National Labor Relations Act before it was amended in section 10 thereof, section 160, Title 29, U.S.C.A., in the following language: "The Board is empowered, as hereinafter provided, to prevent any person from engaging in any unfair labor practice (listed in section 8, supra) affecting commerce. This power shall be exclusive, and shall not be affected by any other means of adjustment or prevention that has been or may be established by agreement, code, law, or otherwise." The only difference between that and section 10(a) of the Labor Management Act is that in the Labor Management Act the words "exclusive and shall," as they appear together, are excluded and also the word "code," otherwise the Labor Management Act is the same as it was under the old law, except for the proviso added. Section 8(b)(4) of the Labor *116 Management Act has no counterpart in the original Labor Relations Act. The unfair practices in the original act related to those of the employer only, whereas the addition of (b) to section 8, supra, enumerates unfair practices of a labor organization. Section 303 of the amended act, which is section 187 of Title 29 U.S.C.A., like section 8(b) has no counterpart in the original act, but is new to the amendatory act.
Under section 10(1) of the amended act the board has jurisdiction and power, upon complaint being made, to seek an injunction in the United States District Court restraining a labor organization from engaging in an unfair labor practice as defined by the amended act.
The original act, section 10, contained subsections extending from (a) to (i), inclusive. The amended act adds subsections (j), (k) and (l). They both provide in subsection (b) thereof in substance that whenever a charge is made that any person (which now includes both employer and employee) has engaged in or is engaging in such unfair labor practice, the board shall cause a complaint to be served upon such person, stating the charges. But the original act contained no provision for court action until after the board had made a cease and desist order. Under the amendment and by virtue of subsection (l), so far as we are here concerned, it is provided that whenever such charge is that a person has engaged in unfair labor practice within the meaning of paragraph (4)(A), (B) or (C) of section 8(b), here applicable, a preliminary investigation of such charge shall be made forthwith and, if there is reasonable cause to believe such charge, the officer or regional attorney, to whom the matter is referred, shall on behalf of the board petition in a District Court of the United States, etc., for appropriate injunctive relief pending the final adjudication of the board with respect to such matter. It will be observed, this has reference to an unfair labor practice of a labor organization and not an unfair labor practice by the employer.
So that when the complaint is against the employer court action is not available by virtue of the Act until there has been an order to cease and desist. Whereas when the complaint is as to unfair labor practice of a labor organization, such injunctive relief is available on behalf of the board if upon preliminary investigation the officer or regional attorney has cause to believe the charge is true and commerce is involved.
It therefore appears that, in respect to the situation at hand, we are dealing with an unfair labor practice of a labor organization for which a remedy is given by subsection (l) of section 10, wherein it is not necessary to wait for a determination upon the merits of the complaint before injunctive relief is made available, but this may be done promptly upon preliminary investigation, if the officer has cause to believe that the charge is true.
It is well understood that when the National Congress within its constitutional power passes an act conferring a right and providing a remedy, such remedy so provided is not ordinarily exclusive, thereby preventing such other remedies as may be available to obtain its benefits under state law then existing. This principle was fully considered by us in the case of Forsyth v. Central Foundry Co., 240 Ala. 277, 198 So. 706. We do not find where the principle there declared has been set aside by any decisions of the United States Supreme Court, but has been generally approved. Mengel Co. v. Ishee, 192 Miss. 366, 4 So. 2d 878. See, Overnight Motor Trans. Co. v. Missell, 316 U.S. 572, 62 S. Ct. 1216, 86 L. Ed. 1682; Walling v. A. H. Belo Corp., 316 U.S. 624, 62 S. Ct. 1223, 86 L. Ed. 1716.
It is clear that ordinarily the jurisdiction of a state court is competent to grant injunctive relief where the purpose of the injunction is to restrain either the unlawful means by which picketing is maintained or the unlawful purpose which is sought by it, Hotel and Restaurant Employees v. Greenwood, 249 Ala. 265, 30 So. 2d 696; Milk Wagon Drivers Union v. Meadowmoor, 312 U.S. 287, 61 S. Ct. 552, 85 L. Ed. 836; Hotel & Restaurant Employees v. Wisconsin, 315 U.S. 437, 62 S. Ct. 706, 86 L. Ed. 947; Carpenters and Joiners Union v. Ritter's Cafe, 315 U.S. 722, 62 S. Ct. 807, 86 L. Ed. 1143, and that this right *117 will exist, although such picketing is in respect to commerce, unless Congress has otherwise provided. Minneapolis and St. Louis R. R. Co. v. Bombolis, 241 U.S. 211, 36 S. Ct. 595, 598, 60 L. Ed. 961; Forsyth v. Central Foundry Co., supra, and cases there cited. Therefore, when commerce is affected, under the terms of the Labor Relations Act, as amended, injunctive relief in the state court would not be set aside on account of such Act of Congress, unless it clearly excluded the jurisdiction of the state court in that respect.
It is contended by appellee that section 10 (a), supra, which provides "This power (of the board) shall not be affected by any other means of adjustment or prevention that has been or may be established by agreement, law, or otherwise," as it now appears, leaving out the word "exclusive," simply means what it says that, although there may be other remedies provided by law, they shall not affect the power of the board, which it is claimed is the plainly expressed meaning of that clause. Whereas the original act not only meant that but also meant, as it said, that the power of the board shall be exclusive.
Of course Congress could with respect to commerce make provision for an exclusive remedy, which the original act did.
It is not contended that the amended act by its terms confers any power in that respect upon a state court. But it is contended that where that power was then in existence, except as taken away by the exclusive feature of the original act, the elimination of the exclusive feature merely served to remove an impediment in the use of the remedy then existing in a state court.
In determining the effect of eliminating the exclusive term of the original act, it is necessary to analyze not only that particular feature of the amendment but the act as a whole as amended in other respects in connection with the original act itself.
Appellant places much reliance upon the case of Amazon Cotton Mill Co. v. Textile Workers Union, 4 Cir., 167 F.2d 183, 187, which was a case before the United States Circuit Court of Appeals. A bill for an injunction had been filed in the United States District Court by a labor union to require the employer to bargain with the union. The Norris-LaGuardia Act, 29 U.S.C.A. § 101 et seq., prohibited the issuance of such an injunction. The question was whether the Labor Management Act conferred jurisdiction upon the district court in such a suit, notwithstanding the Norris-LaGuardia Act. The court held that the Labor Management Act did not confer such jurisdiction upon the District Court of the United States, except by petition of the labor board.
In order to understand the language of the opinion in that case, it must be borne in mind that the court was dealing with that particular question, especially that part of the opinion which says that the change made by eliminating the word "exclusive" did not vest the court with general jurisdiction over unfair labor practices, but was intended to recognize the jurisdiction vested in the courts by section 10, subsections (j) and (l). When it says the "courts" it was there referring to the Federal District Courts, and whether jurisdiction was conferred upon the federal courts other than at the suit of the board. The opinion quoted from the report of the conference committee of Congress respecting the effect of such a change, saying that the conference agreement accepted the Senate amendment that such exclusive jurisdiction was eliminated because of the provisions of the act authorizing temporary injunctions enjoining alleged unfair labor practices, and because it made unions suable; but retained the provision that the board's power should not be affected by other means of adjustment or prevention. The following feature of said report was also copied in said opinion: "The conference agreement adopts the provisions of the Senate amendment by retaining the language which provides the Board's powers under section 10 shall not be affected by other means of adjustment. The conference agreement makes clear that, when two remedies exist, one before the Board and one before the courts, the remedy before the Board shall be in addition to, and not in lieu of, other remedies." The opinion in analyzing that feature of the report, observes that "The last sentence *118 of the quotation does not mean, of course, that a general remedy in the courts was being given by the act, but merely that an option existed where a remedy in the courts was given by the act, or existed otherwise." (Italics supplied.) It was also said that if the effect was intended to make a fundamental change in the jurisdiction (of federal courts) to deal with unfair labor practices that important fact would have been referred to. It is again said: "We do not mean to say that unusual cases may not arise where courts of equity could be called upon to protect the rights of parties created by the act. Cf. Steele v. Louisville & N. R. Co., 323 U.S. 192, 65 S. Ct. 226, 89 L. Ed. 173; A. F. of L. v. N. L. R. B., 308 U.S. 401, 412, 60 S. Ct. 300, 84 L. Ed. 347. What we have here, however, is not an unusual case calling for the exercise of extraordinary jurisdiction, but an ordinary unfair labor practice case involving alleged refusal to bargain. For such a case, the plaintiff has been provided an adequate administrative remedy before the Labor Board; and certainly the extraordinary powers of a court of equity may not be invoked until this administrative remedy has been exhausted. Newport News Shipbuilding & Dry Dock Co. v. Schauffler, 4 Cir., 91 F.2d 730, 731, affirmed 303 U.S. 54, 58 S. Ct. 466, 82 L. Ed. 646."
That case was dealing with the jurisdiction of the United States District Court, which is of statutory creation authorized by the Constitution,Article 3, section 1, and whose jurisdiction is limited by congressional grant. 36 Corpus Juris Secundum, Federal Courts, § 308, p. 512.
When properly analyzed, we think the effect of that opinion, Amazon Cotton Mill Co. v. Textile Workers Union, supra, does not conflict with the contention of appellee, to the extent that it was not the intention of Congress to make the administrative remedy exclusive in respect to all unfair practices affecting commerce; but that it was to be optional where a remedy otherwise existed in the equity courts to protect the rights of parties from irreparable damages, when the free flow of commerce was not impeded.
We have here a court of general equity powers, having the constitutional authority to issue injunctions without other grant than by section 144, Constitution of Alabama.
In this State a labor organization, being an unincorporated association, is subject to suit under State statute. Title 7, section 143, Code. That was not so in the federal courts, but the Labor Management Act made it so that the Federal District Court may have jurisdiction at the suit of the labor board for an injunction.
It will be observed that in the Amazon Cotton Mill case, supra, the court was not dealing with the power to use an existing remedy, but was dealing only with the question of whether or not the Labor Management Act confers jurisdiction upon the District Courts of the United States at the suit of a private party, when such jurisdiction was at that time otherwise prohibited. It may be that some of the broad terms appearing in the argument would support a holding that it was intended to set aside any existing remedy at the suit of a private party in any of the courts; but when the act impliedly reserves the power than otherwise existing, the argument must be limited to the question before the court, and that was whether the Labor Management Act conferred jurisdiction at the suit of a private party which was expressly prohibited by the Norris-LaGuardia Act, intending thereby to amend the Norris-LaGuardia Act.
The clause in question, saving other means of prevention, either at the time established or that may be established, seems to manifest a purpose to take care of the jurisdictional power then being conferred by subsection (l) on the district courts for a violation of section 8(b), as well as any such jurisdiction "otherwise" existing in any court possessed of general power to grant injunctive relief, when the administrative remedy is inadequate.
If it was merely to harmonize with the further administrative remedy added to section 10(a) by the proviso and the procedure under subsection (l), it would not have been appropriate to use the language to which we have referred.
*119 Appellant also relies upon the case of International Longshoremen v. Sunset L. & T. Co., D.C., 77 F. Supp. 119, by a District Court. That case, like the Amazon case, supra, was a determination of whether an injunction in labor disputes had been extended generally to Federal District Courts by the Labor Management Act. It must of course be considered in connection with the nature of the suit and the particular controversy before the court.
However, it is not supposed or contended by appellee that the Labor Management Act serves to enlarge the rights of private litigants or to confer jurisdiction at their suit, but merely serves to eliminate that feature of the original act which excluded all courts from exercising injunctive jurisdiction and limited all jurisdiction to the broad exclusively. The board could before the amendment make a cease and desist order and upon a failure to comply with it proceed in court for its enforcement. That procedure was exclusive.
The next case relied on by appellant is that of Amalgamated Utility Workers v. Consolidated Edison, 309 U.S. 261, 60 S. Ct. 561, 84 L. Ed. 738. In it a private party sought an injunction to enforce an order by the labor board, that arose prior to the 1947 amendment. We do not see that it has application to the present situation.
Another case relied on by appellant is that of Gerry of California v. Superior Court of Los Angeles, 32 Cal. 2d 119, 194 P.2d 689. In that case an injunction was sought in a state court against an unfair labor practice under section 8 of the Labor Management Act, as is the instant case. The court acted in reliance upon the case of Amalgamated Utility Workers v. Consolidated Edison, to which we referred supra. While much is said in the opinion to the effect that although the right to an injunction may exist under state law, but for the Labor Relations Act, it could not now be exercised on account of such act.
Still another case cited by appellants is Ex parte DeSilva, 33 Cal. 2d 76, 199 P.2d 6. That was also a decision by the Supreme Court of California and was based upon the Gerry case, supra. See, 16 A.L. R.2d 786.
There was no consideration given in those cases to the question of whether a person has the right to an injunction to prevent irreparable damage by an unfair labor practice prohibited by the Labor Management Act, but which did not affect the flow of commerce, and in which the administrative remedy was inadequate.
Appellants also rely on the case of Amalgamated Ass'n v. Wisconsin Employment Relations Board, 340 U.S. 383, 71 S. Ct. 359, 95 L. Ed. 364, recently decided by the Supreme Court of the United States.
It will be observed in that case the court was not dealing with the power of a state court to enforce a right granted by an act of Congress, but it was concerning the question of whether or not a state court would enforce state legislation in a field which had been covered by federal legislation, and which was in conflict with federal legislation which had superior power in that respect. It was made clear in that case that in the state court the effort was made to enforce a state law in conflict with one adopted by Congress relating to commerce, when the federal law is superior, holding that the state law must yield to the federal law.
We wish here to refer again to the principle that when a complainant comes into a court of equity seeking an injunction for the purpose of protecting a right, it is immaterial whether that right is one conferred by state or federal law unless prohibited by federal law. It is the existence of the right which is material, and not the source of its enactment, provided the enacting power had due authority. But when a complainant comes into court it is not for him to choose whether his right is such as is conferred by the state or federal law. When properly analyzed his right is dependent upon whether the one or the other is there effective, and it is not open to him to make a selection, for only one law obtains to fix the status of a given situation. A person cannot legislate by choosing the applicable law. Patterson v. Jefferson County, 238 Ala. 442, 191 So. 681; State ex rel. Rountree v. Summer, 248 Ala. 545, 28 So. 2d 565.
*120 In this situation, it is clear that in respect to commerce, the Federal Congress has legislated defining unfair labor practices by labor organizations as well as by employers, and such definition supersedes any state legislation doing so. The case of Amalgamated Ass'n v. Wisconsin, supra, therefore, is not in point for the purpose of determining whether or not the Labor Management Act furnishes the exclusive remedy for its enforcement. It does fix the status of unfair labor practices to the exclusion of state laws in respect to commerce.
The situation we are dealing with is entirely different from that of Amalgamated Ass'n v. Wisconsin, supra, in that, here we have no state statute setting up an employment relations board and giving it the power to enforce a labor relations law of the State, wherein such board may prescribe policies inconsistent with the national board. We have here a federal law defining unfair labor practice in commerce, which takes precedence over any state law in that respect. Our case is also different from that one in that here an employer is seeking to obtain, through the traditional jurisdiction of a court of equity, a right which the Labor Management Act has conferred upon him. We think the sole and only question is whether or not the Labor Management Act shows a clear purpose to exclude such traditional remedy afforded by the equity courts of the State to prevent irreparable injury when the flow of commerce is not impeded. So that the question is pertinent whether there can exist at the same time under applicable law, the right to an injunction under circumstances here involved, at the suit of a board for the benefit of the employer at his instance, such suit to be in the United States District Court, and at the same time the right of such employer to elect to pursue his equitable remedy for an injunction, which the equity courts of the State provide for him.
The principle is well settled that more than one remedy may be available for the redress of a given wrong. That is not in conflict with the principle that there can exist but one law defining the status and rights of the parties in a given situation. When that status is fixed by law, as it is here fixed by the Labor Management Act, there may be, consistant with constitutional power, two remedies open for the enforcement of that right. Either of such remedies may be pursued in such situation.
Appellee cites the case of Hughes v. Superior Court of California, 339 U.S. 460, 70 S. Ct. 718, 94 L. Ed. 985. In that case it was "held that the Fourteenth Amendment did not bar a State from use of injunction to prohibit picketing of a store solely in order to secure compliance with demand that store's employees be in proportion to racial origin of its then customers."
Appellee also cites the case of International Brotherhood v. Hanke, 339 U.S. 470, 70 S. Ct. 773, 94 L. Ed. 995, involving the same legal status as did the Hughes case, supra. The same conclusion was reached.
It is said in the case of Pocahontas Terminal Corp. v. Portland Building and Construction Co., D.C., 93 F. Supp. 217, that the picketing described in the two latter cases, supra, might violate the unfair labor practice of the Taft-Hartley Act had that been applicable. But that the facts in both cases indicate controversies of a local nature only, not affecting the flow of interstate commerce, in contrast with the controversy then before the court.
In International Union v. O'Brien, 339 U.S. 454, 70 S. Ct. 781, 94 L. Ed. 978, a suit for an injunction was brought by a labor union to enjoin enforcement of a state law. There was a strike by the union without conforming to state law procedure, but it was conducted peacefully. The union contended that the state law violated the commerce clause of the Federal Constitution. The Supreme Court of the United States applied the Labor Management Act of 1947, saying that Congress safeguarded the exercise by employees of such activities and recognized the right to strike. It qualified and regulated that right and fixed certain prerequisites. It was held that the provisions of section 8(b) (4) should not be read as permitting concurrent state regulation *121 of peaceful strikes, but that Congress occupied this field and had closed it to state regulation. The opinion recognized the power of state legislation in this area, but held that the particular status could not stand since it conflicted with the federal act. The Supreme Court of Michigan International Union of United Auto Aircraft etc., v. Wayne Prosecuting Attorney, 325 Mich. 250, 38 N.W.2d 421, had reversed a decree of the lower court enjoining the proceedings and certiorari was then brought by the union to the United States Supreme Court. No question of jurisdiction in the state court was considered. The extent to which a state may legislate in respect to unfair labor practices, defined by the Labor Management Act, was held to depend entirely upon whether it conflicts with federal law on the subject and is within the powers otherwise existing.
The term "affecting commerce" is defined in section 2(7) of the Labor Management Act as "in commerce, or burdening or obstructing commerce or the free flow of commerce, or having led or tending to lead to a labor dispute burdening or obstructing commerce or the free flow of commerce."
The power given the board by section 10(a) to prevent any person from engaging in any unfair labor practice (listed in section 8, supra) is that affecting commerce. Although the labor practices here involved may violate the provisions of the Labor Management Act, we do not think Congress intended to deprive a state court of the power to protect a person against unlawful picketing of a local nature only, not affecting the flow of interstate commerce, but causing irreparable damage, and when the administrative remedy is inadequate. The cases of International Brotherhood of Teamsters etc., Union v. Hanke, 339 U.S. 470, 70 S. Ct. 773, 94 L. Ed. 995; Building Service Employees Union v. Gazzam, 339 U.S. 532, 70 S. Ct. 784, 94 L. Ed. 1045, and Giboney v. Empire Storage and Ice Co., 336 U.S. 490, 69 S. Ct. 684, 93 L. Ed. 834, have no relation to commerce, but only to the First and Fourteenth Amendments.
We will not undertake to discuss a principle applicable when the picketing is for an unlawful purpose, not conducted in an unlawful manner, but impedes the flow of interstate commerce, or when the administrative remedy is adequate. It may well be that under such circumstances Congress intended to confine the procedure to an interstate tribunal set up by it.
However, such is not this case. We think the procedure here pursued is a means of prevention, otherwise established by law under the terms of section 10(a), supra.
It therefore follows that the decree of the lower court is affirmed.
Affirmed.
LIVINGSTON, C. J., and BROWN, LAWSON, SIMPSON and STAKELY, JJ., concur.
FOSTER, Justice.
We do not understand that appellant in his argument on application for rehearing controverts the statement in our opinion that the bill alleges facts which show the union appellant was engaged in an unfair labor practice under the Labor Management Relations Act of 1947, section 8(b), (4), (A), 29 U.S.C.A. § 158(b), (4), (A). It was not otherwise contended in oral argument on the submission. Appellant now observes that the several recent decisions of the United States Supreme Court cited in brief were not before us when our opinion was written. National Labor Relations Board v. Denver Building and Construction Trades Council, 341 U.S. 675, 71 S. Ct. 943, 95 L. Ed. 1284; International Brotherhood of Electrical Workers v. National Labor Relations Board, 341 U.S. 694, 71 S. Ct. 954, 95 L. Ed. 1299; National Labor Relations Board v. International Rice Milling Co., 341 U.S. 665, 71 S. Ct. 961, 95 L. Ed. 1277; Local 74, United Brotherhood of Carpenters and Joiners of Am., A. F. of L. v. National Labor Relations Board, 341 U.S. 707, 71 S. Ct. 966, 95 L. Ed. 1309.
*122 Those cases were decided a few days before this case. They or one of them was called to our attention. They support the theory, not controverted in this case, that the bill shows an unfair labor practice under the Labor Management Relations Act, supra. They also show that in order to redress that wrong a complaint was filed with the board. In some of the cases the board had a hearing and made a cease and desist order. The proceedings were to review and enforce those orders. They were upheld. The principal question controverted and settled was whether there was an unfair labor practice by the union under section 8(b), (4), (A).
In one of the cases National Labor Relations Board v. International Rice Milling Co., supra, the board dismissed the complaint because it was not such an unfair labor practice. The court sustained that ruling. It is not contended that this last case is here controlling because it applies to a different situation. In the other cases the board took jurisdiction and made a final cease and desist order. It does not appear that a preliminary injunction had been issued (as provided in section 10 [1]). But the proceeding was before the Circuit Court of Appeals to enforce the board's order as provided in section 10(e). Section 160 of Title 29 U.S.C.A.
Those three latter cases only show that a remedy before the board was applied to make a final order of cease and desist. There was of course nothing new nor controversial about that.
The only question we have in this case is whether the State court has jurisdiction when special circumstances of irreparable injury are alleged and not controverted, augmented by the necessary time of the board in making the preliminary investigation, and subject to a possibility that that board will not take jurisdiction on account of the small amount of influence the transaction has on the flow of interstate commerce. This being in the discretion of the board, it was not necessary for complainant to take that risk in a situation which was then holding up construction and causing irreparable damage. National Labor Relations Board v. Denver Building and Construction Trades Council, supra (4), 341 U.S. 675, 71 S.Ct. at pages 949, 950, 71 L. Ed. 1284. See, also, for current practice in that respect, "Release of National Labor Relations Board, dated October 6, 1950," under which the board will exercise jurisdiction when any enterprise has a direct inflow of material valued at $500,000 a year, or an indirect inflow of material valued at $1,000,000 a year.
Considering that release and the urgency of the need for an immediate injunction to prevent irreparable damage, we still think a state court of equity was open to complainant. No other court had jurisdiction. The only other remedy was before the board. We think the authorities support the view that a state court of equity has jurisdiction upon a showing of extraordinary circumstances or irreparable injury.
The application for rehearing is overruled.
LIVINGSTON, C. J., and BROWN, LAWSON, SIMPSON and STAKELY, JJ., concur. | June 28, 1951 |
42745fb6-dada-4f27-af82-47f5a15bcd1b | Waid v. Pool | 51 So. 2d 869 | N/A | Alabama | Alabama Supreme Court | 51 So. 2d 869 (1951)
WAID et al.
v.
POOL, Secretary of State.
3 Div. 588.
Supreme Court of Alabama.
March 1, 1951.
Rehearing Denied April 19, 1951.
L. P. Waid, Jr., of Oneonta, and Claud D. Scruggs, of Guntersville, pro se, appellants.
A. A. Carmichael, Atty. Gen., and Jas. L. Screws and Robt. Straub, Asst. Attys. Gen., for appellee.
BROWN, Justice.
The bill in this case filed by two resident taxpayers and qualified electors of this state, one a resident of the County of Blount and the other a resident of the County of Marshall, seeks to enjoin the respondent as Secretary of State of Alabama and her successor in office from exercising the power and duties conferred on that officer by § 145, Title 17, Code of 1940, as therein prescribed, and to restrain and enjoin said respondent from issuing certificates of election as provided by § 205, Title 17, Code of 1940.
The bill prays "that on the final hearing of this cause the Court will make and enter an order directing, commanding and enjoining the said Sibyl Pool, as Secretary of State of the State of Alabama, and her successors in office, from issuing certificates of election to more than one candidate for the House of Representatives in any county of the State." The complainants further pray that on the hearing of this cause "the Court will make and enter an order directing, commanding and enjoining said Secretary of State of the State of Alabama, and her successors in office, from issuing certificates of nomination to the Judge of Probate of the counties named in paragraphs 12 and 13 of this bill of complaint to more then one person as a Member of the House of Representatives of Alabama in either of said eighteen counties named therein." The complainants pray in the alternative, "that the said Sibyl Pool, as *870 said Secretary of State of the State of Alabama, and her successors in office, be directed, commanded and enjoined from issuing certificates of election to more than one candidate for Representative in each of the eighteen counties with less population than Marshall County, as set forth in paragraph 13. The complainants further pray, in the alternative, that the said Sibyl Pool, as Secretary of State of the State of Alabama, and her successors in office, be directed, commanded and enjoined from issuing certificates of election to more than one candidate for Representative in each of the eight counties with less population than Blount County, as set forth in paragraph 12, and to make final the temporary Writ of Injunction as prayed for above and the Complainants ask for such other, further and different relief as", etc.
The respondent demurred to the bill for want of equity and sundry other grounds and on submission on the demurrer the court sustained the demurrer and dismissed the bill for want of jurisdiction of the court to intervene. Hence this appeal.
The appellants base their right to invoke the interposition of the court's injunctive power on the allegations of the bill that the representatives of the people in the legislature have ignored the mandates embodied in §§ 198, 199, 201 and 202 of the Constitution of 1901 for the past forty years and have denied to the complainants and all other citizens and taxpayers their right to a stable democratic form of government.
The bill alleges, "Complainants, acting under the authority of Section 25 of the Constitution of the State of Alabama, present this bill of complaint as a petition, address or remonstrance for the redress of grievance."
We are at the conclusion that the decree of the court dismissing the bill was free from error and is due to be affirmed. We are satisfied that the appellants are earnest and serious in their contentions and desire for relief, but the difficulty we encounter here is that they are seeking interference by the judicial department of the state in respect to matters committed by the constitution to the legislative department. Constitution of 1901, § 43, 44 and 199.
The grievance complained of and recourse therefor should be made to the legislature and the people of the state, not to the court.Wilkinson v. Henry, County Treasurer, 221 Ala. 254, 128 So. 362, 70 A.L.R. 712; Bonds v. State Department of Revenue, 254 Ala. 553, 49 So. 2d 280.
Affirmed.
FOSTER, LAWSON and STAKELY, JJ., concur. | March 1, 1951 |
e69d4bdf-956e-47a1-b1ff-2d8c7bdbd30c | Gilmore v. Sexton | 49 So. 2d 157 | N/A | Alabama | Alabama Supreme Court | 49 So. 2d 157 (1950)
GILMORE et al.
v.
SEXTON et al.
6 Div. 890.
Supreme Court of Alabama.
November 9, 1950.
Rehearing Denied December 14, 1950.
*158 Huey, Welch & Stone, of Bessemer, for appellants.
Harwood & Parsons, of Fairfield, for appellees.
LIVINGSTON, Justice.
This suit was instituted in the Circuit Court, in Equity, of Jefferson County (Bessemer Division), Alabama, to reform a deed or, in the alternative, to quiet title to certain described lands located in Jefferson County. The deed, the reformation of which is sought, was executed and delivered by Mrs. M. E. Perolio to her son, Andrew J. Perolio, on October 14, 1935. Andrew J. Perolio died testate in 1945, leaving the lands involved to his widow, Willie R. Perolio, and she in turn conveyed the lands to H. F. Gilmore, Mae P. Gilmore, H. G. Morton and Verla H. Morton by deeds dated October 13 and October 16, 1947.
On June 26, 1949, Mrs. M. E. Perolio brought this suit for the purposes above indicated, against Willie R. Perolio, H. F. Gilmore, Mae P. Gilmore, H. G. Morton and Verla H. Morton. The respondents, other than Willie R. Perolio, filed separate and several demurrers to the amended bill, which were overruled and they appealed. Pending the appeal, Mrs. M. E. Perolio died and the cause was revived in the name of her administratrix, Beulah P. Sexton, and the heirs and devisees of M. E. Perolio, deceased.
The question for decision is the sufficiency of the bill of complaint as amended as against demurrer.
On demurrer, of course, a bill of complaint is construed most strongly *159 against the pleader. However, when so tested, the language of the bill should be given a fair and reasonable interpretation and hypercriticism should not be indulged in.
When a bill of complaint shows the facts in the case and those facts show a right of recovery, the bill is sufficient, although the language in which the facts are stated may be somewhat involved or obscure. Zeigler v. Zeigler, 180 Ala. 246, 60 So. 810.
Construing the bill of complaint, as we have indicated above, we think the following facts, in substance, reasonably appear. On or about October 14, 1935, Mrs. M. E. Perolio and her son, Andrew J. Perolio, entered into an agreement under the terms of which Mrs. Perolio was to convey to her son a certain tract of land located in Jefferson County; that the son prepared or had prepared a deed to carry out the terms of the agreement, but that by or through a mutual mistake of the parties, the deed actually prepared, executed and delivered, contained two parcels of land, designated A and B, which were not included in the agreement; that the mistake was made in describing the lands, which description was by metes and bounds and erroneously included parcels A and B. In the alternative, the bill alleges in substance that complainant relied on her son to prepare, or have prepared, the deed to carry out the terms of their agreement under which she was to convey to him certain described lands, but that her son knowingly and intentionally prepared, or had said deed prepared, so that said deed did not carry out the agreement of the parties, but included said tracts A and B contrary to the intentions and agreement of the parties, and thereby perpetrated a fraud on complainant; that complainant executed said deed in reliance on her son's representations that said deed correctly described the lands which the complainant had agreed to sell and the son had agreed to buy. The bill further alleged that Andrew J. Perolio died on, to wit, March 15, 1945, and left the lands conveyed to him by complainant to his wife, the respondent Willie R. Perolio, for her life, subject to the right to sell the same, if need be, for her support; that Willie R. Perolio conveyed the lands to H. F. Gilmore, Mae P. Gilmore, H. G. Morton and Verla H. Morton by deeds dated October 13, 1947 and October 16, 1947; that the grantees in said deeds had knowledge and knew at the time said deeds were executed to them by Willie R. Perolio that complainant was occupying said parcels of land, A and B, claiming them as her own; that after the deeds were executed and delivered by the said Willie R. Perolio, as aforesaid, the grantees named therein had the property conveyed in said deeds surveyed and discovered that parcels A and B were included in their deeds; that complainant has had the continuous, open, notorious, hostile, adverse and peaceable possession of parcels A and B since October 14, 1935, the date on which she executed and delivered to her son the deed in which parcels A and B were erroneously included, and that her said possession of parcels A and B began in the year 1922; that complainant has never recognized that her son, or those claiming through him, had any interest in or to said parcels A and B, and that her son never claimed said parcels A and B; that no suit is pending to test the title to said parcels A and B.
Complainant offers to do equity and prays for a reformation of the deed to her son so as to exclude parcels A and B from the description therein contained or, in the alternative, a determination whether respondents, or any of them, have any right, title or interest in or encumbrance upon parcels A and B or any part thereof, and what such right, title, interest or encumbrance is, and in or upon what part of said real estate the same exists, and for general relief.
By demurrer, respondents attack that aspect of the bill seeking a reformation on the ground of mutual mistake of complainant and her son in the execution of the deed to the son, and that aspect relying on the mistake of complainant, accompanied by fraud on the part of the son. The demurrers also raise the point of limitations and laches.
*160 In Eastis v. Beasley, 214 Ala. 651, 108 So. 763, 765, it was held that the averment that, "The ground for reformation is mutuality of mistake by the parties to the deed, in that, `through error and inadvertence,' the property was described as in `range 3 west instead of range 2 west'", was sufficient allegation of a mutuality of mistake in the description of the deed.
In the case of Christopher v. Goode, 226 Ala. 338, 146 So. 881, 882, the following allegations were held sufficient as against demurrer in stating a case for the reformation of a mortgage on account of a mutual mistake of the parties: "Said mortgage does not truly describe the lands intended to be described therein and intended to be conveyed thereby in this; that said mortgage describes the east half of the northwest quarter of the southwest quarter of section 31, township 2 south, range 4 west, when in truth and fact, it was the intention of the said Fred E. Christopher and Robbie S. Christopher to convey the west half of the northwest quarter of the southwest quarter of section 31, township 2 south, range 4 west, Limestone county, Alabama; that said mistake was caused by the error or mistake of the scrivener, who prepared said mortgage, and that the said mortgage should be reformed to conform to the mutual intention of the partiesit having also been the intention of the mortgagees in said mortgage described to take a conveyance of the west half of said northwest quarter of southwest quarter of said section 31, instead of the east half thereof." See, also, Ikard v. Empire Guano Co., 233 Ala. 579, 173 So. 87; O'Rear v. O'Rear, 219 Ala. 419, 122 So. 645; Great Atlantic & Pacific Tea Co. v. Engel Realty Co., 241 Ala. 236, 2 So. 2d 425; Ballentine v. Bradley, 236 Ala. 326, 182 So. 399; McCaskill v. Toole, 218 Ala. 523, 119 So. 214.
In the light of the foregoing authorities, we think that it is clear enough that the instant bill is sufficient in respect to that aspect thereof charging a mutual mistake of the parties in describing the lands intended to be conveyed by the complainant to her son, and as between complainant and her son, complainant states a case for the reformation of the deed.
We also think it equally clear that, that aspect of the bill charging fraud on the part of the son, accompanied by a mistake on complainant's part, states a cause of action between the grantor and grantee in the deed. Title 9, § 59, Code of 1940; Ikard v. Empire Guano Co., supra; Cobern v. Foshee, 221 Ala. 301, 128 So. 779.
The further question is whether reformation may be decreed against subsequent purchasers from the son.
Reformation will be allowed not only as against the original parties, but also against those claiming under them in privity, such as representatives, heirs or devisees, legatees, assignees, voluntary grantees or judgment creditors, or purchasers from them with notice of the facts. 23 R.C.L. page 339, section 23, and cases cited in note; Phoenix Chair Co. v. Daniel, 228 Ala. 579, 155 So. 363, 365.
The allegations of the bill are to the effect that complainant was in the open, notorious, adverse and peaceable possession of parcels A and B from the year 1922 until June 26, 1948, the day this suit was instituted; that at the time respondent Willie R. Perolio conveyed parcels A and B to the other respondents, said respondents knew that complainant was in possession of said parcels A and B.
With respect to the question of the effect of a grantor's continued possession of land after the execution of his deed as notice of a claim adverse to the title conveyed, the authorities are not harmonious. See annotations 105 A.L.R. page 846. But our cases are clear to the effect that such continued possession is notice of all the equitable and other rights of the possessor. Copeland v. Warren, 214 Ala. 150, 107 So. 94; Walling v. Moss, 240 Ala. 87, 197 So. 30; Evans v. Bryan, 202 Ala. 484, 80 So. 868; Shiff & Sons v. Andress, 147 Ala. 690, 40 So. 824; Gewin v. Shields, 187 Ala. 153, 65 So. 769; Sulzbacher v. Campbell, 219 Ala. 191, 121 So. 706; Alexander v. Fountain, 195 Ala. 3, 70 So. 669. So considered, the bill of complaint states a cause of action against appellants in that aspect seeking a reformation on account of the mutual mistake of complainant *161 and her son, and also that aspect charging the son with fraud, accompanied by the mistake of complainant.
As to the other aspect of the bill which seeks to quiet complainant's title, the bill contains all the allegations necessary to comply with the statutes in that regard. Title 7, §§ 1109 and 1110, Code of 1940.
Neither the ten year statute of limitation nor laches applies to one in adverse possession of land who resorts to a court of equity to settle a question of title, no matter how long the delay. First National Bank v. McIntosh, 201 Ala. 649, 79 So. 121; Craig v. Root, 247 Ala. 479, 25 So. 2d 147.
Affirmed.
All the Justices concur, except GARDNER, C. J., not sitting. | November 9, 1950 |
87b2ee25-ac9c-4de3-b1c7-b0324c1854de | Brown v. Olsson | 49 So. 2d 564 | N/A | Alabama | Alabama Supreme Court | 49 So. 2d 564 (1950)
BROWN
v.
OLSSON et al.
1 Div. 418.
Supreme Court of Alabama.
December 14, 1950.
*565 Johnston, McCall & Johnston, McCorvey, Turner, Rogers, Johnstone & Adams, Sam M. Johnston and C. A. L. Johnstone, Jr., all of Mobile, for appellant.
Caffey, Gallalee & Caffey, of Mobile, for appellees.
SIMPSON, Justice.
Bill in equity by appellant, Leo M. Brown, as a preferred creditor of the estate of Louis M. Nelson, deceased, on behalf of himself and other creditors as a class, to impound a certain fund in the hands of the register of the court, alleged to be personal assets of the estate, to prevent an impending distribution thereof to the heirs of the decedent in disregard of the rights of himself and other creditors, the executrix of the estate having failed to take any steps to that end or to enforce the rights of the estate, in spite of efforts of the appellant to induce her to do so. The bill shows that if this fund is allowed to be so distributed without first providing for the payment of debts, costs and expenses of administration, the said debts and costs will remain unpaid, to the detriment of appellant and the other creditors, in violation of the statutes in such cases made and provided.
The appeal is from a decree sustaining the demurrer and dismissing the bill.
There can be no doubt of the general equity of the bill. The court in which the bill was filed and in which the administration of the estate is pending had already adjudicated the right of the appellant to an attorney's fee against the trust estate and the amount to be paid and the court, on the allegations made, would have the authority to order that debt, along with the other debts, paid from the personal assets of the estate.
As was observed in Wilkinson v. McCall, 247 Ala. 225, 229-230, 23 So. 2d 577, 580: "* * * It is true that usually the executor employs counsel in his personal, not his representative capacity, and then on paying him, asks for reimbursement from the trust. Taylor et al. v. Crook Adm'r et al., 136 Ala. 354, 34 So. 905, 96 Am.St.Rep. 26; 21 Am.Jur. 503. But there appears no good reason why the court, wherein the estate is being administered, may not make the allowance directly to the attorney from the estate when the services are for the common benefit of the parties interested in the estate. Section 63, Title 46, Code of 1940; Keith & Wilkinson v. Forsythe, 227 Ala. 555, 151 So. 60; Bidwell v. Johnson et al., 191 Ala. 195, 67 So. 985; 21 Am.Jur. 503. * * *"
*566 Indeed, the attorneys' fees awarded by the court for representing the trustas here allegedare recognized as a part of the costs of the administration and are collectible as other costs in the proceedings. Code 1940, Title 46, § 63.
So also to the end sought, the court would be empowered, as a court of equity, to intercept the funds in the registry of the court and forestall improper distribution in violation of the rights of creditors. The administrator or executor of an estate is a trustee and the administration of the estate is one of a trust. Keith & Wilkinson v. Forsythe, 227 Ala. 555, 151 So. 60. And if by the alleged preconcert of the heirs and the failure or neglect of the personal representative to act to protect the creditors of the estate, the personal assets are being thereby diverted to the heirs, or there is immediate danger of such diversion, equity has the power and right to intervene to prevent it and to conserve them for proper and due administration through the legal channels set up by the statute. Gilchrist v. Gilchrist, 223 Ala. 562, 137 So. 406.
The correctness of these general principles cannot be seriously doubted. But there are two questions presented by the several grounds of demurrer which are cogently argued. They are (1) that the matters are now res adjudicata by reason of the previous decrees in Olsson v. Nelson, 248 Ala. 441, 28 So. 2d 186, and Brown v. Olsson, 252 Ala. 670, 42 So. 2d 619; and (2) that the appellant is precluded of relief by estoppel in pais. We cannot agree with either contention and believe a brief reference to certain well-settled principles, in connection with the record, will suffice to show the bill to be well filed and not subject to the stated challenges.
It should be first observed that the pertinent parts of the previous proceedings and decrees are fully set out in the pleadings so that the trial court and this court may take judicial knowledge of them and thereby make them subject to consideration on demurrer to the bill. Cogburn v. Callier, 213 Ala. 38(6), 104 So. 328; Crossland v. First National Bank, 233 Ala. 432, 172 So. 255; Griffin v. Proctor, 244 Ala. 537, 14 So. 2d 116.
Coming then to the question of whether res adjudicata bars relief, we might observe its solution is rendered somewhat difficult because of the interpretation put upon the two previous opinions and decrees of this court by the appellees, and it will be necessary to burden this opinion with some reference to these two former cases.
The controversy principally revolves around the right of appellant, who was the attorney for the executrix of the estate of Louis M. Nelson, and who undertook the probate of the will and otherwise performed services in the administration of the estate, to have $2529.04, now in the registry of the court, conserved to be first subjected to the payment of the costs and expenses of administration, including his own law fee awarded him by the court, and to the payment of other alleged debts, before distribution of the said amount to the heirs of the decedent, under the decree of this court in the first case, supra.
The facts involved in the first case, as pertinent, are: Louis M. Nelson died testate, devising and bequeathing to his widow all his property of every kind, naming her as executrix of his will without bond. His heirs were three sisters, Theresa Olsson, Etta Schmidling, and Bernadine Anderson, and two brothers, Charles Nelson and James Edward Nelson, appellees here, but appellants in the first case. Prior to the probate of the will, Mrs. Nelson, individually, entered into a tripartite agreement with Theresa Olsson and Bernadine Anderson (referred to in the first opinion, supra), in effect providing that after the will shall have been admitted to probate, she would, for a certain consideration, convey to the brothers and sisters of the decedent all of her right, title and interest, as devisee under her husband's will, in and to all the property owned by her testate husband at the time of his death; she also agreed to convey to one of said sisters all of her right, title and interest as legatee in and to the personal property of decedent "with the exception of the cash, bonds and other securities and choses in action, life insurance, wearing apparel and other personal *567 effects." 248 Ala. 441, 28 So. 2d 188. (Italics ours.) (The said $2529.04 is a chose in action.)
The first case, Olsson v. Nelson, supra, was a bill in equity by Theresa Olsson against Helena W. Nelson (not as executrix) and others for a construction and specific enforcement of the aforesaid contract. Appellant Brown was made a party defendant to the bill as a stakeholder of a certain sum ($1,000) received by him as attorney for Mrs. Nelson from certain rentals of real estate. As regards this stakeholder, the bill prayed: "That your Honors will order and decree that said sum of $1,000.00, held by respondent Leo M. Brown be paid to those entitled thereto under said contract."
In response to said allegation Brown answered, admitting possession of the said $1,000 as attorney, and averred that it was paid over to him by Mrs. Nelson with instructions to distribute the same in equal shares to the brothers and sisters of Louis M. Nelson, deceased, when the will was admitted to probate. Otherwise, he was not concerned in the litigation and took no part therein. The question of his attorney's fee for representing the estate had not then been presented to or considered by the court, nor did he represent any of the parties in this first case.
The real issue litigated in the first case concerned the proper disposition of several different funds accruing from various properties of the estate, including the said $2529.04 paid into the registry of the circuit court as a balance due for the sale of decedent's Cedar Point Road property under a contract of sale executed by decedent and his wife prior to his death. It is this latter sum of money in the hands of the registry which is the subject of the instant proceedings.
The question for decision in the first case was to determine whether the various funds, including the $2529.04, were to be treated as real estate within the meaning and terms of the tripartite agreement between the sisters of Nelson and Mrs. Nelson, the former claiming that all of said funds were, under the contract in contemplation of the parties, treated as real estate. Mrs. Nelson, in answering the bill, among other things took the position that the Cedar Point Road property was a chose in action within the exception of the second clause of the tripartite agreement, which would give her the fund.
On a final hearing of this first case, the trial court adjudged that the aforesaid $2529.04 was personal property and belongs to the estate of Louis M. Nelson, deceased, and does not pass to the brothers and sisters of said Louis M. Nelson, deceased under the contract * * * and should be paid over to the duly qualified executrix of the estate. On appeal to this court, a different interpretation was placed on the contract to the effect, among other things, that the contracting parties treated the $2529.04 as real estate and that it was to be distributed as such "to the surviving brothers and sisters of Louis M. Nelson in pursuance of said agreement". Of consequence, we modified and affirmed the decree of the lower court.
Thereafter, the court awarded him the fee aforesaid for representing the trust and appellant promptly filed a petition in the lower court to intervene in this first case to assert his claim against the $2529.04, contending that the fund was personal property, primarily liable to be subjected to the demands of the estate for payment of debts and costs and expenses of administration. The trial court dismissed the petition and on appeal this court affirmed, observing, among other things: "The decree of this court rendered in Olsson et al. v. Nelson, supra, was a final decree settling the rights of the parties as to the issues there litigated. After the decree of this court was entered, the case of Olsson et al. v. Nelson was not pending in the circuit court of Mobile County, in equity. The trial court correctly denied appellant's motion to intervene. * * *" 252 Ala. 672, 42 So. 2d 620.
The italicized statement above in the first case and some of the expressions in the second case, as "one of the issues before the trial court was the question as to who was entitled to the sum of $2,529.04, which had been paid into the registry of the circuit *568 court awaiting the decree of that court as to the proper method of distribution"; and, "the decree of this court * * * was a final decree settling the rights of the parties as to the issues there litigated" form the basis of the claim of res adjudicata against this appellant, Leo M. Brown. The contention is that although in the first case the executrix, Mrs. Nelson, was a party only in her individual capacity, she did claim the fund as executrix of the estate and this court, having denied the claim and ordering it distributed to the heirs, pronounced against such a theory and rendered the issue no longer litigable. Involved in this contention is the further argument that since Brown was also a party to the first litigation (only as a stakeholder, though), he is estopped to assert his claim under the well-known rule that res adjudicata applies not only to matters the parties actually litigated, but to what they might and ought to have litigated in the case, the insistence being that Brown ought to have litigated his right to the fee in the first case. We cannot agree.
The fund in controversy is the proceeds of Mr. Nelson's executory contract, made in his lifetime, to convey real estate and in law is treated as personal property and should go to his personal representative, as such, for due administration and to be first committed to the payment of debts and costs and charges of administration. Flomerfelt v. Siglin, 155 Ala. 633, 47 So. 106; 55 Am.Jur. 785, § 359.
And we are apprised of no legal principle which could pronounce as valid a contract between the heirs or between the heirs and the devisee under a will, who later becomes executrix, whereby the due administration of such personal assets could be circumvented to the prejudice of the creditors for the payment of debts or to avoid the payment therefrom of the costs and expenses of administration. The administration of the trust must be executed in accordance with precepts of law and justice, and if such a contract should be made, equity could intervene to protect the rights of the court and the creditors.
We make this observation to illustrate the misconstruction which has been placed upon our two former opinions. The contract was one between the heirs and the devisee individually, and such contract could in no way have bound the estate to the prejudice of the creditors or to avoid the payment of the costs and expenses of administration. We find analogy in such authorities as Mazer v. City National Bank, 25 Ala.App. 372, 146 So. 885; Gilchrist v. Gilchrist, supra; Teal v. Chancellor, 117 Ala. 612, 23 So. 651; Jones v. Baswell, 246 Ala. 410, 20 So. 2d 715; 21 C.J. 1184, § 187; 31 C.J.S., Estoppel, § 134.
The first suit, Olsson v. Nelson, in no way involved the rights of the creditors or the right to have the personal property of the estate administered for their protection, and, indeed, sought no distribution of any fund; and even though the question was drawn into the case by the pleadings of the executrix, it was not the intention of this court to commit the unheard of act of adjudicating the rights of creditors in that case or to relieve the personal estate from the first obligation of paying the costs and expenses of administration. The essential purpose of the first case, as stated, was to construe and enforce the tripartite contract, and though the $2529.04 was adjudged by this court as having been treated as real property by the parties to the contract and therefore to be distributed to the heirs as such, this finding in no way detracted from the preferential rights of the creditors to have the fund, as the remaining personal asset of the estate, administered to the payment of their proper claims or its liability to the payment of the costs and expenses of administration.
So considered, the contention that the first case was res adjudicata of the rights of the creditors to the said fund is not well taken.
Nor did we intend such by our observations in the second case. Our view in this latter case was that since the first case for construction of the contract and specific enforcement thereof had been concluded, there was no authority for Mr. Brown to *569 intervene therein to have his fee ordered paid.
Similar rationale renders untenable the argument that the appellant is estopped to interpose the present proceeding because he should have litigated his right to the fee in the first case. The right to administer the personal assets of the estate was not a proper subject of controversy in the first case, the interpretation of how the property should be disposed of between the parties to the contract being the matter of inquiry, and appellant was drawn in merely as a stakeholder of some of that property. The decree allowing him a fee as a part of the costs had not then been entered or considered, and naturally he had no opportunity there to litigate the right to his fee, and after the rendition of the decree in the first case, when he endeavored to intervene, he was not permitted, since the first case was ended, as was declared in the second case.
Nor is he estopped to assert his claim because he prepared the contract between Helena W. Nelson, individually, and the heirs whereby she agreed to transfer the fund now involved. This contract was between individuals and necessarily did not and could not bind the estate to the prejudice of the creditors or to the right to have the costs paid. In fact, when the tripartite contract was made, Mrs. Nelson was not then executrix, the contract affirmatively showing that the will was to be later submitted to probate. The expenses, including attorney's fee in that proceeding, were necessarily contemplated and the bill makes the affirmative averment that at the time of the negotiation and execution of said contract, appellant Brown explained to all the contracting parties that the obligation undertaken by Mrs. Nelson in the contract was subject to the debts of the decedent, the rights of third parties, and the costs and expenses of administration. Taking these allegations to be true on demurrer, no ground appears by reason of his conduct in having negotiated and prepared the contract between the parties to estop him to claim his fee.
Likewise without merit is the suggestion in argument that there are other assets of the estate available to pay debts and the expenses of administration, since the bill alleges on information and belief that there are no other personal assets sufficient for this purpose.
We are at the conclusion that error prevailed in sustaining the demurrer to the bill and in refusing the injunction pendente lite. A decree, therefore, will be here rendered overruling the demurrer to the bill, remanding the cause, and ordering the issuance by the trial court of an injunction pendente lite, as prayed for in the bill of complaint, upon the plaintiff's entering into sufficient bond with proper surety.
Reversed, rendered, and remanded.
BROWN, FOSTER, LIVINGSTON, LAWSON, and STAKELY, JJ., concur. | December 14, 1950 |
2310d377-d6c7-4567-b6d9-2fe1d61be1ed | Williams v. Roche Undertaking Co. | 49 So. 2d 902 | N/A | Alabama | Alabama Supreme Court | 49 So. 2d 902 (1950)
WILLIAMS
v.
ROCHE UNDERTAKING CO.
1 Div. 409.
Supreme Court of Alabama.
December 14, 1950.
Rehearing Denied January 25, 1951.
*903 McCorvey, Turner, Rogers, Johnstone & Adams, of Mobile, for appellant.
Inge, Twitty, Armbrecht & Jackson, of Mobile, for appellee.
*904 BROWN, Justice.
The plaintiff (appellee) sued the defendant (appellant) in an action on the case for negligently running his (defendant's) automobile into plaintiff's automobile-hearse at the intersection of George Drive and another drive, not stated, in Magnolia Cemetery in the City of Mobile, Alabama, while said hearse "was moving north on said George Drive on June 17, 1947."
The complaint contains three counts each charging negligence in general terms sufficient to authorize a recovery for simple initial negligence and subsequent negligence. Central of Georgia Ry. Co. v. Foshee, 125 Ala. 199, 27 So. 1006; Alabama Produce Co. v. Smith, 224 Ala. 688, 141 So. 674.
The defendant demurred separately to each count of said complaint on grounds, among others, that (1) the place at which the "alleged collision occurred is not described with sufficient certainty"; (2) shows no duty which "defendant owed the plaintiff" and (3) that "It does not appear from the allegations of said complaint that there was any causal connection between the defendant's alleged negligent operation of an automobile and the alleged collision."
Conceding that the first stated ground of the demurrer was well taken, Alabama Great Southern Ry. Co. v. Sheffield, 211 Ala. 250, 100 So. 125, this point was not stressed nor insisted upon in argument and we will not predicate a reversal on the overruling of the demurrer because the point was not stressed in argument and the evidence offered on the trial shows without dispute that the defendant suffered no injury from the indefinite averment. The other two grounds of demurrer are not well taken, the second for the reason that the averments of the complaint show that "both of said roadways were open to and commonly used by the public", which shows that the plaintiff was at least a licensee and hence defendant was under duty not to negligently run his automobile against plaintiff's hearse. The third point raised by the demurrer is not well taken for the reason that each of said counts averred that "defendant negligently ran his said automobile into plaintiff's said hearse and his said negligence proximately caused said damage to plaintiff's vehicle." This averment shows causal connection and proximate cause of the injury. Alabama Power Co. v. Bass, 218 Ala. 586, 119 So. 625, 63 A.L.R. 1.
The circuit court overruled the plaintiff's demurrer to the defendant's plea 4, which pleaded the violation of the city ordinance as a basis for contributory negligence on plaintiff's part, and sustained the demurrer to defendant's pleas 5 and 6. For aught appearing from the averments of defendant's plea 5 the plaintiff's servant was in said cemetery in performance of his duties as a mortician using said hearse in the burial of the dead. The court, therefore, did not err in sustaining the demurrer to said plea 5. Pankey v. City of Mobile, 250 Ala. 566, 35 So. 2d 497. The defendant's plea 6 is predicated on the violation of the statutory "rule of the road" applicable to public highways. Code 1940, Tit. 36, § 1(p); Stewart v. Smith, 16 Ala. App. 461, 78 So. 724. Under the pleadings and evidence in this case, it is governed by the principles of the common law. The appellant in brief concedes that "the evidence fully sustains the allegation as to the common use by the public" of said driveway, as alleged in the complaint.
The evidence showed without dispute that said driveway on which the plaintiff's hearse was being driven on the occasion of the alleged injury was limited to use in the daytime for vehicular driving and was closed to the public at night by means of gates at each end of the cemetery. The plaintiff (appellee in brief) states, "and we have stated above neither roadway was open to the public as a matter of right and, therefore, neither was a public highway."
The plaintiff's agent Mr. Newell testified that he was 23 years old and that on the 17th of June, 1947 about four o'clock in the afternoon he was driving the appellee's hearse returning from a funeral in Pinecrest Cemetery and was going through Magnolia Cemetery northerly on the George Drive and as he approached the intersection of George Street and Ann Street Road, he *905 noticed a car on his right; that he was then about 2 car lengths from the intersection and this other automobile driven by Williams, the defendant, was around 4 car lengths away and as Newell approached the intersection Williams looked north to his right but did not look to the south. "There was no horn or anything." That he went on across and after he saw Mr. Williams' car was coming on out, he cut over to his right to try to get out of Mr. Williams' way; that he (Williams) hit "my right rear fender"; that he (Newell) turned into the cemetery from Virginia Street before the accident; that it was a short turn and he had to stop to go into the gate and he put the hearse in low gear and then into second gear and then into high gear; that when he first saw the Williams' automobile he was within about 2 hearse lengths from the intersection, the hearse traveling about 20 to 25 miles per hour. That Williams drove his car into the intersection at the rate of twenty-five or thirty miles per hour; that the hearse was then practically across the intersection when Mr. Williams' car entered. Williams was then facing north and looking toward the north. That Mr. Williams never did look in his direction before the accident. That the vehicles collided on the north side of the intersection. That the front of Williams' automobile hit the rear of the hearse when it was on the north side of the intersection and the impact took place. That at the time Mr. Williams entered the intersection without sounding his horn. That the center of the front of Williams' car hit the right rear fender and rear wheel of the hearse. That the impact threw the witness out of the hearse, turned the hearse completely over and knocked it against a water hydrant on the west side of George Drive north of the intersection.
The evidence further goes to show that the hearse turned over more than once and came to rest across George Drive from 75 to 100 feet north of the intersection. The evidence shows that George Drive is 30 feet wide. Several photographs of the scene of the accident and the condition of the hearse after the collision were offered in evidence by the plaintiff. The photographs show considerable damage to the hearse. Testimony of other witnesses examined tended to corroborate the statement of Newell as to the speed of the hearse and also as to the speed of the Williams' car and one witness, a laborer working in the cemetery, testified that the hearse passed him 250 feet from the intersection.
Defendant testified that he stopped at the intersection before entering, that he looked in both directions but could not see far in the direction from which plaintiff's hearse was approaching because of bushes in his line of vision. He further testified that he eased slowly out into the intersection still in low gear and that he did not see the hearse until too late to stop. That the hearse passed his fender in front of his automobile going 50 miles per hour, struck and sheared off his fender and front end of the shell that protects the radiator. There was evidence going to show that defendant's automobile passed across the intersection and came to rest against the concrete curb at the northwest corner of the intersection.
The ordinance pleaded in the third count of the complaint and in defendant's special plea of contributory negligence 4, was in evidence. Said ordinance provides: "261.Automobiles Authorized to Enter. Automobiles are authorized to enter Magnolia Cemetery. This right to use said cemetery by automobiles is authorized solely and exclusively for the purpose of allowing persons so desiring to go to burial lots in said cemetery, and no automobile shall be allowed in said cemetery unless used in transporting a person or persons who desire to visit burial lots, and all such automobiles shall stop in said cemetery for a period of time not less than five minutes and discharge their passengers. Automobiles, while in said cemetery, shall not exceed in speed the rate of six miles per hour."
The trial resulted in a jury verdict for the plaintiff assessing its damage at $2500.00 upon which, after motion for a new trial made and overruled, the judgment of the court from which this appeal is prosecuted, was rendered.
*906 The testimony of the witness Newell if believed shows that he and Williams were both exceeding the speed limit prescribed by the ordinance and hence were violating the condition set forth in the ordinance upon which the license to use said driveway was predicated. And as to the owner of the cemetery, if privately owned, and to the public for whose benefit the ordinance was adopted, they became wrongdoers. Snedecor v. Pope, 143 Ala. 275, 39 So. 318; 38 Am. Jur., § 105, p. 767 (last par.); Susquehanna Power Co. v. Jeffress, 159 Md. 465, 150 A. 788, 71 A. L.R. 1198; Ciarmataro v. Adams, 275 Mass. 521, 176 N.E. 610, 75 A.L.R. 1175. Nevertheless, if Newell (plaintiff's agent or servant) was guilty of negligence in consequence of his violating the city ordinance, if such negligence did not proximately contribute to the collision but merely created a condition upon which defendant's negligence (if defendant was guilty of negligence), operated to proximately cause the damage to plaintiff's hearse, the plaintiff was entitled to recover under the last clear chance doctrine. Brown Hauling Co. v. Newsome, 241 Ala. 300, 2 So. 2d 782.
In Southern Railway Co. v. Shelton, 136 Ala. 191, 34 So. 194, 201, the court speaking through Chief Justice McClellan observed: "Shelton was on the track of the crossing, 75 feet in front of the engine. He remained there till the engine reached him and ran over and killed him. The engineer and fireman were all the while looking ahead. * * * Very clearly, if neither of them did see him standing there on the track while the engine reduced the distance to him from 75 to 2, or even to 8, feet, the jury were authorized to find that his position was one of manifest peril, and that a sense of it was impressed upon the enginemen. * * * Shelton was in a position of manifest peril on the track in front of the engine. He was in view of the enginemen. They were looking along the track where he was. Therefore they must have seen him, and this though they testify that they did not. Ensley Railway Co. v. Chewning, 93 Ala. 24, 31, 9 So. 458; Louisville & Nashville Railroad Co. v. Trammell, 93 Ala. 350, 354, 9 So. 870."
In Birmingham Railway & Electric Co. v. Smith, 121 Ala. 352, 25 So. 768, 769, the Court speaking through Mr. Justice Tyson observed: "But was it true that when the plaintiff begun to turn his horse and buggy for the purpose of crossing the tracks, a distance of from 25 to 35 feet from the track upon which the collision was had, that the car, moving at a rate of speed of 5 to 6 miles an hour in the direction of the buggy, was only 100 or 125 feet away, and nothing to prevent the motorman seeing it? If true, would the jury be authorized to find that the motorman saw the buggy when it was approaching the track for the purpose of crossing it? If he saw the horse and buggy approaching the track, for the purpose of crossing it,knowing, as he was bound to know, that its occupants could not see or hear the approaching car, on account of the top of the buggy being enclosed by curtainsin time to stop the car before the collision, his conduct amounted to that reckless indifference or disregard of the natural and probable consequences of his acts to which may be imputed to him the same degree of culpability as wantonness, and must be held the equivalent of willful injury."
To the same effect is Mobile Light & R. Co. v. Gadik, 211 Ala. 582, 100 So. 837, 839, where the court observed: "An automobile seen approaching a crossing at a safe distance and at usual speed does not within itself suggest peril. The driver may be taken to have the use of his senses, and to exercise the ordinary care which the occasion demands. But if the automobile continues to approach without slowing up, or the driver is seen to be inattentive, so that the situation suggests a probable collision unless prompt measures are taken, the duties of the motorman begin. One of the duties is usually to give a warning signal. If the automobile driver appears inattentive to the approach of the street car, this is an urgent duty. It should be given before it is too late to avoid a collision. If the motorman sees he cannot stop his street car short *907 of the point of collision the giving of warning signals becomes more imperative."
In Illinois Central R. Co. v. Martin, 213 Ala. 617, 105 So. 805, 807, the plaintiff was walking along in the same direction as the train on a path running parallel to the tracks for some distance, then turned diagonally onto the main line in front of the train, had crossed to the outer end of the cross-ties, and taken a few steps thereon when she was struck by the locomotive. Evidence tended to show that plaintiff was in a position of peril while walking beside the tracks before turning to cross them. The court then observed: "Seeing him in a place of rapidly approaching danger requires that a watch be kept on his movements. If he has his back to the train, seemingly unconscious of its approach, the first duty is to give warning. If other noises drown the noise of the train, this duty is the more apparent. * * * To illustrate by the case before us: If the plaintiff was seen walking along and dangerously near the track, and when 200 feet away turned onto the main line, a position of greater danger, giving no sign that he was aware of the train's approach, it was then a matter of five seconds when the engine going at 30 miles per hour would be upon her. She was in a position of peril within the meaning of the law calling for the exercise of all the preventive means at hand to conserve her safety."
In Atlantic Coast Line R. Co. et al. v. Flowers, 241 Ala. 446, 451, 3 So. 2d 21, 24, it was said, the court speaking through Mr. Justice Foster:
"The mere approach of intestate toward a railroad at a crossing at a speed of 5 or 6 miles an hour with no indication of the fact that the driver was not aware of the approaching train, it was held does not indicate that he is in a position of peril. Bason v. Alabama G. S. R. R. Co., 179 Ala. 299(2), 60 So. 922. But if the traveler gives any indication of inattention or of unconsciousness of his surroundings, it has been said that the trainmen should take immediate action; but not if there is nothing to indicate that he is not possessed of his senses or conscious of his position. Illinois C. R. Co. v. Martin, 213 Ala. 617(4, 5), 105 So. 805; Mobile L. & R. Co. v. Gadik, 211 Ala. 582, 100 So. 837. This is illustrated when one is walking toward a track with his back toward the engine, apparently oblivious of the approach of the engine. Southern Ry. Co. v. Montgomery, 229 Ala. 456, (8), 157 So. 854.
"And that unless the contrary is manifest, the trainmen could assume that the automobile driver would do his duty and stop and not attempt to cross in dangerous proximity to the approach of the train. De Bardeleben v. Western Ry. of Alabama, 227 Ala. 553, 151 So. 56; Southern Ry. Co. v. Miller, 226 Ala. 366, 147 So. 149; Sloss-Sheffield S. & I. Co. v. Peinhardt, 240 Ala. 207, 199 So. 33. But that if the speed of the approaching car and its distance to travel are such as to manifest a probability that it will not stop or it is in apparent existing danger in that respect, the duty of trainmen then begins if by some warning or slackening of speed the collision may be averted. Johnson v. Louisville & Nashville R. R. Co., supra [227 Ala. 103, 148 So. 822]; Id., 240 Ala. 219, 198 So. 350." [Italics supplied.]
The basis for the application of this doctrine of subsequent negligence is not furnished by the testimony offered for plaintiff which shows that Williams looked only to the north away from the direction the hearse was approaching the intersection. It does not show that defendant saw the approaching hearse or that he had any knowledge of its approach. Honeycutt v. Birmingham Electric Co., 236 Ala 221, 181 So. 772; Johnson v. Louisville & N. R. Co., 227 Ala. 103, 148 So. 822.
While the defendant testified that he stopped before reaching the intersection and looked in both directions and did not see the hearse approaching because of bushes or vines obstructing his view, the photographs showing the locus in quo go to show that the bushes are a considerable distance from the intersection and that there is a wide space between the corner *908 where the bushes appear and the traveled lane of George Street in which nothing appears which would obstruct the view of a person approaching from the east on Ann Street Road and the evidence is without dispute that the hearse was on George Drive approaching the intersection at about 4:30 o'clock on June 17th, 1947, daylight, and under our decisions it was a question for the jury whether or not the defendant did or did not see the hearse approaching in time to have stopped his car or checked the speed to allow the hearse to clear the crossing.
On the other hand, if Williams reached the intersection ahead of the hearse and stopped and looked in both directions and then proceeded to cross and the hearse approached at a high speed and struck the front of Williams' automobile and "sheared the bolts off the fenders" and "snatched" or "swiped" the fender and the "shell" from the front of defendant's automobile, defendant was without negligence and the plaintiff was not entitled to recover. On the whole the case was one for jury decision and the several general affirmative charges requested by the defendant were refused without error.
Charges 5, 12 and 14, refused to the defendant, are predicated on the statutory "rules of the road," which as we held are not applicable to the driveway in said cemetery and were refused without error.
The measure of care required of the defendant under the applicable principles of common law was the care a reasonably prudent man would exercise in like circumstances. Reaves v. Maybank, 193 Ala. 614, 69 So. 137.
The only insistence made by the appellant as to charges 2, 5 and 6 given at the instance of the plaintiff in writing is that they are misleading. These charges are treated in bulk on that theory. If the charges were merely misleading, as the appellant insists, then he should have asked for explanatory instructions. Harrison v. Mobile Light & R. Co., 233 Ala. 393, 171 So. 742; Birmingham Ry. Lt. & Pr. Co. v. Friedman, 187 Ala. 562, 65 So. 939; Alabama G. S. R. Co. v. Smith, 178 Ala. 613, 59 So. 464.
The defendant offered to show by two witnesses, who had examined the two vehicles after the collision but who did not see the collision or either of said vehicles moving before it occurred, the speed at which the plaintiff's car was moving at the time of the collision. Some of the questions called for opinion evidence or conclusions of the witnesses based upon the physical condition of the defendant's automobile after the collision. We are of opinion that such evidence would have been an invasion of the province of the jury. "The jury, no matter how inexpert, understood as well as the witness, no matter how expert." Crotwell v. Cowan, 236 Ala. 578, 184 So. 195, 200. In the annotation in 133 A.L.R. p. 726, it was observed: "Although there is some conflict among the few cases which have considered the question, a majority of them have refused to allow witnesses to give expert evidence, based on the appearance or condition of an automobile after an accident, as to the speed of the car at the time the accident occurred, upon the grounds that the witnesses were not qualified as experts, or that their conclusions, if given, would amount to a mere guess."
In Jackson v. Vaughn, 204 Ala. 543, 86 So. 469, 470, Mr. Justice Thomas stated: "Several exceptions were reserved to the introduction of evidence that may not be presented on a second trial. It is sufficient to say that witness Morris, being qualified to give an expert opinion (Miller v. Whittington, 202 Ala. 406, 80 So. 499, 503; Birmingham & A. Ry. Co. v. Campbell, 203 Ala. 296, 82 So. 546), may answer how fast such car was proceeding, skidding, the distance indicated and under conditions stated."
In a later case the same Justice observed: "The rate of speed of the truck when leaving Uniontown had no tendency to illustrate its speed several miles therefrom and at the place of the accident; and the answer, `driving fast * * * between 35 *909 and 50 miles an hour,' of witness Long, should have been excluded on defendant's motion, due objection having been interposed, overruled and exception taken before the answer. Each case depends upon its own facts. Townsend v. Adair, 223 Ala. 150, 134 So. 637; Bains Motor Co. v. Le Croy, 209 Ala. 345, 96 So. 483; Davies v. Barnes, 201 Ala. 120, 77 So. 612; Whittaker v. Walker, 223 Ala. 167, 135 So. 185. The witness Long was allowed to describe the `skid marks' on the road made by the truck; had qualified to express his opinion of how such marks were made by the loaded truck which he knew was loaded with cotton seed, and testified that `similar marks could be caused by excessive load or swaying of the load.' In this there was no error. Jackson v. Vaughn, 204 Ala. 543, 86 So. 469." Hodges v. Wells, 226 Ala. 558, 147 So. 672, 674.
This statement of the rule does not sustain the defendant's (appellant's) contention that an expert witness who had not observed the movement of the vehicles could state the speed of such vehicles at the moment of the collision. Nor is there anything in the statement of the rule in Alabama Great Southern Railroad Co. v. Molette, 207 Ala. 624, 93 So. 644, 647, to the contrary, where the court observed: "It was relevant to show the nature and extent of the injuries to the truck as tending to disclose how and with what degree of force, and so with what speed, defendant's train was driven against the truck; speed being an element of the negligence charged to defendant."
Neither does the statement of the court in Griffin Lumber Co. et al. v. Harper, 247 Ala. 616, 620, 25 So. 2d 505, 509, support the above contention. The court there observed: "The physical aspects of the collision with the curb wall justify a conclusion that the speed of the truck had become very high when the impact occurred. In fact, there is expert testimony to the effect that at the moment of impact the speed of the truck was about 60 miles an hour. But, whether this was the result of the truck driver's wanton misconduct, or whether it might have resulted from mechanical causes connected with the car, cannot be determined from the evidence. * * *" There appears to have been no objection to the "expert testimony." The foregoing statement clearly shows that an expert witness cannot testify as to speed at the moment of such impact and in the case last cited the court held that it was based on mere speculation and the verdict of the jury was set aside.
While the annotations on the subject show that expert evidence as to rate of speed of a vehicle has been admitted based on facts other than personal observation, the well settled general rule is that "the estimate of the speed at which an automobile, locomotive, or other object was moving at a given time is viewed as a matter of common observation rather than expert opinion, and it is accordingly well settled that any person of ordinary ability and intelligence having the means or opportunity of observation is competent to testify to the rate of speed of such a moving object" 20 Am.Jur. 678, Evidence, § 805.
"However, opportunity of observation by a witness being a necessary element of competency, where a witness had no opportunity to observe a vehicle so as to form any opinion as to its speed, he is generally held incompetent to give an estimate of its speed." 156 A.L.R. p. 384.
In one of our cases, where the witness had a brief opportunity to observe the speed of the vehicle, his opinion as to its speed was held admissible. The momentary observation going to the weight of the testimony. Jack Cole, Inc., v. Walker, 240 Ala. 683, 200 So. 768.
An estimate of the speed at which an automobile, locomotive or other object was moving at a given time is generally viewed as a matter of common observation rather than expert opinion, and accordingly any person of ordinary ability and intelligence, having observed the speed, is qualified to testify as to its rate. Cedar Creek Store Co. v. Steadham, 187 Ala. 622, 65 So. 984; Edwards v. Earnest, 208 Ala. 539, 94 So. 598; Vredenburgh Saw Mill Co. v. Black, 251 Ala. 302, 37 So. 2d 212. This does not *910 mean that a witness, though an expert, may not testify as to speed if he observes same, but that when he does he is testifying as a lay witness or non-expert. 20 Am.Jur. p. 678, Evidence § 805; Annotation L.R.A. 1918A, p. 706 and cases cited.
Another phase of the rule is: "It is also well settled 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. Mayberry v. State, 107 Ala. 64, 18 So. 219, 220; Watson v. State, 217 Ala. 164, 115 So. 101; Baugh v. State, 218 Ala. 87, 117 So. 426; Diamond v. State, 219 Ala. 674, 123 So. 55; Stinson v. State, 223 Ala. 327, 135 So. 571; Alaga Coach Line, Inc. v. McCarroll, 227 Ala. 686, 151 So. 834, 92 A.L.R. 470; 22 C.J. p. 554, § 655." Rowe v. Alabama Power Co., 232 Ala. 257, 259, 167 So. 324, 326.
It was not permissible for the defendant to prove that some one had paid him for the damage to his automobile. Such evidence is not relevant or material to the issues in the case on trial.
The only argument made by the appellant as to his assignments of error 7 and 8 is stated in brief as follows: "Assignments of error 7 and 8 deal with the Court's having rendered judgment in favor of plaintiff and its refusal on Appellant's motion to set aside the judgment and grant a new trial. The grounds for Appellant's motion for a new trial are set forth on pages 14-17 of the Transcript." This statement is insufficient to warrant consideration of those assignments of error and appellant can take nothing by said assignments.
We find no reversible error in the record.
Affirmed.
FOSTER, LIVINGSTON and SIMPSON, JJ., concur.
LAWSON and STAKELY, JJ., concur in the result. | December 14, 1950 |
97240550-ce14-4ca8-b6d9-8a516ba054d7 | Reed v. Fidelity & Casualty Co. of New York | 48 So. 2d 773 | N/A | Alabama | Alabama Supreme Court | 48 So. 2d 773 (1950)
REED
v.
FIDELITY & CASUALTY CO. OF NEW YORK.
8 Div. 576.
Supreme Court of Alabama.
November 16, 1950.
Smith & Tompkins, of Tuscumbia, for appellant.
Mitchell & Poellnitz, of Florence, and Davies & Williams, of Birmingham, for appellee.
*774 LAWSON, Justice.
The appellee, the Fidelity and Casualty Company of New York, filed this bill in the circuit court of Colbert County, in equity, under the declaratory judgment statute, Title 7, §§ 156-168, and made parties thereto Annie B. Reed, as administratrix of the estate of George E. Reed, deceased, and Lawrence M. Beck, individually, and Lawrence M. Beck, doing business as Beck Coal Company.
The case made by the bill and the exhibits thereto is as follows:
On April 24, 1950, Annie B. Reed, administratrix of the estate of George E. Reed, deceased, filed in the circuit court of Colbert County a complaint against Lawrence M. Beck, individually, and doing business as Beck Coal Company, claiming damages in the sum of $20,000 for the alleged unlawful death of the said George E. Reed. The complaint was filed under the homicide statute and contained three counts. The complaint as to each count alleged that on December 10, 1949, while plaintiff's intestate was upon the premises of the defendant's coal yard in the city of Tuscumbia, Alabama, at the invitation of defendant, he was negligently and unlawfully run over by a truck being driven by an agent, servant, or employee of the defendant, who was acting within the line and scope of his employment, and as a proximate consequence and result thereof plaintiff's intestate was killed.
The summons and complaint was served on the defendant, Lawrence M. Beck, individually, and doing business as Beck Coal Company, on May 31, 1950. Beck was, on the date of the fatal accident alleged in the complaint filed on the law side, the insured under an automobile liability insurance policy issued by the Fidelity and Casualty Company of New York. Beck delivered the summons and complaint to the said insurance company and called on it to defend the suit filed against him by Annie B. Reed, as administratrix, under the terms of said liability policy.
The instant bill alleged that the policy of automobile liability insurance specifically excluded coverage on insured Beck as to bodily injury or death of any employee caused while engaged in such employment; that the said George E. Reed at the time he was killed was an employee of the Beck Coal Company and that he received the injury which caused his death while engaged in such employment; that because of such alleged employment of the said George E. Reed by the Beck Coal Company, the insurance company is not obligated by the terms and conditions of the policy to pay any judgment rendered therein; that there is a bona fide justiciable controversy between the insurance company and the respondent. The bill prayed for two specific declarative findings: first, that the insurance company is not obligated by the terms of its policy of insurance to defend the suit at law; second, that the said insurance company is not liable under said policy of insurance for any judgment which may be rendered in the suit at law. The bill for declaratory judgment further prayed that the court grant an injunction against Annie B. Reed, as administratrix, from further proceeding in her suit for damages pending the final outcome of the declaratory judgment action.
On July 11, 1950, Annie B. Reed, as administratrix, filed demurrer to the bill seeking declaratory judgment. At a hearing upon the motion for preliminary injunction, the judge of the circuit court of Colbert County, in equity, overruled the demurrer filed by Annie B. Reed, as administratrix, and granted a temporary injunction enjoining and restraining the said Annie B. Reed, as administratrix, from proceeding with the trial of the damage suit pending further orders of the court.
This appeal is from the decree overruling the demurrer to the bill of complaint and granting the preliminary injunction.
Appellant insists that under the allegations of the bill for declaratory judgment there is no bona fide justiciable controversy between the parties and that her grounds of demurrer taking that point should have been sustained. It is argued that there is no justiciable controversy in that the complaint *775 in the law case does not allege that the deceased was an employee of the insured at the time he was killed and the insurance company was not made a party defendant to the suit for damages.
We cannot agree with this contention in view of our former holdings. In United States Fidelity & Guaranty Co. v. Hearn, 233 Ala. 31, 170 So. 59, it was held in effect that an action may be brought by liability insurer under declaratory judgment statute against insured and parties injured to have the court declare whether or not insurer is liable to defend suit against driver and owner of automobile by guests or passengers for hire. The insurer was not a party to the damage suit, but had issued group policy to company employing driver.
The holding of the Hearn case, supra, was reaffirmed in State Farm Mutual Automobile Ins. Co. v. Cardwell, 250 Ala. 682, 684-685, 36 So. 2d 75, 76, wherein it was said:
"Upon the question of lack of equity in the bill, we are persuaded this matter is foreclosed by former decisions of this court, reinforced by a comparatively recent ruling of the Supreme Court of the United States. First, in 1936, United States Fidelity & Guaranty Co. v. Hearn, 233 Ala. 31, 170 So. 59, the holding was that the insurance company could maintain such a suit and that the plaintiff in the law action was a proper party thereto. In the second suit, decided in 1938, the positions of the parties were reversed, but the reasoning and conclusion of the court was the same as that in the former decision. American Mut. Liability Ins. Co. v. Agricola Furnace Co., 236 Ala. 535, 183 So. 677. The case from the U. S. Supreme Court is that of Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 61 S. Ct. 510, 85 L. Ed. 826, which is in entire harmony with the two decisions above noted.
"The insurance company filed this bill seeking a declaratory judgment that there was no liability of the company to Cardwell, the insured, nor was there liability for the company to defend the suit. The issue, as presented by the bill, is that provision in the policy to the effect that it does not apply `to death of an employee of the insured while in the course of employment of the business occupation of the insured.' The contention of the administratrix is that she alleged in her complaint that her intestate met his death while being transported by the insured pursuant to the agreement of employment, and that there was really no issue between the administratrix and the insurance company. Under our statute, Title 7, § 166, Code 1940, all persons should be made parties to declaratory judgment proceedings who have, or claim any, interest which would be affected by the declaration. And as pointed out in Maryland Casualty Co. v. Pacific Coal & Oil Co., supra, the statutory right of a plaintiff in such an action suffices to make such plaintiff a proper party to the suit. Our statute, Title 28, § 12, Code 1940, is similar to that of the Ohio statute referred to in the Pacific Company case. The plaintiff administratrix has such an interest, though at present, perhaps due to the solvency of Cardwell, it may not now be a matter of concern to her. Nevertheless, by virtue of the statute, when a judgment is recovered and not satisfied within 30 days after its date, the plaintiff in the law action may proceed in equity against the defendant and the insurance company to reach and apply the insurance money to the satisfaction of the judgment. We are persuaded, therefore, that under these authorities the dissolution of the injunction could not be rested upon the ground of lack of equity in the bill.
"In the cases from this court above noted we approved injunctive relief against pending actions during the determination of the declaratory judgment proceeding. In the Pacific Coal & Oil Company case, supra, the preliminary injunction was denied upon the ground, as we read the opinion, that the Federal statute prohibited the issuance of injunction against the proceeding in a state court."
To like effect see Employers Ins. Co. of Alabama v. Brooks, 250 Ala. 36, 33 So. 2d 3.
*776 Under our decisions referred to above, we hold that the trial court did not err in overruling the demurrer and in granting the temporary injunction to preserve the "status quo.
If the insurance company had been made a party defendant to the damage suit, then there would not have been such equity in the bill as would have supported the injunction. Auto Mut. Indemnity Co. v. Moore, 235 Ala. 426, 429, 179 So. 368, 370.
In that case it was said:
"In United States Fidelity & Guaranty Co. v. Hearn, 233 Ala. 31, 170 So. 59, we sustained a suit for a declaratory judgment where insured had been sued alone, there was no suit against insurer, nor other process to determine its duty to defend that suit, and there was an actual controversy with respect to that duty.
"The difference between that situation and this is in the fact that in this there is a pending suit where the duty and liability of insurer may be adequately and fully determined. We have never held that after another suit has been begun, if it affords an adequate judicial determination of the question, a suit for a declaratory judgment may supersede it, and withdraw from that suit a decision of the question."
We might add that the two federal district court cases cited by counsel for appellant in support of the argument that there was no justiciable controversy have been reversed. The case of Associated Indemnity Corp. v. Manning, D.C., 16 F. Supp. 430, was reversed by the Circuit Court of Appeals for the ninth circuit. Associated Indemnity Corp. v. Manning, 92 F.2d 168. The case of Columbian Nat. Life Ins. Co. v. Foulke was reversed by the Circuit Court of Appeals for the eighth circuit. Columbian Nat. Life Ins. Co. v. Foulke, 89 F.2d 261. It does not appear that either of those cases went to the Supreme Court of the United States, but the holdings of the Circuit Courts of Appeals are in accord with the decision of the Supreme Court of the United States in Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 61 S. Ct. 510, 85 L. Ed. 826, cited in our case of State Farm Mutual Automobile Ins. Co. v. Cardwell, supra.
The decree is affirmed.
Affirmed.
BROWN, FOSTER, LIVINGSTON, SIMPSON and STAKELY, JJ., concur. | November 16, 1950 |
9906c636-3ae7-4e2f-92ed-c8d0378deb7b | Calvert v. Bynum | 50 So. 2d 731 | N/A | Alabama | Alabama Supreme Court | 50 So. 2d 731 (1951)
CALVERT
v.
BYNUM.
6 Div. 54.
Supreme Court of Alabama.
February 15, 1951.
*733 Nash & Nash, Oneonta, for appellant. R. G. Kelton, Oneonta, for appellee.
LAWSON, Justice.
This is a statutory action in the nature of ejectment by J. H. Calvert against J. L. Bynum.
The suit was to recover possession of land described in the complaint as follows: "Lots Numbers one (1), two (2), three (3), four (4), and five (5) in Block Number six (6) and also that part of Block six (6) marked on the Map of Pinehurst as `Reserved' according to map and survey of Pinehurst Addition to Town of Oneonta, Alabama."
Defendant, pursuant to § 942, Title 7, Code 1940, suggested that the suit arose over a disputed boundary line, and described the location of the line claimed by him as follows: "`Beginning at a point 281.5 feet north of the Southeast corner of the Southeast fourth of the Southeast quarter of Section Thirty one (31), Township Twelve (12), Range 2 Two East, Running thence South 38° West, 160 feet to a corner; thence North 84°30' West 150 feet to a stake; thence South 62° West 210 feet to a stake' such description being the line between the plaintiff and the defendant as coterminous land-owners, and the same being as surveyed and platted by H. W. Brown, County Surveyor of Blount County, Alabama, on the 5th day of December, 1934, and being of record in Deed Record Vol. 87, page 405, record of Deeds in the Probate Office of Blount County, Alabama."
It is apparent that defendant's suggestion does not involve the title, but the boundary line of the parties. The several grounds of demurrer to defendant's plea or suggestion were properly overruled. Cox v. Cook, 245 Ala. 668, 18 So. 2d 406. We have examined the original transcript in the case last cited and find that the suggestion or plea of the defendant in that case and the grounds of demurrer interposed thereto are strikingly similar to the pleadings here involved.
After his demurrer was overruled, plaintiff filed what is termed an answer to the suggestion of boundary line dispute made by defendant. It reads: "Now comes the Plaintiff and denies all of the material averments alleged in the suggestion of disputed boundary line filed in the above styled cause. The plaintiff avers that the lines of the property sued for are the lines as described in the complaint." By virtue of this so-called answer the plaintiff merely took issue on the averments of the defendant's suggestion of a boundary line dispute. The jury found in favor of the defendant and judgment was entered accordingly. The plaintiff has appealed to this court.
The mere repetition in brief of counsel for appellant of the assignment of an error on the record has been repeatedly held by this court not to amount to insistence in argument, and in such case the assignment will be regarded as waived. Ward v. Hood, 124 Ala. 570, 27 So. 245; Pitts v. Phoenix Auction Co., 153 Ala. 635, 45 So. 150; Alabama Steel & Wire Co. v. Sells, 168 Ala. 547, 52 So. 921; Ogburn-Griffin Grocery Co. v. Orient Ins. Co., 188 Ala. 218, 66 So. 434; Boswell v. Land, 217 Ala. 39, 114 So. 470; Tindell v. Guy, 243 Ala. 535, 10 So. 2d 862.
As a sample of the argument in appellant's brief on many of the assignments of error, we quote the following: "Under assignment subdivision `D' of assignment of error 7, we think the court made manifest error in refusing to exclude the affidavit in evidence as set forth in sub-paragraph c. Under sub-paragraph `e' of assignment *734 of error 7, the same applies in that case. We do not think that the affidavit of H. W. Hughes was admissible in evidence in this case and as shown under sub-paragraph `f' of said assignment of error 7, we think this should have been excluded on motion of the plaintiff in the court below." This, in reality, is nothing more than a repetition of the assignment on the record, and, under the cases above cited, those assignments so treated in brief cannot be considered an insistence in argument and will be treated as waived.
The plaintiff was not entitled to the general affirmative charge. Under the pleadings in this case the issues were as follows: Were the plaintiff and defendant coterminous landowners and if so, was the boundary line between their properties as described by the defendant? That the parties are coterminous landowners is shown beyond any doubt. Even plaintiff's witnesses so testified. The evidence is almost without dispute that for fifteen years or more the defendant had the actual, peaceable and exclusive possession of the property north of the boundary as claimed by him.
Our holding in Mintz v. Millican, 248 Ala. 683, 29 So. 2d 230, supports the theory of the defense of adverse possession as here involved. See Guy v. Lancaster, 250 Ala. 226, 34 So. 2d 10, and cases cited.
As this is a boundary line dispute, the statute, § 828, Title 7, Code 1940, to which reference is made by counsel for appellant as requiring color of title as an indispensable element of adverse possession in some cases, has no application. Spragins v. Fitcheard, 206 Ala. 694, 91 So. 793; Copeland v. Warren, 214 Ala. 150, 107 So. 94; Hancock v. Warren, 235 Ala. 180, 177 So. 907; Guy v. Lancaster, supra; Denton v. Corr, 250 Ala. 149, 33 So. 2d 625.
A plat or map of lands surveyed by a county surveyor is not self-proving, or evidence per se, unless made upon notice to the parties, signed officially, and showing the matters prescribed by statute. § 7, Title 56, Code 1940. But a surveyor, shown to have experience as such, may testify as a witness to his survey and its correctness, whereupon the plat or map may be admitted in evidence in connection with his testimony. Hill v. Johnson, 214 Ala. 194, 106 So. 814, and cases cited.
The survey of defendant's land made in 1934 by H. W. Brown was properly admitted in evidence, Brown having testified to his experience of many years; that he was county surveyor and as such made a survey of the lands of defendant in 1934 in accordance with defendant's deed, which was in his possession at the time the survey was made; that the survey was made to determine the boundaries to defendant's land; that the survey was correct.
A party is entitled to have his theory of the case made by the pleadings and issues presented to the jury by proper instructions. Western Union Telegraph Co. v. Smith, 189 Ala. 534, 66 So. 578. This was the evident purpose of defendant's requested charge No. 5 which was given by the trial court. The charge might well have been refused because of the failure to use the words "reasonably satisfied from the evidence" rather than the word "find." But neither the giving nor the refusal of such a charge will, as a rule, work a reversal. Walls v. Decatur Fertilizer Co., 215 Ala. 426, 111 So. 214.
Appellant's complaint of the trial court's action in giving defendant's charge No. 6 is that it is abstract. We cannot agree with this contention.
The only complaint made by counsel for appellant as to charge No. 7 given for defendant is that it is abstract. It is abstract only in the sense that there was no evidence showing that defendant had color of title. But the giving of an abstract charge is not reversible error unless it is manifest from the record that the jury has been misled. Southern Home Ins. Co. v. Boatwright, 231 Ala. 198, 164 So. 102. Under the evidence in this case we are unwilling to say that the giving of charge No. 7 misled the jury. We think the charge might well have been refused for other reasons, but are not willing to base a reversal of this case on the giving of this charge.
*735 We have considered those assignments of error which have been sufficiently argued in brief and, finding no reversible error as to any of them, the judgment is affirmed.
Affirmed.
FOSTER, LIVINGSTON and STAKELY, JJ., concur. | February 15, 1951 |
ad8b11e4-5981-433b-b411-07264bb57186 | Kendrick v. Boyd | 51 So. 2d 694 | N/A | Alabama | Alabama Supreme Court | 51 So. 2d 694 (1951)
KENDRICK et al.
v.
BOYD.
6 Div. 129.
Supreme Court of Alabama.
January 18, 1951.
*695 Maurice F. Bishop and Johns S. Foster, of Birmingham, for appellants.
Gibson & Hewitt, of Birmingham, for appellees.
Embry & Embry, of Pell City, amicus curiae.
SIMPSON, Justice.
Act No. 424, General Acts of Alabama, Regular Session 1949, p. 601, is sought to be brought under review by this court as violative of § 45 of the Constitution of 1901, by a transfer of the cause from the Court of Appeals under the purported authority of § 87, Title 13, Code 1940.
The question of jurisdiction between this court and the Court of Appeals as to the final disposition of the cause is to be first considered, since there are other questions up for decision in addition to the constitutional question and the customary method of procedure in such cases has been under § 98 of said Title 13. Goolsby v. State, 213 Ala. 351, 104 So. 901.
The section under which the Court of Appeals transferred the case to this court, now § 87, was embodied in the original act creating that court. By this section it would seem that the Court of Appeals would be inhibited from deciding any case in which the validity of a statute of the state or of the United States is involved. Subsequently to the passage of this act, however, the later provision was adopted which is now § 98, which authorizes the Court of Appeals to write to constitutional questions involved in cases submitted to that court, if the statute under consideration "is upheld by said court,"but provides that "before the court of appeals should strike down any statute, federal or state, not previously nullified by the supreme court, the question involving the validity of same must be submitted to the supreme court for determination," etc. This latter section is the one under which the Court of Appeals has customarily been operating. Indeed, the Court of Appeals indicated in O'Rourke v. City of Birmingham, 27 Ala.App. 133, 136, 168 So. 206, that the original section (now § 87) was superseded by the latter section (now) 98. Since the two sections are directly conflictory and said § 87 would necessarily detract from the traditional jurisdiction heretofore exercised by the Court of Appeals, *696 it appears that there is no field of operation for said § 87 and we hold it to be no longer operative.
We will assume, however, so as not to be in the attitude of avoiding our own duty in the premises, that the Court of Appeals thought Act 424 to have been violative of § 45 of the Constitution, and will so treat the transfer of the cause and as a certification under § 98.
We will limit consideration, therefore, to that specific question involved, viz., whether or not the aforesaid statute violates that provision of § 45 which provides that "Each law shall contain but one subject, which shall be clearly expressed in its title." We hold that it does not.
The act under review is a rewrite of the absentee ballot law of Alabama, its title being an act "To provide for absentee voting in primary, general, special, and municipal elections: Prescribing penalties for violations of the Act and repealing conflicting laws." The act designates the register in chancery of each county in which an election is held (or other person designated to serve in his stead if the register be disqualified) as the official, agent or person to superintend and manage the absentee balloting. Section 17 provides for pay for services under the act and the specific challenge is that § 45 is violated by failure of the title to make reference to such.
To be sure, the question posed could be a somewhat debatable one were we to enforce with hypercritical exactness the said constitutional prescription; but the rule is to the contrary. The court is committed to the principle that this requirement of the Constitution is "not to be exactingly enforced or in such manner as to cripple legislation," but should be accorded a liberal interpretation. Johnson v. Robinson, 238 Ala. 568, 192 So. 412; Ballentyne v. Wickersham, 75 Ala. 533.
Speaking to the general theme of liberality of construction and the avoidance of hypercritical criticism as regards the title of an act, the following observation from Ex parte Pollard, 40 Ala. 77, was approved in the case of Roden v. Griffin, 179 Ala. 633, 637, 60 So. 925, 926, which bears on the proposition: "* * * `The question must always be whether, taking from the title the subject, we can find anything in the bill which cannot be referred to that subject. If we do, the law embraces a subject not described in the title. But this conclusion should never be attained, except by argument characterized by liberality of construction, and freedom from all nice verbal criticism.'"
Then, too, the question of the unconstitutionality of an act must be more than fairly debatable before the court is authorized to strike it down. To strike an act down, the court must be convinced of its unconstitutionality beyond a reasonable doubt. 6 Alabama Digest, Constitutional Law.
Keeping in mind these well-known canons of construction, we think it clear the challenge to the act is untenable. The constitutional requirement that the subject of the act be clearly expressed in its title is held to be satisfied if the title sufficiently discloses the subject of the act so as to apprise the legislature and the public of the matter to be dealt with. Newton v. City of Tuscaloosa, 251 Ala. 209, 36 So. 2d 487; State ex rel. Harrington v. Randle, 250 Ala. 472, 35 So. 2d 84; Fuqua v. City of Mobile, 219 Ala. 1, 121 So. 696.
In line with this premise, the law has become established that when there is a fair expression of the general subject of the act in its title, all matters reasonably related to it, including all necessary agencies or instrumentalities which should facilitate the act's execution, are proper to be included as being cognate and germane to the title. We had occasion to deal with this specific question at some length in Newton v. City of Tuscaloosa, supra, and with reference thereto pointed out, inter alia, (1) the liberal interpretation rule to be accorded this constitutional mandate; (2) that the subject of the act may be expressed in general terms and when so, everything subsumed under the general thought to make it a complete act, if cognate and germane thereto, is regarded as included in and authorized by it; (3) generality *697 or comprehensiveness of the subject of the act is not a violation of the constitutional provision requiring that an act shall contain but one subject, which shall be clearly expressed in the title, a broad comprehensive subject justifying the inclusion of any matter except that which is incongruous or unconnected with the subject, provided the title is not uncertain or misleading; (4) the title of an act need not be an index to it, nor need it catalogue all powers intended to be bestowed.
A good statement of the applicable rule is also to be found in Dearborn v. Johnson, 234 Ala. 84, 88, 173 So. 864, 867, where the court, speaking through Justice Gardner, observed: "* * * When the subject is expressed in general terms everything which is necessary to make a complete enactment in regard to it, or which results as a complement of the thought contained in the general expression, is included in and authorized by it. * * *"
Other cases, among many which could be cited of like import, are State ex rel. Harrington v. Randle, supra; Woco-Pep Co. v. Butler, 225 Ala. 256, 142 So. 509; Chapman v. Railway Fuel Co., 212 Ala. 106, 101 So. 879; Lindsay v. United States Savings & Loan Co., 120 Ala. 156, 24 So. 171, 42 L.R.A. 783; Ballentyne v. Wickersham, supra.
It is reasonably plain that every section, clause and paragraph of Act 424, including said § 17, is cognate and germane to the general subject expressed in the title, viz., "absentee voting," and we think the title sufficiently clear to apprise the legislature and the public of the matter therein to be dealt with. Section 17, like the other provisions of the act, deals specifically with that subject. It must be conceded that somewhere in the act the duty and responsibility of executing it must be placed upon some individual, board or official. The title naturally suggests this and anyone interested or concerned would naturally look to the body of the act to ascertain the method to be pursued and if so, would find that the person so designated was the register. A concomitant of this thought is, of course, that since the duties under the act would require the time and labor of the person so designated, and since the duties imposed on the register are new, additional, and foreign to those of his office, the legislature might be expected to provide compensation for such services, and it was but proper that the act did so provide. That is all there is to § 17 and we cannot hold to the view that it runs afoul of the stated constitutional mandate. Jackson v. Sherrod, 207 Ala. 245, 92 So. 481; Roden v. Griffin, supra; Herrmann v. Mobile County, 202 Ala. 274, 80 So. 112, and cases cited.
Let this opinion be certified to the Court of Appeals.
Affirmed as to the constitutional question involved and retransferred to the Court of Appeals for further consideration and final disposition of the cause.
BROWN, FOSTER, LIVINGSTON, LAWSON, and STAKELY, JJ., concur. | January 18, 1951 |
6318b667-f651-4eae-bd15-dcc7c5a44fad | Penney v. Pritchard & McCall | 49 So. 2d 782 | N/A | Alabama | Alabama Supreme Court | 49 So. 2d 782 (1950)
PENNEY et al.
v.
PRITCHARD & McCALL.
6 Div. 65.
Supreme Court of Alabama.
November 24, 1950.
Rehearing Denied January 11, 1951.
*783 Graham, Bibb, Wingo & Foster, Lange, Simpson, Robinson & Somerville, and White, Bradley, Arant & All, all of Birmingham, for appellants.
Pritchard & McCall and Victor H. Smith, all of Birmingham, for appellees.
FOSTER, Justice.
The question on this appeal is whether it is lawful to allow an attorney's fee out of the estate of a non compos mentis for services in representing the petition for an inquisition into his sanity, and for the trial of the same in which he was adjudged of unsound mind and a guardian appointed, and also for resisting proceedings to set aside and vacate the inquisition.
The ward, James E. Penney, was a very wealthy man eighty-eight years old when the petition was filed by one of his two children on November 3, 1947. He had been confined to his bed more than two years before the petition was filed. The guardian, who was his other child, administered his estate until the death of the ward on May 17, 1948.
On the final settlement of the guardianship in the Probate Court of Jefferson County, appellees here filed a petition for the allowance of an attorney's fee payable to them for services rendered under employment by Mrs. Caryl Penney Binford, petitioner in the inquisition proceeding, for representing her in having her father declared of unsound mind and in resisting efforts of Paul M. Penney, the other child of the ward, and of the guardian ad litem to have the adjudication set aside. The petition for the attorney's fee was resisted by Paul M. Penney, the guardian of the ward and executor of the will of the deceased ward. The probate court disallowed the petition. The court did allow a fee to counsel representing the guardian from the time of his appointment through the settlement of the estate of the ward in the amount of $5,000, and a fee of $500 for the guardian ad litem in resisting the petition to adjudicate the ward of unsound mind.
Appellees took an appeal to the circuit court which reversed the judgment of the probate court and remanded the cause to that court. Thereupon the guardian and *784 executors of the will of deceased appealed to this Court.
The question which we stated at the outset is the only one presented on the main appeal.
The inquisition was under section 11, Title 21, Code of 1940. It gives the authority to any of the relatives or friends of the person alleged to be of unsound mind. As we have said, the petition was filed by a daughter who with her brother, Paul M. Penney, are the only children and the next of kin of the ward.
The petition for inquisition might have been filed by a friend and not a relative. The ward may be still living when the effort is made to collect the fee and the question of law would be the same. So that it is not one of fairness in requiring the other heir of the deceased ward to share in that expense, but it is whether the funds of the ward, if he were still living, should thus be made to bear that expense.
The only general provision for costs in such matters is in section 19, Title 21, Code, with reference to an application to revoke the proceedings on the ground that the ward is then of sound mind. That statute has no application here.
The fee of the judge of probate in the inquisition proceeding is $5, without any provision for its taxation or payment. Section 29, Title 11, Code. The fees of the sheriffs are the same as allowed for similar services in other cases to be paid out of the county treasury, if such person has no estate. Section 34, Title 11, Code. The fees of jurors in inquisition proceedings are to be paid out of the county treasury. Section 16, Title 11, Code. Likewise the pay of witnesses is to be made the same as jurors as provided in section 16, supra. Section 52, Title 11, Code.
Under the Codes of 1852, 1876, 1886 and 1896, the fees of jurors and witnesses in such cases were made payable out of the estate of the person of unsound mind or, if there be no estate, out of the county treasury. Section 2763, Code of 1852; 5054, Code of 1876; section 3695, Code of 1886; section 1385, Code of 1896. Under the Code of 1907, section 1385, and that of 1923, section 7293, the pay of jurors is made out of the county treasury as under the Code of 1940. The pay of witnesses is required by the Code of 1907, section 3681, and by the Code of 1923, section 7241, to be paid as jurors are out of the county treasury, the same as under the Code of 1940.
So that the only provision of law which looks like a requirement that any of the costs, other than attorneys' fees, be paid out of the estate is by implication as to sheriffs' fees. Fees and costs can only be taxed pursuant to a statute. Section 1, Title 11, Code.
We recognize the principle that "In absence of contract, statute, or recognized ground of equity, there is no inherent right to have attorneys' fees paid by opposing side." Bell v. Bell, 214 Ala. 573, 108 So. 375, 376, 45 A.L.R. 935; Wilks v. Wilks, 176 Ala. 151, 57 So. 776.
"Costs" sometimes include an attorney's fee dependent upon the circumstances under which it is used. Williams v. Flowers, 90 Ala. 136, 7 So. 439.
Section 63, Title 46, Code, is largely an enactment of the ancient principle of equitable origin, and there enforceable, which was referred to as costs between solicitor and client and said statute makes it apply at law as well as in equity when justified. That principle is that a complainant in equity, who at his own expense has maintained a successful suit for the preservation protection or increase of a common fund or of common property, or who has created at his own expense or brought into court a fund in which others may share, may have paid to him, or sometimes directly to his attorney, an attorney's fee for such services. 14 Am.Jur. 47, section 74; Sprague v. Ticonic National Bank, 307 U.S. 161, 59 S. Ct. 777, 83 L. Ed. 1184; Wallace v. Fiske, 8 Cir., 80 F.2d 897, 107 A.L. R. 750. The principle is analyzed and annotated in 107 A.L.R. 754 et seq; 49 A.L. R. 1149; 9 A.L.R.2d 1150.
This principle has often been referred to and called the "doctrine of Trustees v. Greenough," 105 U.S. 527, 26 L. Ed. 757, and is cited and relied on in the case of Sprague v. Ticonic National Bank, supra.
*785 The annotation of the question in 9 A.L.R. 2d 1150 cites many late cases.
This writer was the author of the Act as it appears in section 63, supra, when he was a member of the Legislature of 1903, and is familiar with the difficulties obtaining before it was passed in getting an allowance for attorneys' fees in the probate courts. Judge Mayfield in preparing the Code of 1907 put a part of the Act in the chapter on partition, in which he added the clause that the services must be for the common benefit of all, section 5219, section 9319, Code of 1923, and also set out the entire Act in section 3010, Code of 1907, 6261, Code of 1923, but did not there include a clause as to the common benefit. That clause is not brought forward into the Code of 1940.
We do not think particular significance should be attached to the fact that it was left out of the Code of 1940. We think it is proper to hold that such a condition to an allowance of the fee persists under section 63, Title 46, Code of 1940. Wilkinson v. McCall, 247 Ala. 225(3), 23 So. 2d 577; Matthews v. Lytle, 220 Ala. 78, 124 So. 197; Coker v. Coker, 208 Ala. 239, 94 So. 308; Graham v. Graham, 207 Ala. 648, 93 So. 660; Bidwell v. Johnson, 191 Ala. 195, 67 So. 985.
In the case of Bidwell v. Johnson, 195 Ala. 547, 70 So. 685, this Court allowed an attorney's fee for services rendered in removing an estate from the probate to the chancery court. Likewise in probating a will. Powell v. Labry, 210 Ala. 248, 97 So. 707.
We have held that costs include an attorney's fee incurred by a special administrator who successfully contested a will. Stanley v. Beck, 242 Ala. 574, 7 So. 2d 276. See, also, Mitchell v. Parker, 227 Ala. 676, 151 So. 842.
Referring now to the status of the law in Alabama before the enactment of what is now section 63, Title 46, Code. In the case of Strong v. Taylor, 82 Ala. 213, 2 So. 760, decided before the statute, the equitable principle is recognized and is based upon Trustees v. Greenough, supra, and is said to be founded in natural equity to make a proper distribution of the burdens among those to whom the benefits accrue. That case also cites Grimball v. Cruse, 70 Ala. 534, in which the Court declared the principle as existing prior to our statute.
In the case of Anniston Loan & Trust Co. v. Ward, 108 Ala. 85, 18 So. 937, this Court again referring to Grimball v. Cruse, supra, and quoting from it, declared the same principle and also referred to the fact that it was an application of the principle of equality of burden exemplified in Trustees v. Greenough, supra.
In the case of Taylor v. Crook, 136 Ala. 354, 34 So. 905, the question was whether attorneys' fees should have been allowed in their favor as a claim against the estate for services rendered in probating a will of the deceased. There was no contention but that the executor could have paid it and claimed credit on his settlement. Powell v. Labry, supra. The only question was whether the allowance could be made directly to the attorneys. There was then in existence no such statute as section 63, supra, and the ancient equitable principle was not considered. The allowance was denied, but it may now be made directly to the attorney under section 63, Title 46, supra. Wilkinson v. McCall, supra.
While section 63, Title 46, Code, is not in the exact language of the equitable principle, it was intended to be applicable in the probate court under the same circumstances although that was not a court of equity.
The Probate Court of Jefferson County is now in such matters a court administering equitable rights when pertinent to administrations before it, Title 62, section 181 [1], Pocket Part, and, therefore, the old principle there obtains as it did in equity. Section 63, Title 46, supra, makes it apply to probate courts elsewhere in the State. That section does not in terms include the creation of a trust fund, but only the administration of a trust fund. But the equitable principle applies to its creation. The inquisition followed by a guardianship resulted in the creation of a *786 trust estate consisting of all the property of the ward administered for his sole direct benefit as long as he should live, and for no other purpose.
Section 8, Title 57, Code, provides that where "necessaries" are sold to a person of unsound mind he must pay a reasonable price therefor. That includes goods suitable to his condition in life. Section 43, Title 9, Code, is to the same effect. We have held that taxes are necessaries under this statute. Wiggins Estate Co. v. Jeffery, 246 Ala. 183, 19 So. 2d 769. There are many goods and services properly termed necessaries under that statute. Ragan v. Williams, 220 Ala. 590, 127 So. 190, 68 A.L.R. 1182; Flexner v. Dickerson, 72 Ala. 318.
Section 284, Buswell on Insanity is as follows: "Costs and counsel fees reasonably incurred by either party in proceedings to establish the lunacy of a person are regarded, both at law and in equity, as necessary expenses incurred for the benefit of the lunatic, and are recoverable against him or his estate. In an early case it was held that a solicitor employed by the party alleged insane could have no action against such party for his costs, but might have a lien on real estate recovered for the use of the lunatic, while in the hands of the committee, but not in the hands of the lunatic's heir. But the modern view of the matter is that the costs, charges, and expenses in lunacy proceedings are not to be considered so much as a charge on the lunatic's real estate as a simple contract debt due by the lunatic for necessaries." See, also, Alexander v. Alexander, 8 Ala. 796.
There are many cases which hold that an attorney's fee in such a proceeding is a proper charge against the estate of the non compos mentis. They are where there is a statute which allows the costs and expenses to be thus paid. They also emphasize the value of the proceeding to the estate to care for and preserve it. We cite them as follows: Wier v. Myers, 34 Pa. 377; In re Sulk, 74 N.J.Eq. 736, 70 A. 661; In re Bundy's Estate, 44 Cal. App. 466, 186 P. 811; McCracken's Case, 45 Pa.Super. 229; In re Frankish, 86 N.J.Eq. 280, 98 A. 395; In re Gould, 255 App.Div. 433, 8 N.Y.S.2d 714; Brownlee v. Switzer, 49 Ind. 221. 32 Corpus Juris 651 is to that effect, citing the above cases; also 44 Corpus Juris Secundum, Insane Persons, § 34, page 99, note 45, citing also In re Goldberg, 108 N.J.Eq. 366, 155 A. 137. We do not think they are all controlling here, but the discussion in many of them shows that such fees are properly termed necessaries.
In Ex parte Graham, 136 Fla. 20, 186 So. 202, an attorney's fee was disallowed in the circuit court. It is not clear from the report whether the court was sitting in equity or at law. A next of kin of the incompetent filed a petition in the circuit court, as authorized by the statute of Florida, praying for appointment of a guardian of the person of the incompetent and a curator to take charge of her property. The prayer of the petition was granted. A firm of attorneys filed their petition in said court at a later date for the purpose of having a solicitor's fee awarded them from the estate of the incompetent for services rendered in having the guardian and curator appointed for the incompetent. The petitioners contended that since there was authority to pay an attorney's fee in a proceeding in lunacy that their services rendered under said special statutory authority should be paid by analogy to a lunacy proceeding. The court observed that the proceeding is somewhat analogous to a lunacy proceeding, but there was little analogy between it and a chancery proceeding where a fund is brought into court for settlement and distribution. It was said that in the latter case the rem is the thing in litigation, while in this proceeding the rem is merely incidental. Upon the basis of that reasoning the court disallowed the attorney's fee.
We are not willing to follow that course of reasoning. The inquisition resulted in a finding of the incompetency of the party and directly and immediately in the appointment of a guardian who in the instant case was the only other next of *787 kin of such incompetent who is here objecting to the fee. The proceeding was necessary under the law of this State in order to appoint a guardian of the incompetent. Section 10, Title 21, Code. The guardianship was the result sought to be accomplished and that created a trust fund, so that the creation of the trust fund and its administration was the sole purpose sought to be accomplished. It is the same in principle as an attorney's fee for services in probating a will.
We think that the allowance of an attorney's fee can be sustained on the theory that as here rendered it was "necessary" to the interest of the non compos mentis under out statute, and also that it created a trust fund and brought it into court for administration under the "doctrine of Trustees v. Greenough," supra, otherwise called costs as between solicitor and client, as the same was enacted into what is now section 63, Title 46 of our Code, which serves the same purpose.
Appellees have cross-assigned errors upon the ground that the trial court in reversing the judgment of the probate court remanded the matter to that court for decision. The trial in the circuit court was on the same evidence and facts that were presented in the probate court as shown by an agreed statement of facts. We see no reason why the cause should have been remanded to the probate court for the rendition of the judgment in favor of appellees. We think the circuit court should have reversed and rendered the judgment, and this Court will proceed to render such judgment as should have been rendered in the circuit court. Sections 775, 785 and 810, Title 7, Code. The judgment of the circuit court is therefore modified so as to render the judgment in favor of appellees against appellant Paul M. Penney as guardian of J. E. Penney for the sum of $7,500, which is shown without controversy to be a reasonable fee.
Modified and affirmed.
BROWN, LAWSON and STAKELY, JJ., concur. | November 24, 1950 |
e39b8662-70ab-4db2-b222-83e787566e07 | Maund v. State | 48 So. 2d 553 | N/A | Alabama | Alabama Supreme Court | 48 So. 2d 553 (1950)
MAUND
v.
STATE.
4 Div. 602.
Supreme Court of Alabama.
November 9, 1950.
*555 E. C. Boswell, of Geneva, C. L. Rowe, of Elba, and E. O. Griswold, of Enterprise, for appellant.
A. A. Carmichael, Atty. Gen., and Jas. T. Hardin, Asst. Atty. Gen., for the State.
LIVINGSTON, Justice.
John Maund was indicted, tried and convicted of murder in the first degree in the Circuit Court of Coffee County (Enterprise Div.), and his punishment fixed at death. This appeal is governed by sections 382(1) and 382(2), Title 15, Pocket Part of the Code of 1940, being the automatic appeal statute.
Appellant admitted that he killed William A. Whigham, called Willie Whigham, in front of Whigham's home at about 9:30 to 10:00 o'clock on the night of January 2, 1950. It is not denied that the difficulty, which culminated in Whigham's death, arose out of a dispute between appellant and Whigham as to which one of them had rented from Mrs. Wall a certain sixty-nine acres of land for the year 1950. The Wall land is located on the Enterprise-Geneva Highway, about four miles out from Enterprise, on the same side of the highway, and some one hundred and fifty or two hundred yards from the farm of Whigham. Appellant lived about six miles from Enterprise on the same highway. It is not disputed that Whigham had rented *556 and farmed the Wall land for the years 1947, 1948 and 1949. Appellant introduced a three year lease covering the Wall land executed by Mrs. Wall to him on August 24, 1949 for the years 1950, 1951 and 1952, the term beginning January 1, 1950. The State introduced a receipt for $25, given by Mrs. Wall to Whigham on June 24, 1949, reciting "1950 land rent".
The State's evidence tended to prove that for many years appellant and deceased had been friends; that they had had several conversations prior to the fatal difficulty concerning the rental of the Wall land for the year 1950; that each claimed priority as to its occupancy for that year; that Whigham had posted the land and was guarding it to prevent appellant or anyone else from gaining possession of it; that on the night that Whigham was killed, he and his son Boyd Whigham drove up in front of deceased's home about 9:30 in Boyd Whigham's truck; that deceased's home was some seventy-five yards off the highway, with a driveway leading up to the house; that at about the time deceased and Boyd Whigham got out of the truck, appellant parked his automobile across the highway opposite Whigham's driveway, and off the pavement or "black top," got out of the car, left the parking lights on and came across the highway and entered the driveway of Whigham; that appellant called to Whigham and, with protestations of friendship, asked Whigham to come down and talk with him about the land matter; that Whigham went about half way down his driveway and told appellant to go on home; Whigham also told his son Boyd to take the truck and go to town and get the officers; that Boyd Whigham got in the truck and drove to Enterprise, passing appellant near the entrance to the Whigham driveway; that after Boyd Whigham drove out of the driveway and into the highway, appellant started to walk toward deceased, still protesting his friendship; that deceased told appellant to stop, but that he kept walking and when within about twenty feet of deceased fired one shot at him and, thereupon the two closed in combat; that this struggle continued for a short time with the parties moving away from the house toward the highway; that four or five shots were fired in the course of this struggle; that deceased fell to the ground and appellant began striking or beating him about the head with the pistol; that the wife of the deceased ran to her husband's assistance and begged appellant to stop beating him; that appellant, with abusive language, threatened to kill her too; that she went back to the house; that appellant then went back to his automobile and drove away. Whigham was shot three times with a thirty-two caliber revolver, and was severely beaten about the head. There was evidence to indicate that Whigham died almost instantly from one of the pistol wounds. Boyd Whigham was gone for about twenty minutes and when he returned with a highway patrolman his father was dead.
Appellant's version of the fatal difficulty was that, he (the appellant) was passing Whigham's home in his automobile when Boyd Whigham forced him off the highway with his truck, about opposite the Whigham driveway; that Boyd Whigham and the deceased got out of the truck and came back to his car, opened the car door and dragged him from his car and across the highway into the Whigham driveway, beating him as they went, with one or the other of them trying to cut him with a knife; that they knocked him down, and that deceased tried to hit him with a claw hammer while he was on the ground and deceased was bending over him; that deceased told Boyd that they had him where they wanted him and for Boyd to go get the officers of the law; that Boyd left and that after he left deceased tried to hit him with the hammer while he was down; that under these circumstances or conditions he shot deceased with a pistol.
Although the appeal is under the statute, above noted, because of the infliction of the death penalty, appellant was represented in the court below, and here, by able and reputable counsel of his own choice. Feeling that they have continuously and ably represented their client, we will in the main confine this opinion to propositions argued in brief and in the order therein made.
*557 The indictment was returned by the grand jury of Coffee County, Alabama, on February 8, 1950. On February 17, 1950, appellant filed his application for a change of venue, and the same was set for hearing on February 27, 1950. On the day set, the issue was submitted to the trial court on affidavits and the oral testimony of the witnesses on the part of the defendant and by counter affidavits on behalf of the State. The application was denied.
The burden is on the defendant to show to the reasonable satisfaction of the court that an impartial trial and an unbiased verdict cannot be reasonably expected in order to achieve the right to a change of venue. Godau v. State, 179 Ala. 27, 60 So. 908; Patton v. State, 246 Ala. 639, 21 So. 2d 844. The mere belief of the defendant or of his witnesses that he cannot receive such a trial is not enough. Lee v. State, 246 Ala. 343, 20 So. 2d 471.
The most that can be said of defendant's evidence in support of his application for a change of venue is that it revealed public indignation at the atrocity of the crime immediately after its commission; general discussion of the guilt or innocence of the defendant; statements by one or two persons that defendant deserved the death penalty; rumors of similar statements by others not identified; rumor to the effect that defendant might be mobbed or lynched; the opinion of affiants that defendant could not get a fair trial and an unbiased verdict in Coffee County. These affidavits and statements by witnesses were, in substance, flatly contradicted by the affidavits of many other citizens of Coffee County. There is no evidence of any demonstration or the formation of a mob to take the law in its own hand, and there could not have existed any racial prejudice against defendant.
Under the provisions of Title 15, section 267, Code, it is the duty of this Court to review the action of the trial court in refusing to grant an application for a change of venue without any presumption in favor of the judgment or ruling of the lower court on said application. After a careful consideration of the application and affidavits and other evidence in support of and against the application, we feel that defendant failed to meet the burden above referred to, and it is our duty, under the law as it now exists, to affirm the action of the trial judge in refusing to grant the application for a change of venue. See the following cases: Baker v. State, 209 Ala. 142, 95 So. 467; Malloy v. State, 209 Ala. 219, 96 So. 57; Godau v. State, 179 Ala. 27, 60 So. 908; Collins v. State, 234 Ala. 197, 174 So. 296; Patton v. State, 246 Ala. 639, 21 So. 2d 844; Lee v. State, 246 Ala. 343, 20 So. 2d 471.
At his arraignment on February 27, 1950, appellant entered pleas of not guilty and not guilty by reason of insanity. When called to trial on March 9, 1950, appellant moved the court for permission to withdraw the pleas interposed upon his arraignment, and file a plea in abatement and a motion to quash the indictment. The plea and motion to quash were predicated on the alleged illegal filling of the jury box from which the grand jury was drawn, which returned the indictment against appellant, in that the jury commissioners, and each of them, and the clerk of the commission, had omitted or failed to take the oath of office prescribed by section 279 of the 1901 Constitution of Alabama and Title 30, sections 11 and 16, Code. In short, the argument is that the jury commission and the clerk thereof were wholly without authority to act, each having taken the following oath of office:
"I, Marvin Weatherford, do solemnly swear that I am not disfranchised by the Constitution of Alabama, or by the Constitution or laws of the United States; that I will honestly and faithfully support and defend the Constitution and laws of the United States, the Union of the States, and the Constitution and laws of the State of Alabama, so long as I remain a citizen thereof; and that I will honestly and faithfully discharge the duties of the office upon *558 which I am about to enter, to the best of my ability, so help me God.
If it be conceded that there was an omission or failure on the part of the commissioners to take the prescribed oath, which we by no means concede, this would furnish no sufficient ground for quashing the indictment. It is well settled that objections going to the formation of a grand jury presenting the defendant must be made by plea in abatement before pleading not guilty, and after so pleading, any such objection is addressed to the irrevisable discretion of the trial court. Nixon v. State, 68 Ala. 535; Jackson v. State, 74 Ala. 26; Hubbard v. State, 72 Ala. 164; Vernon v. State, 239 Ala. 593, 196 So. 96; Ball v. State, 252 Ala. 686, 42 So. 2d 626; Title 15, sections 278 and 285, Code of 1940.
Appellant also interposed a motion to quash the venire, summoned to try his case, and also a motion to continue the case based upon the same grounds as that supporting his plea in abatement to the indictment. Both motions were overruled without error. Section 46, Title 30, Code, provides: "No objection can be taken to any venire of jurors except for fraud in drawing or summoning the jurors."
The matter of continuance is within the discretion of the trial court. What we have said above clearly indicates that the trial court did not abuse his discretion in refusing to continue appellant's case.
Appellant further objected to striking from the list of jurors, from which had been stricken the names of jurors Harrison and Maddox. Both prospective jurors were shown not to have been resident householders or freeholders of Coffee County for the last preceding year. They were therefore subject to challenge for cause. Section 55, Title 30, Code. But whether challenged or not, it is the duty of the court to disqualify all jurors not having general qualifications. O'Rear v. State, 188 Ala. 71, 66 So. 81; Title 30, section 6, Code.
Counsel for appellant in brief state: "The court erred in not of his own motion excluding the testimony of witness Shoffeitt, giving his opinion as to the condition of the wounds inflicted before or after death, for the reason that the witness was not shown to be qualified as an expert upon the matters testified about. In that regard the record discloses:
"Q. Is it possible, Doctor, to determine whether those wounds were inflicted before, or after the pistol wounds?
"Mr. Boswell: We object to the question, if the court please.
"The Court: I don't see how he could. Sustain the objection.
"The Court: Yes, that answer is excluded, gentlemen of the jury. You won't consider it.
"Q. Was there any blood on or around the wounds on the man's face and head?
"Mr. Boswell: We object to the question, if the court please.
"The Court: Any blood around the wounds on his face?
"A. There was a very slight amount of blood about the injured areas.
"Q. Is there any difference in the tissue around a wound that is made before death and one that was made after death? A. Yes, there is.
"Q. What would that difference be, Doctor? A. Well, a wound that is made in the body prior to death, that is while the heart is beating, will be indicated by a swelling of the area and a discoloration and what is called an interstitial hemorrhage, which is a bleeding of the ruptured blood vessels of the tissue. Now if the body is alive and the heart is beating *559 when this injury is made, you will get that discoloration and swelling and the bleeding within the tissue itself. If the body is dead when a cut or wound is made in it, you don't get the interstitial hemorrhage in the tissue itself; you don't get the discoloration from the wound, or you do not get the swelling of the particular area if the body is dead and the heart is not beating.
"Q. Was there any swelling or discoloration around those wounds on his head or face? A. On the wounds about his head I noticed no swelling. There was only a slight hemorrhage about the wounds.
"Q. Would it, or not, be your opinion that he was, or was not dead at the time these wounds were inflicted on the head?
"A. It is my opinion, at the time these wounds were inflicted on the head that the circulation had been greatly impaired. I would not say the body was dead, or alive, but certainly the circulation of the blood in the body had greatly been impaired and did not have the force that it would have on a normal live person.
"Mr. Boswell: We move to exclude the answer, because it was not responsive to the question.
"Mr. Rowe: We move that the jury be instructed not to consider it.
"The Court: The testimony of the witness in regard to that last question, gentlemen, is excluded from your consideration. You will not consider it."
Dr. Shoffeitt was qualified as an expert as follows:
"Q. Mr. Shoffeitt, what is your occupation? A. Associate Toxicologist, State of Alabama.
"Q. How long have you been employed by the Department of Toxicology? A. I have been there since 1940, with the exception between four and five years of that time was in the Army.
"Q. What is your duty with the Department of Toxicology? A. My duty includes making autopsies on bodies to determine cause of death, chemical analysis, microscopic analysis, spectroscopic and firearms ballistics examinations, general scientific examination of physical evidence.
"Q. And you have been doing that work since you have been with the department? A. Yes sir.
"Q. Will you tell us, please sir, what your educational background for that position is? A. I have B.S. degree in chemistry from Auburn. I have M.S. degree in chemistry with research in Toxicology at Auburn. I have completed approximately three years of the required work in law for a degree.
"Q. Do you have any other academic or practical experience that qualifies you for your position? A. None, other than the experience with the Department and the training that I have enumerated."
In our opinion, the witness was an expert qualified to answer the questions to which the trial court sustained objections, and that answers excluded could well have been left to the jury. We are not impressed that any error prejudicial to the right of appellant intervened in respect to that part of the record set out above.
Appellant complains of the trial court's refusal to permit appellant's witness Mrs. Wall to explain or state her reasons for not renting the land, which was the subject of the controversy between appellant and deceased, to deceased for the year 1950. The trial court did permit Mrs. Wall to testify that deceased offered her $200 more for the land and "I told him I couldn't do it," but sustained an objection as to her reasons why. The fact that Mrs. Wall rented the land to appellant and not to the deceased was material for the reason that the difficulty between appellant and deceased arose over that fact. We think that Mrs. Wall's reasons for doing so, whatever they might have been, were immaterial. Her mental processes in that regard could shed no *560 light on the issue being tried. A showing of relevancy being absent, we will not put the trial court in error for rejecting the proffered testimony.
The receipt for $25 given deceased by Mrs. Wall on June 24, 1950, reciting "1950 land rent" was admissible. The signature of Mrs. Wall was in pencil and portions, or all, of the other figures and writings were in ink. Mrs. Wall testified that she signed it. Mrs. Whigham, wife of deceased, testified that she filled out the receipt in ink before the signature of Mrs. Wall was attached thereto.
Appellant complains of the bulldozing and abusive manner in which the circuit solicitor cross examined appellant and some of his witnesses, giving their names and citing the record as to where such alleged tactics were used. We have examined each of them and are impressed that the conduct of such examinations was entirely proper.
In this connection appellant also complains of the introduction of photographs of the dead body of Whigham, and the solicitor's inquiry of appellant as to whether he wanted to object to looking at them. The rule relative to the admissibility of such photographs has been stated many times by this Court and the Court of Appeals. Recently in the case of Grissett v. State, 241 Ala. 343, 2 So. 2d 399, and in the case of McKee v. State, 33 Ala.App. 171, 31 So. 2d 656, certiorari denied 249 Ala. 433, 31 So. 2d 662. Under these authorities the photographs were clearly admissible. With further reference to the photographs, the record discloses the following occurred on cross examination of appellant:
"Q. You had shot all the cartridges in there, hadn't you? A. I don't know.
"Q. You hit Mr. Whigham three times, didn't you? A. I don't know.
"Q. You heard the testimony concerning that, didn't you? A. Yes sir.
"Q. You saw the pictures? A. No sir, I haven't seen the pictures, and don't want to see them.
"Q. Would you have objection to looking at them? A. Yes sir.
"Q. Could you say that you didn't hit him with more than three bullets? A. No sir, I couldn't say; I don't know."
No objection or protest of any kind was interposed to the cross examination set out above. If not clearly legal, the examination was entirely harmless.
Mrs. Wall, a witness for appellant, testified on direct examination that she had a conversation with the deceased on December 27, 1949, on her front porch and in the presence of some of her children, and one Mr. Adkinson, in which deceased told her, in substance, that he was going to tend the land in 1950 or die trying. Mr. Adkinson was called in rebuttal by the State. He testified, in substance, that he went with the deceased to Mrs. Wall's house one time and heard a conversation between Mrs. Wall and deceased concerning the land. Appellant objected to the witness testifying as to the conversation between Mrs. Wall and deceased, on the ground that the time the conversation occurred had not been fixed. We think the argument is hypercritical. From the record it is obvious that Mrs. Wall and the witness Adkinson were talking about the same conversation.
The trial of appellant consumed three days. The duties of one of the jurors required him to fire a boiler. The court, with the consent of the attorneys for appellant and the circuit solicitor, permitted this juror to go to his place of business accompanied by a bailiff, and before the court convened in the morning, to attend to those duties. Another bailiff remained with the other jurors. The jurors were thus separated during the course of the trial. The point was not raised in appellant's motion for a new trial.
In the case of Mitchell v. State, 244 Ala. 503, 14 So. 2d 132, 135, it was said:
"In Davis v. State, 209 Ala. 409, 96 So. 187, 188, a trial for murder, was presented a situation quite analogous to the instant *561 case. Said this court: `Pending argument by attorneys, the jury were allowed to separate over night. This was done after consultation with the solicitor and defendant's counsel then of record, both consenting. The jury were strictly cautioned by the court with respect to their conduct during the separation, and with one accord the twelve deposed on defendant's motion for a new trial that they had had no communication whatever with any person concerning the case nor had seen any statement in the newspapers touching the case. By entering into this agreement the prosecution assumed the burden of proving that no abuse resulted from the separation of the jury; but in this case that burden has been well sustained and error cannot be affirmed of the court's action in that behalf. Butler v. State, 72 Ala. 179.'
"Here is a clear announcement that consent of defendant's counsel to a separation of the jury is subject to his right, on motion for a new trial, to have the question of harmful effect investigated, with the burden on the state to prove no abuse resulted from the separation of the jury. * * *
"If the jurors be permitted to separate as here, under instructions from the court, with or without the consent of defendant, such separation is subject to challenge by motion for new trial, whereupon the burden is upon the state to clearly show no injury resulted from such separation."
If the court permits the jurors to separate, with the consent of the defendant or his attorneys, we know of no way to present the question, other than by a motion for a mistrial or for a new trial, and in which case the burden is on the State to clearly show that no injury to defendant resulted from the separation. The automatic appeal statute does not change that status. To hold otherwise would effectively deny the State the right and opportunity to show that no injury resulted to the defendant from the separation.
Appellant insists that the circuit solicitor and the assistant solicitor should not have been allowed to testify in the cause and to further prosecute the same. The rule governing such procedure is well stated in 70 Corpus Juris page 183, as follows: "Although a prosecuting attorney is competent to testify, his testifying is not approved by the courts except where it is made necessary by the circumstances of the case, and, if he knows before the trial that he will be a necessary witness, he should withdraw and have other counsel prosecute the case. The propriety of allowing the prosecutor to testify is a matter largely within the trial court's discretion. The testimony of a prosecuting attorney has been admitted where, unknown to the attorney before the trial, his testimony became valuable for the purpose of corroborating other witnesses in impeaching a defendant witness; to explain the surprise occasioned by the testimony of a witness called by the prosecuting attorney when such witness contradicts statements made to him previously; to show what happened while he accompanied an officer serving a search warrant; to establish a confession made to him in a case where there is no provisions of law for anyone else to conduct the trial; to show admissions made by defendant to him, and to establish facts occurring before a grand jury. So the prosecuting attorney may testify where the case is tried entirely by an assistant prosecuting attorney."
We are not prepared to say that the court abused its discretion in this regard.
Appellant argues that the court orally charged the jury that the burden of proof was on the defendant as to certain elements of self-defense. At the conclusion of the court's oral charge defense counsel called the court's attention to the fact that he had charged the jury that the burden of proof was on the State to show that the defendant was free from fault in bringing on the difficulty, but had not charged the jury with reference to the burden of proof as to the other elements of self-defense. The court stated, "I don't thing the burden is on the State as to the other two elements." Counsel for defendant then excepted to that part of the charge "that the burden of proof of these two elements was on defendant." The *562 court replied, "I didn't charge that." Thereupon, in the language of appellant's counsel, "He then substantially correctly stated the rule," and we interpolate to the jury. As a matter of fact, the court never did charge the jury that the burden of proof was on the defendant as to the two elements of self-defense. He merely failed to charge in that regard and when called to his attention, he, as counsel says, correctly charged the jury as to the two elements of self-defense. We are clear to the conclusion that the minds of the jury were not left in a state of confusion in that regard.
Counsel for appellant earnestly insist on a reversal because of the prejudicial atmosphere in which appellant was tried. They maintain that the courtroom was crowded with spectators and onlookers throughout the trial; that the spectators evinced their partisanship by jeering and laughing at the weak points in the defendant's case and cheering the strong points in that of the State. Appellant's motion for a new trial was, in part, based on this alleged display of partisanship. We have carefully examined the record and considered the evidence introduced in support of the motion for a new trial, and are fully convinced that nothing occurred during the course of the trial which was calculated to affect the minds of the jury in the performance of their solemn duty as jurors. We may also note here that our examination of the record and the evidence introduced on the hearing of the motion for a new trial does not convince us that the trial judge erred in denying the application for a change of venue.
Appellant's amended motion for a new trial was overruled. All of the questions presented by the motion for a new trial have been disposed of above, save one newly discovered evidence. The newly discovered evidence consists of the testimony of one Mr. Charlie Walker and his wife, together with that of a Mrs. Wilkes. The testimony of these witnesses is to the effect that on the evening Whigham was killed, at or about the time the killing occurred, they passed the home of the deceased in an automobile and observed appellant and deceased in an apparent peaceful conversation. Appellant contends that the evidence of these witnesses tends to materially weaken that of the State's witnesses.
In the first place, the granting of a motion for a new trial on the basis of newly discovered evidence is addressed to the sound discretion of the trial court. Aaron v. State, 181 Ala. 1, 61 So. 812. In the second place, the overruling of a motion for a new trial based upon newly discovered evidence tending only to discredit the State's witnesses is not error unless upon the whole case it appears probable that the new evidence would change the result. Cosby v. State, 202 Ala. 419, 80 So. 803; Scruggs v. State, 224 Ala. 328, 140 So. 405.
Here the alleged newly discovered evidence does tend to impeach some of the State's witnesses, but it is also at total variance with appellant's version of the fatal difficulty. We do not believe that this evidence would have changed the result of appellant's trial.
We have carefully examined the record, as provided in Title 15, section 382(10), Code, and find nothing therein upon which we feel that a new trial should be granted.
Affirmed.
FOSTER, LAWSON, SIMPSON and STAKELY, JJ., concur. | November 9, 1950 |
462e1ee0-3f1b-44e0-9525-f6517a5fd7d2 | Hamilton v. Hamilton | 51 So. 2d 13 | N/A | Alabama | Alabama Supreme Court | 51 So. 2d 13 (1950)
HAMILTON
v.
HAMILTON.
6 Div. 878.
Supreme Court of Alabama.
November 16, 1950.
Rehearing Denied March 15, 1951.
*14 Hugh A. Locke and F. Raymond Ingram, of Birmingham, for appellant.
Kelvie, Appelbaum, and Clifford Emond, of Birmingham, for appellee.
LAWSON, Justice.
Andrew S. Hamilton and Emma Stokes Hamilton were married in Birmingham, Alabama, on January 19, 1942. He was approximately sixty years of age at the time of the marriage and she was about fifty-five years old at that time. Both of them had been married before. Their spouses were dead. She had no children by her former husband. Mr. Hamilton had one living daughter by his first marriage and two grandchildren. They both owned some property. Prior to their marriage, they discussed business matters, but such discussion did not culminate in an antenuptial contract.
On May 23, 1944, Mr. and Mrs. Hamilton entered into a postnuptial agreement in the office of Mr. Hamilton's attorney. After this agreement was reduced to writing, it was signed by Mr. and Mrs. Hamilton in the attorney's office. The pertinent provisions of this postnuptial contract or agreement are as follows:
"This agreement made in the City of Birmingham, County of Jefferson, State of Alabama, on the 23rd day of May, 1944, between Andrew S. Hamilton, hereinafter referred to as the First Party and his wife Emma Stokes McCaskill Hamilton, hereinafter referred to as the Second Party, Witnesseth:
"Whereas, the said parties hereto are husband and wife at the time of the execution of this agreement are living at 8332 Seventh Terrace, South, in Birmingham, Jefferson County, Alabama; the First Party's grandchildren and the parties hereto have no homestead at the time of the execution of this agreement; that the parties hereto married on the 19th day of January, 1942, and have lived together continuously since said date; that both of the parties hereto have been previously *15 married; and the First Party has one child living, namely, Dessie Hamilton McCrary, and two grandchildren, namely, Marshall Fitzpatrick and Dorothy Fitzpatrick, who are the children of Dessie Hamilton McCrary and her first husband, Marshall H. Fitzpatrick, deceased; that the Second Party has no children living and her only near living relative is her mother, and,
"Whereas, the First Party owns four houses and lots in the city of Birmingham worth in all approximately Fifteen Thousand Dollars ($15,000.), three of them being worth about Seven Thousand Dollars ($7,000.), and the other, the one hereinafter referred to as Lot 1, Block 1, J. L. Thornton's Second Addition to Ridgeway Terrace (Map of Subdivision filed in Map Book 17, Page 42), being worth approximately Eight Thousand Dollars ($8,000.). The First Party also owns Five Thousand Dollars ($5,000.) of paid-up life insurance upon his life with the Penn Mutual Life Insurance Company and Ten Thousand Dollars ($10,000) of life insurance upon his life with the New England Mutual Life Insurance Company, the present or surrender value of the latter being approximately Six Thousand Dollars ($6,000.) and one used automobile which is approximately three years old, several pieces of furniture located in the house where the parties now live, stocks worth approximately Five Hundred Dollars ($500.00) and cash in the bank of not more than One Thousand Dollars ($1000.). The First party owns no other property except personal assets and miscellaneous items worth less than Five Hundred Dollars ($500.00).
"Whereas, the Second Party has a separate estate of her own worth of this date approximately Six Thousand Dollars ($6,000.00), and,
"Whereas, the Second Party has become apprehensive lest she be deprived of her rights as a widow of the First Party in the estate of the First Party in the event of his death, and the said First Party desires to show his good faith and to satisfy and comply with her wishes, and together they desire to fix and determine the rights of each of them in any and all property of every nature and description and wheresoever located that the other of them may own, at the death of the First Party, and, particularly to have the First Party agree to make, and make, the second Party agree to accept, and assent to a pecuniary and property settlement and provision for the Second Party's Benefit, in lieu and in bar of any and all right or claim of dower in and to any and all of the First Party's lands, tenements and hereditaments, and, also, in lieu and full discharge and satisfaction of any and all other right, title, and interest in and to any homestead and personal estate that she, as a widow, might have but for such provision and the execution and delivery of this Agreement and the full performance thereof by the First Party:
"Now, therefore, it is mutually agreed as follows:
"1. (a) That the Second Party shall have, keep, and retain the sole ownership, control, and enjoyment of her separate property during her life and may by last will and testament or by any other testamentary disposition dispose of the same as she may see fit, without interference by or from the First party.
"2. (a) That the First Party will change the beneficiary named in the four insurance policies, totaling Five Thousand Dollars ($5,000.) hereinafter described and cause the Second Party to be named the beneficiary therein and agrees not to change the beneficiary from the Second Party to any other person, firm, corporation, or to his estate, unless the Second Party predeceases the First Party or ceases to live with the First Party, to the end that the Second Party shall receive the full benefit accruing from said policies upon the death of the insured in the event the First party predeceases the second party and the parties are living together as man and wife. The description of said insurance policies follows:
* * * * * *
"The First Party warrants that said Five Thousand Dollars of Insurance is paid *16 up and that there are no liens nor encumbrances against the same.
"(b) The First Party further agrees to execute a warranty deed conveying to the Second Party the house and lot in which Mrs. Dessie Hamilton McCrary now lives, more particularly described as:
"Lot 1, Block 1, J. L. Thornton's Second Addition to Ridgeway Terrace (Map of Subdivision filed in Map Book 17, Page 42).
"3. (a) The First Party having acceded in full to the demands, desires and wishes of the Second Party in respect to the premises, and the Second Party having been fully advised in the premises the Second Party does hereby assent to the provisions hereinabove made for her benefit and agrees to accept the same in lieu and in bar of any and all right or claim of dower and of any and all claims of homestead rights or interest in and to any and all of the lands, tenements and hereditaments, wheresoever the same may be located, of the first party, to which the Second Party, as his widow, might be, or become, entitled by [sic] for the execution of this instrument; and, also, in lieu and wholly in discharge, satisfaction and payment of any and all other right, claim, title or interest, of any nature or character in and to any and all of his lands, tenements and hereditaments, wherever the same may be located, and, also, of any or all right, claim, title or interest, of any nature or character in and to any and all of his personal estate, wheresoever the same may be situated, to which the Second Party, as the widow of the First Party, might be, or become entitled but for the execution and delivery of this Agreement, and the performance of the covenants herein by the First Party.
"(b) That, in consideration of the covenants of the First Party herein contained, the Second Party, does, for herself, her heirs, executors, administrators and assigns, covenant that, immediately upon the receipt of the warranty deed conveying the said above described house and lot she will execute and deliver any and every instrument, or document, that, in the judgment of counsel for the First Party, or for his heirs, executors, administrators or assigns, may be necessary or any and every such instrument or document that any such counsel may, or shall, request her to execute and deliver, to accomplish and affect a release and waiver of all her right or claims or interest, as aforesaid.
"4. This agreement, shall be, and become effective upon delivery of the deed hereinabove described conveying the above described house and lot to the Second Party and upon the changing of the beneficiary in respect to the four policies of insurance hereinabove described.
"In Witness Whereof, the parties have hereunto set their hands and seals the day and year first above written.
Thereafter, on May 31, 1944, Mrs. Hamilton signed the following receipt:
"State of Alabama Jefferson County
"I do hereby acknowledge that I have this day received a warranty deed conveying the house and lot hereinabove described to me together with the abstract covering said premises and also that I have received the four insurance policies with the beneficiary changed in each to me and I do hereby accept the same as full satisfaction in discharge of any claim for dower and homestead rights and all other claims as hereinabove set out. Executed in Birmingham, Alabama, this 31st day of May, 1944.
After the four insurance policies carried with the Penn Mutual Insurance Company had been delivered to Mrs. Hamilton, wherein she was made the beneficiary, she turned them over to her husband, with the request that they be placed in a safedeposit *17 box which they held jointly. He complied with this request.
These parties lived together until on or about August 18, 1945, although they had quarreled intermittently. On or about August 18, 1845, Mr. Hamilton left the home in which they lived and which they had purchased jointly and, after staying in Birmingham a short period of time, went to the home of his brother in Georgia. He made a few trips to Birmingham thereafter, but never did return to see his wife.
On the day he left, that is, August 18, 1945, he went to the local office of the Penn Mutual Insurance Company and made application to obtain the cash surrender value of the four policies. In making this application, Mr. Hamilton necessarily requested that the beneficiary in each of the policies be changed from his wife to his estate. This is a requirement of the insurance company. In the course of events, the Penn Mutual Company honored his application and paid to him the cash surrender value of the policies. It does not appear that the Penn Mutual Insurance Company was notified of the postnuptial agreement or contract entered into between the parties. In any event, the Penn Mutual Insurance Company is not here involved.
This suit was instituted by Mrs. Emma S. Hamilton against her husband, Andrew S. Hamilton, in the circuit court of Jefferson County on August 2, 1946.
There were three counts in the complaint. Count 1 was in detinue to recover the four insurance policies. Count 2 was in trover and alleges a conversion by the defendant of the said four insurance policies. Count 3 is for money had and received by the defendant for the use of the plaintiff. The defendant pleaded the general issue in short by consent in the usual form. The cause was tried before the court without a jury and judgment was rendered in favor of the plaintiff and against the defendant for the sum of $4,503.49, which was the cash surrender value of the policies, plus interest. Defendant's motion for a new trial having been denied, the defendant has appealed to this court.
The finding of the trial court, sitting without a jury, was general. Hence, such finding will be referred to a count which is sufficient and which is supported by the evidence. Evans Bros. Construction Co. v. Steiner Bros., 208 Ala. 306, 94 So. 361.
The right of the wife to sue her husband in detinue, trover and general assumpsit is not questioned here. At common law, no such action could be maintained. Actions at law between husband and wife could not be maintained. 41 C.J.S., Husband and Wife, § 393, p. 867; 27 Am.Jur. 183, § 584. They could not contract with each other. 41 C.J.S., Husband and Wife, § 119, p. 592; 26 Am.Jur. 858, § 253. But by statute in this state actions at law between husband and wife can be maintained. § 72, Title 34, Code 1940; Bruce v. Bruce, 95 Ala. 563, 11 So. 197; Johnson v. Johnson, 201 Ala. 41, 77 So. 335, 6 A.L.R. 1031; Penton v. Penton, 223 Ala. 282, 135 So. 481, and cases there cited. The wife has full legal capacity to contract as if she were sole, except as otherwise provided by law. § 71, Title 34, Code 1940. The husband and wife may contract with each other subject to the rules governing contracts between persons standing in confidential relations, but the wife cannot directly or indirectly become the surety for the husband. § 74, Title 34, Code 1940. Under the aforementioned statutes and the decisions of this court construing them, we think it clear that Mrs. Hamilton could sue her husband in detinue, trover, and general assumpsit.
As we read and understand the brief of counsel for appellant, this suit is not defended on the ground that the parties were not living together as man and wife at the time the policies were surrendered to the company, or that Mrs. Hamilton had ceased to live with her husband. The evidence in this connection amply supports a finding that Mr. Hamilton left his wife and has never returned, although she wanted him to return to her.
As to the count in trover, the insistence here is that the policies of life insurance were not the subject of conversion in that the wife had no title to the policies *18 at the time they were surrendered for their cash value, nor did she have the right to immediate possession. It is asserted by appellant that under the terms of the contract the wife was not entitled to the policies or the proceeds therefrom unless she outlived her husband and, of course, he was still living at the time of this suit.
To be entitled to the right of recovery for conversion, plaintiff must have general or special title to the property in question, and the possession or immediate right of possession; and the party complained against must have wrongfully exerted some act of dominion over such property inconsistent with and destructive of the title of the party plaintiff. Holman v. Ketchum, 153 Ala. 360, 45 So. 206; Tallassee Falls Mfg. Co. v. First National Bank, 159 Ala. 315, 49 So. 246; First National Bank of Gadsden v. Morgan, 213 Ala. 125, 104 So. 403; Albertville Trading Co. v. Critcher, 216 Ala. 252, 112 So. 907; American Standard Life Ins. Co. v. Johnson, 231 Ala. 94, 163 So. 632.
An insurance policy may be the subject of conversion. Commercial Credit Co. v. Eisenhour, 28 Ariz. 112, 236 Pac. 126, 41 A.L.R. 1274; Hayes v. Massachusetts Mut. Life Ins. Co., 125 Ill. 626, 18 N.E. 322, 327, 1 L.R.A. 303; Mutual Life Ins. Co. v. Allen, 212 Ill. 134, 72 N.E. 200; Fraternal Army v. Evans, 114 Ill. App. 578, affirmed 215 Ill. 629, 74 N.E. 689; Barney v. Dudley, 42 Kan. 212, 21 P. 1079; Woodworth v. Hascall, 59 Neb. 124, 80 N.W. 483; Luckey v. Gannon, 6 Abb.Prac., N.S., N.Y., 209, 37 How. Prac. 134; First National Bank v. Cleland, 36 Tex.Civ.App. 478, 82 S.W. 337.
We come to a consideration of the contract between the parties. Antenuptial and postnuptial contracts are scrutinized by the courts because of the confidential relationship of the parties, and certain safeguards have been declared as necessary to protect the interests of the wife or intended wife, under the theory that the husband is the dominant of the two parties. Norrell v. Thompson, 252 Ala. 603, 42 So. 2d 461.
Unquestionably the wife, the plaintiff below, had the right to the immediate possession of the policies. After the contract was executed and in accordance with his promise, the husband had the plaintiff made the beneficiary in the policies and they were actually delivered to her. This was in accord with the clear intent of the parties as gathered from the contract. The wife acknowledged receipt of the policies in writing. Thereafter, according to her testimony and that of the defendant, she turned the policies over to her husband for the sole purpose of having them placed in their safe-deposit box, which they held jointly and to which they both had access. It was from that box that the policies were removed when they were surrendered, and such removal was without the approval or knowledge of the wife.
Did the wife have general or special title to the policies, American Standard Life Ins. Co. v. Johnson, supra, at the time of their surrender? We hold that she did have.
If the policy was assigned to the wife, then, of course, she did have title. Not being prohibited by law or public policy, a contract of life insurance, being a chose in action, may before loss be assigned to one having an insurable interest in the life of the insured, without the consent of the insurer, unless the policy contains a stipulation to the contrary, by which the right of assignment is limited. Missouri State Life Ins. Co. v. Robertson Banking Co., 223 Ala. 13, 134 So. 25. The policies are not in evidence; hence, we do not know whether the policies here involved contained any such limiting provisions. But if so, they would have no influence here, for the rights of the insurance company are not here involved and such limitations are solely for the benefit of the company. Missouri State Life Ins. Co. v. Robertson Banking Co., supra; 45 C.J.S., Insurance, § 420, p. 42. An insured may assign a life insurance policy to the named beneficiary and thereby vest in him an irrevocable right to all *19 its benefits. West End Savings Bank v. Goodwin, 223 Ala. 185, 135 So. 161.
But we do not think the contract here involved can be construed to be an absolute assignment. West End Savings Bank v. Goodwin, supra; Tompkins v. Tompkins, 132 N.J.L. 217, 38 A.2d 890; Burton v. Burton, 56 App.Div. 1, 67 N.Y.S. 338. We think it clear that it was not the intention of the parties that if the wife predeceased the husband, those entitled to her property would be entitled to the proceeds of the policies upon the death of the husband.
But a policy of life insurance may be transferred by a qualified or conditioned assignment. In 45 C.J.S., Insurance, § 417, p. 40, the rule is stated as follows: "A policy may be transferred by qualified or conditional assignment, as, for instance, where the right is reserved to name another assignee, or where the assignment is made to an assignee as his interest may appear, or where provision is made for the termination of the assignee's interest on the happening of a designated event and reversion to the assignor. It is not against public policy to make an assignment on condition that the insurance shall revert to the assignor if he survives the assignee."
We think the above rule has application here and hold that the contract between these parties worked a qualified or conditional assignment of the policies to the wife. The effect of such assignment was to vest the title to the policies in the wife, subject to divestment on the happening of a contingent event, the death of the wife prior to that of the husband. Conyne, Stone & Co. v. Jones, 51 Ill.App. 17.
In Conyne, Stone & Co. v. Jones, supra, the appellants had instituted a proceeding in attachment against appellee. On the attachment issue the finding and judgment were in favor of appellee and the attachment was quashed. The appeal was from that judgment. Appellants had contended below that the act of appellee in transferring without condition to her son and daughter certain policies of insurance, held by her as assignee on the life of her husband, was fraudulent. The insurance policies had been assigned to appellee by her husband, who was the insured and, as before indicated, were assigned by her to her son and daughter. The action in the appellate court was made to hang upon the question of whether appellee, the wife, who was the assignee of her husband, had a vested interest in the insurance policies so assigned as would be subject to attachment or merely an expectancy. In the assignment of one of the policies was this clause: "In the event of her death [the wife, assignee] before the said Gabriel S. Jones, Sr. [the husband, insured], to revert to him, the said assured, the same as if no assignment had been made." As to the effect of this assignment, the Illinois court held as follows:
"We think the right of property in this policy was in Lucinda M. Jones, with only the naked legal title in her husband, Gabriel S. Jones. U. S. Life Ins. Co. v. Ludwig, 103 Ill. 305.
"The effect of such a transaction was the same as if the policy in the first instance had been taken out by the wife on the life of her husband in a contract made between the company and her personally.
"After the assignment was made and assented to by the company, it could not be repudiated by Gabriel S. Jones or the company, but under the assignment the policy was held by Lucinda M. Jones for her sole use and benefit, subject to the limitation in the assignment itself. Cole v. Marple, 98 Ill. 58, 66.
"The authority is conclusive on this question. The limitation in the assignment gave Gabriel S. Jones no right to revoke the policy or in any way change it during her life. Under the statute on insurance (Sec. 19, Chap. 73, par. Ill, Star and C., p. 1345), she had the right to provide in the policy that in case of her death before it became due or before the death of her husband, the amount of the insurance should be payable to his, her or their children, and the provision in the assignment that the husband should have the benefit of the policy in case of her *20 death before his, contravenes no law and is not against public policy. Johnson v. Van Epps, 110 Ill. [551], 562. So this policy, before its last assignment to the children, was the same as if it had provided for the payment of the insurance to her husband in case of her death before his.
"Such a provision, however, would not have given him any more control over the policy, or interest in it, than it would the children, if it had been so made payable to them as provided by the statute, on the happening of the event of her death before his. The property in the policy would rest and vest in her, subject to be divested on the happening of a contingent event. The husband would only be a contingent beneficiary and have no present or vested interest in the policy. A policy is property, and in general terms is called a chose in action. U. S. Life Ins. Co. v. Ludwig, 103 Ill. 305. If fraudulently disposed of to defeat creditors, it may be reached by a creditor's bill. Cole v. Marple, 98 Ill. 58. It is a fraud within the meaning of the attachment act, to dispose of any kind of property to hinder or delay creditors, that might be used by the creditors to satisfy their debts, if done fraudulently.
"A policy of insurance is such kind of property, the same as a note. Ionia [County Sav.] Bank v. McLean [84] Mich. [625], 48 N.W. 159.
"If the views herein expressed are correct, then the proof sustained the attachment and the court erred in quashing the writ. The judgment is reversed and the cause remanded." 51 Ill.App. 29-31.
The wife, plaintiff below, having title to the property, subject only to divestment upon the happening of a contingency which had not occurred at the time of the surrender of the policies, had sufficient title to authorize recovery for conversion.
We are not here concerned with the amount of damages awarded.
The judgment of the trial court is affirmed.
BROWN, LIVINGSTON, and SIMPSON, JJ., concur. | November 16, 1950 |
bdbb26bf-7436-4684-af3f-5c4c96da004c | Allinder v. City of Homewood | 49 So. 2d 108 | N/A | Alabama | Alabama Supreme Court | 49 So. 2d 108 (1950)
ALLINDER
v.
CITY OF HOMEWOOD.
6 Div. 2.
Supreme Court of Alabama.
October 26, 1950.
Rehearing Denied December 7, 1950.
*111 Wilkinson & Skinner, of Birmingham, for appellant.
Irvine C. Porter, of Birmingham, for appellee.
FOSTER, Justice.
The appellant in this case filed suit in the circuit court, in equity, to enjoin the City of Homewood, a municipal corporation, in Jefferson County, from enforcing certain features of an ordinance numbered 334 adopted by said city. Upon application for temporary injunction, it was set down for hearing, notice given, and both parties appeared. The city demurred to the bill, but filed no answer. No proof was submitted except the bill sworn to. The court granted the application for temporary injunction in respect to some features of the ordinance and denied it in respect to other features. From that decree the complainant appeals and the City of Homewood has cross assigned errors.
The bill of complaint alleges that the appellant owns and operates a tourist court in the City of Homewood, Alabama, known as Bob's Tourist Court and has been so operated for the past fourteen years, providing sleeping accommodation for transients and therefore occupies the relation of innkeeper to those seeking such accommodations.
The bill alleges that those features of the ordinance, which the court refused to enjoin, violated his constitutional rights and arbitrarily deprived him of the power to conduct his business in his own way, alleging that he has always conducted it free from unsanitary, illegal or immoral conditions.
The particular matters contained in said ordinance involved in the assignments of error by appellant are specifically set out in said assignments, each separately.
The City of Homewood has cross assigned error with respect to those features of the ordinance, as to which the trial court ordered a temporary injunction. They are set out in cross assignments from one to seven, both inclusive.
The right and power of the City of Homewood in respect to such ordinance must rest upon its police power. That power so far as at present material is contained in section 455, Title 37, Code, wherein all municipalities in this State are authorized to provide by ordinance "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".
We are not here dealing with the "police jurisdiction" of the City of Homewood, for the allegation is made that the tourist court is within the City of Homewood which of course means within the corporate limits of the city. We do not find any specific law directly applicable to the City of Homewood granting a different or more extensive police power than that expressed in the Code as applicable to all municipalities in the State. It must be governed by such police power as is granted to the municipalities by legislative enactment. There is no reason, however, to doubt that the power contained in the statute quoted above is broad enough for all reasonable purposes there defined and to secure the object sought to be accomplished by the ordinance here involved. It is the same police power *112 which the State has in respect to those particular matters, not to say now that the State does not possess in other respects a larger police power which it has granted to the City of Birmingham,Title 62, section 654, Code,but it has not been granted so far as we know to the City of Homewood. We think that situation is not important with respect to the question here involved.
We note that by Act approved August 12, 1947, General Acts 1947, page 176, Title 62, pocket part, section 330 [101 et seq.], the Legislature passed a law applicable to counties having a population of 400,000 or more, and therefore operative in Jefferson County, providing for the regulation of tourist courts and containing in many respects the salient features of ordinance 334, supra. Such Act of the Legislature does not seem to have been questioned by any court proceeding or its constitutionality considered. It is apparent that it was the opinion of the legislature that such regulation of tourist courts was within its police power in respect to the safety, health, morals, order, comfort and convenience of the inhabitants of the counties in which it has operation. It is not limited to such portions of the counties involved as are not within a municipality and, therefore, has operation within all the municipalities of the counties the same as it has in areas not under the police jurisdiction or the corporate limits of such municipalities. The ordinance in question is somewhat more restrictive than the State law. This is of course permissible if such restrictions do not conflict with State law and are not unreasonable.
With respect to the general power of the cities under their "police power" to adopt regulations, we have had many cases in this Court. The fact that some of them relate to the City of Birmingham should not make any material difference so far as the question here at hand is concerned, resulting from the fact that a more extensive police power is given to the City of Birmingham than to other cities because, in so far as the question here involved is concerned, the City of Homewood is granted ample police power and equal to that of the City of Birmingham.
We refer to some of the expressions of this Court with respect to the broad authority which cities have under such granted police power. We said in the case of City of Homewood v. Wofford Oil Co., 232 Ala. 634, 169 So. 288, that such powers extend to all appropriate ordinances for the protection of the peace, safety, health and good morals of the people affected thereby. The general welfare is a generic term often employed in this connection.
The right to conduct one's business in a way and manner agreeable to him is subject to such regulations as may be reasonably imposed under the police power. If the regulation may be supposed to be helpful in exercising such power and is not discriminatory or unduly burdensome, the courts do not nullify it. Whether it is wisely conceived, or whether purposes sought to be accomplished by education, an exercise of patience, or some other means, is not for the courts to determine. We only pass on its constitutionality as written and not its wisdom or lack of it. Barton v. City of Bessemer, 234 Ala. 20, 173 So. 626.
The city authorities are responsible for determining the propriety of such regulations within the scope of the police power and the courts cannot invade such field. Such power is not limited to protection of public health, but extends to matters of public convenience and matters pertaining to public wellbeing or welfare. Alosi v. Jones, 234 Ala. 391, 174 So. 774.
The attack made on the various features of the ordinance in question, separately considered, is that each such aspect is unreasonably arbitrary and oppressive. Such attack raises a judicial question and will take into consideration the circumstances affecting it. To justify annulling it or some features of it on such ground, it must be demonstrably shown that it is unreasonable. City of Birmingham v. Louisville & Nashville R. R., 216 Ala. 178, 112 So. 742.
*113 The foregoing cases are merely typical of others as to what is required, and it is not necessary to cite the great number of cases which are to that effect and which are referred to in those cases, supra.
This brings us to an analysis of those particular features of the ordinance which the court refused to enjoin, and of which appellant complains. Appellant has set forth three propositions of law, specifically controlling the validity of those features of which he complains in his four assignments of error, to which we have heretofore referred. The first proposition, so stated, is that the City of Homewood cannot require appellant to keep the register required by ordinance 334. Proposition two is, the City of Homewood cannot require appellant to expose his private records to inspection of any police officer on duty at all times for a period of two years. The third proposition is, the court erred in not restraining the enforcement of that provision of section 2 of the ordinance purporting to make it unlawful for any occupant of any room to have sexual intercourse with anyone other than the lawfully wedded spouse of said occupant. The brief notes that each of the three aspects of ordinance No. 334 violates the constitutional rights of the appellant because they deprive him of liberty and freedom and the right to be free from obnoxious force and seizure and the tyranny of a police state, and constitute an unlawful discrimination. The first proposition is particularly applicable to the first assignment of error. The second proposition of law argued in brief has reference to the second and fourth assignments of error, and the third proposition has reference to the third assignment of error.
This relates to the requirement that appellant shall cause an entry to be made on the register of his guests or patrons, showing the license number and make of automobile in which he travels to the tourist court, the date and hour of arrival and the number of the room or quarters rented to him. So far as the particular matter contained in the first assignment of error is concerned, we notice that it is practically the same as contained in section 2 of the Act of 1947, supra. It is our view that such a regulation could reasonably be thought by the authorities of the City of Homewood to be an aid in locating lost or stolen automobiles, in identifying the particular person so that in the event an offense is committed such identity could be more easily traced and analyzed, and it may be could serve many useful purposes in providing for the safety, morals, good order, comfort and convenience of the inhabitants of the City of Homewood. We find in the bill no allegation of facts which would justify the court in annulling that feature of the ordinance on the ground that it is unreasonable, arbitrary and oppressive.
The equal protection clause of the Fourteenth Amendment permits classification for an application of regulatory measures under the police power when such classification is based upon some rational basis. It is claimed that motor courts are of the same class as hotels and no such requirements are made as to hotels.
There are certain regulations set out in Title 24, Code, applicable to hotels as there defined, which include tourist courts also. Those regulations were thought by the legislature to be equally applicable to hotels and tourist courts, but there are differences which also justify regulations as to one not needed as to the other. There may be few, if any, guests of a tourist court who do not go there in an automobile. Regulations of tourist courts which aid in finding stolen cars and the persons who stole them, such as fixing the time when they arrive, when they leave, their name and the license number and make of the car, cannot be said to be discriminatory because hotels are not so required, for that there is a material difference between them in that respect. We are not saying that the legislature could not make such a requirement as to hotels, or that cities could not, but they have not yet apparently found that to do so would be as helpful as to require it of tourist courts. Wilkey v. State, 244 Ala. 568 (on rehearing), 14 So. 2d 536, 151 A.L.R. 765; Carmichael *114 v. Southern Coal & Coke Co., 301 U.S. 495, 57 S. Ct. 868, 81 L. Ed. 1245.
"There is no constitutional requirement that a regulation, in other respects permissible, must reach every class to which it might be appliedthat the Legislature must be held rigidly to the choice of regulating all or none." Silver v. Silver, 280 U.S. 117, 50 S. Ct. 57, 59, 74 L. Ed. 221, 65 A.L.R. 939; Pickett v. Matthews, 238 Ala. 542(13), 192 So. 261.
"The State `may direct its law against what it deems the evil as it actually exists without covering the whole field of possible abuses.'" Patsone v. Com. of Pennsylvania, 232 U.S. 138, 144, 34 S. Ct. 281, 282, 58 L. Ed. 539. "It is free to recognize degrees of harm, and it may confine its restrictions to those classes of cases where the need is deemed to be clearest." Miller v. Wilson, 236 U.S. 373, 382, 35 S. Ct. 342, 344, 59 L. Ed. 628; People of State of New York ex rel. Bryant v. Zimmerman, 278 U.S. 63, 49 S. Ct. 61, 73 L. Ed. 184. "A legislature may hit at an abuse which it has found, even though it has failed to strike at another." United States v. Carolene Products Co., 304 U.S. 144(9), 58 S. Ct. 778, 783, 82 L. Ed. 1234; Silver v. Silver, supra.
The same discussion made by us in respect to the first assignment is here applicable, except that as to the second and fourth assignments, the duty is upon the tourist court manager to keep his register available for inspection by the police on duty for two years after making each entry. So that it must be kept for two years after the last entry. The State law does not fix such a time, but provides that the register shall be open for inspection by the county officers named.
The trial court in this case enjoined the requirement that the register shall at all times be kept in the main or central entrance or office (first cross assignment) and also that it must be signed at said main or central office (second cross assignment), and that it shall be unlawful for a guest to occupy a room until the required entries are made in the register at the main or central office (third cross assignment).
In considering the assignments and cross assignments, we must bear in mind that the ruling was on application for temporary injunction heard on the bill, to which there was a demurrer but no answer and no other proof by either party. The injunction in part granted and in part denied is only applicable until the final hearing on a full consideration. In passing on such a situation, originally and on review by this Court, the relative convenience and damage to the parties and the public resulting from denying a part and granting a part of the injunction as sought are material factors. The requirement that a register shall be kept and a directive as to what shall be entered on it and that it shall be open for inspection to police officers of the city on duty is not necessarily unreasonable or oppressive to the manager of the tourist court, but it was thought by the city authorities and the legislature to be an important regulation in the public interest. In this we concur, unless on final hearing the proof shows to the contrary. But whether it must be kept for two years after the last entry in it, or whether those entries must be made at the main entrance or office, we think present questions not necessary for immediate decision, and that an injunction of such requirement operative until there is a final hearing does not constitute a clear and present hazard to the public welfare. We think therefore that there was no reversible error manifested by the second and fourth assignments of error, nor by the first, second or third cross assignments.
This feature of the ordinance makes it unlawful for the occupants of a room in a tourist court to have sexual intercourse there except between lawfully wedded man and wife, and in the cross assignment it appears that the court enjoined that feature which prohibits the use of a room by members *115 of the opposite sex, except when they are lawfully wedded or with a minor child of the occupant.
Appellant complains that the ordinance as well as the statute, section 330 [103], Title 62, Pocket Part, Code, makes it unlawful to have sexual intercourse on only one occasion which is not otherwise a violation of the law and contends that this cannot be done, and, if so, it would be discriminatory to make the prohibition apply only to tourist courts.
Cross appellant contends that the prohibition against such an occurrence is a measure reasonably adapted to the prevention of widespread immorality.
While our statute prohibiting adultery or fornication applies only when there is a living together, so that a single act alone is not thus prohibited, section 16, Title 14, Code, there is no constitutional reason why the law might not prohibit and make it a crime to have one such act alone, not in lawful wedlock. 1 Am.Jur. 684, sec. tion 5; 2 Corpus Juris Secundum, Adultery, § 3, p. 474, notes 29 to 32; 74 A.L.R. 1362; State v. Brooks, 215 Wis. 134, 254 N.W. 374, 94 A.L.R. 401.
We do not think we are in position to say that making such a prohibition as to the use of a tourist court and not as to a hotel or any other place is an unconstitutional discrimination. The requirement may be such as to meet a situation which has been found to be more conducive to immorality than exists in other places. We cannot say that this is not a reasonable classification on the basis of the principles which we have discussed.
It may be that the trial court had in mind some situation which does not for the moment appear important to us in granting the injunction as indicated by the fifth cross assignment. But we prefer to leave that matter open for determination on final hearing. In the meantime, we think the public will not be materially prejudiced by the operation of that feature of the injunction.
We think the same comment is applicable to the injunction granted as complained of in cross assignments numbered six and seven. The eighth cross assignment needs no special comment. We prefer to leave the matter of the temporary injunction where the trial court placed it.
Affirmed.
BROWN, LIVINGSTON, LAWSON, SIMPSON and STAKELY, JJ., concur. | October 26, 1950 |
6633ae15-b843-4b09-b159-0983c0a89a2e | Bonds v. State Department of Revenue | 49 So. 2d 280 | N/A | Alabama | Alabama Supreme Court | 49 So. 2d 280 (1950)
BONDS et al.
v.
STATE DEPARTMENT OF REVENUE et al.
6 Div. 174.
Supreme Court of Alabama.
December 7, 1950.
Moore & Alford, of Winfield, for appellants.
Fite & Fite, of Jasper and Fite and Fite, of Hamilton, for appellees.
*281 FOSTER, Justice.
This is a proceeding for a declaratory judgment to test the effect of an amendment to the Constitution applicable to Marion County.
The Legislature of 1949 by Local Act No. 115, Acts 1949, page 139, had levied a local privilege tax for that county on retail sales and uses of personal property. It is broadly equal to one-half of the State sales and use taxes. The proceeds are to be used in the construction and maintenance of specified health units and other purposes in the county.
The bill of complaint alleges the Act as passed was void for a failure to comply with sections 45 and 62 of the Constitution and because the legislature had not reapportioned the membership of it as required by section 199, Constitution. Both parties seem to assume the invalidity of the Act as passed. Appellants contend the amendment to the Constitution did not serve to validate and confirm it. The trial court declared it did have that effect.
The amendment as finally adopted had its origin in two enactments of the legislature passed after the adoption and approval of the Act No. 115, supra. The first such act proposed an amendment by which in substance authority was given the county to issue bonds or other evidences of debt and pledge such special taxes to be collected as are authorized by Act No. 115, and to use the proceeds for purposes such as are provided in said Act, and that the debt limitations of section 224, Constitution, should not apply to such indebtedness. This was Act No. 200, Acts 1949, page 236. The other act was No. 480, Acts 1949, page 698, and purported to amend the former act proposing the amendment by adding to the proposed amendment a clause validating and confirming the tax levied and the method of collecting it made by the Act No. 115, supra. The amendatory act did not set out the proposed amendment to the Constitution, including the amendment to be added, but offered to add to the amendment by adding the proposed clause of validation and confirmation. As an act of legislation that would violate section 45, Constitution. State ex rel. Brogg v. Rogers, 107 Ala. 444, 19 So. 909, 32 L.R.A. 520; Ex parte Pollard, 40 Ala. 77.
But a proposal to amend the Constitution is not an act of legislation. In re Opinion of the Justices, 227 Ala. 296, 149 So. 781; Storrs v. Heck, 238 Ala. 196, 190 So. 78; In re Opinion of the Justices, 252 Ala. 89, 39 So. 2d 665. Therefore, section 45, supra, does not apply, nor any other constitutional requirement applicable to the passage and form of legislation, except such as are included in section 284, Constitution.
There is no contention that the requirements of section 284, supra, were not complied with. It is stipulated the amendment as proposed by the enactments, supra, was submitted to an election and a majority of the qualified electors of Alabama voted in favor of adopting it, although a majority of the voters of Marion County voted against its adoption. We assume the stipulation was intended to mean that all the requirements of section 284, supra, were complied with, and the amendment was duly adopted and properly so declared.
The matters argued on this appeal are that the amendment failed to validate and confirm the Act No. 115, supra, because a majority of the voters in Marion County, who voted, cast their vote against ratifying the amendment, and that the Act No. 115 and proceedings of the legislature with respect to the amendment are void because there has been no reapportionment of the legislature as required by section 199, supra.
The first contention stated above seems to be based on the argument that the civil liberties of the voters of Marion County (First Amendment to the United States Constitution) are thereby taken away without due process (in violation of the Fourteenth Amendment to the United States Constitution and section 6 of the Alabama Constitution), because they are taxed against the will of a majority of the voters expressed in the election.
There is no other constitutional limitation on the power of the legislature *282 to levy county privilege or excise taxes than the requirements of the Fourteenth Amendment. Section 215, Constitution, does not apply. Capital City Water Co. v. Board of Revenue of Montgomery County, 117 Ala. 303, 23 So. 970; Standard Oil Co. v. Limestone County, 220 Ala. 231, 124 So. 523; Sisk v. Cargile, 138 Ala. 164, 35 So. 114; Newton v. City of Tuscaloosa, 251 Ala. 209, 36 So. 2d 487.
So that the legislature was free to levy a sales tax for Marion County without submitting it for approval by the voters and even over their protest. State of Alabama v. United States, 282 U.S. 502, 51 S. Ct. 225, 75 L. Ed. 492. The levy of a tax is a sovereign prerogative power and does not take property without due process when it does not violate some constitutional restriction. Beeland Wholesale Co. v. Kaufman, 234 Ala. 249, 174 So. 516.
There is no serious ground for the argument that the tax in question otherwise violates due process or equal protection required by the Fourteenth Amendment, and we see no application of those restrictions to the instant situation.
The contention that the legislature could make no law nor do any act since it has not complied with section 199, Constitution, by reapportioning the membership of the legislature is submitted for our consideration. But we doubt if any plausible argument could be made to support such a contention, and none has been attempted here. The suggestion is without merit. See, State ex rel. Sullivan v. Schnitger, 16 Wyo. 479, 95 P. 698; In re Sherill, 188 N.Y. 185, 81 N.E. 124.
It remains now only to observe, as the trial judge did, that there is no reason why a constitutional amendment cannot by the use of express and clear terms validate and confirm an act of the legislature previously enacted but invalid on account of a failure to observe provisions of the State Constitution. 16 Corpus Juris Secundum, Constitutional Law, § 45, pages 96 and 97.
Of course this is not available if the invalidity is by reason of the Federal Constitution. We see no invalidity on that account so far as here contended, so that the effect of the amendment serves to validate and confirm the tax levied and the method of collection provided therefor by the Act No. 115, supra, in so far as the same is affected by the contention here made.
We see no reason to differ with the declaratory judgment of the trial court that the Act No. 115, supra, is valid in so far as it is assailed in this proceeding.
Affirmed.
LIVINGSTON, LAWSON and STAKELY, JJ., concur. | December 7, 1950 |
34dde774-9b6b-4db2-beb9-4ae47b1fa96e | City of Birmingham v. Norton | 50 So. 2d 754 | N/A | Alabama | Alabama Supreme Court | 50 So. 2d 754 (1950)
CITY OF BIRMINGHAM
v.
NORTON et al.
6 Div. 16.
Supreme Court of Alabama.
November 16, 1950.
Rehearing Denied March 1, 1951.
*756 Jas. H. Willis and Thos. E. Huey, Jr., of Birmingham, for appellant.
Wilkinson & Skinner, of Birmingham, and J. Clewis Trucks, of Fairfield, for complainant and appellees.
Graham, Bibb, Wingo & Foster, of Birmingham, for intervener and appellees.
BROWN, Justice.
The appeal in this case is from a final decree of the Circuit Court of Jefferson County, in Equity, declaring Act No. 325 approved August 3, 1949, General Acts of 1949, Regular Session, pp. 472-484, unconstitutional and void at the instance of appellees, *757 resident taxpayers (the original complainants), and Board of Education of Jefferson County, intervenors, in a declaratory judgment proceeding against appellant, the City of Birmingham. After demurrer overruled both to the bill filed by the original complainants (taxpayers) and the intervenors, the defendant (appellant here), filed an answer to said bills and the case was submitted on the bill and answer without other proof.
It appears from the admitted averments in the bill and the averments in the answer that in the several elections held under the terms of the act, the segments of territory embraced within the Cities of Homewood, Mountain Brook, Tarrant City, Fairfield and the corporate limits of the Town of Irondale, were not annexed as a result of said elections; that the only territory annexed and included within the limits of the City of Birmingham was the unincorporated territory described in section 15 of said act.
The appellees insist (1) that the act violates section 45 of the constitution which requires that all bills offered in the legislature shall deal with a single subject which must be clearly expressed in the title, § 45, Constitution of 1901, and (2) that said act denies to appellees the equal protection of the law under the state and federal constitutions.
The title of the act is as follows: "To provide for the alteration or rearrangement of the boundary lines of the City of Birmingham in Jefferson County, Alabama, so as to include within the corporate limits of said City of Birmingham the territory in said county now within the corporate limits of said City of Birmingham and the territory or territories in said county now within the corporate limits of the cities of Homewood, Mountain Brook, Tarrant City and Fairfield and the territory in said county now within the corporate limits of the town or city of Irondale and territory in said county now without the corporate limits of any city or town; and to provide for elections as a part of the provisions for such alteration or rearrangement." [Italics supplied.]
The basis of the first contention is that the several segments of territory mentioned in the title of said act constitute a separate subject and render the title dupplicitous. We are of opinion that this contention is without merit.
The comprehensive subject expressed in the title is "To provide for the alteration or rearrangement of the boundary lines of the City of Birmingham, in Jefferson County, Alabama, so as to include within the corporate limits of said City of Birmingham the territory in said county now within the corporate limits of said City of Birmingham and the territory or territories in said county" now within the municipalities mentioned in said title and the unincorporated territory described in section 15 of said act, to provide for elections as a part of the scheme and purpose to alter or rearrange said boundary lines. As thus expressed the subject of the act is single in scope and purpose and when considered in connection with the body of the act is clearly expressed, as required by § 45 of the Constitution. Johnson v. Robinson, 238 Ala. 568, 192 So. 412. It has long since been settled by this court in upholding the greater Birmingham Act that it is within the legislative competence to enact such law although it may disincorporate other municipalities within the embraced territory. City of Ensley v. Simpson, 166 Ala. 366, 52 So. 61; State ex rel. Brooks v. Gullatt, 210 Ala. 452, 98 So. 373, 376.
In the last cited case the court observed: "The Legislature is supreme except when restrained by the Constitution. The consolidation or annexation, as previously noted, provided for by the general law, is dependent upon the will of a majority of the voters; but we find nothing in the Constitution which prohibits the Legislature, in the exercise of its sovereign power, from consolidating two contiguous cities or annexing territory contiguous to any city, if in the exercise of its judgment and discretion the best interest of the state or the community will be subserved thereby, and this without regard to the will of the majority." *758 See also Meriwether v. Garrett, 102 U.S. 472, 26 L. Ed. 197.
In Johnson v. Robinson, 238 Ala. 568, 192 So. 412, 415 it was held that, "The language of the Constitution, `Each law shall contain but one subject, which shall be clearly expressed in its title,' contemplates that in its application the court must not only look at the title but must consider the body of `Each law' in ascertaining the subject thereof; and if `the title and the body of the act, construed together, show a single purpose, and relate to a single subject,' and the grant of power is germane to that subject, such act does not offend the Constitution. Judson v. City of Bessemer, 87 Ala. 240, 6 So. 267, 4 L.R.A. 742."
Another contention made is that the italicized statement in the title is too indefinite as to what unincorporated territory is to be dealt with in the act, and, hence said title does not clearly express the purpose of the act. This contention is answered fully by the cited decisions that the court may look to the body of the act. Section 1 of the act provides, "`the unincorporated territory' shall mean that portion of the area described by metes and bounds in Section 15 hereof which is not comprised within the present corporate limits of said City of Birmingham." Section 15 describes the unincorporated territory by courses, distances, metes and bounds as evidenced by the government survey.
The contention that the act providing for the inclusion of said six separate segments of territory within the boundary of the city and providing for separate elections with respect to each, renders the title duplicitous and impinges the provisions of section 45 of the Constitution, is clearly without merit.
In Johnson v. Robinson, 238 Ala. 568, 192 So. 412, 414, the rule was stated by the court as follows: "No better statement of the purpose and scope of the quoted provision of the Constitution can be found in the books, than those embodied in the opinion of this court in the case of Ballentyne v. Wickersham, 75 Ala. 533; and Lindsay v. United States Savings & Loan Association et al., 120 Ala. 156, 172, 24 So. 171, 176, 42 L.R.A. 783. To restate them in full here would be but useless repetition. We think it not out of place, however, to repeat the observation that `its requirements are not to be exactingly enforced, or in such manner as to cripple legislation.' Ballentyne v. Wickersham, supra. So, also, `The constitution does not contemplate a multiplicity of titles; it contemplates but one title, and leaves the form which may be given it to legislative discretion. It may be expressed in general words, or it may be a brief statement of the subject, or it may be an index to, or an abstract of, the contents of the act. The constitution is satisfied if the act has but one general subject, and that is fairly indicated by the title'. Lindsay v. United States Savings & Loan Association et al., supra."
The further observation made in that case is also applicable here, "To follow appellants' (we substitute appellees') contention to its ultimate conclusion would be a highly technical and exacting application and enforcement of the constitutional provisions, contrary to the canons of constitutional interpretation as settled by our decisions, and such interpretation would tend to hamper and cripple legislation", and would prohibit any such legislation as here proposed, and such as was had in City of Ensley v. Simpson, 166 Ala. 366, 52 So. 61.
The contention of appellee that the act delegates legislative power to the electorate is clearly without merit. The legislature had the power to alter or rearrange the corporate limits of the city so as to include each and all said territories without consulting the electorate. The effect of the election was merely to fix the event upon which the act operated to rearrange and change the boundary lines of the city and the extent thereof. This does not violate any common law right of the electorate in any part of the territory. State ex rel. Brooks v. Gullatt, supra; Hunter v. City of Pittsburgh, 207 U.S. 161, 28 S. Ct. 40, 52 L. Ed. 151.
Subsection (29) of Section 104 of the Constitution lays no restraint on the power of the legislature to enact statutes altering or rearranging the boundary lines *759 of municipal corporations. State ex rel. Sigsbee v. City of Birmingham, 160 Ala. 196, 48 So. 843. Nor does the act impinge the provisions of § 105 of the Constitution. State ex rel. Brooks v. Gullatt, supra.
Nor does the fact that the said act provided that the combined majority vote of the electorate of the territory constituting the City of Birmingham and the electorate of the unincorporated territory was necessary to the inclusion of said unincorporated territory within the corporate limits of the City of Birmingham violate the equal protection clause of the state or federal constitutions. Nor does the fact that the act provided for a different result as to the several segments incorporated in the several municipal corporations embraced within the scheme violate the equal protection clauses of the constitution. Hunter v. City of Pittsburgh, 207 U.S. 161, 28 S. Ct. 40, 52 L. Ed. 151; City of Ensley v. Simpson, 166 Ala. 366, 52 So. 61.
In Hunter v. City of Pittsburgh, supra, the Supreme Court of the United States observed:
"* * * Municipal corporations are political subdivisions of the state, created as convenient agencies for exercising such of the governmental powers of the state as may be intrusted to them. For the purpose of executing these powers properly and efficiently they usually are given the power to acquire, hold, and manage personal and real property. The number, nature, and duration of the powers conferred upon these corporations and the territory over which they shall be exercised rests in the absolute discretion of the state. Neither their charters, nor any law conferring governmental powers, or vesting in them property to be used for governmental purposes, or authorizing them to hold or manage such property, or exempting them from taxation upon it, constitutes a contract with the state within the meaning of the Federal Constitution. The state, therefore, at its pleasure, may modify or withdraw all such powers, may take without compensation such property, hold it itself, or vest it in other agencies, expand or contract the territorial area, unite the whole or a part of it with another municipality, repeal the charter and destroy the corporation. All this may be done, conditionally or unconditionally, with or without the consent of the citizens, or even against their protest. In all these respects the state is supreme, and its legislative body, conforming its action to the state Constitution, may do as it will, unrestrained by any provision of the Constitution of the United States. Although the inhabitants and property owners may, by such changes, suffer inconvenience, and their property may be lessened in value by the burden of increased taxation, or for any other reason, they have no right, by contract or otherwise, in the unaltered or continued existence of the corporation or its powers, and there is nothing in the Federal Constitution which protects them from these injurious consequences. The power is in the state, and those who legislate for the state are alone responsible for any unjust or oppressive exercise of it." [207 U.S. 161, 28 S. Ct. 46.]
To the same effect as the above is the holding of this court in City of Ensley v. Simpson, supra, 166 Ala. at page 377, 52 So. 61.
We are of the opinion that the contention of the appellees that the act was rendered nocuous to § 106 of the Constitution by the fact that the bill as published authorized the election 20 days after its approval and in the course of the legislation this provision as to date of holding the election was changed to 40 days, is without merit. Said change was merely a detail which the legislature had the right to make without offending said section of the constitution. Opinion of the Justices, 249 Ala. 509, 31 So. 2d 717; Gray v. Johnson, 235 Ala. 405, 179 So. 221.
We are also of opinion that the contention that the ballot used in the election in respect to the unincorporated territory was void is also without merit. It follows strictly the provisions of the Act. Acts 1949, Regular Session, pp. 472-484.
We, therefore, hold that the circuit court erred in declaring said act unconstitutional and the decree of said court should be reversed and one here rendered declaring the *760 act valid and that the effect of the election held under said act was to reject the inclusion of all the segments of territory referred to in the act, except the unincorporated territory described in section 15 of said act. The decree is, therefore, reversed and one here rendered declaring all of said territory within the corporate limits of the City of Birmingham and said unincorporated territory described in section 15, as a result of the election in respect thereto, was included and is a part of the territory within the City of Birmingham and said city and its officers have full jurisdiction over said territory in the maintenance of the local government of said city.
Reversed and rendered.
LIVINGSTON, LAWSON and SIMPSON, JJ., concur. | November 16, 1950 |
b6c21fbd-c9b6-4ae8-b820-cac785698fe3 | Butler v. Butler | 48 So. 2d 318 | N/A | Alabama | Alabama Supreme Court | 48 So. 2d 318 (1950)
BUTLER
v.
BUTLER.
2 Div. 278.
Supreme Court of Alabama.
October 26, 1950.
Thos. Seay, of Marion, for appellant.
Sheldon Fitts, of Marion, for appellee.
*319 STAKELY, Justice.
Sam Butler filed suit for divorce from Marie Butler on the ground of voluntary abandonment. Marie Butler denied the abandonment and in a cross-bill alleged adultery on the part of Sam Butler and sought a divorce from him. She also prayed for the custody of her three minor children and an allowance for their support and maintenance, alleging Sam Butler to be their father. She also prayed for an allowance for counsel fees. Sam Butler filed an answer to the cross-bill denying its allegations, including the allegation that he was the father of the three minor children. The case was tried orally before the court with the result that a decree was entered by the court refusing to grant the complainant a divorce and dismissing his bill and also refusing to grant the cross-complainant a divorce and dismissing her cross-bill.
The evidence has received our careful consideration. No good purpose will be served by setting it out in detail. The following is sufficient to give an understanding of the case. Sam Butler and Marie Butler were married in 1915. Tendencies of the evidence show that in about 1924 Marie Butler voluntarily left Sam Butler and never lived with him again in his home. Tendencies of the evidence show that he committed adultery, living in the same house with one woman and having intercourse with others. It is settled that in a suit for divorce when both parties prove a ground for divorce the court will not grant a divorce to either. Lyall v. Lyall, 250 Ala. 635, 35 So. 2d 550; Stabile v. Stabile, 203 Ala. 635, 84 So. 801; Stephens v. Stephens, 233 Ala. 178, 170 So. 767; Ribet v. Ribet, 39 Ala. 348.
It was claimed by Marie Butler that she had had twelve children by Sam Butler. She testified that six were dead and that her three youngest living children were by him. She conceded that she had not lived with him in his home since she left him in 1924 but testified that he had had access to her in her home during this period. The three minors who live with their mother were born respectively in 1931, 1933 and 1936. Sam Butler denied that he had had intercourse with her since she left him and that he is the father of the three minor children. The proof shows that during this period she had made no claim on him with reference to the minor children and had lived apart from him of her own free will and accord. The evidence further showed that during this period he lived openly in his own house with another woman.
It is without dispute that the children were born during the wedlock of Marie Butler and Sam Butler. This accordingly raises a presumption of legitimacy. This presumption however is not conclusive. Bullock v. Knox, 96 Ala. 195, 11 So. 339. The children are not before the court. So we will not consider further the status of the children with respect to their legitimacy.
Under § 35, Title 34, Code of 1940, the Court can award the custody of the children and decree an allowance for their support, when a divorce is granted. Marsh v. Marsh, 250 Ala. 31, 33 So. 2d 1. Under § 79, Title 34, Code of 1940, the court can grant such relief in all cases of voluntary separation but this section applies only to separations that are voluntary on the part of both husband and wife. Arnold v. Arnold, 246 Ala. 86, 18 So. 2d 730. Under § 79, Title 34, Code of 1940 there must be a voluntary separation and where there is a voluntary abandonment, there is not a voluntary separation. Bryan v. Bryan, 34 Ala. 516. But even if the foregoing sections of the code are not applicable to this case, this court has held that whenever the welfare of the children is concerned and the jurisdiction of the court is invoked, the court has an inherent power to enter a decree for their custody and support. Scott v. Scott, 247 Ala. 598, 25 So. 2d 673. The jurisdiction of the court was invoked in this case by the allegation that "the respondent, their mother, is a proper person to have custody and control of said minor children and she desires custody of said children."
An allowance to the mother for the support and maintenance of the minor children is not necessarily obligatory but *320 rests in the sound discretion of the court and is to be determined from all the facts and circumstances in the case. 17 Am.Jur. p. 532. When all the facts and circumstances in this case are considered, including the fact that for 26 years Marie Butler has lived separate and apart from Sam Butler of her own free will and accord and during this time, until this suit was instituted, has made no claim on him for the support of the children, we think them sufficient to justify the court in refusing to make an allowance for the support of the children.
The advantage which a trial court has in seeing the witnesses before it and appraising their testimony has often been pointed out. Since we are not willing to say that the decree of the court is palpably wrong, it will not be disturbed. Reach v. Reach, 249 Ala. 102, 29 So. 2d 676; Sills v. Sills, 246 Ala. 165, 19 So. 2d 521.
Affirmed.
FOSTER, LIVINGSTON and SIMPSON, JJ., concur.
BROWN and LAWSON, JJ., concur in the result. | October 26, 1950 |
7238dd25-8aee-49c6-8901-a9441153893a | Smith v. Smith | 48 So. 2d 546 | N/A | Alabama | Alabama Supreme Court | 48 So. 2d 546 (1950)
SMITH
v.
SMITH.
5 Div. 487.
Supreme Court of Alabama.
October 26, 1950.
*547 L. J. Tyner, of Opelika, and Martin, Turner & McWhorter and J. C. Blakey, of Birmingham, for appellant.
Glenn & Glenn and Walker & Walker, of Opelika, for appellee.
STAKELY, Justice.
On December 9, 1948 Jesse W. Smith, Jr. (appellee), a man approximately 50 years of age and who is the only child of Jesse W. Smith, Sr. (appellant), filed in the Probate Court of Lee County, Alabama, a petition of inquisition seeking to have his father declared to be of unsound mind. The case came on for hearing before a six man jury on the petition of appellee and appellant's answer denying each and every allegation of the petition. At the conclusion of the evidence the jury rendered a verdict finding the allegations of the petition true and that appellant was of unsound mind. Pursuant to such verdict the court on January 21, 1949 entered a judgment finding appellant to be of unsound mind. On January 25, 1949 Sam Morgan, a disinterested person, was appointed guardian of the estate of appellant, the appellee having waived his right as next of kin to such appointment. The appellant's motion for a new trial was overruled and the appellant prosecutes this appeal.
The case is submitted in this court not only on the merits but on the appellee's motion to dismiss the appeal. The motion is based on the theory that the appeal was not taken in the name of Jesse W. Smith, Sr., by next friend or general guardian as provided by § 786, Title 7, Code of 1940, and because the record does not show that the appeal was in fact taken by appellant as provided by § 792, Title 7, Code of 1940.
The record shows that a bond for costs of appeal was filed containing recitals that judgment was rendered adjudging Jesse W. Smith, Sr. to be a person of unsound mind, that judgment was rendered overruling the motion for a new trial filed by the respondent Jesse W. Smith, Sr. and that Jesse W. Smith, Sr. has taken an appeal to the Supreme Court of Alabama from both of the aforesaid judgments. The bond was executed by L. J. Tyner, attorney for Jesse W. Smith, Sr., principal, and by two persons as sureties. This bond was taken and approved by the Judge of Probate.
It is vigorously contended that § 786, Title 7, Code of 1940 provides the exclusive method by which an appeal can be taken to this court in a proceeding of the kind now under consideration. Of course an appeal is statutory and no appeal lies unless provided by statute, State v. Seminole Bottling Co., 235 Ala. 217, 178 So. 237, but we do not think that the motion to dismiss the appeal is well taken. There is no requirement in § 786, Title 7, Code of 1940 that the appeal in a case of this kind must be taken by the next friend or general guardian or guardian ad litem. This section merely provides that such a representative may take an appeal.
In § 11, Title 21, Code of 1940, it is contemplated that the alleged non compos mentis may be represented by counsel. It is only when such person is not represented by counsel that the court is obligated under the statute to appoint a guardian ad litem to represent and defend such person. It is obvious that it is the duty of counsel to represent and protect the interests of the person alleged to be of unsound mind, just as if counsel was a guardian ad litem. When this statute is taken in connection with § 782, Title 7, Code of 1940, it is clear to us that the appeal, as was done in the present case, may be taken by counsel on behalf of the respondent by giving security for the costs of the appeal to be approved as provided in the statute. This section provides that the appeal be taken by the appellant or "some one for him". As pointed out this is what the respondent did in the present instance.
Furthermore the appeal here is for the purpose of reviewing the validity or legality of the judgment adjudging the respondent to be of unsound mind. Ordinarily it is true that one adjudged a non compos mentis can only act through a recognized representative but this is not the case where the very object of the action is to determine whether the person alleged to be of unsound mind is in fact a person of unsound mind. Shapter v. Pillar, 28 Colo. 209, 63 P. 302.
The motion to dismiss the appeal must be overruled.
I. The appellant urges with great earnestness that the trial court was in error in overruling the motion for a new trial because the verdict of the jury was contrary to the great weight of the evidence. Where there is evidence which if believed justifies the verdict, a motion for a new trial is properly overruled. Johnson v. Louisville & Nashville R. R. Co., 240 Ala. 219, 198 So. 350; Kurn v. Counts, 247 Ala. 129, 22 So. 2d 725. Verdicts are presumed to be correct and no ground of new trial is more carefully scrutinized or more rigidly limited, than that the verdict is against the evidence. Cobb v. Malone, 92 Ala. 630, 9 So. 738. It is recognized by this court that when the presiding judge refuses, as here, to grant a new trial, the presumption in favor of the correctness of the verdict is strengthened. Bell v. Nichols, 245 Ala. 274, 16 So. 2d 799; Southern Railway Co. v. Kirsch, 150 Ala. 659, 43 So. 796.
It is well to keep in mind that there was no burden upon the appellee to show in the court below that the appellant was a lunatic or an idiot as those terms are *549 ordinarily accepted. As early as 1870 the Supreme Court of Alabama following the text of Story on Eq., § 1365, announced the following rule applicable to this case.
"The commission (of lunacy) is not confined to idiots or lunatics, strictly so-called; but in modern times it is extended to all persons who, from age, infirmity, or other misfortune, are incapable of managing their own affairs, and therefore are properly deemed of unsound mind, or non compos mentis." Fore v. Fore, 44 Ala. 478.
The test of incompetency has been well stated as follows: "It is sufficient if, for any cause, his mental faculties have become so impaired as to make him incapable of protecting himself or properly managing his property or affairs, and where, by reason thereof, he would be liable to be deceived or imposed on by artful or designing persons." 44 C.J.S., Insane Persons, § 11, pp. 64-65.
Of course it should never be forgotten that the right to control one's property is a sacred right which should not be taken away without urgent reason. In re Mills, 250 Wis. 401, 27 N.W.2d 375.
There was much evidence introduced on both sides of the case. It would serve no good purpose to attempt to set it all out here in detail. For purposes of this discussion evidence favorable to the petitioner may be summarized as follows. The appellant Jesse W. Smith, Sr. is 77 years of age and has for many years resided in Opelika, Alabama. His wife had been dead for about three years. He had been a shrewd business man and had accumulated an estate in cash, government bonds and real estate worth approximately $100,000. He owned and for many years operated a hotel in Opelika known as the Park Hotel. He has only one child, a son Jesse W. Smith, Jr., the appellee, who has a wife and two children, a daughter about 21 years of age and a son 7 years of age. This granddaughter is married and has two small children. The wife of appellant's son worked at the hotel for about 15 years without pay until about two years before this suit was instituted. The appellant deeded to her a home in Opelika worth about $10,000 and gave his son money on various occasions aggregating $1750.00.
Tendencies of the evidence show that the appellant's accumulation of property was considerably due to his wife's constant, unpaid, heavy work at the hotel for many years. Tendencies of evidence further showed that she died from causes brought on by malnutrition. Tendencies of evidence further showed that the appellant showed moral and mental deterioration. He became enamored of a certain woman and his conduct was such that his wife was afraid he was going to kill her. Without cause he demanded a divorce from his wife. He then took up with another woman who lived in Opelika. He told his wife that he wanted her to get out and let him marry this woman and that he wanted to give her all the proeprty. His wife, although a sick woman, refused to do this, saying that she had helped him to make what he had and that she was not going to get out and let another woman have it.
During the last illness of his wife he insisted that he and she live in the cafe part of the hotel, a large room 25 feet by 60 feet with a showcase window therein. The cafe at that time was not being operated. His wife was compelled to occupy a single narrow cot with appellant, although there were approximately 15 furished, unoccupied bedrooms in the hotel, at least one of which was on the first floor, which had been previously occupied by appellant and his wife for about 20 years. Although he was a man of considerable means and although both he and his wife were quite sick, he did what cooking was done, ordering a few outside meals, but living chiefly on sandwiches, crackers and canned goods. Numerous friends visited appellant and his wife during this period, interested themselves in their behalf and got word of their condition to appellant's son, the appellee, who was at this time doing war work in Key West, Florida in the Navy Yard. These persons testified that the appellant was a man of unsound mind.
*550 When he received word of the condition of his parents, the appellee returned to Opelika and carried them to his home in Key West where both recovered strength. On this trip, however, the appellant suffered a cerebral hemorrhage due to arteriosclerosis, so that there was an impediment in his speech which tendencies of evidence showed had some effect on his mentality. The appellant insisted upon returning to Opelika where he had no one to look after him. His wife soon followed and died thereafter in about April or May 1946 in an insane asylum.
In order to look after his father, the appellee gave up his position in Key West and returned to Opelika. In May 1947 the appellant leased to his son for four years the hotel, reserving three rooms on the first floor at the rear of the hotel as his own apartment. The son spent considerable money renovating the cafe and hotel and opened the same for business. Appellant captiously refused to turn over to his son all of the leased premises, making the operation of the hotel unprofitable. Throughout this portion of appellant's life, tendencies of evidence showed that the appellant was drinking whiskey to great excess which the doctor did not consider it wise to reduce on account of his condition. On a certain Sunday appellant insisted on drinking his son's beer in the cafe (the cafe being closed for business), when he should have known that to do so would jeopardize his son's license. The son was unable to explain this to his father and it was necessary to remove him from the cafe.
At about this time the appellant began to stay a great deal of his time at the Midway Tavern, operated by Mr. Bob Wells. He called his daughter-in-law Mrs. Jesse W. Smith, Jr., to come out to see him and there he presented Mrs. Wells (a married woman) to his daughter-in-law saying: "Don't you think that she is pretty? This is just my type and this is my Sugar. I am going to live out here with my Sugar." His mental condition continued to deteriorate and the last time his daughter-in-law visited him there he did not recognize her or her companions. From that time on he would never go to the home of his son and daughter-in-law, although they asked him to do so.
About November, 1948, he told appellee and appellee's wife that he had given Mrs. Bob Wells $18,000 in bonds. The appellee offered in evidence a bank book showing that on October 15, 1947, the sum of $18,235.00 was deposited in the bank to the credit of Mrs. Martha Charles Wells (Mrs. Bob Wells). The evidence tended to show that this money was the proceeds of U. S. Bonds that the appellant had given to Mrs. Wells. This money was drawn out of the bank by Mrs. Wells when the present suit was started.
J. Z. Fuller, President of the Farmers National Bank of Opelika, testified that in July, 1948, appellant asked the witness to write the Federal Reserve Bank or the U. S. Treasurer to find out what bonds had been issued to him and cashed. The appellant told Fuller that he had had about $25,000 worth of bonds. It appeared from this conversation that appellant did not know what had become of his bonds and wanted them traced. On a previous inquiry by the appellant of this banker, Mrs. Wells had told appellant in the presence of Mr. Fuller that the bonds were cashed at Tuskegee. Tendencies of evidence show that appellant had had 35 U. S. Bonds in the principal sum of $1,000 each and about $8,000 in $1,000 bills. Tendencies of evidence showed that appellant had disposed of all of these bonds and bills and did not know what had become of them, except as to the $18,000 which Mrs. Wells had received, as shown by the bank records. Mrs. Wells did not testify in the case. Tendencies of the evidence further showed that the appellant had given Mrs. Wells a new automobile worth about $3,000, his Haviland china and his silver consisting of 156 pieces. He did not remember what else he had given her. Although he complained to the witness Fuller and to doctors who examined him that others had gotten his bonds without his knowledge, he testified at the trial that he "still had lots of bonds."
On December 3, 1948 the appellant placed a notice in the Opelika Daily News, an afternoon newspaper, that all of his "real *551 estate was for sale." After this notice appeared, the appellee filed the petition in the present case, alleging that because of mental and physical senility and incompetence, his 77 year old father was incapable of governing himself and of conducting and managing his affairs.
A considerable number of lay witnesses testified that the respondent was a person of unsound mind. Dr. B. S. Bruce, a general practitioner, also so testified. About an equal number of lay witnesses gave their opinion that the respondent was of sound mind. Tendencies of the evidence showed that the appellant was well cared for by Mrs. Wells and her husband at the Midway Tavern. In addition to these witnesses, there was introduced in evidence on behalf of respondent the testimony of several physicians who were specialists in mental and nervous diseases. All of these specialists gave it as their opinion that the respondent was of sound mind.
It is very earnestly insisted that the great weight of the evidence was against the verdict of the jury not only because the evidence of insanity was of a nebulous and uncertain character, but especially because of the testimony of the specialists. It is, of course, true that where the evidence of specialists is in conflict with the testimony of lay witnesses on the issue of insanity, the court is prone to accord more weight to the testimony of the specialists than to the testimony of nonexpert witnesses. Box v. Box, 253 Ala. 297, 45 So. 2d 157. But the rule to which we have referred is not an inflexible rule. The opinions of expert witnesses as to insanity are not conclusive on the jury, but are to be weighed like other evidence and the jury may reject all expert testimony, though it is without conflict. Hockenberry v. State, 246 Ala. 369, 20 So. 2d 533; George v. State, 240 Ala. 632, 200 So. 602. The jury may treat the testimony of experts as it deems best in connection with the facts and circumstances of the case. Metropolitan Life Ins. Co. v. Chambers, 226 Ala. 192, 146 So. 524; Atlantic Coast Line R. Co. v. Jackson, 225 Ala. 652, 144 So. 813. In other words the judgments of experts or the inferences of skilled witnesses even when unanimous and uncontroverted are not necessarily conclusive on the jury. Commonwealth Life Ins. Co. v. Harmon, 228 Ala. 377, 153 So. 755.
In addition to the various witnesses the respondent testified in the case. The jury saw and heard him.
We have considered the evidence with great care and we have concluded that it was for the jury to say whether the evidence reasonably satisfied them that the respondent was of unsound mind within the definition which we have laid down. It may be added that the court in its oral charge to the jury gave the definition of insanity which we have approved. Not only was there no exception to the oral charge but counsel for the respondent announced in open court satisfaction with the charge.
Upon a careful consideration, we are not willing to say that the preponderance of the evidence against the verdict is so decided as to clearly convince us that it is wrong and unjust. Under all the circumstances, we do not feel authorized to reverse the judgment of the trial court in refusing a new trial. Bell v. Nichols, 245 Ala. 274, 16 So. 2d 799.
II. The present case was tried before a six man jury as provided in the Act to amend § 12, Title 21, Code of 1940, as it appears in the General Acts of 1945, p. 704. Code of 1940, Tit. 21, § 12, Pocket Part. It is contended that the amendment providing for a jury of six men in an insanity inquisition is unconstitutional in that it is in conflict with § 11 of the Constitution of 1901, which provides that "the right of trial by jury shall remain inviolate." The appellant went to trial before the jury of six men without making any objection that he was not satisfied with the jury or that he demanded a jury of twelve men. But pretermitting questions of waiver, which are insisted upon by the appellee, we think that the appellant has not been deprived of any constitutional rights. It is true that the statute providing for a trial by a jury of twelve men in inquisition proceedings was in effect at the time of the adoption of the Constitution *552 of 1901 and the jury contemplated by § 11 of the Constitution of 1901 is a common law jury of twelve men, Kirk v. State, 247 Ala. 43, 22 So. 2d 431, but while inquisition of lunacy under the statute partakes of the nature of a civil action, it is a proceeding sui generis. Sorter v. Austen, 221 Ala. 481, 129 So. 51.
In other words under modern practice, the property rights of the adjudged incompetent are not affected by an adjudication of insanity. 28 Am.Jur. § 17, p. 666. On the contrary, as heretofore pointed out, the very purpose of the inquisition proceeding is ultimately to appoint a guardian to preserve the property of the incompetent. § 9, Title 21, Code of 1940. "It is not a case in which he is adjudged at fault, or in default, and for which there is a forfeiture of liberty or property, but only a method by which the public discharges its duty to a citizen." State v. Linderholm, 84 Kan. 603, 114 P. 857.
While there appears to be some conflict in the authorities, in numerous jurisdictions the existence of the right of jury trial in proceedings to adjudicate insanity or incompetency is denied on the ground that no such right existed at common law, except in cases of escheats to the crown. Sharum v. Meriwether, 156 Ark. 331, 246 S.W. 501; Re Liggett, 187 Cal. 428, 202 P. 660; Re Shackleford, 188 Cal. 279, 204 P. 822; Re O'Connor, 29 Cal. App. 225, 155 P. 115; Re Bundy, 44 Cal. App. 466, 186 P. 811; Ex parte Scudamore, 55 Fla. 211, 46 So. 279; Re Dowdell, 169 Mass. 387, 47 N.E. 1033, 61 Am.St.Rep. 290; Groves v. Ware, 182 N.C. 553, 109 S.E. 568; Hagany v. Cohnen, 7 Ohio Dec. Reprint 88; Id., 29 Ohio St. 82; State v. Linderholm, 84 Kan. 603, 114 P. 857; Ex parte Dagley, 35 Okl. 180, 128 P. 699, 44 L.R.A.,N.S., 389; Ex parte Linke, 35 Okl. 192, 128 P. 702; Re Idleman, 146 Or. 13, 27 P.2d 305; Gaston v. Babcock, 6 Wis. 503; Crocker v. State, 60 Wis. 553, 19 N.W. 435. In Re O'Connor, supra, is a statement which perhaps explains the basis for the opinion that the right to a jury trial in a proceeding of this kind did not exist at common law. 91 A.L.R. p. 89.
In Ex parte Thompson, 228 Ala. 113, 152 So. 229, 231, an attorney was disbarred from the practice of law on trial before the Board of Commissioners of the State Bar without trial by jury. In its opinion this court pointed out that, "A provision for jury trial in disbarment proceedings has been brought forward in every Code of this state, certainly down to 1923."
It was insisted on behalf of petitioner that the right of trial by jury as provided by § 11 of the Constitution of 1901 extended not only to all cases in which the prerogative existed at common law but to all cases where this right was secured by statute at the time the constitution was adopted. This court made an elaborate analysis of the decisions of courts of other states and said:
"In considering this question, the nature of the proceedings, as well as the nature of the action, must be borne in mind. The action for disbarment of an attorney is neither, strictly speaking, a civil action, nor is it a criminal one. It is sui generis in nature. The purpose of the proceedings is not for recovery of property or damages, on the one hand, nor is it designed for punishment on the other. Its whole object is to purge the bar of a member who, it is supposed, has, since his admission, become unfit to longer remain a member of the bar.
"This brings us down to a review of the conclusion reached on this point by our sister state Mississippi. Mississippi and Alabama, as heretofore pointed out, were created out of what was known as Mississippi territory, Mississippi in 1817 and Alabama in 1819. The Territorial Act of 1807, providing for jury trial of attorneys charged with malpractice, was in force for ten years in this territory before Mississippi was admitted into the Union. Upon investigation, we find that the present statute law of Mississippi does not provide for a trial by jury of an accused attorney. We further find that, in the case of Ex parte Cashin, 128 Miss. 224, 90 So. 850, 852, the attorney was disbarred by the court, without intervention of a jury. The *553 court in that case used this pertinent language on the subject of the right of the accused to a trial by jury: `The court has the power to protect itself against an unfit attorney, an officer of the court, * * *. The exercise of the power of the court in hearing and determining whether the attorney shall be disbarred is not in contravention of the constitutional right of trial by jury. * * *'
"The proceeding for the disbarment of an attorney, strictly speaking, is neither civil nor criminal. It is of a sui generis nature, on account of the relation of the attorney to the court. * * *
"In reaching our conclusions, we have not overlooked the case of Montgomery & Florida R. Co. v. McKenzie, 85 Ala. 546, 5 So. 322, nor the cases of Alford v. State, 170 Ala. 178, 54 So. 213, Ann.Cas. 1912C, 1093, State v. Bley, 162 Ala. 239, 50 So. 263, and Costello v. Feagin, Judge, 162 Ala. 191, 50 So. 134. Suffice it to say that the court, in those cases, was not dealing with the matter of disbarment, an inherent power of the court, and, a proceeding sui generis. Nothing stated in those cases could be held to affect the question here considered." Ex parte Thompson, supra [228 Ala. 113, 152 So. 232].
We feel that the reasoning used by this court in the Thompson case applies to the situation in the case at bar. In both situations the courts have traditionally had complete control of the situation unless restricted by statute. In such situations this court has recognized the right of the legislature to provide for an appropriate procedure. Neither is a situation in which a trial by jury was recognized at common law. If the legislature can provide for a board of commissioners of the organized bar of the state to hear disbarment cases, despite the fact that when the Constitution of 1901 was adopted a jury trial was provided by statute in disbarment proceedings, it can also provide for a jury of six men in insanity inquisitions despite the existence of a statute providing for a jury of twelve men when such constitution was adopted.
We think clearly that there has been no violation of § 11 of the Constitution of 1901.
Other assignments of error raise propositions which we have considered very carefully but which we feel require no discussion since we think them without merit.
We conclude that the judgment of the lower court must be affirmed.
Affirmed.
BROWN, FOSTER, LIVINGSTON, LAWSON and SIMPSON, JJ., concur. | October 26, 1950 |
e6036408-a56b-4f38-870d-6a45d0d0bcfd | Fricke v. City of Guntersville | 48 So. 2d 420 | N/A | Alabama | Alabama Supreme Court | 48 So. 2d 420 (1950)
FRICKE
v.
CITY OF GUNTERSVILLE.
8 Div. 550.
Supreme Court of Alabama.
October 26, 1950.
Marion F. Lusk, of Guntersville, for appellant.
Starnes & Starnes, of Guntersville, for appellee.
LAWSON, Justice.
This appeal involves a review of a decree of the circuit court of Marshall County, in equity, overruling exceptions to a report of the register made on reference and confirming the report.
In 1946 the City of Guntersville dug a drainage ditch along the eastern boundary of three lots owned by appellant in Block 41, according to the Richardson survey of the town of Guntersville. This ditch was a part of a drainage project constructed under the provisions of § 601, Title 37, Code 1940. The ditch was dug for the purpose of preventing surface waters which flowed across appellant's property in a southeasterly direction from reaching business property located to the east of appellant's property. *421 The ditch was dug in an alley which bounded appellant's property on the east, separating it from the aforementioned business property.
After the ditch was dug appellant's guardian, his mother, made complaint to the City authorities. The City installed tile and covered most of the ditch which was adjacent to two of the lots, but left uncovered all of the ditch which bounded lot number 5, the southernmost of the three lots, upon which the residence was situated. This uncovered ditch is three feet wide and three feet deep. Prior to the digging of the ditch the surface of lot number 5 and the alley were level. There is no driveway into lot number 5 from Obrig Avenue, on which the lot faces, and none can be constructed because of the width of the residence. The lot is only fifty feet wide.
The ditch was left open by the City authorities upon advice of competent engineers.
Upon complaint being made, the City authorities offered to construct a bridge or driveway so that appellant could have a means of ingress and egress to lot number 5 from the alley.
Appellant's guardian did not call upon the City to construct such a driveway. Instead, appellant, suing by his said guardian, filed his bill in the circuit court of Marshall County, in equity, seeking to require the City of Guntersville to fill or cover the drainage ditch and also prayed for general relief. The trial court rendered a decree refusing to require the City to fill or cover the ditch, but incorporated in the final decree the following provisions:
"However, the Court having obtained jurisdiction of the parties, in order that Equity may be done, is of the opinion that the Complainant is entitled to such damages as he may have sustained by the reason of the digging of this ditch in the manner set forth in the original Bill, and that the amount of said damages should be ascertained by competent proof.
"It is, therefore, Ordered, Adjudged, and Decreed by the Court that this cause be referred to the Register of the Circuit Court and that the Register hold a reference to ascertain the damage to Complainant's property by reason of the acts complained of in the original Bill, and report back to the Court his findings in the premises.
"Until the coming in of said report said cause is retained for such further orders as may be required.
"This 27th day of January, 1948."
Prior to the holding of a reference the complainant appealed to this court from the decree refusing to require the City to cover or fill in the ditch. We affirmed. Fricke v. City of Guntersville, 251 Ala. 63, 36 So. 2d 321. The writer of this opinion wrote the opinion for the court on first appeal and made certain mistakes as to description which are herein corrected, though such mistakes did not affect the conclusion reached, nor do they have any bearing on the questions presented on this appeal. In the second paragraph of the opinion on the first appeal it is stated that Block 41 is bounded on the west by Dunlap Avenue. That is incorrect. Dunlap Avenue bounds the said block on the east. The word "northeastern" where it appears in the first sentence of the fourth paragraph of the opinion should have read "northwestern."
A municipal corporation is liable for damages to a property owner whose property is injured as a result of the construction of such a drainage project. § 601, Title 37, Code 1940; § 235, Constitution 1901. The burden is on the property owner to show damage and the amount thereof. Smith v. Town of New Decatur, 166 Ala. 334, 51 So. 984. The measure of recovery is the difference in the market value of the property before and after the work done. Town of Eutaw v. Botnick, 150 Ala. 429, 43 So. 739; Smith v. Town of New Decatur, supra.
After affirmance by this court, a reference was held in accordance with the provisions of the decree of January 27, 1948, heretofore set out.
A number of witnesses were examined orally before the register. The register reported that the complainant was not entitled *422 to any damages. Complainant filed exceptions to the report. The trial court overruled the exceptions and rendered decree confirming the report of the register. It is from that decree that the present appeal is taken.
We cannot agree with the insistence of counsel for appellant that the trial court in the decree of January 27, 1948, found that complainant was entitled to damages and that the reference was ordered for the sole purpose of ascertaining the extent of such damage. It is clear that the trial court did not place such a construction on that decree and we do not think it is subject to such construction. In fact, no evidence was taken prior to the rendition of that decree bearing on the question of damages.
Complainant examined six witnesses before the register, all of whom were shown to have been familiar with the property, that is, lot 5, prior to and after the ditch was dug. They testified that the lot was worth from $500 to $1,000 less after the ditch was dug than before because of loss of access from the alley, it being impossible to build an adequate driveway into the property from Obrig Avenue, on which the lot faced.
Three witnesses were called by the respondent, City of Guntersville. Two of them were property owners on the east side of Block 41, where they conducted businesses. Both of them testified that the digging of the ditch had been very beneficial to their property. One of them, Mr. McCain, gave no expression as to the effect of the open ditch on the value of complainant's lot number 5. He was not called upon to express an opinion. The other property owner in Block 41, Mr. Johnson, was not asked on direct as to his opinion of the effect of the ditch on the value of complainant's lot. His testimony on direct was merely to the effect that the drainage project had been beneficial to his property. On cross-examination his testimony is to the effect that the open ditch has damaged complainant's lot, but he expressed no opinion as to the amount of damage. It was stipulated that if Mrs. Eulalah Parkhill had been present, she would have testified for the City "substantially the same as Harvey D. Johnson and that she is a property owner on the East side of the Alley."
The only other witness called by the City was Mr. W. D. Newman, who had been President of the City Commission at the time the drainage project was constructed. In the main, his testimony goes to the benefits enjoyed by the business district from the construction and maintenance of the open ditch. However, he does make the statement that in his opinion the ditch has been an improvement to complainant's lot. But the probative value of this statement is materially weakened by this witness' retraction of his former testimony that the ditch drained surface water that had theretofore stood on complainant's lot.
It is well settled in this state that on an appeal from a decree confirming the report of the register on evidence given ore tenus before him, all reasonable presumptions will be indulged in favor of the register's decision upon questions of fact, and this court will not reverse a decree confirming said report unless clearly satisfied that the register's findings are palpably and plainly wrong. In such case, the register's decision upon the facts has the force and effect of a verdict of the jury, and a decree confirming it will not be reversed, unless the facts would require the trial court to grant a motion to set aside the verdict of the jury and to have a new trial. Pollard v. American Freehold Land Mortgage Co., 139 Ala. 183, 35 So. 767; Chancellor v. Teel et al., 141 Ala. 634, 37 So. 665; Bidwell v. Johnson, 195 Ala. 547, 70 So. 685; Smith v. Albert, 247 Ala. 520, 25 So. 2d 382; Campbell v. Campbell, 252 Ala. 487, 41 So. 2d 185.
But this presumption is not controlling here for the reason that our construction of the register's report is that his finding that appellant is not entitled to damages was based on his judgment of the law and not on his finding of the facts. Hale et al. v. Cox et al., 240 Ala. 622, 200 So. 772; O'Rear v. O'Rear, 227 Ala. 403, 150 So. 502.
But even if the register's report had been based on his findings from the evidence, *423 we would be constrained to reverse the decree of the trial court for the reason that under the evidence given before the register, we are clearly satisfied that his finding that appellant is not entitled to any damage is clearly wrong.
The trial court erred in overruling appellant's exceptions to the register's report and in confirming the report. The decree is reversed and the cause remanded for further proceedings.
Reversed and remanded.
BROWN, FOSTER, LIVINGSTON, SIMPSON and STAKELY, JJ., concur. | October 26, 1950 |
f3f881c7-32f7-4563-948e-6b8ed9f3dfaf | Knowles v. Canant | 51 So. 2d 355 | N/A | Alabama | Alabama Supreme Court | 51 So. 2d 355 (1951)
KNOWLES
v.
CANANT.
6 Div. 925.
Supreme Court of Alabama.
March 22, 1951.
*356 S. P. Keith, Jr., of Birmingham, for appellant.
Harris Burns, of Birmingham, for appellee.
LIVINGSTON, Chief Justice.
The original bill in this cause was filed by Clyde S. Knowles, as guardian for Laura Jean Knowles, a minor, against Mary M. Canant. In essence it was a bill to sell lands for a division of the proceeds of sale among alleged joint owners. The bill alleges that Laura Jean Knowles and Mary M. Canant each own an undivided one-half interest in the following described lands: "Lot 9 in Block 55 according to the survey of Birmingham-Ensley as recorded in Map Book 1, page 245, in the office of the Judge of Probate of Jefferson County, Alabama, situated in the City of Birmingham, Alabama, said property being otherwise described as house and premises located at 2801 29th Place, West, in the City of Birmingham, Jefferson County, Alabama."
No question is presented on this appeal as to the sufficiency of the original bill.
The respondent, Mary M. Canant, answered the bill and made her answer a cross-bill. The sufficiency of the cross-bill and certain aspects of it as tested by demurrer; the final decree of the court below, and the overruling of appellant's motion for a rehearing are the only questions presented for review.
The answer and cross-bill of Mary M. Canant alleges, in substance, the following facts. That she, Mary M. Canant, is now about eighty-five years of age and in failing health; that Laura Jean Knowles is her grandchild and is about fifteen years of age: that Laura Jean Knowles is the daughter of J. L. Knowles and the sister of Clyde S. Knowles, her guardian: that about August 1940, she, Mary M. Canant, offered to buy the property here involved from the Home Owners Loan Corporation for the sum of $2500.00: that she was unfamiliar with real estate transactions of the kind involved, and that J. L. Knowles, her son-in-law and Clyde S. Knowles, her grandson, offered to handle the transaction for her and to attend to the details of closing the trade: that she gave to them the sum of $250.00 to make the down payment to the Home Owners Loan Corporation for the property to be deeded to her, and that instead of having the deed made to her, the said J. L. Knowles and Clyde S. Knowles, with the intent to defraud her, took the deed in their own names, and executed to the Home Owners Loan Corporation a purchase money mortgage for $2250.-00: that several weeks later when the deed from the Home Owners Loan Corporation had been recorded it was sent to her and she discovered that the property had not been deeded to her, but, instead had been deeded to J. L. Knowles and Clyde S. Knowles: that she immediately told J. L. *357 Knowles and Clyde S. Knowles that the property must be deeded to her: that on February 14, 1941, J. L. Knowles and Clyde S. Knowles executed and recorded a deed conveying the property involved to her, Mary M. Canant, and Laura Jean Knowles jointly: that Laura Jean Knowles was named in the deed without her knowledge or consent, and that Laura Jean Knowles paid no consideration whatever for any interest in said property, but that she was named grantee in said deed through the fraud and deception of J. L. Knowles and Clyde S. Knowles: that she, Mary M. Canant, has made all payments made on the mortgage executed by J. L. Knowles and Clyde S. Knowles to the Home Owners Loan Corporation, and that the balance now due on said mortgage is about $1200.-00.
In so far as the questions presented on this appeal are concerned the cross-bill prays that the court will decree that the lands involved are impressed with a constructive trust in favor of cross-complainant, Mary M. Canant: that Laura Jean Knowles has no right, title or interest therein: that cross-complainant, Mary M. Canant, is the owner of said land in its entirety: and that the court will, if necessary, order the Register of the court to execute a deed conveying to cross-complainant all the right, title or interest in said real estate which may have been conveyed to Laura Jean Knowles.
Appellant's assignments of error from 1 to 4, inclusive, are based on the theory that the allegations of the cross-bill are not sufficient to show the existence of a constructive trust, and that as a consequence, the trial court erred in its decree overruling appellant's demurrer thereto.
A constructive trust, or, as it frequently is called, a trust ex maleficio or ex delicto, arises, as Mr. Pomeroy says, "Whenever the legal title to property, real or personal, has been obtained through actual fraud, misrepresentation, concealments, or through undue influence, duress, taking advantage of one's weakness or necessities, or through any other similar means or under any other similar circumstances which render it unconscientious for the holder of the legal title to retain and enjoy the beneficial interest, equity impresses a constructive trust on the property thus acquired in favor of the one who is truly and equitably entitled to the same, although he may never perhaps have had any legal estate therein; and a court of equity has jurisdiction to reach the property in the hands of the original wrong-doer or in the hands of a subsequent holder, until a purchaser of it in good faith and without notice acquires a higher right, and takes the property relieved of the trust." 2 Pom.Eq. §§ 1053, 1055; 1 Story eq. Juris. § 187; Manning v. Pippen, 86 Ala. 357, 5 So. 572; Moore v. Crawford, 130 U.S. 122, 9 S. Ct. 447, 32 L. Ed. 878.
The foregoing was again quoted approvingly in Edmondson v. Jones, 204 Ala. 133, 85 So. 799, and again in Bevels v. Hall, 246 Ala. 430, 21 So. 2d 325, see also, Sanford v. Hamner, 115 Ala. 406, 22 So. 117; Butler v. Watrous, 185 Ala. 130, 64 So. 346.
It is clear enough that the averments of the cross-bill bring it within the; application of the foregoing principles, and that J. L. Knowles and Clyde S. Knowles acquired and held the legal title to the house and lot purchased from the Home Owners Loan Corporation as constructive trustees for Mrs. Canant.
But it is argued that Laura Jean Knowles was not a party to that transaction, and had no knowledge of any unfair dealings on the part of J. L. Knowles and Clyde S. Knowles. But the cross-bill alleges, and the proof conclusively shows, that the deed to Laura Jean was without considerationa deed of gift.
There is another fundamental principle of great practical application in all those fields of law involving fiduciary relationships that equity will pursue property that is wrongfully converted by a fiduciary, or otherwise compel restitution to the beneficiary. As stated in 54 Am.Jur. § 248, pp. 190-191:
"The rule is actually one of trusts, since the wrongful conversion gives rise to a constructive trust which pursues the property, *358 its product, or proceeds in accordance with the rule. Hence, the rule well may be called `the trust pursuit rule' or `the rule of trust pursuit'. Under the rule a trust will follow property through all changes in its state and form, so long as such property, its product, or its proceeds are capable of identification. It will follow the property into the hands of a transferee other than a bona fide purchaser for value, or restitution will be enforced, at the election of a beneficiary, through recourse against the trustee or the transferee personally, or through compelling the transferee to perform the trust, except in so far as the transferee is protected as a bona fide purchaser for value. The trust pursuit rule applies where a constructive or a resulting trust, as well as where an express trust, has once affixed itself to property in a certain state or form.
"This rule of trust pursuit has been recognized and applied in courts of equity from a very early period. It has been grounded on the principle of property that ownership continues and can be asserted by the true owner as against any withholding of the object to which the ownership pertains, whether such object of ownership is found in the hands of an original holder or a transferee, or in a different form, so long as it can be identified. It has been observed that the rule is not to be grounded on the theory of a debt due and owing, or on the ground of compensation for loss of property. The rule and the necessity to apply it in proper cases are not affected or diminished by a statute providing that a resulting trust arises when a deed is made to one person on a consideration from another, or by a statute providing for a remedy by attachment or garnishment."
It can make no difference that Laura Jean did not know of the true relationship existing between J. L. Knowles, Clyde S. Knowles and Mrs. Canant. She was not a bona fide purchaser and cannot invoke protection as such.
It is also argued that the cross-bill shows on its face that the cause of action stated therein is barred by the statute of limitations of 1, 2, 3, 4, 5 and 6 years, and by laches. The cross-bill indicates that Mrs. Canant has been in possession of the property at all times since it was purchased from Home Owners Loan Corporation. But the point is unimportant here.
Our cases are clear to the effect that in a suit of this kind, the statute of limitations is ten years as in the nature of a suit for the recovery of land since land is the subject matter of the suit. McCoy v. Gentry, 73 Ala. 105; Miles v. Rhodes, 222 Ala. 208, 131 So. 633; Van Antwerp v. Van Antwerp, 242 Ala. 92, 5 So. 2d 73; Woods v. Sanders, 247 Ala. 492, 25 So. 2d 141. The cross-bill was filed within ten years after the cause of action stated therein accrued. It is also well understood that where a cross-bill is filed within the statutory period it is not subject to demurrer for laches unless the cross-bill shows the facts which constitute laches. Woodlawn Realty & Development Co. v. Hawkins, 186 Ala. 234, 65 So. 183; Phoenix Chair Co. v. Daniel, 228 Ala. 579, 581, 155 So. 363; Woods v. Sanders, supra.
The question of laches was fully discussed in Dunn v. Ponceler, 235 Ala. 269, 178 So. 40, 46, where it was said that "what will be regarded as a sufficient excuse depends upon the circumstance of the case". In other words, each case must be determined upon its particular facts and circumstances. We are clear to the conclusion that Mrs. Canant was not guilty of laches under all the circumstance disclosed by her cross-bill.
The cross-bill was not subject to any of the grounds of demurrer the overruling of which is assigned as error.
The cause was submitted in the court below on evidence taken ore tenus and the usual presumption prevails.
The evidence was in conflict, no good purpose could possibly be served to here set out and comment on its conflicting tendencies. Suffice it to say, that we have carefully examined the evidence and are not convinced at all that the decree of the trial court was palpably wrong.
*359 Nothing not already covered in the foregoing opinion was presented in the motion for a rehearing.
There is no error in the record and the cause is affirmed.
Affirmed.
BROWN, SIMPSON and STAKELY, JJ., concur. | March 22, 1951 |
dac3d735-45bd-45fc-a0dd-bc5f7a078b62 | Ex Parte Monroe County Bank | 49 So. 2d 161 | N/A | Alabama | Alabama Supreme Court | 49 So. 2d 161 (1950)
Ex parte MONROE COUNTY BANK.
I Div. 438.
Supreme Court of Alabama.
November 30, 1950.
*162 Barnett Bugg & Lee and R. L. Jones, of Monroeville, for petitioner.
Windell C. Owens, of Monroeville, and Nicholas S. Hare, of Monroeville, for respondent.
FOSTER, Justice.
The question here involved is whether an order of a judge of the circuit court, sitting in equity, should be vacated, which requires The Monroe County Bank to produce in court certain documents on November 7, 1950, at 9:00 A. M. This order was made in response to a motion made by the complainant in a suit in that court against James L. Minish for a divorce and the custody of the children, and in which complainant further sought to have set apart to her certain described property claimed by her as her separate estate, now in possession of respondent, and to make an allowance for her alimony and support of the children. It is alleged they own a home in which complainant resides, and he owns other real estate in Monroe County and is the owner or co-owner of a substantial business at Frisco City, known as Frisco Manufacturing Company, and has other business interests in Alabama and Mississippi, all of which was accumulated through her help and frugality; and further that complainant is the owner of certain stocks and bonds now wrongfully withheld by respondent, and that the furniture and fixtures located in the home are her separate property.
There has been no answer to the bill. The record shows no appearance by respondent, though counsel stated in argument that a demurrer has been filed. We get the sequence of events from the return of the judge to the rule nisi which we issued to set aside his order, referred to above, or show cause why he should not do so.
Complainant, after filing her bill of complaint, made application to perpetuate the testimony of J. B. Barnett, president of The Monroe County Bank, and other witnesses not named in the judge's answer. The register made and entered into the record an order for the examination of witnesses to perpetuate their testimony according to the terms of sections 491-505, Title 7, Code, of whom J. B. Barnett was one, and such examination was set for November 7, 1950 before the register. Prior to the hearing, complainant requested in writing that the register issue a subpoena duces tecum to The Monroe County Bank, which was issued and served on J. B. Barnett, president of The Monroe County Bank, directing it to appear and produce the documents.
*163 On October 12, 1950, the said bank filed an appearance in this proceeding by way of an answer or reply to the subpoena duces tecum. In it the bank objected to complying with the subpoena duces tecum because, (1) the papers and documents are not properly described; (2) the particular documents are not set forth as required by law; (3) that said documents relate to its bank depositors and customers who are not parties to the suit and at the instance of one who does not show a right to them; (4) the bank further deems as is its duty, and the duty of the court, to ascertain just what documents are desired and whether complainant is entitled to have them for use as testimony, and (5) the bank stands ready to obey all orders of the court and feels that its obligation to its clients makes in necessary to protect them unless in violation of its trust.
On October 21, 1950, the complainant moved the court to compel The Monroe County Bank to produce the records at or before the taking of testimony on November 7, 1950. On October 24, 1950, The Monroe County Bank moved the court to quash the motion of complainant to require the production of said documents on November 7th. Both motions came on for hearing on October 24, 1950 before the Hon. F. W. Hare, circuit judge sitting in equity. The court thereupon ordered The Monroe County Bank to produce in court said records on November 7, 1950. Said records are described in the motion made by complainant on October 21, 1950, and in the order of the judge on October 24th, in the following language:
"(a) All records of deposits and withdrawals of the Frisco Manufacturing Company, Inc., The Frisco Manufacturing Company, a partnership, composed of James L. Minish, and Janie L. Minish; and of Janie L. Minish, James L. Minish, and Bonnie M. Minish, individually; Frisco Bench Company, and the Basic Lumber Company.
"(b) All records of loans made to each of the parties or entities referred to in paragraph (a).
"(c) All copies of cancelled checks insofar as the same might be available relating to any of the parties or entities mentioned in paragraph (a).
"(d) All written representations or statements of financial condition rendered by or on behalf of the parties or persons referred to in (a) above.
"(e) All records of U. S. Government Bond purchases and sales (including `cashing in') relating to any of the parties or entities mentioned in paragraph (a) above.
"(f) All records of safe deposit boxes including records showing time and date of entry to each box and by whom such entry was made relative to the parties or entities mentioned in (a) above."
The answer of the judge to the rule nisi in this Court further states that the bank offered no evidence on the hearing of said motions, nor was any showing made of the facts set out either in the motion to quash or in the motion for the production of the papers.
We have here no question raised as to the sufficiency of the proceedings calling for the examination in order to perpetuate the testimony of J. B. Barnett, president of The Monroe County Bank. So that we presume on this hearing that the proper proceedings were had, as set out in section 492, Title 7, Code.
We note in passing that the proceeding is not an examination de bene esse under Rules 48 and 49 of Equity Practice, Code 1940, Tit. 7 Appendix, and also that the proceeding under section 492, supra, applies in equity as well as at law by its express terms. We had occasion in the case of Ex parte Cross, 247 Ala. 85, 22 So. 2d 378, to point out some of the distinctions between a proceeding to perpetuate testimony and an examination de bene esse.
We come now to a consideration of the procedure looking to the production of the documents for such an occasion, and whether that procedure has been complied with.
A court of equity may on motion and due notice require parties to the cause to produce books, documents or writings in their possession or custody which are pertinent to the issue. This exists not by *164 virtue of any statute but it is a well recognized equitable procedure for discovery. 27 Corpus Juris Secundum, Discovery, § 77, p. 114, notes 88 and 89. It is observed that this procedure only has application where a party to the cause is sought to be required to produce the documents.
Section 487, Title 7, Code, gives to courts of law the same power, to be exercised in the same way, as courts of equity. We are here dealing with a court of equity and, therefore, section 487 has no application.
There is no question raised to the effect that the documents sought are not under the control of Mr. Barnett, who is president of the bank, nor is such issue here made and, therefore, it will be presumed they are under his control. Cobb v. Lagarde, 129 Ala. 488, 30 So. 326; National Fertilizer Co. v. Holland, 107 Ala. 412, 18 So. 170.
Of course there are various methods for discovery. We refer to the right to examine the adverse party to a cause by interrogatories propounded to him under Rule 39 of Equity Practice, Code 1940, Tit. 7 Appendix. Our Court is very liberal in extending the power conferred by that rule as well as under section 477, Title 7, Code. Ex parte Rowell, 248 Ala. 80, 26 So. 2d 554.
The proper procedure by which the production of the papers may be required of a person who is not a party to the cause is by a subpoena duces tecum. Section 489, Title 7, Code. In this matter it appears that a subpoena duces tecum was directed to The Monroe County Bank, of which Mr. Barnett is president, so that the documents may be had at the time of his examination to perpetuate his testimony.
We observed at the outset that the subpoena is directed to the bank and not to Mr. Barnett, its president, who is the witness to be examined. Broadly speaking, the subpoena duces tecum at common law was directed only to a person who is competent to testify as a witness. Ex parte Hart, 240 Ala. 642(5), 200 So. 783. But, as observed in Wilson v. United States, 221 U.S. 361, 31 S. Ct. 538, 541, 55 L. Ed. 771, that is not always so. The power to compel production by such process, it was said is "not limited to those cases where it is sought merely to supplement or aid the testimony of the person required to produce them. The production may be enforced independently of his testimony, and it was held long since that the writ of subpoena duces tecum was adequate for this purpose. * * * Treating the requirement to produce as separable from the requirement to testify generally what one knows in the cause, it follows that the latter may be omitted from the subpoena without invalidating the former. * * * Where the documents of a corporation are sought, the practice has been to subpoena the officer who has them in his custody. But there would seem to be no reason why the subpoena duces tecum should not be directed to the corporation itself. Corporate existence implies amenability to legal process. * * * Possessing the privileges of a legal entity, and having records, books, and papers, it under a duty to produce them when they may properly be required in the administration of justice." In that case the subpoena was addressed to a corporation and required it to produce certain books before the grand jury. It did not call for any other form of evidence. There was no ad testificandum clause. Service was had on Wilson as president of the company. Wilson appeared before the grand jury but refused to produce the books for the company. He was adjudged in contempt. On habeas corpus, the court gave expression, as we have quoted, and held that he was in contempt. That authority was followed to that extent in Commonwealth v. Southern Express Co., 160 Ky. 1, 169 S.W. 517, L.R.A.1915B, 913. See, also, Martin v. Williams, 18 Ala. 190.
In the case of Ascension Red Cypress Co. v. New River Drainage Co., 169 La. 606, 125 So. 730, citing its former cases, the court held that a corporation cannot be compelled to respond to a subpoena duces tecum when the order does not designate the officer or agent through whom it may act.
In the instant case the record and proceedings show that the purpose was to examine Mr. Barnett to perpetuate his testimony *165 and that he was the one designated as president of the bank through whom it was intended to act. We do not know the terms of the subpoena duces tecum so as to include an ad testificandum clause. But if it did include such a clause it could be treated as surplusage since the proceeding as a whole shows that Mr. Barnett was to give the testimony and the corporation through him to furnish the documents sought. The trial court had the power of course to inquire into the nature of the documents sought to be produced and whether they will probably be relevant. Ex parte Hart, supra.
The proposed examination is before the issues are made up, so that it cannot at the present time be finally determined what will be material and relevant. It is somewhat like propounding interrogatories to the adverse party before the issues are made up. Equity Rule 39, supra; section 477, Title 7, Code. It should be prima facie not irrelevant to some probable issue in the cause. Ex parte Hart, supra; Ex parte Rowell, supra; Moore-Handley Hardware Co. v. Williams, 238 Ala. 189, 189 So. 757.
The documents here sought to be produced are not before the court, but complainant is trying to get access to them to determine whether they are relevant. She is not now offering to introduce in evidence any of the documents. It cannot be determined in advance of their production whether they or some of them are competent and material. This is in the nature of a discovery of evidence, the exact nature of which is unknown to complainant, but is known to the witness and the bank as a corporation. The purpose is to find out the facts which will be relevant. It is not for the witness nor the corporation to determine finally the relevancy, but for the court. The proper course is for the bank to gather up the documents or a description of them in detail, the best it can from the description in the process, and bring them with a motion before the court to determine what should be produced on the examination of the witness. Ex parte Rowell, supra. This does not include such documents as are prima facie inadmissible. Collins v. Mobile & Ohio R. R. Co., 210 Ala. 234, 97 So. 631.
The fact that the duces tecum subpoena was broader than it should have been does not relieve the party from responding. State Tax Commission v. Tennessee Coal, Iron & R. R. Co., 206 Ala. 355(5), 89 So. 179. But it is sometimes too broad to be answered. Hale v. Henkel, 201 U.S. 43, 26 S. Ct. 370, 50 L. Ed. 652.
In the instant case the description is very broad, but it is such as that the president of the bank probably knows from it whether he has any of such documents as are within the description. Consolidated Rendering Co. v. State of Vermont, 207 U.S. 541, 28 S. Ct. 178, 52 L. Ed. 327. It would be sufficient for the documents in the description to cover a reasonable time only and let the court decide on application what part of them in the description should be produced on the examination.
The order to produce on November 7, 1950, cannot now be obeyed and it is functus officio. The proceeding is now open to such action as the bank may take to protect itself as above indicated. With that explanation, the writ of mandamus is denied.
Writ of mandamus denied.
LIVINGSTON, LAWSON and STAKELY, JJ., concur. | November 30, 1950 |
091841e3-b51e-42f5-91aa-d2cfee73eac2 | Railway Express Agency v. Burns | 52 So. 2d 177 | N/A | Alabama | Alabama Supreme Court | 52 So. 2d 177 (1950)
RAILWAY EXPRESS AGENCY, Inc., et al.
v.
BURNS.
6 Div. 745.
Supreme Court of Alabama.
November 24, 1950.
Rehearing Denied May 10, 1951.
*179 E. L. All, W. B. White, Jr., and White, Bradley, Arant & All, all of Birmingham, for appellant Railway Express Agency.
Chas. H. Eyster, of Decatur, White E. Gibson, White E. Gibson, Jr., and Gibson & Gibson, all of Birmingham, for appellant Louisville & Nashville R. Co.
Taylor, Higgins, Koenig & Windham and J. Howard Perdue, Jr., of Birmingham, for appellee.
LAWSON, Justice.
This is a suit by Van Burns against Railway Express Agency, Inc.; Dewey Hardin, an employee of Railway Express Agency, Inc.; and Louisville & Nashville Railroad Company, to recover damages for injuries claimed to have been suffered by plaintiff at the railway station in Decatur, Alabama, which injuries plaintiff averred proximately resulted from the negligence of defendants in causing or allowing a heavy object to strike him, which object was then and there being unloaded from an express car of the train of the railroad company.
The jury returned a verdict against the defendant Louisville & Nashville Railroad Company, hereinafter referred to as the Railroad Company, and against the defendant Railway Express Agency, Inc., hereafter referred to as the Express Agency. The verdict was in favor of the defendant Dewey Hardin. Judgment was in accord with the verdict.
Their motions for new trial having been overruled, the Railroad Company and the Express Agency have appealed to this court.
Assignments of error are several and joint. Upon submission, there was an order for a severance in the assignments of error.
The case went to the jury on only one Count. The first three assignments of error challenge the action of the trial court in overruling the demurrers of the appellants to that Count. As we understand the brief filed on behalf of appellants, the only grounds of the demurrer insisted upon are those taking the point that the complaint fails to aver such duty of care as would render them liable for simple negligence.
As to the duty of care owing by the defendant Railroad Company to the plaintiff, the Count not only alleges in terms that the plaintiff was an invitee of that defendant, but it alleges sufficient facts to show that he was in fact such an invitee at the time he was injured, in that it alleges, in substance, that plaintiff was injured while on the platform of the railway station used by the said defendant and that such injury occurred immediately after plaintiff had assisted his wife to board one of the said defendant's trains, for which purpose plaintiff went to the station. Montgomery & Eufaula Ry. Co. v. Thompson, 77 Ala. 448; Sims v. Warren, 248 Ala. 391, 27 So. 2d 803; Southern R. Co. v. Bates, 194 Ala. 78, 69 *180 So. 131, L.R.A. 1916A, 510; Trust Co. of Chicago v. New York Central R. Co., 285 Ill.App. 482, 2 N.E.2d 362. Hence, the count contains averments sufficient to show that the defendant Railroad Company owed plaintiff the duty of exercising reasonable and ordinary care not to injure him; or otherwise expressed, the count avers a relationship that would render the said defendant liable for simple negligence. Lamson & Sessions Bolt Co. v. McCarty, 234 Ala. 60, 173 So. 388.
The use of the station platform by the Railroad Company placed upon it the same duty to those persons there by its invitation as if it had owned the station. Montgomery & Eufaula Ry. Co. v. Thompson, supra.
It is not alleged in the complaint that plaintiff was an invitee of the defendant Express Agency, but it is alleged that the said defendant at the time of the injury was using the station premises in and about the conduct of its business. While the complaint shows the Express Agency had the right to conduct its business at the station and on the platform thereof, it also sufficiently avers that plaintiff was where he had a right to be as the invitee of the defendant Railroad Company; hence, the defendant Express Agency is shown to have had the duty to exercise reasonable and ordinary care not to injure plaintiff by its negligence. Wells Fargo & Co. v. Lowery, Tex.Civ.App., 197 S.W. 605, 608.
The defendant Railroad Company requested the following charge: "I charge you gentlemen of the jury if you believe the evidence you will return a verdict for the defendant, Louisville and Nashville Railroad Company."
The Express Company requested an identical charge.
The trial court's action in refusing these charges is assigned as error and strenuously insisted upon in brief.
Counsel for appellee insist that the charges were not in proper form and for that reason alone were refused without error, citing in support of their insistence the following cases: Rhodes-Carroll Furniture Co. v. Webb, 230 Ala. 251, 160 So. 247; Southern Ry. Co. v. Alsobrook, 223 Ala. 540, 137 So. 437; May v. Draper, 214 Ala. 324, 107 So. 862; Boshell v. Cunningham, 200 Ala. 579, 76 So. 937; Goldstein v. Leake, 138 Ala. 573, 36 So. 458; Life & Casualty Ins. Co. v. Harris, 18 Ala.App. 667, 94 So. 185. These cases do hold that charges similar in form to those here under consideration were refused without error, not being in proper form, but in each of these cases except the one last cited it appears that there was more than one count in the complaint. The cases have no application here, where there is only one count. The distinction and the reason therefor is pointed out in the following excerpt from the opinion in Mobile & Ohio R. R. Co. v. George, 94 Ala. 199, 10 So. 145: "While some of the charges, such as 1, 3 and 4, assert correct legal propositions, they conclude with a direction to `return a verdict in favor of defendant' under the special and separate count in reference to which they are framed. The complaint, as amended, contains six counts, as to each of which a similar charge was separately asked. Had there been but one count, or, being several, had the charge upon the effect of the evidence applied to the whole complaint, there could be no objection to such conclusion of the charge, but, when there are two or more counts, the phraseology is subject to criticism. It is calculated to impress the jury with the idea that a separate verdict must be returned as to each count, though under some they may find for the plaintiff. Its tendency is to mislead or confuse, and requires explanation. * * *" (Emphasis supplied.) 94 Ala. 222, 10 So. 154.
For cases to like effect see Polytinsky v. Johnston, 211 Ala. 99, 99 So. 839; City of Birmingham v. Poole, 169 Ala. 177, 52 So. 937.
Appellants insist that each of them was entitled to have the jury instructed as was requested in the charges referred to above for three reasons: first, that the evidence failed to establish the allegation in the complaint that at the time plaintiff was injured he was an invitee of the defendant Railroad Company, and that such proof under the averments of the complaint was essential in *181 order for him to recover against either of them; second, that the evidence failed to establish that either of appellants was guilty of any negligence; third, that plaintiff was guilty of contributory negligence, which barred a recovery by him in any event.
It is not proper to charge the jury that if they believe the evidence they must find for the defendant unless the evidence is clear, without conflict, and leaves nothing to be done except to draw a legal conclusion from the facts. Lawler, Adm'r, v. Norris, 28 Ala. 675. So, in considering the question as to whether the trial court erred in refusing the said charges, we must view all the evidence in the light most favorable to the plaintiff. F. W. Woolworth Co. v. Ney, 239 Ala. 233, 194 So. 667; Capitol Motor Lines v. Billingslea, 246 Ala. 501, 21 So. 2d 240, 157 A.L.R. 1207.
Does the evidence support the averment that plaintiff was an invitee of the defendant Railroad Company at the time of his injury. As it bears on this question, the evidence, viewed in the light most favorable to the plaintiff, is summarized as follows:
On July 10, 1945, plaintiff took his wife to the railroad station in Decatur, Alabama, to become a passenger on the defendant Railroad Company's train No. 1. She was going to Fayette, Alabama, and was to travel south on train No. 1 as far as Birmingham. They arrived at the station at about five o'clock a. m. Plaintiff parked his automobile in or near a public street immediately south of the station building. Plaintiff and his wife went into the ticket office, purchased a ticket, and then walked from the ticket office along the station platform to a point north of the platform where Mrs. Burns boarded a passenger car. The plaintiff placed his wife's baggage on the car and saw that she was seated. Plaintiff then walked down the paved platform in a southerly direction beside the train on which his wife was a passenger, until he reached a point opposite the express car of the train, where he observed three employees of the defendant Express Agency unloading a large, cumbersome object from the express car onto an express truck. Plaintiff saw that the Express Agency employees were having difficulty in unloading the cumbersome object and he voluntarily, without request from the men in the express car, climbed upon the express truck and assisted them in getting the object through the door of the express car onto the express truck. His services, though not requested, were not refused. After a portion of the object had been brought out of the express car onto the express truck and had come to rest against a steel rim around the bed of the express truck, plaintiff requested the Express Company employees "to hold it until I got out of the way." He got off the express truck, onto the concrete station platform. After he had gotten down onto the platform, the object became dislodged from the steel rim against which it had been resting, came over beyond the bed of the truck, struck plaintiff on the head, and knocked him down onto the paved platform. He suffered minor head injuries and a broken hip.
The plaintiff was unquestionably an invitee of the defendant Railroad Company until he left the station platform and got on the express truck. He was walking in the general direction of the place where his car was parked and was walking over the paved portion of the station platform, a part of the station premises reasonably embraced within the object of his visit. That he might have chosen another route which was shorter is of no consequence.
But while plaintiff was on the express truck he was no longer an invitee of the defendant Railroad Company. He was not doing an act which could reasonably be expected of him under the invitation extended to him. He had turned aside from his course to voluntarily engage in an endeavor in which he had no interest whatsoever and which was in no way connected with the implied invitation extended to him by the Railroad Company to be on its premises. The evidence falls far short of showing any emergency allowing one in plaintiff's position to hold the invitor liable for the risks attending the act of plaintiff in going to the assistance of the employees of the Express Agency. Plaintiff's presence *182 on the express truck must be held to have been purely voluntary and prompted by a commendable spirit of willingness to lend a helping hand. We think it clear that if plaintiff had received his injury while on the truck, under the averments of the complaint, neither of the defendants would have been liable to him for simple negligence. Shaffer v. St. Louis & S. F. Ry. Co., 201 Mo.App. 107, 208 S.W. 145; Howland v. Tri-State Theatres Corporation, 8 Cir., 139 F.2d 560; Diefenbach v. Great Atlantic & Pacific Tea Co., 280 Mich. 507, 273 N.W. 783; Lucas v. Kelley, 102 Vt. 173, 147 A. 281.
But plaintiff's evidence was to the effect that at the time he was injured he was back on the station platform and he insists, therefore, that he had regained his status as an invitee. Appellants argue in effect that once having abandoned his status as an invitee, plaintiff could not regain it. We cannot agree with this contention. Although plaintiff by his act had severed the relationship of invitor and invitee, we cannot say that he could not regain that relationship by getting off the truck, discontinuing his efforts to assist in unloading the heavy object, and then continuing over the station platform to the place where his car was parked. He was on the truck only a short period of time, not over three or four minutes at the most.
Appellants further insist that although plaintiff may have been on the station platform at the moment of his injury, his receiving the blow was so immediately connected with the voluntary act on his part in assisting in the removal of the object from the express car as to be a part and parcel of that transaction, and hence the plaintiff had not resumed the status of an invitee. The case of Shaffer v. St. Louis & S. F. Ry. Co., supra, is heavily relied upon by appellants in support of this insistence. But that case is distinguishable from the case at bar on the facts. It was undisputed in the Shaffer case that the injury was sustained while the plaintiff was actually engaged in the act of assisting a brakeman of the defendant railroad in lifting a barrel. In the case here under consideration, the evidence not only shows that plaintiff at the time he was injured was not actually engaged in assisting in the removal of the object, but the evidence was sufficient to justify a finding by the jury that plaintiff had abandoned all participation in that enterprise and was ready to leave the railway station.
We hold, therefore, that it was for the jury to say whether or not, under the evidence, at the time of his injury the plaintiff was an invitee of the defendant Railroad Company. Farmers' & Merchants Warehouse Co. v. Perry, 218 Ala. 223, 118 So. 406.
We come now to consider the question of whether there was any evidence tending to show that the defendant Railroad Company breached any duty which it owed the plaintiff. The plaintiff sought to fasten liability on the Railroad Company under the doctrine of respondeat superior. There was evidence tending to show that a porter on one of the Railroad Company's cars was on the truck at the same time as the plaintiff and that this porter committed acts which tended to propel the heavy object forward, causing it to strike plaintiff.
To recover against the defendant Railroad Company upon the doctrine of respondeat superior, it was necessary for the plaintiff not only to establish the status of master and servant, but also that the act done was within the scope of the servant's employment. Hill v. Decatur Ice & Coal Co., 219 Ala. 380, 122 So. 338.
The rule which has been approved for determining whether certain conduct of an employee is within the line and scope of his employment is substantially that, if an employee is engaged to perform a certain service, whatever he does to that end, or in furtherance of the employment, is deemed by law to be an act done within the scope of the employment. Gulf, M. & N. R. Co. v. Havard, 217 Ala. 639, 117 So. 223; National Life & Accident Ins. Co. v. Cruso, 216 Ala. 421, 113 So. 396. Such conduct, to come within the rule, must not be impelled by motives that are wholly personal, or to gratify his own feelings or resentment, but should be in promotion of the business of his employment. Republic Iron & Steel Co. v. Self, 192 Ala. 403, 68 So. 328, L.R.A. *183 1915F, 516. If the conduct 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, the master is responsible. Palos Coal & Coke Co. v. Benson, 145 Ala. 664, 39 So. 727; Rochester-Hall Drug Co. v. Bowden, 218 Ala. 242, 118 So. 674.
We have examined the evidence in this case with great care and are unable to find any evidence which would justify a finding that the porter owed any duty whatever to his employer in regard to the unloading of express from the express car. On the contrary, the evidence was undisputed that there was no duty either upon the railroad company or any of its employees in connection with unloading express from the express car.
We hold, therefore, that the affirmative charge, with hypothesis, as requested by the defendant Railroad Company, should have been given by the trial court.
It is admitted that the three persons in the express car who were engaged in moving the object out of the car onto the express truck were employees of the Express Agency and that they were at the time acting within the line and scope of their employment.
The burden was on the defendant Express Agency to prove its plea of contributory negligence. This question, as well as whether its employees were guilty of negligence proximately causing the injury to plaintiff, was for the jury's decision. Therefore, the general affirmative charge requested by the Express Agency was properly refused.
The evidence supported the verdict and was not contrary to the great weight of same; hence, there was no error in overruling that ground of the Express Agency's motion for a new trial.
The appellant Express Agency insists that the trial court erred in refusing to set aside the verdict on the ground that the acquittal of defendant Hardin, one of its employees who was engaged in removing the object from the express car at the time of plaintiff's injury, entitles it to a new trial upon the theory the verdict was inconsistent, citing Walker v. St. Louis & S. F. Ry. Co., 214 Ala. 492, 108 So. 388, and Southern Ry. Co. v. Lockridge, 222 Ala. 15, 130, So. 557. The cases cited hold in effect that when the master is sued jointly with his servant for the misfeasance or malfeasance of the said servant under the doctrine of respondeat superior, a verdict in favor of such servant entitle the master to have the verdict against him set aside.
But the rule above stated has no application where, as here, under the evidence liability may be rested upon the master, on account of the negligence of an employee other than the one acquitted, and the complaint does not rest the master's liability solely on the acts of the employee who is acquitted. F. W. Woolworth Co., Inc., v. Erickson, 221 Ala. 5, 127 So. 534; Louisville & N. R. Co. v. Maddox, 236 Ala. 594, 183 So. 849, 118 A.L.R. 1318; Pollard v. Coulter, 238 Ala. 421, 191 So. 231. It follows that the trial court did not err in overruling this ground of the motion for new trial.
The judgment against the defendant Railroad Company is reversed and as to it the cause is remanded.
The judgment against the defendant Express Agency is affirmed.
Affirmed in part, and in part reversed and remanded.
BROWN, FOSTER, and STAKELY, JJ., concur. | November 24, 1950 |
8085cbf4-16d3-439e-818e-0e076f924b9e | In Re Opinion of the Justices | 47 So. 2d 655 | N/A | Alabama | Alabama Supreme Court | 47 So. 2d 655 (1950)
In re OPINION OF THE JUSTICES.
No. 114.
Supreme Court of Alabama.
August 2, 1950.
Be it resolved by the Senate of Alabama, That the Justices of the Supreme Court of Alabama, or a majority of them, are respectfully requested to give this body their written opinions concerning the following important constitutional questions:
1. Does Act 241, S. 388 of the regular session of 1949, Acts of Alabama, 1949, pp. 347-361, entitled, "An Act Relating to Wilcox County: Providing facilities for the mediation of labor disputes, equalizing the legal responsibilities of labor organizations and employers, prescribing penalties for violations of this Act, and conditioning the operation of the Act upon a favorable vote of the electorate of Wilcox County at a referendum," impose strictly non-judicial duties upon the Judge of the Fourth Judicial Circuit of Alabama contrary to Sections 42 and 43 of the Constitution?
2. Does said Act confer original jurisdiction upon the Supreme Court of Alabama contrary to Section 140 of the Constitution?
3. Are the provisions of said Act repugnant to Sections 42, 43, or 140 of the Constitution?
4. Does said Act and its title meet the requirements of Section 45 of the Constitution?
*656 5. Is said Act contrary to Section 104 of the Constitution?
6. Is said Act violative of Section 105 of the Constitution?
7. If any part of said Act is unconstitutional can that part be separated and the remainder of the Act be valid?
8. If said Act is unconstitutional can it be amended and re-enacted to meet constitutional requirements in the form of the attached bill, which bill is incorporated herein and made a part hereof the same as if it were set out verbatim?
Be it resolved further, That the Justices are respectfully requested to return their opinions to the Secretary of the Senate, whether this body be in session or not; and the Secretary shall cause said opinions to be incorporated in the journal.
Re: Senate Resolution No. 4, by Mr. Henderson, dated August 2, 1950. Gentlemen:
It is assumed that this resolution seeking an opinion regarding the constitutionality of Act No. 241, S. 388, Regular Session 1949, Acts 1949, pp. 347-361, was adopted under the belief that the inquiry contained therein was appropriate under the provisions of Article 3, Title 13, § 34 et seq., Code 1940. But we do not so regard it.
Under the long prevailing view, the statute has been considered as privilegingbut not requiringthe individual justices of the Supreme Court to give advisory opinions on request of the governor or either house of the legislature on important constitutional questions. These opinions, however, are matter of grace from the said justices and have in the past been given in deference to the executive and legislative departments of the state, in order to guide them in the proper dispatch of their duties or to protect the officers and departments of the state in the performance of their duties under enacted legislation or to stabilize proposed bond issues, etc. Such opinions are not opinions of the Supreme Court and bind neither the justices nor the department or officer requesting the opinion. They are merely advisoryconsultative only. In re Opinions of the Justices, 209 Ala. 593, 96 So. 487.
While the act did contemplate advisory opinions on specific inquiries, involving or concerning concrete, important constitutional questions upon matters or subjects of general public nature as distinguished from questions involved in the ascertainment or declaration of private right or interest (209 Ala. 594, 96 So. 487), yet it is to be observed from § 5 of the statute that one of its main functions was that the opinions of the justices should give protective force and effect to officers and departments of the state in acting under existing law.
The inquiry here propounded is clearly beyond the permissible scope of the statute and, however much would be our inclination or desire to defer to the wishes of the senate to give answer in the matter, for the individual justices to embark upon undertakings to give hypothetical opinions as regards the constitutionality of any and all laws extant on the statute books of Alabama would so enlarge their duties and encumber them with work as would seriously jeopardize the proper functioning of the court. You must know the vast volume of work under which the court is laboring from cases properly submitted to it for review from inferior tribunals, and we do not think we would be justified nor that the statute contemplated that these labors be distracted by the individual justices departing from the duties of their office to take the time necessary in studying the law to give answers to such hypothetical questions.
We think it appropriate at this time to invite attention to the fact that while as individual justices the members of the court, within permissible limits of the statute, are privileged to give their individual opinions on constitutional questions properly submitted to them, yet the court of which they are members is one of appellate review and the constitutionality of statutes should be tested by appropriate adversary *657 proceedings when available or when at all possible. The end result of such proceedings would be of binding force, whereas the opinions promulgated under Title 13, supra, are not.
While the other justices all are not available for comment, we feel certain they are concordant with this view.
We, therefore, must respectfully decline to answer the several questions propounded. | August 2, 1950 |
915ebd6f-52a2-412e-ad4d-780af0029862 | Adams v. Republic Steel Corp. | 49 So. 2d 214 | N/A | Alabama | Alabama Supreme Court | 49 So. 2d 214 (1950)
ADAMS
v.
REPUBLIC STEEL CORP.
7 Div. 50.
Supreme Court of Alabama.
October 19, 1950.
Rehearing Denied December 14, 1950.
*215 Hawkins & Copeland, of Gadsden, for appellant.
Benners, Burr, Stokely & McKamy, of Birmingham, and Hood, Inzer, Martin & Suttle, of Gadsden, for appellee.
SIMPSON, Justice.
Suit by appellant on the common count for work and labor done from December 25, 1943, to April 1, 1947. From an adverse ruling on the pleadings, the plaintiff took a nonsuit and has appealed.
The real question is whether or not the plaintiff is entitled to retroactive pay as a former employee of defendant corporation, as fixed by the contract executed April 29, 1947, between plaintiff's bargaining agent, United Steel Workers of America (CIO), and defendant.
The facts decisive of the question were developed by the defendant's special pleas and the plaintiff's demurrer and replications to these pleas. It will not be necessary to deal separately with the several assignments of error or the various pleadings, since the only question is whether, from these developed facts, the allegations show plaintiff, as a former employee of defendant, to be entitled to retroactive pay or whether he was barred of recovery by reason of not having filed any claim with the defendant within the 120-day period prescribed by § 2, Article 7 of the aforesaid contract of April 29, 1947, which provided: "Section 2Employees Eligible. The foregoing lump sum payments shall be made to employees who are on the plant payroll on the date the plant standard hourly wage rates are officially established, and to former employees who are not on the plant payroll on the date the plant standard hourly wage rates are officially established provided such former employees file individually signed requests therefor in writing with the Company within 120 days after the date on which the standard hourly wage rates are officially established." (Emphasis supplied.)
We will first state the facts as disclosed by the pleadings and the respective contentions of the parties.
The plaintiff's work, as a production and maintenance employee of the defendant corporation, for which claim is made was *216 during portions of the year 1943-1944. But continuously from 1942 until the filing of this suit and thereafter, the United Steel Workers of America, a labor union, was the certified (by the National Labor Relations Board under federal law) representative of all the employees of defendant as their exclusive bargaining representative to bargain with the defendant with reference to their wages, hours, rates of pay and working conditions; during all this time these matters were agreed upon and established from time to time by written contracts between the said union and the defendant, and the plaintiff had been paid in accordance with these contracts for all work and labor done and had duly acknowledged receipt therefor. In 1942 a contest arose, among other matters, as to whether certain jobs were subject to reclassification under a uniform standard to abolish certain alleged wage rate inequities and to effect a more stabilized rate structure. The corporation and the union, as the bargaining agent of the employees, set up a joint commission to study the question, to work out the details and make recommendations accordingly. Many grievances, including the claimed intra-plant wage rate inequities, and the necessity for reducing job classifications, were submitted by the union to this commission. Later the National War Labor Board entertained jurisdiction to solve the grievances and the Board entered a directive specifying certain "guideposts to facilitate collective bargaining directed to the solution" of this longstanding problem. The directive further stipulated that any agreement reached between the company and union should be transmitted to the commission for its approval before becoming effective. The defendant and the union, after many conferences and much negotiation over this long period, did on April 29, 1947, enter into the written agreement aforesaid, which, among other things, reclassified various jobs and abolished certain wage rate inequities, and this agreement was approved by the United States Department of Labor Steel Commission. This agreement was made effective as to the parties here by a complete bargaining contract dated April 30, 1947, executed between the defendant and the union, approving the April 29, 1947, agreement. The effect of these two agreements was to establish a higher rate of pay for the job in which the plaintiff had been classified and, had he, as a former employee, filed his claim within the 120-day period prescribed by said (above quoted) § 2, Article 7 of the contract of April 29, 1947, he would have been, under that contract, entitled to a certain amount of retroactive pay for the 1943-1944 period claimed.
The appellee corporation, as indicated by its several special pleas, rests its defense on the theory that the contract is the basis of the plaintiff's claim and suit and that plaintiff, being subject to all the terms and conditions thereof, is barred of recovery for noncompliance with said § 2 with reference to "former employees."
The answer of plaintiff in refutation of this contention is that he does not sue on the contract, that his right to sue is on an implied contract arising as follows: On December 25, 1943, the union contract with defendant expired and the union threatened to strike to achieve certain objectives, including reclassification of jobs, adjustment of rates of pay, etc., but there then being a national emergency (Second World War), the President of the United States sent a telegram recommending a continuation of work under the old contract. The case aforementioned between the union and the defendant to settle these various problems was still pending before the National War Labor Board and in response to the President's telegram an "interim directive order" was entered in the case suggesting compliance with the President's telegram with the understanding that if the parties should make a new work contract, or if the Labor Board should, after hearing, make an order to include wage rate adjustments, these adjustments should be computed and applied retroactively from the said December 25, 1943. Under these conditions uninterrupted production continued. On November 25, 1944, the Board did find wage rate inequities to exist and *217 "directed" that the parties negotiate to eliminate them with the same retroactive application. Pending these negotiations, the parties in 1945 entered into another collective bargaining contract, which contract contained the same feature with respect to retroactive application of wage rate adjustments. Negotiations continued, certain formulae were devised to work out this and other long-standing problems of contest between the defendant and the union, and these negotiations culminated in the adoption of the April 29, 1947, contract aforesaid, which contained the 120-day condition for the filing of claims by former employees. § 2, supra.
Boiled down, the replications to the defendant's pleas seek to scout some obligations of the April 29, 1947, contract but still endeavor to claim its benefits on the theory that since the Board's directive in response to the President's telegram and the collective bargaining contract of 1945 provided for retroactive application of any wage rate adjustments which might be determined should an agreement relative thereto be negotiated, plaintiff can recover on a quantum meruit for work and labor done under an implied contract; that working under such an understanding gave him such a vested right that his bargaining agent, the union, was without power to contract away or limit that right by the imposition of the 120-day limitation.
Such a position seems to us manifestly antistrophic. The trial court rejected it and we must affirm the holding. Any right plaintiff might have acquired for retroactive pay flows from the April 29, 1947, contract and he cannot claim its benefits, meanwhile repudiating some of its vital provisions. "If he claims the benefits, he also assumes the burdens". (Emphasis supplied.) Michie v. Bradshaw, 227 Ala. 302, 308(4), 149 So. 809, 814.
The action of the War Labor Board in response to the telegram of the President of the United States as regards any suggestion about retroactive pay cannot form the basis of an implied contract, or quasi contract. We judicially know that the Board was created in view of the declaration of war and no strike agreement of representatives of labor and industry by Executive Order No. 9017, 50 U.S.C.A. Appendix, § 1507 note, to aid in the voluntary adjustment and settlement of the various problems which might arise between them. The Board had no power to determine legal rights nor to invoke judicial process to enforce its orders. Its directions or orders were wholly conciliatory in character, involving no element of legal effectiveness. Its actions, as that taken here, were directory and advisory merely. National War Labor Board v. Montgomery Ward, 79 U.S.App.D.C. 200, 144 F.2d 528; Employers Group of Motor Freight Carriers v. National War Labor Board, 79 U.S.App.D.C. 105, 143 F.2d 145; National War Labor Board v. United States Gypsum Co., 79 U.S.App. D.C. 239, 145 F.2d 97; Martin v. Campanaro, 2 Cir., 156 F.2d 127; Clem S. Walter, Jr. v. State, 34 Ala.App. 268, 38 So. 2d 609, 610; American Brake Shoe Co. v. Grybas, D.C., 63 F. Supp. 414, 416; May Department Stores Co. v. Brown, D. C., 60 F. Supp. 735, 737; Masso v. Burk, 138 N.J.Eq. 276, 47 A.2d 732.
There was no obligation to pay the plaintiff anything as a wage rate adjustment in 1943 or 1944. He was paid his full wages under then existing contract for all work and labor done. Whatever wage adjustment might later be achieved for the production and maintenance employees was conditional, subject to such success as the long negotiations might bring forth, and could not possibly have vested as a right in anyone until the end of such negotiations and the final execution of the agreement. So, the theory of liability of an implied contract to pay as of December 23, 1943, without any obligation to pay, rests on an obviously false premise. There can be no liability to pay where there is no obligation to pay.
The right to retroactive pay was purely conditional and no one could acquire any right until the condition happened or the contingency was performed. 2 Williston on Contracts (Rev.) 1062-1064. The conditional *218 event in the case in hand did not occur until the contract of April 29, 1947, was negotiated and finally concluded.
The plaintiff is clearly in the posture of a third party beneficiary claiming rights under an agreement made between the union and the defendant and as such claimant he has no greater rights than as fixed by the terms of the contract.
The principle is thus stated in Teller on Labor Disputes and Collective Bargaining, Vol. One, § 168, pp. 500-501: "A third party for whose benefit a contract is made has no greater rights than those fixed by the terms of the contract * *. A member of a labor union who is employed under a collective bargaining agreement, and who is the beneficiary of the terms thereof, takes subject * * * to the provisions of the agreement * *." Of like import is the text in 17 C.J.S., Contracts, § 519(bb), p. 1137: "The rights of a third person to sue on a contract made for his benefit depend on the terms of the agreement and are no greater than those granted by the contract as intended by the parties thereto. To recover the beneficiary must bring himself within its terms * * *. In the case of a conditional promise, the condition of which has not been complied with, the beneficiary cannot sue."
The proper interpretation of the contract makes compliance with § 2 a condition prerequisite to any recovery by a former employee. Since, therefore, the only right the plaintiff had was under the contract the benefit of which he seeks, namely, retroactive pay, he is concomitantly bound by its terms, including the 120-day condition for the filing of his claim.
There can be no question but that the union was the legally constituted and exclusive bargaining representative of all the employees, including the plaintiff, U.S. C.A. Title 29, § 159(a), and as such was empowered to so contract with the defendant and bind the employees accordingly. Alabama Cartage Co. v. International Brotherhood of Teamsters, etc., 250 Ala. 372, 34 So. 2d 576; J. I. Case Co. v. N. L. R. B., 321 U.S. 332, 64 S. Ct. 576, 86 L. Ed. 762; Order of R. R. Telegraphers v. Ry. Express Agency, 321 U.S. 342, 64 S. Ct. 582, 88 L. Ed. 788; Medo Photo Supply Corp. v. N. L. R. B., 321 U.S. 678, 64 S. Ct. 830, 88 L. Ed. 1007; Steele v. Louisville & N. R. Co., 323 U.S. 192, 199, 65 S. Ct. 226, 232, 89 L. Ed. 173.
And as such "statutory representative," the union was not "barred from making contracts which may have unfavorable effects on some of the members of the craft represented." Steele v. L. & N. R. R. Co., supra. "The workman is free, if he values his own bargaining position more than that of the group, to vote against representation; but the majority rules, and if it collectivizes the employment bargain, individual advantages or favors will generally in practice go in as a contribution to the collective result." J. I. Case Co. v. N. L. R. B., supra, 321 U.S. 339, 64 S. Ct. 581, 86 L. Ed. 762.
The cases thought to sustain the plaintiff's position, such as Elgin, Joliet & Eastern Ry. Co. v. Burley et al., 325 U.S. 711, 65 S. Ct. 1282, 89 L. Ed. 1886, rationalize just such a theory as we have deduced. The Elgin case points out the distinction between (1) negotiations for a collective agreement or for the modification of one, as was the case here, which looked to the future for the establishment of rights, and (2) the settlement of rights already accrued. The court, speaking through Mr. Justice Rutledge, observed:
"The first relates to disputes over the formation of collective agreements or efforts to secure them. They arise where there is no such agreement or where it is sought to change the terms of one, and therefore the issue is not whether an existing agreement controls the controversy. They look to the acquisition of rights for the future, not to assertion of rights claimed to have vested in the past.
"The second class, however, contemplates the existence of a collective agreement already concluded or, at any rate, a situation in which no effort is made to bring about a formal change in terms or *219 to create a new one. The dispute relates either to the meaning or proper application of a particular provision with reference to a specific situation or to an omitted case. * * * In either case the claim is to rights accrued, not merely to have new ones created for the future." 325 U.S. 723, 65 S. Ct. 1290, 89 L. Ed. 1886.
As to the first, the holding concluded that it was within the power of the bargaining agent to contract for the individual employees, but as to the second class, under the language of the Railway Labor Act, 45 U.S.C.A. § 151 et seq., as interpreted, the bargaining agent generally had no such authority. The principle regulating the first class is here controlling.
It is, of course, true, as so ably presented by counsel for appellant, an implied contract may arise from conduct and intention of the parties. But we find the elements essential to establish one here to be lacking. As observed, all the work done by the plaintiff was under an express contract between his bargaining agent, the union, and the defendant. He was paid for that work and receipted for such payment. This item of intra-plant wage rate inequities, as well as many other features, such as abolishment of geographical differentials, establishment of paid vacations, etc., had been matters of contest between the union and the defendant for years. It was entirely problematical when the parties submitted their contest to the commission in 1942 and in 1943-1944 as to whether these questions would ever be settled, and it was entirely uncertain what benefits the plaintiff might acquire, if any, from such negotiations. As a result of the 1947 agreement, some pay was adjusted down, some adjusted up, and some perhaps remained constant. Some employees obtained a higher contract rate than previously, some a lower rate, and in instances some perhaps a rate even less than their previous rate, but the result finally to be achieved was conditioned upon the contingency of the contracting parties reaching an agreement. Certainly the circumstances disclosed did not give rise to an implied contract, but sustained the allegations of the pleas that recovery rests solely on the express contract made between the union and the defendant. The plaintiff obviously could not have maintained a suit against the defendant on any implied contract for the recovery of retroactive wages on account of any wage rate inequities if the contract of 1947 had not been made. Being so, the binding effect of § 2, limiting his right to make claim therefor to 120-days, is conclusively governing. He cannot recover under the agreement without being bound by its terms. If he seeks the benefits he must take the detriments.
We think the ruling below well sustained.
Affirmed.
BROWN, FOSTER, LIVINGSTON, LAWSON, and STAKELY, JJ., concur. | October 19, 1950 |
ba55ae20-6913-4d59-ba81-80a138b62106 | State v. Alabama Power Co. | 48 So. 2d 445 | N/A | Alabama | Alabama Supreme Court | 48 So. 2d 445 (1950)
STATE
v.
ALABAMA POWER CO.
3 Div. 569.
Supreme Court of Alabama.
October 19, 1950.
*446 A. A. Carmichael, Atty. Gen., and Gardner F. Goodwyn, Jr., M. Roland Nachman, Jr., and Neil Metcalf, Asst. Attys. Gen., for appellant.
Steiner, Crum & Baker, of Montgomery, and Martin, Turner & McWhorter, of Birmingham, for appellee.
*447 STAKELY, Justice.
This is an appeal by the State of Alabama from a decree of the equity court of Montgomery County overruling its demurrer to the bill in the nature of a bill in equity filed by the Alabama Power Company. The bill seeks relief against alleged discriminatory practices in the assessment for ad valorem taxes of the properties of the complainant. The allegations of the bill may be stated in substance as follows:
The Alabama Power Company is a corporation organized and existing under the laws of the State of Alabama, with its principal place of business at Attalla, Etowah County, Alabama. It owns property and operates a public utility in all except ten counties of the state and it owns property in one other county but does not operate a utility in that county.
As required by law the Alabama Power Company filed its return with the State Department of Revenue for the tax year of 1949. The State Department of Revenue ascertained and fixed the total value of its property in Alabama for tax purposes for such year to be $154,000,000. It then assessed the property at sixty percent of that value, thereby fixing the company's ad valorem assessment at $92,400,000. Pursuant to statutory provision the Alabama Power Company then filed its protest against the assessment with the State Department of Revenue. This protest was overruled and the State Department of Revenue then made the assessment final. From such final assessment the Alabama Power Company appealed to the Circuit Court of Montgomery County and executed an appropriate supersedeas bond.
The State Department of Revenue exercises general and complete supervision and control of the valuation, equalization and assessment of property, privilege and franchise taxes, of the collection of all taxes of every kind for the state and counties, of the enforcement of the tax laws of the state and supervision and control of all officials and boards charged with any duty in the enforcement of the tax laws, to the end that all taxable property in the State shall be assessed and taxes shall be imposed and collected thereon in compliance with the law, and that all assessments on property, privileges and franchises in the State, shall be made in exact proportion to the fair and reasonable market value thereof in substantial compliance with the law. The duties of the Department are referred to in the bill in detail.
For the tax year 1949 and for many years prior thereto the taxing authorities in Alabama have intentionally and systematically assessed the property of other taxpayers generally upon the basis of less than 40 percent of the fair and reasonable market value of their property "(except that for the tax year 1949 the Department of Revenue has assessed the property of certain railroad, public utility and other like properties upon a basis of 60 percent of their value for tax purposes)" and the Department for the tax year 1949 assessed the property of the Alabama Power Company at 60 percent of its value for tax purposes.
The bill avers that the assessment imposed on Alabama Power Company property is illegal, excessive, void and discriminatory in that it is in violation of §§ 211, 217, 6, 13 and 35 of the Constitution of Alabama and of the due process and equal protection clauses of the 14th Amendment to the Constitution of the United States.
The bill avers that the assessment so fixed against the Alabama Power Company property was the result of a systematic and intentional discrimination against it in assessing its property at a greater and greatly disproportionate percentage of the value of its property from that intentionally and systematically assessed against the property of other private corporations, associations and individuals in the state, in violation of §§ 211, 217, 6, 13 and 35 of the Constitution of Alabama and applicable statutes and of the 14th Amendment to the Constitution of the United States.
Alabama Power Company prays that the court vacate and set aside the final assessment made by the Department against its properties and fix the assessment of its properties for the tax year 1949 as provided by Code of 1940, Title 51, § 140 and in *448 accordance with §§ 211, 217, 6, 13 and 35 of the Constitution of Alabama and of the 14th Amendment at a figure not in excess of the percentage at which other property is generally and systematically assessed in Alabama and prays for general relief.
Although a number of propositions must be considered in this case the fundamental question is whether the State Department of Revenue has the power to assess the properties of Alabama Power Company at a ratio of 60% of their taxable value when at the same time the properties of other private corporations, associations and individuals in the state are systematically and intentionally assessed at a rate not in excess of 40% of their taxable value. The State points out in brief that there is no allegation in the bill "that appellee is assessed at a higher rate than other public utilities or that there is discrimination among assessments of public utilities." It is further pointed out that there is no allegation in the bill "that the total value of appellee's property is less than $154,000,000 or that $92,400,000 is in excess of 60% of the value of appellee's property."
At the outset it is well to note that a bill in the nature of a bill in equity was filed in the Circuit Court of Montgomery County, in Equity, in accordance with procedure approved by this court. State v. Louis Pizitz Dry Goods Co., 243 Ala. 629, 11 So. 2d 342; Merriwether v. State, 252 Ala. 590, 42 So. 2d 465. It is also well to note that on this appeal there is no issue of fact before the court but only the sufficiency vel non of the allegations of the bill. It is of course established that in this situation the court assumes as true all facts which are well pleaded in the bill of complaint.
In view of the important part which §§ 211 and 217 of the Constitution of 1901 play in this case, we set out the pertinent part of these sections.
"Section 211. All taxes levied on property in this state shall be assessed in exact proportion to the value of such property, * * *."
"Section 217. The property of private corporations, associations, and individuals of this state shall forever be taxed at the same rate; * * *."
In considering and construing the foregoing sections it will be helpful to make a chronological review of the several limitations upon the taxing power of the state as adopted in prior constitutions of the state. In this connection we quote from our decision in the case of Eliasberg Bros. Mercantile Co. v. Grimes, 204 Ala. 492, 86 So. 56, 59, as follows: "A chronological review of the several limitations upon the taxing power of the state, as adopted in successive constitutions, will be found in Western Union Tel. Co. v. State Board, 80 Ala. 273, 60 Am.Rep. 99, and in Capital City Water Co. v. Board of Revenue, 117 Ala. 303, 23 So. 970. The first limitation which included personal property is found in the Constitution of 1868, art. 14 [9], § 1, providing that `all taxes, levied on property in this state, shall be assessed in exact proportion to the value of such property.' This identical clause was adopted in the Constitution of 1875, art. 11, § 1, along with the new provision (article 11, § 4) that `the General Assembly shall not have the power to levy, in any one year, a greater rate of taxation than three-fourths of one per centum on the value of the taxable property within this state.' In that Constitution also was incorporated the provision (section 6, art. 11) that `the property of private corporations, associations, and individuals of this state shall forever be taxed at the same rate.' This clause was a substantial repetition of section 4, art. 13, of the Constitution of 1868. These several limitations on the taxing power were carried into the Constitution of 1901 in totidem verbis. * * *"
The first important case construing the forerunners of §§ 211 and 217 in the present constitution is the case of Mayor of Mobile v. Stonewall Insurance Co., 1876, 53 Ala. 570. The court said:
"The constitutional provision [Const. 1868, Art. XIII, Sec. 4] * * * was intended * * * to cure defects time *449 had developed in former constitutionsto narrow and restrain legislative power in the instances experience had shown it most liable to abuse. Under former constitutions the taxing power was not defined, qualified, or restrained by any other provision than the simple declaration: `all lands liable to taxation in this State shall be taxed in proportion to their value.' On personal property, taxes, either specific or ad valorem, could be imposed as the legislature deemed best. Slaves, formerly the chief subject of taxable personal property, were uniformly taxed, not according to value, but a specific tax was levied, graduated by the age of the slave. On other articles of personal property, such as watches, clocks, etc., a specific, not an ad valorem tax, was imposed. The inequalities of this mode of taxation were the cause of complaint, and we find in the constitution of 1868 the provision, which has been generally introduced into the later constitutions of our sister States: `All taxes levied on property in this State shall be assessed in exact proportion to the value of such property.' * * * No governmental power is more easily abused, or more often perverted, than the taxing power. * * * There cannot be a just interpretationan interpretation which will consummate the intent of the people in the adoption of these and other constitutional provisionswhich is not deduced, not only from their language, but from their historyfrom the causes to which they owe originthe mischief they were intended to remedy. 1 Story's Const., Sec. 405 A * * *.
"* * * A state constitution is always interpreted in the light of the common law, and if it be not the first constitution, in the light of its predecessors. The guaranties for the security of property and of personal liberty, found in the bill of rights, are borrowed chiefly from magna charta, and for their interpretation we look to the common law. New provisions, having their origin in larger experience, introduced into an amended or revised constitution, are to be construed and allowed such operation as will secure the purposes for which they were introduced; and these purposes are to be ascertained from a just consideration of the causes in which they originate.
"* * * Reading these constitutional provisions in the light of their history, and with a due regard to the words in which they are expressed, it is impossible for us to doubt that it was not competent for the general assembly, in the imposition of taxes, to distinguish or discriminate in favor of corporate property subject to taxation. If property of a particular kind is subjected to taxation, and owned by a corporation, it must bear the rate of taxation imposed on individuals. While the constitution inhibits the exemption or discrimination in favor of corporations, it equally inhibits a discrimination against them. Equality in bearing a common burthen, which is natural right and equity, is secured alike to the corporation and to the citizen.
"The constitutional provision [Art. IX, Sec. 1] is broad enough in its letter to comprehend all taxation the legislative power can impose. It is not material whether the imposition is by the legislature, through its own independent action, or by its agencies exercising power it has conferred. * * *"
After the decision in Mayor of Mobile v. Stonewall Insurance Co., supra, this court decided the case of Board for Assessment of Property of Railroad Companies v. Alabama Central R. R. Co., 59 Ala. 551. This was the first case under the Constitution of 1875, Art. XI, §§ 1 and 6. The court said:
"The constitution is plain and imperative. * * * The value of the property, considering the uses for which it is employed, and the profit which may be derived from it, may be ascertained under rules which the legislature may prescribe. The value must be ascertained and taxes assessed upon it. It is not competent for the legislature to declare that any species of property is of a particular value because of its income or to declare that the income alone shall be considered in determining its value. * * *
*450 "There can be no discrimination and no distinction between the property of individuals and of corporations. The constitution obliterates all such discriminations and distinctions; and while the legislature cannot, as formerly, grant to corporations immunity or exemption from taxation, it cannot subject them to any other standard or rate of taxation than that to which natural persons are subjected. * * *"
Subsequently in the case of Clark & Murrell v. The Port of Mobile, 1880, 67 Ala. 217, in referring to §§ 1 and 6 of Art. XI, this court said: "* * * the purpose of the Constitution was to prevent invidious exemptions or discriminations by which the property of an individual, or of a corporation, is relieved from bearing a just proportion of the common burden of taxation, demanded by that equality of right which is a fundamental principle of our institutions * * *."
Later in Moog v. Randolph, 1884, 77 Ala. 597, this court said it was settled
"* * * that the general purpose of these clauses [Art. XI, Secs. 1 and 6] is to establish an ad valorem system of taxation, thus exacting a certain kind of uniformity in the rules of taxation, as applied to property of all persons, whether private or artificial, * * *. Their object has been construed to be, to secure, as far as practicable, that equality in bearing the just burdens of government, which has become a distinguishing characteristic of the American States, and has been well denominated the cornerstone of Anglo-Saxon liberty. * * *
"* * * The legislature would have no power, under the device of a classification, to tax the property of all Jews or Israelites, at a rate greater than that of other citizens; nor to say that others should be exempt from paying taxes because of their peculiar religious tenets, or of the color of their hair. * * *"
Consistent with its uniform ruling that §§ 211 and 217 and the prior sections in the Constitution of 1875, Art. XI, §§ 1 and 6, require equality among corporations, associations and individuals, this court in State Bank v. Board of Revenue, 91 Ala. 217, 8 So. 852, 855, said: "* * * What we do decide is that, whenever the legislature levies a tax on property, the rate must be in exact proportion to the value of such property; and that, if a tax is imposed on any species of property, all property belonging to that species must be taxed at the same rate, whether it belongs to an individual, an association of persons, or to a private corporation. We mean by this not only that in this record natural persons, individuals, or companies stand on the same footing with private corporations, but also that each individual, association, or private corporation is, under our constitution, endowed with the same rights, and subject to the same burdens, as are enjoyed or suffered by every other natural person, association of persons, or private corporation. * * *"
See also State v. Birmingham Southern Railway Co., 1913, 182 Ala. 475, 62 So. 77, and State v. West Point Mfg. Co., 1938, 236 Ala. 467, 183 So. 449.
The correctness of the foregoing decisions was recognized and affirmed by this court in its recent decision in Hamilton v. Adkins, 1948, 250 Ala. 557, 35 So. 2d 183, 188, where it was said:
"Sections 211 and 217 are aimed at securing a practical and common sense equality in taxation. Exact equality is not to be expected nor is it required. In Moog v. Randolph, [1884], 77 Ala. 597, the court in referring to these two sections as they appear in the Constitution of 1875, said:
"`It is settled that the general purpose of these clauses is to establish an ad valorem system of taxation, thus exacting a certain kind of uniformity in the rules of taxation, as applied to the property of all persons, whether private or artificial. * * *'"
In Hamilton v. Adkins et al., supra, this court recognized and approved the doctrine that systematic and intentional discrimination in the assessment of taxes is prohibited by §§ 211 and 217 of the state constitution and it was shown that this could result through the method of administration of a *451 property tax statute even though the statute is fair on its face. In this connection the court in that case said:
"* * * It seems clear that the constitutional principle of uniformity of taxation may be infringed by the method of administration of a property tax statute, even though the statute is fair on its face. Discrimination in the assessment or valuation by administrative officers may result in violation of the equality clause of the Fourteenth Amendment to the Federal Constitution. (Citing authorities.) Before this result can be reached, however, it is necessary that the action of the administrative officials be more than mere error in judgment or result in more than inequality in valuation. It must be shown that the officials are chargeable with a purpose or design to discriminate by a systematic method * * * (citing cases).
"* * * In short there must be a systematic and intentional discrimination before the state constitution is violated. * * *
"We conclude that there was no intentional discrimination."
See also State v. Mobile & Ohio R. Co., 228 Ala. 533, 154 So. 91.
The principle referred to in Hamilton v. Adkins et al., supra, was stated by the Supreme Court of the United States in Yick Wo v. Hopkins, 1886, 118 U.S. 356, 6 S. Ct. 1064, 1073, 30 L. Ed. 220. "* * * Though the law itself be fair on its face, and impartial in appliance, yet if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the constitution. * * *"
From the foregoing cases it appears without question that systematic and intentional discrimination in the assessment of property taxes is prohibited by what are now sections 211 and 217 of the Constitution of 1901.
But it is very earnestly contended that for aught that appears from the bill the Alabama Power Company has not been treated differently from other public utilities. Stated differently, the argument means that since the Alabama Power Company is one of a class it has no grievance since all of the class are treated alike. So the question arises as to whether classification as to owners for tax assessment purposes is authorized under §§ 211 and 217 of the state constitution. In considering this question it is well to remember that §§ 211 and 217 apply to property taxes and not to franchise or privilege taxes. Authorities, therefore, dealing with franchise or privilege taxes are not applicable. Frazier v. State Tax Commission, 234 Ala. 353, 175 So. 402; Phoenix Carpet Co. v. State, 118 Ala. 143, 22 So. 627.
The state insists that §§ 211 and 217, which together with the due process clauses afford the equivalent of the equal protection to taxpayers, Hamilton v. Adkins, supra, must be tested by the rules applicable to the 14th Amendment to the Federal Constitution. This is not correct. In about eight states[1] the state constitutions specifically authorize classification and assessment of different types of property and different rates of taxation to be applied thereto. For example the Constitution of West Virginia provides four separate classifications and four rates of taxation and California provides for different classification. It seems that in these states there can be systematic and intentional classification of different types of property and different rates of taxation. In these states it appears that there is no violation of the respective state constitutions nor is there a violation of the equal protection clause of the 14th Amendment. Authorities from these states cannot be regarded as persuasive here.
The Supreme Court of the United States *452 has held that the equal protection clause of the 14th Amendment is not nearly so narrow or "cramping" as state constitutions. In Nashville, Chattanooga & St. L. Ry. Co. v. Browning, 310 U.S. 362, 60 S. Ct. 968, 971, 84 L. Ed. 1254, that court said: "* * * Equally irrelevant are those cases in which this Court, because of the nature of the litigation, was construing the uniformity clause of a state constitution, and was not applying the Fourteenth Amendment. Greene v. Louisville & I. R. Co., 244 U.S. 499, 37 S. Ct. 673, 61 L. Ed. 1280; Louisville & N. R. Co. v. Greene, 244 U.S. 522, 37 S. Ct. 683, 61 L. Ed. 1291. This Court has previously had occasion to advert to the narrow and sometimes cramping provision of these state uniformity clauses, and has left no doubt that their inflexible restrictions upon the taxing powers of the state were not to be insinuated into that meritorious conception of equality which alone the equal protection clause was designed to assure. * * *"
Also in Puget Sound Power & Light Co. v. King County, 1924, 264 U.S. 22, 44 S. Ct. 261, 263, 68 L. Ed. 541, the Supreme Court of the United States stated that it was considering the case "only from the standpoint of the Fourteenth Amendment to the federal Constitution", saying: "* * * Counsel cite us cases which have little relation to the federal question before us. Johnson v. Wells Fargo & Co., 239 U.S. 234, 36 S. Ct. 62, 60 L. Ed. 243; Ewert v. Taylor, 38 S.D. 124, 160 N.W. 797; State ex rel. Owen v. Donald, 161 Wis. 188, 153 N.W. 238, and like cases involved the application of somewhat stringent provisions of state Constitutions as to equality of taxation on all kinds of property which left but little room for classification. * * *"
So decisions of the Supreme Court of the United States recognize that provisions of state constitutions as to equality and uniformity can be and often are more restrictive in their requirements than is the equal protection clause of the 14th Amendment. While the latter is not necessarily violated by classification, a state constitution such as that of Alabama is violated by classification for tax assessment purposes unless there is uniformity and equality among all taxpayers, "private corporations, associations and individuals alike," both as to ratio and percentage of taxation and also as to rate of taxation. Accordingly it is not correct to say that the Alabama Constitution which requires equality and uniformity in tax assessments and tax rates is as flexible and broad as the equal protection clause of the 14th Amendment.
There is nothing in the decision of this court in Hamilton v. Adkins, 250 Ala. 557, 35 So. 2d 183, which is contrary to what has here been said. The court in that case was calling attention to the omission in the Constitution of 1901 of the equal protection clause of the Constitution of 1875, Art. 1, § 2, as follows: "That all persons resident in this state, born in the United States, or naturalized, or who shall have legally declared their intention to become citizens of the United States, are hereby declared citizens of the State of Alabama, possessing equal civil and political rights."
However, despite the omission of the foregoing clause from the Constitution of 1901, we said in substance that the due process clause coupled with §§ 211 and 217 afforded the equivalent of equal protection to a taxpayer to have his tax assessment uniform and equal with other taxpayers and not to be discriminated against by systematic or intentional assessment. The question of classification which we are considering now was not before the court in that case. However if any inference can be drawn from that opinion contrary to what is here said, that opinion is hereby corrected to conform hereto.
The state relies upon State v. Hall, 172 Ala. 316, 54 So. 560. That case is not authority here. It is enough to say that in that case the taxpayer offered to show the custom of the county commissioners in assessing property at sixty percent of its fair market value instead of 100 percent, the position of the taxpayer being that if her property be assessed at its fair cash value this would result in denial to her of the equal protection of the law because other property owners enjoy the benefit of assessment at only sixty percent of fair value. *453 In the case at bar there is, as there was not in the Hall case, an allegation of an intentional and systematic undervaluation of the property of other taxpayers generally at less than forty percent and the valuation of appellee's property at sixty percent. The case of State v. Hall, supra, is referred to in the subsequent case of Penney v. State, 221 Ala. 230, 128 So. 596, 598, where the court referred to the acts of 1911 and noted that the provision of the revenue act was later eliminated, "evidencing a legislative purpose to return to the rule theretofore declared in our decisions." The court added: "It is the declared law by the decisions of the Supreme Court of the United States that arbitrary discrimination against a taxpayer, in the matter of valuation for tax purposes, deprives the owner of property without due process of law and denies him the equal protection of the law. But this rule is limited to an `intentional and systematic' valuation of property below its real value, or the statutory percentage for tax purposes, while discriminating against the individual in purposely holding him to a higher basis of value. * * *"
Appellant expresses the view that our cases dealing with exemptions from ad valorem taxes in effect admit the principle of classification. It is quite true that exempting property from ad valorem taxes is not prohibited by §§ 211 and 217 of the Constitution. Accordingly property may be classified for exemption. In re Opinion of the Justices, 234 Ala. 358, 175 So. 690; Frazier v. State Tax Commission, 234 Ala. 353, 175 So. 402; State v. Birmingham Southern Ry. Co., 182 Ala. 475, 62 So. 77. But as to all property that is taxed, it must be taxed uniformly or equally at the same rate and ratio of assessment no matter by whom owned. State v. Alabama Fuel & Iron Co., 188 Ala. 487, 66 So. 169. In Proctor v. State, 215 Ala. 6, 109 So. 105, 106, it was said:
"Section 217 of the Constitution declares that: `The property of private corporations, associations, and individuals of this state shall forever be taxed at the same rate. * * *'
"This section is a guaranty of uniformity and equality in the rate of taxation, and this requirement is fully met when a like tax is levied upon the same class of property by whomsoever owned. * * *"
Further the position is taken by appellant that classification is evidenced in the action of the legislature in providing for the assessment of property of public utilities in a separate chapter of the code, Chapter 10, Title 51, Code of 1940, which shows, it is claimed, that the State Department of Revenue was thereby given the power to assess such property on a separate and higher ratio. Before discussing the action of the legislature in providing for assessment of the property of public utilities in a separate chapter, we should consider further the matter of classification in the light of §§ 211 and 217 of the Constitution of 1901. We referred briefly to this subject in reference to exemptions. The legislature has the undoubted right to select certain species or classes of property for taxation. So it may select one species or class and fail or refuse to select another species or class. For example it may select for taxation only real estate, with resulting exemption of personalty and vice versa. State v. Birmingham Southern Ry. Co., 182 Ala. 475, 62 So. 77. But once a species or class of property is selected by the legislature for taxation then the constitutional provisions come into play and all property of such species or class that is taxed must be taxed uniformly or equally at the same rate regardless of its ownership. Lee v. State Tax Commission, 219 Ala. 513, 123 So. 6. Once property is made taxable there is but one classification and that classification is property under the very language of the constitution.
In order to give a proper interpretation to §§ 211 and 217, they should be considered in the light of constitutional provisions, if any, which they supplanted, State v. Birmingham Southern Ry. Co., supra, and with a regard for the meaning of words and phrases usually accorded to them at the time they were used. Ex parte Pepper, 185 Ala. 284, 64 So. 112; *454 O'Rear v. Sartain, 193 Ala. 275, 69 So. 554. Under the constitutions in effect before 1868 irregularities existed with respect to personal property by classes. Accordingly the provisions requiring taxation of land in proportion to its values so as to embrace all property was enacted. Authorities supra. It can hardly be contended that after all these years of constitutional history there is a power to classify land and personal property of one taxpayer and tax it on a different basis from the land and personal property of others in the face of §§ 211 and 217.
The word property as employed in §§ 211 and 217 is used to designate a certain subject of taxation, Western Union Telegraph Co. v. State Board of Assessment, 80 Ala. 273, 60 Am.Rep. 99; Capital City Water Co. v. Board of Revenue of Montgomery Co., 117 Ala. 303, 23 So. 970, as contrasted with other subjects of taxation such as persons, rights and privileges. Beeland Wholesale Co. v. Kaufman, 234 Ala. 249, 174 So. 516; State v. Weil, 232 Ala. 578, 168 So. 679.
In 1924 the Kansas Constitution was amended so as to permit classification of certain species of property, Rev.Stat.Kan. 1935, nevertheless the Kansas Court has held that such amendment does not permit classification based on ownership. In Voran v. Wright, County Treasurer, et al., 129 Kan. 601, 284 P. 807, 810, the Kansas Court said: "Whatever may have been proper as to classification of owners under this section before the amendment, there can no longer be any question in that regard. A classification as to owners is not now permissible. The only classification authorized or tolerated by this constitutional provision is that of property, and it makes no difference by whom it may be owned, whether by individual, merchant, manufacturer, banking institution, or other corporation. Every classification is now limited to property, and only four kinds of property, viz., mineral products, money, mortgages, notes, and other evidence of debt. We recognize that this conclusion is not in harmony with the holding in the case of Davis-Wellcome Mortgage Co. v. Haynes, 119 Kan. 1, 237 P. 918, and the decision in that case will be overruled in so far as it attempted to recognize or sustain any classification other than that of property. The constitutional provision not only retains the requirement of a uniform and equal rate of assessment and taxation, but adds an exaction with reference to the four kinds of property subject to classification, that they be classified and taxed uniformly as to class as the Legislature shall provide, thus imposing upon the Legislature the imperative duty of providing for uniformity as to each class whenever and wherever it adopts or creates a classification of property."
What we want to make clear is that railroads and public utilities cannot be put in a class to themselves and their property taxed on a basis different from other taxpayers in the light of §§ 211 and 217 of the Alabama Constitution. If this were not true not only would §§ 211 and 217 of the Alabama Constitution be emasculated but the confusion which would result is apparent. It would mean that if a piece of real estate is owned by an individual, the county tax assessor could assess the same at less than 40% of its value, while on the contrary if an adjacent piece of real estate is owned and occupied by a company which is a public utility as an office or store, it could be assessed at 60% of its value. No such power can be said to exist under the Alabama Constitution.
There is no doubt that carriers and other utilities have a "separateness" which affords a reasonable basis for classification under the equal protection clause of the 14th Amendment. This separateness grows out of such things as "the right of eminent domain, the use of public property, special franchise or public contracts" etc. Rapid Transit Corp. v. City of New York, 303 U.S. 573, 58 S. Ct. 721, 724, 82 L. Ed. 1024. But under §§ 211 and 217 there can be no distinction between taxpayers with different powers or who own different kinds of real or personal property, because all property must be taxed at the same rate by whomsoever owned. Authorities supra.
*455 But since it is claimed that classification is shown in the action of the legislature in providing for the assessment of public utility property in a separate chapter of the code, we shall proceed to consider this contention, so that no cloud will be left hanging over the provisions of these sections of the code.
The use of the word classes or similar words in the statutes with respect to the assessment for taxation, § 1-188, Title 51, Code of 1940, has no significance here. These statutes simply contemplate that in assessing property the taxpayer or tax assessor shall list all the different kinds and types of property owned by the taxpayer. On one sheet the taxpayer lists his real estate and improvements thereon and on another sheet he lists his personal property. The personal property is then broken down into a considerable number of different types, classes or species of property set out in the printed form. This does not mean that any different ratio of assessment or valuation shall be applied to any one species or class as distinguished from the others but on the contrary all must be alike, equal or uniform. The reason for enumerating the various species or classes of property is to make sure that the taxpayer is listing for assessment and taxation all his property and not omitting or overlooking any. In this connection this court in Daffin v. Scotch Lumber Co., 226 Ala. 33, 145 So. 452, 455, said: "There can be no doubt that it was within the power of the tax assessor to classify the property listed, in making up the assessment roll, and to place the dwellings and log camps in the real estate column. 3 Cooley on Taxation, § 1065. And the mere fact that the aggregate value of the real estate was increased in this way, without increasing the aggregate value of the whole property over the previous year, did not require notice to the taxpayer."
The fact that properties of utilities, railroads, etc., are assessed by the Department of Revenue whereas other property is assessed by the county tax assessor makes no difference. In this case the properties of appellee are located in every county in the state except ten. They are, however, integrated into one operating system or unit. It is necessary therefore to ascertain the value of the entire system or operating unit and then allocate that to the various counties in which parts of its property are located. It often happens in the case of railroads that their properties lie in several states and yet all are integrated into one operating unit. In such a situation it is necessary to ascertain the value of the entire system and then allocate to Alabama its proportional share and within the state allocate to the various counties the value of properties in such counties. For these reasons the legislature provided that the department of revenue which has the personnel and machinery for doing this work be required to ascertain the assessed value of utilities and railroads, etc., and then pro rate it. Permitting the legislature to provide for utilities etc. to be assessed by the department of revenue "* * * relates merely to the mode of assessment and collection, and manifestly does not permit a departure from the requirements of uniform taxation in proportion to value, and an identical rate as between corporate and individual property, contained in §§ 171 and 174 (of the Kentucky Constitution). * * *" Greene v. Louisville & Interurban R. R. Co., 244 U.S. 499, 512, 37 S. Ct. 673, 679, 61 L. Ed. 1280, 1287.
The duties of the department of revenue are set forth in Chapter 10, §§ 114-141, Title 51, Code of 1940. There is imposed on the department of revenue the general and complete supervision and control of the valuation, equalization and assessment of property and all other taxes for the state and counties "to the end that all taxable property in the state shall be assessed and taxes shall be imposed and collected thereon in compliance with the law, and that all assessments on property, privileges, intangible (s), and franchises in the state shall be made in exact proportion to the fair and reasonable market value thereof in substantial compliance with the law." Section 131, Title 51, Code of 1940.
We have mentioned these things in order to show that the legislature has made no effort to contravene the Constitution *456 of the State but as stated above it could not do indirectly what the constitution forbids being done directly. Cummings v. Merchants National Bank, 101 U.S. 153, 25 L. Ed. 903; Cumberland Coal Co. v. Board of Revision, 284 U.S. 23, 52 S. Ct. 48, 76 L. Ed. 146.
Before leaving the subject of classification we point to the significance of the income tax amendment to the Constitution, Amendment No. XXV. In order to levy and collect an income tax it was necessary to amend our constitution so as to permit such tax, which is a direct tax, to be levied. Eliasberg Bros. Mercantile Co. v. Grimes, 204 Ala. 492, 86 So. 56, 11 A.L.R. 300. The authors of the constitutional amendment recognized that an income tax was a direct tax the same as an ad valorem tax on property generally and, therefore, §§ 211 and 217 would require uniformity and equality. Accordingly the constitutional amendment expressly authorizes income tax to be on a graduated scale or basis and specifically provides that income should not be regarded or treated as property for ad valorem tax purposes. From this we can clearly assume that in drafting and adopting the income tax constitutional amendment, it was fully recognized that all taxable property in the state, by whomever owned, must for ad valorem tax purposes be taxed uniformly and equally at the same rate and the same ratio of assessment.
Finally it is apparent that for aught that appears from the allegations of the bill of complaint the properties of Alabama Power Company were taxed at sixty percent of their fair and reasonable value and so the question arises as to why or how the Alabama Power Company is entitled to any relief. The principle of systematic and intentional undervaluation has been considered by the courts of this country for many years. It results from the assessment of certain property at the statutory ratio of assessment and the intentional and systematic assessment of the property of others at a lesser ratio. Such a discrimination has uniformly been held to be a violation of the principle of equal protection under constitutional provisions requiring uniformity. The question as to what relief the taxpayer under the circumstances is entitled to appears to have a plain answer under the authorities. In Taylor v. Louisville & N. R. Co., 6 Cir., 88 F. 350, 365, certiorari denied 172 U.S. 647, 19 S. Ct. 887, 43 L. Ed. 1182, the question is answered. "* * * The court is placed in a dilemma, from which it can only escape by taking that path which, while it involves a nominal departure from the letter of the law, does injury to no one, and secures that uniformity of tax burden which was the sole end of the constitution. To hold otherwise is to make the restrictions of the constitution instruments for defeating the very purpose they were intended to subserve. It is to stick in the bark, and to be blind to the substance of things. It is to sacrifice justice to its incident. * * *"
The foregoing case held that the railroad was entitled to have its assessment reduced to the same level that property generally was assessed and ordered a reduction accordingly. The Tennessee Constitution required equality and uniformity. The Tennessee statutes required assessments of full value. The evidence showed that railroad property was assessed at a higher level or ratio than property generally throughout the state was assessed. Accordingly the court said it was placed in a dilemma as between the constitutional requirement of equality and uniformity and the statute requiring assessment at full value, whereas property generally was assessed at much less than full value.
In the case of Sioux City Bridge Co. v. Dakota County, 260 U.S. 441, 43 S. Ct. 190, 191, 67 L. Ed. 340, the Supreme Court of the United States said: "* * * The dilemma presented by a case where one or a few of a class of taxpayers are assessed at 100 per cent. of the value of their property in accord with a constitutional or statutory requirement, and the rest of the class are intentionally assessed at a much lower percentage in violation of the law, has been often dealt with by courts and there has been a conflict of view as to what should be done. There is no doubt, however, of the view taken of such cases by the federal *457 courts in the enforcement of the uniformity clauses of state statutes and constitutions and of the equal protection clause of the Fourteenth Amendment. The exact question was considered at length by the Circuit Court of Appeals of the Sixth Circuit in the case of Taylor v. Louisville & Nashville R. R. Co., [6 Cir.] 88 F. 350, 364, 365, and the language of that court was approved and incorporated in the decision of this court in Greene v. Louisville & Interurban R. R. Co., 244 U.S. 499, 516, 517, 518, 37 S. Ct. 673, 61 L. Ed. 1280. * * *"
In Greene v. Louisville & Interurban R. R. Co., 244 U.S. 499, 37 S. Ct. 673, 61 L. Ed. 1280, the court quoted with approval similar language from the Taylor case, supra, and followed the holding that the railroad was entitled to a reduction in its assessment to the level that other property generally was assessed throughout the state.
In Cumberland Coal Co. v. Board of Revision, 284 U.S. 23, 52 S. Ct. 48, 51, 76 L. Ed. 146, the court said:
"* * * The undervalued property is in effect valued at less than 50 per cent. of its actual value; for example, coal of the same description worth twice as much, as that of the Cumberland Coal Company was really valued at 25 per cent. of its actual value.
"The petitioners are entitled to a readjustment of the assessments of their coal so as to put these assessments upon a basis of equality, with due regard to differences in actual value, with other assessments of the coal of the same class within the tax district."
The court in referring to the dilemma where the constitution requires equality and a statute requires a certain percent of value said: "* * * This Court holds that the right of the taxpayer whose property alone is taxed at 100 per cent. of its true value is to have his assessment reduced to the percentage of that value at which others are taxed even though this is a departure from the requirement of statute. The conclusion is based on the principle that where it is impossible to secure both the standard of the true value, and the uniformity and equality required by law, the latter requirement is to be preferred as the just and ultimate purpose of the law."
We make it clear that the taxpayer whose property the assessing authorities have assessed on a basis considerably more than the basis on which other property is intentionally and systematically assessed is not required to undertake to have the property of other taxpayers which is intentionally and systematically assessed on a lower basis increased to the basis which the complaining taxpayer is assessed. The Supreme Court of the United States has laid at rest all doubt about any such remedy and has held that it is no remedy at all. In the case of Hillsborough Tp., Somerset County, v. Cromwell, 326 U.S. 620, 66 S. Ct. 445, 448, 90 L. Ed. 358, discrimination in ratio of valuation or assessment was involved and was held to be illegal and unconstitutional. This case arose in New Jersey where there was a state statute which prescribed that under such condition the only remedy afforded the taxpayer was by a proceeding against other taxpayers for the purpose of having their taxes increased rather than having the complaining taxpayer's assessment reduced. The Supreme Court held that the remedy was not adequate nor did it afford constitutional protection, saying: "* * * The constitutional requirement, however, is not satisfied if a State does not itself remove the discrimination, but imposes on him against whom the discrimination has been directed the burden of seeking an upward revision of the taxes of other members of the class. Sioux City Bridge Co. v. Dakota County, 260 U.S. 441, 445-447, 43 S. Ct. 190, 191, 192, 67 L. Ed. 340; Iowa-Des Moines Nat. Bank v. Bennett, 284 U.S. 239, 247, 52 S. Ct. 133, 136, 76 L. Ed. 265; Cumberland Coal Co. v. Board of Revision, 284 U.S. 23, 28, 29, 52 S. Ct. 48, 50, 76 L. Ed. 146. * * *"
In Iowa-Des Moines Nat. Bank v. Bennett, 284 U.S. 239, 52 S. Ct. 133, 136, 76 L. Ed. 265, the Supreme Court likewise said: "* * * But it is well settled that a taxpayer *458 who has been subjected to discriminatory taxation through the favoring of others in violation of federal law cannot be required himself to assume the burden of seeking an increase of the taxes which the others should have paid. Cumberland Coal Co. v. Board of Revision, supra; Greene v. Louisville & Interurban R. Co., 244 U.S. 499, 514-518, 37 S. Ct. 673, 61 L. Ed. 1280; Chicago Great Western Ry. Co. v. Kendall, 266 U.S. 94, 98, 45 S. Ct. 55, 69 L. Ed. 183; Sioux City Bridge Co. v. Dakota County, supra. Nor may he be remitted to the necessity of awaiting such action by the state officials upon their own initiative."
In Taylor v. Louisville & N. R. Co., 6 Cir., 88 F. 350, 364, certiorari denied 172 U.S. 647, 19 S. Ct. 887, 43 L. Ed. 1182, the contention was disposed of in these words: "* * * It is said on behalf of the defendants that the only method consistent with the constitution is by raising the assessments of the real and personal property. This is no remedy at all. * * * The absolute futility of such a course, the enormous expense, and the length of time necessary in attempting to follow it, need no comment. * * *"
See also Sioux City Bridge Co. v. Dakota County, 260 U.S. 441, 43 S. Ct. 190, 67 L. Ed. 340.
The appellee is entitled to show by due proof, if it can, that the facts alleged in the bill of complaint are true and of course must prove the allegations of the bill before it is entitled to relief. As stated at the outset on demurrer we assume as true the facts as alleged in the bill. We think the bill has made out a case of relief for the appellee which the court has the power to grant in this proceeding. Section 140, Title 51, Code of 1940.
It results that the decree of the lower court is correct and must be affirmed.
Affirmed.
BROWN, LIVINGSTON, LAWSON and SIMPSON, JJ., concur.
[1] California (1849); Georgia (1937); Illinois (1870); Kentucky (1915); Maryland (1915); New Jersey (1844); Virginia (1928), and West Virginia (1932). | October 19, 1950 |
436de5c2-5566-48b9-9aef-ec124b002fe4 | Terry v. Gresham | 48 So. 2d 437 | N/A | Alabama | Alabama Supreme Court | 48 So. 2d 437 (1950)
TERRY
v.
GRESHAM.
8 Div. 546.
Supreme Court of Alabama.
May 18, 1950.
On the Merits October 26, 1950.
*438 Arthur D. Shores and Peter A. Hall, of Birmingham, for appellant.
Harold T. Pounders and Orlan B. Hill, of Florence, for appellee.
FOSTER, Justice.
This cause was submitted on several motions of appellee. Two of them are to the same effect and in substance are that the transcript of the evidence, objections, oral motions and rulings of the court certified by the court reporter, and extending from page 16 to 66, be stricken as a part of the record of the proceedings, for that it is not a bill of exceptions under sections 783 and 821, Title 7, Code, and because the Act of 1943, page 423, abolishing bills of exceptions in certain courts, section 827(1), Title 7, Code (Pocket Part); Supreme Court Rule 48, Code 1940, Tit. 7 Appendix, has no application to trials in the probate court.
We think the motion is well taken. The certified transcript is not in proper form or content to be a bill of exceptions. The Act of 1943 and Rule 48, supra, abolishing bills of exceptions only apply to circuit courts and courts of like jurisdiction and to all other courts of record having a full time court reporter and from which appeals lie directly to the Court of Appeals or the Supreme Court. We have held that this applies to all circuit courts and courts of like jurisdiction, though they do not have a full time court reporter. Chaney v. City of Birmingham, 246 Ala. 147, 21 So. 2d 263. The plain language is that it does not apply to other courts except those of record which have a full time court reporter and an appeal lies from its judgments to the Supreme Court.
The probate court is a court of record, 21 C.J.S., Courts, § 310, p. 562; section 149, Constitution of 1901, and an appeal lies directly to this Court, section 776, Title 7, Code, but it does not have a full time court reporter. Sections 261 et seq., Title 13, Code.
It is therefore apparent that in that court bills of exceptions have not been abolished and the transcript certified as authorized by the Act of 1943, supra, section 827(1), Title 7, supra, has not been substituted in the probate court for a bill of exceptions. The result is that the motion to strike such transcript should be and it is sustained.
Appellee also moves to dismiss the appeal because the appeal bond is not conditioned "faithfully to discharge his duties as such executor or administrator" until the appeal is decided. The bond is conditioned to "prosecute the said appeal to effect, and satisfy such decree as may be rendered against him in said cause by the Supreme Court."
The appeal is from a decree of the probate court, by which the administration of the estate of the deceased Mollie Terry Glenn, together with the letters of administration theretofore issued to George Terry on said estate, were thereby rescinded, revoked and annulled. The appeal is claimed under authority of section 776(3), Title 7, Code, from a judgment or order removing an executor or administrator, to be taken within five days after such judgment or order. The order of removal was dated January 10, 1950. The appeal bond was approved January 15, 1950. It plainly did not comply with section 779, Title 7, Code, though good as to security for costs.
Appellant's counsel in his oral argument opposing this motion requested that in event we find this appeal not to comply with section 779, supra, we allow him an opportunity to file a bond conditioned as required by that statute.
In the case of Murphy v. Freeman, 220 Ala. 634, 127 So. 199, such an appeal was taken without the bond being conditioned as required by section 6118, Code of 1923, section 779, Title 7, Code. The cause was submitted in this Court without a motion to dismiss the appeal. Appellees made such a motion after the submission of the case, and this Court held that the security for costs conferred jurisdiction to the court and that the motion came too late. There was no occasion therefore to make use of section 806, Title 7, Code. That statute provides that no appeal shall be dismissed for want of sufficient appeal bond if the appellant will give sufficient bond. We assume that this means to apply only when *439 such sufficient bond is either given in the time allowed for taking the appeal or an effort to appeal has been made in that time, which is sufficient to confer jurisdiction on this Court.
When jurisdiction has been thus conferred by executing bond and having it approved, conditioned to pay the costs of such appeal, section 782, Title 7, Code, this Court should allow it to be amended as directed by section 806, supra, even though after the period in which the appeal may be taken. Colbert County v. Tennessee Valley Bank, 225 Ala. 632, 144 So. 803; Hall v. Proctor, 239 Ala. 211, 194 So. 675; Williams v. Prather, 236 Ala. 652, 184 So. 473.
It is therefore ordered that appellant be allowed six days from this date in which to have approved by the clerk of this Court a bond with two good and sufficient sureties in the penal sum of $2500, payable and conditioned as required by section 779, supra, or approved by the probate judge of Lauderdale County and certified by him to this Court in said period. In event of a failure to comply with this order, as herein directed, this appeal shall stand dismissed.
Motion to expunge is granted. Motion to dismiss the appeal is overruled conditionally.
LAWSON, SIMPSON and STAKELY, JJ., concur.
On the Merits.
BROWN, Justice.
This appeal is from the decree of the Probate Court of Lauderdale County entered on the 10th day of January, 1950, rescinding, revoking and annulling the pending administration on the estate of Mollie Terry Glenn, deceased, in which the appellant George Terry had been duly and regularly appointed as administrator of the estate, and had entered upon the administration thereof.
The case was submitted on brief on May 25, 1950. In the absence of a bill of exceptions, we are limited to a review of the proceedings of the probate court on the record proper. This record shows that the decedent Mollie Terry Glenn died intestate on April 30, 1949, in Florence, Lauderdale County, Alabama; that she was an inhabitant of said county living in the City of Florence and died seized and possessed of property both real and personal consisting chiefly of a one-third undivided interest in real estate with annual rental value of $412, all of said personal property and real estate being estimated to be worth $2500 and probably not more. The appellant George Terry, a brother of said decedent, a resident of Florence, Alabama, over the age of 21 years, filed his petition for appointment as administrator, after the lapse of more than forty days from the date of the death of decedent, verified by oath, giving the names and residences, ages and condition of the heirs and the condition of said estate, "so far as your petitioner knows and believes are as follows: to wit: Frances Gresham, granddaughter, over 21, Lauderdale County, Alabama. Roscoe Terry, brother, over 21, Bitely, Michigan. George Terry, brother, over 21, Florence, Alabama."
Upon the filing of said petition letters of administration were duly granted and issued to said petitioner upon giving bond in the sum of $2500, which was duly approved by the probate judge. He thereupon entered upon the administration of said estate by filing claim as required by statute against estate of said Mollie Terry Glenn with the judge of probate. Code of 1940, Title 61, §§ 210, 214. The claims so filed are for "Funeral Expenses$322.75, Expense of last illness$138.00, Care and Upkeep$3500.00, Payment of Note of decedent$266.66, Total $4227.41." Said claims were marked "Filed in office this 30 day of Dec. 1949, Herman K. Longshore, Judge of Probate."
The administration proceedings up to this point are in all things regular, showing prima facie that there were claims against the estate which must be presented and filed in the administration proceedings, some of which do not grow out of or arise from the relation of the parties as tenants in common, and the statute requires that *440 such claims, in order to prevent the bar of the statute of limitations, must be filed in the administration proceedings. Code of 1940, Title 61, §§ 210, 214. The claim for money expended for burial expenses is a preferred claim against the estate and as held by this court "is regarded as money paid on request of the personal representative; and the law raises a promise to repay it, so far as he has assets." Gayle's Adm'r v. Johnston, 72 Ala. 254, 257; Page v. Skinner, 220 Ala. 302, 125 So. 36; Wommock v. Davis, 228 Ala. 362, 153 So. 611. We quote from the opinion of the court in Gayle's Adm'r v. Johnston, supra: "The burial, of necessity, here devolves as a duty upon friends or relatives; for, until fifteen days after death, there can be no administration, or grant of letters testamentary. Priority of payment of funeral expenses, as at common law, the statute secures. Code of 1876, § 2430. The amount of such expenses, when paid by a friend or relative, is regarded as money paid on request of the personal representative; and the law raises a promise to repay it, so far as he has assets. Hapgood v. Houghton, 10 Pick., Mass., 154."
To prevent the bar of the statute, there must be an administration and such claims must be filed within six months or they are barred by the statute. Code of 1940, Tit. 61, §§ 210, 214. The same thing may be said of some of the other claims filed such as the payment of a debt evidenced by note of the decedent. These claims do not arise out of the relation of joint ownership and they stand on the same basis as any other outside claim against said estate. The only claims which the statute exempts from being filed are "claims of executors or administrators to compensation (compensate) for their services as such," and such sums properly disbursed by them in the course of the administration. Foster v. Foster, 219 Ala. 70, 121 So. 80.
The question therefore presented by the appeal is whether or not the probate court created by law as a court in which estates may be administered, may "shuck" its jurisdiction, which has been duly invoked and assumed, by rescinding, revoking and annulling its previous exercise of jurisdiction in setting up the administration in due course and in strict conformity with the course of the common law and the statutes, Code of 1940, Tit. 61, §§ 80, 81, 83 and 96, merely because an heir at law has previously filed a bill against some of the joint owners or tenants in common for a sale of the lands for division on the ground that the same cannot be equitably divided among the joint owners without a sale and for an accounting? It clearly appears from the face of the court's decree that this was the only ground on which the court proceeded. We quote from the decree.
"This being the day heretofore appointed by the Court for the hearing of the motion heretofore filed by Frances Gresham seeking to cancel and annul the administration heretofore granted by this Court on the 15th day of September, 1949, on the estate of Mollie Terry Glenn, deceased, and it appearing to the Court that due notice of the time and place set for said hearing, together with a copy of said motion was served upon George Terry, the person to whom letters of Administration on said estate were issued, and upon Arthur Shores, his attorney of record, as shown by the record of said administration, and the movant being present in court in her own proper person, and also by her attorneys, and the said administrator, George Terry, being present in Court in his own proper person, and also by his attorneys, the Court proceeds to hear the evidence. * * *
"And the Court having heard and considered the evidence finds that at the time said letters of administration were issued, and at the time of this hearing, there was no necessity for an administration on the estate of said decedent, and that there are no debts against said estate, except such debts or equities as may exist between Roscoe Terry, George Terry, and Frances Gresham, and that letters of administration on said estate were improvidently granted because all the equities between said tenants in common can be adjudicated in the suit now pending, and which was pending, in the Circuit Court in Equity of Lauderdale County, Alabama, at the time the administration on the estate of said decedent was granted.
*441 "It is therefore ordered, adjudged and decreed by the Court that the administration now pending in the Probate Court of Lauderdale County, Alabama, on the estate of Mollie Terry Glenn, deceased together with the letters of administration heretofore issued to George Terry on said estate, be and the same hereby are rescinded, revoked, and annulled.
"It is further ordered that the said George Terry, as Administrator of the estate of Mollie Terry Glenn, deceased, be and he is hereby required to file his accounts, vouchers, and make final settlement of said estate within thirty days as required by law, and that notice of such final settlement be published as required by law. It is further ordered, adjudged and decreed that a copy of this decree be served upon Bessie Foster and Eddie Grimes, the sureties on the administrator's bond.
"It is further ordered, that George Terry, individually, pay the cost of this proceeding, for which let execution issue."
The legal effect of the decree is that the court, proceeding contrary to the law of the land, attempts to abdicate its powers in disregard of the policy of the law which creates it and in denial of the rights of the interested parties to a due administration of the estate; removes and revokes the appointment of the duly appointed administrator of the estate on grounds not enumerated in the statute which, so far as the probate court is concerned, are exclusive of all other causes. Code of 1940, Tit. 61, § 178; Castleberry v. Hollingsworth, 215 Ala. 445, 111 So. 35, 36. In the last cited case Justice Gardner, writing for the court, observed:
"The case of Kidd v. Bates, 120 Ala. 79, 23 So. 735, 41 L.R.A. 154, 74 Am.St.Rep. 17, dealt with the question of selection and appointment of administrators, and is of interest in this connection. The case of McFry v. Casey, 211 Ala. 649, 101 So. 449, cited by counsel for appellant, involved a protest of an appointment of an administrator and is without influence upon this appeal, so far as the court of probate is concerned, the grounds for removal specified in the statute (section 5789, Code of 1923) are held to be exclusive (Crommenlin v. Raoull, 169 Ala. 413, 53 So. 745; Bell v. Fulgham, 202 Ala. 217, 80 So. 39). See, also, note to Pfefferle v. Herr, 138 Am.St. Rep. 527, 537; 23 C.J. 1117; 11 R.C.L. 96. We find it unnecessary, as did the court in Randle v. Carter [62 Ala. 95] supra, to determine whether the equity court may remove an administrator for cause other than there specified in the statute.
"The matter of conflict of interest is not one of the grounds so specified, and was held insufficient for removal in a court of equity in Randle v. Carter, supra. Any anticipated difficulty of settlement of the estate is answered by the provisions of section 6057, Code of 1923, for the appointment of an administrator and letters in connection with section 6061, Code, providing for the character of decree to be rendered in such contingency. We do not construe section 6476 of the Code as intended to affect the substantive law as established by statute and decision. Dent v. Foy, 206 Ala. 454, 90 So. 317."
The probate court had no authority to transfer the administration of the estate to the circuit court in equity nor confer jurisdiction on said court to settle matters pending in the probate court. Hamby v. Hamby, 165 Ala. 171, 51 So. 732, 138 Am. St.Rep. 23. Such removal could only be affected by a decree of the equity court made under the provisions of the statute authorizing the transfer of administration of estate to such court. Title 13, § 139, Code of 1940; Hamby v. Hamby, supra.
The probate court after quashing and annulling all proceedings was without authority to retain the matter in the probate court to compel the appellant to make final settlement of said administration, there being no such administration after such quashing and vacating order was entered. We are therefore of opinion that the probate court erred in entering the decree from which this appeal is prosecuted, and the same is reversed and the cause is remanded for further proceedings not inconsistent with this opinion.
Reversed and remanded.
*442 STAKELY, J., concurs in the opinion and judgment.
LAWSON and LIVINGSTON, JJ., concur in the judgment and the result.
FOSTER and SIMPSON, JJ., dissent.
SIMPSON, Justice.
I dissent.
No law is declared or established, since only two agree with the opinion, the other two limiting agreement to the result, namely, reversing the trial court. I don't think the law should operate to bring about that result, since there is no certainty as to the law governing.
It will be my endeavor to rationalize a proper decision of the case, with certain well-established legal guideposts to set direction.
This is not a case where a court, having taken jurisdiction of a matter, tries to abdicate its powers in favor of another court. It is a case to revoke and annul letters of administration previously issued because, after due hearing, the court has become convinced that an administration on the estate is not necessary and that letters were improvidently issued. It is universally held that, irrespective of statute, the court issuing such letters has inherent power to revoke them under such circumstances. Murphy v. Freeman, 220 Ala. 634, 637, 127 So. 199, 70 A.L.R. 381; 33 C.J.S., Executors and Administrators, § 84, p. 1018; Starlin v. Love, 237 Ala. 38, 185 So. 380; Curtis v. Williams, 33 Ala. 570.
In line with this principle it has been consistently held that where the estate owed no debts, or, owing debts, satisfactory arrangement for taking care of them has been made between the creditors and heirs, and no other sufficient cause is made to appear for administering, an administration on the estate is not necessary and if, under such circumstances, letters have been issued, the issuing court will revoke them as improvidently granted. Murphy v. Freeman, supra.
The principle is here governing. The probate court in such matter is a court of general jurisdiction, Code 1940, Title 13, § 278, and being so, and the transcript of the evidence taken at the hearing having been here stricken, any state of facts not contradicted by the record itself must be presumed in order to sustain the finding below.
Therefore, when the court found as a fact that the only debts and equities were those existing between the co-tenants in the partition suit (wherein other relief was also asked) already pending in equity when the letters were granted, and that an administration was unnecessary, resulting in the conclusion that the letters had been improvidently issued, this should be the end of the law in the case. We do not know what evidence induced that finding by the court, but we should not assume a state of facts to contradict it. The mere recording of the claims of George Terry, who procured letters of administration to be issued to himself, cannot serve to contradict the finding of the court. From aught appearing, after a full consideration of the evidence, the court might have become convincedprobably wasthat such claims were spurious and that the sole purpose of George Terry in procuring letters to be issued to himself was to retain control of the estate against the lawful heir (to prevent which was one of the purposes of the equity suit she filed) and to load the estate with expenses of administration, such as his commissions, attorney's fees, etc. Such an interpretation of the decree is not unwarranted by the record. Being so, the decree revoking the letters should be affirmed.
That the equities between the coparceners in the partition suit (where an accounting was prayed by Gresham against the Terrys) can be fully adjudicated and protected is not doubted. Code 1940, Title 47, §§ 186, 189; Thompson v. Heiter, 240 Ala. 347, 199 So. 239; Refuss v. McAndrew, 250 Ala. 55, 33 So. 2d 16; Barker v. Barker, 249 Ala. 322, 31 So. 2d 357; Hale v. Kinnaird, 200 Ala. 596, 76 So. 954.
FOSTER, J., concurs. | October 26, 1950 |
1343d009-1aa2-4d4e-ac7e-6246ae69505d | Wilson v. State | 53 So. 2d 559 | N/A | Alabama | Alabama Supreme Court | 53 So. 2d 559 (1951)
WILSON
v.
STATE.
7 Div. 105.
Supreme Court of Alabama.
June 14, 1951.
*560 Young & Young, Anniston, for appellant.
Si Garrett, Atty. Gen., and M. Roland Nachman, Jr., Asst. Atty. Gen., for the State.
FOSTER, Justice.
Appellant was convicted of murder in the second degree, and his punishment fixed at twenty-five years in the penitentiary.
We have examined the record with care and find nothing in it that needs discussion, except the two matters discussed in brief of counsel for appellant. The first of them relates to the admission of a confession made by appellant. This confession is alleged to have been made to two officers in the county jail on Sunday morning next after Friday night, when the killing occurred.
Appellant's wife was killed in their home by the discharge of a shotgun belonging to appellant. He was arrested that night and put in the city jail and later transferred to the county jail. The usual proof was made with respect to the voluntary character of the confession. The confession was reduced to writing by one of the officers, signed by appellant and witnessed by both officers. It was made after and in response to questions which were propounded to him by one of the officers in the presence of the other officer. There were no circumstances connected with it which indicate any show of coercion, force, fear or expectation of benefits. Appellant was not subjected to the questioning under circumstances which were oppressive, nor was he in any way mistreated, and, although he testified in the case himself, he did not testify to any mistreatment by the officers in obtaining the confession. In fact his testimony given on the trial was in many respects the same as that set out in the confession. The fact that he was under arrest without the presence of counsel and without a formal commitment having been made, all taken together, are not sufficient to show that the confession was involuntary. Those principles have been decided many times by this Court. Some of them are referred to in the cases of Ingram v. State, 252 Ala. 497, 42 So. 2d 36; Logan v. State, 251 Ala. 441, 37 So. 2d 753; Huntley v. State, 250 Ala. 303, 34 So. 2d 216; Phillips v. State, 248 Ala. 510, 28 So. 2d 542.
The other ruling of the court treated in brief by counsel for appellant is the admission of a photograph taken of a room in which the killing occurred. The photograph was taken on Sunday morning, after the deceased was killed on the Friday before. Two officers went to the house of a neighbor and picked up a woman living *561 there and who was the first at the scene of the crime, and they all three went back to the scene of the crime. This woman testified that the room was in the same condition then as it was at the time she went there immediately after the shooting occurred, except a shotgun was then in the room and the body of the deceased had been removed. She pointed out the place where the shotgun had been leaning against the foot of the bed, and she placed a broom in the position she said the gun occupied with reference to the bed and the room, and she testified on the trial that the broom was placed in that position. While it was so placed and in the presence of the other officer, one of them took a picture of the room showing the broom leaning against the footboard of the bed and of the other objects in the room. This picture was offered in evidence, and the court overruled objection to it.
It is insisted by appellant's counsel that it is illegal evidence because it was taken at a time when defendant was not present; it was not a part of the res gestae of the crime itself, but was a transaction between other parties with which the defendant was not connected and, therefore, it was in violation of those several principles of law holding evidence of that sort illegal. The picture itself is before us and we think it is competent for the purpose of illustrating the transaction as it occurred according to the confession of appellant and according to his testimony. His testimony very briefly is that as he and his wife were entering the house that night a dispute arose and she picked up the gun with an accusation, and he undertook to take it away from her and the gun discharged without his intending it should, resulting in her death. He and his wife had been married three or four years and had separated many times and had just recently ended a period of separation when this incident occurred.
We note in connection with the admissibility of this photograph that the room is not in exactly the same condition it was in at the time of the shooting, by reason of the fact that the broom was occupying the place where the gun had been leaning against the foot of the bed, and the body of the deceased had been removed. It is a well known principle that a photograph of the scene of the crime is admissible in evidence for the purpose of getting a better understanding of the testimony of the witnesses as to what occurred. Blue v. State, 246 Ala. 73, 19 So. 2d 11; Louisville & Nashville R. R. Co. v. Sullivan, 244 Ala. 485, 13 So. 2d 877.
It is not unusual under those circumstances, in order to illustrate the details of the occurrence, to place items about the scene in as near the same position as they were in at that time, as is then available, with explanatory evidence given of it on the trial. We do not think that the rule is violated when some other object is substituted for the gun in order to illustrate the position of the gun immediately after the shooting occurred. This does not conflict with the rule that when the photograph has been taken long after the accident and material changes have been made in the locus in quo, the photographs are usually not admissible. Williams v. Wicker, 235 Ala. 348, 179 So. 250; Bradley v. Lewis, 211 Ala. 264, 100 So. 324. But the principle is also well established that there is no error in allowing the introduction of a photograph showing the location of an important item in solving a problem by placing at that location some foreign substance with an explanation of it by evidence of its status. Louisville & Nashville R. R. Co. v. Cross, 205 Ala. 626, 88 So. 908.
For the photograph to be admissible, it is of course necessary that evidence be given of its correctness, explaining the meaning of the changes made in the scene of the crime, and that otherwise conditions are the same. There was no dispute in the evidence as to those matters.
We find no reversible error in respect to the two contentions made by counsel for appellant or in any other feature of the record. The judgment is therefore affirmed.
Affirmed.
LIVINGSTON, C. J., and BROWN and SIMPSON, JJ., concur. | June 14, 1951 |
dda3ae8d-e363-42e3-bc8b-171046de60e9 | Steiner v. Steiner | 48 So. 2d 184 | N/A | Alabama | Alabama Supreme Court | 48 So. 2d 184 (1950)
STEINER
v.
STEINER.
6 Div. 914.
Supreme Court of Alabama.
October 12, 1950.
*185 Wilkinson & Skinner, of Birmingham, for appellant.
David R. Solomon and Lange, Simpson, Robinson & Somerville, all of Birmingham, for appellee.
STAKELY, Justice.
This is a suit for divorce by Sylvia F. Steiner against Leo K. Steiner, Jr., on the grounds respectively of (1) adultery, (2) addiction to habitual drunkenness since marriage and existing at the time suit was filed, (3) actual violence on the person of complainant attended with danger to life or health and (4) reasonable apprehension of such violence. The suit seeks custody of their minor child, temporary and permanent alimony and an allowance of counsel fees.
The court rendered a decree of divorce, assigning no specific ground, awarded custody of the minor child to complainant with allowance of $250 per month for the support of the child, a girl nineteen years of age, and also allowed permanent alimony and counsel fees to complainant. The appellant makes only three assignments of error, (1) the allowance to complainant of $400 per month for her own support and maintenance, (2) the allowance of $10,000 to complainant as counsel fees for her solicitors of record and (3) taxation of the costs of the cause against the respondent. While the cause is submitted here on the foregoing assignments of error, it is also submitted on cross-assignments of error of the appellee, which question the adequacy of the alimony allowance made to her and the failure to make award to her of alimony pendente lite.
The case was submitted for decree on evidence heard orally before the court including evidence taken before the register. The evidence taken before the register is substantially the same as that heard before the court. The evidence is voluminnous and need not be stated here in all its details. There is no question on this appeal as to the decree of divorce or the ruling of the court with reference to the custody and support of the minor daughter. The only real question here relates to the allowance of alimony and counsel fees made to the wife. These questions grow out of the estates which the respective parties are claimed to own and the conduct of the respondent which relates to the grounds of divorce.
We turn first to the estate and situation of Sylvia F. Steiner. She married the respondent, member of a banking firm in Birmingham, on October 15, 1924 and is now in her late forties. She is accustomed to live in surroundings that can be termed luxurious. The home where she has lived with her husband and children is situated in spacious grounds in one of Birmingham's best residential districts and is valued at about $45,000. It is claimed, however, that she has a separate estate sufficient for her maintenance and therefore is not entitled to permanent alimony. The following is an itemized list of the assets of her estate with values insisted on by appellant. Tendencies of the evidence show the following with reference to these separate properties.
No dividends have been paid on this stock since 1940. Dividends thereon were paid in 1939-40 and had not been paid thereon for a long time prior thereto. The dividends are non-cumulative. The stock is non voting. It is in a closely held corporation and could probably not be sold for a substantial amount.
This stock is non dividend producing. The income of the company is used to pay *186 interest and principal on the mortgage indebtedness of the company and is not available for dividends. The shares of common stock belonging to appellee are less than 20% of the company's outstanding voting stock. Accordingly she has no control over the policy of the company with reference to declaration of dividends and therefore cannot obtain dividends. One witness valued this stock at $300 per share or a total of $59,400. The stock represents a minority interest in a closely held investment corporation and for practical purposes is a nonavairable asset.
The mother of Sylvia F. Steiner, who was the first of her father's three wives, left a piece of property known as the Whitney Building to her four children, Edward, Maurice, Fred and Sylvia. This property was subject to mortgage. It has been managed as "Joint Heir Account" and the Joint Heir Account has never paid Sylvia F. Steiner any money. One of the assets of this account is a second mortgage on a piece of property in Buffalo, N. Y., which according to tendencies of the evidence is of little or no market value because of failure of tenants in the property. If this item is taken out of the statement, the equity of Mrs. Steiner in the Joint Heir Account is reduced by half. The account owes a mortgage of $117,822.85, which is a lien upon its primary asset, the Whitney Building. All of the income of the account is required to service this mortgage. The actual value of this item is not greatly in excess of $20,000, which produces no income to Sylvia Steiner and because of substantial mortgage indebtedness cannot be expected to pay her any income even in the remote future.
On the separation of the parties this jewelry was in the Steiner Bank in a lock box and it was necessary for Mrs. Steiner to bring a suit against her husband to obtain possession of it. Not one article in this lot of jewelry came to Mrs. Steiner from her husband. If Mrs. Steiner had been compelled to sell or pawn this jewelry to support herself, the evidence is lacking to show that it would have made available to her the substantial sum of money claimed to be its value.
In order to subsist Mrs. Steiner was compelled to pledge this stock to the bank for a loan of $1,500. It came to her from her own family and not from her husband. It is doubtful if she will be able to redeem this stock from the pledge from the allowance made by the court and the bills now outstanding against her, which were incurred during her life with her husband.
This insurance was a gift to Sylvia Steiner and her children from her father. Her children have the right to cash out two of the three policies involved at any time they desire and in this way deprive Mrs. Steiner of the proportionate part of the expected retirement income in 1954. This income is not now available to Mrs. Steiner and it may never become available to her. The value attached to these policies is problematical.
"7. One new 1949 Oldsmobile."
While Mrs. Steiner was living with the respondent as his wife she was accustomed to the use of an automobile. She insists that she should not now be required to divest herself of the use of an automobile.
Appellant also insists on what are called "deferred assets of Sylvia F. Steiner as shown by record", which may be listed as follows:
The will of Raye C. Forman, the stepmother of Mrs. Steiner, specifically provided that the decedent's husband, Benjamin Forman, should have the right to withdraw from this estate all or any part thereof, and the evidence shows that he has withdrawn a very large part thereof and is continuing to withdraw the corpus therefrom. At Mr. Forman's death it is problematical whether there will be anything in this estate *187 available to Mrs. Steiner. There is nothing now available to her therefrom.
These are the same insurance policies described hereinabove and are subject to what was there said about them. What the situation with respect to this insurance will be in 1954 is a contingency which cannot now be determined in connection with Mrs. Steiner's financial assets.
The record contains what purports to be a copy of the present draft of the proposed last will and testament of Mrs. Steiner's father. It appears that he leaves to some trustees for Mrs. Steiner "all the preferred capital stock of Raye-Namrof, Inc., which I may own at the time of my death, but in trust nevertheless * * *" It appears that this will has been executed pursuant to a contract to devise. If Mr. Forman decides to change his will it is claimed that all that Mrs. Steiner would have would be a lawsuit for breach of contract against her father with no way of proving what damages she had sustained by his failure to devise this stock to trustees for her benefit during life. Furthermore there is the hazard that Mr. Forman would become insolvent prior to his death and tendencies of evidence show that he is in a hazardous business, namely, a women's specialty shop, with preferences in favor of his creditors. Furthermore the evidence tends to show this devise could be defeated by Mrs. Steiner's brother, Fred Forman, for matters not necessary to be here set out.
According to Mrs. Steiner she has no actual money in hand beyond an income of $80 per year dividends from her stock in the Eastman Kodak Company. Tendencies of the evidence show gifts made to Sylvia Steiner from her father and brothers in prior years of $200 per month. All of these gifts, however, were voluntary and ceased when the present trouble between the parties to this suit arose.
The Federal Income Tax return for 1947 of the complainant shows that she had a gross income of $4,921.76. In addition to this sum of money, she received $2,400 from her brothers, which has been referred to and which tendencies of the evidence show to be a gratuity. The records of Steiner Brothers, Bankers, show that during the year 1947 the appellee deposited a total of $10,783.93 in her account. In 1948 the income tax return filed by appellee shows a total income of $1,702.29. The records of Steiner Brothers, Bankers, show that during the year 1948 the appellee deposited a total of $11,415.39. Tendencies of the evidence show that up until March 1948 the appellee was allowed $300 per month by her husband for household expenses and in March, 1948, it was increased to $400 per month. Tendencies of evidence show that out of the allowance received she paid food for the family, utility expense, servants, her automobile expense, toilet articles, etc., clothes for herself and daughter. This suit was filed January 28, 1949.
We turn now to the income, estate and acts of the respondent. His federal income tax return for the year 1947 showed that he received a gross income of $21,344.97, which consists, without going into details, of salaries and directors fees from three corporations aggregating $13,071; interest $1,073.16; dividends $2,099.60; rentals $926.25; proceeds of sale of stock $1,699.96 and includes disability payments as an ex Air Corps officer of $2,475. The assets of the respondent may be roughly stated as consisting of 185 shares in Steiner Brothers worth approximately $55,000; 6,110-½ shares in the old Republic Credit Life Ins. Co.; 503 shares of preferred voting trust certificates of Coplay Cement Mfg. Co.,55 shares of preferred stock therein and 400 shares of common stock therein; 11-½ shares in Bragno Company of Alabama; 12-½ shares of Brett-Butane Company and 15 shares of Shades Cliff Land Company. There appears to be no proof as to the value of these stocks. The evidence shows that he owns $40,000 of life insurance in solvent companies fully paid up and over $50,000 in other life insurance. He owns the estate on the top of the mountain where he lives as a home, which has been referred to, worth approximately *188 $45,000. He owns an undivided ¼th remainder interest in the Hillman Hotel in down town Birmingham. This hotel property is valued at about $600,000. The proof shows that the Hillman Hotel in 1935 was subject to a mortgage for $225,000. There is no proof as to whether it has been paid or reduced in subsequent years. Tendencies of the evidence showed that there are three other pieces of down town property in Birmingham owned by the Guardian Realty Company, the stock of which is owned by Steiner Brothers, Bankers, in which respondent has an ownership of approximately 20%. At the time of filing his answer in this cause tendencies of evidence showed that respondent had cash in the bank between $3,500 and $4,000.
There are two estates in which the respondent has an interest. The first that of his Uncle Carl Steiner and the second that of his father, Leo K. Steiner, Sr. Under the will of Carl Steiner, deceased, the respondent owns an undivided ½ interest in the estate. According to the estate tax return of Carl Steiner this estate is valued at $113,193.48. There is testimony tending to show that the real estate shown in this return has been sold for approximately $200,000. The stock in this estate according to tendencies of evidence has been sold for substantial amounts.
It is sufficient to say that according to tendencies of the evidence the net estate of Leo K. Steiner as reported for estate tax purposes has been fixed at $471,038.18.
During his life Leo K. Steiner, Sr., conveyed by deed to his two sons (including respondent) an undivided ½ remainder interest in the Hillman Hotel property in down town Birmingham,thereby conveying to the respondent an undivided fourth interest in the remainder therein. There is a life estate in the mother of the respondent. She also owns 200 shares of stock in Steiner Brothers, Bankers, worth about $60,000. She is 73 years of age and in such bad health as to require the services of a trained nurse to wait on her and live in her home.
According to tendencies of the evidence the respondent breached his marital obligations over and over again. The record is replete with evidence of incidents which tended to show grounds which justified the decree of divorce and which showed that he had no regard for the feelings or sensibilities of his wife. There is evidence which shows brutality toward his wife, infidelity and a gross disregard for his marriage vows.
It is vigorously contended by the appellant that Sylvia F. Steiner is not entitled to any allowance for alimony. This contention is based on the language of § 31, Title 34, Code of 1940, which provides that an allowance for alimony shall be made on decree of divorce "if the wife has no separate estate, or if it be insufficient for her maintenance". In referring to this statute in Gibson v. Gibson, 203 Ala. 466, 83 So. 478, this court said that under § 3804 the wife is entitled to permanent alimony upon the granting of a divorce "unless she has a separate estate sufficient for her support and maintenance." See Higgins v. Higgins, 222 Ala. 44, 130 So. 677. Without question Sylvia F. Steiner has a separate estate. Has she an estate sufficient for her maintenance? What is the proper construction to be placed on the words "insufficient for her maintenance"?
We cannot agree with the interpretation of appellant. Tendencies of evidence in this case show that such estate as the appellee may own is an unproductive estate at this time. It does not produce an income on which she can live and certainly does not produce an income on which she can live in the manner to which she has been accustomed. If an estate produces no income or an income on which the wife cannot subsist in the manner to which she is accustomed, then we consider that her separate estate is insufficient for her maintenance. Under the circumstances here shown a wife should not be deprived of alimony under the foregoing statute because by selling the corpus of her estate she may thereby maintain herself. The statute does not contemplate that a wife shall take her jewels for example and sell or pawn them in order to live. This would be a harsh interpretation of the statute with which we cannot agree.
*189 We are impressed with the construction placed on the Kentucky statute by the courts of that state. The statute is that, "If the wife does not have sufficient estate of her own she may, on a divorce obtained by her, have such allowance out of [the estate] of her husband as the court considers equitable". KRS 403.060. The court said: "The interpretation of `sufficient estate of her own' is that it shall be of such character and amount as will yield income or profits sufficient for her comfortable maintenance in a style suitable to her social standing. What her standard of living would have been had she remained the wife of the defendant is an important consideration. Kelly v. Kelly, 183 Ky. 172, 209 S.W. 335. The statute does not contemplate that no allowance shall be made out of the husband's estate if the wife could maintain herself by consuming her principal. * * *" Barnett v. Barnett, 292 Ky. 840, 168 S.W.2d 17, 18.
In determining the amount of permanent alimony there is no fixed rule since each case must be decided upon its own relevant facts in the light of what is fair and reasonable. But it is proper to consider the earning ability of the parties, their probable future prospects, their age, health and station in life, duration of the marriage and the conduct of the parties with reference to the cause of divorce. Garlington v. Garlington, 246 Ala. 665, 666, 22 So. 2d 89; Ortman v. Ortman, 203 Ala. 167, 82 So. 417. Where the husband is guilty of wanton or wicked conduct toward his wife, the allowance must be as liberal as the estate of the husband will permit under all the circumstances of the case. Johnston v. Johnston, 212 Ala. 351, 102 So. 709; Sharp v. Sharp, 230 Ala. 539, 161 So. 709.
Taking into consideration all the facts and circumstances in this case we think the allowance of permanent alimony to Sylvia F. Steiner is reasonable and it will not be disturbed.
On cross assignment of error the appellee insists that an allowance should be made for alimony pendente lite. The decree makes no specific reference to such allowance but merely provides that "respondent is ordered to pay to the complainant as alimony, support and maintenance the sum of $400.00 per month pending the further orders of this court." It is settled that an order for temporary alimony can be incorporated in the final decree. Ex parte Bragg, 241 Ala. 214, 2 So. 2d 393; Jeter v. Jeter, 36 Ala. 391. It appears to us therefore that in rendering its final decree the court, acting in its discretion as it can in matters pertaining to alimony pendente lite and taking all the facts and circumstances of the case into consideration, rendered the decree as aforesaid. In other words a decree was rendered in which became merged both the right to alimony pendente lite and permanent alimony. We see no reason to make any revision here in this respect.
We have carefully considered the allowance of counsel fees for services in the trial court. The record is voluminous being embraced in three volumes totaling 1,363 pages. It is evident that considerable time and effort has been expended in the preparation and conduct of the case. Qualified and competent members of the Birmingham Bar testified that the services were worth not less than $10,000 nor more than $15,000 under the circumstances of the case. No one testified to the contrary. The court no doubt took all this in consideration in connection with the situation between the parties and especially the value of such services in its jurisdiction. Such allowance rests in the sound judicial discretion of the trial court which we are not willing to say has been abused. The proof shows that $2,500 was paid to counsel by the brothers of the complainant when suit was instituted as a retainer fee with the understanding that this amount would be refunded to them in the event an allowance was made by the court for counsel fees. This arrangement is not objectionable. Mancil v. Mancil, 240 Ala. 404, 199 So. 810. Considering all the circumstances in the case including the guilt of the respondent in causing the divorce, his wealth and the lack of income on the part of the complainant, we are not willing to disturb the allowance of counsel fees.
Application is made to us for an allowance of attorneys' fees for representation *190 of the appellee on this appeal. This petition is granted and an allowance is here made in the amount of $2,500 which we consider adequate under all the circumstances. Walling v. Walling, 253 Ala. 337, 45 So. 2d 6; Taylor v. Taylor, 251 Ala. 374, 37 So. 2d 645.
The decree of the lower court is affirmed with additional allowance of amount for attorneys' fees on appeal.
Affirmed with allowance for attorneys' fees on appeal.
FOSTER, LAWSON and SIMPSON, JJ., concur. | October 12, 1950 |
96c8686e-95c6-4146-b709-5cb696d2202d | Hanover Fire Ins. Co. of New York v. Salter | 49 So. 2d 193 | N/A | Alabama | Alabama Supreme Court | 49 So. 2d 193 (1950)
HANOVER FIRE INS. CO. OF NEW YORK
v.
SALTER.
3 Div. 592.
Supreme Court of Alabama.
November 24, 1950.
*194 Edw. F. Reid, of Andalusia, for petitioner.
Edwin C. Page, Jr., of Evergreen, opposed.
FOSTER, Justice.
This is a fire insurance case for a loss by fire of a truck alleged to have been insured against such loss by appellant. There was judgment for plaintiff, appellee, in the circuit court, and the defendant prosecuted its *195 appeal to the Court of Appeals, where the judgment was affirmed. Appellant brings it to us on a petition for certiorari.
The questions which were considered by the Court of Appeals and which are presented to us for review relate to rulings on the pleadings. Those rulings relate primarily to a replication filed by plaintiff to several pleas of defendant. The demurrer to the replication was overruled. It is that ruling particularly which seems to be the ground upon which the petition here is founded. But in order to understand it, it is necessary to refer to the pleas and the rulings on those pleas, although those rulings are not directly challenged in this petition.
The Court of Appeals in its opinion refers to pleas 2 and 3, in which the defendant sets up provisions of the policy to the effect that the policy does not apply while the automobile is subject to encumbrances not declared in the policy and avers that at the time of the fire the insured truck was encumbered by a mortgage not declared in the policy.
Referring to the pleas themselves, in order to get the exact status of them, we find that they are based on a clause in the policy in the following language: "This policy does not apply: (b) under any of the coverages, while the automobile is subject to any bailment lease, conditional sales, mortgage or other encumbrances not specifically declared and described in this policy." Those pleas then alleged that at the time of the fire the said truck was encumbered by a mortgage not specifically declared and described. The opinion of the Court of Appeals states that the demurrer to these pleas was that they fail to allege that the risk of loss was increased by the execution of the mortgage or that said mortgage was given with the intent to defraud, and then the opinion states that because of the defect in said pleas, as pointed out in the demurrer, the court correctly sustained the demurrer.
We do not think this was a proper interpretation of the meaning of section 6, Title 28, Code. A clause of the kind here in question is a valid stipulation, the breach of which by a subsequent encumbrance constitutes a complete defense unless it is waived. While the authorities do not base such statement upon the fact that the mortgage on personal property is an increase of risk, it has been declared by this Court that such is a fact and of course it will not be necessary to so allege. Security Ins. Co. v. Laird, 182 Ala. 121, 62 So. 182. But such a stipulation was within the contractual right of the insurance company to insert in the policy. Security Ins. Co. v. Laird, supra; Sun Ins. Office v. Scott, 284 U.S. 177, 52 S. Ct. 72, 76 L. Ed. 229; 29 Am.Jur. 501, section 624; 45 Corpus Juris Secundum, Insurance, § 567 P. 341; 26 Corpus Juris, 243, section 307.
We have many cases in this State which recognize that general principle and state the circumstances under which it may be rendered inapplicable. It is treated as a forfeiture provision rather than an absence of coverage. Home Ins. Co. v. Campbell Motor Co., 227 Ala. 499, 150 So. 486; American Ins. Co. v. Millican, 228 Ala. 357, 153 So. 454; Cowart v. Capital City Ins. Co., 114 Ala. 356, 22 So. 574.
This status as to subsequent encumbrances is altogether different from that referred to in section 6, Title 28, Code, and is not dependent upon representations or warranties which the insured may make. It is a contractual stipulation and has effect as set out in the policy. That distinction is drawn in the following cases: Lee v. Hartford Fire Ins. Co., 223 Ky. 533, 4 S.W.2d 372; Niagara Fire Ins. Co. v. Hankins, 220 Ky. 234, 294 S.W. 1070; Straw v. Integrity Mutual Ins. Co., 248 Wis. 96, 20 N.W.2d 707, 163 A.L.R. 1396.
The statement from 29 Am.Jur. 498, section 620, which was quoted in the opinion of the Court of Appeals, does not relate to a policy contract which has such stipulation against subsequent encumbrances. Whereas the treatment of the subject in section 624, page 501, supra, applies to such a condition in the policy. The distinction between the two is quite manifest, as is also pointed out in 26 Corpus Juris 243, supra, and 45 Corpus Juris Secundum, Insurance, § 532, pp. 262 and 263.
*196 It will be observed that pleas 2 and 3 refer to a status existing at the time of the fire and not alleged to be at the time of the issuance of the policy.
After the demurrer had been sustained to these pleas, additional pleas were added: all based upon the same provision of the policy and all averring that at the time the policy was issued and at the time of the fire, the truck was encumbered by a mortgage.
Plea 7 alleges that the plaintiff withheld from the defendant information as to the existence of said mortgage, with actual intent to defraud. Plea 8 is to the same effect. In plea 9 it is alleged that plaintiff misrepresented the existence of said mortgage by representing to defendant's agent, who wrote this policy, that said truck was unencumbered by a mortgage and that said misrepresentations were made by plaintiff with actual intent to deceive. Plea 10 is substantially the same. Plea 11 alleged a misrepresentation and that it increased the risk of loss. Plea 12 is substantially the same as plea 11.
Pleas 4, 5 and 6 rely upon a clause in the policy avoiding it if the insured has concealed or misrepresented any material fact or circumstance and averring that plaintiff concealed or misrepresented the material facts relating to the insurance. Those breaches of such clause are stated in terms too general. The demurrer to them was sustained, and we think properly so for that reason. The pleas are also subject to the demurrer which was interposed, that they do not allege that the matter misrepresented was with the actual intent to deceive or increased the risk of loss. No further pleas based on that principle were filed.
From the foregoing discussion, it seems apparent to us that the demurrer to pleas 2 and 3 should have been overruled, and the demurrer to pleas 4, 5 and 6 were properly sustained. The demurrer to pleas 7 to 12, inclusive, were properly overruled, although they impose a burden on the defendant which the law does not place.
The insistence of petitioner here for certiorari seems to be based upon that part of the opinion of the Court of Appeals with reference to the sufficiency of the replication to pleas 7 to 12, inclusive. That part of the replication is set out in the opinion of the Court of Appeals. The replication seems to be founded upon the fact that at the time of the issuance of the policy neither the agent who wrote the same, nor any other agent of the defendant, asked any information of the plaintiff relative to any provision or clause in said policy with respect to any bailment, lease, conditional sale, mortgage or other encumbrance, and the plaintiff made no statement to said agent relative to said mortgage or encumbrance, and that plaintiff had no knowledge that said mortgage or information relative thereto was material to the risk, or that the risk would have been rejected by defendant if defendant had known thereof, and plaintiff made no statement or stipulation relative to the said mortgage or encumbrance. There was a mortgage then made to the Bank of Brewton, of which the insurance agent was president, and the policy was held by the bank and was never read or in fact ever came into plaintiff's possession and he did not know its contents. The agent knew of the mortgage to the bank and no question is raised as to its effect on the policy.
In order to determine the applicability of the replication, it is necessary to analyze the effect of pleas 7 to 12, inclusive, and in doing so a distinction is drawn between a status where a mortgage is executed after the issuance of the policy and where the mortgage was in existence when the policy was issued and continued in existence until the loss occurred. In this connection, we have considered supra only that status where a mortgage is placed upon the property after the issuance of a policy.
When the encumbrance on the insured property exists at the date of the policy in violation of a provision such as is here relied on, our inquiry is twofold. First, whether such a policy provision is merely a condition to the coverage of the named subject matter, or whether the proposed subject matter is of a sort not included in the coverage as described in the policy. If it is but a condition to the coverage of the named and described subject matter, the condition can be abrogated as of the effective *197 date of the policy by waiver or estoppel on account of circumstances then occurring, notwithstanding the terms of the policy as we will later show. If an abrogation of the condition in the clause under consideration would serve to add subject matter which the description of the property insured does not cover, it would be ineffective for that purpose since property not described as subject matter insured cannot be added by an abrogation of such a condition occasioned by waiver or estoppel. If the status made by the clause in question is merely to create a condition on which the described subject matter is to be treated as in the coverage as of the date of the policy, our inquiry then is as to what circumstances are sufficient to create a waiver of the condition or an estoppel to claim it.
The following discussion is first to analyze the clause in that respect and, if the condition is subject to waiver or estoppel, to determine whether the replication sets up matter which invokes the principle of waiver or estoppel.
In the case of Fidelity Phenix Fire Ins. Co. v. Raper, 242 Ala. 440, 6 So. 2d 513, we treated a stipulation in a policy as to coverage of a building while occupied as a dwelling by the owner and held that the clause did not permit the coverage to extend to the building not so occupied, and could not be made to extend to it by waiver or estoppel. And in Bankers Fire & Marine Ins. Co. v. Draper, 242 Ala. 601, 7 So. 2d 299, 302, we refused to extend that theory to a clause in a policy which covered the "following described property while located and contained as described herein and not elsewhere." We held that the condition as to the location of the property could be waived and that by doing so the principle of adding property to the coverage by waiver or estoppel did not apply. In the case of Home Ins. Co. v. Campbell Motor Co., 227 Ala. 499, 150 So. 486, referring to this question, we observed that the theory which prevented the addition to the coverage of property by waiver or estoppel did not apply except to add subject matter not theretofore described in it.
There is no distinction, here material, between waiver and estoppel. Yorkshire Ins. Co. v. Gazis, 219 Ala. 96, 121 So. 84.
With respect to matters which may be waived are included "unconditional and sole ownership", "concurrent insurance," as well as encumbrances. Westchester Fire Ins. Co. v. Green, 223 Ala. 121, 134 So. 881, 884; Girard Fire & Marine Ins. Co. v. Gunn, 221 Ala. 654, 130 So. 180; Cowart v. Capital City Ins. Co., 114 Ala. 356, 22 So. 574. There seems to have been no thought in those cases that the coverage was added to by waiver or estoppel.
The subject matter of this contract is the truck and it is within the terms of the contract, but the contract contains a condition precedent to its effect as insurance on it. The question of whether such a status violates the principle against adding to the coverage by way of waiver or estoppel has been analyzed in 45 Corpus Juris Secundum, Insurance, § 674, p. 616, which we quote as follows: "As a general rule, the doctrines of waiver or estoppel can have a field of operation only when the subject matter is within the terms of the contract, and they cannot operate radically to change the terms of the policy so as to cover additional subject matter." The text cites our Campbell case, supra.
Our feeling is that such should be a proper interpretation of the principle.
The question then arises as to what facts will constitute a waiver or estoppel. Usually the failure of a company to inquire as to the existence of certain facts on which the validity of the policy is expressly conditioned has been held not to constitute a waiver of such condition although no representations are made by the insured. A contrary conclusion has been reached in other cases. 45 Corpus Juris Secundum, Insurance, § 721, p. 711, notes 68 and 69; 32 Corpus Juris 1343, section 616, notes 63 and 64; and again it is said in 45 Corpus Juris Secundum, Insurance, § 725, page 723, "A condition in a policy that it shall be void if the subject of the insurance is encumbered, or if it is encumbered and the consent of insurer to the encumbrance is not indorsed *198 on, or attached to, the policy, is waived by the issuance of the policy with knowledge on the part of insurer or its agent of an existing encumbrance." See, 29 Am.Jur. 611, section 807.
The quotation in the opinion of the Court of Appeals from 4 Couch on Insurance, page 3170, and the cases cited by that authority in the note, sustain the view that the insurance company cannot claim the benefit of such a provision in respect to an encumbrance existing at the time of the issuance of the policy unless inquiry was made of the insured at the time with respect to such encumbrance. 26 Corpus Juris 318, notes 41 to 47, 45 C.J.S., Insurance, § 725. If such inquiry was made and a false answer given, the forfeiture would be available. Under those authorities if there is no active concealment and no inquiry is made of the insured and no false answer given in respect to it, the insurer cannot claim the benefit of the condition to the coverage. To illustrate the reason for holding that view we cite the case of Scottish Union & National Ins. Co. v. Wylie, 110 Miss. 681, 70 So. 835. Whereas the other view of the question is illustrated in Georgia Home Ins. Co. v. Hoskins, 71 Fla. 282, 71 So. 285.
The Court of Appeals in effect held that the condition to coverage was eliminated by waiver and estoppel in this instance, following the line of cases referred to in Couch on Insurance, supra.
We do not see why the principle of waiver and estoppel should be differently applied to this situation than it is to all others. There are many other provisions in fire insurance policies which serve to avoid it if they are violated by circumstances existing at the time of the issuance of the policy, such as the existence of other insurance, provisions requiring unconditional ownership of the property in fee simple, houses insured on leased premises. We do not know that it has ever been declared by our courts that in order to make such provisions available to the insurer on account of conditions existing at the time of the issuance of the policy, it is necessary that the insurer should have made inquiry of the insured with respect to them. That would in effect require an application in all cases of fire insurance for the company to be benefited by said conditions. We may say that it is a matter of common knowledge that provisions of such import are in fire insurance policies generally, including that against encumbrances and if facts exist at the time of the issuance of the policy which avoid it and which are unknown to the insurer then, and do not become known to the insurer until after the loss, the conditions to coverage in the policy will be effective, although the insured did not actively conceal the facts and in fact had no actual knowledge of the existence of such terms in the policy.
If the agent of the insurance company, with authority to issue the policy, was informed of the existence of the mortgage at the time the policy was issued, the effect would be to eliminate that provision in the policy as applied to that situation based upon the consideration then passing. 26 Corpus Juris 317; 45 Corpus Juris Secundum, Insurance, § 725, p. 723; Phoenix Ins. Co. v. Copeland, 90 Ala. 386, 8 So. 48. But if neither they nor any other agent of the insurance company had notice of a mortgage at the time of the issuance of the policy and nothing was said about a mortgage, and no inquiry was made about the mortgage or any encumbrance, there is no reason why that stipulation in the policy should not be binding as any other stipulation, although the insured made no misrepresentation concerning it. Of course if the insured made a misrepresentation concerning it, as is alleged in pleas 9, 10, 11 and 12, the replication in question would be useless. The averment in said replication that plaintiff made no statement to said agent relative to said mortgage or encumbrance is a denial of those features of the pleas which allege that plaintiff did make a misrepresentation with respect to said mortgage, and the general issue to those pleas would present the question sought to be raised by the replication.
It is usually not reversible error to overrule a demurrer to a special replication, although it sets up matter admissible *199 under a general denial of the allegations of the pleas. Buck Creek Lumber Co. v. Nelson, 188 Ala. 243, 66 So. 476.
The opinion of the Court of Appeals states that evidence was introduced to support the allegations of the pleading and that the tenor of the testimony follows the allegations of plaintiff's pleading, and that defendant's evidence was directed to a showing that the agent of defendant did inquire of the plaintiff at the time the policy was written as to what encumbrances were on the truck and was told that no others existed, and that plaintiff was informed that the insurance would not be written if there were other encumbrances on the truck.
In view of that status of the pleading, the rulings on the pleadings and the evidence, it would appear that no error exists in the opinion of the Court of Appeals to the extent complained of by petitioner, but we think it appropriate to make a statement of certain principles of law which were controlling in reaching the conclusion which the Court of Appeals asserted because some of them are not expressive of our interpretation of the law.
Certiorari denied.
LAWSON, SIMPSON and STAKELY, JJ., concur. | November 24, 1950 |
4ef36b08-4343-40a1-9e45-0dc2d264b538 | Richardson Lumber Co. v. Pounders | 48 So. 2d 228 | N/A | Alabama | Alabama Supreme Court | 48 So. 2d 228 (1950)
RICHARDSON LUMBER CO.
v.
POUNDERS.
8 Div. 497.
Supreme Court of Alabama.
October 19, 1950.
Sadler & Sadler, of Birmingham, for appellant.
Harold T. Pounders, of Florence, for appellee.
LIVINGSTON, Justice.
On motion or petition of Richardson Lumber Company, a Justice of this Court ordered a writ of certiorari to issue to the clerk of the Law and Equity Court of Lauderdale County, Alabama, commanding and requesting him to make and forward to the Supreme Court of Alabama a true and correct copy of the record and proceedings together with the transcript of the bill of exceptions containing the evidence of said law and equity court in the cause of J. R. Pounders versus Richardson Lumber Company, a corporation.
The record ordered to be sent up is now before us. It discloses a proceeding instituted by J. R. Pounders against the Richardson Lumber Company, a corporation, under the provisions of the Workmen's Compensation Act, and in which he claims compensation for an injury due to an accident arising out of and in the course of his employment by the Richardson Lumber Company, which injury resulted in the loss of an eye. The record contains the pleadings, the testimony of the witnesses, a bill of exceptions setting forth the evidence in narrative form and the following judgment entry:
*229 "The above cause being submitted for the court's consideration and judgment upon the pleadings and the testimony and written briefs of attorneys for both parties, and the court having duly and carefully considered same, hereby renders judgment in favor of the plaintiff for a total sum of $2,000.00, being $200.00 for medical services and $1800.00 compensation at rate of $18.00 per week for 100 weeks.
"It is therefore ordered and adjudged by the court that the plaintiff have and recover of the defendant the sum of $2000.00 damages for the loss of his right eye, together with the costs of this proceeding for the collection of which execution may issue."
The record does not disclose a determination filed in writing with the clerk of said court containing a statement of the law, facts and conclusions as determined by the judge of said court, nor does it disclose any agreement of the parties, approved by the court, to commute any compensation due to one or more lump sum payments.
In pertinent part, section 304, Title 26, Code of 1940, provides: "This determination shall be filed in writing, with the clerk of said court, and judgment shall be entered thereon in the same manner as in causes tried in the said circuit court, and shall contain a statement of the law and facts and conclusions as determined by said judge. Subsequent proceedings thereon shall only be for the recovery of moneys thereby determined to be due; but nothing herein contained shall be construed as limiting the jurisdiction of the supreme court or court of appeals to review questions of law by certiorari."
Section 299, Title 26, Code, provides: "The amounts of compensation payable periodically hereunder, either by agreement of the parties approved by the court, or by decision of the court, may be commuted to one or more lump sum payments, except compensation due for death or permanent total disability, or for permanent partial disability resulting from total loss of hearing, or from the loss of an arm or a hand or a foot or a leg, or an eye, or of more than one such member. These may be commuted only with the consent of the circuit court. In making such commutations, the lump sum payments shall, in the aggregate, amount to a sum equal to the present value of all future installments of compensation calculated on a six percent basis."
The findings of facts and conclusions prescribed by section 304, supra, in cases under the Workman's Compensation Act has an analogy in the special findings of fact under section 262, Title 7, Code of 1940 in actions at law.
In the case of Bryant v. Central Foundry Co., 217 Ala. 332, 116 So. 345, it was said: "The statute contemplates, not a recital of the evidence, with its conflicting lights and tendencies, but a determination by the trial judge of the facts established by the evidence, responsive to the issues presented, with the conclusion as to whether the facts found establish or fail to establish the liability asserted; and there should be a finding of every fact necessary to sustain the judgment of the court."
And in Ex parte Sloss-Sheffield Steel & Iron Co., 207 Ala. 219, 92 So. 458, 459, it is said: "The required statement of law, facts, and conclusions is necessary to make serviceable the review by certiorari which the statute provides, and this court has sought to impress upon the trial judges the necessity of a strict compliance with the statute. Woodward Iron Co., v. Bradford, 206 Ala. 447, 90 So. 803. The absence of such statement will afford ground for review. Long v. Bergen County Court, 84 N.J.L. 117, 86 A. 529." See also, Hearn v. United States Cast Iron Pipe & Foundry Co., 217 Ala. 352, 116 So. 365.
It is the duty of the trial court to make sufficient detailed findings of fact so that the appellate court can determine whether the judgment or award is supported by the facts. If no findings are made by the lower court, it is impossible for this Court to say whether the judgment is supported by the findings or whether there is any evidence to support the findings.
The lump sum judgment in this case is erroneous in the absence of a showing that the parties agreed, with the *230 approval of the court, that such a judgment could be entered.
Reversed and remanded.
BROWN, LAWSON and SIMPSON, JJ., concur. | October 19, 1950 |
dd9a8280-4b3b-48ca-b9b5-1fb814379d70 | Cadden-Allen, Inc. v. Trans-Lux News Sign Corp. | 48 So. 2d 428 | N/A | Alabama | Alabama Supreme Court | 48 So. 2d 428 (1950)
CADDEN-ALLEN, Inc.
v.
TRANS-LUX NEWS SIGN CORP.
3 Div. 568.
Supreme Court of Alabama.
October 26, 1950.
John R. Matthews, Jr., Fred S. Ball, Jr., and Ball & Ball, all of Montgomery, for appellant.
Jack Crenshaw, of Montgomery, for appellee.
BROWN, Justice.
This is an action of assumpsit by the appellee to recover rents alleged to have accrued under a written contract for the lease of certain Trans-Lux News Signs by the plaintiff to the defendant for a term of three years. The amount claimed is $3,187.50, alleged to have accrued for the months of April, June, July, August, September and October, which the complaint alleges is past due and unpaid. The complaint shows that the plaintiff is a non-resident of the state and that security for costs was given at the filing of the suit.
The plaintiff declares on the common count. The defendant pleaded the general issue and a special plea alleging in substance that at the time of making the contract the defendant was a foreign corporation and had not at that time complied with the provisions of § 232 of the Constitution nor § 192, Title 10, Code of 1940, requiring every corporation not organized under the laws of this state, before engaging in or transacting any business in this state, to file with the secretary of state a certified copy of its articles of incorporation or association and to file an instrument in writing under the seal of the corporation and signed officially by the president and secretary thereof, designating at least one known place of business in this state and appointing an authorized agent or agents resident at such designated place.
At the trial the testimony was taken ore tenus and after hearing the evidence judgment was rendered in favor of the plaintiff for the sum claimed, $3,187.50. It is from that judgment that this appeal is prosecuted.
The evidence is without dispute that the sign before it was installed consisted of a number of sections or boxes in which sockets for electric bulbs had been installed and a machine which operated the electric equipment, so as to flash the sign across the side *429 and face of the building where it was installed. This installation was made by drilling holes in the outer surface wall of the building and securing brackets to the wall so as to hold these several boxes and the electric machine was installed on top of the building, the control wires leading from the machine running to the office of the defendant, from which the advertising matter was injected into the machine through said controls, wires or apparatus. The evidence further shows that the rent was payable monthly at six hundred dollars per month and that the defendant failed to meet all payments and failed to comply with the lease by giving notice on a payment period that it had elected to cancel the contract as provided therein. The evidence further shows Trans-Lux News Sign when installed contained 600 electric incandescent lights. The lease contract provided that the plaintiff should not only install the boxes and machines with the wires leading from the machines to the control room, but that the lessor "agrees at his expense to provide service on said sign and control, including replacement of defective lamps and parts and on receipt of notice from the lessee to service said sign and control at lessor's expense and during the regular working hours of the lessor."
The evidence is further without dispute that the plaintiff employed two skilled electricians, residents of Montgomery, Alabama, one to inspect the machine, controls and the electric boxes constituting the sign and to clean them up monthly and the other to look after the bulbs in the several boxes, to take out the old or burned out bulbs and replace them with fresh bulbs and keep said boxes clean. The evidence further shows that said sign was removable and the title to it remained in the plaintiff. That it was operated for one year and after the defendant defaulted in the payment of the rent, the same was removed from the building by the plaintiff.
There is some contention as to the amount of the indebtedness, the defendant insisting that it was entitled to credit of $1800 which was disallowed, but the main and controlling question presented goes to the validity of the contract and lease and the right of plaintiff to recover. The defendant's contention is that the installing of said machine and its maintenance during the time it was operated constituted doing business in Alabama, in violation of the Constitution and the statutes.
The plaintiff on the other hand contends that these acts of ownership, leasing, reservations of rents, inspection and right of removal, were mere incidents of interstate commerce and, therefore, it was not engaged in doing business in Alabama. To sustain its contention the appellee cites and relies on Puffer Mfg. Co. v. Kelly, 198 Ala. 131, 73 So. 403; Houston Canning Co. v. Virginia Can Co., 211 Ala. 232, 100 So. 104, and York Mfg. Co. v. Colley, 247 U.S. 21, 38 S. Ct. 430, 62 L. Ed. 463.
The first case cited involved the sale of a soda fountain shipped in interstate commerce for delivery to the purchaser in Alabama under an "agreement to install the soda fountain and its appurtenances in defendant's place of business in Montgomery" and the court held that that act was a reasonable incident of its sale and with it constituted a single act of interstate commerce. Puffer Mfg. Co. v. Kelly, 198 Ala. 131, 136, 73 So. 403.
In the second case cited there was no agreement of the lessor to repair or maintain. This fact differentiates that case from the facts in the instant case. Moreover the decision in that case is on the border line and is of doubtful soundness. Houston Canning Co. v. Virginia Can Co., supra.
In York Mfg. Co. v. Colley, supra [247 U.S. 21, 38 S. Ct. 432], the court observed: "The only possible question open therefore is: Was the particular provision of the contract for the service of an engineer to assemble and erect the machinery in question at the point of destination and to practically test its efficiency before complete delivery relevant and appropriate to the [complete delivery] of the machinery?" That was a sale of machinery, the court holding in line with the weight of authority that the mere assembling and testing of a machine so shipped is an act of interstate commerce.
*430 This is in entire agreement with our cases. Citizens Nat. Bank v. Buckheit, 14 Ala.App. 511, 71 So. 82.
The undisputed evidence in the case at bar shows that the plaintiff reserved to itself all the elements of property rights in the electric sign,the legal title, the right to lease, reserving the rents, the right to inspect and repair and maintain and the right to remove the same. The evidence is further without dispute that the appellee exercised all these rights during the year it leased its equipment and it was operated in Alabama. All these acts of ownership were performed in Alabama in utter contempt and disregard of the Constitution and laws of this state. Code of 1940, Title 10, § 194; Constitution of 1901, § 232; Alabama Western R. Co. v. Talley-Bates Const. Co., 162 Ala. 396, 50 So. 341; George M. Muller Mfg. Co. v. First Nat. Bank of Dothan, 176 Ala. 229, 57 So. 762; Imperial Curtain Co. v. Jacobs, 163 Mich. 72, 127 N.W. 772.
As pointed out by this court in the Puffer Mfg. Co. Case, supra [198 Ala. 131, 73 So. 404]: "By way of contrast, it may be noted that, in an interstate sale and delivery of lightning rods, the execution of an agreement by the vendor to attach the rods to the vendee's house was held to be the transaction of local business, and subject to a local law, imposing an occupation tax on agents or dealers engaged in putting up or erecting lightning rods.' Browning v. City of Waycross, 233 U.S. 16, 34 S. Ct. 578, 58 L. Ed. 828. Speaking through Mr. Chief Justice White, the court in that case said: `We are of the opinion that the court below was right in holding that the business of erecting lightning rods under the circumstances disclosed was within the regulating power of the state, and not the subject of interstate commerce, for the following reasons: (a) Because the affixing of lightning rods to houses was the carrying on of a business of a strictly local character, peculiarly within the * * * control of state authority. (b) Because, besides, such business was wholly separate from interstate commerce, involved no question of the delivery of property shipped in interstate commerce, or of the right to complete an interstate commerce transaction, but concerned merely the doing of a local act after interstate commerce had completely terminated. * * * It was not within the power of the parties by the form of their contract to convert what was exclusively a local business, subject to state control, into an interstate commerce business protected by the commerce clause.'
"The ratio decidendi is thus stated: `It is manifest that if the right here asserted were recognized, * * * all lines of demarcation between national and state authority would be obliterated, since it would necessarily follow that every kind or form of material shipped from one state to another and intended to be used after delivery in the construction of buildings or in the making of improvements in any form would or could be made interstate commerce.'
"In conclusion, the Chief Justice significantly observes: `Of course we are not called upon here to consider how far interstate commerce might be held to continue to apply to an article shipped from one state to another, after delivery and up to and including the time when the article was put together or made operative in the place of destination in a case where, because of some intrinsic and peculiar quality or inherent complexity of the article, the making of such agreement was essential to the accomplishment of the interstate transaction * * *.'"
The principle stated in that opinion does not go so far as to bring the act performed by the plaintiff in this case within an incident of interstate commerce. Our conclusion is that the act of installing, maintaining and keeping the sign in repair and the removal thereof was the transaction of local business, in violation of the Constitution and the statutes of this state.
The judgment of the circuit court is, therefore, reversed and one here rendered in favor of the defendant.
Reversed and rendered.
LIVINGSTON, SIMPSON and STAKELY, JJ., concur. | October 26, 1950 |
f3ad756e-2613-41ed-86cd-00d999171ac0 | Sims v. City of Birmingham | 49 So. 2d 302 | N/A | Alabama | Alabama Supreme Court | 49 So. 2d 302 (1950)
SIMS
v.
CITY OF BIRMINGHAM.
6 Div. 771.
Supreme Court of Alabama.
October 19, 1950.
Rehearing Denied December 14, 1950.
*304 Henry Upson Sims, of Birmingham, for appellant.
Graham, Bibb, Wingo & Foster, of Birmingham, for appellee.
PER CURIAM.
This suit involves a strip of land between Blocks 444 and 473, according to the present plan of the City of Birmingham, which strip fronts eighty feet on the south side of Sixth Avenue, South, and which runs back southward between said blocks 255 feet. The appellant, Henry Graham Sims, who was the complainant below, claims ownership of said strip and the improvements thereon by devise from his grandmother, Mrs. Ella M. Graham, deceased. The appellee, the City of Birmingham, the respondent below, claims that said strip of land has been dedicated as a public street.
Benjamin P. Worthington lived for many years with his wife and children on his plantation, consisting of approximately 800 acres of land situate about two miles west of Elyton in Jefferson County, Alabama.
On December 8, 1870, Mr. Worthington and wife conveyed all of this land to Josiah Morris, as trustee for Elyton Land Company, other than a small of tract of approximately two acres, upon which stood the family dwelling and appurtenant outbuildings. The conveyance of December 8, 1870, contained the following provisions in regard to the dwelling and curtilage thereof: "* * * except two acres of the SW ¼ of NE ¼ of Section 31, upon which is located the dwelling house in which the said parties of the first part do now reside and the improvements thereon; which two acres of land is hereby reserved by said parties of the first part, subject to the following conditions and termsthat if the said party of the second part, or the company or association of persons, which it is proposed to organize and incorporate under the corporate name and style of the `Elyton Land Company,' shall at any time within two years from this date, desire to purchase the said two acres of land, the said party of the second part or said land company by its corporate name shall have the right to purchase the same, and the said parties of the first part shall be bound to sell and convey to the said purchasers the said two acres of land and all the improvements thereon upon being paid by said party of the second part or said land company $25 in cash for each of the said two acres, and also paying in cash the assessed value of all improvements thereon at the time of said purchase, said value to be ascertained by referees under the laws of Alabama, two of whom shall be chosen by said parties of the first part *305 and two by said party of the second part or said land company, they having the right in case of disagreement to choose an umpire and their assessment of value of said improvements is to be final."
It seems to be admitted that after securing the deed of December 8, 1870, but before exercising the option therein contained as to the dwelling, the Elyton Land Company had a map made of the property which had been purchased from Mr. Worthington, as well as the small tract upon which the dwelling and the outbuildings were situated and which, as before indicated, was not included in the said 1870 deed. The map showed the property as divided into streets, lots and blocks. This map or one made shortly thereafter showed the dwelling and outbuildings of Mr. Worthington to be situated in Thirty-first Street as shown on the map, but it was indicated on the map that Thirty-first Street was not open to the public at that point, that is, between Sixth Avenue, South, and Seventh Avenue, South, as those avenues appeared on said map.
Thereafter, on July 22, 1872, before the expiration of the option contained in the conveyance of December 8, 1870, Mr. Worthington and wife executed the following conveyance to Elyton Land Company:
"This Indenture made and entered into this the 22nd day of July, 1872, between B. P. Worthington and wife Caroline Worthington of the County of Jefferson and State of Alabama, of the first part and the Elyton Land Company a body corporate under the general laws of said State with the power of building, purchasing and selling real estate WITNESSETH that Whereas, the said B. P. Worthington and his wife, Caroline Worthington have heretofore to-wit: on the 8th day of December, 1870, sold and conveyed to Josiah Morris and by supplemental and amendatory deed dated 17th of July, 1871, sold and conveyed to the said Elyton Land Company, a corporation as aforesaid certain tracts or parcels of land situated in the County and State aforesaid subject to a reservation on the part of the said B. P. Worthington and his wife Caroline Worthington of two acres of said land, and the improvements thereon situated in the Southwest Quarter of the North East Quarter of Section 31, Tp. 17, R. 2. West, and Whereas by the stipulations of the deed first aforesaid it was agreed that the said Josiah Morris or his assigns should have the right to purchase from the said B. P. Worthington and wife, Caroline Worthington the said two acres and improvements thereon at any time within two years from said date, and whereas, the said Elyton Land Company holding under the said Josiah Morris do now desire to purchase said two acres of land.
"NOW, THEREFORE, the said B. P. Worthington and his said wife Caroline for and in consideration of the sum of one dollar in hand paid and the further consideration expressed in deed of conveyance from said Elyton Land Company to the said B. P. Worthington of even date with this instrument, have bargained and sold and by these presents do bargain, sell and convey to the said Elyton Land Company the two acres aforesaid situated in the S.W. ¼ of the N.E. ¼, Tp. 17, R. 2. West & reserved as aforesaid by the said B. P. Worthington and said wife, Caroline Worthington in the deed first aforesaid subject however to the following stipulations and agreements, to-wit:
"The said B. P. Worthington shall have the right to use and occupy the dwelling and outhouses now occupied by him situated, in 31st Street in the plan of the property of the Elyton Land Company between 6th and 7th Avenues South until such time as the said Elyton Land Company may desire to open for public use said 31st Street between 6th and 7th Avenues South and the said Elyton Land Company shall have the right to open said street last aforesaid at any time they may think proper on payment to the said B. P. Worthington in cash the assessed value of said dwelling and outhouses which may be situated in said street at the date of the assessment which assessment must be made if the parties hereto cannot agree upon the value, by referees under the arbitration laws of the State of Alabama, two of whom shall be chosen by the said Elyton *306 Land Company and two by the said B. P. Worthington, they having the right in case of a disagreement to choose an umpire and their assessment of the value to be final."
Hereafter, when we refer to Thirty-first Street we have reference to that strip of land eighty feet in width which lies between Sixth Avenue, South, on the north, and Seventh Avenue, South, on the south, and shown on the maps, plans, and plats as Thirty-first Street.
Mr. Worthington continued to occupy the family dwelling until his death in November, 1884, no effort having been made during his lifetime to open Thirty-first Street in accordance with the conditions expressed in the deed of July 22, 1872.
In distributing his property, Mr. Worthington, in May, 1884, executed a conveyance to his wife, Caroline Worthington, wherein he conveyed among other property that described as follows: "Also all that part of 31st Street on which my homestead is situated being all that part of said street lying between Avenues `F' and `G' and Block 444 and 473." It is well to note at this point that Avenue F is the same as Sixth Avenue, South, and Avenue G the same as Seventh Avenue, South.
Thereafter, in May, 1889, approximately three months before her death, Mrs. Caroline Worthington, the widow of Benjamin P. Worthington, executed a deed wherein she conveyed to her three daughters, Mrs. Virginia Elizabeth Nabers, Mrs. Mary C. Robertson, and Mrs. Ella M. Graham, a portion of the strip of land theretofore conveyed to her by her husband in May, 1884. The description in the deed from Mrs. Worthington to her said three daughters was as follows: "A strip of land eighty (80) feet by four hundred (400) feet being a rectangle and constituting what would be all that part of the thirty-first (31) street between Avenues F & G, if said thirty-first street was extended between Avenues F, & G, being bounded on the North by Avenue F, on the east by block Number four hundred and seventy three (473), on the South by Avenue G and on the west by block number four hundred and forty-four (444), together with all the improvements thereon, except one hundred and forty five (145) feet off of the south end of said strip, which one hundred forty-five (145) feet by eighty (80) feet extending from the rear of the old Worthington house to Avenue G which shall be kept open and used in common by the owners of all of the adjoining lots, situated in Birmingham, Jefferson County, Ala."
In April, 1905, Mrs. Nabers and Mrs. Robertson conveyed their interest in the said strip, which they had acquired by deed from their mother, to their sister, Mrs. Ella M. Graham.
Mrs. Worthington and her three daughters were in open possession of said strip, claiming to own it ever since Mr. Worthington's deed to Mrs. Worthington, as against Elyton Land Company and its assigns, if any. Mrs. Graham continued in possession of the strip of land and was in possession when in 1916 the City of Birmingham filed it bill in equity against her in the city court of Birmingham, seeking to have her remove the buildings and fences on the said strip of land, on the ground that they constituted a nuisance. The suit was transferred to the circuit court of the Tenth Judicial Circuit, in equity. The sufficiency of the bill was not challenged by demurrer, but the respondent, Mrs. Ella M. Graham, answered the bill. After testimony was taken and on final hearing, the bill was dismissed. The City of Birmingham appealed to this court and on or about June 27, 1918, we affirmed the decree of the lower court dismissing the bill. See City of Birmingham v. Graham, 202 Ala. 202, 79 So. 574.
After that case was concluded, Mrs. Ella M. Graham remained in possession of said strip until her death in 1947, claiming to own it. During her lifetime the City of Birmingham made no further effort to interfere with her possession. The strip was assessed to Mrs. Graham for state, county and city taxes from 1941 to 1947. The taxes so assessed were paid by Mrs. Graham during her lifetime and after her death by her executor.
Mrs. Graham died testate, leaving all of her property to her grandson, Henry *307 Graham Sims, the only son of her daughter, Alice Graham Sims.
The instant proceeding was instituted by Henry Graham Sims against the City of Birmingham in August, 1947. As last amended, the bill sought (1) to quiet title to the strip of land; (2) to cancel the deed executed by B. P. Worthington and wife on July 22, 1872, to the Elyton Land Company; (3) to enforce a vendor's or purchase money lien for the value of the buildings on the said strip of land.
The respondent, the City of Birmingham interposed a demurrer to the bill as a whole and to the several aspects thereof. The trial court sustained the demurrer as to the aspects of the bill seeking to have the 1872 deed cancelled and to enforce a vendor's or purchase money lien. The demurrer to the bill as a whole and to that aspect of the bill seeking to quiet title was overruled.
Thereafter the respondent filed its answer which, among other things, averred that the judgment in the case of City of Birmingham v. Graham, 202 Ala. 202, 79 So. 574, was res judicata as to all questions sought to be determined in the instant proceeding.
After testimony was taken and on final hearing, the trial court entered a decree denying to complainant the relief prayed for in his bill of complaint and the bill was dismissed. From that decree the complainant below, Henry Graham Sims, has appealed to this court.
In the suit filed by the City of Birmingham against Mrs. Ella M. Graham in 1916, the City took the position that it was entitled to have Mrs. Graham remove the buildings and fences situate in the strip of land because of the fact that said strip of land had been dedicated to the public use as a street and that it was unnecessary for the City to reimburse Mrs. Graham for the buildings, fences, etc., in view of the fact that the right to maintain the dwelling, outbuildings, and fences on said strip was personal to Mr. B. P. Worthington and that all rights to maintain such buildings and fences were ended upon the death of Mr. Worthington.
Mrs. Graham in her answer denied that the strip of land had ever been dedicated as a street by her father, Mr. B. P. Worthington, or by the Elyton Land Company. In her said answer Mrs. Graham averred that the Elyton Land Company never exercised the privilege to open the street nor did that corporation, before its dissolution, assign that right to the defendant, the City of Birmingham. That the respondent, Mrs. Ella M. Graham, took the position that the City of Birmingham had no rights under the deed from B. P. Worthington to the Elyton Land Company, executed on July 22, 1872, is shown by the following averments of her answer: "12th. And this Defendant further answering says that the Plaintiff should not be granted any relief by the Bill of Complaint (except in so far as the Bill may seek to enforce the City's right of eminent domain to acquire the land described in the Bill as private property for a public purpose), because the said Elyton Land Company never was the owner of all the title to the realty lying in what is referred to as 31st street between 6th and 7th Avenues, South, according to the plan referred to in the deed from the said B. P. Worthington to said Company dated July 22, 1872, copy of which is attached to this answer; nor did it ever acquire the right to possession thereof and therefore it never was able to dedicate the same to the use of the public as a street and that the said B. P. Worthington was in possession of the said strip as his own at the time of said deed and had been in possession openly claiming to own the same for more than ten years prior thereto and by said deed of July 22, 1872, copy of which is hereto attached, he reserved the right to possession of that part of said two acres comprised in said strip described as 31st Street between 6th and 7th Avenues, South, until it should be purchased by said Elyton Land Company according to the terms of the option set out in said deed; and the said Elyton Land Company never exercised said option prior to the dissolution of said corporation under the laws of Alabama more than ten years before the filing of this Bill. And this defendant and those thru whom she claims *308 since the conveyance from her said father to her said Mother as hereinafter set forth has been in open notorious possession of said strip, claiming to own the same adversely against the whole world for more than ten years prior to this date under the aforesaid deeds from her said mother and sisters."
As before indicated, the trial court in the case of City of Birmingham v. Graham, supra, dismissed complainant's bill, from which decree the City of Birmingham prosecuted an appeal to this court. The judgment entry of this court merely shows an affirmance of the decree of the trial court.
However, the opinion of the court fully discloses the issues and arguments presented on the appeal and we are clear to the conclusion, from a careful examination of the original record in the case of City of Birmingham v. Graham, supra, which by agreement is a part of this case, that the matters considered and discussed in that opinion were necessary to a decision in that case and were not collateral to the issues therein.
In substance, the issue before the court was as to the rights of the parties in the strip of land. Certainly one of the pivotal points in that case was the construction to be placed on the deed of July 22, 1872.
The pertinent parts of the opinion of this court in the case of City of Birmingham v. Graham, supra, are as follows:
"The conditions in Mr. Worthington's deed to the Elyton Land Company, which were covenants running with the land, secured to Mr. Worthington, his heirs, or assigns, the right to use and occupy the dwelling and outhouses designated for the time indicated, and that the land embraced in Thirty-First street would be used for that public purpose when the street was opened, and secured to that land company or its assigns the right to open, as a public thoroughfare, Thirty-First street between Sixth (F) and Seventh (G) Avenues South, at any time the grantee or its assigns may think proper to open the same pursuant to the plan of said street and avenues theretofore platted by that company, on payment in cash the assessed values of the dwelling and outhouses situated therein. The covenantsif such there was to erect other buildings on the property after the delivery of the deed from Mr. Worthington to Elyton Land Company, and, in pursuance of the occupancy of the dwelling and outhouses secured by his deed to Elyton Land Company for the time indicated, was personal to Mr. Worthington, and did not extend to his assigns. The value of such buildings as may have been erected by Mr. Worthington in the reasonable exercise of his right of occupancy, to the time he conveyed his interest in the lands to Mrs. Caroline Worthington, was secured to him and his assigns by the covenants in his conveyance to Elyton Land Company, and constituted a part of the purchase price for the lands that must be paid for per covenant conditions. Spencer v. Clark, supra [5 Coke, 16].
"Such conditional conveyance of the lands for public street was not contrary to the law of dedication, since a grantor may reasonably limit or deny certain uses of lands conveyed, and otherwise reasonably fix limitations for their use by covenants running with the land. Webb v. Robbins, supra [77 Ala. 176]; Gilmer v. Mobile & M. Ry. Co., supra [79 Ala. 569]. The use of the words, `Thirty-First street, between Sixth and Seventh Avenues South,' in the conveyance in question, as to Mr. Worthington, his heirs and assigns, was descriptive of that part of the two acres of the homestead tract sold on conditions unequivocally stated, and was a reasonable limitation of the use to which it was to be subjected by Elyton Land Company or assigns. Under the Elyton Land Company's plat or map, showing Thirty-First street as open for the use of the public, its sale of lots with reference thereto, and its partial exercise of the option (of December 8, 1870) by the purchase on July 22, 1872, on conditions of the land from Worthington for use as a public street, as against Elyton Land Company and its assigns, constituted a dedication of all its right, title and interest therein to the public and to those who purchased respective lots with reference to that map, showing as open to *309 the public said avenues and that street. This right was subject, however, to the payment of the balance of the purchase money necessary to secure from Worthington or assigns an unincumbered title thereto. The intention of the parties to this effect is disclosed not only by the instrument but by the situation of the parties and the surrounding circumstances, including that of the location of these lands with reference to others theretofore purchased. By such conditions the Elyton Land Company and its assigns, on the one hand, and B. P. Worthington and his heirs and assigns, on the other, were bound as to the consideration, the time and terms of payment, and the use to which the lands was to be subjected. The acceptance by subsequent purchasers of lots in the same subdivision, with reference to this street, or by the municipality, was on the conditions shown of record of securing to Worthington and his assigns the payment of the balance of the purchase money at the time indicated, and subject to the reasonable limitations of the ultimate use for which the land was sold. 2 Warvelle on Vendors, § 680.
"The several subsequent conveyances introduced in evidence by Mr. and Mrs. Worthington, by their heirs and assigns, and by other parties in interest, of adjacent lands, wherein reference is made to the plat or map made by the Elyton Land Company and others, of the subdivision embracing and recognizing Thirty-First street as open to the public, are not sufficient to operate an estoppel in pais against respondent's right to claim the stipulated compensationthe balance of the purchase money for the buildings situated thereon at the date of Mr. Worthington's deed of May 19, 1884, to Mrs. Caroline Worthington. The right of the owner of the vendor's lien was duly reserved against his grantee and its assigns, and against an unconditional acceptance of the lands by the public until the purchase price thereof was fully discharged, by the due record of the conditional conveyance and by the continued possession of the land under this conveyance by the Worthingtons and their assigns. The payment of taxes thereon and of municipal assessments apportioned thereto, by such grantee, were not acts inconsistent with the limited use and right appurtenant thereto, reserved by the grantor to himself and assigns. A different case is presented to that of City of Mobile v. Chapman, [202 Ala. 194], 79 So. 566. Respondent's possession and other general acts of ownership are consistent with, and will be referred to, the conditional conveyance by Mr. Worthington. And when the terms of the purchase and dedication are fully complied with, by payment in cash of the value of the buildings situated thereon at the date of Worthington's conveyance, Mrs. Graham's interest therein and right of occupancy will terminate.
"As to the three cottages erected by her on the land (in 1907), they are subject to removal, or, after the fulfillment, of the conditions of the original grant, may be subject to abatement as a nuisance in a proper suit.
"If the bill had been filed by an assign of the Elyton Land Company in the exercise of the right of assessment, and payment of the cash value of the obstructing buildings located thereon at date of said conveyance, for the purpose of opening Thirty-First street at the designated point, in compliance with the conditions of Worthington's grant to the Elyton Land Company, or filed by the city, or by an owner of property having the right, in the exercise of such covenant running with the land, a different case would be presented for decision. The purpose of the present bill by the municipality was to abate as a nuisance the dwelling and all outhouses situate thereon, without compliance with the terms of the conveyance, which was properly denied by the chancellor. [202 Ala. 202, 79 So. 577]
"The decree dismissing the bill is affirmed."
Broadly speaking, in the present suit the complainant seeks to have the court declare that he has fee simple title to the strip of land involved, free from any right of the City of Birmingham to open said strip as a public street, even though the City of Birmingham pays to him the value *310 of the improvements located on the strip. He bases his right to such a decree on the averments that (1) there has been no dedication of the strip for public use as a street; (2) that any right to open the strip as a public street under the provisions of the deed of July 22, 1872, has long since expired in that the parties to that conveyance contemplated that such right should be exercised within a reasonable time and that the period of seventy-five years had elapsed at the time of the filing of this bill and that right has not been exercised; (3) that there was no consideration for the deed executed by B. P. Worthington to Elyton Land Company on July 22, 1872.
In the alternative, it seems that the complainant prayed that in the event he was not entitled to a decree cancelling the deed of July 22, 1872, as a cloud on his title, that the vendor's lien referred to in the opinion of this court in the case of City of Birmingham v. Graham, supra, be foreclosed.
The general rule of res judicata is that a judgment of a court of competent jurisdiction, rendered on its merits, is final and conclusive of the matter in controversy and what ought to have been litigated in the suit as between the parties to the litigation. Clark v. Whitfield, 213 Ala. 441, 105 So. 200, and cases cited.
There is, of course, no difference in the proper application of this principle between a judgment at law and a decree in chancery. Strang v. Moog, 72 Ala. 460. It is also well established that, where a decree has been rendered dismissing a bill on the merits in a case, it is final and conclusive, not only as to all facts or issues actually decided, but upon all points which were necessarily involved in the matter adjudicated. McDonald v. Mobile Life Ins. Co., 65 Ala. 358; Strang v. Moog, supra. It has been said in essence that the doctrine of res judicata is generally broader than the determination of the question directly involved in the prior action, and the prior judgment extends to all questions falling within the scope of the original action, and which could have been presented by exercising due diligence, and extends to both the claim and the defense. Crowson v. Cody, 215 Ala. 150, 110 So. 46; Fife v. Pioneer Lumber Co., 237 Ala. 92, 185 So. 759; Jefferson County v. McAdory, 32 Ala.App. 294, 25 So. 2d 396.
It is also well settled that a judgment or decree is conclusive, not only upon those who were actual parties to the litigation, but also upon all persons who are in privity with them, defined by some of the authorities as "a mutual or successive relationship to the same rights of property." Bigelow v. Old Dominion Copper Co., 225 U.S. 111, 32 S. Ct. 641, 56 L. Ed. 1009; Interstate Electric Co. v. Fidelity & Deposit Co., 228 Ala. 210, 153 So. 427, 429.
It is true that in the case of City of Birmingham v. Graham, supra, Mrs. Graham did not take the position that there was no valid consideration for the execution of the deed of July 22, 1872, and that, therefore, neither the Elyton Land Company nor the City of Birmingham had any right thereunder. This question was within the scope of that proceeding and could have been presented by the exercise of due diligence. Assuming, but not deciding, that the question was not presented in that suit as to whether or not the City of Birmingham had succeeded to the rights of the Elyton Land Company under the deed of July 22, 1872, it is sufficient to say that the question was within the scope of the action brought by the City of Birmingham against Mrs. Graham. Without question, this court definitely held that there had been a dedication of the strip of land to the public use as a street. It also determined as to the rights of the City of Birmingham and Mrs. Graham in regard to the so-called vendor's lien.
The complainant in this case, Mr. Henry Graham Sims, is without question in privity with his grandmother, Mrs. Ella M. Graham, under whom he claims. It follows, therefore, that the effect of the determination of the suit by the City of Birmingham against Mrs. Graham was to create an estoppel against him to again litigate the same issues with the City of Birmingham or to litigate with the said *311 City issues which Mrs. Graham ought to have litigated within the scope of that action.
In the discussion by the court, it is clearly stated that the conveyance of July 22, 1872, which passed to the Elyton Land Company a right to open the street referred to, to be exercised at any time they think proper, on payment in cash of the assessed value of the dwelling and outhouses, conveyed a conditional right, and was a conditional dedication. It also appears that the court understood by the transaction that Worthington and his successors, which would include this complainant as the successor to Mrs. Graham, had a vendor's lien to secure the payment of said value of the improvements as a part of the consideration for the deed. The opinion seemed to use the idea of a vendor's lien and that of a conditional dedication in the same connection. That status is not inconsistent because the deed may imply an obligation by the Elyton Land Company as grantee to make the payment, which may also be a condition to the enjoyment of the easement. In the former case, supra, 202 Ala. 202, 79 So. 574, 575, there was nothing in the decree or opinion or the record to show that the pleadings sought to have declared a vendor's lien. But it declared that the dedication was on the condition that the street was not to be opened, except upon the payment of cash of said value of the dwelling and outhouses; and that this could be done "at any time they may think proper." The effect of that decree was to declare that that status then existed June 27, 1918.
As we have said, the bill in the instant case sought (1) to quiet the title under the statute; (2) to cancel the deed of July 22, 1872, to the Elyton Land Company; and (3) in the alternative, to enforce or foreclose a vendor's lien for the value of the buildings. We think that means to seek to have the amount specified to be paid or, in default, that a foreclosure of the right to open the street be decreed. The bill also sought general relief. It is apparent that the pleader was accepting the view expressed on appeal in the former case that there was a vendor's lien and sought a strict foreclosure of it. The relief in quieting the title under § 1109, Title 7, Code, extends broadly to all matters affecting it. Standard Contractors Supply Co. v. Scotch, 247 Ala. 517, 25 So. 2d 257; Watson v. Baker, 228 Ala. 652, 154 So. 788; Grayson v. Muckleroy, 220 Ala. 182, 124 So. 217.
We think the trial court in the instant case should have gone further than merely to determine that under the decree in the former case, the City as the owner of the easement so dedicated still has a right at any time it thinks proper to pay the amount specified in said deed and open the street. That is what was decided and held in that case. It meant that the right continued to exist but only on compliance with the condition named. Such a status was then (June 27, 1918) declared to be effective. Nothing was done to change that status until this bill was filed. The decree there did not hold that this right must be exercised in any certain time nor in a reasonable time. There was nothing in the deed in question which fixed a time limit or made time of the essence in complying with the condition. But we think the right should have been exercised in a reasonable time after June 27, 1918, by complying with the terms of the condition. But when time is not of the essence, a failure to comply either in the time specified, if it is specified, or if not so specified, in a reasonable time, does not ipso facto serve to foreclose the right, unless the contract so stipulates. To have that effect the party must be given notice to comply within a fixed reasonable time thereafter and, in default, that his right be foreclosed. Boozer v. Blake, 245 Ala. 389(6), 17 So. 2d 152; Bay Minette Land Co. v. Stapleton, 224 Ala. 175(13), 139 So. 342; Dominey v. Johnson-Brown Co., 219 Ala. 666, 123 So. 52(2); McFadden v. Henderson, 128 Ala. 221, 29 So. 640. We think that illustrates the status of the parties at the present time. In this suit, a statutory bill to quiet title, the court upon request of complainant should ascertain the value of the improvements to be paid as a condition to opening the street, and make a decree allowing the City a fixed *312 reasonable time in which to comply with the condition named and that, in default of such compliance, the right to open the street shall be forever foreclosed and barred.
The bill in terms sought a strict foreclosure of the vendor's lien, as there termed, but its effect was to foreclose the right to open the street upon a failure to comply with the condition of the easement. That is what a strict foreclosure implies. Rogers v. Gonzalez, 252 Ala. 313, 40 So. 2d 858. The relief sought in that connection with a prayer for general relief should be properly interpreted as seeking such relief as he is entitled to. The demurrer to the bill in so far as it sought a foreclosure of such right should not have been sustained, nor relief denied by dismissing the bill. We think it should have overruled the demurrer in that respect and granted the relief to which we have referred.
The decree is therefore reversed both with respect to the demurrer to that aspect to which we have referred, and in so far as it denied relief and dismissed the bill. The cause is remanded for further proceedings pursuant to this opinion.
Reversed and remanded.
BROWN, FOSTER, SIMPSON, and STAKELY, JJ., concur.
LIVINGSTON and LAWSON, JJ., dissent.
LAWSON, Justice, dissenting.
In my opinion, the case of City of Birmingham v. Graham, 202 Ala. 202, 79 So. 574, is decisive of all the questions presented on this appeal.
As I understand the opinion in that case, this court held that under the plain, clear language of the 1872 deed from Mr. Worthington and wife to the Elyton Land Company, the City of Birmingham, as a successor to the Elyton Land Company, has the right to open the strip of land as a part of Thirty-First street "at any time" it "may think proper to open the same pursuant to the plan of said street and avenues theretofore platted by that company, on payment in cash the assessed values of the dwelling and outhouses situated therein."
I construe the effect of the holding of the majority to be that the City may be forced to pay for the improvements, although it is not ready to open the strip of land as a public street, or lose its rights under the said 1872 deed. In my opinion, such holding is diametrically opposed to the holding in City of Birmingham v. Graham, supra, which, as before indicated, in my opinion is res adjudicata of all questions presented. Therefore, I am constrained to dissent.
LIVINGSTON, J., concurs in this view.
FOSTER, Justice.
It is well settled, as pointed out above, 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(8), 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.
It is contended that if this principle is here applicable, notice should be given prior to the institution of the suit and a failure on the part of the city to exercise its right to pay for the property has resulted.
We cannot agree to such contention. There are many situations in which a notice or a demand is important in establishing a claim in equity or at law. The processes of the court are usually regarded as sufficient to such legal requirements. This principle is illustrated in many situations and particularly with respect to a vendor and vendee. It is not necessary in order to enforce specific performance of a contract by the purchaser to offer to comply with the contract before filing the bill, the bill offering to do equity. Mitchell v. Walker, 235 Ala. 458, 179 So. 633; Zirkle v. Ball, 171 Ala. 568, *313 54 So. 1000; Cudd v. Wood, 205 Ala. 682 (11), 89 So. 52; Ashurst v. Peck, 101 Ala. 499(5), 14 So. 541. When the vendee is in default, the vendor has a right to elect whether he will abandon the contract and re-enter upon the premises or hold the vendee to his agreement. But "in neither case has he the right to any notice of the election of the vendor other than what the process would give him when proceedings are commenced." Seabury v. Doe ex dem, Stewart, & Easton, 22 Ala. 207(3), 218; Mendota Coal & Coke Co. v. Eastern Railway & Lumber Co., 9 Cir., 53 F.2d 77; First National Bank v. Blocker, 150 Minn. 337, 185 N.W. 292; Angel v. Columbia Canal Co., 69 Wash. 550, 125 P. 766.
This suit was begun, as has been pointed out, by filing a statutory bill to quiet the title under section 1109, Title 7, Code. We observed above that in such a suit equity has broad powers extending to all matters affecting the title between the parties. Included in that statement of the principle would be the right of complainant to require the city to exercise its rights under the deed of July 22, 1872, but within such reasonable time as may be allowed by the court upon the election of the complainant to require an exercise of that right, and the filing of this bill with a prayer for foreclosure of such right was sufficient to invoke the jurisdiction of the equity court to that end and enable the complainant, through the processes of the court, to require the city to determine whether or not it will exercise its rights so conferred within such reasonable time as may be allowed. It will be observed that this right was given to the city about seventy-eight years ago. The complainant and its predecessors did not see fit to require the city to make an election prior to the time of the former adjudication of their claims, as was determined on June 27, 1918. So that up to that time forty-six years had expired and the city had done nothing toward exercising such rights and the property owner had not taken steps to require it, the court held in that case that it still existed; and now, thirty-two years after said decision, the city is still claiming that right to be exercised whenever it sees fit at any time in the future, and without any duty on its part ever to act at any time in that regard.
While the terms of the provision give the city the right to act "at any time they may think proper," we do not think this was intended to be perpetual, and that the city can stand off for seventy-eight years, one hundred and seventy-eight years or one thousand and seventy-eight years, and still hold on to the right when the complainant is seeking to have a determination and foreclosure of that right. The power of the city to perform at any time they think proper, we do not think lasts forever. But under the authorities, which we have cited, it should not be foreclosed until notice has been given and a reasonable time thereafter to act. Such is a strict foreclosure. In the enforcement of such a remedy the court prescribes a time in which the performance is to be had, just as we think the court may here fix such a time.
It is insisted the deed of July 22, 1872 provides a condition precedent to the institution of any such suit by complainant in this case, in that, it provides that the value of the dwelling and outhouses shall be assessed if the parties cannot agree upon the value by referees under the arbitration laws of the State of Alabama. It will be observed there is nothing in said stipulation which makes an arbitration a condition precedent to the maintenance of a suit. A stipulation for arbitration of factual differences may or may not be a condition to recovery, and unless it is made a condition to recovery it is collateral to the contract and suit may be maintained without a compliance. Wright v. Evans, 53 Ala. 103. We quote from 53 Ala. at page 108: "A mere unexecuted agreement to submit is of no force, even when made by the party. It is not a bar to the suit, if made prior to its institution, or if made pending the suit, to its further maintenance." The same principle is declared in the authorities generally. 5 Corpus Juris 42, section 68, states it as follows: "An agreement to submit to arbitration, not consummated by an award, is no bar to a suit at law *314 or in equity concerning the subject matter submitted." See, also, 6 C.J.S., Arbitration and Award, § 29. But in 13 Corpus Juris 680, it is said, "Where it is made by the contract a condition precedent, a provision for the submission of disputes to arbitration, * * * must be complied with before an action may be brought on the contract. The rule is otherwise, however, where the arbitration or approval is not made a condition precedent". It is likewise similarly stated in 29 Am. Jur. 928, and 17 Corpus Juris Secundum, Contracts, § 499, page 1033.
We have had several cases in this State in which the clause providing for a limited arbitration also stipulated that no suit should be brought until such arbitration had been complied with. We held in those cases that it is a condition precedent to the maintenance of the suit, and that a suit in violation of it was subject to a plea in abatement. McCullough v. Mill Owners Mutual Fire Ins. Co., 243 Ala. 67, 8 So. 2d 404; Headley v. Aetna Ins. Co., 202 Ala. 384, 80 So. 466; Ex parte Birmingham Fire Ins. Co., 233 Ala. 370, 172 So. 99.
There is nothing in the deed here in question which indicates an intention to make arbitration a condition precedent to a suit in equity, such as is here involved, as we have interpreted it. There is of course no right to an action at law by this complainant, but his only right with respect to the situation is in equity, and we think it is such as we have indicated.
In our opinion, supra, we observed that the court, upon the request of the complainant, should ascertain the value of the improvements to be paid as a condition to opening the street. We did not indicate in that opinion the manner in which the court should proceed to ascertain the value of the improvements. This of course may be done pursuant to the terms of the deed of July 22, 1872, if the parties cannot agree and thereby obtain the benefit of the arbitration clause in the same. It is then in the nature of a reference of the cause to that extent. Snodgrass v. Armbrester, 90 Ala. 493, 7 So. 840; section 829, Title 7, Code.
Application for rehearing overruled.
BROWN, SIMPSON and STAKELY, JJ., concur.
LIVINGSTON and LAWSON, JJ., dissent. | October 19, 1950 |
9b576d0d-c5d0-435c-be54-606210df788a | Ex Parte Banks | 48 So. 2d 35 | N/A | Alabama | Alabama Supreme Court | 48 So. 2d 35 (1950)
Ex parte BANKS et al.
6 Div. 972.
Supreme Court of Alabama.
June 30, 1950.
Arthur D. Shores, Oscar W. Adams, Jr., Peter A. Hall and David H. Hood, Jr., all of Birmingham, for petitioners.
Harold M. Cook, of Birmingham, for Board of Com'rs of State Bar.
PER CURIAM.
This is a joint petition by four Negro residents of Alabama for a license to practice law in Alabama without an examination required by section 27, Title 46, Code. We will, for the benefit of this discussion, pretermit the joint nature of the petition in respect to a claim by each wholly independent of that of the others.
The Act of June 1, 1945, Title 52, section 40 (1), Pocket Part, Code, provides that the State Board of Education may provide for residents of Alabama graduate and professional instruction not available to them at State supported educational institutions. It shall determine their qualifications, when they are to be aided financially by the State, and shall provide such graduate and professional instruction at any educational institution as it deems necessary within or without the State, and out of appropriations available for the purpose of supplying such students an amount not exceeding the probable cost of such instruction to them if it were offered at a State supported institution.
These petitioners made application to the State Board of Education for funds to provide legal instruction under that statute and received them. Their qualifications are not questioned. They finished the course, legal instruction, at the institutions approved by the board. One of them was Howard University Law School at Washington, D. C., and one the Lincoln University at St. Louis, Missouri. They received diplomas from those institutions and were approved by the State Bar as proper candidates for *36 examination as to their legal attainments by the board of examiners, as provided in section 27, Title 46, Code. But petitioners are seeking to have licenses granted by this Court without such examination.
The basis of their contention is that graduates of the Law School of the University of Alabama are entitled to such license without an examination by virtue of section 26, Title 46, Code, and they, Negroes, are denied the right to attend the State supported law school, and there is no State supported law school provided in the State which is open to them and in which a diploma authorizes the issuance of a license without examination under section 27, Title 46, supra. They rely on the principles discussed in the following cases: Missouri ex rel. Gaines v. Canada, 305 U.S. 337, 59 S. Ct. 232, 83 L. Ed. 208; Sipuel v. Board of Regents, University of Okl., 332 U.S. 631, 68 S. Ct. 299, 92 L. Ed. 247; Sweatt v. Painter, 70 S. Ct. 848; McLaurin v. Okl. State Regents, 70 S. Ct. 851.
Petitioners knew that the only provision of law for a diploma license was section 26, Title 46, supra, which applies to graduates from the Law School of the University of Alabama and to no other class of persons. They accepted the legal education provided for by the Act of June 1, 1945, as a compliance with the duty of the State to that extent, and did not apply for admission to the Law School of the University of Alabama. So that petitioners stand in the attitude of attending a law school out of the State as a result of their free will.
Section 26, Title 46, supra, does not provide for a diploma license for such a legal education, but section 27, Title 46, Code, requires an examination by the board of examiners. So that the law does not provide for a diploma license for these petitioners.
We are fully conscious of the importance of the questions presented on this application and the arguments made in support of it. We are asked to ignore the provisions of section 27, Title 46, supra, and grant petitioners a license without an examination and without a diploma from the Law School of the University of Alabama. This we believe has never been done by this Court in plain conflict with the statute. In all instances when any person has received legal education out of the State and out of the Law School of the University of Alabama an examination has been required under that statute. While the status of petitioners in that respect is not exactly the same as that of the others, they do occupy a status of voluntarily seeking legal education outside of the State, aided by the State, knowing that in doing so the law does not justify a diploma license. We do not think we should set ourselves directly in conflict with the requirements of our statutes to favor petitioners who have not been denied any legal or constitutional right by the State or its authorities.
The petition is denied as to each petitioner separately.
All the Justices concur, except GARDNER, C. J., not sitting. | June 30, 1950 |
c9c9fbc8-c190-4c63-af6c-eb840f42ab66 | Alabama Power Co. v. Berry | 48 So. 2d 231 | N/A | Alabama | Alabama Supreme Court | 48 So. 2d 231 (1950)
ALABAMA POWER CO.
v.
BERRY.
6 Div. 959.
Supreme Court of Alabama.
October 12, 1950.
*233 J. A. Posey, of Haleyville, and Martin, Turner & McWhorter and J. C. Blakey, of Birmingham, for appellant.
Weaver & Johnson, of Haleyville, for appellee.
SIMPSON, Justice.
The judgment here reviewed is one awarding damages to S. L. Berry, a minor who sues by his father as next friend, for serious and painful injuries alleged to have been caused by accidentally and unknowingly walking against or stepping upon a wire which was dangling or hanging down from defendant's high-voltage electric power transmission line, while he was cutting corn tops in his father's cornfield. Suit was filed some six years after the alleged occurrence.
The refusal to the defendant of the affirmative charge constitutes the vital assignment of error and is the question of primary importance.
*234 Short of this principal question are two preliminary propositions, regarded as untenable, which will be disposed of first; viz., whether the transcript of the evidence should be stricken on motion of appellee and whether the count was subject to the grounds of demurrer interposed.
The appellee moves to strike the transcript because not filed with the clerk within ninety days after the date of trial or the ruling on the motion for a new trial, as required by Code 1940, Title 7, § 827(4). The delay in filing the transcript was occasioned by the serious illness of the trial judge after one continuance by him of the hearing on the motion for new trial, which rendered him unable to give the matter further attention, whereby, when he did recover and consider the motion, there had been a discontinuance. The local attorney of appellant thought he had an agreement with opposing counsel to avert such a discontinuance, but if so, the agreement was not in writing, as required, Circuit Court Rule 14, was therefore not binding, and the judge on the hearing of the motion properly declared that there had been a discontinuance and that he was without jurisdiction to rule on it. Stallings v. Clark, 218 Ala. 31, 117 So. 467; Richards v. Williams, 231 Ala. 450, 165 So. 820.
The transcript was filed the same day of this order of discontinuance and one argument against the motion to strike is that the statute only requires the filing of the transcript within ninety days after the date of the trial "or date of the trial court's ruling on motion for new trial" (emphasis supplied); that hence this statute was complied with since the court did rule on the motion by declaring a discontinuance. We are not prepared to say whether this section of the law abolishing bills of exceptions should be so construed or whether it should be construed as meaning "within ninety days from the day on which the judgment, or the order granting or refusing motion for new trial, was entered," as provided in the old law relative to bills of exceptions. § 822, Title 7, Code. Perhaps the latter, and if so, the transcript was filed too late. This uncertainty in the statute had heretofore escaped our notice, but we are not disposed to undertake to rationalize the meaning of the section. We prefer to rest decision on Supreme Court Rule 48, Code 1940, Tit. 7 Appendix, adopted to implement the statute in an endeavor to make it workable. No objections as to the correctness of the transcript were filed and no material omissions or defects have been pointed out by appellee and the trial judge has approved it as correct. No lack of diligence on the part of appellant is shown or contended for by appellee, so under the rule we think the ends of justice require that we invoke our discretion and consider it. The motion to strike will, therefore, be overruled. Jones v. Mullin, 251 Ala. 501, 503, 38 So. 2d 281; Morgan Plan Co. v. Accounts Supervision Co., 34 Ala.App. 457, 459, 41 So. 2d 424, certiorari denied, 252 Ala. 473, 41 So. 2d 428; Supreme Court Rule 48.
The other secondary matter relates to the sufficiency of the count (Count 1) on which recovery was rested as against the asserted grounds of demurrer. The argument is advanced that the count is defective in not sufficiently describing the place of injury or that the wire with which the appellee was alleged to have come in contact was owned or maintained by appellant or that the appellant caused the condition or that appellant had any notice or the length of notice of this dangerous condition. The argument is not well taken.
The place of accident is manifestly sufficiently alleged as being on the lands of the plaintiff's father near Sardis Church in Winston County. Alamaba Power Co. v. Owens, 236 Ala. 96, 181 So. 283; Blakeney v. Alabama Power Co., 222 Ala. 394, 133 So. 16.
And, the count meets the necessary requirements of the well-settled rule that the duty of care being shown, a general averment of negligence is sufficient. It is the duty of the electric company to use that degree of care commensurate with the risk and danger involved and the public has the right to assume that its high-voltage wires will not be negligently maintained. And if, *235 as alleged, it did negligenty allow the wire to dangle and as a proximate result thereof the defendant was injured as described, liability would ensue. Birmingham Electric Co. v. Lawson, 239 Ala. 236, 194 So. 659; Alabama Power Co. v. Owens, supra; Montgomery Light & Water Co. v. Thombs, 204 Ala. 678, 87 So. 205. We hold the count good against the demurrer.
The vital question, as observed, relates to the ruling of the trial court in refusing the affirmative charge requested by the defendant. On a painstaking consideration of the record, in connection with a studious review of the governing authorities, the court has become convinced that it was error to refuse the charge.
The negligence charged in the count is that "the defendant negligently allowed a wire connected to one of its high-voltage electric power transmission lines to dangle or hang down from said high-voltage electric power transmission line to the ground, and said dangling wire was charged with high voltage electricity dangerous to the lives of human beings" and that plaintiff accidentally and unknowingly walked against or stepped upon said wire which resulted in his catalogued injuries and which were the proximate result of the negligence aforesaid.
There was but slight dispute in the material facts produced on trial: In the late afternoon between four and six o'clock September 1, 1942, plaintiff, then eleven years of age, and his brother, thirteen years of age, were cutting corn tops in their father's cornfield in a rural section of Winston County over which appellant's transmission line ran. The line had been there for many years and was suspended approximately fifty feet above the surface of the ground and, according to the testimony of the two boys, the only ones present when the accident occurred, they were cutting the corn about seventy-five feet up the hill from the point where the transmission line crossed the field. The plaintiff doesn't know what occurred nor did he recall touching or coming in contact with any wire and knew nothing until he regained consciousness in a hospital some time later. But his brother, Hollis, saw a blaze of fire come from the power line down to the ground where plaintiff was and then saw plaintiff lying on the ground. An inspection of the area later showed that scattered about indiscriminately all through the cornfield among the stalks and up to the proximity of the garden of the father of the plaintiff was a considerable amount of small fine wire which resembled in appearance the kind that goes in the coil of a T-model Ford. Although the two boys had been in the field all day, according to their testimony they did not see this wire and saw no wire hanging from the transmission line some seventy-five feet distant. No other witness was produced who had ever seen any of this scattered wire before the accident and there was no testimony as to how it got there, nor did anyone ever see any wire hanging from the transmission line at any time. Obviously, this foreign wire was not part of the defendant's equipment. There was testimony that some years previously the power company had an inspector who checked the line periodically, but no one had seen anyone inspecting the line recently. It is not shown whether the transmission line was insulated or uninsulated, nor was there any evidence that it was improperly located or constructed. The basis upon which negligence seems to be claimed was lack of reasonable inspection, although there was no proof as to what would or would not be a reasonable inspection of such a line. On the conclusion of the evidence for the plaintiff, both sides rested and the defendant requested the affirmative charge which, as stated, was refused.
We think it quite manifest that the count was not proven. It was not proven that a wire was "connected to or hanging or dangling" from the transmission line or that defendant negligently allowed it to so dangle or hang down or that any such negligence proximately caused the injuries to the plaintiff. These matters, it seems to us, are left entirely to conjecture.
An electric company is not an insurer nor is it under obligation to so safeguard its wires that by no possibility can *236 injury result therefrom. Its duty is to exercise that degree of care commensurate with the danger involved. Alabama City, G. & A. R. Co. v. Appleton, 171 Ala. 324, 330, 54 So. 638, 640; Dwight Mfg. Co. v. Word, 200 Ala. 221, 224, 75 So. 979, 982; Lawson v. Mobile Electric Co., 204 Ala. 318, 320, 85 So. 257, 258; Blakeney v. Alabama Power Company, 222 Ala. 394, 398, 133 So. 16, 19; Alabama Power Co. v. Matthews, 226 Ala. 614, 615, 147 So. 889, 890; Wetherby v. Twin State Gas & Electric Co., 83 Vt. 189, 75 A. 8, 11.
Just what particular agency produced the causal chain which injured the unfortunate lad is not proven. Was it a flash of lightning, was it a previously hanging wire, was it a wire momentarily thrown over the line immediately before the plaintiff came in contact with it, or what was it that caused the injury? We do not know. It was not proven. No one knows. And no one should be allowed to conjecture. From aught appearing, the wire was never there before the accident. It was never seen connected to, hanging or dangling from the transmission line and we do not think there was afforded the slightest inference that the defendant negligently allowed a wire to dangle or hang down from its transmission line. This was a material avermentthe one averment of the complaint on which liability was sought to be rested, and it was essential for a recovery that it be proven. Stowers v. Dwight Mfg. Co., 202 Ala. 252, 253, 254, 80 So. 90, 91; Patterson v. Alabama Fuel & Iron Co., 194 Ala. 278, 284, 285, 69 So. 952, 954; Tobler v. Pioneer Mining & Mfg. Co., 166 Ala. 482, 515, 518, 52 So. 86, 97; Alexander v. Woodmen of the World, 161 Ala. 561, 566, 49 So. 883, 885; Hatch v. Varner, 150 Ala. 440, 442, 43 So. 481.
But there is another compelling reason which, we think, sustains the right of the defendant to the affirmative charge. In order to fasten liability on defendant, it not only must have been negligent, but the proof must show that the particular act of negligence charged proximately caused the injury. Stowers v. Dwight Mfg. Co., supra, (10).
We think it clear there was no such proof. The high tension line was not the instrumentality which injured the plaintiff, however dangerous it was. There is no evidence that this defendant or anyone else for whose acts or omissions it was accountable produced the condition which is alleged to have caused the injury to the plaintiff. If it be conceded that there was a wire hanging or dangling from the transmission line and the plaintiff's contact with it caused his injury, this direct and efficient cause was produced by the intervention of the independent, responsible agency that placed the wire over the line and trailed the current to the ground. Hence the only possible liability of the defendant in that case must be rested on a negligent breach of duty to discover and remedy the dangerous condition created by the presence of the foreign wire. And this liability would not ensue unless it be shown from the evidence that time and opportunity were available to the proprietor within which to discharge such duty, which certainly does not appear. When the wire was placed there, if so, was left entirely to conjecture and speculation, whether a moment, an hour, a week, or any other period before the accident. So it would be but to speculate to say that a reasonable inspection would have revealed any dangerous condition, unless defendant had stood guard over this line every instant, which was not its duty. A fortiori, a failure to inspect, if so, could not be said to be the proximate cause of plaintiff's injuries.
A case of much factual similarity, but somewhat stronger against the electric proprietor than the one at bar, is Golson v. W. F. Covington Mfg. Co., 205 Ala. 226, 87 So. 439, where a five year old boy was killed by electricity transmitted by an electric wire through a hay wire suspended therefrom to the ground below where the boy was standing The boy concededly was not a trespasser and had not placed the hay wire on the electric line and it was alleged that the hay wire had been there for, to wit, three days and the evidence showed two dead frogs at the wire, dead long enough for flies to be attracted there, and a dead chicken at the wire, dead long enough to be infested with maggots, the inference contended for being that such dead frogs and chicken had been electrocuted, *237 thus implying notice to the defendant by the long standing condition. The court pointed out that though the defendant was under the duty to exercise reasonable care, including inspection, for the safety of persons, especially children, who might be upon the premises (as in the case at bar), it was due the general affirmative charge. Speaking through Mr. Justice McClellan, it was observed:
"But in the present instance the evidence shows indisputably that the proximate cause of this child's death was not the instrumentality, the transformer, however dangerous it was. That cause was afforded by the intervention of the independent, responsible agency that placed the foreign wire on the high-tension wire, and trailed its current-transmitting line to a point outside the latticed inclosure of the transformer. Hence the only possible lead to this proprietor's liability that the law could recognize must be found in the negligent breach of duty on the part of this proprietor to discover, and to guard, or to remove, the condition thus created by the presence of the foreign wire. Now this duty on the part of a proprietor may exist, and still the proprietor not be held responsible for injurious consequences, unless time and opportunity were available within which the proprietor might discharge his duty to discover and to guard or remove the condition creating the hazard to invitees. The mere fact of injury on the private premises of another will not alone impute negligence to the proprietor. 20 R.C.L. §§ 51 and 52.
"The burden of proof was, of course, on the plaintiff to make out a prima facie case of negligence * * *. There was no evidence that this defendant, or any one else for whose acts or omissions he was accountable, placed this foreign wire in contact with the high-tension wires, or that they knew or had any notice of its presence. When it was placed there was left entirely unindicated in the evidencewhether an hour, a week, or any other period before the tragedy occurred * * *.
"In American Cast Iron Pipe Co. v. Landrum, 183 Ala. 132, 135-136, 62 So. 757, and Carlisle v. Central of Georgia Railway Co., 183 Ala. 195, 198, 62 So. 759, it was held that where the testimony leaves a material matter leading to liability so uncertain as between causes for which the defendant might be responsible and causes for which the defendant could not be held accountable
"`it is not for the jury to guess * * * that the negligence of the defendant was the real cause when there is no sufficient foundation in the testimony for that conclusion.'
"The doctrine of these cases is due application to the very material matter we have indicated. Whether the dangerous condition in question, viz. the presence of the foreign wire, as stated, existed sufficiently long to have enabled the defendant, with reasonable diligence, to have discovered it, and removed or guarded it, is left in too much uncertainty to warrant any possible conclusion upon which to rest the liability of this defendant. The quoted evidence does not show, with any degree of uncertainty, that the animal life decomposing about where the boy was killed was rendered so by contact with this foreign wire. That may have been the cause of the death of the chicken and the frogs, but this mere possibility was not sufficient to show a discharge by the plaintiff of the burden of proof resting upon her. Furthermore, the evidence did not enlighten the court or the jury as to the period of time requisite in this climate, in the month of May, to set up the decomposition of this animal life that the evidence discloses. Having failed to efficiently discharge the burden of proof with respect to this material matter, it cannot be affirmed here that the trial court was in error in giving the general affirmative charge at the request of the defendant." 205 Ala. 229-230, 87 So. 441.
Other cases bearing some analogy and leading to the same result are: Alabama Power Co. v. Cooper, 229 Ala. 318, 319, 320, 156 So. 854, 855, 856; Littleton v. Alabama Power Co., 243 Ala. 492, 494, 10 So. 2d 757, 759; Lawson v. Mobile Electric Co., 204 Ala. 318, 323, 85 So. 257, 261; Sheffield Co. v. Morton, 161 Ala. 153, 167, 49 So. 772, 776; McClusky v. Duncan, 216 Ala. 388, *238 390, 113 So. 250, 251; Green v. West Penn. Ry. Co., 246 Pa. 340, 92 A. 341, 342; Kelly et al. v. Texas Utilities Co., Tex.Civ.App., 115 S.W.2d 1233, 1234, 1235; Fredericks, Adm'r v. Kentucky Utilities Co., 276 Ky. 13, 122 S.W.2d 1000, 1002; Watral's Adm'r v. Appalachian Power Co., 273 Ky. 25, 115 S.W.2d 372; Dilley v. Iowa Public Service Co., 210 Iowa 1332, 227 N.W. 173, 175; Adams v. Bullock, 227 N.Y. 208, 125 N.E. 93, 94; Musser v. Norfolk & W. R. Co., 122 W.Va. 365, 9 S.E.2d 524, 526.
But appellee, to avert the application of these well-known legal principles, seeks to invoke the doctrine of res ipsa loquitur. We regard Golson v. Covington Mfg. Co., supra, as conclusive, but will respond briefly to the insistence. This doctrine, like many other legal concepts, has been the subject of much diversity of opinion. Briefly stated, res ipsa loquitur is: When a thing which causes injury, without fault of the injured person, is shown to be under the exclusive control of the defendant, and the injury is such as, in the ordinary course of things, does not occur if the one having such control uses proper care, then the injury arose from the defendant's want of care. San Juan Light & Transit Co. v. Requena, 224 U.S. 89, 32 S. Ct. 399, 56 L. Ed. 680.
For the doctrine to apply, there are at least three essentials: (1) the defendant must have had full management and control of the instrumentality which caused the injury; (2) the circumstances must be such that according to common knowledge and the experience of mankind the accident could not have happened if those having control of the management had not been negligent; (3) the plaintiff's injury must have resulted from the accident. Lawson v. Mobile Electric Co., 204 Ala. 318, 85 So. 257; 9 Wigmore on Evidence, 3d Ed., § 2509, pp. 380 et seq.; Shain, Res Ipsa Loquitur, 280-281; Law of Negligence, Shearman & Redfield, Vol. 1, § 56, pp. 150 et seq.; 29 C.J.S., Electricity, § 66, pp. 626 et seq.; 38 Am.Jur., § 295, pp. 989 et seq., §§ 299, 300, pp. 995-996.
The function of the doctrine is to supply a fact which must have existed in the causal chain stretching from the act or omission of the defendant to the injury suffered by the plaintiff, but which the plaintiff, because of circumstances surrounding the causal chain, cannot know and cannot prove to have actually existed. The missing fact is that the defendant was negligent. The rationale of the theory, in part, is that defendant in charge of the instrumentality which caused the injury is possessed of superior knowledge and by reason thereof is better advantaged than plaintiff to know the true cause and therefore, negligence is presumed and the burden is upon the defendant to adduce proof to overcome the presumption. Authorities, supra.
We think it clear enough that the case is without the aid of the rule. The thing which is alleged to have caused the plaintiff's injuries, the dangling wire, was not owned, maintained or controlled by the defendant, nor in the nature of things was the defendant possessed of any superior knowledge or information concerning it. The plaintiff and his brother, present at the scene, were in better position to have been informed or know of the condition which produced the injury. The only apparatus or equipment which the defendant owned, maintained or controlled and about which it could be charged with superior knowledge was the transmission line, which concededly was properly constructed and maintained at a sufficient height above the ground to prevent injury from anything in the ordinary course of foreseeable events. The automobile spark coil wire which seemingly is to be supposed to have been dangling from the line was no part of its equipment nor under its control, and information or knowledge in regard to it was as accessible to the plaintiff as the defendant, if not more so. The facts do not present a case for the application of the rule. We repeat, the Golson case, supra, is governing.
We cannot agree with the argument of learned counsel for the appellee that Bloom v. City of Cullman, 197 Ala. 490, 73 So. 85, brings the case within the scope of the doctrine. The apparatus with which the plaintiff was injured in that case was an are light *239 chain owned, maintained and under the supervision or control of the defendant, and the basis of applying the rule was thus correctly illustrated by Mr. Justice McClellan, who later authored the Golson opinion, to wit: "* * * The rule [res ipsa loquitur] was applied in Alabama City, G. & A. R. Co. v. Appleton, 171 Ala. 324, 331, 332, 54 So. 638, Ann.Cas.1913A, 1181, and in Town of Athens v. Miller, 190 Ala. 82, 66 So. 702; and no reason appears to deny it application where, as here, a pedestrian in a public street was stricken by contact with electric current passing from feed wires to a street light and communicated to the `chain' we have before described, through some deficiency in the maintenance or repair of the machanism owned by and under the supervision and control of the municipality [defendant]. * * *" 197 Ala., 497, 73 So. 88.
Nor are the other cases relied upon by appellee persuasive. Without going into detail, it is sufficient to observe that in those cases the instrumentality which produced the injury was under the control and management of the defendant, which had in some way become defective, as where the electric proprietor transmitted excessive voltage into the building of a user, or where it had permitted one of its live energized wires or other appliance to be down or near the ground, usually along a street or sidewalk, where persons or animals were liable to come in contact with it. Such cases are: Alabama City G. & A. R. Co. v. Appleton, 171 Ala. 324, 54 So. 638; Town of Athens v. Miller, 190 Ala. 82, 66 So. 702; Montgomery Light & Water Co. v. Thombs, 204 Ala. 678, 87 So. 205; Bloom v. City of Cullman, supra; Atlantic Coast Line R. Co. v. Carroll, 208 Ala. 361, 94 So. 820; Wright v. J. A. Richards & Co., 214 Ala. 678, 108 So. 610; Edmanson v. Wilmington & Philadelphia Traction Co., 2 W.W. Harr. 177, 32 Del. 177, 120 A. 923; Shoemaker v. Mountain States Tel. & Tel. Co., D.C.Idaho, 17 F. Supp. 591; Memphis Power & Light Co. v. Dumas, 11 Tenn.App. 231; Texas Power & Light Co. v. Bristow, Tex. Civ.App., 213 S.W. 702.
Sympathetic as we may be with the unfortunate young man who suffered serious injuries from the accident, we are convinced the charge of negligence was not proven and that error prevailed in the stated ruling in refusing the charge.
Reversed and remanded.
BROWN, LIVINGSTON, and LAWSON, JJ., concur. | October 12, 1950 |
dc91824f-0305-401d-9ad5-b5f3cb119f11 | Boyd v. Warren Paint & Color Co. | 49 So. 2d 559 | N/A | Alabama | Alabama Supreme Court | 49 So. 2d 559 (1950)
BOYD
v.
WARREN PAINT & COLOR CO.
6 Div. 994.
Supreme Court of Alabama.
December 14, 1950.
*560 Lange, Simpson, Robinson & Somerville, of Birmingham, for appellant.
Caesar B. Powell, of Birmingham, and John M. Barksdale, of Nashville, Tenn., for appellee.
SIMPSON, Justice.
The appellant sued appellee, a nonresident, nonqualifying corporation, on the common counts and for damages for breach of warranty in a contract of sale to appellee of a quantity of paint which was used on a government installation in Columbus, Georgia, and which turned out to be inferior to the guaranteed quality.
The suit was brought in Jefferson County and objection to jurisdiction over the defendant was taken by plea in abatement on the ground that it had not qualified under the laws of Alabama, was not doing business in the county or the state, and therefore was not amenable to process. On the hearing of the evidence before the court, sitting without a jury, the plea was sustained, the suit dismissed, and this appeal taken by the plaintiff from that judgment.
In determining the question, we are not here concerned with state law, since it is not controlling. The issue is regarded in this jurisdiction as a federal question of whether subjection of the defendant to this sovereignty comports with federal due process. Ford Motor Co. v. Hall Auto Co., 226 Ala. 385, 147 So. 603; St. Mary's Oil Engine Co. v. Jackson Ice & Fuel Co., 224 Ala. 152, 138 So. 834. As was said in Ford Motor Co. v. Hall Auto Co., supra: "It is recognized that the federal authorities are controlling on questions entering into the inquiry and ascertainment of the facts (1) of doing business, and (2) of authorized agency on which process must be served, or (3) those of due process, equal protection, and interstate commerce. * * *" 226 Ala. 387, 147 So. 605.
So, the question is whether appellee corporation was amenable to the jurisdiction of the court by reason of its activities in Alabama within the limitations of the due process clause of the Fourteenth Amendment and the authorities governing. We look then to the federal decisions for guidance. Bomze v. Nardis Sportswear, Inc., 2 Cir., 165 F.2d 33, 35.
The character of the business of the corporation and the extent of its activities in Alabama were: The corporation was chartered under the laws of Tennessee as a mining and manufacturing corporation and manufactured and sold paint throughout the territory; the principal office was in Nashville and it had no designated agent for the service of process in this state; it did have an agent resident in Birmingham, one Pearce, who solicited and took orders for the defendant, subject to acceptance at the home office in Nashville, from various mercantile establishments in Jefferson County and elsewhere in Alabama; when these orders were received at the home office, if acceptable, they would be filled and shipped, usually by common carrier, to the purchaser, but on occasions deliveries were made in company trucks. Pearce had no authority to approve credit or to make contracts for the defendant, but at times if a dispute arose between a customer and the defendant on orders previously sold by the Alabama salesmen, he would make investigation of the matter and report to the defendant, after which usually the defendant would correspond directly with the *561 complaining customer, sending copy to the salesman, who sometimes would also make the same report to the customer. Pearce had no original authority to make any settlement with any customer unless the matter had been first investigated and approved by the home office, his duties in this regard being to investigate the complaint and report results to the defendant. Pearce worked for no one else; this was his sole employment, his remuneration being a fixed salary, expense money, and five per cent commissions on excess sales. One mercantile establishment in Birmingham, First Avenue Roofing Company, purchased defendant's products for resale and agent Pearce made actual completed sales in Alabama of these products for the Roofing Company "as a part of his job" working for the defendant corporation. In addition to the Jefferson County customers, the defendant had some thirty or forty additional customers in Alabama and probably two more salesmen, who presumably worked somewhat like the Jefferson County agent. It is therefore to be deduced from the evidence: (1) the defendant had a resident agent and employee in Alabama, who regularly and systematically conducted transactions for the defendant during a period commencing approximately one year prior to the suit and service of process (December 21, 1948) and continuing up to the time of the trial on the plea in abatement (June, 1949); (2) the activities of this agent consisted in solicitation of orders from Alabama customers of defendant, and the forwarding of such orders to the home office in Nashville; (3) this agent, as a part of his employment, also made actual completed sales in Alabama of the corporation's products which had been previously sold to the roofing company; (4) averaging about once a month from about December 21, 1948, and thereafter defendant would ship a truckload of paint to customers in Alabama in its own trucks on both cash and credit sales, thus delivering its products in this state; (5) agent Pearce was intermittently given authority to investigate complaints from Alabama customers and on occasions was instructed, after investigation and decision by the defendant, to communicate to the customers the decision of the defendant as regards adjustment of the complaints.
Were these activities sufficient to manifest the "presence" of appellee in this state to render it amenable to jurisdiction of the state courts within the rule of the federal cases?
It is, of course, recognized that a state may not make binding a judgment in personam against an individual or corporate defendant with which the state has no contacts, ties, or relations, that is, where the defendant is not present in the state. But since a corporation must act vicariously and its presence in the state can only be manifested by the acts of its authorized agents, the question is to be determined by the activities of those agents and the character of business done. And each case must depend on its own facts. International Shoe Co. v. State of Washington, 326 U.S. 310, 66 S. Ct. 154, 90 L. Ed. 95, 161 A.L.R. 1057; International Harvester Co. v. Commonwealth of Kentucky, 234 U.S. 579, 34 S. Ct. 944, 58 L. Ed. 1479.
It is the contention of appellee that Pearce's activities and the business done in connection constituted no more than "mere solicitation" of business and under the controlling authorities, was not sufficient to bring it within the reach of judicial process in the instant case where a judgment in personam is sought.
But the traditional theory, thought to be crystalized in federal jurisprudence, that personal jurisdiction over a foreign corporation cannot be acquired when the only basis is "mere solicitation" of business within the borders of the forum's sovereignty, Green v. Chicago, Burlington & Quincy Ry. Co., 205 U.S. 530, 27 S. Ct. 595, 51 L. Ed. 916; International Harvester Co. v. Commonwealth of Kentucky, supra; Philadelphia & Reading Ry. Co. v. McKibbin, 243 U.S. 264, 37 S. Ct. 280, 61 L. Ed. 710; People's Tobacco Co. v. American Tobacco Co., 246 U.S. 79, 38 S. Ct. 233, 62 L. Ed. 587, Ann.Cas.1918C, 537, seems to be no longer controlling. Recent federal decisions have considerably impinged upon that concept. International Shoe Co. v. State of Washington, supra; United States v. Scophony Corp., 333 U.S. 795, 807, 68 S. Ct. 855, 92 L. Ed. 1091; Bomze v. Nardis Sportswear, Inc., *562 supra; Kilpatrick v. Texas & Pac. Ry. Co., 2 Cir., 166 F.2d 788; Latimer v. S/A Industrias Reunidas F. Matarazzo, 2 Cir., 175 F.2d 184; Steinway v. Majestic Amusement Co., 10 Cir., 179 F.2d 681, 684(2). Cf. also Frene v. Louisville Cement Co., 77 U.S.App. D.C. 129, 134 F.2d 511, 516, 146 A.L.R. 926.
The rule that we deduce from these late decisions, of which International Shoe Co. v. State of Washington is the "bellwether," is that the regular and systematic solicitation of orders in the state by appellant's salesmen, resulting in a continuous flow of appellant's products into the state, is sufficient to constitute doing business in the state so as to make the corporate defendant amenable to suits in its courts, provided there be included in the inquiry the factor of estimating the inconvenience which would result to the corporation from a trial away from its home. International Shoe Co. v. State of Washington, 326 U.S. 316-317, 66 S. Ct. 154, 90 L. Ed. 95; Latimer v. S/A Industrias Reunidas F. Matarazzo, 2 Cir., 175 F.2d 184, 185.
The theory was thus rationalized by Chief Justice Stone in the International Shoe Co. case:
"* * * the terms `present' or `presence' are used merely to symbolize those activities of the corporation's agent within the state which courts will deem to be sufficient to satisfy the demands of due process. * * * Those demands may be met by such contacts of the corporation with the state of the forum as make it reasonable, in the context of our federal system of government, to require the corporation to defend the particular suit which is brought there. An `estimate of the inconveniences' which would result to the corporation from a trial away from its `home' or principal place of business is relevant in this connection. * * *
"`Presence' in the state in this sense has never been doubted when the activities of the corporation there have not only been continuous and systematic, but also give rise to the liabilities sued on, even though no consent to be sued or authorization to an agent to accept service of process has been given. * * *
"* * * Whether due process is satisfied must depend rather upon the quality and nature of the activity in relation to the fair and orderly administration of the laws which it was the purpose of the due process clause to insure. That clause does not contemplate that a state may make binding a judgment in personam against an individual or corporate defendant with which the state has no contact, ties, or relations. * * *
"But to the extent that a corporation exercises the privilege of conducting activities within a state, it enjoys the benefits and protection of the laws of that state. The exercise of that privilege may give rise to obligations; and, so far as those obligations arise out of or are connected with the activities within the state, a procedure which requires the corporation to respond to a suit brought to enforce them can, in most instances, hardly be said to be undue. * * *" 326 U.S. 316-317, 319, 66 S. Ct. 158-160, 90 L. Ed. 95.
The court then concluded: "Applying these standards, the activities carried on in behalf of appellant in the State of Washington were neither irregular nor casual. They were systematic and continuous throughout the years in question. They resulted in a large volume of interstate business, in the course of which appellant received the benefits and protection of the laws of the state, including the right to resort to the courts for the enforcement of its rights. The obligation which is here sued upon arose out of those very activities. It is evident that these operations establish sufficient contacts or ties with the state of the forum to make it reasonable and just according to our traditional conception of fair play and substantial justice to permit the state to enforce the obligations which appellant has incurred there. * * *" 326 U.S. 320, 66 S. Ct. 160, 90 L. Ed. 95.
The criticism of Mr. Justice Black in his dissenting opinion that the court "has announced vague Constitutional criteria applied for the first time * * * has thus introduced uncertain elements confusing the simple pattern", also indicates the adoption of a new theory and a trenchment on the *563 "mere solicitation" rule. Such, likewise, is the construction placed on the majority opinion by Judge L. Hand, Second Circuit Court of Appeals, in the Latimer case, supra, to the effect that in order that a foreign corporation may be said to be present within another state so as to be subject to its judisdiction, it need only appear that the corporation's regular activities have been continuous and that subjection to local jurisdiction will not unduly inconvenience it.
The defense of "mere solicitation" was interposed in the International Shoe Company Case to debar the Washington court of jurisdiction over the nonresident corporate defendant, but as we read the opinion of Chief Justice Stone that theory was discarded. Indeed, the case of United States v. Scophony Corp., supra, decided some two years later, so construed it. Though the court in the Scophony Case had under consideration the analogous question of venue, it was dealing with a somewhat similar principle. The court said: "* * * the Court sloughed off the highly technical distinctions theretofore glossed upon `found' for filling that term with particularized meaning, or emptying it, under the translation of `carrying on business.' In their stead it substituted the practical and broader business conception of engaging in any substantial business operations. Cf. Frene v. Louisville Cement Co., 77 U.S.App.D.C. 129, 134 F.2d 511; International Shoe Co. v. State of Washington, supra. Refinements such as previously were made under the `mere solicitation' and `solicitation plus' criteria, cf. Frene v. Louisville Cement Co., supra, and like those drawn, e. g., between the People's Tobacco and International Harvester cases, supra, were no longer determinative. The practical, everyday business or commercial concept of doing or carrying on business `of any substantial character' became the test of venue." 333 U.S. 807, 68 S. Ct. 861, 92 L. Ed. 1091.
The other federal cases cited above (and there are others) hold similarly. For instance, in Steinway v. Majestic Amusement Co., supra, it was said: "These cases [Shoe Company and Scophony] do indicate a definite disposition to broaden the concept of `engaging in business' to include mere solicitation, if it is sufficiently continuous to amount to a course of business." 179 F.2d 684.
This new rule, as observed in the Shoe Company case, seems to be based on "traditional notions of fair play and substantial justice", so that the doing of business by the corporate defendant in a nonresident state so as to justify subjecting it to suit is measured by the extent of its activities and the question vel non of the fairness as against the inconvenience to the defendant of requiring trial away from its home. The fictional concepts of "presence" and "submission or implied consent" seem to be merely admeasurements of this justification.
Under this inquiry, as we read the decisions, there would be subsumed the question of whether the action was based on a liability arising out of the local activities, it naturally being less burdensome to subject a corporation to defense of actions so arising than those arising elsewhere. As stated by Judge Hand in Bomze v. Nardis Sportswear, Inc., supra, 2 Cir., 165 F.2d 35-36: "* * * probably some such notion is at the basis of those decisions which permit a state to subject to process in personam transients who, while within its borders, have incurred a liability under its laws", citing Kane v. State of New Jersey, 242 U.S. 160, 37 S. Ct. 30, 61 L. Ed. 222; Hess v. Pawloski, 274 U.S. 352, 47 S. Ct. 632, 71 L. Ed. 1091, and other cases in note 11, p. 36.
Applying these principles, we hold defendant to be subject to jurisdiction. The liability arose out of the exercise by the defendant of its corporate functions within the state. The alleged delict itself, the breach of warranty in the furnishing of defective paint to the plaintiff, on orders taken by defendant's agent, occurred within these borders. These regular and systematic solicitations of orders resulting in the flow of appellant's product into the state, we think, under the federal decisions, constitute doing business within the state and bring it within reach of judicial process, permissible under the Fourteenth Amendment.
*564 We realize that we are at a disadvantage in seeking to appraise exactly what the holding of the Supreme Court of the United States might be on this question, but the interpretation we place upon the federal decisions is such as to impel us to the conclusion reached.
So considered, the judgment should be reversed.
This is dispositive of the appeal. We do not reach the question of whether or not process was served on a proper agent of the defendant, since no pleading was interposed to invoke a ruling in regard thereto, nor was any ruling made. True, we have approved the practice of permitting pleas in abatement to test the validity of the service of process where invalidity does not appear on the face of the proceedings. Harwell v. Lehman, Durr & Co., 72 Ala. 344; Campbell v. Crawford, 63 Ala. 392; Louisville & N. R. Co. v. Barker, 96 Ala. 435, 11 So. 453. But the plea in abatement must be of that character which challenges the validity of the service. Here, though the plea does purport to contain allegations of fact which would seem to go to the validity of service of process, the plea itself is in essence one exclusively to abate the suit on the ground of lack of jurisdiction of the cause. The judgment of the court was responsive to this plea and the other proposition is not before us for consideration.
Reversed and remanded.
All the Justices concur except GARDNER, C. J., not sitting. | December 14, 1950 |
910901cc-fbca-42eb-9d78-3c3434d8255a | Monroe Bond & Mortgage Co. v. State | 48 So. 2d 431 | N/A | Alabama | Alabama Supreme Court | 48 So. 2d 431 (1950)
MONROE BOND & MORTGAGE CO.
v.
STATE ex rel. HYBART et al.
1 Div. 414.
Supreme Court of Alabama.
October 19, 1950.
*432 Barnett, Bugg & Lee, of Monroeville, for appellant.
A. H. Elliott, Circuit Sol. of Brewton, John M. Coxwell, County Solicitor, and R. L. Jones, County Atty., of Monroeville, and A. A. Carmichael, Atty. Gen., and Wm. H. Burton, Jr., Asst. Atty. Gen., for appellees.
FOSTER, Justice.
The question on this appeal is whether the decree of the circuit court, in equity, fixing the value as of October 1, 1946 of real estate of appellant for ad valorem taxes for the tax year beginning at that time, is the fair taxable value of such property or violates appellant's right to equal protection of the laws. The law is that such property shall be assessed at sixty percent of its fair and reasonable market value. Title 51, sections 17, 46 and 104, Code.
The estimated taxable value of the property as returned by the taxpayer for the year in question and as fixed by the county board of equalization is as follows:
This does not seem to include the office building.
On appeal to the circuit court a trial was had de novo in equity, to which appellant caused a removal on the claim that the valuation was an arbitrary discrimination against appellant. No question is raised as to the necessity for such removal. The power of the court at law is made very broad by section 110, Title 51, Code, on such appeal. That court fixed the assessed values as follows:
Title 51, sections 74, 109 and 110, Code.
From that assessment an appeal was taken to this Court by the taxpayer, and cross *433 assignments of error were made by the board of equalization. No question is here raised as to the right of the board to make cross assignments. It does not seem to have the right of appeal. Sections 74 and 109, Title 51, Code. The taxpayer claims that the taxable values should be approved as returned by it. They were the same as returned by it for the preceding year. Or if not, then the taxable values fixed by the board for the preceding year should be approved for the current year. They aggregated $11,340.00. The State Department of Revenue made an assessment of the capital stock for the year beginning October 1, 1946 at $9,600.00. It is an Alabama corporation. This figure was presumably reached by the computation required by law, that is, first to ascertain the full market value of all the stock, ascertain sixty percent of the amount of it and deduct from that amount the assessed value of the real and personal property of the corporate taxpayer. Title 51, section 25, Code. But as far as here material, the only inquiry is as to the taxable value of the property described above.
With reference to that issue the trial judge, sitting in equity, considered the evidence taken by deposition in connection with it, which he expressed as follows:
"This cause is submitted on the pleading and proof as noted by the register, and upon consideration thereof my mind was left in a state of confusion because of the contradictory and irreconcilable statements of the witnesses. The testimony for the complainant disclosed that there were twelve warehouses and one office building involved and that four of these warehouses were constructed of corrugated iron and eight of lumber. On the other hand, one of the witnesses for the respondent, who claimed to be a builder and contractor, testified that he had inspected the buildings the week before and that there were thirteen warehouses; that eight or nine of them were constructed of corrugated iron and the remainder of lumber. The witnesses for the respondent placed an average value of about $15,000.00 each on the warehouses. The witnesses for the complainant, as to value of the warehouses, were equally unsatisfactory, because it was based on the cost price some twelve to fourteen years ago, less the depreciation allowed by the Government. It was evident that a personal inspection of the premises was advisable and necessary.
"After inviting the solicitors for the parties to accompany me on a tour of inspection, which invitation was declined by the solicitors on both sides, I made a personal inspection of the premises and buildings. I found that there were eight wooden warehouses, constructed of the knottiest, shoddiest, cheapest lumber I have ever seen in any building. The boards were nailed upright to the frame and were evidently green when the buildings were built and have shrunk to where there are openings from half to one inch wide between the boards. The frame work, foundation and floors of said buildings are made of better material and they each have a corrugated iron roof.
"In arriving at a valuation to be placed upon the property involved, the court acts as a jury and under the decision of the Supreme Court in the case of Whaley v. Sloss-Sheffield S. & I. Co., 164 Ala. 216 [51 So. 419]: `The jury is not bound to return a verdict according to the testimony of the witnesses, if such testimony is in conflict with what their personal inspection discloses.'
"After considering the testimony of the witnesses in the light of what was disclosed on my personal inspection of the premises, I am of the opinion that the Monroe County Board of Equalization has placed too high a valuation on the property involved, especially in view of the valuation for taxation fixed on comparable properties in the community and county as a whole."
One of the chief contentions of appellant is centered around the claim that the assessment as made by the trial court is discriminatory, in that property generally in the county of a similar sort is assessed at a much less proportion of its fair and reasonable market value; and another contention is that its fair and reasonable market value is much less than ascertained by the court in fixing its assessed value.
With respect to the claim on discrimination, there is no trouble about the *434 applicable principles of law settled by the decisions of this Court and of the Supreme Court of the United States. They hinge around the equal protection clause of the Fourteenth Amendment and the due process clause, section 6, and sections 211 and 217 of the Alabama Constitution. The discrimination which violates constitutional rights is that which results from applying a percentage of the fair and reasonable market value of the property in excess of that systematically used in respect to other property in the county and that this results from a purpose or design to discriminate against the taxpayer, either specially or as a member of a class; but that if there is a fair and honest judgment manifested in fixing the assessed value and a purpose to deal fairly without discrimination by a systematic method, the principle of inequality is not manifest. That principle was carefully reviewed with a citation of the pertinent cases in Hamilton v. Adkins, 250 Ala. 557, 35 So. 2d 183; certiorari denied, 335 U.S. 861, 69 S. Ct. 133, 93 L. Ed. 407. The case of Sioux City Bridge Co. v. Dakota County, 260 U.S. 441, 43 S. Ct. 190, 67 L. Ed. 340, 28 A.L.R. 979, relied on by appellant, is not in any respect authority for a contrary view, but sustains it.
The Supreme Court of the United States gives effect to the opinion of the state supreme court in the interpretation of the state constitution, unless it violates some feature of the Federal Constitution, such as the equal protection clause of the Fourteenth Amendment. Puget Sound P. & L. Co. v. King Co., 264 U.S. 22, 44 S. Ct. 261, 68 L. Ed. 541. In interpreting the equal protection clause of the Fourteenth Amendment that court declared the principle referred to in Hamilton v. Adkins, supra. State constitutional requirements against discrimination may be more restrictive or cramping, but cannot be so liberal as to permit that which is prohibited by the Fourteenth Amendment as so interpreted. Nashville C. & St. L. R. R. v. Browning, 310 U.S. 362, 60 S. Ct. 968, 84 L. Ed. 1254. See, State v. Alabama Power Co., 48 So. 2d 445. But our cases have in effect given our Constitution the same interpretation as to discrimination where no classification is involved, as the United States Supreme Court has given the equal protection clause of the Fourteenth Amendment. Penney v. State, 221 Ala. 230, 128 So. 596; State v. Hall, 172 Ala. 316, 54 So. 560; Hamilton v. Adkins, supra. So that our Constitution in respect to discrimination, not involving classification, sections 211 and 217, supra, is not more restrictive or cramping than the equal protection clause of the Fourteenth Amendment. Therefore it has application here.
The inquiry in that connection is whether the valuation fixed by the trial court is discriminatory within that principle, since it properly conducted the trial de novo. State v. Louis Pizitz Dry Goods Co., 243 Ala. 629, 630(11), 11 So. 2d 342; State v. Hall, 172 Ala. 316, 54 So. 560; Title 51, sections 110 and 140, Code.
It is urged for appellant that the trial court did not undertake to fix the percentage of values on a basis of equalization with the percentage applied to other assessed values in the county according to the system applied by the assessing authorities and, therefore, that the case should be reversed and remanded to that court with direction to do so. But the finding of the trial judge, we think, indicates a contrary view, in that he states that the board "has placed too high a valuation on the property involved, especially in view of the valuation for taxation fixed on comparable properties in the community and county as a whole." The assessing authorities of the county are shown to have sanctioned a "systematic and intentional plan" to assess such properties generally below sixty percent of their actual market value, see, Penney v. State, 221 Ala. 230, 128 So. 596, of to wit thirty percent to forty percent. The quotation above indicates a purpose of the trial judge to fix the instant assessment on the same basis.
We are reviewing the judgment and finding of the trial judge on a trial by him de novo and without a jury. Such trial is not infected with any intentional discrimination which the board may have shown, if there were such discrimination. As to that, *435 we have not undertaken to find out. The trial judge seems to have thought that on an equalization basis, the assessment values fixed by the board were too high and evidently on such basis proceeded to make a new valuation. So that the contention that the board had not properly equalized the values in question was sustained on a trial de novo and new values fixed. Any arbitrary or intentional discrimination by the board, as contended by appellant, is now moot. So that the claim of wrongful discrimination by the board is not here involved. And we do not see in the decree of the trial court or in the record anything but an honest intention by the court to make an assessment which would be in accordance with a fair equalization.
Leaving out the discriminatory feature of the contention, we revert to the claim that the tax valuation was set higher than the evidence justifies. The rule for measuring the fair and reasonable cash value is stated in State v. Hall, 172 Ala. 316, 54 So. 560; State v. Woodward, 208 Ala. 31, 93 So. 826. It is noted that under prior revenue acts the test was the fair and reasonable cash value, now changed to market value in sections 17, 46 and 104, Tit. 51, supra. See, Bynum Bros. v. State, 216 Ala. 102, 112 So. 348. The change in that respect is not reflected in the evidence in this proceeding.
The figures made by the trial judge indicate that the twelve warehouses and one office building were separately listed and valued from the sixteen acres of land on which they stood, which is also separately assessed. Title 51, section 39, Code.
The evidence submitted by appellant to show that those values are too high did not consist, in the opinion of the witnesses, of the fair market value of the property on October 1, 1946, but of proof of circumstances which are thought to be material upon that inquiry, and only serve to support favorable inferences and do not form a fixed basis for making the values. Such evidence is said to take a wide range. Penney v. State, 221 Ala. 230(3), 128 So. 596.
One of the urgent theories of appellant relates to historical cost less depreciation. It was held under a former statute that present fair market values for tax purposes are not so affected as to property which has a market value and is used for commercial purposes. On that theory the original cost of production in 1934 to 1938 would be of no evidential importance in fixing the fair market value as of October 1, 1946 of such property. State v. Bienville Water Supply Co., 89 Ala. 325, 8 So. 54. The same principle was applied to the present cost of reproduction in respect to such property. Commercial Realty Co. v. State, 209 Ala. 698, 96 So. 906. But the Court in those cases was construing statutes which respectively limited the nature of the evidence to be given in making such valuations. In the Bienville case, supra, it was that consideration should be given to "its character, whether improved or not, its surroundings, and, if it is productive, the amount of its average annual yield." The Court held that the purchase price not close to the date of valuation is not a proper factor in determining the market or real value of the waterworks plant. In the Commercial Realty Co. case, supra, the Court was acting under the Revenue Act of 1919, General Acts 1919, page 283, which provided that value means "fair and reasonable cash value of the taxable property, and shall be estimated at the price at which the property would bring at a fair voluntary sale." Upon the authority of the Bienville Water Supply Co. case, supra, the Court held that the present reproduction cost was not admissible. The Court also observed that no statute had changed the rule of the Bienville case.
The successor to those statutes is our sections 46 and 55, Title 51, Code. They fix the fair and reasonable market value as the ultimate result to be reached. But section 46 provides that this is to be "according to the best judgment of the assessor, the board of equalization and agents of the department of revenue can form upon information, inspection or otherwise, taking into consideration all elements or factors bearing on such value as heretofore authorized". Section 55 provides that the value shall be obtained from "information entered on the tax return list and from all other information *436 known to him, or which he may procure".
We think those statutes open the door which was shut in the Bienville and Commercial Realty cases, supra, so as to admit such evidence in accordance with the prevailing opinion in other jurisdictions. Sweet v. City of Auburn, 134 Me. 28, 180 A. 803, 104 A.L.R. 784, 795.
Such evidence was given in this case without objection, not necessary to be made in such a trial, which is in equity, and we presume was considered by the court, not as fixing a fair and reasonable market value but as evidence material to its determination. We think that is the proper view of the matter at this time.
Appellant also thinks that the value of the tangible property for taxation is accurately reflected in the market value of the capital stock of the corporation, and also in the assessed value of the shares of stock by the State Department of Revenue. But those matters are not at all safe guides as to the value of the tangible property for ad valorem tax purposes. The market value of the stock is influenced by the earnings and financial standing of the corporation. Those factors sometimes do not enter into the taxable value of its tangible property. The assessed value of its shares, as we have observed, is ascertained by deducting from sixty percent of their total market value the assessed value of its tangible property. Title 51, section 25, Code. It is thereby intended to reach the intangibles of the corporation, sometimes manifested by its good will, going concern value, financial standing and earnings. So that neither of such contentions can be sustained on this appeal as they were not sustained in the trial court. All such evidence is admissible being pertinent to the inquiry, but not controlling.
On the other hand, in that court there was not only evidence to support the findings of fact, but the trial judge made a personal inspection of the property before making his finding. This is permissible practice. Adalex Const. Co. v. Atkins, 214 Ala. 53, 106 So. 338; Watt v. Lee, 238 Ala. 451, 191 So. 628; Fuller v. Blackwell, 246 Ala. 476, 21 So. 2d 617. There is no complaint on this appeal of his doing so. It was upon notice to opposing counsel with an invitation to accompany him. His conclusion is therefore as if it were the verdict of a jury. Hackett v. Cash, 196 Ala. 403, 72 So. 52; Whaley v. Sloss-Sheffield Steel & Iron Co., 164 Ala. 216, 51 So. 419.
The trial judge doubtless considered all the evidence, as he says he did, as well as what he saw. The evidence shows the buildings were insured at $33,000.00, and that the land on which they stood was worth $10,000.00 to $13,000.00; the assessed value of the capital stock was $9,600.00; the testimony of the witnesses as to the cost of the present reproduction; the historical cost; existence of an automatic sprinkler system at a cost of $9,000.00, which he also saw. He saw and described the existing condition of the buildings and the material in them, and took into consideration the assessed values of other comparable property.
The insurance of $33,000.00 was what the president of the company testified represented one hundred percent of the insurance value of all the buildings. If to that is added $10,000.00 for the value of the land on which they are situated, the aggregate value would be $43,000.00. It there is applied a taxable value of forty percent, the taxable value of the aggregate would be $17,200.00. If $100.00 is added to that for the forty acres, as the court found to be proper, the result is the figure there fixed of $17,300.00.
There is evidence that the assessments of property in the county by the tax officers were attempted to be made on a basis of thirty percent to forty percent of its fair market value. There was other evidence that it was less than that. Exactitude in such matters is not practicable. We think that the valuation for the assessment made by the trial court and the decree based on it should not be reversed.
Affirmed.
BROWN, LAWSON and STAKELY, JJ., concur. | October 19, 1950 |
e6ba9be9-2796-43a3-b491-bfbecb3060fa | Love v. Rennie | 48 So. 2d 458 | N/A | Alabama | Alabama Supreme Court | 48 So. 2d 458 (1950)
LOVE et al.
v.
RENNIE et al.
7 Div. 18.
Supreme Court of Alabama.
October 26, 1950.
*459 Hugh A. Locke, of Birmingham and W. T. Starnes, of Pell City, for appellants.
D. G. Ewing, of Birmingham, Frank B. Embry, of Pell City, and T. Eric Embry, of Birmingham, for appellees.
LAWSON, Justice.
This is an appeal from a decree overruling a demurrer to a bill in equity.
On January 22, 1946, Thomas L. Rennie executed a will wherein he "bequeathed" to his wife, Kathleen L. Rennie, all his estate, "real, personal and mixed." The will also contained clauses revoking all former wills and appointing his wife as executrix.
Thomas L. Rennie and his wife, Kathleen, both died on May 7, 1948. No children survived. It appears that they died in a common disaster. According to the averments of the bill, the wife, Kathleen L. Rennie, died "contemporaneously with or prior to the death of said Thomas L. Rennie."
Some time after the death of Thomas L. Rennie, the exact time not appearing, Mrs. Dollie Love, the mother of Kathleen L. Rennie, filed the aforementioned will of Thomas L. Rennie in the probate court of St. Clair County, together with her petition praying that the said will be admitted to probate as the last will and testament of Thomas L. Rennie, deceased.
After the will of Thomas L. Rennie was filed for probate, this proceeding was instituted.
The complainants, T. H. Rennie and Nellie Rennie, are the father and mother of Thomas L. Rennie. It is alleged that the complainants are the "sole heirs and next of kin and sole distributees of the estate of Thomas L. Rennie, deceased," T. H. Rennie died after the appeal was taken but before submission here, and as to him the cause has been revived in the name of Lois Rennie Terry, in her capacity as executrix and trustee of the estate of T. H. Rennie, and in her individual capacity.
The respondents are the mother, stepfather, and half-brothers and half-sisters of Kathleen L. Rennie, deceased. It is alleged that respondents, other than E. L. Love, Sr., the stepfather, are "the sole heirs and next of kin and distributees" of the estate of Kathleen L. Rennie, deceased.
This proceeding stems from the fact that complainants claim that as the heirs at law and next of kin of Thomas L. Rennie, deceased, they own and are entitled to all his estate, subject to the payment of debts, in that Kathleen L. Rennie, the sole beneficiary under the will, died contemporaneously with or prior to the death of Thomas L. Rennie, and therefore took nothing under the will. On the other hand, *460 it appears from the allegations of the bill that respondents contend that under the will Kathleen L. Rennie inherited all the estate of her husband, Thomas L. Rennie, deceased, and that as the heirs at law and next of kin of Kathleen L. Rennie, the respondents, other than the stepfather, E. L. Love, Sr., own and are entitled to all the estate of Thomas L. Rennie, deceased, subject to debts.
Aside from the matters alluded to above, the bill shows that Thomas L. Rennie, at the time of his death, was possessed of considerable property, real and personal. The property is listed. The debts of the said Thomas L. Rennie are itemized. It clearly appears from the averments of the bill that his estate is solvent.
A few days before his death, Thomas L. Rennie purchased, under a conditional sales contract, a new 1949 Lincoln automobile for the sum of $3,200. He paid $1,600 in cash. The remainder of the purchase price was to be paid in monthly installments over a period of eighteen months. The first installment became due on June 10, 1948. The seller assigned the conditional sales contract to the People's Discount Company, Inc., of Anniston, which concern, on June 10, 1948, the day on which the first installment became due, transferred and assigned the said contract to the respondent, E. L. Love, Sr., the stepfather of Kathleen L. Rennie. It is alleged that in this transaction E. L. Love, Sr., was acting on behalf of his wife, the respondent, Mrs. Dollie Love, the mother of Kathleen L. Rennie.
It is alleged that Thomas L. Rennie at the time of his death owned a considerable amount of silverware. It is averred that respondent, Mrs. Dollie Love, has taken possession of the silverware and claims to own it.
The averments upon which the equity of the bill depends to a large measure are contained in paragraphs 4 and 5.
Paragraph 4 reads as follows: "The said Kathleen L. Rennie, deceased, was named sole devisee or legatee of all of the property of said Thomas L. Rennie, deceased, in the said Last Will and Testament, or that paper writing purporting to be the said Last Will and Testament, of said Thomas L. Rennie, deceased, and said Kathleen L. Rennie is named and designated as the sole executrix of said Last Will and Testament or paper writing purporting to be said Last Will and Testament, but plaintiffs allege that the said Last Will and Testament is either invalid or of no effect, or is ineffective, or is inoperative to pass, convey, devise, or bequeath, any property to said Kathleen L. Rennie, deceased, or to her heirs or next of kin for the reason that the sole devisee and legatee named therein did not survive the said Thomas L. Rennie, deceased, and all of the said property of, and owned by, the said Thomas L. Rennie, deceased, including real, personal and mixed property and choses in action and equities at the time of his death, descended to, or became the property of, the plaintiffs in this cause, subject only to the payments of the debts of said Thomas L. Rennie, deceased, and to the rights of the creditors of the said Thomas L. Rennie, and none of said property, either real, personal or mixed owned by the said Thomas L. Rennie, deceased, at the time of his death, including the equity in said Lincoln Automobile, descended to or became the property of the said Kathleen L. Rennie or any of her heirs or next of kin or distributees of her estate."
The averments of paragraph 5 not alluded to heretofore are as follows: "* * * The said defendants, exclusive of the defendant E. L. Love are now claiming to own all of said property owned by the said Thomas L. Rennie, deceased, at the time of his death, and have been attempting and endeavoring to obtain possession of said property for their own use and benefit and unless they are prevented from so doing, the plaintiffs will suffer and sustain substantial and irreparable financial loss and will incur the risk of losing a large portion of said property, to which they are justly and legally entitled, unless the said defendants, exclusive of the defendant E. L. Love, is prevented by a decree or judgment of this court from obtaining possession of said property and of disposing of same. * * * The plaintiffs allege that the paper writing *461 purporting to be the Last Will and Testament of the said Thomas L. Rennie, deceased, has not been probated and should not be probated for the reason, among other things, that the court costs of and expenses of probating said instrument or said Last Will and Testament would be a needless and useless expense to the estate of the said Thomas L. Rennie, deceased, or to his heirs and next of kin, and while the same is inoperative, as a matter of law, to pass any of said property of said Thomas L. Rennie, deceased, the probating of said paper writing would create much confusion and uncertainty and would create a cloud on the property of said Thomas L. Rennie, deceased, and the probating of said paper writing would not terminate or put an end to said controversy now existing between plaintiffs and defendants named herein and further proceedings and litigation, irrespective of the probating of said paper writing, would be necessary to settle the said controversy existing between the parties to this cause; and the plaintiffs aver that they have no complete and adequate remedy at law to settle the matters and controversy now existing between the parties to this cause, but, on the contrary, the plaintiffs will or are likely to, suffer substantial, permanent, and irreparable damage and financial loss unless the relief hereinafter prayed for is granted to them; and plaintiffs contend and allege that this court should construe this will and determine and construe the respective rights of the respective parties to this cause. * * * The plaintiffs allege that there is now existing an actual controversy between the plaintiffs and said defendants upon which substantial property rights depend."
The bill prays (1) that a preliminary order be issued staying all proceedings to probate the will of Thomas L. Rennie, deceased; (2) that pending final hearing, a temporary injunction be issued enjoining and restraining the respondents (a) from proceeding to probate the said will, (b) from taking steps to have any person appointed executor or executrix thereof, or as personal representative of the estate of Thomas L. Rennie, deceased, or as administrator with the will annexed, (c) from taking possession of or disposing of any property owned by the said Thomas L. Rennie at the time of his death.
The bill further prays that upon a final hearing the court render a declaratory judgment declaring:
1. That the paper writing purporting to be the last will and testament of Thomas L. Rennie, deceased, is invalid or that it is "inoperative and ineffective to pass, transfer or convey, devise or bequeath any of the property, * * * held by the said Thomas L. Rennie, deceased, at the time of his death."
2. That Kathleen L. Rennie, deceased, "did not take anything, or become the owner of any property of any kind, owned by the said Thomas L. Rennie, deceased, at the time of his death, either under the laws of this state or under said paper writing purporting to be the last will and testament of the said Thomas L. Rennie, deceased."
3. That the heirs and next of kin of Kathleen L. Rennie, deceased, and those entitled to share in the distribution of her estate, have no right, title or interest in or to any of the property owned by the said Thomas L. Rennie, deceased, at the time of his death.
4. That the complainants are the sole persons entitled to share in the distribution of the estate of the said Thomas L. Rennie, deceased, and that they are the sole owners of all the property held by him at the time of his death, subject only to the rights of the creditors.
5. That "the status and relationship of all parties to this bill of complaint be fixed and determined in regard to the estate of, and all property of every nature and kind owned by, the said Thomas L. Rennie, deceased, at the time of his death."
6. That the agreement or contract under which Thomas L. Rennie, deceased, attained the Lincoln automobile "be declared and determined by this [court] to be an equitable mortgage securing the balance of the indebtedness due on said Lincoln automobile herein referred to, and to have no other force or effect, and that said contract or agreement in writing be held and *462 declared by this court to have been neither forfeited nor foreclosed and that plaintiffs be declared and determined to have the right to redeem said automobile and to regain the possession thereof by paying the balance of the amount due thereunder, with legal interest and all lawful charges due by the plaintiffs under the terms and provisions of said contract or agreement in writing, and that the defendant, E. L. Love, and those claiming under or through him be declared and determined to have no right, title, interest or claim in or to said automobile, other than the right to be paid the balance due on said automobile, including all legal interest and lawful charges due thereon under the terms and provisions of said contract or agreement in writing, and in order that plaintiffs may pay said amount, which they are obligated to pay for the redemption of said automobile or for the amount due under said contract or agreement in writing, including all legal interest, and lawful charges under the terms and provisions of said contract or agreement in writing, this court ascertain and determine the amount which the plaintiffs are so obligated to pay, and that the plaintiffs be declared, upon the payment of said amount determined to be due on said automobile, or under the terms and provisions of said contract or agreement in writing, to be the sole owners of said Lincoln automobile, and the said E. L. Love, and any and all persons or parties claiming through or under him, be held to be holding said automobile as the agents or trustees of the plaintiffs, subject to the payment of the balance due on said automobile, and all interest and lawful charges due thereon, under the terms and provisions of said contract or agreement in writing, and this court, by its decree or judgment, fix the terms and the time within such payment shall be made by the plaintiffs of the aggregate amount due to be paid by the plaintiffs, which have been so ascertained and determined by this court."
The bill further prayed that the respondents be required to turn over and deliver to the complainants all property which belonged to Thomas L. Rennie at the time of his death and which has come into their possession or be required to pay to complainants the value of any such property which has been disposed of by any of them.
On July 14, 1948, the day on which the bill was filed, the trial court issued a temporary injunction as prayed for in the bill.
The demurrers of the several respondents contained a number of grounds and went to the bill as a whole and to the several "aspects" thereof. The decree of the trial court overruled the demurrers of the several respondents as to the bill as a whole and "to each phase or aspect thereof to which said demurrers are addressed."
On brief filed here on behalf of respondents, the only grounds of demurrer argued are to the effect that the bill as a whole contained no equity. Consequently our sole inquiry here is as to whether or not the bill contained equity. If so, the decree of the trial court must be affirmed. If not, it must be reversed. It is well settled that grounds of demurrer not argued must be treated as waived. Hackney v. Yarbrough, 233 Ala. 365, 172 So. 107.
There is a principle to the effect that a court of equity will dispense with an administration and decree distribution directly when it affirmatively appears that, if there was an administrator, the only duty devolving on him would be distribution. Then administration is regarded as "a useless creature." Fretwell et al. v. McLemore et al., 52 Ala. 124; Teal et al. v. Chancellor, 117 Ala. 612, 23 So. 651; Murphy v. Freeman et al., 220 Ala. 634, 127 So. 199, 70 A.L.R. 381. And where there is a will, and no debts, the parties interested, being adults, may divide the property among themselves by agreement without probating the will, and the effect of such agreement and division is to invest each distributee with a complete equitable title to the property allotted to him. Carter v. Owens, 41 Ala. 217. But the rule in the cases cited does not operate to give this bill equity. The bill shows on its face that there are debts, and in all the cases which permit such distribution without an administration, there is a precise allegation of the existence of no debts. Williams v. Anthony, 219 Ala. 98, 121 So. 89; Jones v. *463 Baswell, 246 Ala. 410, 20 So. 2d 715. The case made by the instant bill is far different from the situation in Carter v. Owens, supra.
Unless the equity court, under the averments of the bill, has jurisdiction to declare the will executed by Thomas L. Rennie on January 22, 1946, to be inoperative, then it contains no equity, for it is clear that the complainants would be entitled to none of the relief prayed for unless the property of Thomas L. Rennie passes as if he had never executed a will.
In Kaplan v. Coleman, 180 Ala. 267, 60 So. 885, a bill was filed in the chancery court by Kaplan, the sole heir at law of his father, against the executor and the several beneficiaries named in the will, to contest and annul the will of his father. In that case it was said: "Since chancery courts have no jurisdiction in this state for the probate or establishment of wills, a bill for testamentary construction must obviously exhibit a will which has been duly probated in a court of probate. Such an allegation is jurisdictional, and the fact of probate is essential to its exercise." 180 Ala. 273, 60 So. 887.
The rule in the Kaplan case was followed in Wachter v. Davis et al., 215 Ala. 659, 111 So. 917, which was a bill for the contest of a will. After quoting from the Kaplan case, it was observed:
"So in the instant case, the probate of the will is essential to the exercise of the equity court's jurisdiction. When the bill was filed there had been no will probated, a jurisdictional essential. The fact that the will was probated some two months thereafter and prior to the rendition of the final decree will not suffice as a question of jurisdiction of the court is one which must relate to the time of the institution of the suit.
"Upon the filing of the bill the court was without jurisdiction, and this want of jurisdiction permeates the entire proceedings. It results, therefore, that the decree rendered was erroneous and will be reversed and one here rendered dismissing the bill." 215 Ala. 660, 111 So. 917.
Other cases recognizing this principle are Caverno et al. v. Webb, 239 Ala. 671, 196 So. 723; Ex parte Pettus et al., 245 Ala. 349, 17 So. 2d 409; Marx et al. v. Loeb, 228 Ala. 196, 153 So. 266; Ex parte Russell, 239 Ala. 641, 196 So. 718; Ex parte Sumlin, 204 Ala. 376, 85 So. 810; Ex parte Price et al., 252 Ala. 517, 41 So. 2d 180.
Appellees contend that the rule above referred to has no application to the case made by their bill for the reason that under the averments of the bill, the instrument which is sought to be probated as a will, though appearing to be valid on its face, is in fact void and a complete nullity for the reason that it makes no disposition of any property to any person or party in that it is averred in the bill that the sole beneficiary under the will did not survive the testator.
But we think the answer to this contention of appellees is found in the case of Conoway v. Fulmer et al., 172 Ala. 283, 54 So. 624. Conoway presented for probate a paper purporting to be the last will and testament of one Yancey, in which he was named as executor. A contest was filed and sustained. The ground upon which the contest was sustained was that the devises in the will were so indefinite in the description of the property intended to be devised that they were void and that, therefore, the paper offered for probate was not a will. In concluding that the probate court erred in holding that the paper offered for probate was not a will, the elder Simpson, writing for this court, said:
"* * * Even if it should be admitted that the devisees could not claim anything, by reason of the indefiniteness of the description (which we do not decide), yet it is no part of the duty of the probate court to construe the will, or to pass upon the effect of its provisions. If the paper is in form a will, is executed according to law, and the testator is shown to possess the requisite capacity, and no undue influence be shown, it is the duty of the court to admit it to probate.
"It is admitted by the contestants that, if any item of the will can have any legal *464 effect, the will should be probated. The first clouse performs one of the most important functions of a willto wit, the revocation of all previous wills; and the item numbered `First' directs that all of the testator's debts be paid as soon as possible after the death of the testator. But, aside from that, the utmost that can be claimed is that, if all the devises are void for uncertainty, the result would be that, after the payment of debts, the property of the decedent should be distributed according to the statutes of descent and distribution; and a will so directing would be valid. Lucas v. Parsons et al., 24 Ga. 640, 71 Am. Dec. 147.
"There is also eminent authority for the proposition that a will which makes no disposition of property, but merely nominates an executor, is entitled to probate. Schouler on Wills (2d Ed.) § 297, p. 312; Barber v. Barber, 17 Hun (N.Y.) 72; In the Goods of Jordan, 1 Law Rep. P. & D. 635. The will is but the expression of the desire of and direction by the testator as to what shall be done with the property left by him, and if he does not desire to make any disposition save such as the law provides, but does desire to name the one who shall administer upon his effects, he has a right so to do, and unless the person named is not a fit person, under the provisions of the statutes, it is the duty of the court to issue letters to him." 172 Ala. 285-286, 54 So. 625. (Emphasis supplied.)
Under the rule of Conoway v. Fulmer, supra, even though there be (as alleged here) a total failure of the dispositive provisions of the will, the will should be probated if any item thereof can have any legal effect. This is true with respect to a clause revoking former wills, such as is found in the instrument executed by Thomas L. Rennie, deceased. In Re Davis' Will, 182 N.Y. 468, 75 N.E. 530, 533, where the will contained a clause revoking all former wills, it was said: "* * * We agree with the learned Appellate Division that `the true rule of law is that when a paper, unrevoked, testamentary in character, purporting on its fact to devise or bequeath real or personal property, executed according to the formalities of the statute by a person of proper age and qualifications and shown satisfactorily to be of sound mind and not under restraint, is presented to a Surrogate's Court for probate, such court has no authority, upon the question of its admission to probate, to inquire whether the provisions of the paper are ineffectual to pass title because the sole beneficiary and executor is dead and the devise or bequest has thereby lapsed, or because the provisions of the instrument are ineffectual to pass title to the person named. Any other rule would lead to confusion and to the introduction of false issues in the probate of wills.'"
We hold, therefore, that from the averments of the bill it appears that the instrument executed by Thomas L. Rennie on January 22, 1946, is entitled to probate. It follows that under the rule of our cases the circuit court of St. Clair County, in equity, was without jurisdiction to declare the said instrument inoperative as a will, unless it has such jurisdiction by virtue of the provisions of the declaratory judgment law.
Appellees strenuously insist that the equity court does have jurisdiction as a result of the declaratory judgment law and that, therefore, the rule enunciated in Kaplan v. Coleman, supra, and Wachter v. Davis, supra, which cases were decided prior to the declaratory judgment law, has no application.
We cannot agree with this contention. Wills are among the instruments which may be construed, where the terms are in dispute, in an action for declaratory relief. §§ 156, 157, 159, Title 7, Code 1940; Fillmore v. Yarbrough, 246 Ala. 375, 20 So. 2d 792; Montgomery v. Montgomery, 236 Ala. 161, 181 So. 92; Adams v. Jeffcoat et al., 252 Ala. 501, 41 So. 2d 183. But in both the cases last cited the will had been probated before the jurisdiction of the equity court was sought for a construction of the will.
We are not here concerned with the question of whether or not declaratory relief is unavailable because of the fact that the complainant has another adequate *465 remedy. § 167, Title 7, Code 1940, as amended. To hold that the equity court has jurisdiction would be to construe the declaratory judgment act as conferring upon the equity court jurisdiction of subject matter which it had not possessed theretofore.
It would be an inexcusable interference with established probate procedure, and one which would result in confusion, to permit issues strictly within probate jurisdiction to be tried through the medium of independent suits in equity. True, as before indicated, there is a power to construe a will in a declaratory relief action, but we have no thought that in making this provision it was the intention of the legislature to transfer from the probate court to the equity court matters of probate cognizance. We do not think that the declaratory judgment law was designed to enable the equity court to supersede the functions of the probate court in the probate of wills and the ordinary administration upon estates. It was not intended to confer upon the equity court jurisdiction in admitting or refusing to admit an instrument to probate.
An eminent authority in the field has summarized the prerequisites of action for declaratory judgment in this way: "* * * the conditions of the usual action, procedural and substantive, must always be present, namely, the competence or jurisdiction of the court over parties and subject-matter, the capacity of the parties to sue and be sued, the adoption of the usual forms for conducting judicial proceedings (including process, pleadings, and evidence), the existence of operative facts justifying the judicial declaration of the legal consequences, the assertion against an interested party of rights capable of judicial protection, and a sufficient legal interest in the moving party to entitle him to invoke a judgment in his behalf. * * *" Borchard, Declaratory Judgments, 2d Ed. (1941), p. 26. (Emphasis supplied.)
Assuming, without deciding, that all other conditions necessary to confer jurisdiction upon the equity court to render a declaratory judgment were present, we are still faced with the absence of the elemental requisite of jurisdiction over the subject matter.
An examination of the cases from other jurisdictions shows that the courts in those states have refused to give to their declaratory judgment statutes an interpretation which would in effect allow the jurisdiction of the probate courts to be usurped by a court of equity. Colden v. Costello, 50 Cal. App. 2d 363, 122 P.2d 959; Poore v. Poore, 201 N.C. 791, 161 S.E. 532; Pennington v. Green, 152 Kan. 739, 107 P.2d 766; Morgan v. Dietrich, 179 Md. 199, 16 A.2d 916; Young v. Bridges, 86 N.H. 135, 165 A. 272.
In view of what has been said above, we hold that the equity court was without jurisdiction and, hence, the demurrer of respondents taking the point that the bill was without equity should have been sustained.
The decree is reversed, one is here rendered sustaining the demurrer, and the cause is remanded with direction that the bill be dismissed.
Reversed, rendered and remanded.
BROWN, FOSTER, LIVINGSTON, SIMPSON, and STAKELY, JJ., concur. | October 26, 1950 |
c78c53fa-f5bb-4cdf-b4de-835151b7731d | Stokley v. State | 49 So. 2d 284 | N/A | Alabama | Alabama Supreme Court | 49 So. 2d 284 (1950)
STOKLEY
v.
STATE.
2 Div. 283.
Supreme Court of Alabama.
December 7, 1950.
*286 Scott & Porter, of Chatom, and Rogers & Evans, of Butler, for appellant.
A. A. Carmichael, Atty. Gen., and Geo. W. Cameron, Asst. Atty. Gen., for the State.
LAWSON, Justice.
The appellant, Clinton Stokley, was tried in the circuit court of Choctaw County under an indictment charging that he unlawfully and with malice aforethought killed Jesse M. 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 a new trial having been denied and overruled, he has appealed to this court.
The evidence for the State tended to show, among other things, as follows:
The deceased, Jesse Morgan; the defendant, Clinton Stokley; and the defendant's cousins, Horace Stokley, Alvin Stokley, and Pete Singley, all lived in or near a rural community known as Stokleytown, situate a short distance from the town of Silas, in Choctaw County. They had all been friends until a short time prior to the difficulty which resulted in the death of the deceased. A short time before the difficulty the deceased, Jesse Morgan, had told one Joe Stokley that he had seen defendant's dog "on" one of Joe Stokley's cows. Joe Stokley killed defendant's dog. The State's evidence tends to show that defendant held a grudge against deceased because he had told Joe Stokley about his dog.
On a Saturday afternoon in May, 1949, the deceased went to Silas. The defendant and his three cousins went there also. While the defendant was in Silas, he inquired of his cousin, Alvin Stokley, whether he had seen deceased. Alvin replied in the negative. The deceased left Silas in the middle of the afternoon and returned to his home.
Later in the afternoon the defendant and his cousins, Horace Stokley, Alvin Stokley, and Pete Singley, were seen on the Stokleytown road a comparatively short distance from the home of deceased. They had some whisky with them. Clinton Stokley, the *287 defendant, was heard to offer his cousin Alvin either $2.00 or $2.50 and a pint of whisky to go and get someone to leave his home and join them. The evidence supports the inference that Clinton had reference to the deceased. After this offer was made to him, Alvin Stokley drove off in his automobile, leaving Clinton and Horace behind. It appears that Clinton and Horace were in Clinton's automobile.
On their way home from Silas, some neighbors of the deceased, namely, Mr. and Mrs. Joe Morgan, with whom deceased's son J. C. was riding, saw the defendant and Horace Stokley and Pete Singley sitting on the side of the Stokleytown road, with the defendant's automobile nearby. Alvin Stokley was not present. The Morgans stopped and talked with defendant. Mr. Morgan had a drink with him. The defendant and his companions had at that time almost three pints of whisky. The defendant inquired as to the whereabouts of the deceased and said, "I am going to whip that s of a b before the sun goes down or he is going to whip me one."
After Alvin left Clinton and Horace, he contacted his nephew, Toby Taylor, a boy fifteen years of age, whom he sent to the home of deceased to find out if he was at home. Upon arriving there, Toby joined the members of the family of deceased and the family of Lige Gibson, a brother-in-law of deceased, on the back porch of deceased's home and ate some ice cream with them. After eating the ice cream, Toby left and reported to Alvin that the deceased was at home. Later Toby came back to the home of deceased and told him that Alvin wanted to see him out in his car. The deceased and Lige Gibson joined Alvin and Toby, who were in Alvin's automobile, which was parked in the road in front of deceased's home. Alvin and deceased talked about a fishing trip in the presence of Toby and Lige Gibson. Alvin then told deceased that he wanted to talk to him privately and the two of them went to a point approximately twenty-five feet behind the automobile, where they engaged in conversation. Upon coming back to the automobile, deceased said to Alvin as follows: "I will not go up on the road and meet these boys, but I will talk with them anywhere I meet them or see them at the house." The deceased and Lige Gibson then returned to deceased's home and joined their families on the back porch.
A short time after they had gotten back to the house, Clinton Stokley and his cousins, Horace Stokley and Pete Singley, came to the gate leading to the home of deceased and called to him to come down and talk with them. The defendant and Pete Singley had sticks in their hands. The deceased went to the front of his house and then began walking toward the gate, followed a short distance by his wife and brother-in-law, Lige Gibson. When deceased was a short distance from the gate, the defendant, Clinton Stokley, and Pete Singley began to curse the deceased and told him he had told a damn lie when he told Joe Stokley that it was defendant's dog which had been "on" a cow belonging to Joe Stokley.
Deceased's wife, evidently apprehending trouble, caught hold of her husband, who weighed only 115 to 120 pounds, and when she did so defendant and Pete Singley jumped over the ditch and defendant hit deceased with a stick. The blow either knocked deceased out of the grasp of his wife or he eluded her. Thereupon the defendant and deceased engaged in a fight. They fell into a ditch, with defendant on top of deceased. While they were in the ditch, the wife of deceased secured a stick and she and the deceased's father, who had arrived at the scene and who was more or less an invalid, went to the assistance of the deceased. Mrs. Morgan received head injuries. A short time after the difficulty started, George Stokley, an uncle of defendant, who lived across the road from deceased and on whose property deceased was living, arrived at the scene and soon after his arrival the fighting in the ditch ceased. When the defendant got out of the ditch, he ran toward his car, which was parked in the road somewhere between the home of deceased and that occupied by Mr. George Stokley. Deceased ran after defendant, whereupon Pete Singley hit the deceased with a stick, knocking him into a fence and onto the ground. When Pete Singley hit the deceased, deceased was in *288 the road approximately twenty to twenty-five yards from the place in the ditch where deceased and defendant had been fighting.
Horace Stokley took no active part in the encounter, but was standing on the outside of the gate with his hands in his pockets or under his shirt, and in a threatening way told Lige Gibson not to go to the defense of his brother-in-law. Alvin Stokley was sitting in his automobile, parked in the road a short distance away from the scene of the difficulty.
The deceased was able to walk to his home with the assistance of his brother-in-law. Shortly after getting there, he became paralyzed and unconscious and was taken to the hospital in Butler, where the attending physician recognized the seriousness of his condition and recommended that he be taken to a brain specialist in Birmingham. This was done. Deceased arrived at a hospital in Birmingham sometime the next afternoon. He was still paralyzed and unconscious. An operation was performed. He died before ever regaining consciousness. The cause of death was attributed to a severe blow on the head of the deceased.
The evidence for the defendant tended to show that on the afternoon of the difficulty he drove to Silas in his automobile, arriving there around two o'clock. At about three o'clock he met his cousin, Pete Singley, who had walked from his home in or near the Stokleytown community to Silas. While in Silas the defendant did not inquire of Alvin Stokley whether or not he had seen the deceased and, in fact, the defendant did not see Alvin Stokley in Silas. Later in the afternoon the defendant and Pete Singley left Silas enroute to the home of Ted Stokley, another cousin, who lived on the Stokleytown road beyond the point on the road where the deceased lived. After they had turned off the main highway onto the Stokleytown road, they picked up another cousin, Horace Stokley, who was walking. The three of them proceeded in the defendant's car in the direction of the home of Ted Stokley, whom they were to get to go to a dance with them, in accordance with arrangements previously made. They did not see Alvin Stokley on the Stokleytown road and the defendant did not offer Alvin Stokley any money or a pint of whisky to go and lure the deceased away from his home. They did not encounter Joe Morgan and his wife and J. C. Morgan, the son of deceased, and the defendant did not threaten the deceased as these people had testified on behalf of the State. As they were proceeding on the Stokleytown road, the battery cable on defendant's car became loose. The car was stopped at what is termed the forks of the road near the home of George Stokley, the uncle of the defendant. George Stokley lived almost across the road from deceased. Horace Stokley remained at George Stokley's home while the defendant and Pete Singley proceeded toward the home of Ted Stokley on foot. They did not call the deceased from his home, but when they got immediately in front of the home of deceased, deceased ran out of his house toward the gate, followed very closely by his thirteen-year-old daughter. A short distance behind was the deceased's wife and his brother-in-law, Lige Gibson. The deceased, when a few feet from his gate, which was almost on the road, told the defendant he had told some lies on him and deceased picked up a syrup bucket and threw it at defendant, hitting him on the left side of his face. Deceased opened the gate, whereupon deceased and defendant engaged in a fist fight and soon fell into a ditch on deceased's premises, with defendant on top of deceased and each of them striking the other with his fists. Defendant did not strike deceased with a stick, as testified to by witnesses for the State; and the deceased's wife was not holding him, as the State's witnesses claim. In fact, neither the defendant nor Pete Singley had any weapon of any kind in their hands as they were walking down the road or when the fight started, and defendant never did have a stick or weapon of any kind.
While they were fighting in the ditch, the wife of deceased and deceased's father-in-law both came to the assistance of deceased and hit the defendant, causing multiple bruises and cuts on his body. The fight in the ditch was broken up by the intervention of Mr. George Stokley, defendant's uncle.
*289 Shortly after this fight was ended, the deceased picked up a stick about one inch wide and about three feet long, whereupon the defendant ran out of the yard of deceased into the public road toward the place where his car was parked. The deceased pursued him with the stick in his hand, raised in a threatening manner. Deceased had reached a point estimated at from fifteen to thirty yards from the place in the ditch where the fight occurred when defendant called to Pete Singley to stop the deceased, whereupon Pete Singley hit deceased with a stick, which Singley had picked up after he had seen the stick in the hand of the deceased. The blow struck by Singley was the only time the deceased was hit with a stick or a weapon of any kind. Neither the defendant nor Singley hit the wife of deceased. Horace Stokley was not present when the fight started and took no part in it whatsoever. Alvin Stokley was not present and did not drive up in his car until after the fight was over.
There was evidence for the defendant introduced for the purpose of impeaching several of the witnesses for the State.
Counsel for appellant, defendant below, strenuously insist that under the evidence defendant was entitled to the general affirmative charge requested in writing and refused by the trial court.
It is argued that under the indictment which charges that defendant killed Jesse Morgan by striking him with a piece of scantling or a stick, it was incumbent upon the State to prove that the defendant himself struck the deceased as charged in the indictment, and that death resulted from that blow, and that the State failed to make such proof.
We will show hereafter the incorrectness of appellant's insistence that under the indictment a conviction could be had only on proof that defendant actually struck the blow that killed deceased.
But even if such a contention were correct, the defendant was not entitled to the general affirmative charge as requested. The evidence for the State, as shown above, is to the effect that the defendant hit deceased with a "piece of scantling" or "something that looked like a post." Although the evidence is undisputed that Pete Singley hit deceased with a "limb" or stick, there is nothing in the evidence to indicate that the blow delivered by Singley was the sole cause of Morgan's death or that the blow delivered by defendant did not contribute thereto. There was a conflict in the evidence as to whether defendant struck deceased as charged in the indictment, but that conflict, as well as the other conflicts in the evidence, was for the jury's determination. It was the deceased's wife and his brother-in-law who testified that defendant struck deceased as charged, and it was the privilege of the jury to consider this relationship in determining what weight it should have in considering their testimony; but such relationship did not compel the jury to disbelieve them any more than the jury was compelled to disbelieve the testimony of defendant and his cousin, Pete Singley, because of their interest in the case. The fact, if it be a fact, that the testimony of several of the State's witnesses is unreasonable and unworthy of belief, as insisted upon by appellant's counsel, was a question for the jury. Ross v. State, 74 Ala. 532; Martin v. State, 18 Ala. App. 303, 92 So. 37. It has been said by the appellate courts of this state on many occasions that the credibility of a witness is for the jury. Ex parte Warrick, 73 Ala. 57; Byrd v. State, 213 Ala. 333, 104 So. 830; Murray v. State, 13 Ala.App. 175, 69 So. 354.
If the jury believed from the evidence beyond a reasonable doubt that defendant struck deceased as charged and that such blow was a dangerous blow and contributed to the death of deceased, then the defendant would be guilty of the homicide, notwithstanding the jury may not have believed that the death would have inevitably followed from that blow alone, and notwithstanding they may not have believed that there was any preconcert or community of purpose between defendant and Pete Singley. Huckabee v. State, 159 Ala. 45, 48 So. 796; Talley v. State, 174 Ala. 101, 57 So. 445; Daughdrill v. State, 113 Ala. 7, 21 So. 378; Henderson v. State, 11 Ala.App. 37, 65 So. 721.
*290 But even if there had been no evidence tending to show that the appellant struck deceased as charged in the indictment, he would not have been entitled to the general affirmative charge, with hypothesis, because of such failure of proof.
By § 14, Title 14, Code 1940, it is provided: "The distinction between an accessory before the fact and a principal, and between principals in the first and second degree, in cases of felony, is abolished; and all persons concerned in the commission of a felony, whether they directly commit the act constituting the offense, or aid or abet in its commission, though not present, must hereafter be indicted, tried, and punished as principals, as in the case of misdemeanors."
Such provisions have been a part of our statutory law since as early as the Code of 1852, wherein they were codified as § 3526.
But appellant insists that this section does not authorize the conviction of one charged in the indictment with having been the actual perpetrator of the crime upon proof of a conspiracy or that he aided or abetted in the commission of the crime. But this court held to the contrary in the case of Jolly v. State, 94 Ala. 19, 10 So. 606. In that case the defendant was indicted for an assault with intent to murder. The evidence did not tend to show that he actually committed the assault. He requested several charges which were, in effect, the same as the contention made here by counsel for appellant. Illustrative of the charges is Charge No. 1, which read as follows: "The defendant is charged with an assault with intent to murder, and not for conspiracy to commit the same; and before any person can be convicted for being a conspirator to commit an assault with intent to murder, he must be so charged under a separate section of the Code, and when alone indicted for the offense of an assault with intent to murder, he can not be convicted as a conspirator." In upholding the action of the trial court in refusing that charge and the others similar thereto, this court said:
"It was contended for the defendant, as shown by a number of charges requested, that on an indictment charging him with an assault with intent to murder he could not be convicted on proof that he was a conspirator, and aided or abetted in the commission of the offense, but that it must be shown that he committed the assault in person. That this contention was not well founded is shown by the above statement of the law on the subject. Charges 1, 4, 9, 10, 13, and 15 involved the erroneous proposition just stated, and were properly refused." 94 Ala. 24, 10 So. 607.
To like effect see State ex rel. Attorney General v. Tally, Judge, 102 Ala. 25, 15 So. 722; Morris v. State, 146 Ala. 66, 41 So. 274; McMahan v. State, 168 Ala. 70, 53 So. 89; Thompson v. State, 29 Ala.App. 124, 193 So. 323.
It is further insisted by counsel for appellant that § 14, Title 14, Code 1940, is unconstitutional in that it violates the Sixth Amendment to the Constitution of the United States, which provides in part that "In all criminal prosecutions, the accused shall enjoy the right * * * to be informed of the nature and cause of the accusation;" and that it also violates § 6, Art. 1, of the Constitution of this state, which provides in part, "That in all criminal prosecutions, the accused has a right to * * * demand the nature and cause of the accusation".
As to the insistence that § 14, Title 14, supra, violates the Sixth Amendment to the Constitution of the United States, it is sufficient to say that the Sixth Amendment is not a restriction on the states. Betts v. Brady, 316 U.S. 455, 62 S. Ct. 1252, 86 L. Ed. 1595; People v. O'Neill, 78 Cal. App. 2d 888, 179 P.2d 10, certiorari denied, 333 U.S. 858, 68 S. Ct. 728, 92 L. Ed. 1137; State v. Smith, 158 La. 129, 103 So. 534; State v. Burch, 199 Iowa 221, 200 N.W. 442; Harris v. State, 34 Wyo. 175, 242 P. 411; Agnes v. People, 104 Colo. 527, 93 P.2d 891. To like effect see Noles v. State, 24 Ala. 672; Coleman v. State, 150 Ala. 64, 43 So. 715; Walker v. State, 150 Ala. 87, 43 So. 188. We might add that in the federal courts one charged in an indictment as a principal may be convicted on proof of aiding and abetting. 18 U.S.C.A. § 550 [now § 2]; Jin Fuey Moy v. United *291 States, 254 U.S. 189, 41 S. Ct. 98, 65 L. Ed. 214; United States v. Knickerbocker Fur Coat Co., Inc., 2 Cir., 66 F.2d 388, certiorari denied, Zuckerandel v. U. S., 290 U.S. 673, 54 S. Ct. 91, 78 L. Ed. 581; Von Patzoll v. United States, 10 Cir., 163 F.2d 216. See also Rosencranz v. United States, 9 Cir., 155 F. 38.
No case has come to our attention wherein we have considered the question of whether or not § 14, Title 14, supra, violates § 6, Art. 1, of our State constitution. The case of Noles v. State, 24 Ala. 672, has some bearing on the question. However, we are in accord with the holdings of the majority of the courts of other states, which are to the effect that statutes identical with or similar to § 14, Title 14, supra, are not violative of provisions of the state constitutions similar to § 6, Art. 1, of our Constitution. Scharman v. State, 115 Neb. 109, 211 N.W. 613; Sanditen v. State, 22 Okl.Cr. 14, 208 P. 1040; State v. Geddes, 22 Mont. 68, 55 P. 919; State v. Burch, 199 Iowa 221, 200 N.W. 442; State v. Steeves, 29 Ore. 85, 43 P. 947.
It is well established that when, by prearrangement or on the spur of the moment, two or more persons enter upon a common enterprise or adventure and a criminal offense is contemplated, then each is a conspirator, and if the purpose is carried out, each is guilty of the offense committed, whether he did any overt act or not. This rests on the principle that one who is present, encouraging, aiding, abetting, or assisting, or who is ready to aid, abet, or assist the other in the perpetration or commission of the offense, is a guilty participant, and in the eye of the law is equally guilty with the one who does the act. Such community of purpose or conspiracy need not be proved by positive testimony. It rarely is so proved. The jury is to determine whether it exists, and the extent of it, from the conduct of the parties and all the testimony in the case. Morris v. State, 146 Ala. 66, 41 So. 274, and cases cited; Jones v. State, 174 Ala. 53, 57 So. 31; Teague v. State, 245 Ala. 339, 16 So. 2d 877.
When two or more persons enter upon an unlawful purpose, with a common intent to aid and encourage each other in anything within their common design, they are each responsible, civilly and criminally, for everything which may consequently and subsequently result from such unlawful purpose, whether specifically contemplated or not. Jones v. State, supra; Jolly v. State, supra; Tanner v. State, 92 Ala. 1, 9 So. 613.
Although the jury may not have believed that the defendant struck the deceased as charged in the indictment, or, if so, that the blow delivered by him did not contribute in the least to the death of deceased, yet, if they did believe from the evidence beyond a reasonable doubt that there was preconcert or community of purpose between the defendant and Pete Singley, this would render the defendant responsible for the act of Pete Singley, although they intended only a battery upon deceased, and would warrant a verdict of guilty against defendant, unless Pete Singley acted independently of the common purpose and killed deceased for malice and motives of his own, and was not at the time previously incited thereto by defendant. The following authorities so amplify and apply these principles to states of facts similar to those here that a further discussion on this point is rendered unnecessary. Jordan v. State, 79 Ala. 9; Jordan v. State, 81 Ala. 20, 32, 1 So. 577; Jordan v. State, 82 Ala. 1, 2 So. 460; Martin v. State, 89 Ala. 115, 8 So. 23, 18 Am.St.Rep. 91; Amos v. State, 83 Ala. 1, 3 So. 749, 3 Am. St.Rep. 682; Tidwell v. State, 70 Ala. 33; Tanner v. State, 92 Ala. 1, 9 So. 613; Brunson v. State, 124 Ala. 37, 27 So. 410; Frank v. State, 27 Ala. 37; State ex rel. Attorney General v. Tally, 102 Ala. 25, 15 So. 722; Morris v. State, 146 Ala. 66, 41 So. 274; Givens v. State, 8 Ala.App. 122, 62 So. 1020; Smith v. State, 8 Ala.App. 187, 62 So. 575; Williams v. State, 81 Ala. 1, 1 So. 179, 60 Am.Rep. 133; Pierson v. State, 99 Ala. 148, 13 So. 550; Evans v. State, 109 Ala. 11, 19 So. 535.
There was no error in overruling defendant's objection to the question propounded by the solicitor to State's witness McIlwain: "Do you remember the Saturday that Sug Morgan or Jesse Morgan was *292 said to have been beaten?" This question was merely introductory to the further examination of the witness, the materiality of which was fully developed. Questions of this character, if answered affirmatively, are often necessary to show the opportunity of the witness to know the facts to which he may testify on further examination. Stoball v. State, 116 Ala. 454, 23 So. 162.
The trial court did not err in permitting 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 three cousins, including Alvin Stokley, to do bodily injury to deceased. Hence, all that was said and done in furtherance of the common design by any one of the conspirators was admissible in evidence against the other conspirators. Collins v. State, 138 Ala. 57, 34 So. 993. The principle on which such acts and declarations are admissible is that by the act of conspiring together, the conspirators have jointly assumed to themselves, as a body, the attributes of individuality, so far as necessary to pursue a common design; thus rendering whatever is done or said in furtherance of that design a part of the res gestae, and therefore the act of all. Scott v. State, 30 Ala. 503. Under this rule, statements made by the deceased to Alvin Stokley, tending to show that the purpose of Alvin's visit to deceased was to lure him away from his home, in accordance with the request of the defendant, were admissible.
The State was properly permitted to show that deceased's wife was injured at the same time as her husband and to show the nature of her injuries, this being part of the res gestae. Caldwell v. State, 203 Ala. 412, 84 So. 272; Canty v. State, 244 Ala. 108, 11 So. 2d 844; Grant v. State, 250 Ala. 164, 33 So. 2d 466; Parsons v. State, 251 Ala. 467, 38 So. 2d 209; Snead v. State, 251 Ala. 624, 38 So. 2d 576.
On the preliminary hearing, Helen Morgan, the thirteen-year-old daughter of deceased, testified on behalf of the State. The State did not call her on the trial of this case, although she was subpoenaed and present. The defendant sought to introduce the certified transcript of her testimony given on preliminary hearing. The State's objections were sustained. There was no exception, and hence the question is not here for review. But in any event, the ruling of the trial court was correct under our decisions, as this witness was available to the defendant if he had wished to call her. Bush v. State, 19 Ala. App. 650, 100 So. 307, 312. See Woodard v. State, 253 Ala. 259, 44 So. 2d 241.
The trial court did not err in refusing to permit the defendant to show that his witness George Stokley, a kinsman of defendant, upon whose farm deceased lived, had used his influence on some previous occasion to get deceased released from a peace bond proceeding. Counsel for appellant contend that this testimony was relevant and admissible not only to show deceased's character for peace and quiet, but chiefly for the purpose of showing the friendliness of the witness George Stokley toward deceased. Even if it be conceded that, under the evidence, the defendant was entitled to show that the character of the deceased was that of a violent, turbulent and bloodthirsty man, an inquiry of this character must relate to reputation. It is not permissible to show specific acts of conduct. Moreover, the evidence here sought would have injected into the trial an issue foreign to those involved in this trial. Davis v. State, 21 Ala.App. 649, 11 So. 645. See Helms v. State, Ala.Sup., 47 So. 2d 276. Nor was the evidence sought to be elicited admissible on the theory that it tended to show that the defendant's witness George Stokley was friendly to the deceased. There had been no evidence showing that he was not friendly toward deceased. On the contrary, it was without dispute that they had been friends. A party is not permitted to add credit to his own witness by showing his lack of interest or bias or relationship when the opposite party has not attempted to impeach him. See O'Rear v. Manchester Lumber Co., 6 Ala.App. 461, 60 So. 462; Parker v. State, 10 Ala.App. 53, 65 So. 90; 70 C.J. 946, § 1147.
*293 As heretofore shown, defendant's evidence is to the effect that he and his cousins, Horace Stokley and Pete Singley, were on the way to the home of another cousin, Ted Stokley, to get him to go to a dance when defendant's car broke down in front of the home of deceased. Ted Stokley was called as a witness for defendant and testified that he saw defendant about eleven or twelve o'clock on the morning of the difficulty and they made plans to go to a dance about four or five o'clock that afternoon, but that he didn't go to the dance because he went to sleep and defendant did not come after him. On cross-examination this witness stated that he went to bed about 12:30 or one o'clock on the afternoon of the difficulty. Thereupon the State asked him, "What was your condition when you went to bed?" Defendant's objection was overruled and exception interposed. The witness answered, "I was sleepy." Even if it be assumed that this question was beyond the proper scope of cross-examination, it is certain that the answer to the question was without injurious effect upon defendant.
In brief filed here, complaint is made of several other rulings of the trial court on admissions and exclusion of evidence. We will not discuss these rulings, since they are not here for review, no exceptions having been reserved to the lower court's rulings. Bennett v. State, 248 Ala. 664, 29 So. 2d 217. This case is not governed by the provisions of the automatic appeal statute. Act of June 24, 1943; see § 382(10), Title 15, 1949 Cum. Pocket Part, Vol. IV, Code 1940.
No exception was reserved to the remarks of the trial court made in response to a question asked by a member of the jury; hence no question relative thereto is presented for review. Thomas v. State, 126 Ala. 4, 28 So. 591; O'Neal v. State, 18 Ala.App. 425, 93 So. 49; Davis v. State, 20 Ala.App. 131, 101 So. 171.
The trial court refused defendant's written requested Charge No. 1, which reads as follows: "The Court charges the Jury that if they believe from the evidence that Defendant, Clinton Stokley and Pete Singley were passing near Jesse Morgan's house on the afternoon the killing is said to have been done, and an offense was committed by one of them from causes having no connection with the common object for which they happened to be there, the responsibility for such offense rests solely on the actual perpetrator of the crime, and the Jury cannot find Defendant guilty simply because he happened to be present at the time the offense was committed."
As before pointed out, if several persons conspire to do an unlawful actan act malum in se all the members of such illegal combination are responsible for the acts of each, done in pursuit of their common purpose.
However, if an offense is committed by one or more of them, from causes having no connection with the common object, the responsibility for such offense attaches exclusively to its actual perpetrator. Frank v. State, 27 Ala. 37; Jordan v. State, 79 Ala. 9, 13; Williams v. State, 81 Ala. 1, 5, 1 So. 179. In such cases it is a question for the jury whether the act done was in prosecution of the purpose for which the party had assembled or confederated, or was independent, of it, and without any previous concert. Frank v. State, supra.
This is the principle which the defendant sought to have brought to the attention of the jury by requesting written Charge No. 1. The principle was not covered by the court's oral charge or any given written charge. We are constrained, therefore, to hold that for the refusal of defendant's requested Charge No. 1, this case must be reversed. Evans v. State, 109 Ala. 11, 19 So. 535; Way v. State, 155 Ala. 52, 46 So. 273. In the cases last cited, this court reversed the trial court for refusing to give charges in practically the same language as defendant's requested Charge No. 1. See Charge 30 in Evans v. State, supra, and Charge 62 in Way v. State, supra. The State seeks to sustain the action of the trial court in refusing defendant's requested Charge No. 1 on the ground that it was abstract as to the facts of this case. We *294 think it sufficient answer to this contention to say that if the charge was not abstract in the case of Evans v. State, supra, the charge in this case cannot be held to be abstract, for the facts of the two cases are very similar.
The trial court also refused to give defendant's written requested Charge No. 3, which is as follows: "I charge you, Gentlemen of the Jury, that if the evidence in this case convinces you that there is a probability of the Defendant's innocence, then your verdict should be not guilty."
This charge has had a rather checkered career in our cases. In the early cases it was held that the refusal of such a charge constituted reversible error. Croft v. State, 95 Ala. 3, 10 So. 517; Whitaker v. State, 106 Ala. 30, 17 So. 456; Morris v. State, 146 Ala. 66, 41 So. 274. However, the more recent decisions of this court and of the Court of Appeals hold that the refusal of such a charge is not reversible error, particularly where, as here, the trial court adequately instructed the jury that the defendant must be acquitted unless shown to be guilty beyond a reasonable doubt. Edwards v. State, 205 Ala. 160, 87 So. 179; Russo v. State, 236 Ala. 155, 181 So. 502; Wilson v. State, 243 Ala. 1, 8 So. 2d 422; Napier v. State, 26 Ala.App. 597, 164 So. 307; Reeves v. State, 28 Ala.App. 222, 182 So. 90; Duncan v. State, 31 Ala. App. 186, 13 So. 2d 695. To like effect see Odom v. State, 253 Ala. 571, 46 So. 2d 1.
It is strenuously insisted in brief filed here on behalf of appellant that the trial court erred in refusing to grant a new trial on the ground that the jury had not been kept together while the case was in progress. We pretermit any discussion of this question because the judgment of the trial court must be reversed for the error heretofore pointed out. Helms v. State, Ala. Sup., 47 So. 2d 276.
The judgment of the trial court is reversed and the cause is remanded.
Reversed and remanded.
FOSTER, LIVINGSTON, and STAKELY, JJ., concur. | December 7, 1950 |
af1a32c4-236b-47e6-b421-e72d830c38db | Kendrick v. BIRMINGHNA SOUTHERN R. CO. | 48 So. 2d 320 | N/A | Alabama | Alabama Supreme Court | 48 So. 2d 320 (1950)
KENDRICK
v.
BIRMINGHAM SOUTHERN R. CO.
6 Div. 781.
Supreme Court of Alabama.
October 19, 1950.
*325 Lipscomb & Brobston, of Bessemer, and D. G. Ewing, of Birmingham, for appellant.
Benners, Burr, Stokely & McKamy, of Birmingham, and Ross, Ross & Ross, of Bessemer, for appellee.
LAWSON, Justice.
This is the second appeal in this case. For opinion on former appeal see Birmingham Southern R. Co. v. Kendrick, 247 Ala. 573, 25 So. 2d 419.
The suit is under the provisions of § 123, Title 7, Code 1940, the homicide statute. It was originally filed by Adella Kendrick, as administratrix of the estate of Carl L. Kendrick, deceased, against the Birmingham Southern Railroad Company. There was verdict and judgment for the plaintiff. On appeal by the defendant railroad company, we held that the defendant was entitled to the general affirmative charge and because of the trial court's refusal to give such charge, the judgment was reversed and the cause was remanded.
After remandment, the death of Adella Kendrick being suggested, the cause was revived in the name of B. B. Kendrick, administrator de bonis non of the estate of his deceased brother, Carl L. Kendrick.
There were no additional pleadings after remandment, but on the second trial there were witnesses testifying on behalf of the plaintiff who had not testified on the first trial. The second trial resulted in a verdict and judgment for the defendant, the case having been submitted to the jury on two counts, both charging subsequent negligence. On the first trial submission was had on the same two counts.
From the judgment for defendant, the plaintiff has appealed to this court.
Considering the assignments of error in the order in which they are argued by counsel for appellant, the first question presented is in regard to the trial court's action in sustaining the demurrers to Count A of the complaint. Said count in terms avers simple negligencethat is, initial negligence and when its averments are construed most strongly against the pleader, they show plaintiff's intestate to have been a trespasser on defendant's tracks, to whom the defendant owed no duty other than not to negligently injure him after his peril was discovered by the agent or servant in charge of the locomotive, or not to wilfully or wantonly injure him. Rush v. Central of Ga. Ry. Co., 223 Ala. 119, 134 So. 619.
Appellant does not assert that Count A was not subject to the demurrers interposed in so far as that count charged defendant with initial negligence, but argues that since the charge of simple negligence embraces a charge of subsequent negligence, it was reversible error for the trial court of sustain the demurrers to said count.
It is true that recovery may be had for subsequent negligence under a count for simple negligencethat is, a count charging initial negligence. Louisville & N. R. R. Co. v. Abernathy, 192 Ala. 629, 69 So. 57; Louisville & N. R. R. Co. v. Calvert, 172 Ala. 597, 55 So. 812; Southern Ry. Co. v. Lime Cola Bottling Co., 210 Ala. 336, 98 So. 1; Central of Ga. Ry. Co. v. Hardman, 226 Ala. 515, 147 So. 670.
But when the plaintiff sues a railroad for injuries and relies upon simple negligence, it is incumbent upon him to aver and prove a relationship that would render the defendant liable for initial negligence; that is, that he was not a trespasser, and where, construing such a complaint most strongly against the pleader, it appears that the injured person was a trespasser at the time of the injury, the complaint is bad as against apt demurrer. Gadsden & A. U. Ry. Co. v. Julian, Adm'r, 133 Ala. 371, 32 So. 135; Southern Ry. Co. v. Forrister, 158 Ala. 477, 48 So. 69; Southern Ry. Co. v. Smith, 163 Ala. 174, 50 So. 390; Louisville & N. R. Co. v. Holland, 164 Ala. 73, 51 So. 365; Birmingham R., L. & P. Co. v. Fox, 174 Ala. 657, 56 So. 1013; Empire Coal Co. v. Martin, 190 Ala. 169, 67 So. 435; Rush v. Central of Ga. Ry. Co., 223 Ala. 119, 134 So. 619; Louisville & N. R. Co. v. Rogers, 242 Ala. 448, 6 So. 2d 874.
The following quotation from the opinion in Central of Ga. Ry. Co. v. Blackmon, 169 *326 Ala. 304, 53 So. 805, is authority for the trial court's action in sustaining the demurrers to Count A and is explanatory of the rule: "The intestate being a trespasser on the defendant's track at the time he was run over or against, and at a point where the defendant owed him no duty to keep a lookout, the defendant's servants owed him only the duty of preventing the injury, if they could do so, after discovering his peril on the track, and after becoming aware that he could not or would not extricate himself therefrom. Southern R. Co. v. Gullatt, 150 Ala. 318, 43 So. 577; Southern R. Co. v. Bush, 122 Ala. 470, 26 So. 168. Therefore, the complaint would not be good after showing that the intestate was a trespasser unless it charged willful or wanton misconduct or negligence subsequent to a discovery of peril. Birmingham R. Co. v. Jones, 153 Ala. [157], 168, 45 So. 177. We do not understand the authorities to hold that the only duty owing a trespasser is not to willfully or wantonly injure him, but they also permit a recovery for subsequent negligence as wellthat is, for a negligent failure to use preventative means to avert injury after a discovery of peril, and after a knowledge that the trespasser cannot extricate himself in time to avoid being injurednotwithstanding the act or omission of the servants in charge of the train did not amount to willful misconduct or wanton negligence. It is true we have authorities, as noticed in section 414, p. 636, vol. 4, Mayfield's Digest, which in effect hold that a complaint which shows that the plaintiff was a trespasser when injured is bad on demurrer if it fails to aver wanton or willful misconduct. But these cases were decided before the doctrine of subsequent negligence had gained much footing in this state, and the negligence there charged was original or initiative negligence as distinguished from subsequent negligence or negligence after a discovery of peril. We think the true rule as testing the sufficiency of a complaint, is that when simple negligence only is chargedthat is, initial negligenceit should bring the plaintiff within the protection of the rule and show that he was not a trespasser. Louisville & N. R. R. Co., v. Holland, [164 Ala. 73] 51 So. [365] 366; Gadsden R. R. Co. v. Julian, 133 Ala. [371] 373, 32 So. 135. * * *" 169 Ala. 308-309, 53 So. 806.
Moreover, no injury could possibly have been done plaintiff by sustaining demurrers to Count A for the reason that any evidence admissible under that count on the theory that it embraced subsequent negligence was admissible under Counts C and D, which charged subsequent negligence and upon which the case went to the jury. Likewise, any evidence that would authorize a recovery under Count A would authorize a recovery under Counts C and D. Bessierre v. Alabama City G. & A. R. R. Co., 179 Ala. 317, 60 So. 82; Coker v. Louisville & N. R. Co. et al., 245 Ala. 545, 18 So. 2d 84.
On the first appeal, we reversed the judgment of the trial court on the ground that the defendant was entitled to the general affirmative charge as to the counts charging subsequent negligence, the only counts upon which the case was submitted to the jury.
On the second trial, the one here under review, the evidence was in all material respects the same as that produced on the first trial, except for the additional testimony of two locomotive engineers, who testified on behalf of plaintiff. Because of the testimony of the two locomotive engineers, the trial court permitted the case to go to the jury on Counts C and D, which charged subsequent negligence and which were the same two counts upon which the case was submitted to the jury on the first trial.
However, the trial court gave the general affirmative charge, with hypothesis, in favor of the defendant as to Count B, which was a wanton count.
Appellant contends that the trial court erred to a reversal in giving the general affirmative charge, with hypothesis, in favor of the defendant as to the wanton count.
We will not undertake to delineate the evidence, inasmuch as most of it is set out in detail in the opinion on former appeal. Birmingham Southern Ry. Co. v. Kendrick, 247 Ala. 573, 25 So. 2d 419. The *327 evidence on the second trial, like that on the first, was insufficient to show negligence on the part of those in charge of the locomotive in failing to blow the whistle. The testimony of the locomotive engineers shed no light on that question. Their testimony, when considered in the light most favorable to the plaintiff, was to the effect that the engineer of the train, by the proper use of the available emergency brakes, could have stopped the train after discovering plaintiff's intestate on the track and before he was hit by the train. This was in conflict with other evidence offered by the plaintiff and, as before indicated, it was this conflict which, no doubt, motivated the trial court in submitting the case to the jury on Counts C and D, charging subsequent negligence. However, the jury, by virtue of its verdict, resolved this conflict in favor of the defendant railroad company.
Even if it be conceded that the evidence has any tendency to support a charge of wanton conduct on the part of the defendant's servants, agents, or employees in charge of the locomotive, the finding of the jury in favor of the defendant on the counts charging subsequent negligence was necessarily decisive of the issue against plaintiff under the wanton count also, and the withdrawal of the count from the jury by instruction was error without injury, if error at all. Helms v. Central of Ga. Ry. Co., 188 Ala. 393, 66 So. 470.
The question in this case on the subsequent negligence counts was not what the locomotive was doing before or when the plaintiff's intestate was discovered on the track, but what those in charge of the train did after the discovery of the peril of the plaintiff's intestate. That was the same question presented by Count B, the wanton count, under the facts of this case. True, we have a line of authorities holding that railroads may be guilty of wanton negligence in running trains at a dangerous rate of speed, without warning or keeping a lookout at certain points where it is known to the enginemen that people are liable to frequent to the extent of making it consciously dangerous to disregard their safety. But this rule applies to densely populated sections, and not sparsely settled sections like the place where the plaintiff's intestate was killed. Whitehead v. St. L. & S. F. R. R. Co., 179 Ala. 314, 60 So. 930, and cases cited.
In this case the jury, upon consideration of all the evidence, has determined that after the discovery of intestate's peril, the servants of the defendant committed no act of simple negligence which proximately caused the intestate's death. This being true, there could not, under the law, have been, after the discovery by them of plaintiff's intestate's peril, such an act of willful neglect on the part of defendant's servants as amounted to wantonness. Helms v. Central of Ga. Ry. Co. supra.
The decisions in McNeil v. Munson S. S. Line, 184 Ala. 420, 63 So. 992; Sington v. Birmingham R., L. & P. Co., 200 Ala. 282, 76 So. 48; Coleman v. Hamilton Storage Co., 235 Ala. 553, 180 So. 553; and Lambert v. Birmingham Electric Co., 244 Ala. 333, 13 So. 2d 579, contain nothing to the contrary. In those cases there was no such similarity of issues as was present under the pleadings and evidence in the instant case.
On the trial, plaintiff moved to challenge for cause several of the jurors whose names appeared on the jury list from which the trial jury was selected. The challenge for cause was in the following language: "We wish to challenge for cause each and every juror, separately and severally, employed by the Tennessee Coal, Iron & Railroad Company, it being stated by one of the jurors in open court that for the last fifteen years the Birmingham Southern Railroad Company is a subsidiary of the Tennessee Coal, Iron & Railroad Company. And it is on the ground that we make the motion."
The challenge for cause was overruled and appellant asserts here that such action by the trial court constitutes reversible error.
An employee is incompetent to serve as a juror in a cause involving the interest of the employer and is, therefore, subject to challenge for cause. Louisville & N. R. R. Co. v. Cook, 168 Ala. 592, 53 So. 190. Appellant argues that the same *328 rule applies to "an employee of a subsidiary company of the defendant and to an employee of a company of which the defendant is a subsidiary.
But we do not reach a decision on that question, for it was not established that there was any such relationship between the defendant, Birmingham Southern Railroad Company, and the Tennessee Coal, Iron & Railroad Company, the employer of the challenged jurors. True, one of the prospective jurors stated: "Judge, I am an employee of the T. C. I. Corporation, and that is a subsidiary of the Birmingham Southern Railroad Company." But on further questioning of this juror, it was made to appear that he had no personal knowledge of any such relationship and that his statement in that respect was based on mere rumor. Counsel for plaintiff offered no proof of such relationship, nor was request made of the court that an opportunity be given counsel for plaintiff to make such proof. Such relationship was not admitted by the defendant. We are constrained, therefore, to hold that the trial court did not err in overruling the challenge for cause. A person selected and returned as a juror is presumed to be qualified and competent to serve and the burden is on the challenging party to show the contrary. It will not be presumed, in the absence of sufficient evidence, that a juror is prejudiced or otherwise disqualified. Van Derslice v. Merchants Bank, 213 Ala. 237, 104 So. 663; Smith v. Louisville & N. R. Co., 219 Ala. 676, 123 So. 57; Liberty Life Assur. Soc. v. Woodard, 219 Ala. 24, 121 So. 30; 50 C.J.S., Juries, § 277, p. 1060.
It is without dispute that intestate was a trespasser at the time and place where he met his death. Hence, there was no duty resting on those in charge of the locomotive to be aware of his presence on the track at the time and place where he was killed, nor was there any duty on them to maintain a lookout for any person at that place. Charges 6, 7, 8, 9, 21, and 22, given at the request of defendant, so instructed the jury. They were given without error. Alabama Great Southern Ry. Co. v. Fulton, 144 Ala. 332, 39 So. 282. These charges were evidently requested as a caution against defendant being held liable for a failure to maintain a lookout. We think the defendant was entitled to have the jury instructed that they were not liable in that respect.
Charge 10, given at the request of the defendant, is in most respects similar to Charges 6, 7, 8, 9, 21, and 22, but appellant insists that the giving of Charge 10 was reversible error in that it assumes a fact contrary to the evidence, namely, that plaintiff's intestate was dead when he was discovered on the track before he was hit by the train. We think the charge fairly refers to the intestate after the train had stopped and he was found lying between the rails under one of the cars. But in any event, the giving of this charge was not reversible error, since any misleading tendency could have been corrected by an explanatory charge. Forst v. Leonard et al., 116 Ala. 82, 22 So. 481.
Under the pleadings and evidence in this case, those in charge of the locomotive owed intestate no duty until they had actual knowledge of his perilous situation. Newman v. Louisville & N. R. Co., 212 Ala. 580, 103 So. 856. Hence, defendant's charges 12 and 14 were given without error. Brown & Flowers v. Central of Ga. Ry. Co., 197 Ala. 71, 72 So. 366. In fact, charge 12 was more unfavorable to defendant than to plaintiff. This actual knowledge may be inferred from the circumstances or other facts, shown in the evidence; "but the existence of such facts should not rest purely in conjecture or speculation." (Emphasis supplied.) Herring v. Louisville & N. R. Co., 195 Ala. 422, 70 So. 749; Snyder v. Mobile Light & Ry. Co., 214 Ala. 310, 107 So. 451. Hence, it was not error to give defendant's charges 15 and 27.
Appellant contends that it was reversible error to give charge 16 requested by the defendant, in that it is based on a rule of conduct of the agents or servants of the railroad company, after discovery of peril, which does not measure up to the standard of conduct and duties required by law in that the charge shows as the duty of the *329 said servants or agents after discovery of peril only "the employment of preventive means at hand," while the law requires the employment "of all the preventive means at hand known to skillful employees engaged in like conduct."
The law is well established that when an agent or servant in control of an engine or car discovers a person in peril upon the track of a railroad, he must resort to all preventive means known to skilled persons engaged in the management or control of trains, engines, cars, etc., to avert injury. Manley v. Birmingham R., L. & P. Co., 191 Ala. 531, 68 So. 60; Alabama Great Southern R. Co. v. McWhorter, 156 Ala. 269, 47 So. 84; Louisville & N. R. Co. v. Holland, 173 Ala. 675, 55 So. 1001; Louisville & N. R. Co. v. Young, 153 Ala. 232, 45 So. 238. However, we have held that it was not error to give charges similar to given Charge 16. Manley v. Birmingham R., L. & P. Co., supra; Brown v. St. Louis & S. F. R. Co., 171 Ala. 310, 55 So. 107; Porter v. Louisville & N. R. Co., 202 Ala. 139, 79 So. 605. This charge is unlike charges 7 and 8 considered in the case of Louisville & N. R. Co. v. Holland, 173 Ala. 675, 55 So. 1001. Moreover, the refusal of said charges in the Holland case was simply justified and the opinion does not indicate that the giving of same would have been reversible error. Charge 16 is also unlike charges 2 and 5 treated in Brown & Flowers v. Central of Ga. Ry. Co., supra.
Charges 25 and 26 given at the request of the defendant might well have been refused on the ground that they are argumentative. However, we do not think that the giving of said charges constitutes reversible error.
Under the issues of this case, the trial court might well have refused to give charges 17 and 18, although they contain correct abstract propositions of law. But we do not think that, in view of the evidence in this case, the giving of those charges constitutes reversible error.
Likewise charge 2G might well have been refused, but we are unwilling to predicate a reversal of this case on the giving of that charge.
The judgment of the trial court is affirmed.
Affirmed.
BROWN, FOSTER and STAKELY, JJ., concur. | October 19, 1950 |
be5e6b35-7d68-4d57-95fa-7f7c3b4fb941 | Bull v. Armstrong | 48 So. 2d 467 | N/A | Alabama | Alabama Supreme Court | 48 So. 2d 467 (1950)
BULL
v.
ARMSTRONG et al.
6 Div. 69.
Supreme Court of Alabama.
October 26, 1950.
*469 Weaver & Johnson, of Haleyville, for appellant.
J. A. Posey, of Haleyville, for appellees.
SIMPSON, Justice.
Appellant, J. C. Bull, sued appellees for damages for maliciously and without probable cause unlawfully searching his dwelling house against his will and without his voluntary consent. From a judgment for the defendants the plaintiff has appealed.
Error is sought to be predicated on the refusal by the trial court of certain written charges requested by the plaintiff and the giving of other written charges for the defendant. A brief résumé of the evidence, in application to certain well-settled principles of law, will suffice, we think, to illustrate that error did prevail in these several rulings.
The undisputed evidence is: Defendant Burleson, chief of police of the city of Haleyville, was in possession of a number of blank search warrants which had previously been signed by the mayor in his official capacity, and on the night of August 13, 1949, on information conveyed to the defendant Armstrong, a deputy sheriff of the county, of a supposed violation by the plaintiff of the prohibition law, the said chief of police, in the presence of the other defendants, filled in the blank spaces in one of these carte blanche search warrants for the search of the plaintiff's dwelling and signed the names of defendants Dodson and Gibson (city policemen) to the affidavit. The mayor, who had previously affixed his signature to the jurat and the warrant of search, was not present, had not examined the two purported affiants, Gibson and Dodson, or either of them, regarding the facts assumed to have been stated by them in the affidavit, nor had he performed any of the functions required for the issuance of search warrants. In short, these officers concocted this search warrant without any semblance of compliance with the law and, thus arming themselves with it, proceeded to the plaintiff's home about nine p. m. and aroused *470 him, and when he appeared at his front door Dodson stated, "I've got a search warrant to search this house," whereupon the plaintiff invited the officers in and they entered. Plaintiff then addressing Dodson said, "Bill, is this a joke?" and Dodson answered that it was not a joke and the chief of police, Burleson, said, "No, J. C., this is not a joke, he has a search warrant to search this house." The plaintiff then inspected the warrant and said, "All right, go ahead, but I still think this is a joke." The officers then made a search of his home for prohibited liquors, found none, and after completing the search told the plaintiff to "forget it" and left the premises. The plaintiff was not informed and had no knowledge that the search warrant was illegal and void and obviously submitted to the search under its authority.
The law is well established that an officer is not protected from the consequences of executing a search warrant on the basis of the authority therein contained if it was issued through the officer's own fraud or misdoing. As was observed in Walker v. Graham, 228 Ala. 574, 154 So. 806, 809: "* * * no one will be permitted to wrongfully procure the issuance of a process by practicing a fraud or imposition upon the court or authority, and seek shelter behind such a process, though it be ever so regular upon its face. He will not be permitted to shield himself behind such a cloak. * * *"
And, a law enforcement officer who makes an illegal search of a person's premises is liable to that person in an action at law for damages. Joubert & Goslin Machine & Foundry Co. v. Atchley, 218 Ala. 105, 117 So. 640; Walker v. Graham, supra; Ex parte City of Mobile, 251 Ala. 539, 38 So. 2d 330.
The law prescribes how a search warrant may be procured. It may be issued only on probable cause supported by affidavit made before the issuing authority, naming or describing the person under suspicion and particularly describing the property to be searched for and the place to be searched. § 102, Title 15, § 212, Title 29, Code 1940; Hauger Co. v. Abramson, 215 Ala. 174, 110 So. 152.
Manifestly and without dispute these legal prescriptions were entirely ignored and the conduct of the defendants in filling in the blank search warrant and proceeding to a search of the plaintiff's premises was completely without the pale of legal warrant.
The defense in the case was rested on invitation and voluntary consent by the plaintiff because, after they presented him with the search warrant, apparently valid on its face, he permitted them to act under it and make the search. This, under the law, does not constitute waiver of his constitutional right to be secure against an unlawful search and seizure, nor is it an invitation or voluntary consent to search.
Waiver, to be effective, must be based on knowledge or means of knowledge of all material facts incident thereto. Gulf Trading Co. v. Radcliff, 216 Ala. 645, 114 So. 308; American Nat. Bank & Trust Co. v. Powell, 235 Ala. 236, 178 So. 21; Baker Sand & Gravel Co. v. Rogers Plumbing & Heating Co., 228 Ala. 612, 154 So. 591.
One is not held to have consented to the search of his premises where it is accomplished pursuant to an apparently valid search warrant. On the contrary, the legal effect is that consent is on the basis of such a warrant and his permission is construed as an intention to abide by the law and not resist the search under the warrant, rather than an invitation to search.
The following statement of principle in 74 A.L.R. 1437 is apposite and well supported by competent authority: "While it is clear that one may, by voluntary consent to an illegal search and seizure, waive his constitutional rights in this regard * * *, the cases are by no means agreed as to what amounts to such consent or waiver. It may be said generally, however, that if the officer, in searching for intoxicating liquor or evidence of violation of liquor laws, assumes to act under a search warrant, which it is subsequently *471 contended is illegal, the person whose premises are searched will not be held to have voluntarily consented to the search by merely acquiescing therein, and that a much stronger showing is required to justify a finding of consent under such circumstances, than if such person knows that the officer is not claiming to act under a warrant and nevertheless signifies a willingness that he shall proceed." See also 39 A.L.R. 822 et seq.; 27 A.L.R. 720 et seq.; 30 Am.Jur., § 527, p. 528.
We also find a good statement of the rule by the Supreme Court of Indiana in Meno v. State, 197 Ind. 16, 164 N.E. 93, 96, where it was said:
"* * * An invitation to search one's person or possessions, and seize a person or property, under the Constitution must be free from any coercion, duress, or fraud. One who, upon the command of an officer authorized to enter and search and seize by search warrant, opens the door to the officer and acquiesces in obedience to such a request, no matter by what language used in such acquiesence, is but showing a regard for the supremacy of the law. Such actions do not constitute an invitation.
"The presentation of a search warrant to those in charge at the place to be searched, by one authorized to serve it, is tinged with coercion, and submission thereto cannot be considered an invitation that would waive the constitutional right against unreasonable searches and seizures, but rather is to be considered a submission to the law. * * *"
Some other authorities expositing the same principle are: Morton v. State, 136 Miss. 284, 101 So. 379; State v. Watson, 133 Miss. 796, 98 So. 241; Conner v. State, 201 Ind. 256, 167 N.E. 545; Coleman v. Commonwealth, 219 Ky. 139, 292 S.W. 771; Mattingly v. Commonwealth, 199 Ky. 30, 250 S.W. 105; Jones v. Commonwealth, 227 Ky. 157, 12 S.W.2d 280; Jordan v. State, 111 Tex.Cr.R. 83, 11 S.W.2d 323; Monroe v. State, 110 Tex.Cr.R. 274, 8 S.W.2d 133; Dixon v. State, 108 Tex.Cr.R. 650, 2 S.W.2d 272; Franklin v. State, 34 Okl.Cr.R. 268, 246 P. 889; Smith v. State, 34 Okl.Cr.R. 434, 246 P. 1109; Hancock v. State, 35 Okl.Cr.R. 96, 248 P. 1115; Whitford v. State, 35 Okl.Cr.R. 187, 249 P. 430; Wilson v. State, 38 Okl.Cr.R. 409, 262 P. 501; Thomas v. State, 40 Okl. Cr.R. 98, 267 P. 278.
In the case at bar, therefore, we think it sound to conclude that the search under the void warrant was not voluntary, but compulsory. The warrant was legal on its face, and in agreeing for the officers to proceed with the search, the plaintiff was but submitting to the authority of the law and not agreeing to waive his constitutional rights; indeed, for him to have done otherwise might have constituted resisting an officer in the apparent discharge of his duty. It seems clear to us that his consent to the search was given under compulsion and in no sense can it be considered to have been voluntary or by invitation.
Charges 7, 10, 13, and 17, requested by the plaintiff and refused by the trial court, were designed to give effect to this legal principle and to instruct the jury accordingly. We think their refusal was error to reverse.
On like principle it must be held that it was error to give for the defendants charges 17, 18, 19, 20, 21, 23, 24, 25, 26, 27, and 28. The court doubtless approved these charges on the theory that there was some evidence of invitation or voluntary consent to search the plaintiff's property. As illustrated above, however, the legal effect of the search was that it was under compulsion or coercion, thereby rendering the giving of these charges also error to reverse.
Reversed and remanded.
BROWN, FOSTER, LIVINGSTON, LAWSON, and STAKELY, JJ., concur. | October 26, 1950 |
9c6e2775-0379-4429-a568-53cb248e8fdb | State Farm Mut. Auto. Ins. Co. v. Birmingham Elec. Co. | 48 So. 2d 41 | N/A | Alabama | Alabama Supreme Court | 48 So. 2d 41 (1950)
STATE FARM MUT. AUTO. INS. CO.
v.
BIRMINGHAM ELECTRIC CO.
6 Div. 716.
Supreme Court of Alabama.
October 12, 1950.
*42 Herbert W. Peterson and Jackson, Rives & Pettus, all of Birmingham, for appellant.
Lange, Simpson, Robinson & Somerville, of Birmingham, for appellee.
LAWSON, Justice.
The State Farm Mutual Automobile Insurance Company issued a policy of liability insurance to the Elliott Grocery Company, of Bessemer, Alabama, covering certain motor vehicles owned by that company.
On or about April 16, 1945, one of the motor vehicles covered by that policy was involved in a collision at the intersection of Sixth Avenue, North, and Fourteenth Street in the city of Birmingham. It was being driven at the time by Porter Scott, a colored employee of Elliott Grocery Company.
The other motor vehicle involved in the collision was owned by the Birmingham Electric Company and was being driven at the time by its employee, E. S. Neighbors. The automobile of the Birmingham Electric Company was badly damaged and Neighbors seriously injured.
Thereafter, on or about April 15, 1946, the Birmingham Electric Company on its own behalf and on behalf of its injured employee, Neighbors, instituted suit in the circuit court of Jefferson County against Porter Scott, the Elliott Grocery Company, and the State Farm Mutual Automobile Insurance Company.
Prior to going to trial, the plaintiff, the Birmingham Electric Company, struck all parties defendant except the driver of the truck, Porter Scott.
Notwithstanding the fact that the insurance company and its insured had been stricken as parties defendant, the insurance company employed attorneys and defended the suit against Scott. Before doing so, however, it obtained from Scott what is known as a non-waiver agreement, by the terms of which it was stipulated in substance and effect that, by defending the suit, it did not waive its right to rely upon each and every provision of the policy nor waive the right of the insurance company to deny liability at any time under any policy or policies of insurance issued to the Elliott Grocery Company.
Although the Elliott Grocery Company had been stricken as a party defendant, one of the issues under the pleadings was whether or not Scott was under the Workmen's Compensation Act, Code 1940, Tit. 26, § 1 et seq. at the time of the collision and the answer to this question depended on whether or not Scott was acting within the line and scope of his employment at the time of the collision.
That question went to the jury and by their verdict the jury indicated that under the evidence presented Scott was not, at the time of the collision, acting within the line and scope of his employment.
From the judgment of $3,500 against him, Scott appealed to this court. We affirmed. Scott v. Birmingham Electric Co., 250 Ala. 61, 33 So. 2d 344.
Following the return of "no property found" upon the execution issued under the judgment against Porter Scott, the judgment creditor, Birmingham Electric Company, instituted this suit against State Farm Mutual Automobile Insurance Company, which company, as heretofore shown, had issued the Elliott Grocery Company its policy of liability insurance covering the vehicle which was driven by Scott.
The plea of defendant was the general issue in short by consent, with the usual leave to give in evidence any matter which would be good in bar if specially pleaded.
The insurance policy contained what is commonly called an omnibus coverage clause: "The unqualified word `insured' *43 wherever used * * * includes the named insured and, except where specifically stated to the contrary, also includes any person or organization legally responsible for the use thereof, provided the actual use of the automobile is with the permission of the named insured."
Plaintiff's right to recover depended entirely upon whether or not at the time of collision Porter Scott was using the truck with the permission of Elliott Grocery Company, within the meaning of the omnibus clause of the insurance policy.
There was verdict for plaintiff. The defendant insurance company prosecutes this appeal from the judgment rendered thereon.
Counsel for appellant argues in brief that "the issue of whether or not an employee is driving his employer's automobile at the time of an accident within the line and scope of his employment, or has deviated therefrom, and the issue of whether or not he is driving the automobile with the permission of the employer, are substantially identical." From this premise it is argued that the judgment in the case of Scott v. Birmingham Electric Co., supra, was decisive of the sole question presented in this case.
Counsel for appellant also argue that, in any event, refused charges 33, 34, 35 and 38 should have been given. These charges are to the effect that in deciding the issue of permissive use, the jury could not take into consideration whether or not Porter Scott was acting within the line and scope of his employment at the time of the collision because that fact had already been determined by the jury in the case of Scott v. Birmingham Electric Co.
As to the foregoing contentions made by counsel for appellant, we think it sufficient to say that the judgment in the case of Scott v. Birmingham Electric Co., was not in any way decisive of the issues presented in the instant case, if for no other reason than that the parties in the two cases were not the same. Neither the insurance company nor its insured were parties to that suit and there was no privity between the insurance company and Porter Scott. Lunt v. Aetna Life Ins. Co., 261 Mass. 469, 159 N.E. 461. See Vezolles v. Home Indemnity Co., D.C., 38 F. Supp. 455; Hartford Accident & Indemnity Co. v. Jasper et al., 9 Cir., 144 F.2d 266.
Appellant does not contend that Porter Scott had not received the initial permission of the Elliott Grocery Company to use the truck on the day of the collision. Its contention is that at the time of the collision Scott had deviated from the purpose for which such initial permission was granted and in fact was violating an express order not to use the truck for his own personal purposes and that, therefore, Scott was not an additional insured under the omnibus clause of the policy.
The exact point raised here has never been passed upon in this state, and when we look to the decisions in other jurisdictions we find considerable lack of harmony.
The best treatise upon the subject that we have read is the annotation found in 5 A.L.R.2d pp. 600-666. It is there pointed out that in the United States three rules are to be found with reference to when an employee is covered by the omnibus coverage clause in liability insurance policies while driving an automobile owned by the employer and where the employee had received initial permission. The three different rules laid down by the authorities are shown to be: (1) the strict or conversion rule; (2) the liberal rule; (3) the intermediate or minor deviation rule. 5 A.L.R. 2d page 622, § 10.
These rules are described by the annotator as follows:
"First, the strict or conversion rule: For the use of the car to be with the permission of the assured within the meaning of the omnibus clause, the permission, express or implied, must have been given to the employee not only to the use of it in the first instance, but also to the particular use being made of the car at the time in question. In other words, the automobile must have been used for a purpose reasonably within the scope of the permission given, during the time limits expressed, and within the geographical limits contemplated.
*44 "Another view is the so-called liberal rule: The employee need only to have received permission to take the vehicle in the first instance, and any use while it remains in his possession is `with permission' though that use may be for a purpose not contemplated by the assured when he parted with possession of the vehicle. This rule is based on the theory that the insurance contract is as much for the benefit of the public as it is for the assured and that it is undesirable to permit litigation as to the details of the permission and use.
"The third rule is the moderate or `minor deviation' rule: A slight deviation from the scope of the authority or permission granted will not be sufficient to exclude the employee from the coverage under the omnibus clause, but a material deviation will be held to constitute a use of the automobile without the employer's implied permission. This view is obviously difficult of application, because the question to be answered is whether the deviation from the authorized use was slight or gross, and that turns on the facts of each case. The extent of the deviation in actual distance, the purpose for which the vehicle was given, and other factors, must be taken into consideration." 5 A.L.R.2d 622.
It is also stated in § 20, page 651 of 5 A.L.R.2d that: "Where the employer has expressly forbidden his employee to use the employer's automobile for his own personal purposes, such use of the automobile by the employee in violation of orders is not deemed to be one with the permission of the employer within the meaning of the omnibus clause of the liability insurance policy."
It does not seem just to declare that there is no coverage when the employee has made a minor deviation from the scope of his original permission and, on the other hand, it likewise does not seem just to declare there is coverage provided where there is initial permission to use the automobile, regardless of how far the employee may have deviated from the scope of his original permission or the purpose for which it was granted. It seems to us that the "minor deviation" rule should be followed.
Porter Scott had been employed by the Elliott Grocery Company for some time as a porter and part-time truck driver. On the morning of the collision, in accordance with instructions from his employer, he drove the truck from Bessemer, Alabama, to a number of outlying communities where he delivered groceries. He left Bessemer at approximately nine o'clock a. m. He finished his last delivery of groceries in the community of Colta sometime between eleven and twelve o'clock. In accordance with the instructions from his employer, he proceeded from Colta to the city of Birmingham, a distance of approximately forty miles. He was supposed to have gone to Shaw's Warehouse on Eighteenth Street in Birmingham and pick up groceries, which he was to return to his employer's place of business in Bessemer. Upon arriving in Birmingham, he did not go to Shaw's Warehouse, but proceeded to the post office in Birmingham, which is located on Eighteenth Street, and parked the truck in front of the courthouse on Eighteenth Street between Fifth and Sixth Avenues, North. His purpose in going to the post office was to file petition in bankruptcy. He was on no business of his employer while he was in the post office building, where he remained approximately thirty minutes. To this extent he was violating the orders of his employer that he was not to use the truck for his own personal business.
After leaving the post office he returned to his truck. It was raining. He had no cover for the truck and, according to his testimony, he did not go to Shaw's Warehouse to pick up the groceries because he had instructions that he should not do so when it was raining and he had nothing to protect the groceries on his truck from the weather. Consequently, he proceeded north on Eighteenth Street until he reached Sixth Avenue, where he turned left in a westerly direction, which was generally in the direction of the place of business of his employer, until he reached the point of the collision at the intersection of Sixth Avenue and Fourteenth Street. The testirnony of Scott is clear to the effect that he was returning to his place of employment. The *45 testimony of two other witnesses is to the effect that the route which Scott was following was "about as direct a route as he could take from the post office to Bessemer."
True, Scott had violated the instructions of his employer to the extent that he had stopped his truck in front of the post office. However, if the jury believed the evidence to the effect that at the time of the collision Scott was driving the truck back to his employer's place of business, then he was not violating any express order of his employer at the time of the collision.
We are of the opinion that the evidence in this case amply justified a finding by the jury that at the time of the collision Scott was returning the truck to his employer's place of business, in accordance with instructions given to him, and that in doing so he was driving the truck with the permission of the Elliott Grocery Company within the meaning of the omnibus clause of the insurance policy.
The judgment of the trial court is affirmed.
Affirmed.
BROWN, LIVINGSTON, and SIMPSON, JJ., concur. | October 12, 1950 |
34060db8-e933-4eec-9576-ff008e6b2db0 | Homewood Dairy Products Co. v. Robinson | 48 So. 2d 28 | N/A | Alabama | Alabama Supreme Court | 48 So. 2d 28 (1950)
HOMEWOOD DAIRY PRODUCTS CO., Inc.
v.
ROBINSON.
3 Div. 575.
Supreme Court of Alabama.
October 12, 1950.
*30 Rives & Gidbold, of Montgomery and Rosenthal & Rosenthal of Birmingham, for appellant.
J. R. Bell, of Hayneville, and Watkins C. Johnston, of Montgomery, for appellee.
FOSTER, Justice.
This is a suit in assumpsit, in which appellee sued appellant and recovered a judgment on a claim growing out of a contract for the sale of milk.
Appellee was a producer of milk in two locations in Lawndes County. Appellant processed and distributed the milk products. They operated under regulations of the State Milk Control Board. That board fixed a minimum price for such transactions but no maximum. The parties could agree on a figure in excess of the minimum. They did that in this instance. There was provision for making the contract so that under certain conditions when a surplus was produced, appellant could claim a rate less than had been argeed on for the amount of the surplus. The fact and amount of the surplus were as provided in the rules made by the board.
In February 1946 two officers of appellant, doing business in Jefferson County as well as Lowndes County, one the president George Burrell, and the vice president Sam Burrell, with one Blackmon also representing appellant, went to see appellee with a view of buying the output of his two dairies. The transaction was with the two officers of appellant acting jointly and was had at Robinson's Switch. The only difference material to the issues as to the nature of the agreement then made and their conversations is that appellee contends and testified that there was no limit fixed as to the duration of the contract. He is corroborated by Blackmon as to that. Sam Burrell testified it was to continue one year from April 1, 1946 to April 1, 1947. They agree that by such contract, appellant was to take all the milk output of both dairies delivered at one of them at a base figure, with no surplus, and that appellant was to pay appellee twenty-five cents per hundred pounds for hauling the milk produced at one dairy to the other for delivery there.
Appellee testified that the agreement was not finally concluded but he was to consider and let them know his decision; that later he saw George Burrell, president *31 of the company, and had an agreement about cans and he told George he accepted the terms of the contract.
Objection was made to the testimony of appellee and the questions to him about what occurred separately on the two occasions because George Burrell was then dead, applying the dead man's statute. Section 433, Title 7, Code.
In response to that objection appellee's counsel took the position before the trial judge that George's estate is not interested, it being a suit against the corporation. It was not insisted that there was no evidence that George was then dead, as the evidence subsequently showed. But we think he should have made mention of such claim when he was responding to the objection which expressly stated that he was dead. So that appellee should not now have the benefit of such contention.
In the matter here material several states have interpreted their statutes, respectively, which prohibit testimony by an interested witness as to a transaction with or statement by the deceased person under circumstances there stated. The concensus of opinion is that the transaction with or statement by a deceased person is not such within such statute when it was with him and one or more others associated with the deceased in the transaction, for such other one still living may give his version of the transaction, and, therefore, the reason for the exclusion does not exist. Johnson v. Townsend, 117 N.C. 338, 23 S.E. 271; Goss v. Austin, 11 Allen, Mass., 525; Fulkerson v. Thornton, 68 Mo. 468; Peacock v. Stott, 90 N.C. 518; Kale v. Elliott, 18 Hun., N.Y. 198; Palm Beach Estates v. Croker, 106 Fla. 617, 143 So. 792; McConnon & Co. v. Kuhlmann, 220 Mo.App. 821, 278 S.W. 822; Paddock v. Potter, 67 Vt. 360, 31 A. 784.
While this Court does not seem to have had the question before it, we think it is a fair construction of our statute, and does not conflict with our holding, that the presence of a disinterested party hearing the transaction does not make the evidence legal if otherwise within the purview of the statute. Southern Natural Gas Co. v. Davidson, 225 Ala. 171(4), 142 So. 63; Frank v. Thompson, 105 Ala. 211, 16 So. 634.
So that there was no error in respect to the ruling insofar as the question related to the transaction with George and Sam Burrell, because Sam was alive and testified on the trial giving their version of what occurred.
But such objection was also made to the evidence of appellee to the transaction between George Burrell and appellee later when appellee advised him of his acceptance of the contract in which George agreed to furnish the cans. Of course the fact that a representative of George's estate is not sued and that his estate may or may not have a pecuniary interest because he was a stockholder in the company, see, Montgomery & Wetumpka Plank-Road Co. v. Webb, 27 Ala. 618, would not affect the disability of appellee to testify as to the transaction with him since George was then acting as the president and agent of the company, which is sued and has a pecuniary interest in the suit. First National Bank of Guntersville v. Bain, 237 Ala. 580, 188 So. 64; National Union Fire Ins. Co. v. Weatherwax, 247 Ala. 143, 22 So. 2d 733; Benson & Co. v. Foreman, 241 Ala. 193, 1 So. 2d 898; Alford v. Darnell, 252 Ala. 565, 42 So. 2d 260; Tabler v. Sheffield Land, Iron & Coal Co., 87 Ala. 305, 6 So. 196.
But there is no controversy in respect to that feature of the transaction. No one claims that the company was not to furnish the cans and did so: the suit involves no controversy as to them. No one contends that appellee did not accept the terms of the contract as discussed when they were all present. So that such evidence of appellee was not prejudicial to appellant. We do not think there was reversible error in respect to that contention.
The basis of appellee's claim is twofold. One is that appellant paid him for the May 1948 milk partly on a surplus price basis, which makes a difference for that month's product of $797.44 (Record p. 34). The other claim is that under the contract the *32 haulage was to be paid for throughout the contract including the period from April 1, 1947 to October 15, 1948; but under appellant's version of their relations it was not due to pay appellee for hauling after April 1, 1947, when, as it contends, the first contract ended and another was made over the telephone when no haulage was to be paid for. Appellee continued to deliver the milk until October 15, 1948, when he terminated the contract. The amount claimed for haulage was $917.37.
Appellant also contends that some of the checks given appellee, after the date of his claims respectively showed that they constitute payment in full as there stated and constituted an accord and satisfaction. This contention was made by requested written charges which were refused by the court and assigned as error.
There was no controversy as to the correctness of the amounts which make up the two aspects of the claim, if there is a liability as to one or both respectively.
As we have indicated, there is a serious conflict in the evidence as to the terms of the contract discussed at Robinson's Switch, when George and Sam Burrell and Blackmon representing appellant were present with appellee. Sam Burrell testified that the contract was for one year only. Both aspects of appellee's claim arose after the expiration of that year. Appellee claims that no time limit was agreed on and Blackmon corroborated appellee. With no time limit either party could terminate it on sufficient notice. In June 1947, after the expiration of the first year, there was a telephone conversation between Sam Burrell and appellee. They differ as to its nature and effect. It was for the jury to settle that conflict. If the contract was without limit as to time and there was no change in its terms, appellant would owe appellee the full amount of his claim on both aspects subject to accord and satisfaction. Having found for appellee the jury resolved that conflict in his favor. There was evidence which substantially supported that finding. It is not for us to weigh its effect, unless the great preponderance of the evidence was against the finding. We do not think that such is its effect.
We are now ready to consider the claim of accord and satisfaction. First as to the May 1948 surplus claim. Throughout their dealings that was the only month in which appellant claimed a surplus. The jury by its verdict found that the contract was without surplus and not modified so as to include surplus in that month. Therefore the jury found that the full amount claimed by appellee on that account was just as well as unpaid. There were three checks in evidence which appellant claims in brief had the effect of discharging such liability. One was No. 492, dated September 25, 1948, for $2,235.54 with a memorandum on one said: "For milk through 9-15-48 in full a/c to date." One was check No. 520, dated October 5, 1948, for $2,188.26 with a side memorandum: "Milk in full through 9-30-48." One was check No. 580, dated October 25, 1948, for $89.44 with a side memorandum: "A/c in full." The evidence shows that bills for milk and hauling were paid twice a month, for the account arising from the 1st to the 15th in one check and then from the 15th to the 30th or 31st in another. For the period May 1, 1948 to May 15, 1948, in which the surplus was claimed by appellant, the first check was for $2,305.93, not including haulage. Had it all been figured at the base price it would have been $2,686.78, or a difference of $380.85. And for the period from May 15, 1948 to May 31, 1948, appellant also claimed a surplus and paid for milk $2,349.25, but without a surplus it would have been $2,765.84, or a difference of $416.59. A total difference for May 1948 would be $797.44, as claimed by appellee. The accuracy of the figures is not controverted. Those checks for the milk delivered that month had no memorandum as to payment in full. But following those checks, appellee testified he telephoned appellants about the error as to the surplus. That appellants never denied the liability and later agreed in person at the gin with appellee to pay that deficit for May and for the hauling (to be discussed later). Appellee's *33 counsel stated to appellee while examining him as a witness (Record page 66): "You said you wanted to explain to me this thing which says `Account in full,' which came in there through the 25th." (We presume he was referring to the check dated September 25, 1948, above mentioned.) Defendant's counsel: "Your honor, we don't think he is entitled to any explanation, that which is documentary evidence speaks for itself. * * * We would like a ruling on our objection to that." (Answer by the witness): "I would interpret that like I have alwaysthe two weeks period for the milk." The court: "You haven't objected yet, Mr. Godbold." Mr. Godbold: "Well we certainly object, your honor." The court: "The objection is overruled." Mr. Godbold: "We except." There was no further objection, motion or exception in that connection. This constitutes an assignment of error. We do not think there is any question there properly presented or which needs discussion. The witness then testified as to check No. 580, October 25, 1948, for $89.44, that it was the exact figure for one day's milk, being the last day at the base price. That it was for the amount of that account in full that was paid. That all the other checks so marked were payments in full for the amount of the account for milk for a two weeks' period, respectively.
Sam Burrell testified that after May 1948, when the surplus was claimed, appellee called him over the telephone and he merely asked him if there would be a surplus in June and "I told him there would not be as I had sold all the milk. I did not then nor later at the gin agree to pay at the rate of the base for this surplus." He further testified (Record pages 82 and 90) that such notation on a check means that it is a payment of all they owe up to the time specified. There was objection to this by appellee, not here involved. We observe that the checks marked "in full" were given for an admitted liability for milk without reference in terms to the account for the May milk. They did not contain any sum except for another admitted liability. There was a separate statement and account rendered and paid twice a month. Each was a separate bill rendered and paid. None referred in terms to any other bill or statement. In order to be a satisfaction there must be an accord. That is, an agreement to accept in extinction of the obligation something different from or less than that which the creditor is claiming or entitled. Section 1, Title 9, Code. The acceptance of the consideration of an accord satisfied the obligation. Section 3, Title 9, Code. Of course the satisfaction and the accord may be simultaneous, but to have such effect it must appear that their dealings were intended to embrace the particular matter claimed to be controlled by them.
The intent or meaning of such a memorandum as appears on the checks is to be ascertained as in case of other written instruments, so that express unequivocal terms cannot be varied by parol. Steenhuis v. Holland, 217 Ala. 105, 115 So. 2. But the ascertainment of such intent, there mentioned, when the writing is in equivocal terms, section 381, Title 7, Code, is aided by the course of dealing of the parties; the status of their accounts then existing; the statements then rendered and paid; the custom of fixing the amount of a check, known to both parties and the nature and terms of their contract. When its meaning is so influenced it becomes a question for the jury. Stegall v. Wright, 143 Ala. 204, 38 So. 844; Thompson v. Nashville C. & St. L. R., 160 Ala. 590, 49 So. 340; Dwight Mfg. Co. v. Word, 200 Ala. 221(18), 75 So. 979; Eufaula National Bank v. Passmore, 102 Ala. 370, 14 So. 683.
Moreover, section 381, Title 7, Code, is to be construed in pari materia with section 4, Title 9, Code. National Life & Accident Ins. Co. v. Karasek, 240 Ala. 660, 200 So. 873, 877. That is, that "An obligation is extinguished by a release therefrom to the debtor by the creditor, upon a new consideration, or in writing with or without new consideration."
Here the only writing was a check marked "milk in full." If it was intended to cover the surplus computed on *34 the May account, the only writing signed by appellee in connection with its settlement was an indorsement of the check. That is not a release in terms under section 4, Title 9. supra, but it is a receipt under section 381, Title 7, supra, having the effect of a release. Alabama-By-Products Corp. v. Kennedy, 228 Ala. 410, 153 So. 862. Prior to the adoption of section 4, Title 9, Code, such a receipt to be effective as a release was required to have a new consideration as in the discharge of a disputed or controverted claim. Ex parte Southern Cotton Oil Co., 207 Ala. 704, 93 So. 662. A receipt to be operative as a release must satisfy section 4, Title 9, supra. If it is not in writing it must be supported by a new consideration. If in writing, this is not necessary. Grand Lodge Knights of Pythias of N. Am. v. Williams, 245 Ala. 220, 16 So. 2d 497; Carns v. Commonwealth Life Ins. Co., 233 Ala. 215, 171 So. 382.
From those cases it follows that under existing statutes, although there is no dispute as to an existing claim and an amount is paid and accepted in settlement of that claim, though of a lesser sum, and a written receipt reciting that it is in full of it is given and received, a further writing or a new consideration would not be necessary. See, McCoy v. Wynn, 215 Ala. 172, 110 So. 129; Ex parte Southern Cotton Oil Co., supra. They do not conflict, since they were decided prior to the adoption of section 4, Title 9, supra.
The case of Gottlieb v. Scribner's Sons 232 Ala. 33, 166 So. 685, 686, was decided after the adoption of section 4, Title 9, supra. It was held that a check tendered and marked "account in full to date" and accepted and cashed was a satisfaction because there was a dispute as to the claim. The Court did not take note of section 4, Title 9, section 5643, Code of 1923, providing that no new consideration is necessary when the release is in writing. That case does not mean that the statute would not have been held controlling had it been relied on and considered. When the release is in writing, it must be given effect according to its intent expressed in plain terms, Alabama By-Products Co. v. Kennedy, supra, and no new consideration is necessary. Grand Lodge v. Williams, supra; Carns v. Commonwealth Life Ins. Co., supra. But what is equivalent to a new consideration is necessary if the release is not in writing under section 4, Title 9, supra, as before its adoption. Penney v. Burns, 226 Ala. 273, 146 So. 611.
Insofar as the claim for hauling is concerned, there is only one check which could possibly cover a dispute as to it. That is the check for $89.44, October 25, 1948, given a few days after this suit was brought marked "a/c in full". This check was for the exact amount of the account for milk for one day. A finding by the jury that it did not cover a claim for hauling milk extending from April 1, 1947 to the last day of the milk delivery in October should not be set aside, and a requested charge to the jury that it was an accord and satisfaction of that claim was properly refused since the circumstances justified a verdict that it was not intended for anything else than to settle one day's bill. Eufaula National Bank v. Passmore, supra; Stegall v. Wright, supra.
The requested charges pretermit a finding by the jury that the memoranda on the checks were intended by the parties to refer to the claims in dispute; that is, to the May 1948 surplus and the haulage from April 1, 1947 to October 1948. The terms of the memoranda in connection with the circumstances may have referred only to the statements rendered at the time the checks were drawn with no reference to the other claims.
That issue was one for the jury and appellant's charges put the burden of so deciding on the court. They were properly refused. The issue primarily was whether the contract for base rates for milk extended so as to include May 1948, and the haulage from April 1, 1947 until the contract was terminated. Having found for plaintiff on those issues, it was for the jury to determine whether the memoranda on the checks were intended to refer to the dispute as to the May 1948 surplus and to the claim for haulage from April 1, 1947 to October 1948 when the contract was terminated.
*35 We think there was ample evidence to support a finding for plaintiff on the contention that they did not refer to either such claim.
Affirmed.
BROWN, LAWSON and STAKELY, JJ., concur. | October 12, 1950 |
6ccb6d21-ef72-4365-a9b1-86156b306bf7 | Spencer v. Spencer | 47 So. 2d 252 | N/A | Alabama | Alabama Supreme Court | 47 So. 2d 252 (1950)
SPENCER
v.
SPENCER.
6 Div. 11.
Supreme Court of Alabama.
June 22, 1950.
*253 Henry J. Mayfield and John P. Buck, of Tuscaloosa, for appellant.
Liston C. Bell, of Tuscaloosa, for appellee.
FOSTER, Justice.
The question on this appeal is whether a decree of the circuit court in equity overruling a demurrer to a bill of complaint is erroneous and should be reversed.
The bill has some of the elements of one of review, and some of one in the nature of a bill of review. The demurrer is addressed to the bill as a whole. Therefore, if any aspect of it is free from the grounds assigned, the demurrer was overruled without error.
The proceeding under attack was one for divorce, in which a decree was rendered granting the divorce at the suit of appellant.
The instant suit was filed by appellee.
As a bill in the nature of a bill of review, it undertook to set up fraud in procuring the decree of divorce. The facts constituting fraud are alleged to be that the bill for divorce filed by appellant was on the ground of voluntary abandonment; that service was had on appellee on May 20, 1949; but that before service was had on her appellant came to her at home and told her of the filing of the bill, that she would get notice, and that if she would not appear and defend the suit, he would not appear and the suit would be automatically dismissed for want of prosecution; that she relied upon his statement and agreed not to appear, and did not appear and contest the same after consulting an attorney. That appellant disregarded his agreement, obtained a decree pro confesso in due time, and he and another witness gave testimony before the register and obtained a final decree on July 1, 1949. This bill was filed September 1, 1949.
The bill also alleges that in the suit for divorce appellant alleged voluntary abandonment occurring April 12, 1948, and continuing to the filing of the bill May 18, 1949, knowing that said averment was false and untrue, and that the evidence he and his witness gave was false and untrue. Appellee then denied that she abandoned him voluntarily at any time; that such allegations and testimony operated as a fraud upon her and the court.
By an amendment to the bill it is alleged that appellant's bill for divorce was insufficient to support a decree of divorce, in that it did not allege that the voluntary abandonment was without his consent, without just cause and legal excuse and without the intention of returning to him within the one year period. Also that the proof taken in the cause does not show those facts. The amended bill then copies the evidence taken in that case to sustain the allegations. It then alleges that she has a meritorious defense in that she never voluntarily abandoned him and was never guilty of any offense which justified a divorce.
Another amendment alleged that the record of the divorce proceeding shows that the bill of complaint was insufficient to support a decree of divorce, in that it does not state a statutory ground for divorce; *254 does not sufficiently allege voluntary abandonment, and the proof does not sustain a statutory ground for divorce, or that she voluntarily abandoned him without his consent and without just cause and legal excuse; and the record in that case does not sufficiently show when and where the voluntary abandonment occurred.
The bill, summons and its service, decree pro confesso, testimony, note of testimony and final divorce decree were all made exhibits to the bill as last amended.
It was to the bill as thus amended that the demurrer was addressed. It is in substance no more than a general demurrer for want of equity. We will therefore examine the bill in its various aspects to see if any of them are free from the demurrer assigned.
We will first discuss that aspect of it which is in the nature of a bill of review. That is, which charges fraud in the procurement of the divorce decree. In stating the principles of law which apply to it, we observe that they are the same whether the proceeding is under the four months' statute to set aside a judgment at law for "surprise, accident, mistake or fraud,"section 279, Title 7, Code,or whether it is in equity to set aside either a judgment at law or a decree in equity. Evans v. Wilhite, 167 Ala. 587, 52 So. 845; Todd v. Leslie, 171 Ala. 624, 55 So. 174. Those principles have received the same application in both forms of procedure. Evans v. Wilhite, supra.
And as applicable to them, this Court has built up a theory around Rule 14 of Circuit Court Practice, Code 1940, Tit. 7 Appendix, which is as follows: "No private agreement or consent between the parties or their attorneys, relating to the proceedings in any cause shall be alleged or suggested by either against the other, unless the same is in writing, and signed by the party to be bound thereby." In the cases of Norman v. Burns, 67 Ala. 248, and Collier v. Falk, 66 Ala. 223, there was a verbal agreement to continue a suit at law. In violation of that agreement plaintiff took a judgment against defendant, who did not appear to resist it on account of such agreement. A bill in equity was filed to set aside the judgment for fraud in violation of the agreement. Applying Rule 14, supra, the Court held that fraud could not be predicated on an agreement which was void as being in violation of the rule. Defendant was charged with a want of diligence in not having the agreement made as required by this rule. Those cases have been cited and followed frequently since then. Brunnier v. Hill, 204 Ala. 403, 85 So. 691; Kirkland v. C. D. Franke & Co., 207 Ala. 377, 92 So. 472; Choctaw Bank v. Dearmon, 223 Ala. 144, 134 So. 648; Standard Chemical Co. v. Barbaree, 239 Ala. 601, 195 So. 892.
The only case we find in this State in which that principle was not applied is Evans v. Wilhite, 176 Ala. 287, 58 So. 262. In refusing to apply it, the Court fully recognized the principle. There was an agreement to continue the case. This involved a court proceeding. The Court observed that if in violation of that agreement a judgment had been taken, the principle would apply. But in accordance with that agreement the case was ordered continued by the court. After this was done the continuance was set aside and the case tried without the appearance of defendant or his attorney, who had no notice of the motion to set it aside and of the trial. The court found that the oral agreement was consummated and carried into an order of the trial court. That such order relieved the case of the difficulty that the agreement was not in writing. After the continuance pursuant to the agreement, there was no duty on the part of the defendant to see that it was not later called for trial. Relief was therefore granted and the judgment set aside.
In the instant case, the bill alleges, we repeat, that appellant, complainant in the divorce suit, came to appellee and told her of the filing of the bill and that she would get notice of it, and "if she would not appear and defend the suit, he would not appear and that said suit would automatically be dismissed for want of prosecution." She consulted an attorney and relied on that statement and did not appear.
*255 In the case of Standard Chemical Co. v. Barbaree, supra, it is said that the parties cannot by estoppel give validity to a contract if it is prohibited by law or against public policy. But our cases are consistent with the authorities generally to the effect that such a statement means that the estoppel referred to is one which results merely from a breach of the contract, which the law requires to be manifested by a written instrument, though the other party acted upon it. The authorities do not mean that an estoppel will not be available from a breach of the contract when the contract was made and entered into for the purpose of perpetrating a fraud upon the other party by inducing the other party to pursue a certain course of conduct in reliance upon the contract, when it was not intended to carry out the contract when it was made, but was intended to work a fraud. Under those circumstances, the authorities sustain the view that fraud may be predicated upon such a state of facts, although as a contract it is void because it is not in writing. Our cases on that subject seem to begin with Clanton v. Scruggs, 95 Ala. 279, 10 So. 757, 758, in which it is said, "a representation relating to future action or conduct, operates as an estoppel only when it has reference to the future relinquishment or subordination of an existing right, which it is made to induce, and by which the party to whom it was addressed, was induced, to act." It is further said that an invalid executory agreement is not intended to be validated by any such principle, but "if the promise is made fraudulently, and is not meant to be kept, it is not denied that this circumstance might introduce an element of estoppel."
In the case of Russell v. Peavy, 131 Ala. 563, 32 So. 492, the question was the validity of a married woman's conveyance to secure her husband's debt, which was prohibited by statute. It was said that the wife cannot be estopped to deny her want of power to make such a contract, but that this principle is not intended to assert that the wife may not estop herself by positive acts of fraud or by concealment or suppression which in law would be equivalent thereto. And in the case of Allen v. Bromberg, 163 Ala. 620, 50 So. 884, relating to the statute of frauds, the Court referred to Clanton v. Scruggs, supra. It was held that the party could not be estopped from setting up the statute of frauds when the promise was required by law to be in writing, and was not in writing, unless it was made fraudulently with no intention of performing it. This principle was also referred to in the case of Durr Drug Co. v. Acree, 239 Ala. 194, 194 So. 544. See, also, Thompson v. New South Coal Co., 135 Ala. 630, 34 So. 31, 62 L.R.A. 551, 93 Am.St.Rep. 49, and Hays v. Ingham-Burnett Lumber Co., 217 Ala. 524, 116 So. 689.
Those cases all left the question undecided, because in them there was nothing alleged to constitute fraud except the failure to carry out an agreement which was void by reason of some statute. While those cases left the question undecided, they all seem to recognize that there is such a principle. It is fully stated in 37 Corpus Juris Secundum, Frauds, Statute of, § 217, pages 713, 714, in which this statement is made: "However, actual and positive fraud, inherent in the transaction involved, must be shown, otherwise the rule does not operate. A mere failure or refusal to perform an oral contract, within the statute, is not such fraud, within the meaning of this rule, as will take the case out of the operation of the statute, and this is ordinarily true even though the other party has changed his position to his injury."
We note in this instance that the bill of complaint does not undertake to show fraud on the part of the complainant in the divorce case in procuring the divorce, other than a breach of the agreement which he made with the complainant in this case, who was the respondent there. The bill in this case does not undertake to set up fraud as would be available upon an application of the principle which we have just stated.
The cases, which we have cited applying Rule 14, supra, are in all material respects similar to this one. Like this one, they do not undertake to set up fraud, except such as results from the failure to perform *256 a contract which is void under a statute. We are, therefore, constrained to hold that this aspect of the bill is without equity and that the decree overruling the demurrer cannot be sustained in respect to it.
For False and Fraudulent Allegations in the Bill.
The bill also alleges that in the suit for divorce the allegation of voluntary abandonment was knowingly false and untrue and operated as a fraud on the court.
We have a principle in this State that false allegations in a bill on which its jurisdiction is founded, and which are necessary to invoke such jurisdiction, constitute a fraud on the court and a decree on such allegations is procured fraudulently and is subject to attack in equity, if the defendant was duly diligent. Keenum v. Dodson, 212 Ala. 146, 102 So. 230; Bolden v. Sloss-Sheffield Steel & Iron Co., 215 Ala. 334, 110 So. 574, 49 A.L.R. 1206; Hooke v. Hooke, 247 Ala. 450(9), 25 So. 2d 33; Anderson v. Anderson, 250 Ala. 427, 34 So. 2d 585.
Divorce proceedings are statutory and the courts exercising the power have a limited and special jurisdiction, which must appear on the face of the proceedings. Anthony v. Anthony, 221 Ala. 221, 128 So. 440. And the bill must allege a statutory ground, else the decree is void. Tillery v. Tillery, 217 Ala. 142, 115 So. 27.
Therefore, the false and fraudulent assertion in a bill for divorce of the existence of a statutory ground for divorce relates to matter necessary to invoke the jurisdiction of the court exercising a statutory and limited jurisdiction and constitutes a fraud on the court. A decree on such concocted and false charge in a cause in which respondent was fraudulently induced not to contest the same or had no opportunity to do so, and did not do so, is one procured by fraud. But to support a suit to set aside such decree, it must be made to appear that the respondent in that suit failed to contest that claim without negligence, as by fraud of the complainant, otherwise it became an issue in the case and intrinsic in nature. Therefore, the claim, as here made, is involved in that of fraud in preventing defendant from defending the case to which we have referred. There is no equity in that aspect of the bill.
For Error Apparent on the Face of the Proceedings.
Appellant also insists that the equity of the bill can be sustained as one of review for error apparent on the face of the record of the divorce case.
The error apparent is alleged to be that the bill, though alleging voluntary abandonment for the time required, does not allege that it was without the consent of the complainant and was without just cause and legal excuse.
Such alleged insufficiency of allegation was not tested by demurrer. There was no ruling on its sufficiency. It there had been, it would be reviewable by appeal, not by bill of review. But the bill states, in substance, voluntary abandonment as a ground for divorce in substantially the language of the statute. It is that "respondent voluntarily abandoned the complainant on or about April 12, 1948, and has lived separate and apart from him since that time." That bill was filed May 18, 1949. The statute as amended is "for voluntary abandonment from bed and board for one year next preceding the filing of the bill."
The use of the language of the statute is sufficient in a bill for divorce without alleging that the voluntary abandonment was without the intent to return and without the consent of complainant and without sufficient cause. Stephenson v. Stephenson, 213 Ala. 382, 105 So. 183; Nelson v. Nelson, 244 Ala. 421, 14 So. 2d 155; Siener v. Siener, 250 Ala. 376, 34 So. 2d 576.
But even if the bill for divorce did not contain jurisdictional allegations sufficient to sustain the decree, the invalidity of the decree would appear on the face of the proceedings and the decree be subject to collateral attack. That situation does not support a bill of review. Murphree v. International Shoe Co., 246 Ala. 384, 20 So. 2d 782, and cases cited.
*257 In many cases we have referred to the nature of error on the face of the record which will support a bill of review. McCall v. McCurdy, 69 Ala. 65; Jones v. Henderson, 228 Ala. 273, 153 So. 214.
The bill in the instant case does not show such an error.
We think there is no equity in any aspect of the bill. For that reason the decree in the instant case overruling the demurrer to the bill as a whole should be reversed and a decree here rendered sustaining the demurrer and allowing appellee thirty days in which to amend the bill.
Reversed, rendered and remanded.
LIVINGSTON, SIMPSON and STAKELY, JJ., concur. | June 22, 1950 |
706d229f-4fb3-4b05-b339-43e5747b1175 | Aircraft Sales & Service v. Bramlett | 49 So. 2d 144 | N/A | Alabama | Alabama Supreme Court | 49 So. 2d 144 (1950)
AIRCRAFT SALES & SERVICE, Inc.
v.
BRAMLETT.
6 Div. 922.
Supreme Court of Alabama.
October 26, 1950.
Rehearing Denied December 14, 1950.
*147 Davis & Williams, of Birmingham, for appellant.
Wade H. Morton, of Birmingham, for appellee.
SIMPSON, Justice.
The defendant appeals from a verdict and judgment rendered against it in favor of the plaintiff in an action for damages for the destruction by fire of plaintiff's airplane, stored with the defendant as a bailee for hire.
Count 1, on which recovery was rested, is as follows:
"The plaintiff claims of the defendants the sum of Three Thousand Dollars ($3,000.00) as damages for that heretofore during, towit: the month of October, 1946, the defendants were engaged in the business of operating an airplane hanger and storing airplanes for hire or reward; that on, towit: October 17, 1946, the plaintiff delivered to and stored with the defendants at their hanger in the City of Birmingham, Jefferson County, Alabama one 1946 Taylor Craft Airplane, N.C. 43537, Model B.C. 12D, Serial No. 7196, and agreed to pay to the defendants their usual and regular charges therefor, which said airplane they agreed to store for the plaintiff and to exercise reasonable care and diligence in the care of same.
"And plaintiff further avers that the defendants failed to exercise reasonable care and diligence in the keeping of said airplane and as a proximate consequence thereof the plaintiff's said airplane was destroyed by fire."
One major contention on appeal is that the count was an action ex contractu and that, following an adverse construction by the trial court, error prevailed in the overruling of certain grounds of demurrer to the count as well as in giving and refusing certain instructions to the jury on that hypothesis. With this insistence of learned counsel we are at variance. Either case or assumpsit would lie for the loss or injury to bailed property as a proximate result of the failure on the part of the bailee to use reasonable carecase for negligence in performing the duty arising from the contract of bailment and assumpsit for the breach of the contract itself. We interpret Count 1, as did the trial court, to be in case. The gravamen of the count is the alleged negligence of the defendant in the performance of a duty owing to the plaintiff arising out of the contract whereby the property in question was lost to the plaintiff and the averment of negligence was sufficient in this respect. Hackney v. Perry, 152 Ala. 626, 633, 44 So. 1029.
Nor was the count subject to the criticism that it failed to aver in what manner the negligence was committed. There seems to be some conflict of authority on the question elsewhere, 67 Corpus Juris, 564, § 250, but we think the rule in Alabama is firmly established that where a situation is averred to show a duty owed by the defendant to the plaintiff to exercise due care, a failure to do so is negligence and that negligence may be counted on in general terms. Birmingham Railway, Light & Power Co. v. Bush, 175 Ala. 49, 56 So. 731.
As regards the application of the principle to the case in hand, it is a common law duty on the part of a bailee for hire to exercise reasonable care in the protection of the property and the general rule is that when the goods are lost out of the possession of the bailee, prima facie, negligence is imputed to him. The law therefore intervenes to supply this allegation of fact and the quo modo of the negligence is not necessary to be alleged. Authoritative is the statement to that effect in Bain v. Culbert, 209 Ala. 312, 96 So. 228, that "a general averment of the negligent breach *148 of duty by a bailor is sufficient in an action or count in case for the damage proximately resulting from the loss of the property bailed." Western Ry. of Alabama v. McGraw, 183 Ala. 220, 62 So. 772; Churchhill v. Walling, 205 Ala. 509, 88 So. 582; Glenn v. Blackman, 33 Ala.App. 571, 35 So. 2d 698, certiorari denied, 250 Ala. 664, 35 So. 2d 702.
However, the foregoing rule of pleading does not alter the rule of the burden of proof in such cases, which burden remains throughout on the plaintiff. The prima facie presumption of negligence imputed to the defendant is said to be rebutted when the loss is shown to have occurred as the result of a fire and the plaintiff is then required to prove that the loss was the result of the negligence of the defendant, though this burden would be met if the evidence which proves the fire also proves the defendant's negligence. Lewis v. Ebersole, 244 Ala. 200, 12 So. 2d 543; Seals v. Edmondson, 71 Ala. 509; Firestone Tire & Rubber Co. v. Pacific Transfer Co., 120 Wash. 665, 208 P. 55, 26 A.L.R. 217; 6 Am.Jur. 458, § 378; Bricken v. Sikes, 14 Ala.App. 187, 68 So. 801, certiorari denied, 194 Ala. 148, 69 So. 425.
Another insistence is that the defendant was due the general affirmative charge.
The proof in the instant case established that appellant was in legal effect a warehouseman or storage bailee who contracted for a consideration to store appellee's plane in its hangar, and as such bailee it was required to exercise reasonable care to protect the property from fire, and in default of that duty liability for loss or injury proximately resulting therefrom would ensue.
It is also the rule that this duty to exercise reasonable care extends not only to the means employed to prevent a fire, but also to the means and agency used to arrest the progress of a fire after it is once started. 67 Corpus Juris 507, § 105; 56 Am.Jur. 390, §§ 149, 150; Tubbs v. American Transfer & Storage Co., Tex.Civ.App., 297 S.W. 670; Jordan v. Federal Compress & Warehouse Co., 156 Miss. 514, 126 So. 31; Haverstick v. Southern Pacific Co., 1 Cal. App. 2d 605, 37 P.2d 146, 111 A.L.R. 1143.
The question of reasonable care is to be determined from all the circumstances and is affected by the character or kind of property stored (here highly inflammable property); its environs, such as its proximity to elements or agencies which might subject it to injury or destruction. 56 Am. Jur. 390, §§ 148, 153; Seals v. Edmondson, supra, 71 Ala. 514.
The general rule governing other actions for injury based on negligence generally applies to actions against such a bailee and it is for the jury to determine whether or not the defendant had been guilty of negligence, unless there is an entire absence of evidence affording an inference of negligence. 67 Corpus Juris 581, 582, §§ 269, 279; Tubbs v. American Transfer & Storage Co., supra; Jordan v. Federal Compress & Warehouse Co., supra; Haverstick v. Southern Pacific Co., supra; Austin v. Heath, 168 La. 605(4), 122 So. 865.
So in the present case, for the defendant to be entitled to the affirmative charge or a directed verdict, the evidence must show without conflict that the defendant did what an ordinarily prudent person would have done under the circumstances to avert the loss. If there was a scintilla of evidence tending to establish defendant's negligence or to afford an inference of such negligence proximately causing the loss, there would be no basis for giving the affirmative charge for the defendant.
In the light of these recognized principles, it must be held that the affirmative charge for the defendant was well refused. A brief recitation of the facts will serve to demonstrate this conclusion.
The defendant was engaged in the business of operating a flying school and airplane hangar and had stored the plaintiff's plane, with several others, in a building on the old Bechtel-McCone properties in the city of Birmingham, Alabama, it had leased from the federal government. The building was a wooden structure 1080 feet long and 40 feet wide, the outside walls being about 19 feet from ground to roof eave. Throughout the length of the building at about 30-feet *149 intervals there were center supports, along each of which ran a 3-inch water pipe, except the center support adjacent to defendant's office, where the weekend before the fire it had had a heating stove installed. The pipe on this center support had been reduced in size by reason of the previous installation of a water cooler in the office. At each of these water connections the landlord furnished a fire hose to fit the connection, including the smaller water pipe on the center support nearest the office. The office was a partitioned-off compartment in the northeast portion of the building, about 25 or 30 feet square and ceiled with celotex, dropping within about 8 feet of the floor. A fire was kindled in the stove at about 6 a. m. and about 7:45 a. m. "a flame or a small flicker of a flame" was discovered in the ceiling above the celotex, over the stove. Being government property, there was a fire department, with facilities, maintained on the Bechtel-McCone properties and the telephone in the office had a notice posted over it to call this fire department in case of fire. The Birmingham fire department had no jurisdiction over the property and made no fire inspections thereof. The government fire department was in much closer proximity to the building than the Birmingham fire department, yet one of the employees of defendant called the Birmingham department when the fire was discovered and the fire department on the reservation was not called, if at all, until some later time. There were also on the center supports fire extinguishers and when the fire was discovered some of the employees of defendant attempted to use one of the fire extinguishers, but were unable to use it either because it was out of order or they did not understand its workings. They then attempted to connect the fire hose to the water pipe adjacent to the office, but the wrong size hose was at the center support and they were unable to make a connection because of the difference in the size of the fittings. The smaller hose which should have hung there was absent, probably in another part of the building. Being unable to use the fire extinguisher or to connect the fire hose, no attempt was made to find the smaller hose, which should have hung at that center support, nor was any attempt made to institute a connection at the next center support, which was approximately 30 feet distant. Water buckets were also available, but no attempt was made to use them, although when the fire was first discovered it was but a small flame and could have been reached by water buckets or fire hose. Neither was any attempt made to use any other fire extinguisher. When the Birmingham fire department did arrive at the scene and water was finally turned on the fire, its spread was stopped in three minutes and a portion of the building saved. At the time the fire was discovered there were some four employees of the defendant at or near the office where the fire started.
We think the negligence, vel non, of the defendant, as well as the question of proximate causation, were inquiries of fact to be determined by the jury. The defendant could not absolve itself of its duty in the premises because it did not own the hanger or because the government furnished the fire fighting equipment and made periodic fire inspections. The defendant in accepting for storage this highly inflammable property of plaintiff assumed the implied obligation of using reasonable care to protect it, and we think it was for the jury to decide whether or not it had failed in this duty by reason of not seeing to it that the fire extinguishers were usable or susceptible of being used by its employees or whether or not in the exercise of reasonable care the proper hose should have hung at the proper place, or whether or not its employees were negligent in failing to use the nearest water pipe which was workable in order to exterminate the fire or in failing to use water buckets or other fire extinguishers, or were negligent in failing to call the government fire department as the instructions directed. The affirmative charge for the defendant was, therefore, properly refused.
Error fatal to affirmance of the judgment, however, did, we think, prevail in the refusal by the learned trial judge of certain other special written charges requested *150 by the defendant. To illustrate it is necessary to refer to other of the evidence.
Considerable proof was undertaken by the plaintiff to show negligence of the defendant in causing the fire by reason of the use of a broken terra cotta thimble through which the stovepipe went to the outside of the building. There was expert testimony to afford an inference that there might have been a break in this thimble at the time of the fire and that, if so, this condition was "unsafe." If it could be conceded that to maintain the stove and equipment in that condition was negligence under the circumstances, in order to fasten liability on the defendant it must be established by the evidence that the fire which destroyed the plane was the proximate result of this particular act of negligence. Lewis v. Ebersole, supra, and cases cited; Seals v. Edmondson, supra; Stowers v. Dwight Mfg. Co., 202 Ala. 252(10), 80 So. 90; Bricken v. Sikes, supra.
There was an entire absence of evidence that the fire was caused by reason of the maintenance of the terra cotta thimble, if it was in a broken condition. Indeed, the inferences were to the contrary. The fire apparently started in the proximity of some electric wiring and some six or eight feet distant from the thimble where the stovepipe left the building. No fire at all was observed in the vicinity of the thimble and the exit of the pipe from the building. There is no explanation either from expert testimony or otherwise as to the origin of the fire and to attribute it to the defective thimble, if so, would be the merest conjecture. A verdict based on speculation or conjecture is not warranted. City of Tuscaloosa v. Fair, 232 Ala. 129 (19, 20), 167 So. 276; Goodwyn v. Union Springs Guano Co., 228 Ala. 173(6), 153 So. 246; Central of Ga. R. Co. v. Lee, 225 Ala. 283(3), 142 So. 660.
Therefore, charges 7 and 55 instructing, in effect, that no recovery could be based on any alleged crack in the terra cotta thimble, should have been given, were not otherwise covered, and to refuse them was, in our opinion, error to reverse.
In view of a probable retrial, it is proper to observe that Charges 30 and 31 to the effect that in times of emergency a person is not held to that degree of judgment as he would under circumstances where he had an opportunity to reflect and consider a course of action, were not subject to the qualification interposed by the court in its oral charge, "if he were not guilty of any negligence that brought it on." As noticed, the cause of the fire remained unexplained from the evidence. There was no evidence that its origin was due to any negligence of the defendant, or that defendant contributed to bringing about the emergency, and to have attributed it to the defendant's negligence would have been entire speculation. The emergency was created immediately when the fire was discovered and the charges therefore were not abstract. (Ala. Digest, Trial. These charges, as written, we think, enunciated the applicable doctrine. 65 C.J.S., Negligence, § 17d, p. 412; Clark v. Farmer, 229 Ala. 596, 159 So. 47; Byars v. Hollimon, 228 Ala. 494, 153 So. 748.
One further observation is deemed necessary in view of the argument that error prevailed in the refusal of defendant's charge 39 as regards "unavoidable accident." At one time the court did hold it error to refuse such a charge, if apposite to the facts, Alabama Produce Co. v. Smith, 224 Ala. 688, 692(8), 141 So. 674; but in Kelly v. Hanwick, 228 Ala. 336(9), 153 So. 269, and Sloss-Sheffield Steel & Iron Co. v. Littrell, 246 Ala. 58, 61, 18 So. 2d 709, the same Justice writing, such a charge was held properly refused as misleading. Recent decisions have affirmed the latter view to the result that the charge was properly refused. Bahakel v. Great Southern Trucking Co., 249 Ala. 363, 366(8), 31 So. 2d 75; Cosby v. Flowers, 249 Ala. 227(4), 30 So. 2d 694.
What we have said hereinabove will furnish a sufficient guide for another trial and it remains unnecessary to treat of the other questions raised on this appeal.
Reversed and remanded.
BROWN, FOSTER, LIVINGSTON, LAWSON, and STAKELY, JJ., concur. | October 26, 1950 |
46c2d345-a8be-47c7-8c97-433ddfbbca49 | Ten Ball Novelty & Manufacturing Co. v. Allen | 51 So. 2d 690 | N/A | Alabama | Alabama Supreme Court | 51 So. 2d 690 (1951)
TEN BALL NOVELTY & MANUFACTURING CO. et al.
v.
ALLEN.
6 Div. 142.
Supreme Court of Alabama.
April 5, 1951.
London, & Yancey and Geo. W. Yancey, all of Birmingham, for appellants.
Taylor, Higgins, Windham & Perdue, of Birmingham, for appellee.
STAKELY, Justice.
Mrs. Rosalie Allen (appellee) brought this suit against Ten Ball Novelty & Manufacturing Co. and against Allen's Record *691 Bar (appellants) for personal injuries which she is alleged to have sustained while, as a customer, she was in the store operated by them. The suit is based on the alleged negligence of the defendants in their failure to provide her with a reasonably safe place to walk in their place of business. Both of the foregoing concerns are alleged to be partnerships composed of Nathan Allen, Clarence Allen, Louis Allen and Joseph Allen. Louis Allen is the husband of the plaintiff.
The defendants pleaded the general issue and contributory negligence in short by consent. There was verdict and judgment for the plaintiff. A motion to set aside the verdict and judgment and to grant the defendants a new trial was overruled by the court. Thereupon this appeal was taken.
In August 1949 four brothers, Clarence Allen, Nathan Allen, Louis Allen and Joseph Allen, were partners and the owners of the Ten Ball Novelty and Manufacturing Company and as such partners were engaged in operating the business known as Allen's Record Bar, located at the corner of 2nd Avenue and 18th Street North in the City of Birmingham, Alabama. In this place of business they offered goods for sale to the general public. The goods offered for sale included toys and hose for women. There were two entrances to the store for use by customers. One of these entrances was on Second Avenue and the other on 18th Street. The store fronted approximately 25 feet on Second Avenue. The store was arranged in two sections. In the front part of the store was the record bar and toys. In the back of the store was operated a juke box business. The general public was not invited into the part of the store where the juke boxes were stored and the plaintiff was not in this part of the store when she was injured.
The front part of the store was so arranged that it extended back about 50 feet from Second Avenue, from which point it then formed an L shape which extended to the 18th Street entrance. The plaintiff entered the store by way of the 18th Street entrance on the occasion of her alleged accident.
The store was equipped with asphalt tile floor laid in blocks. The company which had installed the floor had recommended that the floor be used a little while before it was waxed. The entire floor had been cleaned, waxed and highly polished several days before the plaintiff fell. This was the first time the floor had been waxed.
The plaintiff fell in the L shape portion of the store at a point about 10 or 15 feet from the 18th Street entrance to the store. In this L the defendants had children's sporting goods behind some showcases. In addition thereto they displayed some wheel goods (bicycles, wagons and tricycles) on the floor. These wheel goods had been moved when the floor was waxed and after the floor was waxed they had been placed back at this point on the floor. These wheel goods had remained there on the floor on display from the time that they had been placed back until the day the plaintiff fell.
The plaintiff fell in the store late in the afternoon. About noon that day or perhaps a little earlier the wheel goods had been removed from the floor where they had been displayed and were redisplayed in the window of the store. After the wheel goods were so moved, the place on the floor where they had been was not swept or cleaned up. The plaintiff slipped or fell on that part of the floor where the wheel goods had been displayed. The wheel goods had been displayed there for several days and trash had accumulated there. The defendants had opened some packages of dolls and some excelsior and waxed papers were on the floor there. The pieces of waxed paper were small, smaller than an inch in length and narrow like straw but some of them were 6 or 7 inches long. They were in plain view on the floor but a customer entering from the street could not see them until about five feet away on account of them being in the L. They could be seen as soon as one turned the L.
When the floor was waxed on the occasion prior to the accident self polishing wax was used. This was the first time the floor had been waxed after being laid. The floor was first cleaned, asphalt tile powder being used. It was then rubbed with steel wool *692 and dried with rags. After it was dry, the wax was applied. George Walker applied the wax. He was recommended for this work by the company which installed the floor. According to him this was the first coat of wax to be applied to the floor and "a heavy coat, a real heavy coat" was put on. Also according to him this made the floor "real slick" when it dried. On a new floor when a heavy coat of wax is put on it makes the floor "real slick." Asphalt tile when waxed is more slippery than rubber tile. In comparing rubber tile with asphalt tile the defendant's witness Morris Bloomenthal (the president of the company which installed the floor in the store of defendants) said: "Asphalt tile has little give and as a result when waxed it becomes somewhat slipperier than a rubber tile." He also said it was "right" that when an asphalt tile floor is waxed, it gets slick without buffing it with a machine. Morris Bloomenthal also testified that if wheel goods such as bicycles and tricycles were stored over a portion of the floor after it had been waxed and it was dry and not used by customers walking over it, when the wheel goods were removed the floor where they had been would have retained a lot of its sheen. According to him when such a floor is not walked on it will retain its sheen, but when it is walked on grit and dust will give it a non-skid element and people won't slip so much.
The floor was well lighted by means of flourescent lights. Plaintiff entered the store by means of the regular 18th Street entrance provided for customers. She entered the store for the purpose of purchasing some hose. She saw Clarence Allen there in the store and walked towards him, as it was customary for members of the family to make purchases from one of the members of the firm. She was looking ahead and not down at her feet when she proceeded into the store. As she was walking along and as she was approaching the place where she later fell, she saw some paper or bits of dirt scattered generally over an area of five or six feet square there in the rear section of the store. This was the area from which the wheel goods had been removed earlier that day. As she proceeded towards her brother-in-law, she stepped over certain parts of strips of paper and dust but she could not say whether she had stepped into certain parts of it. She was walking normally. In order to have avoided all of the paper she would have had to tiptoe through it. When she was a few feet away from her brother-in-law her foot slipped out from under her and she fell to the floor. After she had fallen and as she was getting up she saw some shredded papers excelsior typesome waxed paper and some newspaper there on the floor in the place where she had fallen. She had not seen that before she fell. She was wearing shoes with medium heels at the time. As a result of the fall she was bruised about the thigh and sustained a fractured left arm. She testified that the floor at the point where she slipped and fell was slick.
Assignments of error are based on the refusal of the court to give the affirmative charge for the defendants on their request, the ruling of the court in connection with other written charges requested by the defendants and the action of the court in overruling the motion for a new trial.
I. The duty of a storekeeper with respect to the condition of his place of business was stated by this court in Standard Oil Co. v. Gentry, 241 Ala. 62, 1 So. 2d 29, 31. "Plaintiff was upon the premises to purchase gasoline, and had gone to the office for the purpose of signing a credit ticket. He 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 his safety, but were under a duty to observe reasonable care to see that the premises were reasonably safe for him as he came in to make his purchase. F. W. Woolworth v. Ney, 239 Ala. 233, 194 So. 667, and authorities therein cited."
While there was no proof that improper or inferior wax was applied to the floor, there was proof that the waxing job was done in such a way that a heavy coat of wax was applied with the result that the floor was real slick. The floor of the store was a new asphalt tile floor. A short time *693 before the plaintiff slipped and fell the floor had been waxed for the first time. The plaintiff testified that when she fell the floor was slick at the place where she fell. The proof also showed that prior to the time that the floor had been waxed, some wheel goods (bicycles, tricycles, wagons, etc.) had been displayed there on the floor. In preparation for waxing the floor these goods had been removed. The floor was then waxed and then the wheel goods had been placed back at this point. They had remained there on the floor until noon on the day plaintiff was injured.
Not only was the floor slippery by reason of a heavy coat of wax being applied but also there were shredded waxed papers on the floor. The papers together with the presence of the wheel goods had protected the floor from abrasive substances so that the floor had retained the high sheen and unusual slipperiness caused by the application of the heavy coat of wax. These papers were on the floor from around noon until late afternoon and according to the proof the defendants knew that they were there. The proof showed that a customer entering the store could not see the papers on the floor until within a few feet of them.
The slick condition of the floor and the presence of the paper on the floor was sufficient to present a jury question as to whether the defendants exercised reasonable care to have the floor in a reasonably safe condition for the use of their customers. F. W. Woolworth & Co. v. Erickson, 221 Ala. 5, 127 So. 534; Great Atlantic & Pacific Tea Co. v. Miller, 229 Ala. 313, 156 So. 834.
The present case is distinguishable on the facts from the recent decision by this court in the case of Britling Cafeteria Co. Inc., v. Maylor, 254 Ala. 84, 47 So. 2d 187. In that case it was shown that there was no evidence that an employee of the storekeeper caused the green bean or other foreign matter to be on the floor at the place where the plaintiff had her accident. It was shown furthermore that there was no evidence that any employee of the storekeeper discovered foreign matter on the floor before the accident or was negligent in not doing so.
In the case at bar there is direct and positive proof that a heavy coat, a real heavy coat of wax was applied to the floor a short time before the plaintiff fell and there was direct and positive proof that there was waxed paper on the floor at the place where appellee fell, which had remained there from around noon until late in the afternoon. The proof showed that the defendants knew that this paper was there. The proof is positive and direct as to when the paper and the heavily waxed condition of the floor got there. The facts which were lacking in the case of Britling Cafeteria Co. v. Naylor, supra, could be found by the jury in the case at bar.
II. Furthermore it cannot be said as contended by appellants that the verdict was based on speculation and conjecture. In Griffin Lumber Co. v. Harper, 247 Ala. 616, 25 So. 2d 505, 509, this court said: "` * * * On the other hand, if there is evidence which points to any one theory of causation, indicating a logical sequence of cause and effect, then there is a judicial basis for such a determination, notwithstanding the existence of other plausible theories with or without support in the evidence.'"
III. It is contended that the evidence shows that the plaintiff was guilty of contributory negligence as a matter of law. This is based on the idea that the plaintiff testified upon cross-examination to the effect that she knew the floor had been waxed and that she had observed some papers scattered about the floor as she approached the place where she fell. It is true that the plaintiff testified on cross-examination that she knew a new floor had been put on the store and that she had been in the store one time since the floor had been waxed. On that one occasion however she had walked through the toy department in the front part of the store while on this occasion when she fell, she was in the back area of the toy department. As she was approaching the place where she later fell she observed some packing papers and trash scattered about the floor and she stepped over certain parts of it but couldn't say whether or not she had stepped into certain parts of it.
*694 It was not shown that the plaintiff knew of the slick condition of the floor in the area where she fell. She was walking along the passageway provided for the use of customers in a normal manner. She was looking ahead and not down at her feet. As she walked along she saw paper and trash on the floor over the general area ahead of her but she did not see what caused her to fall until after she had fallen and was getting up.
Assuming however that there was a conflict in her evidence on direct and cross-examination, yet this does not warrant the court to disregard her testimony. A question for the jury was presented. Alabama Power Co. v. Buck, 250 Ala. 618, 35 So. 2d 355; Jones v. Bell, 201 Ala. 336, 77 So. 998; St. Paul Fire & Marine Ins. Co. of St. Paul Minn. v. Crump, 231 Ala. 127, 163 So. 651.
Under all the evidence it was a question for the jury as to whether or not the plaintiff used due diligence for her own safety. It appears to be conceded that the jury was fully instructed by the court as to the duty of the appellee. The question of proximate cause and the issue of plaintiff's alleged contributory negligence were properly submitted to the jury under the evidence. Great Atlantic & Pacific Tea Company v. Miller, 229 Ala. 313, 156 So. 834.
IV. We have examined the evidence carefully and do not think that we can say that the preponderance of the evidence is clearly against the verdict of the jury. The judge refused to disturb the verdict of the jury on that ground and we see no reason to disturb the ruling. `Cobb v. Malone, 92 Ala. 630, 9 So. 738; Smith v. Smith, 254 Ala. 404, 48 So. 2d 546.
Other assignments of error have received our careful consideration but we find no merit in them.
The judgment of the lower court must be affirmed.
Affirmed.
LIVINGSTON, C. J., and FOSTER and LAWSON, JJ., concur. | April 5, 1951 |
84db567c-9560-4563-8247-16c16f18e5df | Ex Parte Hall | 50 So. 2d 264 | N/A | Alabama | Alabama Supreme Court | 50 So. 2d 264 (1951)
Ex parte HALL.
6 Div. 187.
Supreme Court of Alabama.
February 1, 1951.
Morel Montgomery, of Birmingham, for petitioner.
Chas. H. Brown, of Birmingham, for respondent.
LAWSON, Justice.
This is an original petition for writ of mandamus to require the Honorable George Lewis Bailes, as judge of the circuit of Jefferson County, to vacate an order granting to the City of Birmingham, in accordance with its request, a jury trial in a case pending in that court by virtue of an appeal *265 taken by petitioner from a conviction in the recorder's court of the city of Birmingham on the charge of vagrancy.
Upon the filing of the petition, respondent filed what is termed an answer. The issuance of the rule nisi was waived by agreement.
We forego any consideration of the question as to the appropriateness of the remedy. The appropriateness of the remedy seems to be conceded by the respective parties, who appear to be desirous of a decision on the merits.Ex parte State ex rel. McLaughlin, 250 Ala. 579, 35 So. 2d 507; Ex parte Whitt, 238 Ala. 33, 189 So. 71.
The case was submitted on the petition, the respondent's answer, petitioner's motion to strike the answer, and his replication to the answer. The motion to strike the answer is overruled. The replication to the answer need not be considered, inasmuch as the answer contains no averments of fact which can be controverted. The only effect of the answer is the statement by the respondent judge that he made and entered the order complained of in the petition, inasmuch as he was of the opinion that the ends of justice would be best served by a jury trial to determine the issues between the City of Birmingham and the petitioner. The petition contains an averment to the same effect as the respondent's so-called answer. As we view the case, it must be decided, in all respects, as if the answer had admitted the facts stated in the petition. We must look, therefore, to the averments of the petition to determine whether or not a case is made for the issuance of the writ of mandamus.
The petitioner, Sam Joseph Hall, Jr., was convicted on a charge of vagrancy in the recorder's court of the City of Birmingham on July 10, 1950. He perfected an appeal to the circuit court of Jefferson County. He made no demand for a jury trial in the circuit court. The cause was set for trial by the clerk of the circuit court on the non-jury docket. An order was entered to the effect that the cause be tried on November 14, 1950, before the respondent judge, Honorable George Lewis Bailes. No trial by jury having been demanded by the petitioner or by the City of Birmingham, the cause was called for trial before the respondent judge on November 14, 1950, and by agreement was continued to November 20, 1950. When the cause was called for trial on November 20, 1950, after the defendant had answered ready for trial, the City of Birmingham, by and through its counsel, demanded a trial by jury. The petitioner objected on the ground that he had not demanded a trial by jury; that the City of Birmingham was not entitled to demand a trial by jury; that even if the City was entitled to demand a trial by jury, it did not do so within the time required by law. The cause was continued to December 4, 1950, by the respondent judge. On December 4, 1950, the date to which the cause had been continued, the City of Birmingham renewed its request for trial by jury and, over the objection of petitioner, the respondent judge made and entered the following order:
"December 4, 1950, this cause coming on to be heard and the City of Birmingham, a Municipal Corporation, by oral motion in said open Court making demand for a jury in the trial of this cause; the Court is of the opinion that the ends of justice will be best served by a jury trial to determine the issues between said city and the defendant, and that the following order should be made.
"It is accordingly Ordered and Decreed that the City's motion and demand for a jury in this cause is hereby granted and this case is passed until the fifteenth day of January 1951 for trial."
The petitioner excepted to the order granting the trial by jury and moved that it be stricken. The motion to strike was overruled, and the petitioner excepted. The cause was continued to January 15, 1951, for trial.
The question is, did the respondent judge have the authority to order the trial by jury requested by the City of Birmingham?
It is fully settled with us that the constitutional right of trial by jury does not extend to trials for the violation of city ordinances.City of Birmingham v. Williams, 229 Ala. 101, 155 So. 877.
*266 The right of appeal to the circuit court and trial by jury on such appeal are purely statutory.City of Birmingham v. Williams, supra.
An appeal from the recorder's court to the circuit court is authorized by § 587, Title 37, Code 1940, which section reads as follows: "In any case involving the validity of an ordinance of the city, tried before the recorder, the council may take an appeal, without bond, to the circuit court or court of like jurisdiction; and in any case the defendant may take an appeal to such court by giving bond with good and sufficient sureties, payable to the city, to be approved by the recorder or officer trying the case, conditioned to be void if the defendant appears before said court, until discharged by law to answer said charge, but unless such bond be given within five days from the date of the judgment, no appeal shall be allowed from such judgment. An appeal bond for more than three hundred dollars shall in no case be required, but when sitting as a committing magistrate, any reasonable bond may be required. The case appealed shall be tried de novo in such court, and the judge or jury trying such cause is authorized to impose upon the person convicted such punishment by fine, or imprisonment in the city jail, or other place of confinement, or hard labor for the city, or by fine and imprisonment, as the court or jury may deem proper and is authorized by law or ordinance for such offenses. When an appeal is taken, as provided for herein, said appeal shall be filed by the city in the court to which said appeal is returnable within sixty days; and if the city shall fail to file said appeal within said time, the city shall be deemed to have abandoned the prosecution of said cause, and the defendant shall not be required to further answer or appear, and the bond shall thereafter be void." (Emphasis ours.)
We have held that the employment of the terms "judge" and "jury" was with a view to including in the rule of the statute trials of both kinds, those by the court or judge without a jury and those when a jury is had.Thomas v. City of Mobile, 203 Ala. 96, 82 So. 110.
But § 587, Title 37, supra, does not provide how a jury trial is obtained or when the request for jury trial must be made. However, § 464, Title 37, Code 1940, has been held to govern proceedings in the circuit court on appeal from the recorder's court.Ex parte McElroy, Judge et al., 241 Ala. 554, 4 So. 2d 437. Section 464, Title 37, supra, provides in part that appeals from recorder's court are governed in all respects by the laws regulating appeals from judgments of justices of the peace in criminal cases. And § 429, Title 13, Code 1940, in turn provides that: "The trial on appeal from a judgment rendered by a justice, shall be de novo, and shall be governed in all respects by the rules and regulations prescribed for the trial of appeals from the county court."
Section 326, Title 13, Code 1940, which relates in part to trials in the circuit court on appeals from the county courts, provides as follows: "All trials or prosecutions instituted in all such county courts shall be begun upon affidavit and warrant as provided in this chapter and shall be tried by the judge of such court without a jury, and the judge shall determine both the law and the facts, and in cases of conviction the defendant shall have the right to appeal to the circuit court, and a jury trial may there be had on demand of the defendant as prescribed by law." (Emphasis supplied.)
It appears, therefore, that there is no statutory authorization for a municipality to demand a jury trial in the circuit court in a case appealed to that court by a person convicted in the recorder's court of violating a municipal ordinance.
While a prosecution for violation of a city ordinance is quasi criminal only, Sears, Roebuck & Co. v. Alexander, 252 Ala. 122, 39 So. 2d 570, we think the rule announced in Baader v. State, 201 Ala. 76, 77 So. 370, 371, is applicable. In that case Baader was brought to trial in the county court of Cullman County. The local act affecting that court provided, in part, "It shall be the duty of the judge of the county court to hear counsel and decide cases without a jury, unless a jury is demanded; * * *." Baader waived a jury trial and insisted that he be tried by the judge of said court without a jury. The State demanded a trial by jury and it was granted. The opinion of this court holding in effect *267 that the trial court erred in granting the State's request for a jury trial, concludes with the following language: "The substitution of a jury trial by the judge of the court at the instance of the state in the case at bar was an unauthorized exercise of a supposed judicial discretion; it finding no support in the Constitution or in the statutes."
The respondent judge was without authority to order a jury trial in the case at bar at the request of the City of Birmingham.
The writ of mandamus will issue as prayed.
Writ awarded.
FOSTER, SIMPSON, and STAKELY, JJ., concur. | February 1, 1951 |
e906135e-f5d2-49e7-8a8c-a00f02b2ebd3 | In Re Opinion of the Justices. | 54 So. 2d 68 | N/A | Alabama | Alabama Supreme Court | 54 So. 2d 68 (1951)
In re OPINION OF THE JUSTICES.
No. 126.
Supreme Court of Alabama.
August 20, 1951.
Whereas, there is now pending in the Legislature of Alabama House Bill No. 800 (copy of which is attached hereto), authorizing the formation of a public corporation for the purpose of completing the *69 construction and equipment of the coliseum building located in the Alabama Agricultural Center, together with necessary related facilities, authorizing the State to convey to said corporation the said building and the land in the said Center, and authorizing said corporation to issue its bonds for the purpose of financing such construction and equipment and to lease the said building and related facilities to the Agricultural Center Board; and
Whereas, there is also pending in said Legislature House Bill No. 801 (copy of which is attached hereto), authorizing the Agricultural Center Board to lease from said corporation the coliseum building and related facilities; and
Whereas, important constitutional questions are presented by said House Bills;
Now, therefore, be it resolved by the House of Representatives 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 the public corporation authorized to be created by House Bill No. 800 constitute debts of the State of Alabama within the meaning of Section 213 of the Alabama Constitution?
2. Will the conveyance by the State of Alabama of the uncompleted coliseum building, together with the lands in the Alabama Agricultural Center, to said public corporation, pursuant to the provisions of House Bill No. 800, violate Section 99 of the Alabama Constitution?
3. Will the agreement of lease provided for in the said two House Bills constitute a debt of the State of Alabama within the meaning of Section 213 of the Alabama Constitution?
4. Do the said two House Bills authorize the state to be engaged in works of internal improvement or to be interested in any private or corporate enterprise or to lend money or its credit in aid of any thereof within the meaning of Section 93 of the Alabama Constitution?
House Bill No. 800 provides that the Governor, the Commissioner of Agriculture and Industries and the Director of Finance may become a corporation, the name of which shall be Alabama Agricultural Center Corporation, or other name if that be not available, and specifies how incorporation shall be effected.
Pertinent sections of the Bill are as follows:
Section 7. Powers of the Corporation. The corporation shall have the following powers, together with all powers incidental thereto or necessary to the discharge thereof in corporate form: to have succession by its corporate name until dissolved as hereinafter provided; to sue and be sued and to prosecute and defend suits in any court having jurisdiction of the subject matter and of the parties; to make use of a corporate seal and to alter the same at pleasure; to acquire from the state, and hold title to, the coliseum and the land in connection therewith in the City of Montgomery as hereinafter provided, together with all rights incidental to its estate in such property; to improve the land to acquired and to complete the construction of and equip the coliseum and make all contracts necessary to that end; to sell and issue and do all things incidental to the sale and issuance of its interest bearing revenue bonds to the extent and for the purpose hereinafter set out; and to secure such bonds by pledge of the rentals from the leasing of its properties and to execute any instrument or instruments which its board of directors may deem necessary or desirable in connection with such pledge; and to contract, lease and make lease agreements as hereinafter provided respecting its properties.
Section 8. Conveyance to Corporation by State. The Governor is authorized and directed to execute and deliver, in the name of and in behalf of the state, immediately before or simultaneously with the delivery by the corporation of the first bonds of the corporation which are sold hereunder, an appropriate deed whereby there will be conveyed to the corporation the coliseum together with the lands *70 in the Alabama Agricultural Center in the City of Montgomery. Upon delivery of such deed to the corporation it shall there upon be vested with all title and rights which the State of Alabama has in the property conveyed thereby, subject to the right of reverter to the state provided for in Section 20 hereof upon dissolution of the corporation. It is hereby recognized that if the conveyance herein provided for is not made, the coliseum will remain uncompleted, and it will be in the public interest for the said conveyance to be made so that the corporation may complete and equip the coliseum.
Section 9. Lease of Properties of the Corporation. The corporation is authorized to enter into a lease agreement with the board whereunder all or any part of the properties of the corporation shall be leased to the board for a period not later than the last maturity of any bonds which may be issued by the corporation pursuant to the provisions hereof. The said lease agreement shall provide for the payment by the board, as rental for the said properties, of an amount sufficient to pay, as the same respectively mature, the principal of and interest on the bonds of the corporation and to create and maintain a reserve therefor, and shall require the board, as additional rental, to pay the premiums on all proper insurance covering the coliseum and all expenses necessary to keep the coliseum in good repair. The said lease agreement may contain such other provisions and agreements not inconsistent with the provisions of this act as the corporation and the board may agree.
Section 10. Bonds of the Corporation. The corporation is authorized to issue its interest bearing revenue bonds, not exceeding $1,250,000 in aggregate principal amount, solely for the purpose of completing the construction and equipment of the coliseum. All bonds issued by the corporation shall be limited obligations of the corporation the principal of and interest on which shall be payable solely out of the rentals payable under said lease agreement. None of the bonds of the corporation shall ever constitute an indebtedness of the state or a charge against the credit of the state or its taxing powers. The bonds of the corporation may be authorized and issued at any time and from time to time, may be in such form and denominations, may be of such tenor, may be in registered or bearer form either as to principal or interest or both, may be payable in such installments and at such time or times not exceeding forty years from their date, may be payable at such place or places, may bear interest at such rate or rates payable and evidenced in such manner, all as shall not be inconsistent with the provisions of this act and as may be provided in the proceedings of the board of directors of the corporation whereunder said bonds shall be authorized to be issued. The corporation may retain an option or options to redeem all or any part of such bonds at such time or times, at such price or prices, after such notice or notices, and on such terms and conditions as may be provided in the resolution of the board of directors of the corporation wherein the bonds shall be authorized to be issued and as shall be briefly summarized in the face of such bonds. All such bonds may be sold at either public or private sale in such manner and from time to time as may be determined by the board of directors of the corporation to be most advantageous. The corporation may pay all expenses, premiums and commissions which its board of directors may deem necessary or advantageous in connection with the authorization, sale and issuance of its bonds. All bonds issued by the corporation and all interest coupons applicable thereto shall be construed to be negotiable instruments, despite the fact that they are payable solely from a specified source. All bonds issued by the corporation shall contain a recital that they are issued pursuant to the provisions of this act, which recital shall be conclusive evidence that the said bonds have been duly authorized pursuant to the provisions of this act.
Section 12. Pledge for Bonds. In the proceedings authorizing the issuance of its bonds the corporation is hereby authorized and empowered to pledge the said lease agreement and the rentals required to be *71 paid thereunder for payment of the principal of and interest on its bonds, and to agree to use solely for such purpose all rentals payable to the corporation from said lease agreement. Such pledge when made shall create a lien on all rentals required to be paid to the corporation under the provisions of the said lease agreement. The said rentals are hereby separated from the ownership of the properties of the corporation to such extent as may be necessary to preserve inviolate the priority and enforceability of the said pledge and lien. Upon the issuance of any bonds by the corporation it shall cause to be filed in the office of the Judge of Probate of Montgomery County, Alabama, an instrument reciting the issuance of the said bonds and the pledge of said rentals and the creation of the said lien as security for the bonds so issued, and the filing of such instrument shall constitute constructive notice of the pledge and lien referred to therein.
Section 20. Dissolution of the Corporation. When all bonds issued by the corporation and all obligations incurred by it under the provisions of and within the limitations contained in this act shall have been fully paid, the then president of the corporation shall thereupon execute and deliver in the name of and in behalf of the corporation an appropriate deed, to which the seal of the corporation shall be affixed and attested by the secretary of the corporation, whereby there shall be conveyed to the State of Alabama all properties then owned by the corporation. The then members of the board of directors of the corporation shall at such time file with the Secretary of State a written statement, subscribed and sworn to by them, reciting payment in full of all bonds of the corporation and all obligations incurred by it under the provisions of this act and the execution and delivery of said deed to the state, which statement shall thereupon be recorded by the Secretary of State with the certificate of incorporation of the corporation, whereupon the corporation shall stand dissolved.
House Bill No. 801 is in part as follows: Section 2. Authorization of Lease. The Agricultural Center Board is hereby authorized and empowered to enter into an agreement with the corporation under which agreement all or any part of the properties of the corporation shall be leased to the board. The lease agreement shall begin upon the completion of the construction and equipment of the coliseum and the necessary facilities in connection therewith and shall extend for such period of time as may be agreed upon by the board and the corporation; provided, that it shall not extend for any period later than the last maturity of any bonds which may be issued by the corporation. The lease agreement shall provide for the payment by the board, as rental for the properties covered thereby, of an amount sufficient to pay, as the same respectively mature, the principal of and interest on all bonds issued by the corporation and to create and maintain a reserve therefor, and shall require the board, as additional rental, to pay the premiums on all proper insurance covering the said properties and the equipment therein and all expenses necessary to keep the said properties in good repair, and may contain such other provisions and agreements not inconsistent with the provisions of this act and the laws of the state as the board and the public corporation may agree.
Section 3. Operation of Properties Leased. Upon securing possession of the properties covered by the lease agreement, the board is authorized to and shall thereafter operate, manage and control the said properties for the purpose of conducting or permitting to be conducted thereat livestock shows, agricultural and industrial displays, markets, and other exhibits and events related thereto, and to make contracts with individuals, livestock associations, and other organizations for the conduct of such shows, displays, markets, exhibits and events related thereto. The board is authorized to make such charges for and in connection with any of said matters as will produce revenues sufficient to pay the rentals required to be paid by the board under the lease agreement and to pay the reasonable expenses of operating the said properties and the board's administrative expenses including *72 salaries and per diem, all to the end that the said properties shall be self-supporting; provided, however, that such charges shall not be made with a view of producing any revenue or profit to the board or to the State of Alabama but shall be based exclusively upon the rentals required to be paid by the board under the lease agreement, the reasonable expenses of operating the properties covered thereby, and the board's administrative expenses. It is hereby declared that it is not intended that this act shall be interpreted as authorizing the board to engage in the business of selling or marketing livestock or products of any kind, or in what may be termed a brokerage business, or to compete with private enterprise. In the event the revenues derived during any fiscal year of the board from the operation of the properties covered by the lease agreement should be in excess of the said rentals and operation and administration expenses payable during the same fiscal year, then the said charges shall be adjusted for the ensuing fiscal year in such manner as to avoid as far as may be practicable the production of any excess over the amount necessary to pay the said rentals and operating and administrative expenses payable during such ensuing fiscal year. If during any fiscal year the said charges should produce any such excess, then such excess shall be used to make advance payments on the rentals payable under the lease agreement.
Section 4. Appropriations for Rentals and Expenses. The collection of all such charges made by the board shall be deposited monthly in the State Treasury to the credit of a special fund therein designated the Agricultural Center Fund, and shall be used solely for the payment of the rentals payable under the lease agreement and the said operating and administrative expenses. So much of the moneys in the Agricultural Center Fund as may be necessary therefor are hereby appropriated for said purposes. In the event the revenues derived from the operation of the properties covered by the lease agreement should not be sufficient to pay, as the same respectively mature, the rentals required to be paid by the board under the provisions of the lease agreement and to pay the said operating and administrative expenses, there is hereby appropriated and ordered set aside in each fiscal year during the term of the lease agreement, solely out of moneys accruing to the Agricultural Fund under the provisions of Section 31 of Title 2 of the Code of 1940, such amount as, when added to the moneys in the Agricultural Center Fund derived during that fiscal year from the operation of the properties covered by the lease agreement, shall be sufficient to pay the said rentals and the said operating and administrative expenses payable during each such fiscal year. The board is hereby authorized to pledge in the lease agreement for payment of said rentals so much as may be necessary for such purpose of the moneys herein required to be paid into the Agricultural Center Fund. The moneys so appropriated for the payment of the said rentals shall be transferred by the State Treasurer to the credit of the corporation from time to time as may be necessary to pay said rentals. All other withdrawals from the Agricultural Center Fund shall be made upon requisition by the chairman of the board to the State Comptroller and upon warrant drawn by the State Comptroller upon the State Treasurer. Nothing herein contained shall be construed to estop or prevent the legislature at any time and from time to time in the future from altering the amounts and rates of the fees, licenses, fines, penalties and charges, the collections from which may now or hereafter be required by law to be paid into the Agricultural Fund, or from abolishing any thereof, or substituting others therefor, or adding others thereto, as the legislature in its discretion may from time to time deem advisable.
Section 5. Lease Not to Constitute Debt of State. The lease agreement shall never in any event constitute or give rise to an indebtedness of the State of Alabama and no recourse shall ever be had against the general credit of the state or against its general funds for payment of said rentals. The rentals provided for in the lease agreement shall be payable solely out of the moneys in the Agricultural Center Fund *73 derived from the operation of the properties covered by the lease agreement and, to the extent such moneys are not sufficient to pay said rentals and to pay the said operating and administrative expenses, out of the moneys in the agricultural fund herein appropriated for said purposes. No moneys at any time in the General Fund of the state shall ever be used for payment of said rentals.
Wm. Alfred Rose and Ellene Winn, Birmingham (Alex S. Lacy and White, Bradley, Arant, All & Rose, all of Birmingham, of counsel), filed brief amici curiae.
To the Members of the Alabama House of Representatives State Capitol Montgomery, Alabama
Sirs:
Re: House Resolution No. 69 proposing constitutional questions relative to pending House Bills numbered 800 and 801.
In view of certain recent Opinions each question propounded in your inquiry is due a negative answer, although perhaps it can be said with justification that there has been some laxness of expression in these later opinions which may have trenched on earlier cases interpreting some of the considered constitutional provisions.
As preface to this opinion we will advert to certain antecedent legislation leading to the acquisition and construction of the coliseum property. The Legislature passed in 1945 two acts which manifested its intention that the Building Commission out of the funds appropriated to it should allocate, if possible, one million dollars for the purpose of constructing a livestock coliseum, which when constructed was to be operated by the Agricultural Center Board for the purposes specified in the Agricultural Center Board Law. These acts will be found in General Acts 1945, Regular Session, p. 116, §§ 367(1)-367(4), Title 55, Code of 1940, Cum. Pocket Part and General Acts 1945, Regular Session, p. 447, §§ 678-684, Title 2, Code of 1940, Cum. Pocket Part. The first act was the Building Commission Law and the second the Agricultural Center Board Law. These acts were approved by the Governor subsequent to an Opinion of the Justices in response to a request from the Governor concerning the constitutionality of Act No. 32, approved May 21, 1943, General Acts 1943, p. 25, §§ 415(1)-415(8), Title 2, Code of 1940, Cum. Pocket Part, which we will call the Alabama State Markets Board Act. In re Opinion of the Justices, 247 Ala. 66, 22 So. 2d 521. That opinion expressed the view that the Markets Board Act, so far as it provided for the acquisition, equipment, operation and maintenance of a public market or markets was not violative of Section 93 of the Constitution prohibiting the State from engaging in works of internal improvement, etc. Manifestly the Governor in giving approval to the Building Commission Law and the Agricultural Center Board Law passed in 1945 must have been influenced by the foregoing opinion of the justices to the extent of concluding that the construction and operation of the livestock coliseum would likewise not be considered an internal improvement within the meaning of Section 93 of the Constitution.
On July 11, 1946 the Building Commission under the 1945 Building Commission Law allocated the sum of five hundred thousand dollars to construct the livestock coliseum. The Governor appointed the Agricultural Center Board on July 25, 1946. The Governor approved the General Appropriations Act for the two fiscal years ending respectively September 30, 1948 and September 30, 1949. Gen. Acts 1947, p. 183. This act became effective October 1, 1947, and by it there was appropriated out of the Agricultural Fund in the state treasury two hundred fifty thousand dollars for the purpose of supplementing the funds earmarked in the Building Commission Act of 1945. (The Agricultural Fund referred to above is the fund provided in Title 2, Article 4 of Chapter 1 of 1940 Code of Alabama, accruing to the Department of Agriculture from inspection fees and the like out of which the Department operates. Generally speaking all monies appropriated to the Department of Agriculture seemingly comes from the Agricultural Fund.) Thereafter on September 25, 1947 the *74 Governor approved Act No. 525, General Acts 1947, Regular Session, p. 384, which further provided for the construction and equipment of an Agricultural Center in Montgomery and appropriated to the Building Commission aforesaid out of any monies remaining in the general fund of the State not otherwise appropriated as of September 30, 1947, the sum of two hundred fifty thousand dollars to be repaid from the Agricultural Fundthis sum likewise to be used for the acquisition and construction of the coliseum property. Thus has the Legislature made available for the purpose of constructing and equipping the said agricultural center the sum of a million and five hundred thousand dollars. And the Building Commission has allocated for that purpose the full amount which the Legislature indicated might be used for such purpose. Construction began in March 1949 and work stopped in 1951 when all available funds had been used. It is quite obvious from the recitations in the acts now in question that the coliseum is in a rather serious state of incompletion and must remain so unless more money is made available, and that the two House Bills numbered 800 and 801 have for their purpose the completion of this facility.
Section 213. The first question, whether or not bonds issued by the proposed corporation would constitute debts of the State within the purview of Section 213 of the Constitution has been negatively answered in our recent decisions in Opinions of the Justices, 252 Ala. 465, 41 So. 2d 761, Id., 254 Ala. 506, 49 So. 2d 175, and in Norton v. Lusk, 248 Ala. 110, 26 So. 2d 849, and in earlier decisions therein cited. We there recognized the established principle that a public corporation is a separate entity from the State and that debts of such corporation are not debts against the State within the meaning of Section 213 of the Constitution. The corporation act specifically confines the lien of its bonds to the rentals and if not sufficient the deficit to be paid from the Agricultural Fund and they shall not in any manner constitute an obligation of the State or its taxing power. It is of some significance that no lien may attach to the coliseum property as security for payment of the revenue bonds.
Some suggestion has been made in consultation that for the State to convey the coliseum property which it is sought to be assumed produces some revenue in its present incompleted state and for the public corporation to then pledge the entire revenue when the property is completed to the payment of the revenue bonds would constitute a debt within the meaning of Section 213 of the Constitution. We can rationalize no distinction between the status treated in Opinion of the Justices, 252 Ala. 465, 41 So. 2d 761 and that here presented. In that opinion we dealt with and approved a proposed conveyance by the State to the Alabama State Employment Security Corporation of land adjacent to or in the vicinity of the capitol. We did not predicate any conclusion upon our opinion with reference to the income producing potentiality of the facility to be conveyed to the public corporation dealt with in that opinion and there was no evidential data respecting the property's present or potential value as income producing. Here, however, we do have specific data indicating that the coliseum property produces no net revenue since the Act pursuant to which the facility was acquired and constructed specifically provides that the income from its utilization "shall not be made with a view of producing any revenue or profit * * *, but shall be based exclusively upon reasonable cost of operation and maintenance * * *." Act No. 282, General Acts 1945, p. 447, § 2.
We deem it not out of place to mention also that if said bill is duly passed in pursuance of valid legislative procedure and approved by the Governor, it will in effect become the law of Alabama, and in legal effect the provisions of the act will be written into the bonds issued thereunder and become a part of the contract between the purchasers of the bonds and the corporation. On its face it positively provides that said bonds shall not become a debt of the State nor a charge against its general credit, or its taxing power. Therefore *75 all persons dealing in respect to such bonds must take notice of these provisions which the legislature intends to govern the validity of said bonds.
Section 99. The second question is whether conveyance by the State to the public corporation of the lands in the Agricultural Center and the partially completed coliseum thereon would offend Section 99 of the Constitution prohibiting donation of State lands to private corporations, associations or individuals. Quite obviously this query is due a negative answer since the proposed corporation is not within the category of prohibited corporations, associations, individuals, etc., but is a public corporate entity to be created by the State under which circumstances there is no inhibition against conveyance of State owned lands to it. Ala. State Bridge Corp. v. Smith, 217 Ala. 311, 116 So. 695; Opinions of the Justices, 252 Ala. 465, 41 So. 2d 761, Id., 254 Ala. 506, 49 So. 2d 175.
Section 213 of the Constitution relative to the lease agreement. The third question is whether or not the lease agreement provided for in the two said house bills would constitute a debt of the State inhibited by said Section 213 of the Constitution. A similar question was answered negatively in said Opinion of the Justices in 252 Ala. 468, 41 So. 2d 771, and the question here posed is also answered in the negative. There it was proposed in one act to create the Alabama State Employment Security Corporation with power to erect an office building on lands to be donated by the State and to issue bonds secured by rentals to secure a loan of money with which to make the construction. A companion measure provided for the leasing of quarters in the building to State agencies, among them the Department of Industrial Relations; the rents to be paid out of funds appropriated to them for that purpose and out of grants from the Federal Government; and providing that in event of a deficiency due to the failure of the Legislature in any fiscal year to make the necessary appropriation and if the Federal grant should be insufficient to pay the rentals then there should be diverted from the clearing account of the Unemployment Compensation Fund a sufficient amount accruing from interest and penalties as should be necessary to make up any rental deficiencies. Additionally it was provided that certain other funds inuring to the credit of the Department of Industrial Relations under Article 12, Title 51 of the Code of 1940 should be likewise diverted and devoted to the payment of the rentals to the corporation in case of such deficiency. We sustained that provision of the act, Section 3, for pledging the fund derived from the Unemployment Compensation Fund, subject to restrictive provisions in Sections 213 and 44 of the Constitution, but we held that funds arising out of Article 12, Title 51 were by statute required to be covered into the state treasury to the credit of the general fund and that they could not be pledged because in violation of Section 213 of the Constitution. The "Board Act" here in question provides that the rentals shall be made payable solely out of monies of the Agricultural Center Fund consisting of revenue derived by the Board from operation of the coliseum but that to such an extent, if any, as such revenue may not be sufficient to pay said rentals plus operation and administrative expenses of the Center Board solely out of monies accruing to the Agricultural Fund. Code 1940, Title 2, § 31. This proviso is no more violative of Section 213 of the Constitution than was § 3 above referred to in 252 Ala. 468, 41 So. 2d 771.
As regards the utilization of monies from the Agricultural Fund to make up such deficiency it is appropriate to point out, as we did in 252 Ala. 468, 471, 41 So. 2d 771, that Sections 213 and 44 of the Constitution must be read into the proviso so that the pledge there provided for is restricted as not to deplete the Agricultural Fund in any given fiscal year in a manner which would abridge the proper administration of the Agriculture Department out of that fund within the purview of Chapter 1, Article 4, Title 2, Code 1940, nor to affect the power of future Legislatures to repeal or amend the law providing for the fund. The bill (H.B. 801, Section 4), the provisions of which must be read into the lease, in effect so provides.
*76 Section 93 of the Constitution. The fourth and final question is whether the proposed acts would authorize the State to be engaged in works of internal improvement or to be interested in any private or corporate enterprise or to lend money or its credit in aid thereofprohibited by Section 93 of the Constitution. We referred to this item in our "preface" supra, and it is our view that the question has been negatively answered in an Opinion of the Justices reported in 247 Ala. 66, 22 So. 2d 521, which dealt with an act creating the Alabama State Markets Board. There we were considering an act, General Acts 1943, p. 25, Code 1940, Tit. 2, § 415(1) et seq., which created the Alabama State Markets Board authorizing it to acquire lands, structures, facilities and equipment suitable for the inspection, grading, standardization, classification, refrigeration, dehydration, canning, packing, processing, cold storage and marketing of agricultural products, and to lease space and facilities in such structures and to make charges for services and facilities. In that act funds for carrying out its purposes were appropriated out of both the Agricultural Fund and out of the general fund of the State. We there held that the construction of marketing facilities by the Board was not works of internal improvement; that the act did not have the effect of engaging the State in works of internal improvement or making the State interested in a private or corporate enterprise in contravention of Section 93 of the Constitution. Our conclusions were predicated upon a consideration that the Markets Act was within the police power of the State. The proposed acts here involved like the statutes involved in the Markets Board opinion disclaim any purpose to operate the coliseum property with a view of producing any net revenue or profit. The Markets Acts had for their purposes the development and promotion of agriculture as one of the State's main sources of income. The present proposed acts declare the same purpose with respect to livestock. If there be any difference in essence between the two enterprises we think it to be a difference without distinction, the difference between twiddledum and twiddledee. If the one be not engaging in works of internal improvement the other cannot be, the only difference being that one deals with agricultural products, the other with livestock products. A significant feature of said Markets Acts was that to carry out their purposes appropriations were made out of the general fund. In the coliseum acts two public agencies are created for the purpose of carrying out the works involved and charged with the responsibility of producing the revenue and providing the security for the money proposed to be borrowed. The only fund other than rental subject to appropriation for the purposes of the act, and that contingently, are those in the separate Agricultural Fund with which, under the statute creating the fund, no other department or agency of the state may have any concern. In the opinion last supra we again pointed out, just as this court has done in all other cases involving an application of Section 93 of the Constitution, the evils at which this section of our organic law was directed, namely the financial disaster which resulted to the State through prodigal acts of reckless officials by the involvement in enterprises belonging alone to private enterprise. In this proposed plan there is no involvement of the State's general revenues for the pledging of the State's credit to any thing and being so we do not think it can be soundly contended that the provisions in any wise offend Section 93 of the Constitution.
To the House of Representatives
Capitol
Montgomery, Alabama
Dear Sirs:
Responding to House Resolution No. 69 embodying an inquiry as to pending House Bill No. 800 and House Bill No. 801, this opinion is limited to your inquiries Nos. 1, 2, 3, and 4.
*77 I deem it appropriate to observe that inasmuch as this legislation has not been passed and its constitutionality approved by the legislature the usual presumption in favor of an act of the legislature which has become the law by passage and approval of the Governor, is not here pertinent.
However, I deem it not out of place to observe that the Justices are not in unanimous accord as to the authority of the legislature to embody the Governor and the members of his cabinet whose duty it is to deal with and protect the financial interest of the state and who under the constitution should not be formed into a corporation antagonistic to the state's interest. See Opinion of the Justices, 247 Ala. 195, 203, 23 So. 2d 505, wherein the writer differs with the majority of the Justices and states his views in respect thereto, 247 Ala. commencing on page 199 and concluding on page 203, 23 So.2d page 508 and concluding on page 512, in his opinion.
Therefore as a basis for this response the writer adopts the "summary of the pending bill and pertinent statutory provisions" stated in the brief "Amici Curiae" filed on this inquiry, as follows:
"The questions propounded by the House of Representatives deal with the constitutionality of the `corporation bill' and the `board bill', two related bills setting up an arrangement for completing the construction and equipment of the presently uncompleted coliseum building located in the Alabama Agricultural Center at Montgomery.
"The `corporation bill' contains findings by the Legislature that agriculture, dairying, and the raising of livestock together constitute the principal sources of income to the people of this state, that the further development of those pursuits is in the public interest, and that the said coliseum building was designed for use in the education of the inhabitants of the state in those pursuits. That bill authorizes the creation of a public corporation, composed of the Governor, the Commissioner of Agriculture and Industries, and the State Director of Finance, for the purpose of completing the construction and equipment of the said coliseum building and related facilities; authorizes the conveyance to the said corporation by the state of the coliseum building in its present uncompleted condition, together with the lands in connection therewith; authorizes the issuance by said corporation of its revenue bonds, not exceeding $1,250,000 in principal amount for the purpose of completing the said construction and equipment, such bonds to be payable solely out of rentals received by said corporation from the lease of its coliseum properties; and authorizes the lease of said properties to the Agricultural Center Board, an agency heretofore created by Act No. 282, adopted at the 1945 Regular Session of the Legislature.
"The `board bill' authorizes the Agricultural Center Board to lease from the said public corporation the coliseum building and related facilities under an agreement extending not later than the last maturity of the corporation's bonds for a rental sufficient to pay the principal of and interest on the bonds, to create a reserve for such purpose, and, as additional rental, payment of the premiums on proper insurance covering the leased properties and of all expenses necessary to keep them in good repair. The board is further authorized to operate, manage, and control the coliseum properties for the purpose of conducting and permitting to be conducted therein livestock shows, markets, agricultural displays and other exhibits and related events, and to make such charges for the use of the coliseum properties as will produce revenues sufficient to pay the said rentals (including the payment of insurance premiums and the payment of maintenance costs), and to pay the operating and administrative expenses of the board. The `board bill' provides that the charges shall not be greater than are required to produce amounts sufficient to pay said rentals and said operating and administrative expenses and states in Section 3 thereof: "It is hereby declared that it is not intended that this act shall be interpreted as authorizing the board to engage in the business of selling or marketing livestock or products of any kind, or in what may be termed a *78 brokerage business, or to compete with private enterprise.'
"The `board bill' provides that rentals under the said lease shall be payable solely (a) out of the revenues derived from the operation by the board of the coliseum properties and (b), to such extent as the said revenues may not be sufficient in any fiscal year to pay said rentals and the board's operating and administrative expenses, out of moneys accruing to the Agricultural Fund pursuant to Section 31 of Title 2 of the Alabama Code of 1940. Section 5 of the `board bill' reads in part as follows: "`The lease agreement shall never in any event constitute or give rise to an indebtedness of the State of Alabama and no recourse shall ever be had against the general credit of the state or against its general funds for payment of said rentals * * *. No moneys at any time in the General Fund of the state shall ever be used for payment of said rentals.'
"The Agricultural Center Board was created by the said Act No. 282, General Acts, 1945, p. 447, and is charged therein with the management and control of any facility or coliseum that might be constructed for the purpose of housing livestock shows, agricultural and industrial displays, and other exhibits. The Agricultural Center Fund, originally created in the said Act No. 282 and provided for also in the `board bill', is a special fund in which are required to be deposited all proceeds from the charges made by the board for the use of the coliseum properties. The moneys therein are required by the `board bill' to be used solely to pay rentals under the said lease agreement and the operating and administrative expenses of the board.
"The Agricultural fund is provided for in Article 4 of Chapter 1 of Title 2 (Sections 31-36) of the Code of Alabama of 1940. Section 31 of said Title 2 provides for the accrual to the Agricultural Fund of moneys collected from fees, licenses, fines, and penalties provided for in Chapter 1 of the said Title 2. The fees, licenses, and charges provided for in said Chapter 1 include such items as fertilizer inspection fees, kerosene inspection fees, warehouse permits, poultry inspection fees, seed testing fees, and similar fees, and in general, by whatever terms they may be designated, are in the nature of charges for services rendered by the Department of Agriculture and Industries. The fines and penalties provided for in the said Chapter 1 are imposed for violations of legal requirements respecting agricultural standards and practices. Article 2 of the said Chapter 1 provides for the use of the moneys in the Agricultural Fund for payment of the expenses (including salaries) of the Department of Agriculture and Industries.
"The `board bill' appropriates, solely out of the moneys accruing to the Agricultural Fund under the provisions of Section 31 of the said Title 2, an amount in each successive fiscal year equal to the amount, if any, by which the rentals under the said agreement of lease plus the operating and administrative expenses of the Agricultural Center Board exceed the amount of the revenues from that board's operation of the coliseum properties."
Question 1. "Will bonds issued by the public corporation authorized to be created by House Bill No. 800 constitute debts of the State of Alabama within the meaning of Section 213 of the Alabama Constitution?"
The coliseum property, the subject of this and other advisory opinions this day filed, at this time is the property of the state acquired by purchase and by construction through an appropriation of public funds amounting to $1,500,000, which has been in operation and producing sufficient income to pay the agencies of the state for operating the same. The bill proposes and requires the Governor to deed this property to the corporation set up therein and authorizes the pseudo corporation to issue bonds to the amount of $1,250,000 for the completion of the project, reserving to the state the right to own the property when said bonds are amortized. This property as it is now constituted, the act contemplates, shall be put to use for earning an income to amortize the bonds. I am therefore of opinion that it is a state project and the transaction outlined by *79 the proposed acts will constitute a debt in violation of § 213 of the Constitution of 1901. The legislative declaration to the contrary is inconsistent with the facts.
Question 2. "Will the conveyance by the State of Alabama of the uncompleted coliseum building, together with the lands in the Alabama Agricultural Center, to said public corporation, pursuant to the provisions of House Bill No. 800, violate Section 99 of the Alabama Constitution?"
I assume from this inquiry that the state at present owns and has the legal title to the lands and the building situated thereon. Section 99 of the Constitution provides in part,
"Lands belonging to or under the control of the state shall never be donated, directly or indirectly, to private corporations, associations, or individuals, or railroad companies; nor shall such lands be sold to corporations or associations for a less price than that for which they are subject to sale to individuals; provided, that nothing contained in this section shall prevent the legislature from granting a right of way, not exceeding one hundred and twenty-five feet in width, as a mere easement, for railroads or telegraph or telephone lines across state land, and the legislature shall never dispose of the land covered by such right of way except subject to such easement."Constitution of 1901, § 99.
Your inquiry is answered as follows: Applying the doctrine ejusdem generis applicable in the interpretation of constitutional provisions and statutes the language used "to private corporations, associations, or individuals," refers to corporations or associations privately owned and controlled and not to public corporations created for public purposes by the Legislature for the benefit of all the people. The following authorities are persuasive as to the soundness of this conclusion. Alabama State Bridge Corp. v. Smith, 217 Ala. 311, 116 So. 695; Opinion of the Justices, 254 Ala. 506, 49 So. 2d 175.
Question No. 3. "Will the agreement of lease provided for in the said two House Bills constitute a debt of the State of Alabama within the meaning of Section 213 of the Alabama Constitution?"
If the bill is enacted into law, on its face it will declare that such contracts are not obligations of the State of Alabama in violation of Section 213 of the Constitution. The facts being consistent with this declaration.
Question No. 4. "Do the said two House Bills authorize the state to be engaged in works of internal improvement or to be interested in any private or corporate enterprise or to lend money or its credit in aid of any thereof within the meaning of Section 93 of the Alabama Constitution?"
To repeat, as stated in brief of attorneys amici curiae in the following language: "In its fourth question the House of Representatives asks whether the two pending house bills authorize the state to engage in works of internal improvement * * *, within the meaning of Section 93 of the Alabama Constitution?" The brief relies strongly on the Opinion of the Justices, 247 Ala. 66, 22 So. 2d 521, given in 1945, upholding the power of the legislature to provide for public market places, for the sale of commodities and refers this power to the police power of the state. Also cited to the same effect is the Opinion of the Justices reported in 247 Ala. 195, 23 So. 2d 505, given in 1945 dealing with the Public Hunting and Forestry Association, Inc., created to preserve the natural resources of the state, reforestation and conservation of the forests of the state. This act was referred to the police power by said opinion.
Section 93 of the Constitution has been thrice amended by the people since it was first put into the Constitution of 1901, carried over from the Constitution of 1875. The first amendment, which may be found in Vol. 1 of the Code of 1940, at page 294, added to said Section 93 the following language: "provided that the State may under appropriate laws cause the net proceeds from the State convict fund to be applied to the construction, repair and maintenance of public roads in the State and the Legislature *80 may also make additional appropriations for that purpose."
Said section was again amended by amendment 12, which may be found on page 307, Vol. 1 of the Code of 1940:
"Section 93. The State shall not engage in works of internal improvement, nor lend money or its credit in aid of such, except as may be authorized by the Constitution of Alabama or amendments thereto; nor shall the state be interested in any private or corporate enterprise, or lend money or its credit to any individual, association, or corporation, except as may be expressly authorized by the Constitution of Alabama, or amendments thereto; but when authorized by laws passed by the Legislature the state may appropriate funds to be applied to the construction, repair, and maintenance of public roads, highways and bridges in the state; and when authorized by appropriate laws passed by the Legislature the state may at a cost of not exceeding ten million dollars engage in the work of internal improvement, or promoting, developing, constructing, maintaining, and operating all harbors and seaports within the state or its jurisdiction, provided, that such work or improvement shall always be and remain under the management and control of the state, through its State Harbor Commission, or other governing agency. The adoption of this amendment shall not affect in any manner any other amendment to the Constitution of Alabama which may be adopted pursuant to any act or resolution of this session of the Legislature."
This amendment was adopted by the people and proclaimed ratified on November 22, 1922. Alabama State Bridge Corp. v. Smith, 217 Ala. 311, 116 So. 695, 699, was decided March 22, 1928, and in the prevailing opinion in that case, it was stated:
"By constitutional amendment proposed in the act to be found on page 740 of the Acts of 1907, and subsequently, in 1908 [the Acts of 1907, and subsequently in 1908], adopted by a vote of the people, section 93 of the Constitution was amended so as to permit the net proceeds from the state convict fund to be applied to the construction, repair, and maintenance of public roads, and additional appropriations might be made for that purpose. In 1921 section 93 was again amended. Acts 1921, p. 1; In re Opinions of Justices, 209 Ala. [593] 600, 96 So. 487. This amendment authorized, inter alia, the legislative appropriation of funds for the construction, repair, and maintenance of public roads, highways, and bridges in the state. In 1927, article 20A was added to the Constitution whereby the state was `authorized to engage in the construction, improvement, repair and maintenance of public roads, highways and bridges.' See Acts 1927, p. 794. In view of these several amendments it cannot in reason be said that the act in question violates the Constitution by permitting the state to engage in works of internal improvement, or otherwise. By these amendments the state definitely embarked upon a program of internal improvement. * * *"
Since the opinion cited in brief amici curias was given the constitution, Section 93, has again been amended, effective November 14, 1946. Said Section 93 now provides:
"Section 93. The state shall not engage in works of internal improvement, nor lend money or its credit in aid as such, except as may be authorized by the constitution of Alabama or amendments thereto; nor shall the state be interested in any private or corporate enterprise, or lend money or its credit to any individual, association, or corporation, except as may be expressly authorized by the constitution of Alabama, or amendments thereto. When authorized by laws passed by the legislature the state may appropriate funds to be applied to the construction, repair, and maintenance of public roads, highways and bridges in the state. When authorized by appropriate laws passed by the legislature the state may at a cost not exceeding ten million dollars engage in the work of internal improvement, or promoting, developing, constructing, maintaining, and operating all harbors and seaports within the state or its jurisdiction, provided, that such work or improvement shall always be and remain under the management and control of the *81 state, through its state harbor commission, or other governing agency. When authorized by laws passed by the legislature the state may engage in the construction, improvement, repairs and maintenance and operation of public airports, air landing fields and other air navigation facilities in the state of Alabama and may appropriate money or otherwise provide funds for this purpose. The adoption of this amendment shall not affect in any manner any other amendment to the constitution of Alabama which may be adopted pursuant to any act or resolution of this session of legislature." Code of 1940, Titles 1-6, p. 68, Pocket Part.
It will be noted that said amendment which rewrites section 93 provides: "The state shall not engage in works of internal improvement, nor lend money or its credit in aid as such, except as may be authorized by the constitution of Alabama or amendments thereto * * *." Also new to this amendment was the added provision: "When authorized by laws passed by the legislature the state may engage in the construction, improvement, repairs and maintenance and operation of public airports, airlanding fields and other air navigation facilities in the state of Alabama and may appropriate money or otherwise provide funds for this purpose." [Italics supplied.]
Reduced to its final analysis the question presented: Is the construction or completion of the coliseum a work of internal improvement within the meaning of Section 93 of the constitution as amended by amendment 58, Code of 1940, p. 68, Pocket Part, which provides in part: "The state shall not engage in works of internal improvement * * * except as may be authorized by the constitution of Alabama or amendments thereto; * * *."
The word coliseum is defined in Webster's New International Dictionary Second Ed.; as a: "1. [cap] Colosseum, 1. 2. A theater; a music hall; specif., a large building in which athletic sports may be held; also, a stadium." Also on page 530; Collosseums: 1. Also Coliseum. An amphitheater (the Flavian Amphitheater) built by Vespasipan and Titus about 80 A. D. in great part still standing southeast of the Forum in Rome; applied also to any Roman amphitheater. The Colesseum is an eliptical structure measuring about 615 by 510 feet externally. It consists of rings of arched brick galleries covered within by slopes containing rows of seats which were incrusted with marble. Beneath the arena are the vaults that were used for the attendants, gladiators, beasts, etc. 2 Coliseum."
In State ex rel. Wilkinson v. Murphy, 237 Ala. 332, 334-335, 186 So. 487, 490, 121 A.L.R. 283, it was observed: "Defendant insists that by reason of these historic facts the words `works of internal improvement' in section 93, supra, should be construed as having reference only to channels of trade and commerce, such as canals, turnpikes, railroads, and the like (citing authority).
"But the language of our Constitution is broad and comprehensive. There are no restrictions or limitations, and we are unwilling to so interpret this provision of our Constitution so as to attach such an exception thereto. We are inclined, however, to agree with defendant that these words have reference to improvements of a more or less fixed and permanent character. (Citing many authorities)."
It was also stated in Re Opinion of the Justices, 247 Ala. 66, 69, 22 So. 2d 521, 525, "But the mere benefit to the public is not sufficient if Section 93 of the Constitution creates a barrier." See also In re Opinion of the Justices, 237 Ala. 429, 187 So. 244.
The quoted provisions of § 93, lay a restriction on the power of the legislature in these words: "The state shall not engage in works of internal improvement, nor lend money or its credit in aid of such, except as may be authorized by the constitution of Alabama or amendments thereto; * * *." The coliseum as defined and the act contemplates that it shall be a permanent structure to continue to exist, and be maintained for at least 40 years and the statement of fact which we have quoted from the brief shows that it is an improvement of a permanent nature.
*82 The legislature in session and proceeding to legislate in the enactment of laws is the state in operation, engaged in business which it undertakes to promote. If the legislation is in respect to internal improvements it must look to the constitution or an amendment thereof for its authority.
Said amendment LVIII quoted above is a limitation on the police power of the state and its legislature to provide by act for the state to engage in internal improvements. The coliseum is certainly not `"external" improvement. In the majority opinion in Alabama State Bridge Corp. v. Smith, 217 Ala. 311, 316, 116 So. 695, 699, Justice Sayre, referring to amendments 1 and 12 to Section 93 made the affirmative statement: "By these amendments the state definitely embarked upon a program of internal improvement." The proposed law promulgated by H.B. 800 especially provides: "It is hereby declared that it is not intended that this act shall be interpreted as authorizing the board to engage in the business of selling or marketing livestock or products of any kind, or in what may be termed a brokerage business, or to compete with private enterprise." Therefore State ex rel. Wilkinson v. Murphy, cited above, which upheld the establishment of a public market where all the people could meet and engage in sale, barter and exchange of their property, does not sustain the provisions of said proposed H.B. 800. The proposed law directs and authorizes the Governor to convey the existing properties, including the building and grounds on which the coliseum now stands to the corporation and authorizes the corporation to lease the properties after the completion of the coliseum to the "board" as defined in the proposed Acts No. 800 and 801 and authorizes the board to lease the property for use to private individuals, associations and corporations; to raise sufficient funds to meet the obligations of the bonds issued by the corporation and the interest thereon together with the cost of insurance and maintenance. The proceeds of the revenue arising from the leases are deposited in the state treasury in a special account to be drawn out by the board. When the funds thus created amortize the bonds and obligations of the corporation, the act creating the corporation directs its dissolution and vests the title to the entire property in the State of Alabama. The board and the corporation accept such transfer which is affected with a trust, retaining in the state an equity.
Therefore, if building bridges across the rivers of the state as a part of the public highways thereof and the building of ports and airways are works of internal improvement, the conclusion is inescapable that such coliseum is an internal improvement and the state is engaged in promoting the same through the legislation proposed in said H.B. 800.
I am, therefore, of opinion that the proposed law if enacted would violate § 93 of the Constitution of 1901 as amended by amendment LVIII cited above. | August 20, 1951 |
2677a0a2-7eea-4f88-b3f5-2f629f14e84c | Humphrey v. Humphrey | 48 So. 2d 424 | N/A | Alabama | Alabama Supreme Court | 48 So. 2d 424 (1950)
HUMPHREY
v.
HUMPHREY et al.
8 Div. 548.
Supreme Court of Alabama.
October 26, 1950.
*425 Claude H. Pipes and James Butler, of Huntsville, for appellant.
C. L. Watts, Joe L. Payne and Walter F. Eigenbrod, all of Huntsville, for appellees.
STAKELY, Justice.
This appeal is from a final decree of the equity court avoiding the forfeiture of a lease of real estate and enjoining the landlord from instituting a suit in unlawful detainer against the tenant for recovery of the premises. The bill was filed by J. D. Humphrey, Jr., individually and as trustee for his three sisters, against Addie Webb Humphrey. The real estate leased by Addie Webb Humphrey to the complainant and his sisters is located in Huntsville, Alabama. The lease was made and entered into on May 1, 1944 for a term of ten years and provided for payment of a monthly rent of $275 on the last day of each month respectively. The lease contains a provision that "for any violation of the terms of this lease the lessor may immediately terminate this lease and immediately take possession of the premises." The case was tried orally before the court.
When the bill was filed the court made an order granting a temporary injunction upon bond being made as provided by the court. There was motion to discharge the injunction "for that the complainant has not included in the original bill a prayer for process to issue against *426 the said respondent, as required by Equity Rule 11, Title 7, Code of 1940." The original bill in this respect reads as follows: "that respondent, Addie Webb Humphrey, be made party defendant to the foregoing bill." The complainant amended the original bill by amending the prayer thereof so as to read, "that respondent, Addie Webb Humphrey, be made party defendant to the foregoing bill and to that end that all needful process of this court issue to her. * * *." The court thereafter overruled the motion to discharge. In this ruling there was no error. The only object of Equity Rule 11, which appears in Title 7, Code of 1940, p. 1050, is to designate those persons named in the stating part of the bill against whom relief is sought in the bill. It so happens that in the present instance there is only one respondent, viz. Addie Webb Humphrey, named in the prayer of the original bill and she alone is prayed to be made party respondent to the foregoing bill. So there can be no doubt as to whom process is to issue. Since the summons was issued by the register on the bill to Addie Webb Humphrey, she was properly made a respondent thereto. McKenzie v. Baldridge, 49 Ala. 564; Reid v. Williams, 250 Ala. 602, 35 So. 2d 496; Jackson v. Putman, 180 Ala. 39, 60 So. 61; Julian v. Woolbert, 202 Ala. 530, 81 So. 32. Furthermore we think that even if the bill be regarded as defective within this rule, the irregularity is such that the court would order the injunction to be discharged unless a sufficient amendment be made within a time fixed by the court. Woodward v. State, 173 Ala. 7, 55 So. 506. In this case such amendment was filed before the hearing on the motion to discharge.
The complainant entered possession of the leased premises under the lease and has held continuous occupancy thereunder since the date of the lease, operating a drug store in the part of the premises known as 119 Washington Street and during such period sublet for doctors' offices the upstairs portion of No. 119 and Nos. 115 and 117 Washington Street.
On the last day of September, 1949, complainant failed to pay to the respondent rent for the month of September 1949. On October 3, 1949 the respondent gave complainant notice that in consequence of default in the payment of such rent in accordance with the terms of the lease, she had elected to terminate the lease and demanded possession of the premises. On that date complainant mailed the respondent a check for the rent due for September. On October 5, 1949 the respondent returned the check to complainant. On October 6, 1949 complainant tendered to the respondent $275 in lawful currency of the United States in payment of the September 1949 rent. The respondent refused the tender. On October 14, 1949 the respondent made a written demand for immediate possession of the leased premises. The demand stated that in consequence of the default of complainant to pay the rent due on the last day of September 1949 the respondent had elected to terminate the lease. On October 21, 1949 the present suit was instituted and the preliminary injunction granted.
Tendencies of the evidence also showed the following. The complainant had spent substantial sums of money in maintaining the interior of the leased premises including both the portion of premises occupied by the drug store and the portion of the premises subleased to the doctors. Complainant has carried continuously during the lease in the leased premises a large and valuable stock of drugs and sundries for sale and has used a large amount of valuable fixtures and equipment in the operation of the drug business. There is no building in Huntsville, Alabama, for rent to which the complainant might remove his drug business and there conduct the same and there is no office space available in Huntsville for complainant's lessee doctors where such doctors could be in close proximity to complainant's drug business and where they now have their prescriptions filled.
Prior to the last day of September 1949 respondent accepted without objection or protest 64 rent checks for the first 64 months of the lease, only 9 of these checks having been mailed or otherwise delivered *427 on the last day of the month. The remainder of these checks were mailed or otherwise delivered from 1 day to 13 days after the last day of the month. On August 10, 1949 respondent went to the complainant at his place of business and stated to him that she appreciated his making her deposits for her of the rent since she had not been well but she was now able to be up and out and to look after her affairs. The evidence is in conflict as to her exact words in this conversation, the complainant offering testimony that all the respondent said was that she was going back to Arizona to spend the winter, that she did not want the complainant to deposit any more money in the bank for her, but that she wanted the check mailed to her on the last day of the month. According to the respondent she stated that she wanted complainant to pay her the rent for the drug store on the day that it was due according to the terms of the lease and to pay it by check. There was proof tending to show that the respondent admitted she wanted a new lease contract with increase in rent. Respondent made no denial that she had made this admission. There was proof tending to show that complainant would be irreparably damaged if he were forced to give up the leased premises or attempt to operate the drug business in some other location.
It is settled that only courts of equity have jurisdiction to relieve against forfeitures. Coley v. W. P. Brown & Sons Lumber Co., 251 Ala. 235, 37 So. 2d 125; Barry v. Welch, 248 Ala. 167, 26 So. 2d 872. Forfeitures are not favored in equity and unless the penalty is fairly proportionate to damages suffered by the breach, relief will be granted when the court can give by way of compensation all that can reasonably be expected. Dean v. Coosa County Lumber Co., 232 Ala. 177, 167 So. 566; Barry v. Welch, supra. The underlying principle is that a court of equity is a court of conscience and nothing will be permitted within its jurisdiction which is unconscionable. So a person, although having a legal right, will not be permitted to avail himself of that right for the purpose of injury or oppression. 16 A.L.R. p. 437.
Equity will relieve against the forfeiture for the nonpayment of rent, since in equity the covenant for the forfeiture on nonpayment of rent is regarded as a mere security and the forfeiture for that reason will be relieved against upon payment of the rent due and such damages as the lessor may have sustained. Abrams v. Watson et al., 59 Ala. 524; Cesar et al. v. Virgin, 207 Ala. 148, 92 So. 406; City Garage & Sales Co. v. Ballenger, 214 Ala. 516, 108 So. 257; Cedrom Coal Co. v. Moss et al., 230 Ala. 32, 159 So. 225. It is further true that when a landlord by a course of dealing in accepting overdue rent has put a tenant off his guard, a forfeiture of the lease for a delayed payment of rent cannot be enforced, unless notice has been given to the tenant to comply with the strict terms of the lease. Equity will relieve against the forfeiture and especially is this true if it appears that the tenant has acted in good faith and has promptly paid the rent when demanded or before the landlord suffers loss or inconvenience from delinquency. Farmer v. Pitts, 108 Neb. 9, 187 Neb. 95, 24 A.L.R. 719; 16 A.L.R. 443; 51 C.J.S., Landlord and Tenant, § 117, p. 709.
We think, as found by the trial court in its well considered opinion, that to permit a forfeiture to be declared in this case would be unjust and inequitable and unconscionable and that the court acted correctly in voiding the forfeiture which had been declared by the respondent. It appears that not only the September 1949 rent has been paid into court but all rent subsequently accruing under the lease has been paid into court under order of the court. This rent will, of course, be paid over to the respondent, which we think will do full justice in the case.
Affirmed.
BROWN, FOSTER, LIVINGSTON, LAWSON and SIMPSON, JJ., concur. | October 26, 1950 |
7ff1d0f3-ee27-4de4-b711-753ec04683ef | Kervin v. State | 48 So. 2d 204 | N/A | Alabama | Alabama Supreme Court | 48 So. 2d 204 (1950)
KERVIN
v.
STATE.
4 Div. 588.
Supreme Court of Alabama.
June 30, 1950.
Rehearing Denied November 2, 1950.
*205 Ralph A. Clark, of Andalusia, and Hill, Hill, Whiting & Harris, of Montgomery, for appellant.
A. A. Carmichael, Atty. Gen., and Robt. Straub, Asst. Atty. Gen., for the State.
STAKELY, Justice.
Norris E. Kervin (appellant) was indicted for murder in the first degree. Upon trial he was convicted of murder in the second degree and punishment was fixed at twenty-five years in the penitentiary.
Appellant and Cousby Berry, the deceased, were brothers-in-law. On the day of the killing appellant and deceased were driving around in appellant's car. It was a muddy, rainy day and the car slid off the road on two different occasions. They managed to get the car back on the road and continue on their way but only after they got into a fight in the car. Both men were drinking. Early in the evening the two went to the house of appellant. Appellant's wife and child and the wife and child of deceased were at the house. As the two men entered the house appellant walked over to his wife, slapped her and knocked her down. The appellant's wife was the sister of deceased. Thereupon the deceased and the appellant began to scuffle. No blows were passed but the two men wrestled on the floor and over the bed, ending up with the deceased on top of accused. The deceased promised to let the appellant get up if the appellant would let him alone. This the appellant promised to do. However when the appellant got up he got a shot gun from the rack near the bed and ordered the deceased to leave. Tendencies of the evidence showed that the deceased had started to leave the room when he was shot. The charge of the shot gun entered the back of the head of the deceased. Appellant testified that the deceased was advancing upon him with a knife when he was shot. A pen knife was found held loosely in the hand of the deceased. No one saw the actual killing. Both women had left the house just before the shot was fired.
A number of witnesses testified to the good character of the accused. Numerous objections on the trial were made as to the manner of cross-examination of these witnesses. It is true, as contended by the appellant, that a character witness should not be cross-examined as to his knowledge of particular acts or conduct of the defendant in order to prove such acts or conduct. Moulton v. State, 88 Ala. 116, 60 So. 758, 6 L.R.A. 301; Way v. State, 155 Ala. 52, 46 So. 273; Cockrell v. State, 32 Ala.App. 618, 29 So. 2d 152.
There is a difference, however, between proof of character and testing the credibility of a witness who has testified to good character. The rule was stated in Smith v. State, 103 Ala. 57, 15 So. 866, 871, as follows: "A witness who has testified in chief to the good character of the defendant may be asked on cross-examination whether or not he has heard of certain offenses (specifying them) charged against the defendant, before the beginning *206 of the then pending prosecution. This is allowable only on cross-examination, not as evidence affecting the character of the defendant, but as evidence affecting the credibility of the witness testifying as to good character."
In the case of Hill v. State, 210 Ala. 221, 97 So. 639, 642, in speaking of cross-examination of character witnesses by reference to specific acts, the court said: "Such matters, whether as facts or as reputed facts, are not admissible as original evidence, but, as reputed facts, are properly inquired about on cross-examination to test the value of the witness' opinion."
In Mullins v. State, 31 Ala.App. 571, 19 So. 2d 845, it is pointed out that the witness may be asked on cross-examination if he has not heard that the defendant had committed certain unworthy acts, naming them. We cite a number of cases where the cross-examination of character witnesses as to certain unworthy acts was upheld. Hill v. State, 210 Ala. 221, 97 So. 639; Stout v. State, 15 Ala. App. 206, 72 So. 762; Holmes v. State, 88 Ala. 26, 7 So. 193, 16 Am.St.Rep. 17; Terry v. State, 118 Ala. 79, 23 So. 776; Pierce v. State, 228 Ala. 545, 154 So. 526; Bullington v. State, 13 Ala.App. 61, 69 So. 319; Marshall v. State, 18 Ala.App. 483, 93 So. 236.
We have carefully examined the various questions propounded the various character witnesses on cross-examination and find that the court allowed questions that were properly framed and disallowed questions that were improper. We find no error in regard to these questions.
Objection is made to the manner in which the defendant and the defendant's wife were treated on cross-examination. The defendant's wife had made a prior written statement to some of the state officers. The questions propounded her on her cross-examination were designed to test the truth of her testimony and to determine whether the jury was to believe the written statement or her oral testimony. There is nothing, however, to show that the appellant's wife was abused or questioned in any disrespectful manner. The purpose of the questions was to determine whether the events were fresh in her mind at the time she made the written statement. Wide latitude on cross-examination to test the recollection of the witness is permitted and this latitude is largely within the discretion of the trial court and unless grossly abused will not be overturned. Alford v. State, 30 Ala.App. 590, 10 So. 2d 370, certiorari denied 243 Ala. 404, 10 So. 2d 373; Reeder v. State, 210 Ala. 114, 97 So. 73.
A number of instances claimed to show bad treatment of the defendant on cross-the appellant's wife was abused or quesexamination are cited in brief of appellant. In each of these instances the objections were sustained. Accordingly we find no error.
It is contended that improper conduct on the part of counsel for the state was highly prejudicial to the defendant. It is claimed that this conduct consisted of various improper questions propounded the defendant and his witnesses and that such conduct was so cumulative in its effect as to create ineradicable bias in the minds of the jury. In two instances during the course of the trial the defendant objected to the questions propounded and moved for a mistrial. In one instance in questioning the defendant about the fight between the deceased and the defendant while in the car the following questions were objected to: "Q. It is your testimony he could have cut you with a knife at that time? You are used to knife fights, aren't you? Q. As a matter of fact those scars on your neck are the results of a knife fight?" In this instance the court sustained the objection and on motion for mistrial advised the jury that the foregoing was excluded and had no part in the consideration of the case.
In cross-examination of the defense witness Nall, the witness was asked, "Q. Did you ever hear about him getting in a fight with a knife and getting cut on the neck?" (The solicitor pointed to scars on the defendant's neck.) When objection to the question was overruled, the defendant moved for a mistrial, which was overruled. Pretermitting the question of impropriety of the action of the solicitor, no *207 grounds of the objection nor the grounds of the motion are set out in the record.
On motion for a new trial among the various grounds were two grounds based respectively on the foregoing rulings of the court in denying a mistrial because of reference to scars on the defendant's neck, but there is no ground in the motion for a new trial based on prejudice arising from cumulative acts or conduct of counsel for the state. Of course the cumulative effect of conduct or statements as being prejudicial could be raised during the trial with reference to such conduct or statements which had occurred to the time such question is raised, but no such question was raised in the case according to the record.
We conclude that the judgment of the lower court must be affirmed.
Affirmed.
BROWN, FOSTER, LIVINGSTON, LAWSON and SIMPSON, JJ., concur. | June 30, 1950 |
c7873894-18c2-4643-a8d0-275f0c8c4280 | ALABAMA PUBLIC SERVICE COM'N v. Avery Freight Lines | 49 So. 2d 170 | N/A | Alabama | Alabama Supreme Court | 49 So. 2d 170 (1950)
ALABAMA PUBLIC SERVICE COMMISSION
v.
AVERY FREIGHT LINES, Inc.
1 Div. 388.
Supreme Court of Alabama.
October 12, 1950.
Rehearing Denied December 14, 1950.
*171 A. A. Carmichael, Atty. Gen., and MacDonald Gallion, Asst. Atty. Gen., for Public Service Commission.
Ormond Somerville and D. H. Markstein, Jr., of Birmingham, for interveners.
Wm. S. Pritchard, of Birmingham, Richard T. Rives, of Montgomery, and Winston B. McCall and Pritchard & McCall, of Birmingham, for appellee.
BROWN, Justice.
The appeal in this case is by the Alabama Public Service Commission from decrees of the Circuit Court of Mobile County, sitting as a court of appeals and review. The first of said decrees was rendered in Case No. 27,481-B, Circuit Court, in Equity, a consolidated case embracing APSC Docket No. 10897 Order of January 7, 1948, and APSC Docket No. 10811 Order of January 26, 1948. The appeal to the circuit court was by the Avery Freight Lines, Inc. The circuit court vacated the orders of the Public Service Commission and remanded the case "with instructions that a rehearing be granted by the Commission on the appellant's (Avery Freight Lines, Inc.) application for approval of transfer of Certificate of Public Convenience and Necessity No. 432 standing in the name of Avery Freight Lines, Inc.
The other decree was entered by the circuit court in case No. 29,149-B, an appeal *172 of Avery Freight Lines, Inc., from an order of the Alabama Public Service Commission dated November 1, 1948, denying to it a Certificate of Public Convenience and Necessity under the provisions of § 8, Act of 1939, p. 1069, now § 301(8), Title 48, Code of 1940, referred to as the "grandfather clause", authorizing operation to the extent provided in the decree of the Circuit Court of Mobile County dated September 30, 1941.
The case was submitted here on an abridged record which contains what is characterized or designated as "original bill" in Case No. 27,481-B with verification; the order of the court in respect to supersedeas of the order of the Public Service Commission entered in said case; the supersedeas bond; assignments of error; petition for intervention by Alabama Highway Express, Inc., Baggett Transportation Co. Inc., Jack Cole Co. Inc., Eaton Truck Lines, Inc., Hooper Transfer Co., E. A. Murray, doing business as Murray Motor Transport; the decrees of the circuit court entered August 8, 1949, and petition for appeal in Case No. 29,149-B; assignments of error in said case by the interveners; memorandum opinion of Judge Bates; citation of appeal; certification of appeal, and the assignments of error filed in the circuit court.
The entire record of the proceedings before the Public Service Commission was omitted from the transcript filed here, including the testimony and exhibits.
The appellant's contention is that the omission of these matters was covered by a stipulation entered into between the parties and approved by the writer for the court before the submission of the case. The appellee on the other hand contends that the agreement or stipulation did not cover the omission of the record of the proceedings and testimony transcribed on the hearing before the Public Service Commission. The agreement or stipulation referred to is clearly illustrated in the correspondence between the Clerk of this Court and the Register of the Circuit Court. On October 25, 1949, the Register sent the following letter to the Clerk of the Supreme Court: "I am sending you by express, a package containing documents in the case of Avery Freight Lines against Alabama Public Service Commission. This case was appealed by the State and it was agreed between the parties and approved by the Supreme Court that these papers be sent up separately and not copied in the transcript * * *"
On September 21, 1949, the Clerk of this Court wrote to the Register: "I am in receipt of your letter with reference to the 12 packages composed of freight bills, delivery receipts and bills of lading which you state are impossible to attach to the transcript and impracticable, if not impossible to type them satisfactorily and in reply thereto, I beg to advise that Mr. McDonald Gallion saw Mr. Justice Brown and it is my impression that Judge Brown suggested that the attorneys enter into a stipulation with reference to the same which I assume they have done and will send on to you their agreement."
On September 17, 1949, the Register addressed the following letter to this Court:
"Supreme Court Of Alabama
"Montgomery, Alabama
"Your Honors:
"I have a case between, Alabama Public Service Commission and Avery Freight Lines, Inc., which was appealed to this court from the ruling of the Alabama Public Service Commission and is now appealed to the Supreme Court from the ruling of this Court. Among the papers in this case are twelve packages composed of Freight Bills, Delivery Receipts and Bills of Lading. It is impossible to attach the originals to the transcript and impractible, if not impossible to type them satisfactorily. I doubt if photostatic copies would be satisfactory. In view of the above I respectfully request that I be allowed to send the originals separately."
What appears to be the original of said stipulation is copied on an unnumbered page following the index of the record:
"The following is hereby stipulated to the Honorable Cecil Bates, Judge of the Circuit Court of Mobile County, in Equity, by and between the plaintiff and defendant *173 and their respective counsel of record in the above litigation:
"That upon the transmittal of the above records on appeal to the Supreme Court of Alabama, the originals of all freight bills, bills of lading, trip tickets, delivery receipts, and all other documents introduced in evidence in the Circuit Court of Mobile County, in Equity, be forwarded for review by the Supreme Court of Alabama without the necessity of copying same into the record proper.
"That all freight bills, bills of lading, trip tickets, delivery receipts, and all other documents introduced in evidence in the Circuit Court of Mobile County, Alabama, in Equity, not being originals, shall be photostated and forwarded for review by the Supreme Court of Alabama without the necessity of copying same into the record proper."
We are of the opinion that this stipulation did not cover and did not authorize the omission from the transcript filed in this court of the record and proceedings, including the pleadings, the testimony given and transcribed and the Orders of the Public Service Commission. The statute clearly contemplates that the circuit court, acting as a court of appeal or review, must review the proceedings of the Public Service Commission on the transcript of the record on the hearing before the Commission. Such transcript must include the pleadings filed in the case, the orders of the Commission made in respect thereto and the testimony as given before the Commission and on appeal to the circuit court, "the commission's order shall be taken as prima facie just and reasonable." Code of 1940, Title 48, § 82.
Section 83 provides that the President of the Commission or its secretary, "shall certify to the appellate court (the circuit court) under the seal of the commission a complete record or transcript of all the proceedings had before it, including all orders and pleadings together with a transcript of all oral testimony, and the original or a transcript of all documentary evidence taken in the proceeding in which the order appealed from was made. * * *"
Section 90, Title 48, Code of 1940 provides: "Either party may appeal to the supreme court of Alabama from the judgment or decree of the lower court, the appeal to be taken within thirty days from the rendition of said judgment or decree, under the same rules and regulations as are or may be provided by law for appeals from said court, except as herein provided." [Italics supplied.]
In Alabama Public Service Commission et al., v. Nunis, 252 Ala. 30, 34, 39 So. 2d 409, 412, it was observed: "On appeal to this Court, we must review the judgment of the circuit court without any presumption of its correctness, since that court was in no better position to review the order of the commission than we are. Title 13, section 17, par. 1, Code 1940. The evidence was not taken before the trial judge in the circuit court. Green v. Green, 249 Ala. 150, 30 So. 2d 905. We are governed by the same rules in our review as was the circuit court. So that we will review the order of the commission as though the appeal from the commission's order had been directly and primarily [taken] to this Court."
There was a non-compliance with the provisions of the statute, Code of 1940, Tit. 7, § 767 providing for transcript, and Rule 28 of Supreme Court Practice, Code 1940, Tit. 7 Appendix, which provides for the abridgement of the record on appeal. The only facts available to us on this appeal appear in the statement of facts embodied in the memorandum opinion and decrees of the circuit court and the "freight bills, bills of lading, trip tickets and other documents introduced in evidence in the circuit court," which are not mentioned in the note of testimony as required by Equity Rule 57. Code of 1940, Tit. 7, Appendix, p. 1095.
The "Order of Submission and Note of Evidence" recites: "This cause was submitted by the parties hereto upon the certified record of proceedings before the Alabama Public Service Commission. Dated August 8th, 1949. James A. Crane, Register."
The circuit court found the following facts: "The Court having heard the cases upon the respective records, certified by the Alabama Public Service Commission and having considered all of the evidence so certified by the Commission, being all of the *174 evidence in the causes and the causes having been argued at length by the respective parties, and the Court, being of the opinion that a wilful failure to comply with a lawful order of the Commission is a jurisdictional fact to be found specially by the Commission as a condition precedent to the revocation by the Commission of an existing Motor Carrier Certificate of public convenience and necessity and that such finding was not made by the Commission in its order here appealed from dated January 7, 1948 (APSC Docket No. 10897) revoking certificate No. 432 standing in the name of Appellant, finds that the Commission erred to the prejudice of Appellant's substantial rights in its application of the law in said order; the Court further finds that a finding by the Commission in this cause of wilfulness on the part of Appellant, if made, would have been contrary to the substantial weight of the evidence. In the consolidated cause (APSC Docket No. 10811) the Court finds that the Commission erred to the prejudice of Appellant's substantial rights in its application of the law in the order here appealed from, dated January 26, 1948, in that such order, denying the transfer by Appellant of Certificate 432, was predicated solely on the erroneous conclusion that said certificate was no longer in existence. * * *"
Under said facts the court entered the following order:
"1. The order entered by the Alabama Public Service Commission dated January 7, 1948 (APSC Docket No. 10897) revoking Motor Carrier Certificate of Public Convenience and Necessity No. 432, standing in the name of Avery Freight Lines, Inc., be, and the same is hereby set aside, and the case is hereby remanded to the Alabama Public Service Commission, with directions to said Commission to reinstate Certificate No. 432 to Avery Freight Lines, Inc., according to its content, on the books and records of the said Commission.
"2. The order entered by the Alabama Public Service Commission dated January 26, 1948 (APSC Docket No. 10811) be and the same is hereby set aside and the case is hereby remanded to the Commission with instructions that a rehearing be granted by the Commission on Applicant's application for approval of transfer of certificate No. 432."
Without approving the conclusion of law "that a wilful failure to comply with a lawful order of the Commission is a jurisdictional fact to be found specially by the Commission as a condition precedent to the revocation by the Commission of an existing Motor Carrier Certificate of Public Convenience and Necessity", as found by the trial court, which is contrary to the holding of this Court in Alabama Public Service Commission et al. v. Nunis, 252 Ala. 30, 39 So. 2d 409, nevertheless the further finding of the court "that a finding by the Commission in this cause of wilfulness on the part of Appellant, if made, would have been contrary to the substantial weight of the evidence," is sufficient to support the decree entered, and in the absence of the certified transcript of the record of the proceedings of the Commission on which the finding was rested, we are not in a position to find to the contrary and overturn the decree entered by the Circuit Court. Avery Freight Lines v. Persons, 250 Ala. 40, 32 So. 2d 886; Avery Freight Lines v. White et al., 245 Ala. 618, 18 So. 2d 394, 154 A.L.R. 732.
In the face of the finding of fact by the circuit court in equity case No. 29,149 that "The facts on the rehearing remain substantially the same as those on the former 1941 hearing before the Commission," and in the absence of a certified record of the transcript on this appeal upon which the court based its conclusions of fact, it results that of necessity the decrees of August 8, 1949 must be affirmed. Authorities last cited supra. Said decrees are therefore affirmed
Affirmed.
LIVINGSTON, LAWSON and SIMPSON, JJ., concur. | October 12, 1950 |
ae9c7765-fd64-473e-9686-246fa7b474f2 | Whitman v. Whitman | 46 So. 2d 422 | N/A | Alabama | Alabama Supreme Court | 46 So. 2d 422 (1950)
WHITMAN et al.
v.
WHITMAN et al.
6 Div. 955.
Supreme Court of Alabama.
May 18, 1950.
*423 Horace C. Alford, of Birmingham, for appellants.
Edw. T. Rice, of Birmingham, for appellees.
FOSTER, Justice.
This case was here on former appeal, Leonard v. Whitman, 249 Ala. 205, 30 So. 2d 241, from a decree overruling a demurrer to the bill. The decree was affirmed. It is here now on appeal from the final decree denying relief to appellant on the pleadings and proof. The only disputed question is one of fact which is controlling. It is whether the appellant Annie DuBose Whitman was the wife of Ed Whitman at the time of his death in Birmingham on November 10, 1943. He died possessed of certain property bequeathed to him. One of the respondents Monnie Mae Whitman claimed to be his wife under a marriage performed in Birmingham under a license on November 30, 1938.
The evidence tends to show that Ed Whitman and Annie were married in Selma, Dallas County, Alabama, under a marriage license dated November 21, 1900. That they lived together in Selma until about 1923, when Ed went to Birmingham where he resided until his death in 1943. The evidence is not clear as to the exact date he left Selma. During all that time, approximately twenty years or more, Annie lived in Selma, though she says she visited him occasionally in Birmingham, and that he visited her occasionally in Selma. Appellant Viola Whitman Sharp is alleged to be the daughter of appellant Annie and Ed. The evidence tended to show that Ed married Mary Williams in Birmingham on October 9, 1924, under a marriage license of that date. Mary died October 24, 1929. He then married Ida (or Ila) Mae Lewis on April 19, 1930 under a marriage license of that date issued in Birmingham: a divorce decree was rendered dissolving such marriage by the circuit court, in equity, in Birmingham on October 25, 1934. That he thereafter, on September 30, 1938, married appellee Monnie Mae Smith, with whom he was living in marriage at the time of his death. He and Monnie Mae, as his, wife, had executed some mortgages to appellee C. E. Leonard on his homestead. The bill sought to have these mortgages vacated because they were not executed by Annie as his wife.
Annie testified that she knew of no divorce proceeding; that she had not been served with notice of any such proceeding from either Dallas or Jefferson County. She also offered in evidence a certificate of the register in equity of Dallas County that there was no record of such a suit in that county. The trial court sustained objection to that certificate. But that ruling is not assigned as error. However, *424 the certificate was not admissible for that purpose, since the testimony of the register would be the only competent evidence by him of that fact. Brown v. Leek, 221 Ala. 319, 128 So. 608; Adams v. Central of Georgia R. R., 198 Ala. 433, 73 So. 650; Ex parte McLendon, 239 Ala. 564, 195 So. 733.
There was no evidence offered as to the status of the divorce records of Jefferson County in that respect.
The evidence was all rendered ore tenus on the trial. The court based a decree denying relief on the insufficiency of this evidence to overcome the presumption that the marriage of Monnie Mae and Ed was legal, as declared in a number of our cases, many of which were cited by him. The last of them was Faggard v. Filipowich, 248 Ala. 182, 27 So. 2d 10, which cites the others.
We pretermit a consideration of the question of whether Ed and Annie were legally competent to marry when they did, and assume for argument that they were competent. Faggard v. Filipowich, supra. But the law casts a strict burden upon Annie to show that the marriage of Ed with Monnie Mae was illegal by proving a negative, that she and Ed had not been divorced. Her own testimony to that effect must be supported by legal evidence that the divorce courts of all the counties in the State, which would have jurisdiction of such a suit, did not have a record of a decree of divorce. The evidence shows that such a suit could have been maintained in Jefferson County by Annie against Ed who lived in that county, or in Dallas County either by Ed against Annie or by Annie against Ed, since that was the county in which Annie resided all the time and in which they resided when the separation took place. Section 28, Title 34, Code. There was no legal evidence offered as to such records. There was therefore no error in the rendition of the decree denying relief. Ex parte Young, 211 Ala. 508, 101 So. 51; see, also, Sloss-Sheffield Steel & Iron Co. v. Watford, 245 Ala. 425, 17 So. 2d 166.
After the decree was rendered, the complainant made a motion for a rehearing under Rule 62, Equity Practice, Code 1940, Tit. 7, Appendix and offered to show that she could produce the register of Dallas County as a witness who would testify that the divorce court of that county showed no record of such a divorce, and that her attorney had examined the divorce records of Dallas and Jefferson Counties and no such divorce was there shown. The trial court overruled the motion for a rehearing. Counsel for appellant recognizes the principle that no appeal will lie from a decree overruling a motion for a rehearing in equity. Rudolph v. Rudolph, 251 Ala. 317, 36 So. 2d 902; Spurling v. Spurling, 250 Ala. 612, 35 So. 2d 502; Rule 62, Equity Practice, Code 1940, Tit. 7, Appendix.
The appeal is taken from the final decree only, as was appropriate. But the assignments of error include the decree denying a rehearing. That decree was not subject to review by assignments of error made on appeal from the final decree. The duty to include it in the transcript, as held in Campbell v. Rice, 244 Ala. 144, 12 So. 2d 385, does not aid appellant in this connection. It cannot be considered in determining whether there was error in rendering the final decree. We are not therefore privileged to review the ruling of the court on the motion for a rehearing, and it serves no purpose on this appeal.
Affirmed.
LAWSON, SIMPSON and STAKELY, JJ., concur. | May 18, 1950 |
f83b7557-48f1-4387-8f6f-515b3b079f78 | Helms v. State | 47 So. 2d 276 | N/A | Alabama | Alabama Supreme Court | 47 So. 2d 276 (1950)
HELMS
v.
STATE.
6 Div. 980.
Supreme Court of Alabama.
June 22, 1950.
*277 John W. Brown and H. G. Bailey, of Boaz, for appellant.
A. A. Carmichael, Atty. Gen., and L.E. Barton, Asst. Atty. Gen., for the State.
LAWSON, Justice.
The appellant, Marvin Helms, was indicted for the murder of his wife, Pearl Helms. Upon his trial he was convicted of murder in the first degree and was sentenced to the penitentiary for life. This appeal is prosecuted by him for the purpose of reversing the judgment of conviction.
It is insisted by appellant that the evidence is not sufficient to support a conviction of any degree of homicide. If this is true, the court was in error in refusing to give the affirmative charges as requested by appellant, defendant below, and in overruling the grounds of his motion for new trial which take the point that the verdict was contrary to the weight of the evidence. Blue v. State, 246 Ala. 73, 19 So. 2d 11.
The defendant and the deceased lived on a farm approximately four miles west of Johnson's Crossing, a community in Cullman County. The deceased was the second wife of defendant. They had been married for approximately three years. The defendant was the father of nine children by his first wife, one of whom, Ollie Helms, was married to the daughter of George Twilley, who lived a short distance from the home of the defendant.
Ollie Helms and his wife lived in "town," presumably Cullman. They came to the home of George Twilley to spend the 1949 Fourth of July week-end.
On Sunday morning, July 3, 1949, George Twilley and Ollie Helms walked to the home of the defendant. They drank whisky *278 and beer with the defendant and the deceased and remained for dinner, which the deceased prepared. Some time after dinner, the four of them drove to Johnson's Crossing in the defendant's automobile, which he drove. At this point the deceased, Mrs. Helms, appeared to be more intoxicated than any of the men. After making some purchases at Hamilton's store, the party proceeded in the general direction of their homes. They stopped at the home of Jim Crawford. None of them got out of the car, but Mr. Crawford joined them, or some of them, in drinking whisky. From the Crawford home they proceeded to the home of George Twilley. The deceased, Pearl Helms, did not get out of the car when they arrived at the Twilley farm. The men did get out of the automobile and proceeded to the barn and hog pen, where more whisky was consumed.
George Twilley, a witness for the State, testified in effect that while the men were at the hog pen the defendant called his wife twice and, receiving no answer, said to Twilley, "If she has run off and left me, I will kill the _____ of a _____."
The deceased was not in the automobile when the men returned to it. She was not seen around the Twilley farm. According to State witnesses, the defendant, upon finding his wife gone, said, "Just let her go to hell."
Evidence for the defendant is to the effect that he made no such statements.
The witness Twilley also testified that during the course of the afternoon he heard the deceased curse the defendant.
The defendant left the Twilley home in his automobile alone between 6:30 and 7:00 p. m. He had proceeded only a short distance in the general direction of his home when his automobile went into a ditch on the left-hand side of the road. His son, Ollie, and George Twilley went to his assistance, but they were unable to get the automobile back into the road. Ollie secured the assistance of William Crawford, who used his truck in getting defendant's car back into the road.
When Ollie and Crawford arrived with the truck, the defendant was lying on the ditch bank in an intoxicated condition. He did not speak to Crawford, but did make inquiry as to the whereabouts of his wife. Ollie assisted his father into the automobile and then drove him home. They arrived there after dark at about 7:30 p. m. There was no light on in the residence. Ollie used the flashlight which he obtained from the glove compartment of his father's automobile. He helped his father into the house and then put him in bed without removing his clothes or shoes. Ollie placed the flashlight on the radio table which was near the bed. He did not see his stepmother in the house. Neither he nor his father made any effort to ascertain whether she had come home. Ollie then returned to the home of his father-in-law, George Twilley, where he spent the night.
Between 6:00 and 6:30 on Monday morning, July 4, 1949, the defendant walked from his home to that of George Twilley, and informed Twilley and Ollie that his wife, Pearl, had been killed and requested that the "law" be notified and an ambulance called.
Sheriff Hyatt, two of his deputies, the coroner and others arrived at the home of defendant between eight and nine o'clock on the morning of July 4, 1949.
They found the body of Mrs. Pearl Helms lying face up on the floor of a small outbuilding situated approximately 95 feet northeast of the residence.
The outbuilding seems to have been used principally for the purpose of storing commercial fertilizer and farm equipment. There was an iron bed in the building which had been placed there some time previously for the use of defendant's son, Ollie. This bed, however, had been used occasionally by both the defendant and the deceased, and in one instance they slept there together. According to defendant, the deceased slept there alone only on occasions when the radio in the dwelling disturbed her. However, there was evidence for the State tending to show that the defendant sometimes slept in the outbuilding after a "row" with the deceased.
The legs of the deceased from her knees down to her feet were under the bed. Her *279 body from the waist up was unclothed. There were bruises, cuts and abrasions all over the body of deceased, from her head to her feet. Her head was cut all the way to the skull, but the skull was not fractured. No bones were broken. There were imprints of teeth all over her breasts and on other parts of her body. Blood was in her hair. Her face was mashed in and her lower lip nearly cut off.
The cause of death was fixed at stock and loss of blood from the numerous wounds on her body.
The condition of the building indicated a terrific struggle. Blood was "spattered" over the floor and high up on the walls of the building. Blood and long dark hair, of the color and texture of the hair of deceased, was all over the bedclothes and on the footrail of the bed. There were a number of little particles that appeared to be human flesh on the bedposts.
There was no indication of blood in the yard between the small outbuilding and the main residence.
The defendant was present when the investigating officers arrived at his home and he answered all questions propounded to him without reluctance. He denied any connection with the death of his wife. He did not appear to be excited to a great extent, but was nervous. He appeared to be sober, although there were indications that he was suffering from the after-effects of excessive drinking. He had on clean clothes. Without voicing any objection, he permitted the officers and members of the coroner's jury to examine his body for scratches and bruises. There are tendencies of the evidence which show that there were "fresh" scratches and bruises on his face and arms and one eye was black. However, there is evidence from witnesses for both the State and the defendant that the condition of his eye was the same as it was prior to the time of the death of his wife. There was evidence of the fact that the knuckles of his right hand were swollen. His hands appeared to have dried blood on them.
The officers made a thorough search of the main residence of the defendant. They found evidence of blood on the bedclothes of a bed which appeared to have been slept in the previous night. Under the bedclothes was a flashlight, upon which was found blood smears. Without protest from the defendant, they were permitted to examine a plastic belt which he was wearing, his billfold, and his shoes. There was a substance on each of these articles which appeared to be blood. At the request of the officers, the defendant gave them the key to a trunk which was located in the bedroom of the main residence. Upon opening the trunk, they found a pistol which had evidence of blood on it. Under the house a part of a hoe was found which had blood and human hair on it. The officers also found indications of blood on doorknobs and door handles in the main house.
The defendant was taken to jail some time between one and two o'clock. After arriving at the jail the defendant again denied any connection with the death of his wife. He permitted the sheriff to scrape his fingernails.
The articles which appeared to have blood on them and the fingernail scrapings were all forwarded to the State Toxicologist, who testified to the effect that blood was found on all of them. As to each article except one of the doorknobs and the fingernail "scrapings," he testified that the blood was that of a human being. There was insufficient blood on the doorknob and in the fingernail "scrapings" to determine whether it was the blood of a human being.
Sheriff Hyatt, a witness for the State, testified as to a conversation he had with the defendant in his jail cell on the afternoon of July 5, 1949. The defendant sent for the sheriff. He told the sheriff that he wanted to tell what happened. In this conversation the defendant said that he didn't remember anything that happened from the time his son Ollie brought him home and put him to bed on the night of July 3rd until around six or six-thirty on the morning of July 4th. After arising, he fed his stock. He then looked for his wife, Pearl. He found her body in the little outbuilding. He put his hand on her head and breasts and found that she was "cold." He found his hat lying on the floor near the foot of *280 the bed. He took the hat back to his dwelling house and burned it in a "heater," along with the clothes which he had had on, which were "stiff." When the sheriff asked the defendant if he took out of the building the object with which he had "hit" the deceased, the defendant replied, "* * * No, he didn't hit her with anything but his fists." According to the sheriff, the defendant, in that conversation, told him "if I would look on her body I would probably find where she had been bitten all over," and that the deceased had bit him on his lower lip. On cross-examination, Sheriff Hyatt testified that in the conversation the defendant said that he was drunk all night and didn't know what happened; that "I may have done it, but I don't know anything about it."
Proper predicate was laid for the introduction of evidence of incriminating statements of defendant.
Officers removed the contents of the heater in which defendant stated he had put his hat and clothes. A small piece of cloth was found, which the evidence shows was of the kind used in the making of men's trousers. It further appears from the evidence that the color of the clothing worn by defendant on the afternoon of July 3rd was similar to that of the piece of cloth.
The defendant testified in his own behalf. His version of the events of Sunday, July 3, 1949, is in accord with that already stated in this opinion up until the time he, the deceased, his son Ollie and George Twilley reached the latter's home. The defendant testified that they reached Twilley's home about five o'clock in the afternoon, where they took some drinks; that after taking the drinks at Twilley's he doesn't remember anything that transpired until he awoke on the following morning. He denied that there had been any trouble between him and his wife on Sunday. According to the defendant, after he awoke on the morning of July 4th he looked for his wife in their home and in the car. He then went to the little outbuilding, where he found her body. He put his hand on her head and found that she was "cold"; that while he was down over the body of his wife, his hat fell off and he picked up a flashlight which was lying by the side of his wife. He stayed in the building about five minutes and then went back to his house. When he got to his house he opened his trunk and put a knife in it. The pistol was lying in the trunk and he picked it up and emptied the shells into a cigar box, put the pistol back in the tray of the trunk, and then went in the kitchen and washed his hands. He saw that there was blood on his clothes and he put them and his hat in the heater and then put on clean clothing. He then proceeded to the home of George Twilley, where he told Twilley and his son, Ollie, of the death of his wife and asked that they notify the "law" and call an ambulance.
The defendant admitted that he summoned the sheriff to his jail cell on the afternoon of July 5th, but claimed that it was for the purpose of advising the sheriff as to the location of some whisky stills. He denied making any incriminating statements in his conversation with the sheriff, although he admitted that he told the sheriff that he had burned his hat and clothes. On cross-examination, it appears that the defendant found his hat on the floor of the building when he located the body of his wife, while, as above indicated, on direct he had testified that his hat fell off his head when he was bending over the body of his wife. He denied that he killed his wife or that he struck her with anything and said, "I don't remember a thing about it." On cross-examination he admitted that on one occasion during their married life his wife had had him arrested, but claimed that there had been no serious differences between them.
It is admitted, of course, that the evidence in this case shows that a crime had been committed. Counsel for the defendant contend, however, that the evidence was not sufficient to show that the defendant was the guilty agent. We cannot agree with this contention. We are clear to the conclusion that the circumstances of time, place, motive, means, opportunity, and conduct concur sufficiently to have authorized the jury to find that the defendant is the perpetrator of the acts of violence *281 which caused the death of the deceased. Jarrell v. State, 251 Ala. 50, 36 So. 2d 336, and cases cited.
It is next insisted by counsel for the appellant that even if it be found that the evidence is sufficient to support a finding that the defendant did bring about the death of his wife, that it is not sufficient to justify a verdict of murder in the first degree, and that the evidence shows that the defendant was so drunk as to have been incapable of forming a specific intent essential to a malicious killing or premeditation and deliberation essential to murder in the first degree.
Voluntary drunkenness neither excuses nor palliates crime. But in murder cases evidence of drunkenness to such degree that he accused is incapable of rational action and hence incapable of forming a specific intent essential to a malicious killing may reduce the killing to manslaughter, or may negative the premeditation and deliberation essential to murder in the first degree, or reduce the crime to murder in the second degree. Ivory v. State, 237 Ala. 344, 186 So. 460; King v. State, 90 Ala. 612, 616, 8 So. 856.
The jury was instructed by the oral charge of the court and by special charges given at the request of the defendant as to this rule of law. The evidence of drunkenness in this case was sufficient to make an issue before the jury on this question.
Accordingly we hold that there was no reversible error in refusing to give the affirmative charges requested by the defendant as to the several degrees of homicide and in overruling the grounds of the motion for new trial which were predicated on the weight of the evidence.
Without objection on the part of the defendant, the State was permitted to show that the defendant carried a rifle with him on the morning of July 4th when he went to the home of George Twilley to tell him and Ollie Helms of the death of his wife. This fact was also brought out by counsel for the defendant on direct examination of the defendant. It is insisted here, however, that reversible error was committed by the trial court in permitting the State, over the objection of defendant, to show that the defendant, during the course of the investigation made at his home on the morning of July 4th, said that he carried the rifle because the hawks were eating up his chickens and he might have gotten a chance to kill one. We cannot see how the defendant could have been injured by this evidence. It was in effect a self-serving statement, explanatory of why he had a rifle in his possession on the morning after the homicide, and such statement did not in any wise tend to connect him with the offense with which he was charged. Conceding, without deciding, that the testimony was inadmissible, we will not predicate a reversal on its introduction in evidence. Supreme Court Rule 45, Code 1940, Tit. 7 Appendix.
Several witnesses were called by the defendant for the purpose of giving evidence as to his general reputation. Only three of them were shown to be competent witnesses in this respect. Two of the three witnesses who did testify that the defendant's general reputation in the community where he lived was good, were asked, in effect, on cross-examination as to whether or not they had ever heard that the defendant had been placed under bond to keep the peace. Only one of the witnesses answered and he denied having heard it.
When a witness testifies as to the general reputation or character of defendant, it is competent on cross-examination to test the witness' knowledge of this reputation or character of which he did testify by asking if he had not heard of specific acts of the defendant that tend to militate against his reputation or character. Barnett v. State, 165 Ala. 59, 51 So. 299; Bell v. State, 170 Ala. 16, 54 So. 116; Hill v. State, 194 Ala. 11, 69 So. 941, 2 A.L.R. 509; Hill v. State, 210 Ala. 221, 97 So. 639; Vinson v. State, 247 Ala. 22, 22 So. 2d 344; Wright v. State, 247 Ala. 180, 23 So. 2d 519. In any event, the question was harmless in view of the negative answer. Hamlett v. State, 19 Ala.App. 218, 96 So. 371.
On cross-examination of the defendant, the State sought to elicit from *282 him the fact that he had been placed under a peace bond. Objections interposed by the defendant were sustained. In this ruling the trial court was eminently correct. In Caldwell v. State, 160 Ala. 96, 99, 49 So. 679, 680, it was said: "The court erred in permitting the solicitor to examine the defendant in respect of difficulties he had previously had with named persons. These questions would have been permissible, if addressed to those of defendant's witnesses, who had testified to defendant's reputation for peace and quiet, but not so when propounded to defendant. Andrews v. State, 159 Ala. 14, 48 So. 858."
The State was not entitled to make such proof on the theory that it would tend to affect the credibility of the defendant as a witness, for one who is required to give security to keep the peace is not convicted of any offense, much less one involving moral turpitude. Howard v. State, 121 Ala. 21, 25 So. 1000.
Although the trial court refused to permit the State to show on cross-examination of the defendant that he had been placed under a peace bond, it did permit the State on rebuttal to show by a justice of the peace of Cullman County that he placed the defendant under a $1,000 bond to keep the peace. This was over the objection of the defendant.
The trial court also permitted the State, over the strenuous objection of the defendant, to introduce the following documentary evidence:
In permitting the introduction of this documentary evidence the record shows the following remarks of the trial court:
"It is not on the credibility of the witness; it is on the probative value of his reputation that he has put in issue.
"Overruled; and will allow it to be introduced to go only to the question of reputation, in rebuttal to the witnesses heretofore introduced by the defendant."
In permitting proof of the fact that the defendant had been placed under peace bond, in a proceeding with which the deceased was not shown to have been connected, the trial court committed reversible error.
The State, of course, had the right to rebut the evidence as to defendant's good reputation, but could not do so by proof of particular acts tending to show his bad conduct. Proof of general reputation alone is admissible. Andrews v. State, 159 Ala. 14, 48 So. 858; Smith v. State, 25 Ala.App. 79, 141 So. 265. The distinction between the right to cross-examine a witness who has testified as to the good reputation of the defendant as to whether or not he had heard of specific acts of misconduct on the part of the defendant and the proof of particular acts on direct examination is shown in the following language quoted from the opinion in the case of Andrews v. State, supra: "On crossexamination the state asked the witness Dr. Carter, who had testified to the good character of defendant, `How many fights do you recall that he has had?' and he answered that he had heard of but two. The defendant objected to the question, and moved to exclude the answer, both of which were overruled. While the character of a witness or of the defendant cannot be proved by particular acts, nor can the evidence of his good character be rebutted by proof of particular acts, yet, for the purpose of testing the credibility or accuracy of the character witness, he may be asked, on cross-examination, whether or not he has heard of particular acts *283 * * *." (Emphasis supplied.) 159 Ala. 25, 48 So. 862.
We now treat the charges requested by defendant and refused by the court.
Refused Charges 14, 16, and 54 were refused without error. They were substantially and fairly covered by the court's oral charge and written charges given at the request of the defendant. Without holding that said refused charges stated correct principles, their refusal does not constitute reversible error. § 273, Title 7, Code 1940.
Charge 18 is faulty in that it restricts the measure of proof required to convict the defendant to that furnished by the prosecution, instead of to the whole evidence in the case. In this case some of the criminating evidence was furnished by the defendant. Sanders v. State, 134 Ala. 74, 32 So. 654; Daniels v. State, 243 Ala. 675, 11 So. 2d 756; Robinson v. State, 243 Ala. 684, 11 So. 2d 732.
Charge 37 is argumentative and confusing. It was refused without error.
Refused Charge 46 is almost an exact duplicate of given Charge A-4. Hence, assuming, without deciding, that it states a correct principle, it was refused without error. § 273, Title 7, Code 1940.
Charge 51 requested by the defendant was properly refused on the authority of Lambert v. State, 234 Ala. 155, 174 So. 298. Charge 16 in that case was in the identical language of Charge 51 and it was held properly refused. Moreover, Charge 51 was fully covered by the court's oral charge and written charge's given at the request of the defendant.
Charge 53 was refused without error. Similar charges have been held to have been properly refused in the following cases: Vaughn v. State, 130 Ala. 18, 30 So. 669; Spraggins v. State, 139 Ala. 93, 35 So. 1000; Tompkins v. State, 32 Ala. 569; Wharton v. State, 73 Ala. 366; Grant v. State, 97 Ala. 35, 11 So. 915.
It is strenuously insisted in brief filed here in behalf of the appellant that the trial court erred in refusing to grant a new trial on the ground that the jury had not been kept together while the case was in progress. We pretermit any discussion of this question because the judgment of the trial court must be reversed for the error heretofore pointed out.
The judgment of the trial court is reversed and the cause is remanded.
Reversed and remanded.
BROWN, FOSTER, and STAKELY, JJ., concur. | June 22, 1950 |
bf4d4ce2-57f9-42a1-ba48-517198c003b8 | Louisville & NR Co. v. Manning | 50 So. 2d 153 | N/A | Alabama | Alabama Supreme Court | 50 So. 2d 153 (1951)
LOUISVILLE & N. R. CO.
v.
MANNING.
6 Div. 873.
Supreme Court of Alabama.
January 18, 1951.
*154 Chas. H. Eyster, of Decatur, and Gibson & Gibson, of Birmingham, for appellant.
Taylor, Higgins, Windham & Perdue, of Birmingham, for appellee.
BROWN, Justice.
This is an action of trespass on the case by an employee against the master under the Federal Employers' Liability Act. 45 U.S.C.A. § 51 et seq. The case went to the jury on Count "A" of the complaint, which embodied the following averments as to the character and extent of plaintiff's injury and damage: "Plaintiff's head was badly cut, bruised and injured, and he was caused to sustain a concussion of the brain and was permanently injured, he was made sick and sore and was caused to suffer great physical pain and mental anguish, his nervous system was shocked and impaired, was permanently shocked and impaired, he was caused to lose time from his work and lost money thereby, and was caused to incur expense in and about his efforts to heal and cure his said wounds and injuries, and plaintiff was permanently disabled and was rendered permanently less able to work and earn a livelihood."
Said complaint ascribed plaintiff's injury and damage to the negligence of a servant, agent or employee of defendant, acting within the line and scope of his employment at said time and place, in negligently causing or negligently allowing said large and heavy piece of flooring to strike plaintiff on his head.
The defendant pleaded the general issue in short by consent with leave to give in evidence any matter which if specially pleaded would constitute a defense to the action, with leave to the plaintiff to reply by giving in evidence any matter which would be an answer to the matter if so specially pleaded.
On the issues formed by the averments of Count "A" and the plea interposed, the case was submitted to the jury, resulting in a verdict for plaintiff assessing his damages at $35,000.00. This verdict, on motion made in due course by the defendant, was held to be excessive by the trial court and reduced conditionally to $12,500. Upon a remittitur being filed by the plaintiff, remitting the damages to said sum, the motion for a new trial was overruled.
The evidence was without dispute that on November 13, 1947, the plaintiff was an employee of the defendant and was working as a car repairer or carpenter, engaged with another employee of the same class, a Mr. Walls, in flooring a boxcar with creosoted gum lumber in boards 9 ft., 4 inches in length, 5¼ inches in width, and 2½ inches thick. Each of said pieces of flooring weighed from 35 to 40 lbs.
The track on which the car was situated ran generally north and south. In doing such work, the men engaged therein worked in pairs, one at each side of the car. The plaintiff's place of work was on the west side of the car and Walls' place of work was on the east side of the car. They had started work at the north end of the car and prior to the incident which is the basis of this action, had floored eight *155 to ten feet toward the center of the car. At this point, the two workmen, acting in concert, undertook to "jack" the floor boards which they had placed in the car to make the floor tight, closing all cracks or looseness, so that it could be bolted or nailed down to a "diaphragm" or "cover plate." To accomplish the result desired, each of the workmen used a piece of the flooring timber as a "pry" or "jack" to press the flooring tightly together before it was permanently fastened. What is referred to in the evidence as a "diaphragm" we take to be a part of the framework of the boxcar level with the floor. Walls got his pry piece into the space, wedged against the diaphragm, and noticing that the plaintiff was having difficulty in getting his pry into the space, left his pry standing upright or leaning toward the center of the car, without support except the friction or wedged tension to hold it, and moved over to plaintiff's side, got in front of plaintiff with a sledge hammer and attempted to drive plaintiff's pry piece into the hole, and hit the side of plaintiff's pry piece two licks. When Walls hit plaintiff's timber, the timber which Walls had left standing in the wedged space fell and struck plaintiff on the head, inflicting the injuries complained of. In this regard, Walls testified as follows: "I pulled mine back and left the piece of pry flooring in an angle, and I stepped over there to help him drive his board in between this cover plate so he could pull his back, and this board I had put in here slid over and hit him."
Before the jury retired, and in their presence, upon the conclusion of the court's oral charge, the defendant requested in writing the general affirmative charge for the defendant in proper form, which was refused, and now contends that "the testimony showed either that no negligence was involved in the act of driving up plaintiff's end of the plank as it was doneor that if there was any negligence plaintiff was an equal actor with Walls in committing it," and therefore the court erred in refusing said charge. In support of this contention, appellant argues, "But, it may be said, if it was not negligence to drive in the plaintiff's pry bar with the sledge, it was negligence for Walls to leave his pry bar standing. This theory, if it should be advanced is unsound for two reasons. One reason is factualthe evidence for the plaintiff affirms that it was a customary and usual practice in the business of flooring cars, and nothing in the record indicates that it was inherently a dangerous one, unless the mere fact that in this instance someone was hurt can be said to supply that element. The other is a legal reasonit was not the proximate cause of the injury. The proximate cause of an injury is the primary moving cause, which, in the natural and probable sequence of events, without the intervention of any new or independent cause, produces the injury. Clearly enough, the wedging of Walls' end of the flooring timber with a pry-board, left there to hold it, was not the proximate cause of its fall and plaintiff's injury."
This argument ignores or overlooks the very essence of the act of Walls according to his own testimony which we have quoted above. This statement shows that leaving the timber wedged without any support and going to assist plaintiff and hitting plaintiff's pry piece with a sledge hammer was a single continuing act, and in the light of the whole evidence, presents the crucial question in this case, that is, did Walls under the circumstances, exercise the care of a reasonable, prudent man, likewise situated? Reaves v. Maybank, 193 Ala. 614, 69 So. 137; McCray v. Sharpe, 188 Ala. 375, 66 So. 441; Barbour v. Shebor, 177 Ala. 304, 58 So. 276. If it was not, his act was negligence, as measured by the common law, and the question of whether or not said act was a negligent act, was for the jury, as was the question of proximate cause of plaintiff's injury.
"The logical rule in this connection, the rule of common sense and human experience as well (if, indeed, there can be a difference between a logical doctrine and one of common sense and experience, as some authorities appear to hold), is that a person guilty of negligence should be held responsible for all the consequences which a prudent and experienced man, fully acquainted with all the circumstances which in fact existed, whether they could *156 have been ascertained by reasonable diligence or not, would, at the time of the negligent act, have thought reasonably possible to follow, if they had occurred to his mind. 1 Shear. & R. Neg. § 29." Armstrong Adm'x. v. Montgomery Street Railway Co., 123 Ala. 233, 26 So. 349, 354; Goodwyn et al. v. Gibson, 235 Ala. 19, 177 So. 140; Louisville & N. R. R. Co. v. Maddox, 236 Ala. 594, 183 So. 849, 118 A.L.R. 1318; Montgomery City Lines, Inc. v. Jones, 246 Ala. 291, 20 So. 2d 599; The G. R. Booth, 171 U.S. 450, 19 S. Ct. 9, 43 L. Ed. 234.
On the trial all the facts and circumstances bearing and attendant upon the infliction of the injury upon the plaintiff for which redress is sought in this case were fully developed and set forth in the evidence. The plaintiff himself testified affirmatively to receiving the injury, to the environment of the occurrence and to all its concomitant and pertinent antecedents, to its cause and to the manner of its causation. The evidence was sufficient to warrant the jury in proceeding to find a verdict in favor of the plaintiff. This meets the rule established by the federal decisions and decisions of this court as to the sufficiency of the evidence to warrant a submission to the jury in cases under the Federal Employers' Liability Act. Birmingham Belt R. Co. v. Bennett, 226 Ala. 185, 146 So. 265; Louisville & N. R. R. Co. v. Hall, 223 Ala. 338, 135 So. 466; Bowditch v. City of Boston, 101 U.S. 16, 25 L. Ed. 980.
Dr. Magruder, Jr., defendant's witness, testified that on the 13th of November, 1947, the plaintiff was brought to his office with a laceration of the scalp across the top of his head, that he gave him the usual treatment and then asked plaintiff if he felt like going back to work. Plaintiff agreed to light duty. On this examination plaintiff had no dizziness and his pupils showed no signs of brain injury. This examination revealed no signs of brain injury. On the 18th plaintiff returned to the said doctor's office, stating he was dizzy and felt like he was going to fall down. His blood pressure was 200 over 110. He was sent to the hospital where he remained until the 23rd. At the hospital X-rays were taken of his skull, which showed no evidence of fracture. He improved in the hospital and his blood pressure was 170 over 82. His pulse indicated there had not been severe injury to the brain. He was discharged on the 23rd of November and returned to the office on the 5th of December, complaining of dizziness. He was advised to take it easy at home. On the 23rd of December he returned to the office and his blood pressure was 200 over 120, one reading, and one reading 190 over 110. Dr. Magruder stated that it was thought that the high blood pressure was not caused by the accident and plaintiff was advised to rest at home. He returned to the office on the 4th of February and his blood presure was 160 over 100, his heart and urine were all right and he was allowed to return to his job. Dr. Magruder testified that he, his father, Dr. Magruder, and his uncle, Dr. Wilson, believed that plaintiff had sustained no permanent injury. On cross-examination Dr. Magruder testified that the history of the case as he knew it coupled with the hypothetical supposition that the patient acted very abnormally in December after the accident, was very slow to answer questions, stood and stared off into space and was slow in his responses, would indicate the possibility of some brain injury.
During the direct examination of plaintiff's lay witnesses, all of whom with the exception of Mrs. Manning were fellow employees, after they had stated their acquaintance and association with the plaintiff, were allowed to testify, as indicated below, over the defendant's objections, which were in substance that such evidence was illegal, irrelevant, incompetent, immaterial, called for an opinion and conclusion of the witness, that the witness was not qualified and called for testimony that invades the province of the jury. The questions and answers set out below were the subject of these exceptions.
During the direct examination of Mr. F. C. Hunt, who stated that he had known plaintiff for about eleven years, had worked near him and had observed him before and *157 after the accident, he was asked the following questions and gave the following answers:
"Q. Did he appear, Mr. Hunt, to be normal before he is said to have been hurt? A. Yes, sir. * * *
"Q. Did he appear to be normal since he is said to have been injured, Mr. Hunt? A. No, sir."
During the direct examination of plaintiff's wife, who married plaintiff in 1910, the following questions and answers were offered:
"Q. Since the accident occurred has he appeared to be normal? A. He hasn't * * *
"Q. During that period of time did he appear to act normally? A. No, he was not normal."
During the direct examination of Mr. R. C. Hall, who stated that he had known plaintiff since 1943, that he was gang foreman under whom plaintiff worked and that he had observed plaintiff before and after the accident, he testified as follows:
"Q. I will ask you whether or not when he came back and worked those four days in December he acted normally? A. No, he did not act normally."
Arthur J. Ranson, after stating that he had known plaintiff for about twenty years, that he worked on the same crew with him and had observed him before and after the accident, testified as follows:
"Q. Did he act normally? A. No, sir.
"Q. He did not act normally? A. No, sir."
Mr. E. C. Beasley stated that he had known plaintiff since 1943 or 1944, that he had worked with him every day for eight months and had seen him often before and since the accident. He testified as follows:
"Q. I want to ask you, Mr. Beasley, since Mr. Manning was injured whether or not he has acted normally? A. No, sir; he hasn't seemed like himself."
G. P. Bandy testified on direct examination that he had known plaintiff about six or seven years, had worked close to him in the same shop and had had opportunity to observe him before and after the accident. He then testified as follows:
"Q. I want to ask you whether he now acts like a normal person? A. He acts peculiar to me. I would say, in other words, he acts like a crazy man to me.
"Mr. Eyster: We move to exclude the answer on the same grounds.
"The Court: I will exclude the statement `he acts like a crazy man.' I don't know
"Mr. Perdue: We except.
"Q. At that time did he act like a normal person? A. No, sir."
Amos Knopp testified that he had known plaintiff about four years, worked on the same line with him, and had observed him before and after the accident. In response to questions on direct examination, he testified as follows:
"Q. Mr. Knopp, I want to ask you whether or not since the 13th of November, 1947, when Mr. Manning is said to have been injured, in your opinion, he has acted normal? A. No, sir, he didn't seem like a normal man to me at all."
Thomas Russell Howard, after stating that he knew the plaintiff and had observed him before and after the accident, testified:
"Q. I want to ask you whether or not in your opinion, please, sir, before he got hurt on November 13, 1947, he acted as a normal person? A. Yes, sir, he was normal. * * *
"Q. I am asking you another question. Since he got hurt on November 13, 1947, I want to ask you whether or not he acts like a normal person? A. He does not act normal. * * *"
In Disheroon et al. v. Brock, 213 Ala. 637, 105 So. 899, 900, the court speaking through Justice Somerville, observed:
"It is not easy to reconcile all of our decisions as to the admissibility of a witness' testimony as to the mental or emotional state of another person whom he has observed. We think, however, that the trial court did not err in permitting Mrs. Hayes to state, as a collective fact, that plaintiff was `awfully nervous' shortly after the alleged search of her home and for *158 a week afterwards. South & N. A. R. Co. v. McLendon, 63 Ala. 266; Prince v. State, 100 Ala. 144, 147, 14 So. 409, 46 Am.St.Rep. 28; Long v. Seigel, 177 Ala. 338, 58 So. 380. Such statements, subject as they are to cross-examination, can do little harm in any case, and the trend of modern decisions is opposed to making their admission a ground for the reversal of judgments unless they are clearly improper and manifestly prejudicial." [Italics supplied.]
In a later case, Capital Motor Lines v. Gillette, 235 Ala. 157, 162, 177 So. 881, 885, Justice Bouldin who concurred in the opinion of Justice Somerville in the Disheroon case, observed:
"In Armour & Co. v. Cartledge, supra [234 Ala. 644, 176 So. 334, 339], a physician who had testified to certain mental and physical infirmities was held incompetent to testify that such person was incapable of safely driving an automobile. This on the ground that the physician showed no expert knowledge of qualifications to drive a car. His expert evidence was admitted within the sphere of expert knowledge, but the jury left to take his evidence and apply their own common knowledge and judgment in solving the question of the capability of the man to drive a car.
"So, here, the witness could state the visible symptoms, including appearances, discernible by association, but it must be left to the jury to reach their conclusion in the light of all the evidence as to whether plaintiff was able to pursue her teaching profession.
"We are impressed the error in admitting this evidence on a most vital issue worked probable injury to defendant, which must lead to a reversal.
"We may add that general statements of other nonexpert witnesses, to the effect that plaintiff was not `normal' after her injury, were too indefinite, inviting the jury to speculate on the extent of her trouble. The witnesses should state the facts, showing wherein she was different. These would include appearances, reactions of any kind, which would shed light on the issue before the jury."
We believe the true rule to have been clearly stated by Mr. Justice Sayre in Brandon v. Progress Distilling Co., 167 Ala. 365, 368, 52 So. 640, 641, as follows:
"* * * There have been cases decided here in which it was held that a witness may state his judgment as to the existence vel non of facts where the facts stated were collective facts and the judgment of them was based upon knowledge of all the constituent elements. Sometimes it is impracticable to lay before the jury all the details upon which the collective fact is based. East Tenn. V. & G. R. R. Co. v. Watson, 90 Ala. 41, 7 So. 813; McVay v. State, 100 Ala. 110, 14 So. 862. It has been said that the soundness of the conclusion in such a case is to be tested on cross-examination. But it has never been held that a witness may usurp the function of the juryor the court, when it passes on the factsby stating his conclusion as to the very fact in issue between the parties. The rulings have been to the contrary. Louisville & N. R. R. Co. v. Landers, 135 Ala. 504, 33 So. 482; Moore v. Monroe Refrigerator Co., 128 Ala. 621, 29 So. 447. The error here involved was not relieved of injurious consequence by the fact that elsewhere in his testimony the witness detailed some facts which may have tended to show that defendant was a partner in the firm of Donegan & Lacy, but which, standing alone, were wholly inadequate to sustain that conclusion."
This case has been repeatedly followed. Sovereign Camp, W.O.W. v. Hutchinson, 217 Ala. 71, 114 So. 684; Colvin v. State, 247 Ala. 55, 22 So. 2d 548; Watkins v. Reinhart, 243 Ala. 243, 9 So. 2d 113; Crotwell v. Cowan, 236 Ala. 578, 579, 184 So. 195; State v. West Point Mfg. Co., 236 Ala. 467, 183 So. 449, and cases therein cited.
Under the pleadings and evidence in this case, it was a question for the jury to ultimately determine the consequence of plaintiff's hurt, whether he was normal after his injury or abnormal.
*159 The objections by the defendant to the questions above enumerated were not well taken and were properly overruled, though some of the answers were not responsive to the question and were subject to motion to exclude, and in one instance, when such motion was made, part of the answer was excluded. We here refer to the answer of the witness Bandy, "he acts like a crazy man to me." The last answer of Mrs. Manning, "No, he was not normal" was subject to the motion to exclude. The same observation is made in respect to the answer of the witness Thomas Russell Howard, "Yes, sir, he was normal."
The defendant, before the jury retired, excepted to the following excerpt from the oral charge of the court: "If the plaintiff is entitled to recover, he is entitled to recover such sum as, in the sound discretion of the jury, will afford him reasonable compensation for any and all damages sustained, that is, any loss of earnings in the past, present or future, any permanent injury, any expenses incurred in treating any injuries which may have been proven to your reasonable satisfaction, and then compensation for physical pain and suffering, both past and present and future." [Italics supplied.]
The defendant insists that the statement italicized is unsound in that it authorizes the jury to include in the award future earnings without factual basis for such earnings, instead of "disabling effect of the plaintiff's injuries" and that the injurious consequences of such charge was reflected in the verdict of the jury.
While the statement is not clothed in the correct and exact language of the law, which we find to be fully stated in South & North Alabama Railroad Co. v. McLendon, 63 Ala. 266, 272, as follows: "When the injury is to the person, and the wrong which causes it is not continuous in its nature, then there can be but one action for its redress, no matter how permanent or lasting the disability, pain or suffering may be. Hence, in such action, the party injured may recover in one and the same suit compensation for the disabling effects of the injury, whether past or prospective. In estimating the damages, the jury may consider the expenses of the cure; and if the injury is permanent or irremediable, or will require future treatment or nursing, the proper costs of this may be added. And the loss of time up to the verdict, and probable loss, or incapacity to do as profitable labor, in the future, and physical and mental suffering proximately caused by the injury, are, when established to the satisfaction of the jury, pertinent and legitimate factors in making up the sum of the damages which the jury may award to the plaintiff.", we hold that the excerpt was at most misleading and, therefore, if the defendant anticipated injury therefrom, it should have requested explanatory charges as to the effect of future disability. Williams v. Roche Undertaking Co., Ala.Sup., 49 So. 2d 902; Harrison v. Mobile Lt. & R. Co., 233 Ala. 393, 171 So. 742; Birmingham R. L. & P. Co. v. Friedman, 187 Ala. 562, 65 So. 939; Alabama G. S. R. Co. v. Smith, 178 Ala. 613, 59 So. 464.
After full consideration and treatment of the questions argued, we find no error in the record.
Affirmed.
LIVINGSTON, SIMPSON and STAKELY, JJ., concur. | January 18, 1951 |
bc89a3bd-b56b-4e32-822e-a9288632dd01 | Murray v. Service Transport | 49 So. 2d 221 | N/A | Alabama | Alabama Supreme Court | 49 So. 2d 221 (1950)
MURRAY
v.
SERVICE TRANSPORT, Inc.
3 Div. 539.
Supreme Court of Alabama.
October 19, 1950.
Rehearing Denied December 14, 1950.
D. H. Markstein, Jr., of Birmingham, and Roman L. Weil, of Montgomery, for appellant.
Hugh R. Williams, of Gadsden, for appellee.
LIVINGSTON, Justice.
Bill for an injunction filed by E. A. Murray, doing business as Murray Motor Transport, to restrain Service Transport, Inc., a corporation, from conducting certain motor carrier operations in intrastate commerce which complainant contends are outside the scope of its operating authority as contained in certificate of public convenience and necessity issued by the Alabama Public Service Commission to the respondent.
The record contained several stipulations of fact. It is agreed that complainant is a utility within the meaning of the regulatory laws of the State of Alabama, and is subject to regulation and control as such by the Alabama Public Service Commission. Complainant is a common carrier of freight by motor vehicle for hire and as such obtained on, to wit, September 7, 1944, a certificate of public convenience and necessity (numbered 384) from said commission in accordance with the applicable laws of the State of Alabama.
*222 The certificate, among other things, authorized complainant to transport general commodities between Montgomery and Mobile, Alabama, by motor vehicle.
Respondent is a private corporation engaged in the same kind of business under a certificate of convenience and necessity from the Alabama Public Service Commission and subject to the same rules and regulations, the certificate being numbered 840. On September 7, 1944, one William P. Nunn, doing business as Billy Nunn Transportation Company owned and was operating under certificate numbered 840 between Montgomery and Atmore, Alabama. On November 1, 1944, certificate numbered 840 was amended so as to authorize, in addition to the rights contained in said certificate, the transportation of general commodities by common carrier over a regular route by motor vehicle between Atmore and Bay Minette, Alabama, via., U. S. Highway No. 31. The authority of Billy Nunn Transportation Company motor carrier certificate No. 840 was transferred to the respondent, Service Transport, Inc., by order of the Alabama Public Service Commission dated June 30, 1945. Service Transport, Inc., filed an application before the Alabama Public Commission to extend its operations from Bay Minette and Mobile, Alabama. After a hearing and on May 20, 1946, the commission granted the application, subject to the following restrictions: "Restrictions. Under this extended operating authority applicant is restricted from transporting any freight whose origin is Montgomery and destination Mobile, or whose origin is Mobile and destination is Montgomery." At the hearing of the application for the extension on May 20, 1946, complainant was present and entered a protest. He was also present and protested to the granting of the extension on November 1, 1944.
The only question in the case is whether the respondent, Service Transport, Inc., may accept freight in Montgomery from connecting carriers and transport the same to Mobile, where the shipment did not originate in Montgomery, or transport freight from Mobile to Montgomery under like circumstances, where the shipment did not originate in Mobile. The question is one of interpretation or construction.
The Public Service Commission is primarily an administrative body charged with the high duty and responsibility of regulating public utilities. To that end it is vested with authority and powers defined by statute, including the power to make regulations within the powers conferred. In the exercise of its supervisory or executive powers over public utilities it possesses quasi-legislative powers, such as rate making, the granting of franchises, etc.; also quasi-judicial powers, as a fact finding body on hearings in which parties in interest may present evidence and have a hearing. The quasi-judicial functions are incidental to and in aid of the proper exercise of the regulatory powers for which the commission has its being. Avery Freight Lines, Inc., v. White et al., 245 Ala. 618, 18 So. 2d 394.
It is for the courts to construe the orders of the commission, but contemporary construction and official usage are among the legitimate aids in the interpretation of statutes. This rule is particularly applicable when considering rules or orders by a department charged with the duty of making and enforcing same. Alabama Power Co. v. Patterson, 224 Ala. 3, 138 So. 421.
Whenever a judgment entry is not clear on its face it should be interpreted in the light of the pleadings and the entire record. Taunton v. Dobbs, 240 Ala. 287, 199 So. 9; Griffin v. Proctor, 244 Ala. 537, 14 So. 2d 116. By analogy the same rule applies to rules and orders of the Public Service Commission of this character.
The cause was submitted to the trial court on the bill of complaint, answer of the respondent, exhibits, stipulations and oral testimony taken before the court. In part, the decree of the trial court reads:
"E. A. Murray doing business as Murray Motor Transport, being a utility within the meaning of the regulatory statutes of the State of Alabama, and subject to *223 the regulation and control, as such, of the Public Service Commission of Alabama, and being authorized to transport general commodities between Mobile, Alabama, and Montgomery, Alabama, by a certificate of convenience and necessity since September 7, 1944.
"And Service Transport, Inc., a corporation, operating under a certificate of convenience and necessity, dated May 20, 1946, and in said certificate the following order was made by the commission, to wit: `It is, therefore, ordered by the commission that motor carrier certificate of public convenience and necessity, No. 840, be and the same is hereby amended, authorizing, in addition to the authority therein contained, the operation as a common carrier by motor vehicle of general commodities over route 3, (1) between Bay Minette, Alabama, and Foley, Alabama, over Alabama State Highway No. 3 serving intermediate points; (2) between Bay Minette, Alabama, and Mobile, Alabama, over United States Highway No. 31, serving intermediate points. Restrictions: Under this extended operating authority, it is restricted from transporting any freight, whose origin is Montgomery and destination Mobile, and whose origin is Mobile and destination is Montgomery.' * * *
"It is the contention of E. A. Murray, doing business as Murray Transport, Inc., that under the order of the Public Service Commission, of May 20, 1946, that the restriction as set out in said order, not only restricted the Service Transport, Inc., from transporting freight whose origin is Montgomery and destination Mobile, Alabama, and whose origin is Mobile and destination Montgomery, but any and all freight, wherever its origin and wherever its destination from being transported from Montgomery, Alabama, to Mobile, Alabama, by the said Service Transport, Inc. The Service Transport, Inc., on the other hand, contends that the only restriction placed by the Public Service Commission, from Montgomery to Mobile is freight whose origin is Mobile and destination is Montgomery, or vice versa.
"The court having the benefit of the oral testimony and stipulations, and arguments of the respective counsel, is of the opinion that said restrictions in the certificate of convenience and necessity, of May 20, 1946, should be given its trade and technical meaning, and that, therefore, Service Transport, Inc., respondent, insofar as the evidence in this case shows, are operating within the purview and line scope of its authority, within said restrictions of the Public Service Commission."
The lower court denied the relief prayed for and dismissed the bill. Complainant appealed.
The difficulty of interpreting the restriction on appellee's rights under certificate of convenience and necessity No. 840 arises out of the several factual situations confronted in its application. So far as we are here concerned, appellee operates between Montgomery and Mobile, but it cannot transport freight whose origin is Montgomery and destination Mobile or whose origin is Mobile and destination Montgomery. Certainly the Public Service Commission was familiar with the existence of connecting carriers and the interchanging of freight between them. Let us assume that a shipment of freight originates in Mobile and its destination is Birmingham, via. Montgomery. It originated in Mobile but its destination is not Montgomery. Assume that a shipment originated in Birmingham and its destination is Mobile via. Montgomery. Its destination is Mobile, but it did not originate in Montgomery. Like situations would be created in shipments originating in Montgomery whose destination is beyond Mobile, and shipments originating beyond Mobile and whose destination is Montgomery.
We have carefully considered all the legal evidence, and have approached the solution of the question without any presumption in favor of the findings of the trial court, although we might have applied the rule. Turner v. Turner, 251 Ala. 295, 37 So. 2d 186.
If the Public Service Commission had intended to further restrict appellee's certificate *224 it seems that there was ample authority and opportunity to do so, and it certainly knew how. In so close a question we are reluctant to add words and thoughts to the restriction in order that it may be interpreted to mean other than just what it says.
Affirmed.
BROWN, SIMPSON and STAKELY, JJ., concur. | October 19, 1950 |
3bc04452-de90-4139-a154-fd0e280dadc8 | Ex Parte State Ex Rel. Southern Ry. Co. | 47 So. 2d 249 | N/A | Alabama | Alabama Supreme Court | 47 So. 2d 249 (1950)
Ex parte STATE ex rel. SOUTHERN RY. CO.
6 Div. 968.
Supreme Court of Alabama.
June 22, 1950.
Benners, Burr, Stokely & McKamy, of Birmingham, for petitioner.
Cabaniss & Johnston, of Birmingham, amicus curiae in support of the petition.
Jackson, Rives & Pettus, of Birmingham, for respondent.
SIMPSON, Justice.
This is an original petition for mandamus to require the Honorable J. Russell McElroy, Judge of the Circuit Court of the Tenth Judicial Circuit, to exercise discretion upon a motion to decline jurisdiction of, and to dismiss without prejudice, a suit under the doctrine of forum non conveniens.
The complaint, stating a cause of action under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., was filed in the circuit court of Jefferson County, Alabama, by E. V. Barrett, a resident of the State of Georgia, against the Southern Railway Company, a corporation organized under the laws of the State of Virginia, to recover damages for personal injuries sustained by plaintiff, in the course of his employment, as the result of an accident occurring in the State of Georgia.
In due course the defendant below, petitioner here, presented to the respondent a motion alleging, inter alia, that there were courts, both federal and state, in the state of plaintiff's residence, located near the scene of the alleged accident and near the home of the plaintiff, having jurisdiction of the action and available to plaintiff; that defendant operated a line of railroad in the State of Georgia, was subject to process issued out of the courts of that state, and owned property therein subject to execution and sale under any judgment obtained against it in any court in said state, based upon the cause of action in question; that none of the material witnesses in the case are residents of Alabama or subject to process issued out of the circuit court of Jefferson County, Alabama, to compel their attendance upon said court; that defendant would be at a disadvantage if compelled to try the case upon depositions of witnesses who might not consent to appear as witnesses in said Alabama court; *250 that trouble, loss of time, and expense incident to trial of the case in the Alabama court would be much greater than would be involved in the trial of the case in a court in the State of Georgia; that the trial of the case in the circuit court of Jefferson County would result in an unnecessary burden and expense to that court, to the detriment of resident litigants and to Jefferson County; and that the only persons involved in said case who reside in this state are the attorneys for plaintiff.
The respondent judge reached and stated the conclusion that "the court must exercise jurisdiction in the instant case, and that the court does not have the discretion to grant the motion, even if all of the facts stated in the motion are true, and even though there be no other facts which would overbear the facts stated in the motion. In other words, the court respectfully declines to enter upon a consideration of whether or not it should exercise its discretion to dismiss the action, because the court considers that the statute does not permit the exercise of any such discretion."
The statute is as follows: "Whenever, either by common law or the statutes of another state, a cause of action, either upon contract, or in tort, has arisen in such other state against any person or corporation, such cause of action shall be enforcible in the courts of this state, in any county in which jurisdiction of the defendant can be legally obtained in the same manner in which jurisdiction could have been obtained if the cause of action had arisen in this state." Code 1940, Title 7, § 97.
It is not questioned that the defendant, petitioner, is engaged in business in Jefferson County, Alabama, and suable therein.
We have been favored with excellent briefs by counsel for the opposing parties, and we have given them careful and attentive consideration. Petitioner takes the position that the respondent erred in declining to exercise a discretion and to enter upon a consideration of its motion on the merits thereof; and in support of that position argues (1) that the statute is permissive and directory rather than mandatory; (2) that the doctrine of forum non conveniens is one founded upon the common law and, Alabama being a commonlaw state, that the doctrine may be applied in this state; and (3) that such doctrine is applicable to the specific case presented notwithstanding it is based upon a federal enactment, viz., the Federal Employers' Liability Act.
We turn then first to a consideration of the above-quoted statute and in doing so must be guided by the well recognized canon of construction that where there is nothing to indicate the contrary, words in a statute will be given the meaning which is generally accepted in popular, everyday usage. Ex parte Pepper, 185 Ala. 284, 64 So. 112; Hamilton v. City of Anniston, 248 Ala. 396, 27 So. 2d 857; State v. Wertheimer Bag Co., Ala.Sup., 43 So. 2d 824; Pullman-Standard Car Mfg. Co. v. State, Ala.Sup., 46 A.2d 500.
In the light of this generally accepted rule of construction, we are constrained to conclude, as did the respondent circuit judge, that the question at bar is foreclosed by the statute itself. The language is plain and unambiguous and there is no field to bring into play any other rule of interpretation. In effect it grants to a non-resident plaintiff the right to enforce an action arising in another state, against any person or corporation, in the courts of this state, the single qualification being that it be brought in a county where jurisdiction of defendant can be legally obtained in the same manner in which jurisdiction could have been obtained if the cause of action had arisen in this state. The wording is that the "cause of action shall be enforcible in the courts of this state," and to read into the statute the vesting of a judicial discretion to accept or decline jurisdiction would do violence to the language employed.
No case has been called to our attention, and we have found none, which involved the specific question whether said statute is mandatory or permissive, nor do we find any case from this court recognizing or in any wise considering the doctrine of *251 forum non conveniens. The nearest approach to the specific question is to be found in the case of Jefferson Island Salt Co. v. E. J. Longyear Co., 210 Ala. 352, 98 So. 119, 122, dealing with Acts, Special Session 1907, page 67, the progenitor of § 97, Title 7 of the Code of 1940. It was there said of that statute: "Why the Legislature desired to burden the courts of this state with settling controversies between outsiders and which arose in other states is difficult to appreciate, but is, of course, a question of legislative policy with which the courts must not be concerned." Thus, this court then regarded the statutory provision as a matter of legislative policy, vesting no discretion in the courts; and to this view we still adhere. The inevitable consequences of the trial in Alabama courts of "controversies between outsiders and which arose in other states" are added burdens upon the courts, added expense and inconvenience. That fact the legislature must have had in mind when enacting the statute; certainly subsequent legislatures have had reason and opportunity to give it consideration. Significantly, we think, the statute has remained unchanged over a long period of years.
There being no field of operation for judicial discretion, there could, of necessity, be no basis for application of the doctrine of forum non conveniens in any case which might arise under the statute. It follows, therefore, that we leave to one side the question whether that doctrine may or may not be applied as a common law principle or in a case under the Federal Employers' Liability Act in the light of the decisions of the Supreme Court of the United States. Reference, however, may be had to McKnett v. St. Louis & S. F. Ry. Co., 292 U.S. 230, 54 S. Ct. 690, 78 L. Ed. 1227, reversing 227 Ala. 349, 149 So. 822, as indicating the opinion of the federal court on the question at that time.
It results as our conclusion that the respondent properly declined to entertain petitioner's motion. The writ of mandamus is, therefore, denied.
Mandamus denied.
BROWN, FOSTER, LIVINGSTON, LAWSON and STAKELY, JJ., concur. | June 22, 1950 |
c2cbf57c-c026-4996-bd47-8f88eea69523 | Dillard v. Gill | 47 So. 2d 203 | N/A | Alabama | Alabama Supreme Court | 47 So. 2d 203 (1950)
DILLARD
v.
GILL et al.
8 Div. 552.
Supreme Court of Alabama.
June 22, 1950.
*204 Taylor, Bell & Taylor, of Huntsville, for appellant.
Lanier, Price, Shaver & Lanier, of Huntsville, for appellees.
FOSTER, Justice.
This is an appeal from a decree overruling a demurrer to a bill in equity. In the same decree the court overruled a motion to strike a certain part of the bill. That ruling is also assigned as error. But such a ruling is not reviewable on appeal either from it or from some other interlocutory decree which will support an appeal. Owen v. Montgomery, 230 Ala. 574, 161 So. 816; Taylor v. Norton, 227 Ala. 690, 151 So. 853; 8 Ala.Dig., Appeal and Error, 874(4).
The bill is by remaindermen against a life tenant and sought relief in respect to allegedly needed repairs which had not been made by the life tenant.
The demurrer is contained in the answer and is addressed to the averments of paragraph four of the bill on the grounds assigned in the motion to strike a part of that portion of the bill. They are (1) That there is no authority of law for such relief; (2) It seeks to deprive defendant of a jury trial; (3) Laches; (4) It states conclusions of the pleader. Paragraph four contains some preliminary matters of detail, not forming a separate aspect of the bill. Paragraph five contains the substantive matter thought to be sufficient to justify relief. There may be a clerical error in addressing the demurrer to paragraph four and not to paragraph five. However, paragraph five does not set up a separate aspect. The contention of appellant could well be presented by addressing the demurrer to the bill as a whole. The contention made by appellant really goes to the failure to allege facts which are sufficient to justify equitable relief. The prayer of the bill is *205 in various alternatives: (1) That the court determine what repairs are necessary to be made to preserve the property, and (2) appoint a receiver to collect the rents due or to become due from the property and to lease and release it and out of the proceeds to make the necessary repairs; or (3) require defendant to enter into bond conditioned that he will make the repairs; or (4) for general relief. Paragraph five of the bill alleges that defendant has neglected to make necessary repairs to the buildings and that they are in a dilapidated and run down condition; whereas they were in good condition when defendant came into the life estate. The allegations give much detail as to such needed repairs.
We might dispose of the appeal by observing that the demurrer addressed only to the fourth paragraph does not raise any question for our consideration. But counsel for both parties have briefed the case as though the demurrer was properly addressed and raised the question of the equity of the bill. We will therefore discuss it on that theory, though we would not be justified in reversing the decree in the form in which the question is attempted to be presented.
We find it well established that there is a duty on the part of the life tenant to make such repairs as are reasonably necessary to protect the property against waste. There seems to be no other definite standard set by the authorities. Staples v. Pearson, 230 Ala. 62, 159 So. 488, 98 A.L.R. 852; Troy v. Protestant Episcopal Church, 174 Ala. 380, 56 So. 982, Ann.Cas.1914B, 815; 21 Corpus Juris 951, 31 C.J.S., Estates, § 44; 128 A.L.R. 202; 33 Am.Jur. 976.
Sections 75 to 87, Title 58, Code 1940, do not apply to this transaction, since it came into being before that statute was enacted. First National Bank of Mobile v. Wefel, 252 Ala. 212, 40 So. 2d 434; First National Bank of Tuskaloosa, v. Hill, 241 Ala. 606, 4 So. 2d 170. Therefore, the case of Linenthal v. Birmingham Trust and Savings Co., 249 Ala. 631, 32 So. 2d 368, 175 A.L.R. 1426, is not here controlling.
A receiver will sometimes be appointed who may be directed to make certain repairs. 31 Corpus Juris Secundum, Estates, § 64, p. 78; 128 A.L.R. 229, and cases cited. The court however would give defendant an opportunity to make the repairs before appointing a receiver. 21 Corpus Juris 952; 31 C.J.S., Estates, § 44; Murch v. J. O. Smith Mfg. Co., 47 N.J.Eq. 193, 20 A. 213.
The status of defendant neglecting to do his duty in this respect is in the attitude of one committing waste and subject to the same equitable proceedings by the remainderman as are available when waste is committed. 21 Corpus Juris 951, 31 C.J.S., Estates, § 44. Equity will intervene when it is necessary to grant relief, and in doing so will apply one of its processes. 67 Corpus Juris 627 to 629; 33 Am.Jur., p. 978, section 450.
The circumstances which call for an application of the principle of a mandatory injunction in this connection are stated in 128 A.L.R. 231; Gleason v. Gleason, 43 Ind. App. 426, 87 N.E. 689.
We do not find authority requiring a life tenant of real estate to execute bond conditioned to make needed repairs. There is a principle available in equity to a remainderman which would under certain conditions require a bond by a life tenant of personal property when there is danger of loss or deterioration or injury to it in the hands of the life tenant, Bethea v. Bethea, 116 Ala. 265, 22 So. 561, this includes real estate when it is subject to a power of sale by the life tenant. Amos v. Toolen, 232 Ala. 587(9), 168 So. 687.
The demurrer is not based upon an absence of averment which may be required to call into exercise some one or all of the various forms of alternative relief prayed for. This is necessary to reach such a defect. The relief sought invokes a recognized equitable remedy when properly sustained by averment. If not properly sustained, the demurrer should point out the omission. Mutual Life Ins. Co. of New York v. Brunson, 246 Ala. 233(3), 20 So. 2d 214.
There is also a prayer for general relief. The court has the power to mold *206 the relief to meet the equities developed in the trial. The bill is not subject to the general grounds assigned. The decree so holding is affirmed.
Affirmed.
LIVINGSTON, SIMPSON and STAKELY, JJ., concur. | June 22, 1950 |
80935862-84bf-412c-be17-940d2c25ebc6 | Houlton v. State | 48 So. 2d 7 | N/A | Alabama | Alabama Supreme Court | 48 So. 2d 7 (1950)
HOULTON
v.
STATE.
3 Div. 915.
Supreme Court of Alabama.
June 12, 1950.
STAKELY, Justice.
To the Honorable, the Court of Appeals of Alabama
Judicial Building
Montgomery, Alabama
Dear Sirs:
The Court of Appeals under the provisions of § 88, Title 13, Code of 1940 has certified for our answer the following:
"The appellant was indicted under the following indictment:
"`The Grand Jury of said County charge, that before the finding of this indictmentWilliam J. Houlton, unlawfully and *8 with malice aforethought, killed Kerry Wayne Ingram, by administering to said Kerry Wayne Ingram, arsenic poison, against the peace and dignity of the State of Alabama.'
"He was convicted of the offense of murder in the second degree and his punishment was fixed at fifteen years in the State penitentiary.
"In his oral charge, the trial judge instructed the jury as to both degrees of murder. Appellant's counsel did not reserve any exceptions to the oral charge. Neither did they request any written charges in an attempt to confine the question of guilt of the accused to only murder in the first degree. They attempted to raise the question for the first time by motion for a new trial. The motion was overruled.
"As authorized under the provisions of Title 13, Section 88, Code of 1940, the following abstract questions are hereby certified to your court for an opinion as guidance to our court in said cause, towit:
"1. On the indictment hereinabove set out, was the jury authorized to find the defendant guilty of a lesser offense than murder in the first degree?
"2. Could the point be raised by a motion for a new trial in the absence of exceptions to the oral charge and requests for written instructions limiting the issue to murder in the first degree?"
It is very earnestly insisted by the appellant that inasmuch as he was tried under indictment for murder in the first degree by poisoning, he could not be found guilty of a lesser offense, namely, murder in the second degree. It is further insisted that since his conviction for murder in the second degree cannot stand, he must be discharged, since he was acquitted of murder in the first degree. The statute under which the appellant was indicted, § 314, Title 14, Code of 1940, defining murder in the first and second degree is as follows.
"§ 314. Every homicide, perpetrated by poison, lying in wait, or any other kind of wilful, deliberate, malicious, and premeditated killing; or committed in the perpetration of, or the attempt to perpetrate, any arson, rape, robbery, or burglary, or perpetrated from a premeditated design unlawfully and maliciously to effect the death of any human being other than him who is killed; or perpetrated by any act greatly dangerous to the lives of others, and evidencing a depraved mind regardless of human life, although without any preconceived purpose to deprive any particular person of life, is murder in the first degree; and every other homicide, committed under such circumstances as would have constituted murder at common law, is murder in the second degree."
Section 317, Title 14, Code of 1940 reads as follows:
"§ 317. When the jury find the defendant guilty under an indictment for murder, they must ascertain by their verdict whether it is murder in the first or second degree; but if the defendant on arraignment confesses his guilt, the court must proceed to determine the degree of the crime, by the verdict of a jury, upon an examination of the testimony and pass sentence accordingly."
In construing this last mentioned statute this court has held that whenever a jury finds a defendant guilty under an indictment for murder the jury must ascertain by its verdict whether it is murder in the first or second degree. Mitchell v. State, 210 Ala. 457, 98 So. 285; Harden v. State, 211 Ala. 656, 101 So. 442.
In connection with this last mentioned statute this court has held that it is the mandatory duty of the court to instruct the jury orally as to the different and distinguishing elements of each degree of murder and further that it is error for the court to so instruct the jury as to take from it the right and duty to ascertain by its verdict whether the defendant was guilty of murder in the first or second degree. Jackson v. State, 226 Ala. 72, 145 So. 656; Peterson v. State, 227 Ala. 361, 150 So. 156. Furthermore it is the law of this state that under an indictment charging murder in the first degree, an accused may be found guilty of any of the lesser offenses included therein, such finding being within the province and discretion of the jury hearing the case. In this connection in *9 Hunter v. State, 156 Ala. 20, 47 So. 133, 134, this court said: "The defendant was indicted for murder in the first degree, and a conviction could be properly had thereunder for any lower degree of the offense, notwithstanding a separate form may be prescribed under section 7086, Code 1907 [Code 1940, Tit. 14, § 316]."
Where murder is charged by administering poison is the case removed from the foregoing principles? We do not think that it is. In the case of Howerton v. State, 191 Ala. 13, 67 So. 979, 980, in considering § 317, Title 14, Code of 1940, which appears in the Code of 1907 as § 7087, this court said:
"* * * For 50 years it has been the law that when the jury find the defendant guilty under an indictment for murder, `they must ascertain, by their verdict, whether it is murder in the first or second degree,' and if the defendant confesses his guilt on arraignment, the court must proceed `to determine the degree of the crime, by the verdict of a jury.' Code 1907, § 7087; Clay's Digest, 412, 413, §§ 1, 2.
"(1) This court has uniformly held that no judgment of conviction, under an indictment for murder, can be sustained, unless the verdict of the jury expressly finds the degree of the crime of which the defendant is convicted. Cobia v. State, 16 Ala. 781; Levison v. State, 54 Ala. 520, 524; Brown v. State, 109 Ala. 70, 20 So. 103; Parham v. State, 147 Ala. 57, 618, 42 So. 1; Gafford v. State, 125 Ala. 1, 9, 28 So. 406; Roberson v. State, 175 Ala. 15, 18, 57 So. 829. That the murder was committed by means of poison can make no difference. Johnson v. State, 17 Ala. 618-627.
"(3) The fact that the indictment charged that defendant killed Alice Howerton by administering strychnine did not relieve the jury of the requirement of the statute that on conviction they must ascertain by their verdict the degree of murder. For this defective verdict the judgment of conviction must be reversed, and the cause is remanded."
In the earlier case of Johnson v. State, 17 Ala. 618, this court had occasion to consider a like question involving a homicide perpetrated by the use of poison. This court there said: "In this case the jury did not by their verdict ascertain the degree of murder of which the prisoner was guilty. For that cause, the prisoner moved in arrest of judgment, but this motion was overruled. In Cobia v. State, 16 Ala. 781, we held that the crime of murder being divided by our penal code into two grades with different punishments, it was necessary on the trial of an indictment for that offence that the verdict should ascertain the degree, otherwise no judgment could be rendered upon it. It is now contended by the Attorney General, that as the statute expressly makes homicide by means of poison murder in the first degree, it was not necessary, in this case, for the jury to ascertain the degree. To that it may be answered, that the statute expressly requires the jury to ascertain the degree, without excepting the case of homicide by means of poison. For this and other reasons, we think the degree should have been ascertained by the jury, and that therefore there was error in overruling the motion to arrest the judgment."
The decision in Johnson v. State, supra, was also referred to with approval by this court in Brown v. State, 109 Ala. 70, 20 So. 103.
We think it clear that the foregoing statutes and authorities show that no exception is made in the case of murder perpetrated by the use of poison and that in such a situation it is a mandatory duty on the trial court to instruct the jury on both degrees of murder and the jury in the rendition of its verdict must ascertain the degree of murder for which the defendant is found guilty. It seems to us that it would be a vain and useless thing to require the jury to ascertain the degree of murder if it must of necessity ascertain that the homicide was murder in the first degree. Why should the degree be ascertained at all if it must of necessity be only murder in the first degree? There are other cases which supplement the views *10 which we have expressed. We refer to Brunson v. State, 124 Ala. 37, 27 So. 410, and Pearce v. State, 226 Ala. 436, 147 So. 617. In the Brunson case the defendant was indicted for murder of the deceased by administering to him strychnine and was convicted of murder in the second degree. In the Pearce case the defendant was indicted for murder in the first degree, the homicide being brought about by poisoning. He was convicted of murder in the second degree, his punishment fixed at 25 years imprisonment. While the point here under consideration does not appear to have been referred to by the court in these last two cases, the court apparently took it for granted that where the murder is produced by poisoning a conviction can be had for murder in the second degree.
Since we have pointed out that there can be a conviction of murder in the second degree where the homicide is brought about by the administration of poison, it is a fair question to ask if murder in the second degree can in the nature of the case arise where the death has been produced by the administration of poison. In this connection it is well for us first to consider why the statute defining murder in the first degree makes reference to poison. This was explained in the case of Mitchell v. State, 60 Ala. 26, where this court speaking through Mr. Justice Stone said: "Our statute (Code of 1876, § 4295), while it has retained as murder every species of homicide which was murder by the common law, has divided that highest offense against persons into two grades: murder in the first degree, and murder in the second degree. Murder in the first degree is further divided, and defined in four classes: First, homicides perpetrated by `poison, lying in wait, or any other kind of willful, deliberate, malicious, and premeditated killing.' The employment of poison as the agent, or lying in wait to do the deed, either is made sufficient evidence within this class. To come within the other clause, the act must be qualified by each of the named adjectives. Willful governed by the will, without yielding to reason. Deliberateformed with deliberation, in contradistinction to a sudden and rash act. Maliciouswith fixed hate, or done with wicked intentions or motives, not the result of sudden passion. Premeditatedcontrived or designed previously. All these qualities must coexist, to bring the crime within this clause. * * *"
In accordance with the foregoing decision, poison as the agent for producing death is within itself sufficient evidence that the act is willful, deliberate, malicious and premeditated. The foregoing decision points out that the statute has retained as murder every species of homicide which was murder by the common law. So if it is conceivable that if death results by the use of poison where the act is done without deliberation and premeditation, McQueen v. State, 103 Ala. 12, 15 So. 824, then there can be murder in the second degree, a homicide less than murder in the first degree. As stated in Wharton's Criminal Law, Vol. 1, p. 751, a homicide committed by means of poison or lying in wait is not necessarily murder in the first degree.
One of the authorities collected by Mr. Wharton in support of his text is State of Connecticut v. Dowd, 19 Conn. 388. In this case the court held that on an indictment for murder perpetrated by means of poison the jury may find the prisoner guilty of murder in the second degree. The statute in effect in Connecticut at the time of this decision, according to the decision, is in accordance with the Alabama statute defining murder in the first and second degree. The court upheld the conviction of murder in the second degree and among other things said, "Hence, if any case can be supposed, where murder may be committed by means of poison and not the result of such an action [deliberate], then a conviction of murder in the second degree may be legal."
It will be noted that the statute brackets with homicides perpetrated by poison homicides where there is "lying in wait." Mr. Wharton points out in Wharton's Criminal Law, Vol. 1, p. 752, that a man may lie in wait for another merely to commit a trespass and if so in case of an accidental killing, the offense being only manslaughter at common law, is only manslaughter under *11 the statute. See also Wharton's Criminal Law, Vol. 1, p. 703. In other words, there are circumstances under which homicide committed by means of poison or lying in wait could constitute murder in the second degree.
In the light of the foregoing decisions, we conclude that the jury was authorized to find the defendant guilty of a lesser offense than murder in the first degree. Accordingly, we answer the first question hereinabove set out in the affirmative.
Since we hold that the jury was authorized to find the defendant guilty of murder in the second degree, we consider it unnecessary to answer your second question.
BROWN, FOSTER, LIVINGSTON, LAWSON and SIMPSON, JJ., concur. | June 12, 1950 |
de1b3b25-be4a-4007-93c4-f007c07c7751 | Britling Cafeteria Co. v. Naylor | 47 So. 2d 187 | N/A | Alabama | Alabama Supreme Court | 47 So. 2d 187 (1950)
BRITLING CAFETERIA CO., Inc.,
v.
NAYLOR.
6 Div. 8.
Supreme Court of Alabama.
May 18, 1950.
Rehearing Denied June 30, 1950.
White, Bradley, Arant & All, of Birmingham, for appellant.
Kenneth Perrine and Leader, Tenenbaum, Perrine & Swedlaw, of Birmingham, for appellee.
FOSTER, Justice.
Appellee recovered a judgment against appellant for personal injuries received by her in a restaurant of appellant. She was passing the steam counter getting food for lunch at the noon period. Her right foot slipped and she fell, sustaining temporary injuries to her person. She was helped to her feet, proceeded with her purpose and finished her lunch. She was employed at the "Parisian" in Birmingham, where she then returned. While there in changing her stocking she saw on the bottom of her right shoe something which she took to be a piece of green bean, which she thought must have been the cause of her slipping and falling. It may have been, since there was no other fact or circumstance to show that it was something else. There is no evidence as to how long it had been there, if there at all. No part of it was seen on the floor before or after the accident or at the time of the accident. It may have been there or may not have been there. It may have been dropped from the tray of a guest or an employee, or her shoe may have picked it up elsewhere in or out of the restaurant. The floor was of rubber or asphalt tile. It showed a skid mark about the size the shoe would have made in slipping.
The applicable legal principles have been settled in this State.
The duty of appellant was to use ordinary or reasonable care to keep his *188 premises in reasonably safe condition. He was not an insurer of the safety of his guests or invitees. His duty does not seem to extend further. The principle of res ipsa loquitur does not apply. F. W. Woolworth Co. v. Ney, 239 Ala. 233, 194 So. 667; Rowe v. Alabama Power Co., 232 Ala. 257, 167 So. 324; Ensley Holding Co. v. Kelley, 229 Ala. 650, 158 So. 896. Negligence is not assumed from the mere fact of injury to an invitee. Lamson & Sessions Bolt Co. v. McCarty, 234 Ala. 60, 173 So. 388; Harbin v. Moore, 234 Ala. 266, 175 So. 264. Mere proof that the injury could have happened in an alleged way does not warrant the conclusion that it did so occur, where it can with equal propriety be attributed to some other cause from the same proof. Alabama Power Co. v. Pierre, 236 Ala. 521, 183 So. 665.
Appellant must exercise reasonable care before his guest comes to have his premises reasonably free from danger to him when he comes and keep it so while such guest, as an invitee, is on his premises where he may be expected or was invited to be.
The claim here is that there was a neglect of duty to keep the place free from dangerous substances. Such negligence would be either in causing the substance to be in a place dangerous to such guests as appellee or, after discovering it, in not exercising due care to remove it or not exercising due care to discover it before the accident.
There is no evidence that an employee of appellant caused the green bean (or any other foreign matter) to be on the floor at the place where appellee had her accident. There is no evidence that any employee of appellant discovered it on the floor before the accident or was negligent in not doing so. No one saw anything on the floor which was apparently dangerous before, after or at the time of the accident. No one saw the green bean if it was there. No one knows how or when it came to be there. There is no circumstance or fact to show that there was a failure of duty by an employee as to how or when it came to be at that place, or in not looking for it and removing it.
The reasoning in the Woolworth case, supra, and others cited, has full application here.
We think appellant was entitled to the affirmative charge which the court refused.
Reversed and remanded.
LAWSON, SIMPSON and STAKELY, JJ., concur. | May 18, 1950 |
21561616-42d9-49ab-a060-26a369b713b8 | City of Montgomery v. Graham | 53 So. 2d 363 | N/A | Alabama | Alabama Supreme Court | 53 So. 2d 363 (1951)
CITY OF MONTGOMERY
v.
GRAHAM et al.
3 Div. 573.
Supreme Court of Alabama.
April 19, 1951.
Rehearing Denied June 28, 1951.
*364 R. S. Hill, Jr. and Walter J. Knabe, of Montgomery, for appellant.
Jack Crenshaw, John Yung and Rives & Godbold, all of Montgomery, for appellees.
LIVINGSTON, Chief Justice.
This is an appeal by the City of Montgomery from an order of the Circuit Court of Montgomery County overruling the demurrer to the bill of complaint filed by appellees as a class action under Equity Rule 31, Code 1940, Tit. 7 Appendix.
The bill alleges in substance that the corporate limits of the City of Montgomery were extended pursuant to legislative act approved September 18, 1949, which became effective September 30, 1949. Appellees are all owners of real estate which was incorporated on September 30, 1949, but which prior to said date was without the corporate limits of the City of Montgomery.
The bill avers that David W. Crosland, as the duly elected tax assessor for Montgomery County and also tax assessor for the City of Montgomery, certified to Jack Hobbie the duly elected tax collector for Montgomery County and also tax collector for the City of Montgomery, an abstract or list of property assessed for taxes becoming due October 1, 1949. That within said abstract or list is the property belonging to appellees which prior to September 30, 1949, had not been within the corporate limits of the City. Pursuant to notices given by the tax collector some of the appellees paid the tax, others refused to pay pending the outcome of this litigation.
The bill also contains the following paragraph: "That by Section 216 of the Constitution of Alabama of the year 1901, the basis for the levy of taxes for most municipalities was made on the value of the property as assessed for state taxation during the preceding year, but such provisions were expressly not applicable to the City of Montgomery, but the City of Montgomery wa given the right to levy and collect taxes `upon the value of taxable property therein as fixed for state taxation'; that such provisions of said Section 216 of the Constitution of 1901 were debated and discussed at some length in the Constitutional Convention of 1901, and an amendment was offered therein to said Section 216 to require that the City of Montgomery should levy and collect the taxes based upon the value of the property therein as assessed for state taxation during the preceding year, which would have placed the assessment of taxes in the City of Montgomery upon the same basis as other municipalities, but that such amendment was defeated; that under the provisions of Section 216 of the Constitution, it is necessary that any assessment for taxes of the City of Montgomery be based upon the value of the taxable property therein as fixed for state taxation for the current year. That the property owned by complainants and other members of the class which they represent, was not within the corporate limits of the City of Montgomery at the time of the assessment of property for taxation which became due and payable October 1, 1949."
Other allegations of the bill relate to matters which would tend to show an administrative construction placed upon Section 216 of the Constitution by the City authorities with reference to assessment made in prior years.
The demurrer filed by respondents goes to the bill as a whole and takes the point that the assessments by the City Tax Assessor as certified to the City Tax Collector were proper and of full force and effect and that the property annexed to the City *365 of Montgomery on September 30, 1949 was properly included for city taxes due October 1, 1949.
This court may, when construing a provision of the Constitution, look to the debates and proceedings of the Constitutional Convention. Louisville & N. R. Co. v. State, 201 Ala. 317, 78 So. 93; Morgan v. Board of School Commissioners of Mobile County, 248 Ala. 22, 26 So. 2d 108.
The Constitutional debates of 1901 relative to Section 216 of the Constitution lead us to conclude that it was the intention of the framers of that instrument that the City of Montgomery should assess and collect its taxes upon the basis of the valuation as fixed for state taxation for current tax year, instead of the valuation as fixed for state and county taxation for the "preceding year," as was required of other municipalities. Vol. 4, Official Proceedings of Constitutional Convention of 1901, pp. 4816, 4828.
It is the contention of appellant that Amendment No. VIII to the Constitution of 1901 erased any distinction which may have existed between Montgomery and other cities. The amendment names the municipalities to which it shall apply but the City of Montgomery is not included.
Amendment No. VIII reads in part: "The municipalities of Tuscumbia * * * (and other designated towns and cities), shall have the power and right to levy and collect a tax of one-half of one per centum in any one year on property situated therein, based on the valuation of such property as assessed for State taxation for the tax year ending on the 30th day of September next, succeeding the levy;"
Section 700, Title 37, Code 1940, reads in part as follows: "It shall be the duty of the council, board of commissioners, or other governing body of any such municipality during the month of May of each year, by resolution or ordinance, to levy a tax on the property situated in such municipality for the next succeeding tax year at a rate in no event in excess of the constitutional limit authorized to be levied by such municipality on the value of such property as assessed for state taxation as shown by the books of assessment for the state and county tax year ending the thirtieth day of September next succeeding the levy. The levy so made by the council, board of commissioners, or other governing body of such cities shall go into force and effect as of the first day of October next succeeding the levy and shall become a lien on the first day of October next succeeding such levy, and not before." [Italics supplied.]
Appellant cites us to the case of Johnson v. State ex rel. City of Birmingham, 245 Ala. 499, 17 So. 2d 662, 665. There the levy was made by the City of Birmingham on property brought within the city as of the eleventh day of August, 1943. The City had in May 1943, pursuant to § 700, Title 37, Code 1940, levied its tax for the city tax year 1943-44, based upon the valuations for state taxation as of September 30, 1943. The Court there observed that "in the preparation of the City assessment `for the next succeeding municipal tax year,' the basis is `the assessed value of the then current state tax year.'" Birmingham is one of the municipalities specifically mentioned in Amendment No. VIII and was following § 700, Title 37, Code 1940. Since the tax levied was for the tax year next succeeding the levy and the property was within the City on the "law day" October 1, 1943 the court held that the newly incorporated property must bear the tax.
There can be little doubt that the City of Montgomery, with reference to the levy of its taxes, is still governed by Section 216 of the Constitution and that it must levy its taxes, based upon the valuation as fixed for state taxation for the current year. Its levy must be based upon the state valuation for the current year and cannot, as noted in the Johnson case, supra, levy for the next succeeding year upon the state valuation for the then current tax year. The City of Montgomery in view of Section 216 cannot levy its taxes pursuant to § 700, Title 37, Code 1940, but must look to § 670 of Title 37, Code 1940.
Its levy, if made in May, is not for the "next succeeding tax year" but is for the *366 current tax year based upon the state valuation as finally determined for the current year. So viewed the "law day" in the instant case was October 1, 1948 and since the property was not incorporated within the city until September 30, 1949 no tax could be assessed or collected for the tax year 1948-49.
We forego discussion of any administrative constructions on the part of the City in view of the conclusion reached.
Affirmed.
BROWN, FOSTER and SIMPSON, JJ., concur. | April 19, 1951 |
11988c74-82ff-49c9-8072-46136a377d98 | Taunton v. Trammell | 48 So. 2d 190 | N/A | Alabama | Alabama Supreme Court | 48 So. 2d 190 (1950)
TAUNTON et al.
v.
TRAMMELL.
5 Div. 483.
Supreme Court of Alabama.
October 12, 1950.
*191 Hines & Hines, of LaFayette, W. Howell Morrow, of Lanett, and Rushton, Stakely & Johnston, of Montgomery, for appellants.
Walker & Walker and R. C. Smith, all of Opelika, and R. C. Wallace, of LaFayette, for appellee.
LIVINGSTON, Justice.
The appeal is from an amended decree of the Circuit Court, in Equity, of Chambers County, Alabama, restraining the construction of a building on appellants' lands in Chambers County and requiring the removal of a gasoline storage tank and pumps from said lands.
Omitting formal allegations and others not necessary for this decision, the bill alleges that in 1934 the complainant, appellee here, sold to one Hall certain particularly described real estate located in Chambers County, Alabama, with the following provision in the deed of conveyance: "It is agreed that there shall never be any garage, filing station or bulk plant for the storage of gasoline built on the above lots." It was then averred that in 1944 Hall, with the same restrictions, conveyed this property to one Forrester, and that in 1946 Forrester, with the same restrictions, conveyed it to the appellants.
In section 5 of the bill appellee alleged two breaches of the condition or restriction, (1) that the respondents had installed a gasoline storage tank and pump on said premises and were offering gasoline and oil for sale to the public; and (2) that at the time of the filing of the bill appellants were in the process of erecting a filling station on said premises.
The bill sought temporary and permanent injunctions restraining the appellants from proceeding with the building or erection of a garage, filling station or bulk plant for the storage of gasoline on the premises, and a mandatory writ of injunction requiring appellants to remove from the premises the gasoline storage tank and pumps installed by them, and general relief.
Demurrers to the bill were interposed by appellants and overruled by the trial court. Thereupon appellants answered the bill, admitting that they had installed a gasoline storage tank and pump on the premises in July 1947, and that they had maintained and operated the same continuously since that time. They further admitted that at the time of the filing of the bill they were in the process of erecting a filling station on the premises in question. They deny that the alleged restrictive agreement was incorporated in the conveyance to them or to their predecessors in title or that it constituted any part of the legal consideration for the same. For further defense appellants sought to show that the restrictive agreement was solely for the personal benefit of appellee in restraint of trade and did not run with the land and did not affect the value of other real estate in the neighborhood; that the right which appellee sought to enforce was barred by laches, and, further, that on account of the changed conditions of the community the restrictions should no longer be enforced.
The cause was submitted on an agreed stipulation of facts, a comprehensive map of the surrounding territory and several photographs showing the premises involved, the adjoining and adjacent properties, together with the improvements thereon. The trial court entered a decree granting the relief prayed for and permanently enjoined the erection of the filling station. Apparently inadvertently, the trial judge failed to include in the decree a mandatory order for the removal of the gasoline storage tank and pump. But within thirty days a motion was made to correct the decree in this particular and the same was *192 sustained and the decree amended accordingly. This appeal followed.
We note that appellants admitted in the stipulation of facts that the condition or restriction, "It is agreed that there shall never be any garage, filling station or bulk plant for the storage of gasoline built on the above lots," was written into each conveyance in the chain of title under which appellants hold.
The assignment of error numbered one and predicated upon the lower court's overruling of appellants' demurrer to the bill of complaint was not argued in brief and was therefore waived. Appellants argue the remaining six assignments of error in a somewhat general and collective manner, but we think separately and specifically enough to avoid the penalty that where one assignment is without merit the others will not be considered. Morgan-Hill Paving Co. v. Thomas, 223 Ala. 88, 134 So. 480; Cairnes v. Hillman Drug Co., 214 Ala. 545, 108 So. 362; Alabama Co. v. Norwood, 211 Ala. 385, 100 So. 479; City of Montgomery v. Moon, 208 Ala. 472, 94 So. 337; Town of Vernon v. Wedgeworth, 148 Ala. 490, 42 So. 749.
Appellants insist the evidence is not sufficient to show a violation of the restriction or condition on that phase of the case seeking a mandatory injunction for the removal of the gasoline pump and storage tank. The answer admits the installation of "a gasoline storage tank and pump on said above premises, to-wit, July 1947, and that they have maintained and operated same continuously since said time without any objection on the part of the plaintiff until the filing of this suit." Several pictures of the gasoline pump were introduced in evidence. There can be little or no doubt but that the admissions and photographs establish a violation of the restriction.
Appellants argue for a reversal on the theory of laches, based upon the tendencies of some of the agreed facts to prove that for more than a year appellee permitted appellants to operate the gasoline pump and storage tank without protest. In support of the argument the following is quoted from the case of Adams v. Birmingham Realty Co., 154 Ala. 457, 45 So. 891, 892: "Acquiescence in the wrongful conduct of another, by which one's rights are invaded, may often operate, upon the principles of and in analogy to estoppel, to preclude the injured party from obtaining many distinctly equitable remedies to which he would otherwise be entitled. This form of quasi estoppel does not cut off the party's title, nor his remedy at law. It simply bars his right to equitable relief, and leaves him to his legal actions alone. * * * The cases require of the plaintiff a promptness in objecting and in taking steps to enforce his objection, upon receiving notice of the defendant's structure or erections which are sought to be restrained, if the circumstances are such that the defendant would be unnecessarily prejudiced by the plaintiff's delay."
The foregoing is of course a correct statement of the law. On the other hand, as was stated in the case of Pittman v. Pittman, 247 Ala. 458, 25 So. 2d 26, 28: "There is no arbitrary rule as to when equity will refuse to intervene because of laches and each case turns much on its own facts. Oxford v. Estes, 229 Ala. 606, 611, 158 So. 534; Bromberg v. First National Bank, 235 Ala. 226, 178 So. 48."
There is nothing in the record from which it can be inferred that appellee condoned or acquiesced in the installation and maintenance of the storage tank and pump or knew that they were being installed in time to prevent it. It was also shown that one of the respondents "saw the complainant and undertook to negotiate with him for a consideration for the removal from the chain of title or deed" the restriction, and complainant declined to do so. By merely maintaining and operating the pump and tank for more than a year, appellants have not so changed their positions or incurred expense as to invoke the equitable doctrine of laches. As expressed by Mr. Pomeroy, "Laches is not mere delay, but such delay that works a disadvantage to another. So long as parties are in the same condition it matters little whether one presses a right promptly or slowly, within limits allowed by law; but when knowing his rights, he takes no steps to *193 enforce them until the condition of the other party has in good faith become so changed that he cannot be restored to his former state, if the right be then enforced, delay becomes inequitable, and operates as estoppel against the assertion of right." See Pomeroy, Equity Jurisprudence, 28 Am.Jur. Injunctions, section 62, page 259; Pittman v. Pittman, supra.
Assignment of error numbered six raises the point of changed conditions of the community and, as we take it, deals with the garage erection aspect of the case. This assignment of error presents merely a question of fact.
In the first place, there is no allegation whatever in the answer to the effect there has been any change, or what kind of change, in the community since appellee restricted the lands in his deed to Hall. In the second place, the evidence discloses only two changes made in the community since 1934, viz., the erection of a home by Mr. and Mrs. Varner Combs at a cost of approximately $7500, and the erection of a home by Mr. and Mrs. T. D. Stanfield at a cost of approximately $6000. True maps and photographs were introduced, but there is no evidence other than that mentioned from which an inference can be drawn as to any changed conditions. In his decree the trial judge said: "The court is of the opinion that no such changed conditions have occurred since the execution of the original deed in this cause, and the court is further of the opinion that the character of the locality has not so changed as to make enforcement of the restriction inequitable, and even where the purpose of the covenant was to protect the grantor from competition in conducting a public garage and filling station." As to which we are compelled to agree. See, Buckalew v. Niehuss, 249 Ala. 585, 32 So. 2d 299.
Appellants further insist that the trial court erred in amending the decree dated August 18, 1949. The amended or modified decree was filed with the register on September 8, 1949. The effective date of the decree is that on which it is filed with the register. The filing of a decree on September 8, 1949, modifying a decree filed on August 18, 1949 was timely. Equity Rule 65, Title 7, Appendix, Code; Title 13, section 119, Code.
We have treated all questions argued in brief of appellants and find no error for reversal.
Affirmed.
BROWN, LAWSON, and SIMPSON, JJ., concur. | October 12, 1950 |
794e0fef-8b62-401f-884c-f5fba31fc869 | Perdue v. State Nat. Bank | 47 So. 2d 261 | N/A | Alabama | Alabama Supreme Court | 47 So. 2d 261 (1950)
PERDUE
v.
STATE NAT. BANK.
6 Div. 891.
Supreme Court of Alabama.
February 2, 1950.
Rehearing Granted June 30, 1950.
*263 Finis E. St. John, of Cullman, for appellant.
Julian Harris and Norman W. Harris, of Decatur, for appellee.
BROWN, Justice.
The transaction between Perdue and wife and complainant bank boiled down to last analysis was simply a loan of money by the former to the latter on express contract on the part of the complainant to pay to either one or both with interest on presentation of the pass book showing the true state of the account with accrued interest on demand. As the contract states, "The bank considers the possession of the pass book as the important condition, and reserves the right, if it so desires to pay on it alone." As to the legal effect of the transaction see Clark v. Young, 246 Ala. 529 Par. [2], 21 So. 2d 331, and authorities there cited.
The contract printed on the pass book provides: "Deposits may be made jointly by husband and wife, either one or both. The signature of either one to be sufficient for withdrawal of all or any part of funds standing to the credit of both." Under the terms of the contract, when the wife Ellen Perdue appeared in person and presented the pass book showing the true state of the account and requested the bank to pay the full amount to her and the bank refused to do so, it breached said contract and the duty growing out of said contract, a tort. Pratt v. First National Bank of Fayette, 243 Ala. 257, 261, 9 So. 2d 744; H. C. Schrader Co. v. A. Z. Bailey Grocery Co., 15 Ala.App. 647, 74 So. 749. In the face of such demand and the express provisions of the contract, it had no right to doubt or to inquire into the ownership of the debt created by the loan. That inquiry was foreclosed by its brain-child,the contract endorsed on and a part of the pass book. The money in the hands of the bank was not the property of the depositors but the property of the bank which it was under duty to use in discharge of its obligation on demand of Mrs. Perdue, who had the pass book in her possession and made demand on the bank to pay.
The facts of this case bring it clearly within the influence of § 128(3), Title 5, Code of 1940, Cum.Supp.1947, regulating procedure in case of adverse claim. The legislative purpose clearly expressed is to put on such adverse claimant the burden of bringing on the litigation and its consequences if he fails to establish his claim and to provide indemnity to the stakeholder against "any and all liability, loss, damage, costs and expenses, for and on account of the payment or recognition of such adverse claim or the dishonor of or failure to pay the check or failure to comply with other order of the person to whose credit the deposit stands on the books of said bank or trust company; * * *," not merely to give the stakeholder an option to proceed as provided by the statute or to bring a bill of equitable interpleader to the detriment of the depositor, who had legal authority to demand payment and give full acquittance to the bank. The cited statute is remedial and will be liberally construed and applied to contracts existing prior to its passage. Tutwiler v. Tuskaloosa Coal, Iron & Land Co., 89 Ala. 391, 7 So. 398; Coosa River Steamboat Co. v. Barclay, 30 Ala. 120; Modern Order of Praetorians v. Merriman, 204 Ala. 197, 85 So. 473.
The complainant was fully advised of the facts, the provisions of the contract on which its rights and duty and those of the defendant Mrs. Perdue rested and for whose benefit the deposit was made and that she could give full acquittance for the debt.
It is our opinion that the demurrer to the bill was well taken and the court erred in overruling the same. A decree will be here entered sustaining the demurrer and remanding *264 the cause for further proceedings not inconsistent with this opinion. The complainant is allowed thirty days from the date the mandate of this court reaches and is filed with the register within which to plead.
Reversed, rendered and remanded.
FOSTER, LAWSON, SIMPSON and STAKELY, JJ., concur.
PER CURIAM.
Upon further consideration upon application for rehearing we have concluded that on the original hearing an erroneous construction was placed upon the Act which appears in the 1947 Pocket Part of the Code of 1940 as Tit. 5, § 128(3). It appears that the Act has been adopted in various other states. The necessity for it and its purpose is stated in Gendler v. Sibley State Bank, D.C., 62 F. Supp. 805, 810. The Act is designed to apply to a case where the deposit stands on the books of the bank to the credit of one or more persons and where adverse claim to the deposit is made by a stranger. In such event the bank would be justified in allowing withdrawals by the depositors unless the stranger had furnished the bond and affidavit required by the statute. Accordingly the statute does not apply to a case where the names of both claimants appear as depositors. In the present case L. H. Perdue was shown on the deposit contract as a depositor just as was Ellen Perdue.
In Baden Bank of St. Louis v. Trapp, Mo.App., 180 S.W.2d 755, in which this uniform statute was construed it is held that the term "adverse claimant" as used in this statute means one who is not shown on the books of the bank as a depositor. Under this construction of the statute the guardian of L. H. Perdue is not an "adverse claimant" to the deposit within the meaning of the statute and the bank had no right to exact a bond from him.
In the case of First National Bank of Portland v. Reynolds, 127 Me. 340, 143 A. 266, 268, 60 A.L.R. 712, it was held that the Maine statute, identical with the Alabama statute, does not deprive the bank of the remedy of interpleader. The Supreme Court of Maine said: "Nor can we agree that the demurrer should have been sustained on the ground that section 5, chap. 150, P.L. 1923, provides a complete, adequate, and exclusive method of which disputes concerning the title to bank deposits may be determined. That statute was intended to supplement, not to supersede, interpleader. It may be applied where interpleader will not lie. It is not unlikely that it might be properly invoked in certain cases in which interpleader would be an appropriate remedy. It is permissive. It provides one means by which the title to a bank deposit may be, under some circumstances, litigated. There are still other methods to reach that end. One of them is pointed out in Hatch v. Caine, 86 Me. 282, 29 A. 1076. But the remedy of interpleader is still an appropriate remedy, where interpleader will lie, notwithstanding the adoption of the statute in question."
It is not pertinent to the issues in the instant case to pass upon the effect of the Act on the right of interpleader when as in the Maine case, supra, the adverse claimants are not both depositors of the fund in question. Pretermitting that question we do think that the statute does not prevent the bank from pursuing an interpleader suit when the adverse claimants are joint depositors of the fund.
Furthermore we now are satisfied that the bill filed in this cause presents a case for interpleader under Equity Rule 36, which appears in the Appendix of Title 7, Code of 1940. Johnson v. Malone, 252 Ala. 609, 42 So. 2d 505; Jennings v. Jennings, 250 Ala. 130, 33 So. 2d 251; Clark v. Young, 246 Ala. 529, 21 So. 2d 331.
In view of our opinion the application for rehearing is granted, the decree of this court sustaining the demurrer and remanding the cause is set aside and the decree of the lower court overruling the demurrer to the bill is affirmed.
FOSTER, LAWSON, SIMPSON, and STAKELY, JJ., concur.
*265 BROWN and LIVINGSTON, JJ., dissent.
BROWN, Justice (dissenting).
Before § 10390 of the Code of 1923 was embodied in Equity Rule 36, Code 1940, Tit. 7 Appendix, it had been consistently construed as not changing the fundamental principles of equity upon which bills of interpleader or bill in the nature of interpleader rests. That such principles have not been modified by the statute see Marcus et al. v. Peoples Sav. Bank et al., 227 Ala. 576, 151 So. 467; Finn v. Missouri State Life Ins. Co., 222 Ala. 413, 132 So. 632; Riddick v. American Employers Ins. Co., 236 Ala. 323, 182 So. 45; Michie et al. v. Nebrig et al., 223 Ala. 175, 134 So. 665; Harden v. Barbaree, 240 Ala. 458 (3 Head Note 460), 199 So. 689; Missouri State Life Ins. Co. v. Robertson Banking Co., 223 Ala. 177, 134 So. 800, 802.
In the last cited case it was observed "one of the prime requisites of a bill of interpleader is the disinterestedness of the complainant in the subject-matter of the suit. He must stand in relation thereto as a mere stakeholder, indifferent between the conflicting of claimants. (Citing cases) Nor are the fundamental principles of equity upon which are rested bills of this character in any manner modified by section 10390 of our Code." To like effect see Harden v. Barbaree, 238 Ala. 519, 192 So. 268.
The new equity rules were adopted October 9, 1939, effective January 1, 1940, See 238 Ala. page XVII. The only change in the rule originating in the statute and brought forward in said rule pertaining to the disinterestedness of the complainant, if any, was the provision,"It is not ground of objection to the action * * * that the plaintiff avers that he is not liable in whole or in part to any or all of the claimants."
Since the adoption and effective date of said rule, on the second appeal in Harden v. Barbaree, 240 Ala. 458, 199 So. 689, the statement of the law as to the necessity of the disinterestedness of the complainant as a stakeholder was reaffirmed. It was there observed "The provisions for suggestions of claim of a third party in an action pending on any contract for the payment of money at any time before issue joined (Code § 10386 [Code 1940, Tit. 7, § 1179]) has no application to the instant action, which is in the nature of interpleader touching the two parties in interest in the fund and the disinterested stakeholder." 240 Ala. 460(3), 199 So. 691, citing the text of 33 C. J. p. 457; 48 C.J.S., Interpleader, § 34.
Certain it is that this court when it formulated and adopted Equity Rule 36, by the mere inclusion of the quoted provision in respect to the "plaintiff" did not intend to ignore, uproot or emasculate the long settled rule that the plaintiff or complainant must as between the contending claimants be without interest. It merely permitted the complainant to allege that "he is not liable in whole or in part to any or all of the claimants." So this averment is not inconsistent with the disinterestedness of the complainant as a stakeholder. Though such averment was made in the bill and could not under the facts alleged be truthfully made.
In Johnson v. Malone, 252 Ala. 609, 42 So. 2d 505, the statement of facts shows that Malone was a disinterested stakeholder of the earnest money deposited with him by the purchaser to hold pending the closing of a sale of lands, and the court was not called upon to construe Equity Rule 36, as superseding the settled law in relation to such proceedings.
Therefore laying aside the applicability of § 128(3), Tit. 5, Code 1940, the complainant was not so situated as to maintain the bill, under the doctrine of equitable interpleader. Modern Order of Praetorians v. Merriman, 204 Ala. 197, 85 So. 473, and authorities cited, supra.
The complainant was liable to repay the loan on demand of either of the lendors accompanied by the presentation of the pass book showing the true state of the account, and in the face of its liability undertook to aid Perdue the guardian by using the subtle threat of litigation to induce Ellen Perdue to yield her rights to her adversary.
In my opinion the bill is without equity and the rehearing should be denied. | June 30, 1950 |
a04db241-db90-44f6-89a1-c06e24e6d88f | Mutual Service Funeral Homes v. Fehler | 48 So. 2d 26 | N/A | Alabama | Alabama Supreme Court | 48 So. 2d 26 (1950)
MUTUAL SERVICE FUNERAL HOMES
v.
FEHLER et al.
6 Div. 981.
Supreme Court of Alabama.
June 22, 1950.
Rehearing Denied October 26, 1950.
S. A. Lynne, of Decatur, for appellant.
Finis E. St. John, of Cullman, for appellees.
STAKELY, Justice.
This is an appeal from a decree of the equity court overruling the demurrers of Mutual Service Funeral Homes, a corporation (appellant), to the bill of complaint of George Fehler and others (appellees). The purpose of the bill is to enjoin the establishment, maintenance or operation of a funeral parlor or undertaking establishment in a residential section in the City of Cullman, Alabama.
The allegations of the bill show in substance that the respondent purchased certain lots on the corner of Young Street and Fourth Avenue East in the City of Cullman, which were owned and occupied as a residence by Emil W. Buettner, and is preparing to convert the residence upon the lots into an undertaking establishment or funeral parlor, that the property involved is located in an area of the City of Cullman which is and has been an exclusively residential area since the founding of the city, some of the finest homes of the city being therein located.
The bill further shows in substance that the homes of the complainants are situated *27 in the foregoing residential area, some on Young Street and some on Second Avenue East. Some of these homes are immediately across the street from the site of the proposed establishment and all are in such proximity to the proposed establishment as to have a clear view thereof. The bill further shows in substance that from such proposed establishment a great many funerals for the dead are conducted, such services being of almost daily occurrence and at which grief stricken relatives and friends are present. The services are conducted audibly with the usual solemnities, that bodies of the dead are brought in day and night from hospitals for the purpose of being embalmed or disinfected and returned to homes or shipped to other cities, that the blood and effluvia emanating from corpses in preparation for embalming or for burial and from which emanate foul odors have to be handled and disposed of on such premises, that the odors are blown to adjacent premises, that bereaved relatives often by day and night give way to paroxysms of grief and lamentations that are plainly heard by those living near such establishments, that there is constant traffic bringing in or taking out bodies of the dead and as a result thereof there is an ever present and pervading feeling of the presence of death and the nearness of the dead, that the premises are so situated and in such proximity to complainants' residences that they will inevitably be forced to be aware of all such acts and occurrences and the effect thereof through the senses, of seeing, hearing and smelling, that the matters and things enumerated are recurring and that the complainants have no adequate remedy at law.
The bill further alleges in substance that the matters set forth in the bill constitute an anticipated nuisance and violate the property rights, personal rights and will endanger the health of complainants, their families and other nearby residents, that such condition will be continuous or recurring and complainants have no adequate remedy at law but are entitled to have respondent restrained from converting the residence which he purchased into an undertaking establishment and from maintaining and operating a funeral parlor or undertaking establishment, that prior to the consummation of the purchase by the respondent of the foregoing property complainants by and through their authorized agent notified the respondent that the establishment, maintenance and operation of such an establishment by the respondent on the property here involved would be vigorously resisted by them but that notwithstanding such notice and protest, respondent through its officer declared its intention to proceed with such establishment.
The demurrer attacks the bill on a number of grounds among others that the offensive and objectionable conditions enumerated in the bill do not necessarily or naturally obtain with reference to the proposed establishment, that the business sought to be restrained is not per se obnoxious but only may become so according to its use and the lack of scientific and proper treatment and that the homes of complainants are not so adjacent to the proposed establishment as to warrant equitable interference.
The averments of the bill in the case at bar closely follow the allegations of the bill which was held good in the case of Higgins v. Bloch, 213 Ala. 209, 104 So. 429, 432. It may be that the residence of one of the complainants in that case was in closer proximity to the proposed establishment than the homes of the complainants in the present case. We think, however, that such proximity is alleged in the present case as to uphold the equity of the bill. In the foregoing case this court said:
"Under the facts averred in this cause, which are admitted under demurrer, we must and do hold the business proposed to be established by respondents at this place, in close proximity to the homes of complainants, which is in an exclusive, popular, and long-established residential district, and the manner in which the business is to be maintained and carried on there, will make it a nuisance. It will injure the value of the property of complainants as homes. It will inconvenience, disturb, and *28 discomfort complainants, or any ordinary, reasonable man, in using and occupying their respective residences as homes. These injuries and inconveniences will be in their nature continuous or constantly recurring. Hence injunction is a proper remedy for complainants to seek."
The law of Alabama as announced in the foregoing decision was followed in Laughlin, Wood & Co. v. Cooney, 220 Ala. 556, 126 So. 864, 865. In the case here mentioned it was contended that the proposed business was not a nuisance per se but would only become a nuisance when the establishment was so obnoxiously and improperly used as to cause the institution to develop into an actual nuisance. This court said:
"The question argued and presented for decision on this appeal is not that such business is a nuisance per se, but whether it becomes a nuisance when it intrudes into and is conducted in such residential district?
"While it must be conceded that the business of conducting funeral parlors is a lawful business and necessary to the proper care and disposition of the dead, nevertheless the fact remains that its inherent nature is such, if located in a residential district, it will inevitably create an atmosphere detrimental to use and enjoyment of residence property, produce material annoyance and inconvenience to the occupants of adjacent dwellings, and render them physically uncomfortable, and in the absence of a strong showing of public necessity, its location in such district should not be allowed to protrude into such residential district over the protests of those who would be materially injured thereby. * * *"
In accordance with the foregoing authorities we think the court acted correctly in overruling the demurrers to the bill of complaint.
Affirmed.
BROWN, FOSTER and LAWSON, JJ., concur. | June 22, 1950 |
706b4571-4108-42d4-9ce4-605c21174668 | Dorsky v. Brown | 51 So. 2d 360 | N/A | Alabama | Alabama Supreme Court | 51 So. 2d 360 (1951)
DORSKY
v.
BROWN, License Inspector.
6 Div. 967.
Supreme Court of Alabama.
March 1, 1951.
*361 J. Paul Meeks, of Birmingham, for appellant.
A. A. Carmichael, Atty. Gen., and Wm. H. Burton, Jr., Asst. Atty. Gen., for appellee.
PER CURIAM.
The dissenting opinion of Mr. Chief Justice LIVINGSTON sufficiently states the facts and the point of law involved.
It is contended that Act No. 688, General Acts 1947, page 522, is unconstitutional under the last sentence of section 70 of the 1901 Constitution of Alabama, which provides that "No revenue bill shall be passed during the last five days of the session", and that Act No. 688 was passed on the last day of the 1947 regular session of the legislature. The contention is without merit.
The title of Act No. 688 is as follows: "An Act To amend Section 613, Title 51, Code of Alabama 1940, as amended by an Act entitled An Act to amend Section 613, Title 51, Code of Alabama 1940, Act No. 207, General Acts Regular Session 1943, approved June 22, 1943, page 185." The argument seems to be that section 613, supra, had for its origin schedule 154 of section 348, Article XIII, Chapter 1, of the General Revenue Bill passed by the Legislature of 1935, General Acts 1935, pages 256-504. Schedule 154 was amended by an Act of the Legislature of 1937, General and Local Acts, Extra Session, *362 1937, pages 32-33. It was amended again by the Legislature of 1939, General Acts 1939, Regular and Special Session, page 519. Schedule 154 was then brought into the Code of 1940, as section 613, Title 51, Section 613, supra, was amended by an Act of the Legislature of 1943, General Acts 1943, page 185, and as amended was again amended by Act No. 688, supra, of the Legislature of 1947, General Acts 1947, page 522.
It is unnecessary to speculate as to the effect of bringing schedule 154, supra, as amended by the several amendments pointed out into the Code of 1940, as section 613, Title 51, for the reason that Act No. 688, House Bill No. 235 is a bill "for raising revenue," which under the provisions of section 70 of the Constitution properly originated in the House, but is not a "revenue bill" within the inhibition of the last clause of section 70 of the Constitution, that "No revenue bill shall be passed during the last five days of the session."
Our cases are clear to the effect that the last clause of section 70, supra, refers to and was intended by the Constitution makers to apply only to the general revenue bill. Woco Pep Co. of Montgomery v. Butler, 225 Ala. 256, 142 So. 509; Harris v. State ex rel. Williams, 228 Ala. 100, 151 So. 858; In re Opinion of Justices, 223 Ala. 369, 136 So. 589; In re Opinions of Justices, 233 Ala. 463, 172 So. 661.
It is also insisted that Act No. 688 is violative of that part of section 45 of the 1901 Constitution of Alabama, which provides that "Each law shall contain but one subject, which shall be clearly expressed in its title". That a section of the Code may be amended by reference to the section number only is well settled by our decisions. Of course, it is understood that the amendatory act must be germane to, supported by and supplemental to the section of the act sought to be amended. State ex rel. Troy v. Smith, Auditor, 187 Ala. 411, 65 So. 942; Glass v. Prudential Ins. Co., 246 Ala. 579, 22 So. 2d 13; Harris v. State ex rel. Williams. 228 Ala. 100, 151 So. 858; City of Birmingham v. Merchants Cigar & Candy Co., 235 Ala. 204, 178 So. 220.
The title of Act No. 688 is as follows: "To amend Section 613, Title 51, Code of Alabama 1940, as amended by an Act entitled an Act to amend Section 613, Title 51, Code of Alabama 1940, Act No. 207, General Acts Regular Session 1943, approved June 22, 1943, page 185."
Act No. 688 is a complete rewrite to section 613, supra, as amended by Act No. 207, passed by the 1943 Legislature. Coin operated radios were not taxed under section 613, supra. Other machines and devices taxed under the provisions of Act No. 688 were not included in section 613, supra.
The subject of a section of the Code is the idea or thing about which the legislature has expressed its will. Kendrick v. State, 218 Ala. 277, 120 So. 142, and our cases are to the effect that the title of an act which purports merely to amend a certain section of the Code cannot, conformably with section 45 of the Constitution, add a new and different subject. Kendrick v. State, supra; State ex rel. Troy v. Smith, Auditor, supra; Board of Revenue v. Jansen, 224 Ala. 240, 139 So. 358.
The subject of Act No. 688, supra, is machines or devices in the nature of coin in the slot or vending machines, which are also the subject of section 613, supra.
Act No. 688, supra, does not offend section 45 of the Constitution in respect to that feature of it now under consideration.
Appellant argues that a coin operated radio receiving set is not a "vending machine" and, as a consequence, Act No. 688, supra, presented a new subject matter not covered by section 613, supra. We think the foregoing argument is answered above. The Court is of the opinion that the taxable event here under consideration is controlled by the same principles of law as announced and followed by this Court in Sanford v. City of Clanton, 31 Ala.App. 253, 15 So. 2d 303, certiorari *363 denied 244 Ala. 671, 15 So. 2d 309; and we are not convinced that later cases of the Supreme Court of the United States have detracted from the pertinent principles enunciated in that case, which is the prevailing rule on the question in this jurisdiction. Therefore, until there is a clearer pronouncement by the United States Supreme Court on the subject, we prefer to rest on the rule of the Sanford case as controlling.
We are not convinced beyond reasonable doubt that the statute is unconstitutional and, therefore, affirm the decree of the lower court in so holding.
BROWN, FOSTER, LAWSON, SIMPSON, and STAKELY, JJ., concur.
LIVINGSTON, C. J., dissents as indicated.
LIVINGSTON, Chief Justice, dissenting.
The appellant, M. Dorsky, instituted this proceeding in the Circuit Court, in Equity, of Jefferson County, Alabama, against Bradley G. Brown, as License Inspector of Jefferson County, Alabama, the appellee, seeking a declaratory judgment as to the constitutional validity of the tax imposed on each coin operated radio by Act 688 of General Acts of the Regular Session of the 1947 Legislature of Alabama, General Acts 1947, page 522, Title 51, section 613, Pocket Part, Code of 1940. The petition or bill of complaint also sought an injunction restraining Brown from collecting the tax provided for in section 613, supra.
The cause was submitted on the bill of complaint as amended and an agreed statement of facts. The court entered a decree denying generally the relief prayed for, and from that decree this appeal is prosecuted. We take it that the decree sustains the validity of the Act assailed and will so treat it.
Several grounds are assigned raising the question of the constitutionality of section 613, supra. Some of these grounds are without merit. But in our opinion that part of section 613, supra, which attempts to levy a license tax on "each coin-operated radio," is violative of the commerce clause of the Constitution of the United States.
It is agreed that the coin operated radios, here involved, have been installed in guest rooms of the Molton, Bankhead and Thomas Jefferson Hotels in the City of Birmingham, Alabama. They are owned, installed and serviced by appellant, Dorsky. By contract, Dorsky received seventy-five per cent of the receipts from the machines and the hotels twenty-five per cent. It is further stipulated that: "The coin radio when in use is plugged into the wall socket in the same manner as a floor lamp or other movable electrical device, and is operated by a person inserting a coin in the coin slot situated on the top left hand side of the cabinet, and at the same time by pressing down on the button or small push lever which is situated in close proximity to the coin slot and on the same side of the cabinet as is shown by the figures designated as `T-230' and `T-231' of exhibit `A' hereto. This operation turns on the electric current in the cabinet as shown by Exhibit `B' hereto; but does not turn on the radio itself, which requires a separate operation, or turning on the control switch of the radio as is shown by `L-104' of Exhibit `A' hereto. After the electric current is turned on by the insertion of the coin, and the control switch of the radio is also turned on, the radio operates in the similar manner as other radios, except for the fact that it only operates for approximately a period of two hours or until the current is automatically switched off by the time unit which is situated on the coin device as is shown in Exhibit `B' hereto. After such period of time, and if the radio is to be played again, it is necessary to insert another coin in the coin device and to go through the same operations as have been heretofore described."
That communications by radio constitute interstate commerce is of course not open to question. Gibbons v. Ogden, 9 Wheat 1, 6 L. Ed. 23; Fisher's Blend Station, Inc., v. Tax Comm., 297 U.S. 650, 56 S. Ct. 608, *364 610, 80 L. Ed. 956. But whether radio broadcasting involves intrastate activity which may be subjected to local taxation, the decided cases are not in harmony. In the Fisher's Blend Station case, supra, the United States Supreme Court seems to have reserved this point by the following language: "Whether the state could tax the generation of such energy, or other local activity of appellant, as distinguished from the gross income derived from its business, it is unnecessary to decide." In that connection see the following cases: United States v. American Bond & Mortgage Co., D.C., 31 F.2d 448; City of Atlanta v. Atlanta Journal Co., 186 Ga. 734, 198 S.E. 788; Whitehurst v. Grimes, D.C., 21 F.2d 787; Albuquerque Broadcasting Co. v. Bureau of Revenue, 51 N.M. 332, 184 P.2d 416, 11 A.L.R.2d 966; Beard v. Vinsonhaler, 215 Ark. 389, 221 S.W.2d 3.
The tax here involved is levied on the business of operating instrumentalities of reception rather than the business of broadcasting. No attempt is made in section 613, supra, to apportion the tax or to separate intrastate communications from interstate communications and to levy the tax on intrastate communications only. So in that respect, we are bound" to consider the levy as one on interstate communications, or on the business of operating instrumentalities used in interstate communications.
As we understand the Fisher's Blend case, supra, it was not held that all broadcasting was interstate commerce, but that as the tax was levied on the gross income, which included that from interstate commerce, it followed that it was an unauthorized tax levied on interstate commerce.
We have found only one case determining a state's right to levy a tax upon radio receiving sets. In that case, reported in D.C., 46 F.2d 671, and styled Station WBT v. Poulnot, it was held that radio receiving sets in South Carolina were absolutely essential instrumentalities of interstate commerce, and that the state of South Carolina had no right to lay an annual license tax on the privilege of owning and operating a radio receiving set in that state. The opinion in that case was rendered January 7, 1931. It was cited with apparent approval in the case of Western Live Stock v. Bureau of Revenue, 303 U.S. 250, 58 S. Ct. 546, 551, 82 L. Ed. 823, 115 A.L.R. 944, decided by the United States Supreme Court on February 28, 1938.
Some general observations made in the Western Live Stock case, supra, regarding the power of the state to tax interstate commerce have caused much comment, and have so divided the Supreme Court of the United States that subsequent decisions on the subject lack unanimity. For a rather full discussion, see Albuquerque Broadcasting Co. v. Bureau of Revenue, supra. In the Western Live Stock case, supra, the United States Supreme Court said: "In this and other ways the case differs from Fisher's Blend Station, Inc., v. State Tax Comm'n., supra, on which appellants rely. There the exaction was a privilege tax laid upon the occupation of broadcasting, which the Court held was itself interstate communication comparable to that carried on by the telegraph and the telephone, and was measured by the gross receipts derived from that commerce. If broadcasting could be taxed, so also could reception. Station WBT, Inc. v. Poulnot, D.C., 46 F.2d 671. In that event a cumulative tax burden would be imposed on interstate communication such as might ensue if gross receipts from interstate transportation could be taxed. This was the vice of the tax of a percentage of the gross receipts from goods sold by a wholesaler in interstate commerce, held invalid in Crew Levick Co. v. Pennsylvania, supra (245 U.S. 292, 38 S. Ct. 126, 62 L.Ed. 295). In form and in substance the tax was thought not to be one for the privilege of doing a local business separable from interstate commerce. Cf. American Manufacturing Co. v. [City of] St. Louis, supra (250 U.S. 459, 39 S. Ct. 522, 63 L.Ed. 1084). In none of these respects is the present tax objectionable."
The holding in the Poulnot case, supra, was that a radio broadcasting station had the right to attack the constitutionality of a state law imposing a tax on radio receiving sets because the result of such a tax was to impair the value of the business of broadcasting stations, and if the amount of the tax should be increased, the business might *365 be destroyed entirely, so that the property rights of the broadcasting station were directly affected by the tax in question. If the reception of interstate radio communications can be taxed in Alabama, the same communications received in other states may be taxed there also. We think that is the cumulative tax burden regarding radio communications envisioned by Mr. Justice Stone in the above quoted excerpt from his opinion in the Western Live Stock case, supra.
In the case of McGoldrick v. Berwind-White Coal Mining Co., 309 U.S. 33, 60 S. Ct. 388, 400, 84 L. Ed. 565, 128 A.L.R. 876, Mr. Chief Justice Hughes in a dissenting opinion concurred in by Mr. Justice McReynolds and Mr. Justice Roberts said:
"We have sustained the authority of the State to impose occupation taxes when they were deemed to be so measured or apportioned as to relate appropriately to the privilege of transacting an intrastate business. The application of these principles has led to close distinctions. But that fact would seem to present no good reason for sweeping away the protection of interstate commerce where the State lays a direct tax upon that commerce as in this case.
"We have said in a long line of decisions, that the State cannot tax interstate commerce either by laying the tax upon the business which constitutes such commerce or the privilege of engaging in it, or upon the receipts, as such, derived from it. The same principle has been declared in recent cases. In Fisher's Blend Station v. Tax Commission, 297 U.S. 650, 655, 56 S. Ct. 608, 610, 80 L. Ed. 956, [959], we said: `As appellant's income is derived from interstate commerce, the tax, measured by appellant's gross income, is of a type which has long been held to be an unconstitutional burden on interstate commerce'. There, a state occupation tax upon the gross receipts of the owner of a radio station from broadcasting programs to listeners within and beyond the State was held invalid."
See, also, Minnesota rate cases, Simpson v. Shepard, 230 U.S. 352, 400, 57 L. Ed. 1511, 1541, 33 S. Ct. 729, 48 L.R.A., N.S., 1151, Ann.Cas.1916A, 18; State Freight Tax case, 15 Wall. 232, 21 L. Ed. 146; Robbins v. Taxing Dist., 120 U.S. 489, 7 S. Ct. 592, 30 L. Ed. 694, 1 Interst.Com.R. 45 Philadelphia & S. Mail S. S. Co. v. Pennsylvania, 122 U.S. 326, 7 S. Ct. 1118, 30 L. Ed. 1200, 1 Interst.Com.R. 308; Leloup v. Mobile, 127 U.S. 640, 8 S. Ct. 1380, 32 L. Ed. 311, 2 Interst.Com.R. 134; McCall v. California, 136 U.S. 104, 10 S. Ct. 881, 34 L. Ed. 391, 3 Interst.Com.R. 181; Brennan v. City of Titusville, 153 U.S. 289, 14 S. Ct. 829, 38 L. Ed. 719, 4 Interst.Com.R. 658; Galveston, H. & S. A. R. Co. v. Texas, 210 U.S. 217, 28 S. Ct. 638, 52 L. Ed. 1031; Western Union Tel. Co. v. State of Kansas ex rel. Attorney General, 216 U.S. 1, 30 S. Ct. 190, 54 L. Ed. 355; Pullman Co. v. Kansas, 216 U.S. 56, 30 S. Ct. 232, 54 L. Ed. 378; Meyer v. Wells Fargo & Co., 223 U.S. 298, 32 S. Ct. 218, 56 L. Ed. 445; Crenshaw v. Arkansas, 227 U.S. 389, 33 S. Ct. 294, 57 L. Ed. 565; Crew Levick Co. v. Pennsylvania, 245 U.S. 292, 38 S. Ct. 126, 62 L. Ed. 295; Sonneborn Bros. v. Cureton (Sonneborn Bros. v. Keeling), 262 U.S. 506, 515, 43 S. Ct. 643, 67 L. Ed. 1095, 1100; Fisher's Blend Station, Inc., v. Tax Commission, 297 U.S. 650, 655, 56 S. Ct. 608, 80 L. Ed. 956, 959; Puget Sound Stevedoring Co. v. Tax Commission, 302 U.S. 90, 58 S. Ct. 72, 82 L. Ed. 68; J. D. Adams Mfg. Co. v. Storen, 304 U.S. 307, 311, 58 S. Ct. 913, 82 L. Ed. 1365, 1369, 117 A.L.R. 429; Gwin, White & Prince v. Henneford, 305 U.S. 434, 439, 59 S. Ct. 325, 83 L. Ed. 272, 276.
The foregoing principles enunciated by Mr. Chief Justice Hughes might have been somewhat impaired by the majority opinion in that case and the case of Western Live Stock v. Bureau of Revenue, supra, and other cases; but, if so, it was apparently resuscitated in Freeman v. Hewit, 329 U.S. 249, 67 S. Ct. 274, 276, 91 L. Ed. 265, and restored to its former standing as a bar to state taxation. In that case it was said:
"Our starting point is clear. In two recent cases we applied the principle that the Commerce Clause was not merely an authorization to Congress to enact laws for the protection and encouragement of commerce among the States, but by its own force created an area of trade free from interference by the States. In short, the *366 Commerce Clause even without implementing legislation by Congress is a limitation upon the power of the States. (Citation.) In so deciding we reaffirmed, upon fullest consideration, the course of adjudication unbroken through the Nation's history. * * *
"State taxation falling on interstate commerce, on the other hand, can only be justified as designed to make such commerce bear a fair share of the cost of the local government whose protection it enjoys. But revenue serves as well no matter what its source. To deny to a State a particular source of income because it taxes the very process of interstate commerce does not impose a crippling limitation on a State's ability to carry on its local function. Moreover, the burden on interstate commerce involved in a direct tax upon it is inherently greater, certainly less uncertain in its consequences, than results from the usual police regulations. * * *
"It cannot justify what amounts to a levy upon the very process of commerce across State lines by pointing to a similar hobble on its local trade. * * *
"To extract a fair tithe from interstate commerce for the local protection afforded to it a seller State need not impose the kind of tax which Indiana here levied. As a practical matter, it can make such commerce pay its way, as the phrase runs, apart from taxing the very sale. * * *"
There follow many illustrations of indirect taxes on interstate commerce, which may be constitutionally levied by the states; then follows:
"These illustrative instances show that a seller State has various means of obtaining legitimate contribution to the cost of its government, without imposing a direct tax on interstate sales. While these permitted taxes may in an ultimate sense, come out of interstate commerce, they are not, as would be a tax on gross receipts, a direct imposition on that very freedom of commercial flow which for more than a hundred and fifty years has been the ward of the Commerce Clause. * * *
"Nor is there any warrant in the constitutional principles heretofore applied by this Court to support the notion that a State may be allowed one single tax-worth of direct interference with the free flow of commerce. An exaction by a State from interstate commerce falls not because of a proven increase in the cost of the product. What makes the tax invalid is the fact that there is interference by a State with the freedom of interstate commerce. * * *
"Taxes which have the same effect as consumption taxes are properly differentiated from a direct imposition on interstate commerce, such as was before the Court in the Adams case (J. D. Adams Mfg. Co. v. Storen, 304 U.S. 307, 58 S. Ct. 913, 82 L. Ed. 1365, 117 A.L.R. 429) and is now before us. The tax on the sale itself cannot be differentiated from a direct unapportioned tax on gross receipts which has been definitely held beyond the State taxing power ever since Fargo v. Michigan, 121 U.S. 230, 7 S. Ct. 857, 30 L.Ed. 888".
The court reaffirmed "upon fullest consideration, the course of adjudication unbroken through the Nation's history * *", supra, that is, the dogma that interstate commerce cannot be taxed directly. See, also, Joseph, Comptroller v. Carter & Weekes Stevedoring Co., 330 U.S. 422, 67 S. Ct. 815, 819, 91 L. Ed. 993.
As I understand the decisions of the Supreme Court of the United States, they of course being controlling, the attempt by the State of Alabama to impose an occupation tax on coin operated radios is abortive, and section 613, supra, to that extent is unconstitutional and void.
The majority of the Court entertain the view the statute is constitutional and that the decree of the lower court should be affirmed.
I therefore dissent. | March 1, 1951 |
eeab5187-04ae-417c-8a2e-421fb0793148 | Keith v. State | 46 So. 2d 705 | N/A | Alabama | Alabama Supreme Court | 46 So. 2d 705 (1950)
KEITH
v.
STATE.
8 Div. 518.
Supreme Court of Alabama.
June 1, 1950.
Jas. W. Woodroof, Paul T. Gish, Jr., and D. U. Patton, all of Athens, for appellant.
A. A. Carmichael, Atty. Gen., and MacDonald Gallion, Asst. Atty. Gen., for the State.
*706 STAKELY, Justice.
Robert Atkinson lives on his place in the Green Briar district in the southeastern part of Limestone County. There is a house in his back yard about 75 to 100 feet from his home. Enos Foster lived in this house with his wife Canzella Foster. On Sunday, November 14, 1948, Queenie Clements, an old woman and the mother of Canzella Foster, was visiting with her daughter. Robert Atkinson left his home about 1 o'clock on this date and returned just after dark. Upon his return he found Queenie Clements lying dead right at the bottom of the steps to the house in which Canzella Foster lived, while Enos Foster was found by him lying dead about 50 to 60 feet away and near the well house in the yard. Both had been bludgeoned about the face and head. Later that night about 11 P.M. Joe Keith (appellant), who also lived on the Atkinson place, was taken into custody by the authorities. There was blood on the shirt he was wearing. Subsequently he signed a written statement confessing the killing of both Queenie Clements and Enos Foster.
Appellant was indicted for the murder of Queenie Clements. Trial resulted in a conviction and sentence of murder in the first degree. The death penalty was imposed. The appeal here is under the automatic appeal act.
Canzella Foster, witness for the state, testified in substance as follows. On the Sunday afternoon in question Joe Keith came to her house and found her husband Enos Foster standing in the door. She heard Joe say to Enos, "Mr. Bob wants some stuff moved out of the room." Enos wanted to know when he wanted the stuff moved and Joe said "Right now." Enos thereupon left with Joe and she never saw Enos alive again. In about 30 minutes after he first came to her house Joe came to her house a second time. She was cooking supper and Queenie Clements was seated at the table. It was now dark. When she saw Joe standing at the door, she took her lamp which she had lit and went to the door. He thereupon hit her with a piece of iron pipe and knocked the lamp out of her hand. He hit her three times on the neck and shoulder and while he was hitting her, Queenie ran to him. He then struck Queenie who fell to the floor. She then ran away "hollering, Lord, have mercy." According to Canzella, Canzella had no knife in her hand and made no attack on Joe. Tendencies of the evidence show that subsequently blood was found splattered on the floor. A broken lamp chimney was also found on the floor.
There were no witnesses for the defendant as to the facts relating to the killing, but witnesses for the state gave another version of the killing. In substance the other version was as follows. On the Sunday afternoon in question Joe Keith was at the home of Wiley Glass with a number of others. Whiskey was being drunk and Joe Keith had more than his share. An altercation arose between Joe Keith and Buddy Glass in which Buddy drew a knife on Joe. At the insistence of his sister and Lucie Rice, the girl with whom he was living, Joe left and then went with them to the home of his uncle where he tried to borrow a knife from Gloria Keith. She told him she had no knife and he soon left with Lucie Rice. Joe then went to the home of Robert Atkinson and pulled on a back window but it was not open. He picked up an iron bar and when he threatened Lucie she left. On cross-examination Lucie testified that after she left Joe she met Nellie Keith and they turned back to the house of Mr. Atkinson. She saw Joe and Canzella in some kind of fight between the house and the well. She saw Canzella hit Joe but did not see what Canzella had in her hand.
The written statement which Joe Keith signed contained among other things the following: "I live on Mr. Robert K. Atkinson's place. I had been down to Bus Warren's house with Frank Twitty (C. M.) drinking whiskey Sunday evening November 14th, 1948. I left there just after dark and came on to Alf Warner's. I stayed there about 15 minutes. I then came on to Ennis Foster house and called him out of the house. He lived behind Mr. Robert Atkinson's house about 75 feet East. I had a iron bar in my hands about 2-1/2 or 3 feet long and about 1 inch in diameter. Ennis came out and we walked up to the *707 pump house. Me and Ennis was talking and then got to arguing. I took the iron bar and with both of my hands hit Ennis with all my might in the head, and he fell. I might have hit him again, I don't know. Ennis wife and Queen ran out with something in their hands. Ennis's wife grabbed him and was dragging his body. The other old woman made at me and I hit her in the head twice with the iron bar and she fell. I don't remember hitting Canzella Foster. I might have hit her I don't know. I think I dropped the iron bar close to the pump house or in Mr. Atkinson yard. * * * The blood on my shirt is off of one of the people I killed. * * *."
Reversal is sought (1) for alleged error in connection with the organization of the grand jury, (2) rulings on the evidence and (3) the action of the court in refusing a written charge requested by the defendant.
I. Section 30, Title 30, Code of 1940 provides in substance, among other things, that at any session of a court requiring jurors for the next session, the judge of the court shall draw from the jury box in open court the names of not less than 50 persons to supply the grand jury for such session etc. It is argued in the case at bar that the judge did not draw the names of the jurors from the jury box but in effect selected the names of certain jurors from the jury box. This defense was presented by plea in abatement and an issue made with respect thereto by replication filed by the state.
In the recent case of Rush v. State, Ala. Sup., 45 So. 2d 761, this court pointed out that while § 285, Title 15, Code of 1940 provides in effect that no objection can be taken to an indictment by plea in abatement or otherwise on any ground going to the formation of the grand jury except that the jurors were not drawn in the presence of officers designated by law, nevertheless this statute was designed to prevent quashing of the indictment for mere irregularities and to obviate resulting delays in the administration of justice. It was pointed out that the statute was not designed to nullify matters deemed essential to the established concept of trial by jury which offend basic principles of due process. See also Vernon v. State, 245 Ala. 633, 18 So. 2d 388; Smith v. State, 34 Ala.App. 45, 38 So. 2d 341, certiorari denied 251 Ala. 559, 38 So. 2d 347.
There is no doubt that § 30, Title 30, Code of 1940, referred to supra, was designed to provide that the judge shall draw the names of the jurors from the jury box without selection by him in any way. And there can be no doubt that if there is a selection by the judge this would tend to indicate that jurors have been specially selected for a particular case and would thereby offend basic principles of due process. So we must look to the facts brought out in the evidence to see if there was a selection by the judge of jurors rather than an impartial drawing at random of the names from the jury box as required by law.
The facts shown by the evidence may be stated in substance as follows. On March 15, 1949, the trial judge, Hon. Newton B. Powell, in open court set the docket for the April term of the Circuit Court of Limestone County, Alabama. At this time a number of attorneys of the local bar were present and as soon as the Judge had set the docket he proceeded to draw the venires for the three weeks of court from the jury box. Both the setting of the docket and the drawing of the juries took place in the office of the Circuit Clerk in the Court House in Athens, Alabama. The sheriff and the clerk were present during the entire proceeding. Some of the attorneys who had been present when the docket was set remained for the drawing of the jurors.
The judge first unlocked and opened the jury box. He shuffled the cards in the box by putting his hands into it and lifting hands full of cards out of the box and then letting them slip through his fingers back into the box. He repeated this process of shuffling the cards a number of times during the drawing. While the judge was shuffling the cards some of them would fall on the desk on which the box was placed. He picked up these cards and with one *708 exception placed them back into the box. After the first shuffling had been completed, the judge proceeded to draw the name cards out of the jury box for the first week of court. (The grand jury was later selected from the first week's venire.) He drew these cards out of the box singly. After drawing from three to five cards in this manner, he drew a group of three cards from the box which were clipped together. He looked at these cards and dropped them back into the box. There is evidence tending to show that the judge was in the process of shuffling the cards at the time he saw these three cards clipped together. The judge then proceeded to draw each card singly from the box and hand them to the clerk. After the drawing of the venire for the whole term, the judge closed the jury box and locked it. At this time one of the attorneys present called the Judge's attention to the fact that one name card was lying on the desk by the side of the jury box. The evidence tends to show that this card probably fell to the desk during the shuffling of the cards. However it is not shown how long this card had been lying on the desk. The attorney picked the card up and handed it to the Judge. The Judge opened the box and placed the card into the jury box. Then he returned the box to the sheriff. At this time all of the attorneys who had been present during the drawing except the county solicitor left the clerk's office. Within a few minutes one of the attorneys who had just reached his office was telephoned by the county solicitor and requested to come back to the clerk's office. As soon as this attorney reached the clerk's office, the sheriff handed the jury box back to the trial judge. The Judge opened the box and reached his hands into the cards until he found the three cards which were clipped together. He drew these cards from the box, handed the cards to the clerk and requested that they be placed upon the venire for the first week of the court. This took place in the presence of both the sheriff and the clerk. No comment was made by any one present as to the names on these three cards at this time.
The proof shows that the jury commission of Limestone County had been at work on the jury cards some months prior to the drawing of the venire for this term of the court. The secretary of the circuit court clerk worked with the jury commission. The commission took some names from the jury box. She testified that she clipped three name cards together which had been drawn from the box by the commission. The commission had information that the cards which they took from the box and which were clipped together were the names of men who were dead or out of the county. She testified that one of the names which she clipped together was that of Carlyle Taylor. She further testified that she did not ever see any other name cards clipped together.
The three names of jurors which were drawn by the Judge at the second drawing of the venire were placed on the bottom of the jury list for the first week of court. One of these names was Carlyle Taylor, who did not appear. One of these three names was Marvin Baker who was found and served.
There is testimony tending to show that there are hundreds of name cards in the jury box and that the judge drew the venire without looking in the box. There is also testimony tending to show that the jury box is kept in the vault in the offices of the Judge of Probate of Limestone County, Alabama, and that this vault at certain hours is open and accessible to the public. However the evidence tends to show that according to the knowledge of the probate judge the box had never been removed from the vault except by the sheriff or by the jury commission.
The issue made by the plea in abatement and the replication thereto was fully explained to the jury by the court in its charge to the jury. This issue was tried and submitted to the jury before evidence was taken and the case tried on the merits. The jury found the issue in favor of the state. We think the finding of the jury should stand. The three cards were evidently clipped together so as to be withdrawn from the jury box because the three persons named respectively on the cards were either dead or had moved outside the county. The court, therefore, at first determined *709 that these names should not be placed on the venire, but when he saw that the legality of his act might be questioned, he drew these names out of the box again and ordered them placed on the venire. The second drawing of the three cards clipped together was not a selection, but merely a redrawing of cards already drawn in an effort to avoid legal question. We do not think that appellant has been injuriously affected. Rush v. State, supra.
II. It is insisted that proof of the killing of Enos Foster is inadmissible since the defendant is charged in the indictment with the murder of Queenie Clements and evidence of another crime is not within the scope of its allegations. There was no error in this regard. The killing of Enos Foster was so connected with the killing of Queenie Clements as to make the one a part of the res gestae of the other. Grant v. State, 250 Ala. 164, 33 So. 2d 466; Kennedy v. State, 182 Ala. 10, 62 So. 49, 51; Sexton v. State, 239 Ala. 287, 196 So. 744; Laws v. State, 209 Ala. 174, 95 So. 819. "Every fact and incident * * * of the one was competent * * * in illustration of the other." Kennedy v. State, supra; Jackson v. State, 229 Ala. 48, 155 So. 581; Terry v. State, 13 Ala.App. 115, 69 So. 370.
The chain of events beginning with the difficulty between appellant and Buddy Glass was admissible in evidence. After this altercation the jury had the right to infer that appellant was bent on revenge or further difficulty with Buddy Glass. He tried to procure a knife from Gloria Keith but did not get it. There is testimony that at the house where she lived he said, "Listen at Wiley Glass and them making up a plot they are going to kill me. I'll fix them all. Lucy are you going with me." She replied, "Yes" and "Then he led out running up toward Mr. Robert Atkinson's house." The evidence admits of the inference that he wanted to get into Mr. Atkinson's house to procure a weapon of some kind. When he reached the Atkinson house the difficulty with Enos Foster ensued and as a part of this difficulty or within a period of 30 minutes thereafter Queenie Clements was killed within a few feet from where Enos Foster was slain and according to tendencies of the evidence in the same manner. The chain of events beginning with the difficulty with Buddy Glass need not be a part of the res gestae in the sense that these events became a part of the crime itself, since they lead up to and tend to explain the acts, animus or intent of the defendant at the time he killed Queenie Clements. Stallings v. State, 249 Ala. 580, 32 So. 2d 236; Sanders v. State, 242 Ala. 532, 7 So. 2d 483; Jordan v. State, 81 Ala. 20, 1 So. 577.
III. Appellant takes the position that the confession claimed to have been made and signed by him was involuntary and void because of his race, lack of intelligence, inexperience and education and the way in which it was obtained. No evidence regarding the confession was introduced by the defendant and so we must consider carefully the evidence for the State. Before the court would permit the statement to be introduced in evidence, the State was required to account for the treatment of the defendant from the time he was taken into custody.
The defendant is a plantation Negro, 29 years of age. He was arrested at about 11 p. m. of the night of the killing while he was in bed at his home. He dressed and was taken by four or five officers to the county jail. The killing was not mentioned on the way to the county jail. When the jail was reached the defendant was taken into the receiving room, a room in size about 10 feet by 20 feet. In it were a table, several chairs and two cots. A number of officers from other counties were present when he was brought in but all left the room when he was examined and signed the confession, except R. A. Troup, a State Criminal Investigator, the Sheriff and one Deputy Sheriff. He was questioned by R. A. Troup, who wrote the confession which the defendant signed after it had been read to him and after he said it was correct. The confession was signed at about 12:30 that night.
Without conflict the evidence introduced by the state tended to show that no threats were ever made against the defendant, that *710 he was not physically mistreated, that no reward or inducements were offered or held out to him in order to get him to confess. He was informed as to who his questioner was and that his answers could be used against him. He was 29 years old and apparently in good health. The extent of his education was not shown but he could sign his name and understood what he was doing. Without countervailing evidence of any kind the court acted correctly in admitting the statement in evidence. Phillips v. State, 248 Ala. 510, 28 So. 2d 542; Hicks v. State, 247 Ala. 439, 25 So. 2d 139; Arrington v. State, Ala.Sup., 43 So. 2d 644; Odom v. State, Ala.Sup., 46 So. 2d 1.
IV. Citing Wilson v. State, 243 Ala. 1, 8 So. 2d 422, it is contended that the court erred in refusing to give requested charge 19, "If the jury believes from all the evidence that Canzella Foster willfully and corruptly swore falsely as to any material fact, then they may disregard all of such testimony." There was no error in refusing this charge because of its misleading tendencies. The charge does not instruct that in the event the jury believes from all the evidence that Canzella Foster willfully and corruptly swore falsely as to any material fact, then they may disregard all of the testimony of Canzella Foster. On the contrary, under this charge, the jury might infer that they could disregard all of the evidence in the case. In addition to this we consider that refused charge 19 was substantially covered by given charge 14 as follows: "The court charges the jury that if they believe from all of the evidence that any witness has willfully sworn falsely as to any material fact in the case, then they may wholly disregard all of such testimony." Lawman v. State, 207 Ala. 419, 93 So. 69.
We have considered the entire record with great care and find no error therein. The judgment of the lower court must be affirmed.
Affirmed.
BROWN, FOSTER, LIVINGSTON LAWSON and SIMPSON, JJ., concur. | June 1, 1950 |
9f5dbf7e-89b4-4819-a3ad-e28150a0d2dc | Pullman-Standard Car Mfg. Co. v. State | 46 So. 2d 500 | N/A | Alabama | Alabama Supreme Court | 46 So. 2d 500 (1950)
PULLMAN-STANDARD CAR MFG. CO.
v.
STATE.
3 Div. 534.
Supreme Court of Alabama.
May 18, 1950.
E. Grant Fitts and White, Bradley, Arant & All, Birmingham, for appellant.
A. A. Carmichael, Atty. Gen., and Gardner F. Goodwyn, Jr., Asst. Atty. Gen., for the State.
STAKELY, Justice.
The Pullman-Standard Car Manufacturing Company brings this appeal to this court from a final decree of the Circuit Court of Montgomery County, in Equity, upholding, except as hereinafter noted, a final assessment against appellant made by the State Department of Revenue. The assessment is for use taxes based upon sales of electric railway passenger coaches by appellant to Birmingham Electric Company during the period from February 1st, 1947 to April 30, 1947, inclusive. The equity court affirmed the assessment made by the State Department of Revenue in all respects except that no penalty was allowed, with the result that the appeal here is from the final decree of the lower court upholding and affirming the final assessment in the amount of $24,962.28.
The State demurred to the Bill of Complaint of The Pullman-Standard Car Manufacturing Company, filed in the equity court. The demurrer was overruled and thereupon the State filed an answer. The only real issue made by the pleadings is whether the electric railway passenger coaches involved in the proceedings are "railroad cars" within the meaning of subsection (n), Section 789, Title 51, Code of 1940, which is as follows: "The storage, use or other consumption in this state of the following tangible personal property is hereby specifically exempted from the tax imposed by this article. * * * (n) Railroad rails, railroad cars and vessels and barges of more than fifty tons burden, when purchased from the manufacturers or builders thereof. * * *."
The Pullman-Standard Car Manufacturing Company is a corporation organized under the laws of Delaware, with its principal place of business in Chicago, Ill. It has a plant and place of business in Worcester, Massachusetts, and also a plant and place of business in Jefferson County, Alabama. The Birmingham Electric Company is an Alabama corporation with its *501 principal place of business in the City of Birmingham, Alabama. During the period from February 1, 1947 to and including April 30, 1947, appellant sold and delivered to Birmingham Electric Company the 48 electric railway passenger coaches involved in this case. These electric railway passenger coaches were shipped by appellant from its plant at Worcester, Massachusetts, to Birmingham Electric Company at Birmingham, Alabama.
A considerable amount of testimony was introduced. There is no need to set it out in detail, but it has been carefully considered, including a picture of one of the cars, all of which are alike, and pictures of the tracks of Birmingham Electric Company. We consider it clear that these passenger coaches are what are commonly known as street cars or street railway cars. They are electrically propelled and cannot operate on the line of a railroad unless there was constructed an overhead trolley connection and the rails were "bonded". The bonding of rails is the connecting of them in order that an electric current may pass through them. The proof shows that these railway passenger coaches were built so that they could be operated over a so-called standard guage railway or railroad, that is a guage common to all American railroads or railways. The proof further shows that the Birmingham Electric Company has over 100 miles of rail system with about 20 miles outside the City of Birmingham. The rail system of the Birmingham Electric Company connects the City of Birmingham with several separate incorporated cities, such as the City of Bessemer, the City of Tarrant City, the City of Fairfield, etc. But the cars involved in this litigation are not used on the run to Bessemer, Tarrant City of Fairfield. The proof shows that standard steam railroad cars or freight cars, including flat cars and gondolas, are from time to time operated on the system of Birmingham Electric Company for hauling poles, sand, scrap iron etc. for the use of Birmingham Electric Company, but the rail system of Birmingham Electric Company can accommodate a standard railroad train at only normal switching and slow speeds and its tracks are not banked so as to carry a steam locomotive with work cars at 50 miles an hour. The bridges of Birmingham Electric Company system are not strong enough to carry the weight of a mainline locomotive with a string of loaded box cars.
In summary we think that the proof as well as the pleading presents the legal question as to whether street cars or street railway cars are railroad cars within the meaning of the foregoing exemption.
Counsel have furnished much authority both for and against the proposition that railroad cars include street cars. There is nothing in the statute which gives a guide to its meaning. So in addition to the principle that exemptions from taxation are strictly construed against the taxpayer and in favor of the state, Title Guarantee Loan & Trust Co. v. Hamilton, 238 Ala. 602, 193 So. 107; State v. Praetorians, 226 Ala. 259, 146 So. 411, we turn to a generally accepted canon of statutory construction which is that where there is nothing to indicate to the contrary, words in a statute will be given the meaning which is generally accepted in popular, every day usage. Ex parte Pepper, 185 Ala. 284, 64 So. 112; Henderson v. Troy Bank & Trust Co., 250 Ala. 456, 34 So. 2d 835; Hamilton v. City of Anniston, 248 Ala. 396, 27 So. 2d 857; State v. Wertheimer Bag Co. et al., Ala. Sup., 43 So. 2d 824, 825. When tested by these rules of construction, we do not believe that railroad cars include street cars. 51 C.J. p. 405. "Railroad in this sense is usually limited to roads for heavy steam transportation and also to steam roads partially or wholly electrified or roads for heavy traffic designed originally for electric traction. The lighter electric streetcar lines and the like are usually termed railways." Webster's New International Dictionary, 2d Ed. Unabridged.
We set out other Alabama statutes dealing with railroads and street railways. In Section 409, Title 48, Code of 1940, it is made a crime to injure the property of "any railroad or street railway."
*502 Section 104, Title 29, Code of 1940, makes it a crime for any employee of any "railway, or street railway" to be intoxicated while on duty.
The power to condemn in Section 75, Title 10, Code of 1940, is given to street railroads. In Section 82, Title 10, Code of 1940, the reference is to railroads or street railroads.
The right of an easement to cross the line of another is given in Section 29, Title 19, Code of 1940, to "railroad or street railroad."
With reference to eminent domain, in Section 190, Title 10, Code of 1940, the reference is to street car without mentioning railroads.
Section 142, Title 51, Code of 1940, which provides for assessing the property of public utilities makes reference to "railroad companies, street and suburban railroad companies."
In enacting the foregoing statutes it appears that the legislature realized that the term railroad does not include street railroad. This legislative use was given weight in the Missouri case of Sams v. St. Louis & M. R. Co., 174 Mo. 53, 73 S.W. 686, 693, 61 L.R.A. 475, where it is stated: "The very fact of the frequent use of the term `railroad' in our statutes in such connection as to indicate that * * * it would be taken, as a matter of course, to mean a steam railroad, shows that the usual use of the word is with that meaning, and when some other meaning is intended some additional word is used."
In Dean v. State, 149 Ala. 34, 43 So. 24, 25, this court held that the cars in question were not railroad cars within a statute which provided: "Railroad companies must keep good lights on their night trains, and a sufficiency of good drinking water on all trains; and every conductor, who runs any train without lights or water, as required by this section, must, on conviction, be fined not less than one-hundred, nor more than five-hundred dollars."
This court quoted with approval from a prior decision in Birmingham Min. R. Co. v. Jacobs, 92 Ala. 187, 9 So. 320, 12 L.R.A. 830, as follows: "`There are many sections in the Code applicable to railroads which do not and were not intended to apply to street railways.' * * *"
The Court of Appeals in Birmingham Ry. Lt. & Pr. Co. v. Osburn, 4 Ala.App. 399, 56 So. 599, 600, held that the company was not a railroad within the meaning of the statute which imposed a duty to blow the whistle or ring the bell in certain designated situations upon "the engineer, or other person having control of the running of a locomotive on any railroad." This decision was followed in Birmingham Ry. Light & Power Co. v. Greene, 4 Ala.App. 417, 58 So. 801.
In Appel v. Selma St. & Suburban Railway Co., 177 Ala. 457, 59 So. 164, 168, this court interpreted a section of the code which read as follows: "A railroad company is liable for all damages done to persons, or to stock or other property, resulting from a failure to comply with the requirements of the three preceding sections, or any negligence on the part of such company or its agents; and when any person or stock is killed or injured, or other property destroyed or damaged by the locomotive or cars of any railroad, the burden of proof, in any suit brought therefor, is on the railroad company to show a compliance with the requirements of such sections, and that there was not negligence on the part of the company or its agents."
It was held that the Selma Suburban Railway Company was not a railroad within the meaning of such section. This decision was followed in Ex parte Selma Street and Suburban Railway Co., 177 Ala. 473, 59 So. 169. In Appel v. Selma Street & Suburban Railway Co, supra, the court observed that the "words `railroad company,' unconfined by any context, are broad enough to include both steam and electric roads." However "while `railroad' is broad enough in its most generic sense to include a street railway, a street railway is not in general a railroad in the ordinary sense." 44 Am.Jur. p. 217.
In South & North A. R. Co. v. Highland Ave, and B. R. Co., 119 Ala. 105, 24 So. 114, 117, this court held that an act of the legislature which granted the power "to *503 build, own, and operate street railroads, and use thereon cars propelled by horse, steam, or other motive powers; * * *" did not grant the power to construct a freight belt railroad in and around the city for the purpose of transferring freight cars to and between factories and other railroads. This court stated: "From this power given to a land corporation (which previously had no power to construct a railroad of any kind) to construct a street railroad, no authority can be derived to construct a freightbelt railroad in and around the city, for the sole purpose of transferring freight cars to and from factories and other railroads."
The foregoing Alabama decisions showing a distinction between railroads and street railways are not controlling here for various reasons peculiar respectively to each of those cases, as for instance that street cars were not in use at the time the statute was enacted or that the word locomotive applied only to steam railways or that there was no charter power to operate a railroad. But since these cases do show a distinction between railroads and street railways, it is fair to presume that the legislature was aware of these judicial interpretations when it enacted the present act. Since no mention is made in the act of street railways, it is reasonable to assume that the legislature did not intend to embrace street cars or street railway cars within the term railroad cars.
See also Louisville & Portland Railroad Co. v. Louisville City Railway Co., 2 Duv. 175, 63 Ky. 175; Thompson-Houston Electric Co. v. Simon, 20 Or. 60, 25 P. 147, 10 L.R.A. 251, 23 Am.St.Rep. 86; State v. Duluth Gas & Water Co., 76 Minn. 96, 78 N.W. 1032, 57 L.R.A. 63; Omaha & Council Bluffs St. Ry. Co. et al. v. I. C. C., 230 U.S. 324, 33 S. Ct. 890, 57 L. Ed. 1501, 46 L.R.A.,N.S. 385.
We conclude that the lower court decided the case correctly and that its decree should be affirmed.
Affirmed.
FOSTER, LAWSON and SIMPSON, JJ., concur. | May 18, 1950 |
c7861e61-c919-4ec8-bbc7-e8285463c20a | Smalley v. City of Oneonta | 46 So. 2d 201 | N/A | Alabama | Alabama Supreme Court | 46 So. 2d 201 (1950)
SMALLEY
v.
CITY OF ONEONTA.
6 Div. 39.
Supreme Court of Alabama.
April 13, 1950.
Rehearing Denied May 18, 1950.
*202 Roy D. McCord and Arthur Burns, of Gadsden, for appellant.
R. G. Kelton, of Oneonta, for appellee.
FOSTER, Justice.
This is an appeal from a conviction of appellant in the recorder's court of the City of Oneonta for the violation of an ordinance of said city fixing a license fee of $35 for the year 1949 for engaging in the occupation of a brick mason within the city limits of Oneonta. Having been so convicted, appellant appealed to the circuit court of the county, and upon his trial the only question presented was whether the ordinance is contrary to the Constitution of the United States and State of Alabama. And that is the only question presented on this appeal.
There are no constitutional provisions referred to other than the due process clause and equal protection clause of the Fourteenth Amendment of the Constitution of the United States and section 6 of the Constitution of Alabama.
The ordinance was enacted by authority of section 735, Title 37, Code, which provides that municipalities may license any vocation, occupation or profession not prohibited by the Constitution or laws of the State and which may be engaged in or carried on in the city, and providing that this power will be used in the exercise of the police power of the city as well as for the purpose of raising revenue.
The argument of counsel for appellant is as though the license in question was an exercise of the police power only for the purpose of policing and regulating the business of bricklayers. There is no justification for such contention in respect to this particular ordinance. Our cases draw a clear distinction between the power of the city in licensing a business within the city limits and that same business when conducted within the police jurisdiction of the city. When it is within the police jurisdiction *203 of the city the legality of the ordinance is controlled by the principles declared in the case of Van Hook v. City of Selma, 70 Ala. 361, 45 Am.Rep. 85.
There is no reason for the contention that the particular ordinance should be construed upon that basis alone. For, as expressly authorized in section 735, supra, the license tax imposed for doing business in the city may be for revenue as well as for regulation.
Counsel have been unable to find a case where a license tax was imposed upon bricklayers, but we find the case of Parmer v. Lindsey, 157 Tenn. 29, 3 S.W.2d 657, 6 S.W.2d 318, in which the power to license bricklayers was subject to the same principles as are applicable to other such workmen, including plumbers, gasfitters, plasterers and painters.
In the case of Howard v. Lebby, 197 Ky. 324, 246 S.W. 828, 30 A.L.R. 830, the question related to an ordinance of a city imposing a license tax upon the occupation of house painting, the amount being fixed at $25. The question was whether it was a license for revenue or regulation or both. The court held that the city had the power to license for revenue and, therefore, it would be treated as a revenue measure since there was no regulation connected with the ordinance. There is no difference in principle on this question between a house painter and a bricklayer, we think.
The power of the city to levy a license for policing and regulating in respect to a useful and harmless occupation is entirely distinct from the power to tax that same occupation for revenue. Of course this cannot be done when the business is conducted wholly without the corporate limits of the city for then it must be for the purpose of policing and regulating that business and for no other purpose. Van Hook v. City of Selma, supra.
The State may delegate its power to municipal corporations to license occupations within the limits of the city coextensive with the power of the State to do so and this power is limited only by the due process and equal protection provisions of the Constitution. Osborne v. Mobile, 44 Ala. 493; Capital City Water Co. v. Board of Revenue of Montgomery County, 117 Ala. 303, 23 So. 970; State Tax Comm. v. Bailey & Howard, 179 Ala. 620, 60 So. 913; Board of Com'rs of City of Mobile v. Moore, 214 Ala. 525, 108 So. 568. The due process provision would prevent a license tax either for revenue or regulation to be confiscatory. 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. Miller v. City of Birmingham, 151 Ala. 469, 44 So. 388, 125 Am.St.Rep. 31; Beeland Wholesale Co. v. Kaufman, 234 Ala. 249, 174 So. 516; City of Birmingham v. Hood-McPherson, 233 Ala. 352, 172 So. 114, 108 A.L.R. 1140; American Bakeries Co. v. City of Huntsville, 232 Ala. 612, 168 So. 880.
This power to license which the State has and which it has conferred upon cities is not for the purpose of extending a privilege to one to engage in a business in which he does not have the absolute right to do so without such permit. Because the employment is for lawful gain and is a natural and inherent right does not exempt it from being a taxable event. "But natural rights, so called, are as much subject to taxation as rights of less importance. An excise is not limited to vocations or activities that may be prohibited altogether. It is not limited to those that are the outcome of a franchise. It extends to vocations or activities pursued as of common right. What the individual does in the operation of a business is amenable to taxation just as much as what he owns, at all events if the classification is not tyrannical or arbitrary. `Business is as legitimate an object of the taxing power as property.'" Charles H. Steward Machine Co. v. Davis, 301 U.S. 548, 57 S. Ct. 883, 888, 81 L. Ed. 1279, 109 A.L.R. 1293; Carmichael v. Southern Coal & Coke Co., 301 U.S. 495, 57 S. Ct. 868, 81 L. Ed. 1245, 109 A.L.R. 1327.
With respect to the amount of the license fee, attention is called to the case of Van Hook v. City of Selma and Miller v. City of Birmingham, supra, in which it was observed that the presumption was indulged that the amount is reasonable unless it clearly appears that it is otherwise.
*204 It does not appear in this case to be otherwise.
We see no necessity for extending this discussion further in order to reach the conclusion that the ordinance in question is not subject to the attack which is made upon it by this appellant; and that being the only question that is insisted on, the result is that the judgment of conviction should be and is affirmed.
Affirmed.
BROWN, LAWSON and STAKELY, JJ., concur. | April 13, 1950 |
cc454e65-6c10-4ff2-bb7d-d5479684a186 | Davenport v. Cash | 74 So. 2d 470 | N/A | Alabama | Alabama Supreme Court | 74 So. 2d 470 (1950)
Hope DAVENPORT
v.
Clara Green CASH.
7 Div. 230.
Supreme Court of Alabama.
August 30, 1950.
Scott, Dawson & Scott, Chas. J. Scott, Fort Payne, for appellant.
Leonard Crawford and C. A. Wolfes, Fort Payne, for appellee.
SIMPSON, Justice.
Proceeding by appellant under the provisions of Section 56, Tit. 19, Code 1940, seeking to condemn a right of way over the land of appellee. The probate court denied the application; and appeal was taken to the circuit court, and the application was again denied after a hearing on evidence taken ore tenus before the court. This appeal is to review the order of the circuit court.
Before a party is entitled to relief under Section 56, it must appear that he is the owner of a tract of land, no part of which is "adjacent or contiguous to any public road or highway". Appellant's petition, in substance, met this condition and the defendant's answer contained a plea of the general issue. Appellant's testimony tended to prove his allegations, but the evidence of appellee tended to show that there was a road known as the "Old Bankhead Church Road," which ran through the appellant's land and proceeded eastwardly over the appellee's land to the main highway. The evidence also tended to show that the road in question had not been used for the past seven or ten years, but the trial court viewed the premises and found that the road was a public road, and in the decree stated:
"Public road" and "highway" are terms that are common to the law but they *471 have not been used with precision. They generally mean the same thing. Abbott v. City of Duluth, C.C.D.Minn.1900, 104 F. 833, 837. Following are some of the definitions:
A highway is a thoroughfare "in which the public has a right of way or passage." Parsons v. City of San Francisco, 23 Cal. 463.
The prime essentials of a highway have been said to be "the right of common enjoyment on the one hand and the duty of public maintenance on the other." Hildebrand v. Southern Bell Telephone & Telegraph Co., 1941, 219 N.C. 402, 14 S.E.2d 252, 255.
In Webster's New Twentieth Century Dictionary of the English Language (1951), we find the following:
"roadAn open way or public passage * * *."
The definitions from the above decisions are taken out of context and cannot be rigidly applied to situations the court did not have in mind when they were enunciated. But it will be noted that through them all there seems to be running the general idea of a current way of public passage. It is settled in this jurisdiction, however, that a road or highway does not lose its public character by a mere nonuse for a period of less than twenty years. Harbison v. Campbell, 178 Ala. 243, 59 So. 207. It is also true that the words can have different meaning in different statutes, and the correct one in each instance is to be drawn from the context and purpose of the provision in which it is found. Napier v. State, 50 Ala. 168; Glass v. State, 30 Ala. 529.
The state of Iowa has a statute somewhat similar to our own, and it seems appropriate to consider how the courts of that state have applied it. The statute provides, in substance, that any person owning any land not having a "public or private way thereto" may condemn a public way over the land of another. Iowa Code, § 471.4 (1954), I.C.A. In the case of Carter v. Barkley, 1908, 137 Iowa 510, 115 N.W. 21, 22, the court said:
Appellant cites this case as authority for the proposition that he should not be compelled to litigate the public character of the "Old Bankhead Church Road." But it must be noted that the appellant is the only one who contends that this old road is not a public one. It is a way out from appellant's land and over appellee's land, and the latter contends it is a public road.
In the Carter case, the court went on to say:
And in Strawberry Point District Fair Society v. Ball, 1920, 189 Iowa 605, 177 N.W. 697, where it was shown that an absolute private right of way was tendered to the petitioner, his right was denied. Then in the later case of Anderson v. Lee, 1921, 191 Iowa 248, 182 N.W. 380, 381, the Carter case was cited authoritatively even though the decision did hold that a ten-foot private way was not such a reasonably adequate way as would defeat the right to condemn.
The rule in the Carter case seems to us to be sound, and, though we agree with counsel for appellant that in order to discharge his burden of proving a negative, i. e., that his land is not "adjacent or contiguous to any public highway," the petitioner under our statute should not be compelled to unsuccessfully litigate every conceivable route and "ancient trailways," in the instant case, the fact that the appellant is the only party claiming that the "Old Bankhead Church Road" is not a public road renders the way "unquestioned" within the meaning of the Carter case (we emphasize that the Bankhead Road proceeding eastwardly to the main highway traverses only the property of the appellee). We are not disposed to go beyond the Carter case and say that under our statute the public road or highway touching petitioner's land must be one that is free from physical obstruction and "reasonably sufficient for the purpose" if such were the intent of the holding in the Anderson case, supra.
In any event, such question is hardly before us, because the trial court made a finding that there was a public road reaching to appellant's land and that it could be used at present.
In our view of the case, no such showing of error is made as would justify this court in overturning the decision of the trial judge, who as the trier of facts heard the evidence in open court and viewed the locus in quo to determine the disputed issue. Mutual Service Funeral Homes v. Fehler, 257 Ala. 354(14), 58 So. 2d 770; Crawford v. Tucker, 258 Ala. 658(7), 64 So. 2d 411.
Affirmed.
LIVINGSTON, C. J., and GOODWYN and CLAYTON, JJ., concur. | August 30, 1950 |
6437ba56-7b0d-4fb1-8572-6b47927659d1 | Bull v. Albright | 47 So. 2d 266 | N/A | Alabama | Alabama Supreme Court | 47 So. 2d 266 (1950)
BULL
v.
ALBRIGHT et al.
6 Div. 56.
Supreme Court of Alabama.
June 22, 1950.
Weaver & Johnson, of Haleyville, for appellant.
J. A. Posey and Robt. Burleson, of Haleyville, for appellees.
FOSTER, Justice.
This appeal is to review the ruling of the circuit court at law sustaining demurrer to the complaint.
*267 The complaint is in two counts by appellant, as plaintiff, against Albright, individually and as mayor of the City of Haleyville, and Fidelity and Casualty Company of New York.
The demurrer was by each defendant, separately and severally, and to each count of the complaint, separately and severally. The assignments of error are separately addressed to the judgment insofar as it sustains the demurrer of each defendant separately to each count. They both allege that Albright, acting under color of his office as mayor of the City of Haleyville, Alabama, acted maliciously and without probable cause therefor.
In count one it is alleged that he signed or caused to be signed a carte blanche search warrant and jurat on a carte blanche affidavit for search warrant. That certain named police officers of Haleyville filled out the blank spaces in said carte blanche affidavit for search warrant and carte blanche search warrant and signed the same so as to create what purported to be an affidavit and warrant for the search of the premises of plaintiff. It then alleges that the search was made and no contraband was found. It also alleges that Albright did not know whose premises were to be searched or when it was to be done. That his conduct was malicious and was a misfeasance and malfeasance in office and a breach of the conditions of his bond. Plaintiff claims compensatory damages, exemplary damages, punitive damages and vindictive damages. The count alleges that defendant Fidelity and Casualty Company of New York "is surety on the official bond of defendant Albright as such mayor, in the sum of $1,000.00, and as such surety is liable to the plaintiff for the said sum of $1,000.00, which plaintiff claims of said Fidelity and Casualty Company of New York, a corporation, as a part of the total amount claimed."
The second count contains the allegations, not in the first, that Albright "issued or caused to be issued a purported search warrant to search the person or premises of the plaintiff J. C. Bull for alleged prohibited liquors or beverages. That defendant V. H. Albright, acting under color of his office as such mayor, signed or caused his name to be signed, on the blank space provided for his signature as such official, a blank search warrant; he also signed or caused his name to be signed, under color of his office as such mayor, in the blank space provided for his signature as such official, the jurat of a blank affidavit for search warrant. On, to-wit, August 13, 1949, (certain named) police officers of the City of Haleyville, or some one else acting in their names and behalf, filled out and signed said blank affidavit for search warrant and also filled out the blank search warrant form, so as to create what purported to be an affidavit and search warrant for the search of the person or premises of the plaintiff, J. C. Bull." It is also alleged that Albright gave said law enforcement officers a carte blanche search warrant form and carte blanche form of affidavit for search warrant, both signed by him as such mayor. At that time he did not know or have any idea as to whose dwelling, premises or person was to be searched. This count also contains the same claim for damages as in count one, and the same allegations as to the Fidelity and Casualty Company of New York.
We will here state some legal principles which seem to be pertinent. We assume that the mayor was acting as recorder under authority of section 600, Title 37, Code 1940. He was a judicial officer in issuing a search warrant, and has the power and jurisdiction of a justice of the peace in criminal matters. Section 585, Title 37, Code 1940. He therefore had the power to issue search warrants under sections 99 et seq., Title 15, Code 1940. In doing so, he acted judicially. But when he certified to matters over which he had not acquired jurisdiction, it did not become a judicial act when his power is statutory and limited. Such act, though purporting to be judicial, is void on collateral attack and subjects the officer to suit for damages. McLendon v. American Freehold Land & Mortgage Co., 119 Ala. 518, 24 So. 721; Crosthwait v. Pitts, 139 Ala. 421, 36 So. 83.
As we have stated, it is necessary to consider separately the demurrer of the defendant Albright, both as an individual and as mayor of the City of Haleyville, on *268 the one hand, and the Fidelity and Casualty Company of New York on the other. We will first consider the demurrer of Albright in each capacity. Each count alleges he was acting under color of his office as mayor of the City of Haleyville and that he signed a carte blanche search warrant and jurat on a carte blanche affidavit for the same. Count one does not allege that he did anything with it further than to sign it. So far as that count is concerned, he may have kept it in some private place and the city officers have found it and filled it out and acted upon it. Therefore, count one is subject to demurrer by Albright in each capacity.
In count two the allegation is made that he issued or caused to be issued such purported search warrant signed by him carte blanche, both as to the warrant and to the affidavit. It shows that he not only signed said blank forms but delivered them to the city officers. It is also alleged that there was no direction given as to filling out the blanks, that Albright did not know or have any idea that they were to be filled out for the search of plaintiff's premises, and that they were so filled out by the city police officers and served as apparent authority to them to make a search of plaintiff's premises. It therefore alleges that the said Albright purported to perform a judicial act, but did not exercise it as such because he did not comply with the conditions necessary to judicial action. No one appeared before him and made the affidavit and, therefore, his act was void and subjected him to a suit for damages for acting under warrant of his office. The authorities cited above are Crosthwait v. Pitts and McLendon v. American Freehold Land & Mortgage Co., and fully support that theory.
It is also noted that the suit is against the Fidelity and Casualty Company of New York, as surety on his official bond, and that company separately demurred to each count of the complaint. The complaint claims $5,000.00 against Albright and $1,000.00 against the surety, which is the penalty of the bond. In a suit against two defendants jointly it is not available to have a judgment for a different amount against different defendants. City of Birmingham v. Hawkins, 196 Ala. 127, 72 So. 25; City of Tuscaloosa v. Fair, 232 Ala. 129, 167 So. 276. It is doubtful if that question is raised on this appeal.
But the suit in its present form on the bond can only be sustained by virtue of section 50, Title 41, Code 1940. National Surety Co. v. Plemmons, 214 Ala. 596, 108 So. 514; Shell v. Pittman, 229 Ala. 380, 157 So. 205. There is no description in the complaint of the bond; who is the payee, or its conditions. That statute only applies to such official bonds as are required or authorized by law to be given. There is no such authority for the execution by the mayor of the City of Haleyville of an official bond. Sections 34 and 415, Title 37 Code 1940, do not seem to apply. It is therefore only a common law undertaking and suit on it must be based accordingly. Ingram v. Evans, 227 Ala. 14, 148 So. 593; Calhoun v. Lunsford, 4 Port. 345; 46 Corpus Juris 1076, note 42; 43 Am.Jur. 206, note 11; Howard v. United States, 184 U.S. 676, 22 S. Ct. 543, 46 L. Ed. 754.
This suit is one in tort and not on contract. The sureties on an official bond are not liable for punitive damages. Walker v. Graham, 233 Ala. 539, 172 So. 655; Holland v. Fidelity & Deposit Co., 225 Ala. 669, 145 So. 131; Hain v. Gaddy, 219 Ala. 363, 122 So. 329.
The complaint does not show that the bond was conditioned as required by section 51, Title 41, Code 1940, or that the mayor of Haleyville was required by law to give a bond and acted under the bond. Section 52, Title 41, Code 1940. The surety in the instant case was therefore improperly joined in this action. Hill v. Hyde, 219 Ala. 155, 121 So. 510.
The demurrer of the Fidelity and Casualty Company of New York to both counts of the complaint was properly sustained.
The demurrer of defendant Albright, individually and as mayor of Haleyville, to count one of the complaint was properly sustained, but such demurrer to count two should have been overruled.
*269 For the error in sustaining the demurrer of Albright, individually and as mayor of Haleyville, to count two of the complaint, the judgment of non-suit is set aside and the cause restored to the docket as one against Albright, individually and as mayor of Haleyville, on count two.
Reversed and remanded.
BROWN, LAWSON and STAKELY, JJ., concur. | June 22, 1950 |
13bf0d31-d28a-4c59-b3c5-d35c609b2627 | State v. Woodroof | 46 So. 2d 553 | N/A | Alabama | Alabama Supreme Court | 46 So. 2d 553 (1950)
STATE
v.
WOODROOF et al.
8 Div. 476.
Supreme Court of Alabama.
May 18, 1950.
*554 A. A. Carmichael, Atty. Gen., and H. Grady Tiller, Asst. Atty. Gen., for appellant.
Theron Lamar Caudle, Asst. Atty. Gen., and Ellis N. Slack, A. F. Prescott and F. E. Youngman, Sp. Assts. to Atty. Gen., for appellee United States.
Malone & Malone, of Athens, for appellee Woodroof, receiver.
FOSTER, Justice.
This appeal brings up for review orders of a court of equity making distribution of assets of an insolvent corporation, Automatic Gas Company of Athens, Alabama.
On June 4, 1948, a petition was filed in equity by all the stockholders alleging insolvency of the corporation and inability to carry on its business and praying that it be dissolved and a receiver appointed to make proper distribution of its assets. The court on the same day made an order dissolving the corporation and appointing a receiver. On June 10, 1948, the receiver filed a petition to sell all the property, attaching an inventory of the real and personal property, and alleging that there is a mortgage on the greater part of the personal property and on all of the real property of the corporation and a vendor's lien on a portion of the real property, and that it would be to the interest of the creditors to sell it all free from encumbrances and *555 that said lien and mortgage be paid out of the proceeds of the sale.
On the same day the court ordered such a sale to be made by the receiver after specified publication, either publicly or privately, and that all creditors file their claims in said court by August 11, 1948, and that notice of said order be published as directed. Such notice was given. On June 16, 1948, the receiver filed a petition for authority to sell a Jeep to the holder of a conditional sales contract in consideration of satisfying the debt, and for $300 to be paid over and above the debt. The court confirmed said transaction on the same day.
On June 18, 1948, the receiver filed a report of sale of the other assets of the corporation for $15,750, and that same had been paid. On June 19, 1948, the court confirmed said sale and ordered a deed to be executed to the purchaser.
On June 28, 1848, the First National Bank of Fayette, Alabama, filed a claim for the principal sum of $5,750 and interest $460 and attorneys' fee of $655, making a total of $6,865 by mortgage on real and personal property.
On the same day Glaze and Grisham filed a claim for the sum of $800.82 and attorney's fee of $114.08 by a vendor's lien on certain land of the corporation.
On July 1, 1948, the receiver filed a petion for the allowance and payment of those two claims last above stated. And on the same day the court made an order that the receiver pay said claims in full. Various unsecured claims were filed within the time specified in the order.
On July 3, 1948, the tax collector of the county filed a claim for ad valorem State and county taxes of $269.30.
On July 6, 1948, the State Department of Revenue filed a claim for taxes due the State in the sum of $976.03, of which
Attached were exhibits showing the items of each claim. Each such itemized verified statement was filed in the office of the probate judge on May 19, 1948, claiming a lien under Title 51, section 883, Code, upon property and rights to property, real and personal, belonging to said taxpayer.
For that part of the sales tax extending from September 1, 1947 to January 31, 1948, a final assessment had been made on March 29, 1948, in the sum of $741.71. For this amount the State Department of Revenue did on May 31, 1948 issue an execution for the collection of said sum and placed it in the possession of the sheriff of the county and it was in his possession when the instant petition was filed and levied on the property of the corporation.
On July 7, 1948, the United States filed a claim for income taxes for 1948 in the sum of $254.22 and interest from March 10, 1948. An assessment for the same was made. It was certified by the Commissioner of Revenue March 15, 1948, and assessment list dated February 1948.
A statement of said claim in said amount and claiming to be a lien in favor of the United States on all property and rights to property belonging to the taxpayer was filed in the office of the Judge of Probate of Limestone County. The date of such filing was May 21, 1948.
There was also a claim filed by the United States in the sum of $951.13, made up of the following items: withholding tax third quarter, 1947, $231.40; withholding tax fourth quarter, 1947, $412.30; withholding tax first quarter, 1948, $307.43, claiming that the same was a lien in favor of the United States upon all property and rights to property belonging to the taxpayer. The claim was dated May 19, 1948, and filed for record on May 21, 1948.
This certificate of lien filed in the probate office on behalf of the United States *556 does not purport to cover the entire claim of the United States, which was filed in court. The entire claim filed by the United States was in the sum of $1,250.30, which included certain items of withholding tax to 1948 and the employment taxes for 1947-1948.
On August 6, 1948, the United States filed an additional claim of $526.73 for employment F.U.T.A. tax. The assessment list covering this item bears date of July 28, 1948, for which there was filed in the probate office no notice of lien.
On August 9, 1948, Fred Hagan filed a claim alleged to be secured by a mortgage to one Cecil Gardner and by him transferred to the City National Bank of Sylacauga, and by it to the said Fred Hagan, in the total sum of $3,797.50.
The City of Athens filed a claim in the sum of $76.50 claiming a State improvement lien in said sum as a preferred claim.
On August 9, 1948, the receiver filed a petition for authority to pay both of said claims as preferred claims and on that date it was ordered and decreed by the court that the receiver pay the amount of said claims. That order together with all the others, which had been previously made, was without notice to any of the other claimants.
On August 17, 1948, the receiver filed in court a statement of the funds which he had received and which had been disbursed, including a preferred claim of Remington-Rand of $347.88, which was not mentioned above, showing a total payment of $12,001.78, and declaring they were all secured by mortgages, vendors' liens and assessments. He then reported certain items due employees and then the claim for taxes and unsecured creditors showing a total of $27,842.36, including what had been paid, and showing that he had received a total sum of $16,211.79, that he had paid out the total sum of $12,043.53, leaving a balance to be distributed of $4,168.26. He then prayed that the court fix a date to hear the claims of the State of Alabama and the United States for taxes and the various claims for unpaid wages. The court set a date to hear said claims and upon the hearing proof was made, as indicated above, in respect to the claims of the United States and the State of Alabama. On September 7, 1948, the court rendered a final decree, after hearing the evidence in respect to those claims, finding that the receiver had in his possession the sum of $4169.41. The court then proceeded to direct the manner of its distribution, including five percent as receiver's fee, court costs and the payment of $269.30 to the State of Alabama for its ad valorem tax, and directed the payment of other items of costs and attorneys' fees, and out of the balance directed the payment of $2,050.45 to the Collector of Internal Revenue in payment of the claim of the United States, leaving a balance of $118.43, which was directed to be paid to the State Department of Revenue as a credit on its claim for sales tax filed in this cause.
From that decree, the State of Alabama took an appeal on September 25, 1948, not only from that decree but also from all other decrees prior to said date of September 7, 1948 made in this cause. The State alone has assigned errors. Notice of the appeal was given to the various other creditors who filed their claims, but none of them have appeared or assigned errors.
The primary question of importance is whether or not the United States is entitled to priority of payment over the State of Alabama as to the amount of taxes due them each, respectively.
Before reaching that question, it is well to observe that no question is here presented as to the orders of court in making distribution of the funds received by the receiver prior to the final decree of September 7, 1948. We have held that an order of a court of equity administering a trust estate, directing the payment of certain claims ascertained by the court to be due and payable, is a final decree from which an appeal will lie to the Supreme Court. Carter v. Mitchell, 225 Ala. 287, 142 So. 514. It was also held in that case that when an appeal is taken from a final decree in a court of equity administering a trust, the appellant could not assign errors in respect to a final decree which had *557 previously been rendered in the cause more than six months prior to the date of appeal.
In this case the appellant has assigned as error the several orders of the court in respect to the distribution of the funds received by the receiver due the mortgagee and lien holders, adjudged by the court to have priority over other claims. Those orders appear to have been made within six months prior to the time when the instant appeal was taken and, therefore, are subject to the assignments of error. But there is nothing upon which to predicate a reversal in respect to such orders. It is true those orders were made without the petition for them being set down for hearing and without reciting notice and without proof being made, other than the sworn statement of the claim. There was no objection made to the claim and, therefore, there is no error on the face of the record in respect to their allowance.
The proper remedy to test such an order would be to file a motion in court to set it aside and allow objections to be filed. The rulings on such motion, if adverse, would be subject to review in an appropriate manner. Ex parte Robinson, 244 Ala. 313, 13 So. 2d 402; Stansell v. Tharp, 245 Ala. 270, 16 So. 2d 857; West v. State, 233 Ala. 588, 173 So. 46. In the absence of such a proceeding and having before us only the petition of the receiver for the allowance of the payment of the claim and the verified claim itself, we cannot say that the record shows reversible error on the part of the court in allowing the same.
There is no statutory provision requiring notice of such a petition and no other specific requirements of law relative to that situation.
So that we come to the main controversy in the case, and that is whether or not the United States was entitled to be paid its claim in full out of the free monies in court in priority to the claim of the State?
The United States bases its claim of priority upon section 3466 of the Revised Statutes of the United States, 31 U.S.C.A. § 191. In substantially its present form it has been the law of the United States since a very early period of its history. The substance of it is, that whenever any person is indebted to the United States (that includes taxes) and such person is insolvent, the debts due to the United States shall be first satisfied where the debtor has not sufficient property to pay all his debts and when he has made a voluntary assignment thereof, or 2 (not here important), or 3, when he has committed an act of bankruptcy.
The United States claims with respect to that statute that, although this corporation being dissolved did not make a technical voluntary assignment of its property, but such was the legal effect of the act of the stockholders in seeking a dissolution and receivership, with the allegation that the corporation is insolvent; and the United States further claims that the corporation being insolvent has committed an act of bankruptcy by reason of the appointment of a receiver in a court of equity to administer and settle its affairs.
The case of United States v. Oklahoma, 261 U.S. 253, 43 S. Ct. 295, 67 L. Ed. 638, made an interpretation of this statute. To analyze that decision briefly, it held, first, that section 3466, supra, applies only to an insolvent debtor, as defined by the bankruptcy law, who has made a general assignment, or when an act of bankruptcy has been committed. That the claim of the United States to priority rests exclusively on this statute, that it creates no lien in favor of the United States and does not overreach or supersede any bona fide transfer of the property in the ordinary course, and that its priority cannot be impaired or superseded by state law and that such priority becomes effective, if at all, immediately upon the happening of the contingency specified in the Act.
But the opinion does not refer to the question of priority in respect to the liens claimed by the State or any of its subordinates. It was held that section 3466, supra, did not apply because in that case the commissioner of banks for the state of Oklahoma took over the affairs of the bank and it was not established that the bank was insolvent according to the definition of insolvency in the bankrupt law. *558 Insolvency is defined in that law, in short, to be that the aggregate of the debtor's property is not at a fair valuation sufficient to pay his debts.
We notice that this definition is substantially that which we have given insolvency within the meaning of section 106, Title 10, Code, Alabama Central R.R. v. Stokes, 157 Ala. 202, 47 So. 336; Cassells Mills v. First National Bank, 187 Ala. 325, 65 So. 820, under which this proceeding of dissolution was instituted.
So that in the instant case, we have a situation where the debtor is insolvent within the meaning of the National Bankruptcy Law and while so insolvent committed an act of bankruptcy.
We have no difficulty therefore in determining the applicability of section 3466, supra, to the instant situation and the question is, therefore, whether under its provisions the debt due to the United States, involved in the instant claim, has priority over the tax claims of the State of Alabama.
The United States Supreme Court has held in a series of decisions that section 3466, supra, should not give the United States priority over the claims of persons "who have a specific and perfected lien" on such property by mortgage or contract or by operation of law. The court has never said in direct terms that although the state may have a specific and perfected lien for its taxes, it shall have priority over the United States, notwithstanding section 3466, supra. It has consistently left undecided that question. There have been several cases before that court in recent years in which it stated that a decision of that question is reserved, and that it was unnecessary in those cases to make a decision because of the fact that the claims set up by the states, respectively, were not of the class which could be defined as having a specific and perfected lien. That court in the various decisions analyzed the situation in them to determine whether or not the state had a specific and perfected lien and laid down a formula or standard by which that inquiry may be solved.
We take the opinions to mean that if it is found that according to that formula or standard the state does have a specific and perfected lien, the priority given to the United States by section 3466, supra, does not apply to such a lien, although that is not stated in terms.
It becomes necessary, therefore, for us to anaylze those cases of the United States Supreme Court to get out of them the formula by which to determine whether or not the State in the instant case has proven that it has specific and perfected lien in existence at the crucial time involved in the situation here. That crucial time was the occasion when upon the petition of all the stockholders of the corporation, the court adjudged and decreed that the corporation was insolvent and appointed a receiver for the administration and distribution of its assets on June 4, 1948.
In the case of Spokane County v. United States, 279 U.S. 80, 49 S. Ct. 321, 73 L. Ed. 621, the court held that the United States has the power by Act of Congress in order to collect its taxes and revenues, to confer priority over those due the state. Its priority does not rest upon any sovereign prerogative, but that the priority statute, section 3466, supra was enacted to advance the same policy. So that such priority is controlled by the acts of Congress. The right depends upon the status when the receiver was appointed, which was (in that case) August 28, 1922. The taxes due the United States were assessed February and May 1923. No assessment was made on the property in the hands of the receiver by the county before September 1924. This consisted of money, the proceeds of the sale of property. The county had assessed the property before the receiver was appointed. The question was what was the effect of the county's claim against the fund in respect to the claim of the United States. There was a state law that the amount of the tax is a personal obligation of the person who owned the property at the time of the assessment, and the tax is to be collected from the property if it continues in the hands of such person, and "if that property does not exist in such hands, *559 the amount of the tax may be collected as a lien upon all the real and personal property of the person assessed and may be collected from other personal or real property of such person by seizure, distraint or other specific proceedings." It was therefore held that the county lien could not interfere with the priority of the United States for there was no distraint or other necessary proceedings, and that the lien was inchoate until that was done.
In People of State of New York v. Maclay, 288 U.S. 290, 53 S. Ct. 323, 77 L. Ed. 754, the power of Congress to enact priority statutes over state statutes is again affirmed. Referring to the case of Spokane County v. United States, supra, it was observed that in it the tax was not perfected upon the property of the insolvent at the date of the receivership. But had it been, its effect was reserved in respect to the priority of the claim of the United States. Referring to the situation in New York it is stated that the franchise tax of New York was unquestionably a lien, but not so perfected or specific as to have priority over the United States under section 3466, supra. That law provided that "each such tax * * * shall be a lien and binding upon the real and personal property of the corporation * * * liable to pay the same, until the same is paid in full." Tax Law, McK.Consol.Laws, c. 60, § 197. Such lien is effective for many purposes "though its amount is undetermined," presumably referring to the date of the receivership. But that because it is a warning to mortgagees and purchasers is far from holding that while the liability is unliquidated and unknown, the lien is "perfected and specific." The assessment for the franchise tax was not made or liquidated until after the receivership.
In the case of United States v. State of Texas, 314 U.S. 480, 62 S. Ct. 350, 353, 86 L. Ed. 356, the question was whether the United States had priority under section 3466, supra, over a state claim for taxes. Both claims were for gasoline taxes. The Texas statute made gasoline taxes due the state "a preferred lien, first and prior to * * * all other existing liens, upon all of the property of any distributor, devoted to or used in his business as a distributor." Vernon's Ann.Civ.St. art. 7065a7. The state claimed a lien prior to the United States under that statute. It again reserved decision of the question had such lien been specific or perfected, but held that it was not of that class because the state had made no move to assert the lien under the statute when the receiver was appointed and could not later affect a status then existing. It was said that the property "devoted to or used in his business as a distributor" is neither specific nor constant, and more important that the claim is unliquidated and uncertain, for the amount of the tax was left to the determination of the court though the tax reports made by the commission were "prima facie evidence of the contents thereof." Therefore, it showed that some procedure was essential and resort to the courts contemplated. It was said, therefore, that it was nothing more than an inchoate or general lien. It could not become specific until the exact amount had been determined and served merely as a "caveat of a more perfect lien to come."
In the case of United States v. Waddill, Holland & Flinn, 323 U.S. 353, 65 S. Ct. 304, 305, 89 L. Ed. 294, there was a general assignment where the debtor owed a landlord who had a lien and owed a city for taxes. It was held that the statute subordinates the claim of both the landlord and the city to that of the United States for certain unpaid federal unemployment compensation taxes and a debt arising out of a Federal Housing Administration transaction. It was said that the words of section 3466, supra, are broad and sweeping and, on their face, admit of no exception to the priority of the claims of the United States, citing United States v. State of Texas, 314 U.S. 480, 62 S. Ct. 350, 86 L. Ed. 356, but that the Supreme Court of the United States had in the past "recognized that certain exceptions could be read into the statute. The question has not been expressly decided, however, as to whether the priority of the United States might be defeated by a specific and perfected lien upon the property at the time of the insolvency." The question was not decided because the court did not think the asserted *560 liens of the landlord and the municipality were specific and perfected on the date of the voluntary assignment. It then proceeded to analyze the Virginia law applicable to landlords in support of that belief, and held that it was not specific and perfected. (We have no question as to landlords.) it also held that the lien of the city was in no better position. It was claimed that the lien of the city attached by operation of law January 1, 1941 (the general assignment was made June 19, 1941) on an assessment of specific items of property as of that date. It was further claimed that this lien attached before the claim of the United States was acquired and hence had priority. It was pointed out that the city under the Virginia law had a lien on personal property which enables the city to follow it wherever it may be taken only if the assessment is specifically made on such property, and that the lien was only "so long as they (the personal property) remained on the premises where the owner's business was conducted." So that "if this property unit were separated or removed from the premises different results would follow. (and) Unless and until distraint was levied, which in this (that) case occurred thirteen days after the voluntary assignment, it was uncertain whether the furniture and equipment would remain intact as a unit on the premises and hence be subject to the tax lien."
In the case of People of State of Illinois ex rel. Gordon v. Campbell, 329 U.S. 362, 67 S. Ct. 340, 347, 91 L. Ed. 348, the Supreme Court of the United States seems to have made its latest declaration in connection with this situation. In that case the state of Illinois was claiming a tax lien under the law which created such lien "upon all the personal property or rights thereto owned or thereafter acquired by an employer and used by him in connection with his trade, occupation, profession or business." Smith-Hurd Stats. Ill. c. 48, § 243 (a). The question was whether or not the lien was upon specific property, the court observing that it must attach to specific property. The Illinois law did not require the claimant in a suit to enforce the lien to specify the property sought to be condemned, but required the employer to file a complete schedule under oath of all of such property and what was used by him in connection with his trade, occupation, profession or business. It was observed that under that law it was not until the employer had filed such schedule did the state know the specific property to which the lien attached, since it only attached to that part of the property which was used "in connection with his trade, occupation, profession or business." The state had filed for record notices of the tax liens and claimed that such filing specified and perfected the property upon which the lien attached. The court observed that it had never been sufficient to show merely a general lien effective to protect the lien against the others and the state when the latter was contingent upon taking subsequent steps, either for giving notice of the lien or for enforcing it; that "The federal priority is not destroyed by state recording acts any more than by state statutes creating or otherwise affecting liens, if the lien as recorded or otherwise executed does not have the required degree of specificity and perfection. Under the decisions the test is not, and cannot be, simply whether by his taking further steps, the lienor's rights will be enforced against others than the Government." The court further held there were three essentials which were crucial to determine whether the lien was specific and perfected, and these are: "(1) the identify of the lienor, * * * (2) the amount of the lien, * * * and (3) the property to which it attaches * * *. It is not enough that the lienor has power to bring these elements, or any of them, down from broad generality to the earth of specific identity." It was held that the lien was not specific as to the property at the crucial time because it had not been definitely ascertained what property of the debtor was devoted to and used in his business and such property had not severed itself from the general and free assets of the owner, from which the claims of the United States were entitled to priority. The court did not consider that section 3672 of Title 26 U.S.C.A., was material to this particular inquiry, and such is obvious. The *561 purpose of that Act is to give notice of the Government's lien so that the classes of persons there specified may be protected against such liens.
The priority given by section 3466, supra, is not a lien and does not result from a lien, but is a partial enactment of the prerogative right of the Crown for the benefit of our Federal Government. Our Government does not inherit such prerogative right, 167 A.L.R. 640; North Carolina Corp. Comm. v. Citizens' Bank & Trust Co., 193 N.C. 513, 137 S.E. 587, 51 A.L.R. 1355; 32 Corpus Juris 890; 44 C.J.S., Insolvency, § 14; 14 R.C.L. 662, 663, but our states do, City Board of Education of Athens v. Williams, 231 Ala. 137, 163 So. 802; State v. Williams, 236 Ala. 272, 181 So. 792), and therefore such right which the Government has is dependent solely upon acts of Congress, whereas the states possess the Crown's prerogative right as the same may be modified by its legislative enactments. Montgomery v. State, 228 Ala. 296, 153 So. 394; Williams v. Pickens County, 230 Ala. 395, 161 So. 507.
We take it that the provisions of our statute, section 883, Title 51, of the Code of Alabama, authorizing the filing in the probate office of tax liens has no effect whatsoever to depreciate in any respect the priority of payment which the Federal Government has under section 3466, supra. Our statute could not have that effect if it was so expressed in clear terms, but such is not its meaning and we cannot accord to section 3672, Title 26 U.S.C.A., any meaning which would have the effect of subordinating the priority accorded it by section 3466, supra. Any state decision which would seem to have that effect cannot be reconciled with the decisions of the Supreme Court of the United States. Those decisions of the United States Supreme Court make the priority of section 3466, supra, apply over a lien of a state for taxes due it unless such lien has become specific and perfected as defined by those decisions at or prior to the crucial date involved. Here it is the date of the appointment of the receiver.
The status of the claims of the State and United States on June 4, 1948, is the controlling factor. That was when the receiver was appointed. It is not a question of whether on that date the United States had a lien of superior standing to the lien of the State. When such a controversy exists, it is not controlling that such State liens are in existence, which are merely inchoate. The court could enforce them as of their creation, though not then perfected and specific, but not if to do so conflicts with section 3466, supra. In the controversy before us, we will act on the assumption that if on June 4, 1948, the State had a lien for taxes due it on the property that went into the hands of the receiver, and that such lien was specific and perfected, we should hold that it took priority over the claim of the United States upon the free funds in the receivership, which arose from a sale of the property on which such lien existed at that time. While the United States Supreme Court has not made such a direct ruling it has not held otherwise when to do so would greatly simplify questions such as we are now dealing with. We feel justified therefore in acting on the assumption that it would hold that the priority set up in section 3466, supra, would not supersede a lien which was specific and perfected at the time when the receiver was appointed.
And we think, as applied to a state's claim of a lien for taxes, such lien is specific and perfected, if the amount of it has been fixed by a proceeding which is binding and conclusive at the date of receivership, and not open for change in any sort of proceeding which might arise thereafter; and that the lien upon the property which was received by the receiver was not dependent upon any contingency, nor subject to selection, shift or change, and nothing remained to be done then or thereafter to make such lien complete, specific or perfect, or to liquidate the debt, and nothing could be done thereafter to discharge the debt or subordinate such lien but full payment of the debt. It is our view that in all the cases of the United States Supreme Court on the subject, there was a *562 status which exempted the lien from the elements which we have stated immediately above. And that if there is in our case nothing which has that effect we are justified in giving it priority, notwithstanding section 3466, supra.
As we have heretofore stated, the State and county ad valorem taxes were admitted to have priority, and have been paid by order of the court.
The first item of tax claimed by the State was for $36.22 (interest to be added), income tax under State law for fiscal year ended October 31, 1947. This claim arose under sections 373 et seq., Title 51, Code of Alabama. A statement of which was filed in the probate office May 19, 1948, under section 883, Title 51, Code. Of course its filing in the probate office serves no other purpose than as notice to the classes of persons there stated. Section 883, supra, is applicable to any tax debt due the State, other than for ad valorem taxes, and creates a lien in favor of the State for the amount thereof including interest, penalty, additional amount, or addition to such tax and costs, upon all property, rights to property, real or personal, belonging to such person, (a) "unless another date is specifically fixed by law, the lien shall arise at the time the assessment list, return therefor, or the payment thereof, as the case may be, was due to have been filed with or made to the department of revenue or other agency of the state or county, and shall continue until the liability for such amount is satisfied or becomes unenforceable by reason of the lapse of time. (b) Such 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 then makes provision for filing a certificate as to the amount, the names of the persons against whose property the lien for such tax is claimed and the date thereof. It will be observed at once that this statute does not affect the priority rights of the United States under section 3466, supra, and it could not do so if it so provided.
Section 3670, Title 26 U.S.C.A., section 3186, Revised Statutes, creates a lien in favor of the United States similar to our section 883, supra, and by section 3672, supra, it is subject to be filed by the collector in accordance with State law, Alabama Code section 883, supra, in order to be valid as against any mortgagee, pledgee, purchaser or judgment creditor. Of course that means such designated person who has reached such status after the lien of the United States comes into being and before it is filed for record in the probate office.
A compliance with this statute by this State in respect to the income tax claim does not serve to make such lien either specific or perfected, if it is not otherwise so. Section 407, Title 51, Code, directs the manner of making the assessment upon hearing and provides for an appeal, as provided in section 140, Title 51. Such assessment has judicial qualities. Birmingham Vending Co. v. State, 251 Ala. 584, 38 So. 2d 876. A judgment on appeal under section 140, supra, is as final as any other judgment. An assessment from which no appeal is taken is likewise conclusive when the procedure provided in section 407, Title 51, is complied with. If no such procedure as there provided is pursued, the amount shown by the taxpayer's return is prima facie the correct amount of his tax liability. If nothing further is done as to his return, such amount remains prima facie correct. In that event, it has not become a fixed liability until it shall be assessed, which must be done, if at all, within two years. Section 412, Title 51, Code. The amount of tax so imposed shall be paid on the 15th day of the third month following the close of the fiscal year (subject to future installment payments). This taxpayer was on a fiscal year basis, as of October 31st. The record in this case does not show that there was any assessment made of this income tax as provided in section 407, supra, but the return of the taxpayer was only prima facie the correct amount of his liability. And any payment of same was subject to a refund within two years if erroneous. Section *563 410, Title 51, Code; Curry v. Johnston, 242 Ala. 319, 6 So. 2d 397. The amount of the debt secured by the lien was not effectually fixed and, therefore, the lien was not specific and perfected.
As to this claim the State introduced a certified copy of a final assessment made for this tax dated March 29, 1948, showing that notice of the preliminary assessment was given the taxpayer fixing a day to hear any cause why it should not be made final; and that on the day set the taxpayer failed to appear and made no protest and, upon finding it to be correct, the same was made final in the sum of $741.71, as authorized by section 767, Title 51, Code. And on May 31, 1948, the department issued an execution for its collection and placed it in the hands of the sheriff. Section 770, Title 51, Code. A certificate covering this claim was filed in the probate office on February 25, 1948. No appeal was taken as authorized by sections 768 and 140, Title 51, Code. See, State v. Louis Pizitz Dry Goods Co., 243 Ala. 629, 11 So. 2d 342. So that the final assessment made on March 29, 1948, became fixed and conclusive as to the exact amount of such liability.
The final assessment not appealed from is as conclusive as the judgment of an ordinary court. It is the judgment of a tribunal constituted a court by the legislature as authorized by section 139 of the Constitution, and is conclusive as such. Being rendered on March 29, 1948, and no appeal having been taken in thirty days, section 140, supra, no attack can be made upon it except such as applies to an ordinary court judgment. It therefore conclusively fixed the amount of the tax claim as of March 29, 1948. State ex rel. Carmichael v. Jones, 252 Ala. 479, 41 So. 2d 280 (10, 11).
Section 883, Title 51, Code, provides for a lien for its payment, when such payment is not made, to cover all property and rights to property real or personal belonging to such person. There is no selection to be made. There is no contingency in connection with it. It is simply all of it. That means all, not a portion to be selected or identified by some formula. And that was the status on June 4, 1948, when the receiver was appointed. If a tax lien can be specific and perfected as of that date, this was of that class. If such a tax lien can take priority over the claim of the United States under section 3466, supra, this does so. We take the liberty, therefore, of so declaring, subject to be corrected in either respect by the United States Supreme Court. Until that court makes a ruling, we must exercise our own judgment when necessary to a decision of the case.
Sales Tax for $82.05 from February 1, 1948, to May 30, 1948.
There does not appear to be an assessment for this amount. There is an affidavit by the chief accountant that such amount is correct, due and unpaid. Such proof is not sufficient to fix a lien specific and perfected.
There is no evidence of this claim except the affidavit of the record clerk of the Franchise Tax Division of the Department of Revenue, that such amount is correct, due and unpaid after allowing all credits. It is therefore in the same status as the sales tax claim of $82.05, supra, and does not take priority over the debt due the United States.
For the error in not giving priority to the State's sales tax claim of $741.71, the decree of the trial court is reversed and the cause is remanded to that court with direction to give effect to this opinion in making distribution of the fund in the hands of the receiver.
Reversed and remanded with directions.
LAWSON, SIMPSON and STAKELY, JJ., concur. | May 18, 1950 |
26343590-c55e-4534-8276-6efc00163888 | City of Birmingham v. Lee | 48 So. 2d 47 | N/A | Alabama | Alabama Supreme Court | 48 So. 2d 47 (1950)
CITY OF BIRMINGHAM
v.
LEE et al.
6 Div. 930.
Supreme Court of Alabama.
October 12, 1950.
*48 Thos. E. Huey, Jr., Acting City Atty., Mayer U. Newfield, Asst. City Atty., and Maurice F. Bishop, all of Birmingham, for appellant and intervener Merrill.
Bainbridge & Mims, Birmingham, for Personnel Board.
Chester Austin, Birmingham, for intervening defendants.
Lawrence K. Andrews, Union Springs, for Alabama League of Municipalities, amicus curiæ.
STAKELY, Justice.
This is a proceeding instituted by the Commissioners of the City of Birmingham against the members of the Personnel Board of Jefferson County and against its Director of Personnel for a declaration by declaratory judgment of the rights of Lem D. Merrill to the position of Superintendent of Streets and Garbage of the City of Birmingham. Lem D. Merrill intervened as petitioner. J. T. Waggoner, John Branyon and S. T. Johnson intervened as defendants. The case was tried before the court without the intervention of a jury and resulted in a judgment in effect that Lem D. Merrill is not entitled to hold the position of Superintendent of Streets and Garbage for the City of Birmingham and is not entitled to the salary that pertains to such position. The appeal here is from the foregoing judgment.
On January 1, 1934, Merrill was employed by the city as a District Supervisor of the Street and Garbage Department. Branyon and Johnson were employed as such supervisors on February 15, 1934 and Waggoner was employed on January 15, 1935. Branyon, Johnson and Waggoner have been continuously so employed to the present time. From January 1, 1934 to November 1, 1941 Merrill was continuously employed as District Supervisor. In June, 1939, George R. Byrum, Jr., while continuing to hold the title and receiving the salary as Superintendent of Streets and Garbage was assigned the duty of expediting W. P. A. Projects in the City of Birmingham. From that time until June 19, 1941, when he was granted military leave, Byrum devoted substantially all his time to this work.
On May 17, 1941, Byrum was ordered by the War Department to active duty with the armed forces. On June 19, 1941, the City of Birmingham granted Byrum military leave of absence and he immediately entered the military service. Byrum remained in the army and on military leave until June 22, 1947, when he returned and resumed his position as Superintendent of Streets and Garbage.
The duties of Superintendent of Streets and Garbage were assumed by Merrill in June, 1939, although he had only the title and pay of District Supervisor. In addition to discharging all the duties of Superintendent of Streets and Garbage, Merrill continued to discharge the duties of Central District Supervisor. The Central District is the most important of the four districts into which the city is divided.
Public Administration Service (PAS) on October 8, 1941, after several months of extensive examination and study, submitted to the Personnel Board and to the City Commission a comprehensive Position-Classification and Pay Plan for the Classified Service of the City. The plan covered 832 employes, more than 95% of all the classified *49 employees of the city. This project was undertaken at the joint request of the Board and the Commission and was adopted on August 20, 1941, by the unanimous action of both bodies and after detailed joint review of each position. As a part of this project, specifications based upon a detailed analysis of each position with regard to its difficulty, responsibility and relationship to other positions in the service were drawn up. At page 36 of the Reclassification and Salary Schedule Merrill was shown to have been reclassified and promoted from the position of District Supervisor to the position of Superintendent of Streets and Garbage with an increase in his salary from $200 to $225 per month. There was nothing opposite Merrill's name to indicate his status, that is, whether his status was temporary, provisional, probationary or permanent. In each instance, however, where the status of any of the 832 employees covered in the survey was either temporary, provisional, probationary or other than permanent, it was so noted.
The official minutes of the Personnel Board show that on October 20, 1941, the Board adopted the salary and classification plan after reviewing the same in detail and the following amendment appears: "Under the heading of Streets was Street Superintendent, Recommended: $250 to $300. Adopted $225 to $250. It was ordered that a copy of the Classification Plan be filed for record as a part of these minutes." On November 12, 1941, Branyon, Johnson and Waggoner were notified by the city that Merrill had become Superintendent of Streets and Garbage by action of the Personnel Board.
The reclassification and salary schedule was promulgated in the office of the Personnel Board under the direction of the Personnel Director. It sets forth the name of each person in the classified civil service employed by the city with the title and salary of each employee prior to October 30, 1941, and the new salary and status (whether temporary, provisional, probationary or permanent) of each employee. In certain instances employees were promoted from a lower to a higher classification and were assigned greater and more complex duties requiring a higher degree of ability with increases in pay. There were also instances where employees were demoted from a higher to a lower classification with reduction in pay. However tendencies of the evidence show that an effort was made to give promotional examinations in all cases where there was a promotion from one classification to a higher classification. There was no notation beside Merrill's name that his promotion was provisional or temporary or that Merrill was acting under a temporary, provisional assignment.
The above plan became effective November 1, 1941. From that date until the return of Byrum from military leave and Byrum's reinstatement as Superintendent on July 22, 1947, payroll sheets of The Street and Garbage Department of the city were submitted twice a month by the city to the Personnel Board pursuant to § 29 of the Civil Service Act, § 156, Title 12, Code of 1940, and pursuant to Rule 14 of the Civil Service Board. Accordingly on 137 occasions payroll sheets of the Street and Garbage Department were submitted by the city to the Personnel Board and were approved by the board of directors. Each of these 137 sheets carried Lem D. Merrill as Superintendent of Streets and Garbage and each was signed by him as "Department Head."
On March 23, 1944, the Personnel Board notified all department heads and the appointing authorities that it had adopted a "change in policy with regard to entrance and promotional examinations" and "because of the critical shortage of competent applicants" was discontinuing promotional examinations. However the board stated that promotional examinations would be held "upon the request of appointing authorities provided all persons eligible to compete are available to take the examination." The board suspended all examinations from that time until after the war ended. During the period from July 15, 1935, until July 22, 1947, when Byrum was reinstated to the position of Superintendent of Streets and Garbage, Merrill, Waggoner, Branyon and Johnson were employed *50 continuously in the street department and were available to take any examinations deemed necessary. There was no such examination however. Nor was there any suggestion or offer of such examination. Upon Byrum's reinstatement to the position of Superintendent of Streets and Garbage on July 22, 1947 Merrill held the position of District Supervisor and his salary was reduced from $335 per month to $275 per month.
On February 1, 1948 the position of Superintendent of Streets and Garbage was vacated by Byrum. During the period from July 22, 1947 until February 1, 1948 Byrum discharged none of the duties of Superintendent. These duties during this period were discharged by Merrill with the knowledge of the Personnel Board and without any objection by the Board.
On February 24, 1948 the Personnel Board refused to approve the action of the city in promoting Merrill to the position of Superintendent of Streets and Garbage. Between October 20, 1941 and November, 1947 the Board never requested an examination for the position of Superintendent of Streets. During the period beginning January 1, 1939 until after the decree of the lower court in this cause the Personnel Board promoted various employees working for and in the office of the Board without any promotional or competitive examination.
It is agreed by all parties that Merrill's work as Superintendent of Streets and Garbage has been outstanding, his efficiency rating the highest and that he held seniority over all district supervisors. The parties stipulated that all legal and equitable rights, defenses and claims of Merrill and all other parties were to be considered.
During the entire period Byrum was absent on military leave each of the foregoing district supervisors had equal rights under the civil service statute and the civil service board rules and regulations to seek promotion to the higher position and classification of Street Superintendent, in the event said position became vacant, by promotion based upon merit, competition or superior classification, as required by the civil service law. The efficiency ratings of the four district supervisors, Merrill, Johnson, Waggoner and Branyon as fixed under Civil Service Rules and Regulations was from June 30, 1939 to December 19, 1949 as follows: "Merrill's from 99 to 100; Mr. Johnson's 96 to 97; Mr. "Waggoner 96 to 97, and Mr. Branyon's 86 to 97."
During the time Byrum was absent on military leave, Commissioner Morgan requested the Personnel Board to permit Merrill to perform the duties of Street Superintendent and to receive the salary fixed for the person occupying that position. The Personnel Board agreed to do this and in order to reconcile his rate of pay with the duties he was performing, Mr. Merrill was carried on the pay roll of the City of Birmingham as Street Superintendent. Prior to the time Byrum was granted military leave he had always been carried on the city pay roll as Street Superintendent and was so certified by Commissioner Morgan and during the period when Byrum was was absent on military leave he was shown on the pay rolls to be "Superintendent of Streets and Garbage 15 AWL" and was "so certified by Commissioner Morgan and Mr. Merrill."
There is nothing in the record to show that Byrum was ever relieved of his position which he had held under civil service rules and regulations as Street Superintendent. Although absent with leave he still held that position although his duties were temporarily performed by another. Upon Byrum's return from military duties he took over the duties of Superintendent and was continued on the pay rolls as Street Superintendent and Merrill returned to his position as District Supervisor. Byrum returned from military duty on July 22, 1947 and thereupon reassumed his "said position as Superintendent of Streets and Garbage." On August 12, 1947 the Commissioners of the City of Birmingham passed a resolution reinstating Byrum in said position as Active Superintendent of Streets and Garbage as of July 22, 1947. From July 22, 1947 to February 1, 1948 Byrum was certified as Superintendent of Streets and Garbage on the pay rolls and drew the salary of street superintendent. During this period Merrill *51 worked for the city as District Supervisor and was so certified on the pay rolls. On February 1, 1948 Byrum was appointed to the position of Chairman of the Board of Adjustment and Ex Officio Technical Advisor to the Birmingham Planning Board.
The City Commission of Birmingham on February 24, 1948 passed the following resolution: "Be it resolved by the Commission of the City of Birmingham that Lem Merrill be and he is hereby promoted from the position of District Supervisor, Street and Garbage Department, to the position of Superintendent of Streets and Garbage, Street and Garbage Department, at the appropriate current salary applicable to such position, to-wit, $365. per month."
The Personnel Board on February 25, 1948 declined to concur in the foregoing action of the City Commission and refused to fill the vacancy existing in that position without a competitive promotional examination in which the four supervisors namely Merrill, Johnson, Branyon and Waggoner had an opportunity to participate. Following this refusal on the part of the Civil Service Board to recognize the action of the City Commission with reference to the promotion of Merrill from Supervisor to Street Superintendent and because of the insistence of the Personnel Board that the Civil Service law and rules and regulations pertaining thereto be followed and that a Street Superintendent be selected from the four eligible supervisors above mentioned and that promotion to the vacant position be based upon merit, competition and superior classification as required by the Civil Service Act, the petitioner filed this action to have the court declare that Merrill had been promoted to the position of Street Superintendent without the necessity of a competitive examination.
Referring in greater detail to the petition filed in the lower court, the declarations sought therein may be stated in effect as follows. (1) That Lem D. Merrill was promoted from Supervisor to Street Superintendent by virtue of the adoption by the City Commission and Personnel Board of Jefferson County on October 20, 1941, of a Position-Classification or Pay Plan for Classified Service of Birmingham recommended by Public Administration Service (PAS). (2) Since Lem D. Merrill was given the title and salary of Street Superintendent under the foregoing Position-Classification and Pay Plan while George R. Byrum, Jr. was absent on military leave, that Lem D. Merrill was thereby given permanent tenure to the office of Superintendent of Streets and Garbage. (3) That Rule 9.8(B) as amended of the Personnel Board of Jefferson County gave Lem D. Merrill the position of Superintendent of Streets and Garbage as against all persons except George D. Byrum, Jr. (4) That the Personnel Board is estopped to deny that Lem D. Merrill is now entitled to hold the position of Superintendent of Streets and Garbage even though he has never been elevated to the position by promotion based upon merit, competition and superior qualifications. (5) That Lem D. Merrill is entitled to the pay of and salary of $365, the salary allocated to the position of Superintendent of Streets and Garbage of the City of Birmingham.
In the Street and Garbage Department of the City of Birmingham there are four positions designated as District Supervisors. In 1934 and 1935 when the sequence of events began which resulted in this litigation these four positions of District Supervisor were held by Lem D. Merrill, J. T. Waggoner, John Branyon and S. T. Johnson. Above these positions is the position of Superintendent of Streets and Garbage held by George R. Byrum, Jr. As shown in the statement of facts hereinabove set forth Lem D. Merrill performed the duties and received the salary for a considerable period of time which are connected with the position of Superintendent of Streets. Without question he displayed outstanding ability in the performance of these duties but the City Commissioners wished to elevate him to the position of Superintendent of Streets and Garbage without examination which J. T. Waggoner, John Branyon and S. T. Johnson have been and are willing to take and which they insist should be taken by all of them including Lem D. Merrill. Without question upon the ratings based upon their *52 respective records, J. T. Waggoner, John Branyon and S. T. Johnson are qualified and eligible to take the examination. All of this means that we must consider the provisions of the Civil Service or Merit System Act which concededly was enacted by the legislature for the security of the faithful officer or employee by giving him permanence of employment and to get away from the spoils system with the evils which inhere in such a system. City of Birmingham v. Wilkinson, 239 Ala. 199, 194 So. 548; Yielding et al. v. State ex. rel. Wilkinson, 232 Ala. 292, 167 So. 580.
Section 24 of the Civil Service Statute, General Acts of 1935, p. 691, as amended by General Acts of 1939, p. 309 and p. 542, Blue Book p. 46, § 152, Title 12, Code of 1940, governs promotions. Effective March 1, 1940 the Personnel Board of Jefferson County, Alabama, adopted certain rules and regulations designed to express the intent of the statute in simple, non-technical language. These rules and regulations are contained in a pamphlet known as the Blue Book.
Section 25, Blue Book p. 48, § 153, Title 12, Code of 1940, deals primarily with transfers and reinstatements.
Section 24 provides that within the discretion of the Director of Personnel vacancies in positions shall be filled, in so far as practicable, by promotion and that "Promotions shall be based upon merit and competition and upon the superior qualifications of the person promoted as shown by his records of efficiency."
Section 25 provides that "An appointing authority may, at any time, assign a classified employee under his jurisdiction from one position to another in the same class."
Section 25 further provides that any classified employee, holding a permanent status, "may be transferred from one department to a position in the same class in another department * * * provided that the director has authorized the transfer and has received the consent of both appointing authorities concerned."
Section 25 further provides that no promotion, transfer or reinstatement shall be made from a position in one class to a position in another class nor shall a person be transferred to or reinstated in a position to which there is required by the law or the rules and regulations of the Board, "an examination involving essential tests or qualifications different from or higher than those required for original entrance to the position held by such person except that such person takes and successfully passes such examinations as are prescribed by the director and approved by the board."
We think it clear that under the foregoing an appointing authority has the power generally to transfer an employee from one position to another position in the same class. An employee may be transferred from a position in one department to a position in another department in the same class if authorized by the director and consented to by the appointing authorities. No examination for transfers of this character is required either by the law or by the rules of the board. However, the transfers here referred to are not promotions. A transfer which amounts to a promotion must be based upon competition. A promotion is defined by the rules of the Board as "An advancement from one class to another class with increased duties and/or responsibilities, for which a higher rate of pay is prescribed." There is no doubt that no transfer by way of promotion as here defined can be legally made unless based upon "competition, merit and superior qualifications" and "by the successful passing of such examinations as may be prescribed" by the director and approved by the board.
It should be added that a promotion from one position to another position under the Civil Service or Merit System Statute also involves the fixation of a salary at an amount appropriate to the higher position, induction into the higher position as well as removal from the former subordinate position. McArdle v. City of Chicago, 172 Ill.App. 142; O'Malley v. Board of Education, 160 App.Div. 261, 145 N.Y.S. 645; Holleran v. Creelman, 148 App.Div. 121, 132 N.Y.S. 176.
To sum up the situation, Lem B. Merrill could not be elevated from District Supervisor to Street Superintendent except by *53 promotion. Lem B. Merrill, however, insists that he has been promoted to the position of Superintendent of Streets and Garbage although he necessarily concedes that his promotion was not based upon competition.
There is one fact, however, to which we shall refer at greater length which seems to us to be indisputable and that is that there was never a vacancy in the position of Superintendent of Streets and Garbage for the City of Birmingham from the time George Byrum, Jr., became Superintendent until February 1, 1948, when Byrum was named Chairman of the Board of Adjustment and Ex Officio Technical Adviser to the Birmingham Planning Board. Throughout that entire period he held tenure as superintendent though he was absent with leave in the Military Service of the United States from June 19, 1941 until July 22, 1947, when he returned to duty. It is obvious if there was no vacancy in the office held by Byrum there could be no promotion to that office of Merrill so as to give Merrill permanent tenure of that office. It is argued that Merrill held permanent tenure except as to Byrum. Permanent tenure is not compatible with such an exception.
But assuming for the sake of argument that there was a vacancy in the position of Superintendent of Streets and Garbage at any time prior to February 1, 1948, Merrill who held a position under the classified service as District Supervisor could not have been advanced to the position of Superintendent of Streets and Garbage or promoted from District Supervisor to Superintendent of Streets and Garbage without taking and successfully passing a competitive examination prescribed by the Director and approved by the Board. Such a promotion without such an examination would be directly contrary to the provisions of the Civil Service or Merit System Act and Rule 10 of the Board, because the position of Superintendent of Streets and Garbage carried a higher rate of pay and increased duties and responsibilities.
It seems to us inescapable that Byrum's tenure of the position of Superintendent of Streets and Garbage while he was absent on war leave could not have the effect of doing more than temporarily to assign to Merrill the duties of Street Superintendent. Well considered authorities hold that a temporary assignment cannot ripen into a permanent appointment. In Howe v. Civil Service Commission of City of Bridgeport, 128 Conn. 35, 20 A.2d 397, 399, the Supreme Court of Connecticut states the rule as follows: "The overwhelming weight of authority is that under the circumstances of this case a temporary appointment never ripens into a permanent appointment, nor does mere occupancy of a temporary position beyond the time limited by law result in permanent tenure. * * * `Any method which results in improperly placing in permanent positions those who obtain temporary employment is a reversion to the rightly condemned spoils system and is destructive of much that has been accomplished in the way of civil service reform.' * * * See, also, Koso v. Greene, 260 N.Y. 491, 184 N.E. 65, to the effect that while a temporary appointment may on occasion be succeeded by a permanent appointment, that may only be by virtue of examination and eligibility under the civil service laws, and not by reason of any ripening of temporary or provisional appointment into permanent appointment. * * * The plaintiff seeks to distinguish these and other like cases, upon the ground that the civil service law here in question contains no provision that all appointments in the classified service must be made only after competitive examinations. While the law does not in terms so state, it does provide that when a position in the classified service shall become vacant the appointing authority, if it shall desire to fill the vacancy, shall proceed in accordance with the terms of the act. There is no question as to the legislative intent that no position in the classified service can be filled except in accordance with those terms, and these require public competitive tests."
In Reading et al. v. Maxwell, 46 Ariz. 500, 52 P.2d 1155, 1157, the Supreme Court of Arizona states the rule in the following language.
*54 "Granting that the city manager had the absolute power to make plaintiff's appointment permanent, it is clear that he did not intend such appointment to be permanent. Temporary appointments do not ripen into permanent appointments. Darling v. Maquire, 70 Misc. 597, 129 N.Y.S. 385.
"In State v. City of Seattle, 134 Wash. 360, 235 P. 968, 970, employees of the city of Seattle made the same contention, that is, that, while they may have been given temporary employment, such employment, by virtue of an amendment of the civil servive regulations, became permanent. The court said: `Such construction would evade the very objects of the civil service regulations. If they remained on the employment roll after the 60-day period had expired, they simply remained by sufferance, and to construe them as permanent employees would be to violate the express provisions of the charter and disregard the Civil Service law.'"
But it is insisted that Merrill was promoted to the position of Superintendent of Streets and Garbage on Nov. 1, 1941. It is argued that while there was no competitive test nor a successful passing of examination prescribed by the Director and approved by the Board, under the rules, regulations and practices of the Personnel Board, Merrill was so promoted. We cannot agree. Any power that the Personnel Board might have to make rules and regulations necessarily is conferred by the statute upon the Personnel Board and any rule, regulation or practice which infringes on the statute either expressly or by implication must be pronounced void. Heck, State Comptroller v. Hall et al., 238 Ala. 274, 190 So. 280; Franklin v. State ex rel. Alabama State Milk Control Board, 232 Ala. 637, 169 So. 295; Railroad Commission of Alabama v. Alabama Northern Ry. Co., 182 Ala. 357, 62 So. 749; State ex rel. Bond v. State Board of Medical Examiners, 209 Ala. 9, 95 So. 295. We must take the statute as it is. Under the statute there is no authority by which any employee in the classified service can be promoted solely upon merit or upon his superior qualifications as shown by his record of efficiency. Under section 24, § 152, Title 12, Code of 1940, the Personnel Director was authorized to fill a vacancy in the position of Superintendent of Streets and Garbage, if he deemed it practicable to do so, by promotion of one of the four district supervisors. This is what the Personnel Director has tried to do through competitive examination since a vacancy occurred in that position. But all promotions are required to be based upon competition and no promotion not based upon competition can be a valid promotion. There is no question of the competency of Lem D. Merrill to hold the position as Superintendent of Streets and Garbage but we are governed by the statute and to remove competition as a prerequisite of promotion would in effect emasculate the Civil Service or Merit System Law.
It is contended that the adoption on November 1, 1941 of the Position-Classification or Pay Plan recommended by Public Administration Service (PAS) by the Personnel Board and the City Commission gave Lem D. Merrill a permanent status as Superintendent of Streets and Garbage as effectively as if he had been duly appointed to that position in compliance with the Civil Service or Merit System Act. Section 7 of that act, Section 144, Title 12, Code of 1940, and Rule 11 of the Board are relied upon for this insistence.
Subsections (3) and (4) of section 7 of the Act, Section 144, Title 12, Code of 1940, and Rule 11 of the Board regulate the classification of positions under city or county authority with reference to duty and responsibility as well as to compensation. Authority to formulate a plan of classification is conferred by the statute upon the Personnel Director. Rule 11 provides for the adoption of such a plan and provides further that after a plan is adopted the appointing authority shall notify each employee as to "the class to which the position he holds has been allocated." If the appointing authority or any employee is dissatisfied with the plan of classification in so far as it affects him he may protest and is entitled to a public hearing.
But neither Section 7 of the statute nor Rule 11 of the Board is concerned with the question of promotions. Each deals with *55 classifying positions and equalizing compensation among positions of similar importance. The rules of the Board define "classification" to be "the assigning of a position to the appropriate class in accordance with its duty, responsibility and authority." The fact that a classification plan recommended by PAS was adopted in October, 1941, has no more tendency to effect the promotion or demotion of employees than the adoption of such a plan formulated by the Personnel Director. In other words the statute and rule involved pertain to the classification of positions of employment and not to the advancement of employees from one position to a higher position with a higher rate of pay.
As we have pointed out no vacancy existed in the position of Superintendent of Streets and Garbage when the PAS classification became effective. George Byrum, Jr., was then such Street Superintendent, absent with leave, and under Rule 9.8 he was entitled to resume that position when his leave expired. Under this rule the Board was powerless to promote Merrill to Superintendent of Streets and Garbage even by a competitive examination. Any attempt by the Board to advance Merrill to the position of Superintendent of Streets and Garbage without a competitive examination would have contravened § 24 of the statute even if there had been a vacancy in the position when the PAS plan became effective.
Rule 9.8 demanded that the position Byrum had earned under Civil Service Regulations and Practices be preserved for him while he served in the army. At the expiration of his leave he was entitled "to resume his position and his service." It was just and proper to compensate Merrill in the amount prescribed for the position to which he had been assigned so long as Byrum was on leave, but Merrill cannot be made Superintendent of Streets and Garbage by being named on the pay roll as such. The law could not be circumvented by the make up of the pay roll or any other record keeping device. It seems to us that the real intent of the Commission and the Personnel Board is revealed by the fact that while Byrum was absent on war leave he was carried on the pay rolls as "Street Superintendent, Absent with Leave."
We think the result is clear that Merrill never had "tenure of office" as Superintendent of Streets and Garbage. It is contended that he must have had a permanent appointment because there is no such thing as a "temporary appointment" in the act. We think it sufficient to say that there is nothing in the act which permits promotion by the adoption of a classification of position plan or by any other means or method not based upon merit and superior qualification plus competition. The law does not give authority to destroy the tenure of office of an employee absent with leave and in the military service by designating or appointing some other employee to take over his job. Yielding v. McCombs, 238 Ala. 635, 193 So. 169. It is argued that the Board was without authority to appoint Merrill temporarily to the position of Superintendent of Streets and Garbage because no authority to make temporary appointments is to be found in the statute. This is beside the point. The controlling factor here is that it had no authority under the statute to appoint Merrill permanently to a job of higher classification than that of District Supervisor except on the basis of competition for this would offend the express provisions of the law.
It is very earnestly argued that under the facts and circumstances in this case the Personnel Board is estopped to deny Merrill's right to the position of Superintendent of Streets and Garbage. It is sufficient to say that the principle of estoppel applicable to individuals is not applicable to the State or its municipal subdivisions or to state created agencies. Such bodies cannot be estopped by doing that which they had no authority or right to do. Sidney Spitzer & Co. v. Monroe County, D.C., 274 F. 819. Persons dealing with agencies of government are presumed to know the legal limitations upon their power and cannot plead estoppel on the theory that they have been misled as to the extent of that power. City of Mobile v. Mobile Electric Co., 203 Ala. 574, 84 So. 816. No person can claim to have altered his position for the worse by *56 acts or promises which the law warns him he must not depend upon. Whitfield v. Hatch, 235 Ala. 38, 177 So. 149.
In Howe v. Civil Service Commission of the City of Bridgeport, 128 Conn. 35, 20 A.2d 397, 399, the Supreme Court of Connecticut said: "The plaintiff's second claim requires but brief discussion. The contention is that the Civil Service Commission, by hearing the appeal, assumed the plaintiff was a permanent appointee, and was estopped from denying it. The record shows that the commission made no such assumption. In any event, it is elementary that the commission could not endow the plaintiff with permanency of tenure by its own action, in violation of law. * * *"
In summation we point to certain facts which appear to be indisputable as shown by the record. (1) George Byrum, Jr., was Superintendent of Streets and Garbage when called into the Military Service and throughout his stay in the armed forces he was carried on the records of the city and the Civil Service Board as Superintendent, Absent with Leave. (2) When George Byrum, Jr., was discharged from military service he resumed his duties as Superintendent of Streets and Garbage and was carried on the records of the city and the board as such superintendent until February 1, 1948, when he was made Chairman of the Board of Adjustment and Ex Officio Technical Adviser to the Birmingham Planning Board, pursuant to the provisions of the Acts of 1947, p. 142, Code 1940, Tit. 62, § 330(40). (3) When George Byrum, Jr., resumed his position as Superintendent of Streets and Garbage upon the expiration of his military service, Mr. Merrill resumed his position as District Supervisor and has since that time been carried on the records of the Civil Service Board as Supervisor, even though the City Commission passed a resolution attempting to promote him to Superintendent of Streets and Garbage after George Byrum, Jr., took the position with the Planning Board. (4) No effort has ever been made by Lem D. Merrill or by the City Commission to effect his promotion from District Supervisor to Superintendent of Streets and Garbage by the successful passing of a promotional examination based upon competition.
George R. Byrum, Jr., reassumed the position of Superintendent of Streets and Garbage on July 22, 1947, prior to the adoption of the Act of August 12, 1947. General Acts of 1947, p. 142. The act amends the original act by providing for promotions in certain instances without competition. The act cannot aid the contention that Lem D. Merrill has been promoted to the position of Superintendent of Streets and Garbage, but it does provide that under certain conditions, as set forth in the act, the Personnel Board can suspend competition. It is sufficient to say that the Personnel Board has not considered it "desirable for the best interest of the service to suspend competition."
We have given this case our careful consideration with the result that we think that the judgment of the lower court should be affirmed.
Affirmed.
BROWN, FOSTER and LAWSON, JJ., concur. | October 12, 1950 |
f45ccea7-f4b6-4a23-a319-bb512bd291be | Birmingham Electric Co. v. ALABAMA PUB. SERV. COM'N | 47 So. 2d 449 | N/A | Alabama | Alabama Supreme Court | 47 So. 2d 449 (1950)
BIRMINGHAM ELECTRIC CO.
v.
ALABAMA PUBLIC SERVICE COMMISSION.
3 Div. 558.
Supreme Court of Alabama.
June 30, 1950.
*451 Wm. B. White, S. M. Bronaugh and White, Bradley, Arant & All, all of Birmingham, for appellant.
A. A. Carmichael, Atty. Gen., for the State.
MacDonald Gallion, for Alabama Public Service Commission.
Maurice F. Bishop, John S. Foster, J. H. Willis, Tom Huey and Mayer U. Neufield, all of Birmingham, for Jefferson County and City of Birmingham.
Albert Boutwell, of Birmingham, for Chappell and others, movants.
BROWN, Justice.
The Alabama Public Service Commission on April 30, 1948 entered an order denying the application of appellant, Birmingham Electric Company, for a change in rates filed March 16, 1948, under § 53, Tit. 48, Code of 1940, and from said order of the Commission the appellant here perfected its appeal to the Circuit Court of Montgomery County under § 79, Tit. 48, Code of 1940, and pending said appeal in the circuit court it applied to that court for a supersedeas of said order of the Commission which was granted upon appellant entering into a bond with surety and conditioned as provided by § 86, Tit. 48, Code of 1940, and in amount as ascertained under § 85 of said title.
The supersedeas bond was tendered and approved by the Circuit Judge on July 14, 1948. Thereafter on August 9th the Public Service Commission petitioned the circuit court to amend the supersedeas order of July 14, 1948. Pending this petition on August 11th appellant perfected its appeal to this court which was duly certified and docketed here as 3rd Division 514, 47 So. 2d 455. Thereafter the circuit court on December 6, 1948, granted the Commission's petition to amend and entered the purported order from which the appeal in this case is prosecuted.
The appellee on January 11, 1950, filed a motion to dismiss this appeal on grounds, among others, that the appeal was not timely and also that this Court was without jurisdiction to entertain the appeal. On the call of the docket here the case was submitted by the appellant on said appeal, accompanied by motion in the alternative for writ of mandamus to review the order of the lower court granting the Commission's petition to amend the order of supersedeas.
The original order of the court granting the supersedeas followed the prescription *452 of § 86, Tit. 48, Code of 1940. The order of the court granting the amendment goes much further than authorized by the statute. The material parts of said order will appear in the reporter's statement of the case.
Section 87 of said title provides that "an additional bond of like amount and with the same conditions shall be given at the end of each six months pending the appeal and pending any subsequent appeal by either party to the supreme court."
Section 88 of said title provides, "From the time said bond shall have been given the order appealed from shall be stayed and superseded and it shall be lawful for the utility to charge the rates, fares, or charges which had been reduced by said order, or the rates, fares or charges sought to be established by its petition, until the final disposition of said cause, etc."
Section 93 of said title provides, "Any person, firm, company or corporation who shall sustain any loss, injury, or damage by reason of the suspension of the rates or orders, or any of them, as aforesaid, may sue on the bonds in the name of the State of Alabama, for his use, and recover such damages as he may have so sustained, including any overcharge or excess rate or charge paid by him, on account of the suspension of the rates, charges or orders. * * *."
The general effect of the purported order amending the supersedeas provides that in case the appellant failed in its appeal the accumulations impounded would escheat to the state and be distributed if not paid to the passengers who paid the excess rates to the County of Jefferson and certain named cities in said county.
The judgment of the circuit court on first consideration was affirmed, but on rehearing made by the appellant the rehearing was granted on February 2, 1950, the affirmance set aside, the judgment of the circuit court and the order of the Commission vacated and the cause remanded to the Commission with directions to take further evidence touching the fixation of a rate basis and further consideration by the Commission in respect to a reasonable rate to be charged by the appellant in the conduct of the business.
Section 91, Title 48, Code of 1940, authorizes the Public Service Commission or the State to appeal from a decree of the circuit court without giving security for costs.
We find no where in this Subdivision 3 of said Title 48, pertaining to proceedings such as were had in 3 Div. 514, that the Public Service Commission is authorized to intervene in such proceedings pending the appeal in the circuit court by the utility. Nor do we find any authority in the statute authorizing the Public Service Commission to become a party in such proceedings as an adversary of the utility seeking a revision of its rates. The Commission, in contemplation of law, is without interest in the controversy and sits as an impartial tribunal with statutory powers, legislative in character, to regulate rates of public utilities. It is familiar law that when special statutory authority in derogation of the common law is conferred on courts of general jurisdiction, such a court of general jurisdiction becomes quoad hoc a court of inferior or limited jurisdiction. State v. Mobile & G. R. Co., 108 Ala. 29, 18 So. 801; Goodwater Warehouse Co. v. Street, 137 Ala. 621, 34 So. 903; Gunn v. Howell, 27 Ala. 663, 62 Am.Dec. 785; Martin v. Martin, 173 Ala. 106, 55 So. 632; Ex parte Pearson, 241 Ala. 467, 3 So. 2d 5; Truett v. Woodham, 98 Ala. 604, 13 So. 519.
"With respect to the judicial acts of courts exercising special and limited jurisdiction, the existence of jurisdictional facts is not inferred from the mere exercise of jurisdiction, but must affirmatively appear from the record. Goodwater Warehouse Co. v. Street, 137 Ala. 621, 625, 34 So. 903, and authorities there cited. In such cases `a compliance with the requisitions of the statute is necessary to its jurisdiction, and must appear on the face of its proceedings.' State v. Mobile & G. R. Co., supra, [108 Ala. 29, 18 So. 801]. It follows, as of course, that such jurisdiction cannot be obtained or conferred by the proclamation thereof, positively or by invited necessary inference, in the order or *453 decree of a court assuming to exercise a limited special authority.Neville v. Kenney, 125 Ala. 149, 28 So. 452, 82 Am.St. Rep. 230; Pollard v. Hanrick, 74 Ala. 334." Martin v. Martin, 173 Ala. 106, 55 So. 632, 633.
Section 79, Title 48, Code of 1940, authorizes appeals by the utility or a person interested, or the State. If the appeal is by a person or a utility, it is effected by filing the bond for the security of costs of the appeal with the public service commission.
Section 80, Title 48, authorizes an appeal by any intervenor or interested party from the "final order of the commission within the time, in the manner, and upon the conditions provided by this title for appeals from orders of the commission."
Section 81 authorizes "On * * * such appeal any utility, interested party, or intervenor may supersede any decree rendered by giving such supersedeas bond or bonds as may be appropriate to the proceedings as provided for herein for superseding an order or orders of the commission."
Section 82, Title 48, provides the procedure on appeal and how the same shall be considered and provides: "The commission's order shall be taken as prima facie just and reasonable. No new or additional evidence may be introduced in the circuit court except as to fraud or misconduct of some person engaged in the administration of this title and affecting the order, ruling or award appealed from, but the court shall otherwise hear the case upon the certified record and shall set aside the order if the court finds that: the commission erred to the prejudice of appellant's substantial rights in its application of the law; or, the order, decision or award was procured by fraud or was based upon a finding of facts contrary to the substantial weight of the evidence. Provided, however, the court may, instead of setting aside the order, remand the case to the commission for further proceedings in conformity with the direction of the court. The court may, in advance of judgment and upon a sufficient showing, remand the cause to the commission for the purpose of taking additional testimony or other proceedings."
Section 83 provides for a certification of the record or transcript of the proceedings before the commission.
Section 84 provides: "No appeal shall stay or supersede the order or action appealed from unless the appellate court or judge thereof, upon hearing and notice, after consideration of the testimony, taken before the commission, shall so direct. If the appeal be from an order of the commission reducing or refusing to increase such rates, fares or charges, or any of them, or any schedule, or part or parts of any schedule of such rates, fares or charges, the appellate court, or judge thereof, shall not so direct or order a supersedeas or stay of the action or order appealed from without requiring as a condition precedent to the granting of said supersedeas that the utility applying for the same shall execute and file with the clerk of said court a bond, which bond shall be as hereinafter provided."
Section 85 makes provision for ascertaining the penalty of the bond and section 86 provides for the penalty and conditions of the bond, and, where the appeal is by the utility, the conditions provided in the statute are that the bond must be "payable to the State of Alabama and conditioned to pay all such loss or damage as any person, firm or corporation may sustain, including all such excess rates, fares or charges, as such person, firm or corporation may have paid pending said appcal or any subsequent appeal to the supreme court in the event the order or action of the public service commission shall be sustained." [Italics supplied.]
The italicized provision "pending said appeal" refers to the appeal pending in the circuit court.
Section 87 provides for an additional bond of like amount and with the same conditions at the end of each six months pending the appeal in the circuit court and a subsequent appeal by the party to the supreme court.
*454 Section 90 provides for an appeal by either party to the controversy to the Supreme Court of Alabama from the judgment or decree of the lower court, the appeal to be taken within 30 days from rendition of such judgment or decree under the same rules and regulations as are made and provided or as may be provided by law, on appeals from said court, except as herein otherwise provided.
Section 91 of said title provides: "If the public service commission or the State of Alabama shall appeal from a judgment or decree annulling or suspending any rates or orders, it shall not be required to give any security for the costs of said appeal or any bond or undertaking to supersede the judgment or decree. The appeal of the public service commission or the State of Alabama without such bond shall have the effect of superseding the judgment or decree and the rate or rates, or order or orders, complained of, or annulled or suspended by the judgment or decree, shall be and remain the established rates or orders and shall be so regarded, and observed until the judgment or decree shall be affirmed and the said rates or orders annulled or suspended by the supreme court unless a supersedeas bond is continued in effect."
The appeal provided for in said section 91 is an appeal from the decree of the circuit court.
None of the several statutes noted above authorize an appeal from the alleged order of the circuit court purporting to amend the original supersedeas order. Moreover the circuit court sitting as a court of review in the exercise of its special statutory and limited jurisdiction was without jurisdiction or authority to amend the original order of supersedeas. The order purporting to so amend the original order of supersedeas is therefore null and void. The motion of the appellee to dismiss the appeal is therefore granted and the appeal is dismissed.
The motion of the appellant for the issuance of the writ of mandamus to review and vacate said order is granted and will be issued unless the learned Circuit Judge upon being advised of this opinion officially elects to set aside and vacate said void order. Ex parte Tower Mfg. Co. et al., 103 Ala. 415, 15 So. 836; Alabama Public Service Commission v. Alabama Power Co., 213 Ala. 374, 104 So. 814.
In re: Motion by John E. Chappell et al., for leave to intervene in 3 Div. 558, disposed of in the foregoing opinion.
The motion was made and submitted after the other appeal was under submission. This motion to intervene was submitted on the motion and on the motion of the respondents to strike the same and the parties have requested that in disposing of these motions we express our opinion as to the law applicable to this phase of the proceeding.
We are of opinion that the movants are not entitled to intervene in this Court and we are further of opinion that they show no such right or interest in the controversy as warrants an intervention in the circuit court, especially since the judgment of said court has been vacated by the judgment of this Court and the cause remanded to the Public Service Commission with instructions.
In Dupuy v. Roebuck, 7 Ala. 484, 486, this Court speaking through Collier, Chief Justice, approved the holding in Clark v. Pinney, 6 Cow.N.Y. 297, that "`A judgment reversed, becomes mere waste paper, and the rights of the party, immediately on the reversal, are restored to the same situation in which they were, prior to the pronouncing of the judgment so reversed.' * * *." This holding was reaffirmed in Price v. Simmons, Adm'r, 21 Ala. 337, 341.
In Barringer et al. v. Burke, 21 Ala. 765, 768, 771, following the cases above cited, the Court made this observation: "But a judgment which is reversed, is, in contemplation of law, of no more force or virtue than if it had never existed, so far as respects the rights of the plaintiff in that judgment. It is regarded as a mere nullity. * * * Every interest which depends upon it, belonging to the party in whose favor it was rendered, must share its fate and fall with it. If then, the judgment by a reversal becomes as if *455 it never had been, the offer to redeem, which was dependent on it, is to be regarded in like manner as if it never had been made."
The holding in said cases was subsequently reaffirmed in Florence Cotton & Iron Co. v. Louisville Banking Co., 138 Ala. 588, 592, 36 So. 456, 100 Am.St.Rep. 50. See Alabama City, G. & Attalla Ry. Co. v. Bates, 155 Ala. 347, 46 So. 776; McGeever v. Terre Haute Brewing Co., 201 Ala. 290, 78 So. 66. In Sovereign Camp W. O. R. v. Moore, 235 Ala. 117, 177 So. 642, additional authorities are cited in paragraph two of the opinion. See also Liverpool & London & Globe Ins. Co. v. Dickinson, 244 Ala. 381, 13 So. 2d 570.
The effect of the vacation of the decree of the circuit court of Montgomery County in 3 Div. 514, 47 So. 2d 455, was to vacate the order of supersedeas and the supersedeas bond executed under the same becomes functus officio. 27 Corpus Juris, p. 926; 37 C.J.S. p. 1401.
Since the foregoing opinion was prepared and read to the Court in conference, 3 Division 514, 47 So. 2d 455, was restored to the rehearing docket, ex mero motu by the Court, for further consideration as to the effect of our former judgment in that case, which as stated above was to vacate the decree of the Circuit Court rendering the supersedeas bond functus officio. The extended opinion this day rendered by the majority leaves in force the supersedeas order of the Circuit Court and the bond executed in pursuance thereof until final determination of the litigation.
In my opinion this is a strained construction of the statute. The appeal to the Supreme Court referred to and provided for was the appeal which was subsequently taken after the decision in the Circuit Court affirming the Commission's order.
Under the authorities cited supra the effect of the vacation of the Circuit Court's decree was to vacate the supersedeas rendered in that court and rendered said bond functus officio.
I am unable to agree to said extended opinion in 3 Division 514 and therefore respectfully dissent.
On the authority of the opinion in 3 Division 514, this day amended by the majority of the Justices, they concur in the conclusion expressed in this case, which is:
The motion to strike the motion to intervene is granted.
The appeal in 3 Division 558 is dismissed. Mandamus is granted conditionally.
All the Justices concur in the result as stated, except GARDNER, C. J., not sitting. | June 30, 1950 |
ca4e3f34-d212-42a3-806a-b3dce5bcad68 | City of Birmingham v. Bowen | 47 So. 2d 174 | N/A | Alabama | Alabama Supreme Court | 47 So. 2d 174 (1950)
CITY OF BIRMINGHAM
v.
BOWEN.
6 Div. 889.
Supreme Court of Alabama.
March 30, 1950.
Rehearing Denied May 18, 1950.
On Motion to Modify June 22, 1950.
Wm. L. Clark, of Birmingham, for appellant.
D. G. Ewing, of Birmingham, for appellee.
SIMPSON, Justice.
Appeal by the City of Birmingham, Alabama, from a judgment for personal injuries suffered by the plaintiff for the negligence of the City in failing to properly maintain a walkway over a water drain on 20th Street.
The governing rule is well understood. It was the duty of the City to exercise reasonable care in maintaining said sewer so that the public might use the walkway in safety. City of Birmingham v. Mauzey, 214 Ala. 476, 108 So. 382(10); City of Birmingham v. Crane, 175 Ala. 90, 56 So. 723.
In such an action, the burden is on the plaintiff to establish that the City either had actual knowledge of the defective condition of the walkway or that the defect had existed for such length of time as to raise a presumption of knowledge. City of Birmingham v. Martin, 228 Ala. 318, 153 So. 235; Town of Cullman v. McMinn, 109 Ala. 614, 19 So. 981.
On a careful review of the evidence, it must be affirmed that the trial court refused for the defendant the requested affirmative charge without error. Although there was no proof of actual knowledge of the defect, the facts sufficiently establish such constructive notice as made the question of liability one for the jury. The drain or sewer was along the west curb line of 20th Street and was spanned by a metal lid weighing about 300 pounds, which furnished a walkway or pass way from the curb to the street. According to some tendencies of the evidence, the base upon which this cover was supposed to rest stationary was "sloughed off" and worn away to such an extent that there was not sufficient support to keep the lid in place, as a consequence of which when the plaintiff, in starting to cross the street, walked upon the cover, it slipped from its base, fell into the "hole" and caused the plaintiff also to fall, from which he suffered serious and permanent injuries. From the appearance of the walkway as described by the witnesses, this was not a new defect, but was the result of years of deterioration, the walkway having been in use for approximately thirty-five years without any repairs, and although the City made periodic inspection of the surrounding conditions, the under-surface of the base of this crosswalk had never been inspected. It is fairly deducible that by a proper inspection, this dangerous condition would have been readily discernible and while there is no proof of actual notice, sufficient circumstances were proven from which it may be inferred that the defect should have been discovered. Under such circumstances, the municipal authorities were properly chargeable with constructive notice and the affirmative charge was properly refused.
The verdict was responsive to this disputed issue and was well supported by *177 the evidence and under the usual presumptions obtaining, the refusal of the trial court denying the motion for a new trial on the weight of the evidence must also be affirmed. New York Life Ins. Co. v. Turner, 213 Ala. 286(10), 104 So. 643.
Error is claimed in the following argument to the jury by counsel for the plaintiff: "Now, gentlemen of the jury, he said something here about no complaintno complaint before. He says there wasn't any evidence that this thing was ever placed back on after Mose Sims [another person] fell. I take it he says Mose fell about twelve or one o'clock. Mose says he fell some time after nine o'clock and before twelve o'clock. He says that there is no evidence it was ever placed back in place. What about Mr. Bowen's testimony? Wasn't it undisputed it was there when he stepped on it. Is this jury going to assume that that thing was left opennobody placed it back. Somebody placed it back. We don't have that evidence; the City of Birmingham might have it; I don't know. We don't."
There was proof which raised a substantial inference that the gutter cover had been replaced after Mose fell in the same hole and counsel was within the proprieties to discuss that phase of the evidence. Considerable latitude is permitted counsel in arguing the evidence and the reasonable inferences arising, and we do not think this argument out of line.
The following argument of plaintiff's attorney to the jury was also objected to by the defendant: "We had a picturethis picture here shows the general condition that was onthe position of it. There is no picture of the underside. I guess one could be made. He asked why didn't we take it. I will tell you why. We presumed that the jury would be allowed to go out there and look at it themselves."
The court promptly sustained defendant's objection and excluded the argument, and in overruling the motion for a mistrial on this ground, also admonished the jury as follows:
"Gentlemen, the matter of whether or not the jury shall be allowed or permitted to visit the scene which is involved in the case, is a matter to be ruled on by the Court. Not for the parties; not by either one of these gentlemen. The Court had that question under consideration and the Court determined it. These gentlemen didn't determine it. I determined against it and I had two or three reasons for it. One of them was the condition of the weather, to be frank. But that wasn't the main reason. The main reason I determined against it was the fact that this same thing is said to have happened in the summer of 1947, which is about a year and a half ago and while there is some testimony on the subject of whether or not there has been any changes; yet there is some other testimony, I believe that has to do with the question of whether or not the lid in recent days might have been moved along that edge of the curb there; who did it, how it was done, what happened when it was done; all those things lead me to think since we are trying the question of what the condition was then; not the question of what it is now; I ruled I should not let you gentlemen inspect it. It is my decision; not the decision of either one of these gentlemen. I think I have correctly decided the question under the law and the burden rests on me; it didn't rest on these gentlemen.
"What Mr. Ewing has said, I have sustained the objection to it and I have excluded it. It is not offered in criticism of Mr. Clark or the city, it is not to be determined by the City or the plaintiff. That is not up to the city or the plaintiff, but it is up to the Court. I am the one that made the decision.
"I will overrule your motion."
Jurors are intelligent men and it is not to be presumed that they will be influenced by every little contended misconduct which might crop into the trial of a case, and undoubtedly the prompt and preemptory redress delivered by the court eradicated whatever prejudice, if any, might have attended counsel's remarks. There *178 was no error to reverse in refusing the motion for a mistrial.
It is also insisted that error prevailed in the action of the trial court in permitting the plaintiff to show compliance with § 503, Title 37, Code, by demanding of the mayor the name of any other person as may be liable jointly with the municipality and that the mayor had failed to furnish the name of any such person. The argument seems to be that since the City was not contending for any joint liability of some other person with the City, it was prejudicially erroneous to allow this proof. The argument is untenable. Regardless of whatever might be the defendant's contention, there could be no possible error in the plaintiff's proof of compliance with the law of the case. Moreover, the trial court carefully explained the pertinent statute to the jury and the purpose of the proffer by the plaintiff of such proof and if there had been error it was thus rendered innocuous. Supreme Court Rule 45, Code 1940, Tit. 7 Appendix.
The remaining propositions advanced for error relate to the refusal of certain special written charges requested by the defendant. Only brief treatment will be accorded them, without determining their legal correctness, since on a careful review of the record, we have concluded they were covered by the court's general oral charge, when considered with the other written charges given for the defendant.
Refused charges 5, 6, and 7 were designed to enunciate the essentiality of unanimity of conclusion by the jury, based on a reasonable satisfaction from the evidence before rendering a verdict for the plaintiff, and without which the plaintiff could not recover. Under authority of our cases, the trial court might well have given these charges without risking error, but we think given charge 4, in connection with the court's oral charge that: "Now, gentlemen, it is for you to say in the case; you heard the testimony. * * * It is for you to say from all the evidence in this case; you heard it all * * * before the plaintiff could recover, gentlemen, the law says the plaintiff would have the burden of reasonably satisfying you twelve men of the truth of each one of the material parts of its complaint * * *." (We italicize.) substantially postulates the same principle and we will not declare error for the refusal of these charges.
We, of course, are familiar with the cases cited by appellant in brief and he correctly states that a charge similar to refused charge 6 in this case was made the basis of a reversal in Birmingham Ry., Light & Power Co. v. Humphries, 171 Ala. 291, 54 So. 613; and refusal of a charge similar to charge 7 in this case was held error in Langhorne v. Simington, 188 Ala. 337, 66 So. 85; and that charges similar to one or the other of said refused charges 5, 6, and 7 were approved in Louisville & N. R. Co. v. Steverson, 220 Ala. 158, 124 So. 205, and Nelson v. Lee, 249 Ala. 549, 32 So. 2d 22. Other and early decisions giving approval of charges like unto those here involved and affording the basic authority for the cases, supra, might have been added. Carter v. State, 103 Ala. 93, 15 So. 893; Hale v. State, 122 Ala. 85, 26 So. 236; Birmingham Ry., Light & Power Co. v. Moore, 148 Ala. 115, 42 So. 1024.
But the essential conclusion reached by us is that refused charges 5, 6, and 7 were in substantial effect covered by given written charges and the oral charge of the court. Numerous written charges requested by the defendant requiring matters to be proven to the satisfaction of the jury were given. The only difference between charges given and said charges 5, 6, and 7 lies in the fact that in the former the term jury was employed, while in the latter any individual juror or each juror was used. Additionally, as above noticed, the trial court in its oral charge also instructed the jury upon this matter so that the matter of proof to the satisfaction of the jury as a prerequisite to plaintiff's right of recovery was not only covered but in fact emphasized. While we are aware that "the law contemplates a unanimous verdict", Alabama Great Southern R. Co. v.
*179 McWhorter, 156 Ala. 269, 282, 47 So. 84, 88, and that these refused charges were designed to enunciate that principle, it is manifest to us that this feature of the charges was likewise substantially covered by the given instructions to which we have alluded, in connection with the quoted portion of the oral charge requiring the reasonable satisfaction of "you twelve men."
We might also add that, notwithstanding the frequent approval of charges in the terms of the three here under consideration, it has long been recognized that inherent in them was a probable tendency to mislead. In the case of Birmingham Ry., Light & Power Co. v. Moore, supra, Justice Denson (Chief Justice Weakley concurring) vigorously and cogently dissented from the majority holding, giving approval to a similar charge, pointing out the tendency of such instructions to individualize the jury, to keep apart rather than bring together the minds of the jury. Justice Somerville made a like observation, with respect to a similar charge, in the case of Birmingham Ry., Light & Power Co. v. Gonzalez, 183 Ala. 273, 61 So. 80, Ann.Cas.1916A, 543. And later cases, and cases from the Court of Appeals, have leaned toward a condemnation of "single juror" charges. Ex parte State ex rel. Attorney General (Jones v. State), 213 Ala. 390, 104 So. 773; Russo v. State, 236 Ala. 155, 159, 181 So. 502; Millhouse v. State, 235 Ala. 85, 117 So. 556; Burkett v. State, 215 Ala. 453, 111 So. 34; Bringhurst v. State, 31 Ala.App. 608, 20 So. 2d 885. While it is not our purpose here and now to undertake a reconsideration of the validity of such charges and those of our cases giving them approval, we make these observations as indicating the inescapable conclusion that such charges are, to say the least, sui generis. Though proper in the abstract or in a single instance to point out the essential unanimity of a jury verdict, if repeated or given undue emphasis, in terms or in substance, they would tend to mislead.
But we forego further comment. We adhere to the conclusion that the three charges considered were substantially covered by given written instructions, in connection with the oral charge, and hence that their refusal was, if error, without injury to the substantial rights of appellant. Code 1940, Title 7, § 273; Supreme Court Rule 45, Code 1940, Title 7, p. 1022.
Charge 19 is considered as having been refused without error, other reasons aside, in that it was substantially covered by given charges 18 and 20, when taken in connection with the oral charge of the court.
So also charge B, when considered in connection with the oral charge of the court and given charges 14, 22, 23, 24, 25, and 26.
We think an affirmance of the judgment is due and it is so ordered.
Opinion modified, judgment affirmed, and application for rehearing overruled.
BROWN, FOSTER, LIVINGSTON, LAWSON and STAKELY, JJ., concur.
PER CURIAM.
After final affirmance of the judgment and the interposition of the 10% penalty prescribed by Code 1940, Title 7, § 814, appellant moved for a remission of said penalty and an amendment of the judgment to that extent on the ground that § 690, Title 62, Code, allowing the City of Birmingham to appeal without bond, effectively excluded said city from the provisions of § 814 providing for the penalty. On a careful consideration, the court is of the opinion that the motion is not well taken and that the penalty is assessable against the City of Birmingham as against any other appellant.
True, § 814 does stipulate for the assessment of the 10% penalty where the judgment has been superseded "by the execution of bond, with surety." But this court held in City of Birmingham v. Simmons, 222 Ala. 309, 132 So. 322, 323, 74 A.L.R. 766, that said § 814, providing for the penalty, applied to an affirmance of *180 a judgment even though the general statute, now § 443, Title 37, eliminated the necessity for a surety on the supersedeas bond of a municipality. The statute as regards Birmingham has only gone one step further and eliminated the necessity for giving any bond at all to supersede the judgment. Nevertheless, the judgment is superseded when the prescription of § 690 is followed and, in our view, the real purpose of § 814 was to provide appellee litigants with the additional damages from superseded judgments when an affirmance has been ordered. Such was the import of the holding in City of Birmingham v. Simmons, supra, where it was said: "We are also of the opinion that section 6153 [presently § 814, Title 7, Code] applies to an affirmance of all judgments or decrees for money regardless of the nature or character of the defendant; that is, includes judgments against municipalities." 222 Ala. 310, 132 So. 323.
We think under authority of City of Birmingham v. Simmons, supra, the City of Birmingham, like all other parties defendant mentioned in § 814, is subject to the penalty therein provided for.
Motion overruled.
All the Justices concur except GARDNER, C. J., not sitting. | June 22, 1950 |
42f475a5-2595-4fea-87d5-bbdca649632b | Mutual Sav. Life Ins. Co. v. Hall | 49 So. 2d 298 | N/A | Alabama | Alabama Supreme Court | 49 So. 2d 298 (1950)
MUTUAL SAV. LIFE INS. CO.
v.
HALL.
8 Div. 549.
Supreme Court of Alabama.
October 12, 1950.
Rehearing Denied December 14, 1950.
*299 W. A. Barnett, of Florence, and S. A. Lynne, of Decatur, for appellant.
Potts & Young, of Florence, for appellee.
SIMPSON, Justice.
The plaintiff, Mrs. Hall, sued the defendant insurance company on a policy of insurance, insuring the life of Andrew Myrick. It is alleged that the policy was issued January 22, 1945; that the insured died as the result of an accident December 12, 1947; and that said policy is the property of the plaintiff, she being named as the sole beneficiary therein. She claimed, and recovered, under the double indemnity feature of the policy.
The pleas on which issue was joined were lapse of the policy for nonpayment of premiums and non est factum. While the greater part of the evidence related to the issue of payment of premiums, and the greater number of assignments of error arise out of rulings on evidence on this issue, we are met at the threshold with the question presented by the plea of non est factum, solution of which, we think, disposes of the appeal.
Plaintiff undertook to establish the contract of insurance by secondary evidence, first laying the predicate of loss of the original policy. In doing so she introduced a previously issued policy upon the life of Myrick, which admittedly had lapsed, and undertook by evidence aliunde to show that the suit policy, bearing a number assigned to it by defendant, was the same as to terms, conditions and provisions as the previously issued policy so introduced. In substance the evidence showed that Myrick, the insured, came to his death by accidental *300 means, and thereafter plaintiff found among his papers a policy upon his life, naming the plaintiff as beneficiary, and bearing date of issue August 2, 1943 (the previously issued policy above mentioned). Also among his papers were several receipt cards tending to evidence payment of weekly premiums upon a policy of another number (the policy sued upon).
Plaintiff's witness Young testified that after the law firm of which he was a member had been employed by plaintiff in connection with her claim upon said policy, witness contacted one Cooper who, he testified, was a district manager or general agent of the defendant, and talked with Cooper concerning the matter. Over repeated objections interposed by defendant, this witness was permitted to testify that Cooper stated to the witness "that the only difference between policy `811' and policy `427' was the number was different and the date was different; he stated that Mrs. Lessie Hall was the beneficiary in both policies. That was sometime in April, 1948, when I was in his office." (Italics supplied.) The same, or substantially the same, statements were several times testified to by this witness on this examination. Defendant's objections were upon the apt ground that the statements attributed to Cooper related to past transactions with which he had had nothing to do, about which he had no knowledge, and concerning which he was without authority to bind the company.
The evidence is without dispute that the defendant did issue to Andrew Myrick a policy of life insurance dated January 22, 1945, and that this policy was, as to terms and conditions, the same as the policy previously issued and offered in evidence by the plaintiff. But defendant's evidence tended to show that the beneficiary named in the later policy was Mattie Lee Gamble, "as mother" of the insured. Defendant offered in evidence the original application for this policy, signed "Andrew Myrick," and designating "Mattie Lee Gamble, mother" as the proposed beneficiary. The number assigned to this application and the number on the policy in suit are the same. Mr. Cooper, defendant's field supervisor or district manager, testified as a witness for the defendant. He denied having made the statement attributed to him by Mr. Young that "Mrs. Lessie Hall was the beneficiary in both policies." He testified that he had nothing whatever to do with the making or issuing of policies, that this was done in the home office of the company and, in effect, that he had no personal knowledge of the transaction with respect to the application for and issuance of the policy involved. His authority was not otherwise shown to extend beyond that of general supervision of agents in his district, in the matter of soliciting applications and collecting premiums.
In the absence of evidence on the part of anyone purporting to have seen the original policy, or evidence otherwise tending to establish the name of the beneficiary actually appearing on the policy, the statement or declaration attributed by the witness Young to the agent Cooper vitally touched the main issue in the case. In our judgment the admission of such evidence was reversible error." * * * To be admissible against the principal, the declarations of an agent must be within the scope of the authority conferred upon the agent and made while in the exercise of his authority. Where the declarations of an agent are merely narrative of a past transaction, they are hearsay and not competent against the principal. * * * `The admissions of an agent, to bind his principal, must be made at the time of doing some act in the execution of his authority.'" Bank of Phoenix City v. Taylor, 196 Ala. 665, 667, 72 So. 264, 265. See, also, Atlanta Life Ins. Co. v. Bolden, 239 Ala. 231, 194 So. 653; Wade v. Brisker, 233 Ala. 585, 173 So. 64. Cooper's purported statement was not made at the time of doing an act in the exercise of his authority; it was made, if so, at a time long after the transaction to which it related. The statement was therefore hearsay and inadmissible.
True, plaintiff offered evidence showing her relationship to the insured; that she, as his aunt, had taken him into her home and care when he was a small child, where he remained until the time of his death; *301 that Mattie Lee Gamble, the person named, as beneficiary on the application for the suit policy, as the mother of insured was not the insured's mother but his aunt, and that there was no reason why insured should have made her his beneficiary and that Mrs. Gamble had never heard that he had done so. But such evidence, while affording an inference that the designation of Mrs. Gamble as beneficiary on insured's application was the result of a mistake, falls far short of establishing the fact that Mrs. Hall, the plaintiff, was the beneficiary named in the lost policy. It is to be borne in mind that this is not a suit upon a contract to insure, or a proceeding to reform a contract according to the agreement and intentions of the parties; it is a suit upon a certain executed contract of insurance, undertaken to be established by secondary evidence.
In view of our conclusion with respect to the primary issue in the case, we deem it unnecessary to treat those assignments of error relating to the secondary issue of lapse vel non. Without committing ourselves upon that issue, we observe that the evidence adduced and relied upon by the plaintiff on this issue leaves much to be desired in conclusive, probative force.
For the error indicated, the judgment is reversed and the cause is remanded.
Reversed and remanded.
BROWN, LIVINGSTON, and LAWSON, JJ., concur.
SIMPSON, Justice.
On application for rehearing appellee insists that we were in error in our conclusion that appellant's agent Cooper occupied no such position of authority with the appellant as to constitute him its alter ego and to render his purported statement as to the terms of a policy contract binding upon his principal. Appellee calls our attention to phases of the evidence tending to show that Mr. Cooper did have such authority. With this contention we cannot agree. We took careful account of all the evidence on original consideration, and have re-examined it in the light of the application for rehearing.
While it may be conceded, for the sake of the argument, that Mr. Cooper was possessed of more authority than ordinarily attaches to a district insurance agent, it is clear to us that he was not vested with authority to bind appellant by a statement as of fact that a given policy contract named a certain person as beneficiary thereof, when he had nothing to do with the actual matter of formulating the policy and, so far as appears, had at no time had such policy under his control for any purpose. It is clear to us that any statement made by Cooper arose out of preliminary negotiations on the part of appellee's attorney with the company and its agents for collection of the proceeds of the policy. It is clear that in the beginning of the negotiations both parties proceeded on the theory that the policy first issued was the only policy issued on the life of Myrick. It was subsequent to the company's denial of liability on said policy, on the ground that it had lapsed for nonpayment of premiums, that appellee discovered that a second policy had been issued to Myrick. A communication from appellant's vice-president states that he was unaware of the "rewriting" of the policy until receipt of appellee's later communication to him. He referred the matter to the district agent, or manager, Cooper, but, as we interpret the matter, the referral was for the matter of a check of Cooper's records with respect to the status of payments of premiums. This we think is clearly borne out by subsequent negotiations and pleadings in the case. Appellee filed interrogatories to appellant's general officers, and in answer thereto appellant's officers produced, as an exhibit, a copy of the policy in suit, showing Mattie Lee Gamble as beneficiary. Answers to appellee's interrogatories were not, however, introduced in evidence. Further, appellee filed a replication to appellant's pleas, predicated upon an estoppel on the part of appellant, because of denial of liability, to question the right of appellee as beneficiary. Demurrer to this replication *302 was sustained by the trial court and, of course, is not before us, there being no cross-assignment taking the point. This situation is mentioned as throwing light upon the issues and evidence upon which the case was tried.
In its final analysis the record and evidence before us disclose an effort on the part of appellee to establish a contract by parol, aided by waiver or estoppel. In the face of appellant's pleadings and evidence to the effect that the policy in suit named Mrs. Gamble as beneficiary, the contrary statement attributed to Cooper that in both the old and the new policies Mrs. Hall was named as beneficiary could have had no other purpose or effect than that of a waiver or estoppel.
It has been often and consistently held that waiver or estoppel cannot create a primary liability, and that to create such a liability all of the elements of a binding contract must be present. Protective Life Ins. Co. v. Cole, 230 Ala. 450, 161 So. 818; Fidelity Phenix Fire Ins. Co. v. Raper, 242 Ala. 440, 6 So. 2d 513; Clark v. Hartford Fire Ins. Co., 252 Ala. 84, 88(5), 39 So. 2d 675; Simpson Sales Co. v. British General Ins. Co., 252 Ala. 337, 40 So. 2d 409. The right of a beneficiary is a primary right, an essential feature of the original contract itself. Such a right cannot be established by waiver or estoppel, for, as here, there was an absence of all elements of a binding contract in the matter of the statement attributed to Cooper. To repeat, such statement, if made, was not in the nature of a waiver of some condition or right of forfeiture which, in some circumstances, a general agent may make with binding effect upon his principal. It was rather a statement, gratuitously made, as of fact with respect to a contractual status.
We are not convinced that we should depart from our original opinion and conclusion.
Opinion extended and application for rehearing overruled.
BROWN, LIVINGSTON, and LAWSON, JJ., concur. | October 12, 1950 |
f190a8b0-0974-44e6-b604-7a9712cd58ff | Wilhite v. Webb | 46 So. 2d 414 | N/A | Alabama | Alabama Supreme Court | 46 So. 2d 414 (1950)
WILHITE
v.
WEBB.
6 Div. 843.
Supreme Court of Alabama.
May 11, 1950.
*415 London & Yancey, Geo. W. Yancey and Frank E. Lankford, of Birmingham, for appellant.
Clifford Emond, of Birmingham, for appellee.
LIVINGSTON, Justice.
The suit is for personal injuries sustained by plaintiff when struck by an automobile belonging to and operated by the defendant.
The complaint consisted of two counts: one based on simple negligence, the other wanton misconduct. The defendant interposed a plea of the general issue in short by consent which, of course, included contributory negligence of plaintiff in defense of the count for simple negligence.
The trial court gave the general charge for defendant as to the wanton count, and submitted to the jury the simple negligence count, together with the issue of plaintiff's contributory negligence, and the jury returned a verdict for the defendant.
Plaintiff moved the trial court for a new trial, assigning many grounds, among them the giving of the general charge for defendant as to the wanton count of the complaint. The court granted the motion and ordered the cause restored to the docket for a new trial. From that judgment, defendant prosecutes this appeal.
We have reached the conclusion that the trial court properly granted the motion for a new trial because of the error made in giving the general charge on wantonness. It will, therefore, not be necessary to discuss other grounds of the motion.
Wantonness has been defined in many of our cases, and in varying language. While the principle is the same in all cases, the definitions must be read in the light of the circumstances surrounding the particular case. Simon v. Goodman, 244 Ala. 422, 13 So. 2d 679. The following quotations are, in our opinion, sufficient for applying the law to the facts of the instant case: "From the foregoing decisions we observe that each case is bound by its material facts; that before it can be said an act or failure to act is wantonly done or omitted and an injury resulting thereby is wantonly inflicted, it must be shown that the party charged with committing *416 the wrong or omitting to reasonably act in that behalf, had knowledge of the danger, present or impending, to the other party or parties so situated, and being conscious (from his knowledge of existing conditions and impending danger) an injury would likely or probably result from his conduct or omission to act, with reckless indifference to consequences, consciously and intentionally did the wrongful act, or omitted to do or discharge the known duty in the premises to avert such danger, and which produced the injurious result." Simon v. Goodman, supra, 244 Ala. at page 424, 13 So.2d at page 680.
"We have often defined wantonness as requiring knowledge that plaintiff or some person situated as she was, would be subject to danger of being injured as a probable consequence of his conduct, and that with reckless disregard of such consequences he pursued that conduct which proximately caused the injuries complained of." Dean v. Adams, 249 Ala. 319, 321, 30 So. 2d 903, 904.
"Wantonness is 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." Griffin Lumber Co. v. Harper, 247 Ala. 616, 618, 25 So. 2d 505, 506.
"Wantonness may arise from knowledge that persons, though not seen, are likely to be in a position of danger, and with conscious disregard of known conditions of danger and in violation of law brings on the disaster. Wantonness may, of course, arise after discovery of actual peril by conscious failure to use preventive means at hand." Godfrey v. Vinson, 215 Ala. 166, 169, 110 So. 13, 16.
"And in Central of Georgia R. Co. v. Corbitt, 218 Ala. 410, 118 So. 755, 756, it is declared: `To constitute willful or intentional injury there must be a knowledge of the danger accompanied with a design or purpose to inflict injury, whether the act be one of commission or omission, while in wantonness this design or purpose may be absent, and the act done or omitted with knowledge of the probable consequence, and with reckless disregard of such consequence. * * *'" Porterfield v. Life & Casualty Co. of Tenn., 242 Ala. 102, 5 So. 2d 71, 73.
"A willful or intentional act is not involved in wantonness, which may consist of an inadvertent failure to act by a person with knowledge that someone is probably in peril and the act or failure to act is in reckless disregard of the consequences." Atlantic Coast Line R. Co. v. Brackin, 248 Ala. 459, 461, 28 So. 2d 193, 194.
"We note that in the opinion of the Court of Appeals reference is made to the fact that in wantonness the accused must have actual knowledge that another occupies a position of peril. True, it is sometimes so stated as in the cases they cite, where other aspects of wantonness were not involved. Copeland v. Central of Georgia R. Co., 213 Ala. 620, 105 So. 809, and in Pratt v. State, 27 Ala.App. 301, 171 So. 393. But it is also as well settled that it is culpable wantonness when the accused has knowledge that some person (any person) is likely to be in a position of danger and with conscious disregard of such known danger, he recklessly proceeds on a dangerous course which causes the disaster, though he may not know whether any person is actually in danger." Rainey v. State, 245 Ala. 458, 461, 17 So. 2d 687, 689.
"To constitute wantonness, it was not essential that Brock, the driver of the car, should have entertained a specific design or intention to injure the plaintiff." First National Bank of Dothan v. Sanders, 227 Ala. 313, 315, 149 So. 848.
"`Wanton injury' was quite accurately defined by the trial court in these words: `Wantonness is a 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 *417 probably result. Before a party could 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, 520, 140 So. 600.
In the instant case the evidence is in hopeless conflict, but we are here interested only in that phase of it from which the jury might have found wantonness on the part of defendant and are, of course, not to be understood as indicating an opinion concerning it beyond the question at hand. The evidence tended to prove the following: The plaintiff was injured on March 5, 1947, about 9:30 to 10:00 o'clock at night, at or near the intersection of First Avenue and Sixty-fourth Street, in the City of Birmingham, Alabama. An automobile owned and driven by defendant injured him. First Avenue is a street running in a general east and west direction and Sixty-fourth Street runs in a general north and south direction. Two street car tracks run along near the center of First Avenue. On the night in question plaintiff was waiting for a street car near the northeast corner of the intersection of First Avenue and Sixty-fourth Street. It was, or had been raining, "drizzling rain," and the visibility was poor. A street car, which plaintiff intended to board, was proceeding along First Avenue from east to west. The street car stopped at Sixty-fifth Street, which is one block east of Sixty-fourth Street, and the defendant who was also proceeding from east to west along First Avenue, stopped his automobile at Sixty-fifth Street. The street car and plaintiff's automobile resumed travel at or near the same time and continued along First Avenue to Sixty-fourth Street. The street car stopped about eight feet before it reached the intersection of First Avenue and Sixty-fourth Street. The street car was equipped with two doors, one at the front end of the car for discharging passengers and one near the middle of the car for the entrance of passengers. The street car had stopped and the middle door opened. Plaintiff, upon the approach of the street car, stepped from the curb on the north side of First Avenue and started across the intervening space between the curb and the street car track for the purpose of boarding the street car. Under these circumstances the defendant, at a rate of speed of from thirty-five to forty miles an hour, attempted to pass between the street car and the north curb line of First Avenue and ran into plaintiff and knocked him approximately sixty feet. The pavement showed tire skid marks for a distance of eighteen feet from the rear bumper of defendant's car. First Avenue is a much used thorough fare and was familiar to defendant.
While we do not say that the above facts are true, the evidence tended to prove them, and we are clear to the conclusion that, if true, they justify the jury in finding wantonness and the trial court was in error in charging out the wanton count. He therefore properly granted the motion for a new trial.
Affirmed.
FOSTER, SIMPSON and STAKELY, JJ., concur. | May 11, 1950 |
a5d720e5-76d2-4b60-9b46-830c78d5f874 | Couch v. Rodgers | 45 So. 2d 699 | N/A | Alabama | Alabama Supreme Court | 45 So. 2d 699 (1950)
COUCH
v.
RODGERS et al.
6 Div. 18.
Supreme Court of Alabama.
April 13, 1950.
*700 W. Marvin Scott, of Cullman, for appellant.
F. E. St. John, and Julian Bland, of Cullman, for appellees.
FOSTER, Justice.
The question on this appeal is whether or not an Act of the Legislature of Alabama, approved September 30, 1947, General Acts 1947, page 343, Code 1940, Tit. 62, § 333(6) et seq., is violative of sections 106 and 110 of the Constitution, for that it is contended that the Act is local and notice of an intention to introduce it was not given as required by section 106, supra.
The Act regulates the business of barbering, whereby a commission is created for the purpose of examining and licensing barbers and whereby it is made an offense to practice the profession without such a license.
The question arose on the bill filed by a barber of many years experience who seeks to have an injunction against the members of the commission restraining them from enforcing such act as against the complainant because the same is unconstitutional. The trial court sustained a demurrer to the bill and complainant appeals.
The only question argued on the appeal is the constitutionality of the Act, so that will be the only question which we will consider.
By its terms the Act has application only in counties which under the last federal census or any subsequent federal census had a population of not less than 46,500 nor more than 48,000. It is admitted in argument on both sides that the only county in the State which by the last federal census came within this population classification of the Act is the county of Cullman, which by such federal census has a population of 47,343.
We find the following to be the status of the statutes of Alabama on the subject of barbers and the conduct of their business, other than the Code sections 60 to 71, Title 22.
An Act of the Legislature of 1931 was passed in substantially the language of the Act now under consideration applicable to counties having a population of 300,000 or more according to the last or any subsequent federal census. It then had application only to Jefferson County. By making it a part of Title 62, Code, sections 253 to 258, it is now a local law in so far as Jefferson County is concerned. Opinion of the Justices, 244 Ala. 384, 13 So. 2d 762.
There was a local act passed by the Legislature of 1935, Local Acts 1935, page 180, applicable to Mobile County by express designation, in the same terms as that now under consideration. See, Barbers' Comm. of Mobile County v. Hardeman, 31 Ala. App. 626, 21 So. 2d 118. This Act was not carried into Title 62, Code.
*701 There was a local act passed by the Legislature of 1949, Local Acts 1949, page 1036, applicable to Colbert County by express designation, also in the same terms. We do not find any other such laws. But we held that it is not within the general powers of a city to set up such status by ordinance. Lisenba v. Griffin, 242 Ala. 679, 8 So. 2d 175.
The Act applicable to Jefferson County was in form general with local application, and we held it valid on attack under section 106, supra. The other two acts, one for Mobile and one for Colbert, both being local acts in which section 106, supra, was complied with, have no application here. When, as here, there was no compliance with section 106, Constitution, the act cannot stand unless it is general as defined in section 110, Constitution.
Cities and towns are classified by Code and constitutional provisions for various purposes. Title 37, sections 5, 35, 138 and 299; Constitution sections 225 and 228. Our cases approve such classifications in applying section 110 of the Constitution to legislative enactments subject to well defined principles.
The principle which is controlling in the determination of this question was stated in the case of Reynolds v. Collier, 204 Ala. 38, 85 So. 465. As there stated the question as to whether or not the act is local is measured by the formula there set up. This formula has never been questioned or altered, but it is not always easy to determine whether or not the act is local when it is so considered. Without quoting in full the formula set out in that case, it is sufficient to say that when the classification of cities or counties is based upon a difference in population, in order for it to be a general act when it does not have present application to the entire State, it is necessary that there be a substantial difference in the population upon which the classification is made and that difference in population is reasonably related to the purpose to be effected by the act. So that if the difference in population is not substantial or if such difference in population is not reasonably related to the purpose to be effected, the attempted classification will be treated as arbitrary, and the result would be for the act to be local and not general as defined by section 110 of the Constitution.
We have numerous decisions which give illustration to the principle. We will not undertake to analyze them all, but only such as seem to shed light upon the instant suit. In the case of Wages v. State, 225 Ala. 2, 141 So. 707, 708, this Court was dealing with an act similar to the one here involved. By its terms it had application to counties having a population of three hundred thousand or more according to the last or any subsequent federal census. The Court there undertook to apply the principle which we have stated above. The act was held to be general, although it then applied only to Jefferson County. We quote from that opinion as follows: "The wisdom of the law and the necessity for its enactment and the classification adopted were addressed to the lawmaking body. It may be well said, this body understood and appreciated the necessity of furnishing protection to the people in the matter legislated upon in the act, in the larger and more populous counties of the state, which was not necessary or practicable in the smaller counties."
We have numerous cases which bring out that application of the principle wherein it was observed that counties of large population may reasonably be supposed to be differently served in many respects than counties of smaller population and there is sometimes drawn a distinction between a classification based upon a minimum population and a classification based upon a population with both a minimum and a maximum limit. The case of State ex rel. Shirley v. Lutz, 226 Ala. 497, 147 So. 429, brings out that distinction. That case was dealing with an act regulating the business of plumbing in counties having a population of 100,000 or more according to the last or any subsequent federal census. The Court emphasized the different principles applicable when there is only a minimum but not a maximum number. When there is only a minimum, the Court thought a more liberal application of the principle should be made. In the case of Ex parte *702 Ashton, 231 Ala. 497, 165 So. 773, 104 A.L.R. 54, there was only a minimum upon which the classification was based. The Court in that case did not see fit to analyze the question of whether the classification bore relation to the matter sought to be effected. Whereas in most of the other cases where there is only a minimum basis the Court has analyzed the situation for the purpose of showing that in the larger counties there is reason which the legislature may assume existed for making the change different from the counties of less population and observing that in making a classification there has to be a limit somewhere for its effect, although some counties may nearly reach that limit without doing so. See, Cooper v. State, 226 Ala. 288, 147 So. 432; Dearborn v. Johnson, 234 Ala. 84, 173 So. 864; Howell v. Johnson, 34 Ala.App. 570, 42 So. 2d 644, certiorari denied Ala.Sup., 42 So. 2d 649.
In the Opinion of the Justices, 249 Ala. 511, 31 So. 2d 721, we were responding to a legislative inquiry as to a proposed act applicable to counties of 400,000 population or more according to the last or any subsequent federal census, which would require the payment to such counties of a license tax of one cent on each gallon of gasoline. We thought there was a reasonable relation of the subject matter of the Act to counties of such population because we thought that in large counties the load of traffic on the highways by reason of such population justified the legislature in providing additional income in order to take care of its effect.
In the case of State ex rel. Ward v. Henry, 224 Ala. 224, 139 So. 278, we were dealing with an act which provided for one tax officer to issue all licenses for counties having a population of 300,000 or more according to the last or any subsequent federal census. We thought that in such large counties there was a reasonable relation to the population to justify such classification.
In the case of City of Birmingham v. Moore, 248 Ala. 422, 27 So. 2d 869, we were considering an act applicable to counties of 300,000 or more inhabitants according to the last or any subsequent federal census, wherein the act provided for the creation of a development agency in such counties for slum clearance and housing projects. We were not able to see wherein there should be a difference with respect to such project in large counties and smaller ones and, therefore, we said the classification was arbitrary and without proper relation to the subject matter.
In the case of State ex rel. Camp v. Herzberg, 224 Ala. 636, 141 So. 553, the Court was dealing with an act which set up a commission form of government in cities having a population of not less than 24,000 nor more than 40,000. The Court held that those limits created a substantial difference of population and that the subject matter of the act was reasonably related to such difference.
In the case of State ex rel. Rountree v. Summer, 248 Ala. 545, 28 So. 565, the Court was considering whether or not an act was local and subject to section 106 of the Constitution when it made provision for an election to be held to determine whether or not there should be a change in the city government from aldermanic form of government to a commission form of government applicable to cities within a population range of 15,000 for a minimum and 17,500 for a maximum. The Court in stating the formula which should be applied held that the act was not local under section 110 of the Constitution for the reasons given in the case of State ex rel. Camp v. Herzberg, supra. So that it will be noted that in the Summer case, supra, the Court was dealing with a classification of cities in respect to a commission form of government. We presume that the legislature was acting in good faith and had reason to believe that there was a basis for such classification of cities in the light of section 35, Title 37, Code.
If there is any reason why a county having a population within the range of a minimum of 46,500 and a maximum of 48,000 should have a special classification for the purpose of setting up a barbers' commission as prescribed in the Act here in question, so as to make it "general" under section 110 of the Constitution, we do not see the basis for it. Vaughan v. State, 212 Ala. 258, 102 So. 222.
*703 We have therefore reached the conclusion that the Act in question is a local act and that it is subject to the terms of section 106 of the Constitution in respect to its publication. That not having been done, it is our duty to declare it unconstitutional.
We think the demurrer to the bill for an injunction predicated upon that ground alone should not have been sustained. The decree of the circuit court in sustaining the demurrer is reversed and one is here rendered overruling it. The respondents are allowed thirty days from the day when the certificate of reversal reaches the office of the register at Cullman within which to answer the bill of complaint.
Reversed, rendered and remanded.
All the Justices concur, except GARDNER, C. J., not sitting. | April 13, 1950 |
dde05ec4-d4bf-499e-b480-b98f712a62a7 | State v. Brown | 48 So. 2d 36 | N/A | Alabama | Alabama Supreme Court | 48 So. 2d 36 (1950)
STATE
v.
BROWN.
6 Div. 919.
Supreme Court of Alabama.
October 12, 1950.
*37 A. A. Carmichael, Atty. Gen., and Wm. H. Burton, Jr., Asst. Atty. Gen., for appellant.
Spain, Gillon, Grooms & Young and Frank M. Young, all of Birmingham, for appellee.
STAKELY, Justice.
This is an appeal by the State of Alabama from a decree of the equity court declaring invalid an assessment made by the State Department of Revenue against S. A. Brown for income taxes for the year 1942 and ordering a refund of $6,635.97 as being in excess of the correct amount of such taxes.
During the calendar year of 1942 S. A. Brown was engaged in the plumbing contracting business in Birmingham, Alabama, where he resided. Prior to 1942 and during 1942 he entered into contracts with various principal contractors as a subcontractor for plumbing work on various war projects in Alabama, Mississippi and elsewhere. On April 28, 1942, the Congress of the United States enacted the Federal Renegotiation Act, 50 U.S.C.A.Appendix, § 1191 and amendments thereto, which provided that each fixed price or lump sum contract or subcontract in an amount in excess of $100,000 was subject to renegotiation and directed the Secretary of War to renegotiate the contract price in order to eliminate such profits as are found to be excessive. Pursuant to the act renegotiation agreements were embodied in war contracts made thereafter and supplemental agreements providing renegotiation terms were made a part of contracts then in existence.
During the calendar year 1942 S. A. Brown received substantial amounts under his subcontracts which were subject to renegotiation. Of the sums so paid to him during the year 1942, S. A. Brown reported to the State Department of Revenue in 1943 on his state income tax return for 1942 the gross amount of $1,950,636.69 and out of such amount a net profit of $565,414.31. The amount of $310,000, the amount in controversy in this cause, was a part of the aforesaid amounts paid to S. A. Brown by the Federal Government as aforesaid. These funds were paid to him without restriction as to how he could use or dispose of them.
As a result of the renegotiation by the War Department of his contracts, all of which were subcontracts, a renegotiation agreement was executed by S. A. Brown and the Secretary of War on January 10, 1944, whereby S. A. Brown agreed to pay or credit the United States the sum of $145,000 and also the sum of $165,000 as reductions in the contract price of contracts renegotiated. So the war subcontracts of S. A. Brown were reduced to the extent of $310,000 which was repaid by him to the United States Government.
In the year 1942 S. A. Brown was on a calendar year basis for reporting both federal and state income taxes and also was on a cash accounting basis. Such accounting basis remained unchanged during 1943, 1944 and 1945. S. A. Brown elected to file his state income tax returns for those years on the cash accounting basis. It was stipulated between the parties that "on to wit August 22, 1944, S. A. Brown, taxpayer, duly and properly filed application for refund of income tax with the State Department of Revenue at Montgomery, Alabama. Agreements were made from time to time between S. A. Brown and the State Department of Revenue extending the time for making the final assessment for 1942 against S. A. Brown.
*38 The question for decision is whether the $310,000 received by S. A. Brown in the year 1942 on his war contracts, subject to renegotiation, was income for the year 1942 on which the State of Alabama is entitled to be paid an income tax. The State Department of Revenue assessed him with such tax. The equity court to which an appeal was taken from the assessment declared the assessment invalid and ordered a refund as stated.
For a thorough understanding of the present case its background should first be mentioned. The controversy between the parties here arose under a war time economy brought about by unusual conditions existing in war time. The contracts of appellee were performed at a time when the object was to get the job done, the idea being that the price for the job was to be determined later. The United States Government was not concerned at the time with the socalled "agreed price" as provision was made under the Federal Renegotiation Act to give protection to the United States Government so that the actual price ultimately to be received by the contractor would be safeguarded through renegotiation.
S. A. Brown is not claiming a deduction from gross income for the calendar year 1942 because of the repayment of a debt to the Federal Government. He is here urging that the $310,000 received by him from war contracts in the calendar year 1942 and which ultimately was repaid to the Federal Government was never gains, profits or income to him. Gross income is defined in § 384, Title 51, Code of 1940 as follows: "The term `gross income' as used herein: (1) Includes gains, profits and income derived from salaries, wages * * *."
In § 384, Title 51, Code of 1940 net income is defined in substance as the gross income as defined in § 384 less the deductions allowed by § 385, Title 51, Code of 1940. Since the initial prices as fixed in the war contracts were subject to renegotiation, they were obviously merely tentative prices and it was expressly provided in the renegotiation agreements that "in the event that such renegotiation results in a reduction of the contract price, the amount of such reduction shall be retained by the Government or repaid to the Government by the contractor, as directed by the Secretary of War." So under the very contracts under which S. A. Brown received payment from the Federal Government, he was charged with notice that he was receiving such sums of money as tentative payments only. Although he received such sums of money, we do not think it can be said that, to the full extent of the amounts received, he was enriched as a result of the receipt of such sums or that his assets had been increased or that he had realized a profit therefrom so long as the matter of renegotiation was open or undetermined. As we shall see S. A. Brown took the proper steps to keep final determination of his tax open until the renegotiation of his contracts was concluded.
In the case of State v. Flenner, 236 Ala. 228, 181 So. 786, 790, the Supreme Court of Alabama defined income as follows: "It is to be given a broad meaning. It must be rationally construed and not stretched to include purely theoretical as distinguished from practical conceptions. Income as a subject of taxation imports an actual gain. It must mean an increase of wealth out of which money may be taken to satisfy the pecuniary imposition laid for the support of government." See also Brown v. Long, 242 Mass. 242, 136 N.E. 188; Brandon v. State Revenue Commission, 54 Ga.App. 62, 186 S.E. 872; 34 Words and Phrases, Perm. Ed., p. 215; Southern Weaving Co. v. Query, 206 S.C. 307, 34 S.E.2d 51.
In the Query case, supra, where the Federal Renegotiation Act was involved, the same contention was advanced by the tax authorities as here made, that is that the sums paid to appellee were received by him under a claim of right and that he could use and dispose of such sums as he saw fit. In that case it was pointed out by the court that the right of the taxpayer to retain the money did not depend upon subsequent events. It was shown that at the time the contractor was performing his contract and when he received the funds, he knew and agreed in effect that he received these funds with the obligation to make restitution *39 to the Government to the extent that such prices were subsequently determined to be excessive. So in that case as here all the facts upon which the taxpayer's liability to make refund to the Government had occurred and the factors were then fixed that were to be considered in determining the amount to be refunded. Only the computation of the amount to be refunded had then not been made. In the present case all the factors and all other contingencies and conditions upon which the amount to be calculated for repayment were in existence and then known in 1942. The only thing unknown in 1942 was the exact amount to be returned, if any, but this was not at that time unknowable. We do not consider that the $310,000 in question constituted a gain or profit under the Alabama state income tax statute.
But it is argued that S. A. Brown made a return on a calendar year and cash basis. In other words, in accordance with Burnet v. Sanford and Banks Co., 282 U.S. 359, 51 S. Ct. 150, 75 L. Ed. 383, the proposition is advanced that when the calendar year was at an end the rights of S. A. Brown became fixed and that he could not have his taxable income for 1942 so reduced by a renegotiation of the Federal Government made in subsequent years. We quite understand and appreciate the necessity and value of the rule which provides that the taxes on income actually received in one year may not be withheld because the transaction from which such income flows has not been completed in that year and losses may thereafter occur in a subsequent year. But the situation here is different. Within the time allowed by the Alabama statute S. A. Brown filed his petition under § 410, Title 51, Code of 1940, for a refund because he had received notice that his contracts would be renegotiated. The very purpose of § 410, Title 51, Code of 1940 is to permit of a correction of the amount of the tax where the tax has been erroneously paid. State v. Woodroof, 253 Ala. 620, 46 So. 2d 553, 562. We do not think that the good purposes of this statute should be thwarted in this case because it was determined subsequent to 1942 that amounts paid to the taxpayer in 1942 were excessive and subject to refund. If this were true the statute would be emasculated.
It is said by the state that S. A. Brown could take deductions in years subsequent to 1942 for repayments made to the Government in such years. But this is not the relief to which appellee is entitled. He is entitled to have his taxable income for 1942 reduced by the amounts he has been required to return to the Government and his tax for 1942 computed accordingly. Due to variation in income from year to year a deduction in a subsequent year might be of much lesser value to the taxpayer than reduction of taxable income in the year in question.
The decree of the lower court is correct and should be affirmed.
Affirmed.
BROWN, FOSTER and LAWSON, JJ., concur. | October 12, 1950 |
363c23fa-c41d-4b5a-a910-8b6b841e99e5 | Mobile City Lines v. Orr | 45 So. 2d 766 | N/A | Alabama | Alabama Supreme Court | 45 So. 2d 766 (1950)
MOBILE CITY LINES, Inc.
v.
ORR.
1 Div. 373.
Supreme Court of Alabama.
April 13, 1950.
*768 Johnston, McCall & Johnston, of Mobile, for appellant.
D. R. Coley, Jr., of Mobile, for appellee.
STAKELY, Justice.
William R. Orr (appellee) brought this suit against Mobile City Lines (appellant) to recover damages for personal injuries alleged to have been received when a motorcycle on which the plaintiff was riding collided with a bus of the defendant. The complaint consisted of two counts, count 1 being based on simple negligence and count 2 being for wilful or wanton injury. Both counts showed that the collision took place at the intersection of Old Shell Road and Catherine Street, public streets in the City of Mobile. The plea of the general issue was filed to both counts and a plea of contributory negligence to the first count. The court gave the affirmative charge as to count 2 at the request of the defendant. On the request of the plaintiff the court gave the affirmative charge as to the plea of contributory negligence interposed to count 1. The trial resulted in a verdict and judgment for the plaintiff. Motion for new trial was overruled by the court. The appeal is from the original judgment of the court and also from the judgment denying the motion.
On the morning of November 26, 1947 at about 7:30 a. m. the plaintiff was riding on a motorcycle, which was being operated by Melvin R. Tarver. Both the plaintiff and Tarver were seated on the motorcycle in the same seat. The plaintiff was sitting behind Tarver and was holding on to him around the waist. At the time of the accident they were travelling west on the Old Shell Road at the intersection of Catherine Street. Old Shell Road runs east and west and Catherine Street runs north and south. The defendant's bus was travelling south on Catherine street. The motorcycle and the bus collided in the intersection.
I. The appellant insists that it was entitled to the affirmative charge which it requested as to count 1 and which the court refused and further that in any event the verdict and judgment should have been set aside because contrary to the great weight of the evidence. We have considered these contentions with care but cannot agree. Testimony favorable to the plaintiff, Alabama Power Co. v. Buck, 250 Ala. 618, 35 So. 2d 355, tended to show that the City of Mobile maintained "stop" signs on Catherine Street indicating that traffic should come to a stop before entering Old Shell Road, that the bus pulled up at the Old Shell Road, on which the motorcycle was travelling, as though it would stop, but instead of stopping continued on its way without stopping across Old Shell Road, that the motorcycle which was on the right side of Old Shell Road tried to dodge the bus to go in behind it for which there was not sufficient room, that the motorcycle was running about twenty to twenty-five miles an hour and in trying to avoid the collision the driver of the motorcycle not only swerved to try to dodge the bus, but also applied the brakes on the motorcycle, that the collision took place on the right of the center line of Old Shell Road and that glass resulting from the collision was scattered all over the intersection.
II. It is argued that the court was in error in giving charge 6 requested by the plaintiff. The position is that the plaintiff, under this charge, relied upon the violation of a municipal ordinance for the purpose of proving negligence against the defendant and yet did not specially plead the city ordinance and allege its violation, *769 but instead relied on a general allegation of simple negligence. In other words it is claimed that the ordinance may be offered in evidence and its violation shown, though not specially pleaded, as a circumstance tending to show the defendant's negligence along with the other evidence, but unless specially pleaded the violation of a municipal ordinance is not negligence per se.
We find it unnecessary to analyze the foregoing contention. The plaintiff introduced in evidence the city ordinance which will appear in the report of the case. The proof also showed that Old Shell Road was at the time of the accident a thoroughfare by city ordinance. But in addition to the foregoing proof, under §§ 21 and 48, Title 36, Code of 1940 the local authorities within their jurisdiction were authorized to designate Old Shell Road as a main or through highway by erecting stop signs at the entrances thereto from intersecting highways. The proof showed that such stop signs were erected and were in place on Catherine Street at its intersection with Old Shell Road at the time of the accident. Presumptively the stop signs were properly and authoritatively so placed at this point. Harris v. Blythe, 222 Ala. 48, 130 So. 548. We think that charge 6 can be considered as based on the state statute. The oral charge of the court shows that the court so considered the matter. The rules of pleading do not require that facts be specially pleaded of which courts commonly take judicial knowledge. City Council of Montgomery v. Wright, 72 Ala. 411, 47 Am.Rep. 422. So a statute need not be specially pleaded. Kansas City, Memphis & Birmingham Railroad Co. v. Filippo, 138 Ala. 487, 35 So. 457. Accordingly there was no error in the action of the court in giving charge 6 on the point under discussion.
Of course the failure to comply with an ordinance or statute is not in every case an actionable wrong and before a plaintiff can recover there must be a casual connection between the failure to comply and the injury. Louisville & N. R. R. Co. v. Christian Moerlein Brewing Co., 150 Ala. 390, 43 So. 723; Sloss-Sheffield Steel & Iron Co. v. Allred, 247 Ala. 499, 25 So. 2d 119. Charge 6, however, is merely an abstract statement of law. It does not undertake to state the entire basis of recovery or indicate to the jury that the court assumed anything with reference to the driver of the bus. At the worst if the written charge merely had a tendency to mislead, it could have been corrected by an explanatory charge requested by the defendant. We do not consider that the giving of charge 6 constitutes reversible error. Claude Jones & Son v. Lair, 245 Ala. 441, 17 So. 2d 577; Lasseter v. King, 249 Ala. 422, 31 So. 2d 588.
III. At the close of the evidence for both parties the plaintiff requested and the court gave the jury his written charge 4 which reads as follows: "4. The court charges the jury that if they believe the evidence in this case, you cannot find for the defendant under plea 2."
The defendant's plea 2 alleges that the plaintiff was guilty of contributory negligence which proximately contributed to his alleged injury. If there was any evidence tending to establish the material allegations of plea 2, a jury question is presented and it was error to give the charge. L. Carpenter & Co. v. Neftel, 203 Ala. 487, 83 So. 471. However negligence, if any, of the driver of the motorcycle is not imputable to the plaintiff unless the plaintiff had charge or control of the motorcycle or its driver. McGeever v. O'Byrne, 203 Ala. 266, 82 So. 508. There is no proof of such charge or control. But it is also settled that the guest on the motorcycle may nevertheless be guilty of such negligence on his part as to bar his recovery. McGeever v. O'Byrne, supra.
The plaintiff was riding as a guest on the motorcycle. He was seated behind Melvin Tarver, the operator of the motorcycle, on a "buddy" seat which was built for two people. He kept his arms around Tarver in order to maintain his position, but this did not interfere with Tarver in operating the motorcycle. According to an ordinance of the City of Mobile, which was introduced in evidence, the speed of automobiles or other vehicles moving over or along the streets of Mobile is prohibited when in excess of 30 miles per hour and a slower speed must be observed wherever *770 traffic conditions are such as to make it manifest for the protection of life and property.
Tendencies of the evidence show that the motorcycle was travelling at a speed of 35 or 40 miles per hour immediately before the accident. Tendencies of the evidence further showed that the motorcycle was travelling on the wrong side of the street and that the collision was on the wrong side of the street, that is south of the center line of Old Shell Road. The testimony of the plaintiff included the following. "I remember passing a woman, one of the police school officer women, somewhere on Shell Road, Gentlemen, I don't know where, but it was a block or two this side of there, and I said There's the lady on the corner, watch the school up there, and I says How fast are we going, he says We are going about 12 or 15 miles, he says I can't go much slower or it will stop on me, I got to have a certain speed; we got to the corner and that is where we had the wreck; * * *."
In discussing the duty of a guest invited to ride on a motor car, this court quoted with approval the following excerpt from Shultz v. Old Colony St. R. Co., 193 Mass. 309, 79 N.E. 873, 8 L.R.A.,N.S., 597, 118 Am.St.Rep. 502, 9 Ann.Cas. 402: "`Applying this statement of the law to the present case, the result is that the plaintiff would not be entitled to recover if in the exercise of common prudence she ought to have given some warning to the driver of carelessness on his part, which she observed or might have observed in exercising due care for her own safety, nor if she negligently abandoned the exercise of her own faculties and trusted entirely to the vigilance and care of the driver. She cannot hide behind the fact that another is driving the vehicle in which she is riding, and thus relieve herself of her own negligence. What degree of care she should have exercised in accepting the invitation to ride or in observing or calling to the attention of the driver perils unnoticed by him depends upon the circumstances at the time of the injury. * * *.'" McGeever v. O'Byrne, 203 Ala. 266, 82 So. 508, 510.
Tendencies of the evidence show that the motorcycle was travelling at an excessive rate of speed on a public street in a city and going at such speed while approaching a street intersection. Tendencies of the evidence showed that the rate of speed was such that although the driver attempted to check the motorcycle by applying the brakes, he was unable to do so and the collision resulted. The plaintiff was riding on the motorcycle immediately behind the driver and was forced to put his arms around the driver to maintain his place. In this position we do not see how the plaintiff could be insensitive to the speed and operation of the motorcycle. Certainly the jury could so infer. In fact the situation was such that it did provoke inquiry by the plaintiff as to the speed at which the motorcycle was travelling. He is presumed to know the contents and effect of the ordinance. True the answer of the driver to his question showed a lawful rate of speed, but under the circumstances it was a question as to his right to abandon the exercise of his own faculties and trust entirely to the care of the driver. The plaintiff made no effort to have the motorcycle stopped and get off, but chose to continue on it in its course. As this court said in Utility Trailer Works v. Phillips, 249 Ala. 61, 29 So. 2d 289, 291, "A person riding in or on a motor vehicle 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. * * *."
Under all the circumstances the question of contributory negligence was for the jury and charge 4 should not have been given. Utility Trailer Works v. Phillips, supra; Curley v. Mahan, 288 Mass. 369, 193 N.E. 34; Curran v. Earle C. Anthony, Inc., 77 Cal. App. 462, 247 P. 236; Cyclopedia of Automobile Law and Practice, Vol. 10, part 2 pps. 50 et seq.
Since the case must be reversed on account of the ruling of the court on charge 4 given at the request of the plaintiff, we *771 find it unnecessary to pass on other points raised by the appellant on this appeal.
Reversed and remanded.
BROWN, FOSTER, LIVINGSTON, LAWSON and SIMPSON, JJ., concur. | April 13, 1950 |
85db51ca-1848-46d2-b638-1a61ea8c4e02 | Methvin v. Haynes | 46 So. 2d 815 | N/A | Alabama | Alabama Supreme Court | 46 So. 2d 815 (1950)
METHVIN et al.
v.
HAYNES.
7 Div. 34.
Supreme Court of Alabama.
March 30, 1950.
Rehearing Denied June 22, 1950.
*816 Ralph D. Porch, of Anniston, for appellants.
Young & Young, of Anniston, for appellee.
BROWN, Justice.
The complainant, as the bill alleges, owns "the premises known as No. 132 Gray Street in the Town of Oxford, Calhoun County, Alabama, and the respondents own or are reputed to own and are in possession of the premises known as No. 128 Gray Street in the Town of Oxford, Calhoun County, Alabama; that an alley 20 feet in width runs between said lots to a depth of 280 feet, more or less, said alley being more particularly described as follows to wit: "Commencing at a point on the West side of Gray Street 100 feet North of the Northwest intersection of Gray Street and Graham Street, thence North along the West side of Graham Street 20 feet, thence west of even width 280 feet, more or less."
The right of complainant to use this alley is the bone of contention in this case. The other matters complained of are incident to this controversy and consist of alleged trespasses, threats, obscene language and other personal acts toward complainant and his family in respect to all of which the bill seeks a mandatory, preliminary and permanent injunction against the defendants Eugenia Toland Methvin and Ethel Toland, compelling them to "forthwith remove said obstruction to said alleyway on Gray Street and to take down and remove the said fence hereinabove described and to restore complainant's fence to the place from which it was removed by the respondents, their servants, agents and employees and to forever refrain from obstructing the said alley and trespassing upon complainant's premises and interfering with complainant's use of the said alley in any manner whatsoever, to refrain from calling up complainant and the members of his family by telephone or otherwise; to cease and desist from all such conduct as may tend to embarrass and humiliate complainant and the members of his family; to refrain from threatening to assault complainant and the members of his family; and to refrain from committing any act or acts towards the complainant and the members of his family tending to cause a breach of the peace."
The bill was filed by the appellee on April 11, 1949. Complainant claims an easement on and over said alley established by prescription and continuous use by complainant and his predecessors in title under claim of right for twenty years or more. The residence of complainant is No. 132 on Gray Street, which runs north and south, and the house occupied by the defendants is No. 128 Gray Street. The alley runs immediately north of complainant's property line between the said Nos. 132 and 128.
The pertinent allegations of the bill are: "That said alleyway for more than 20 years immediately last past has been used by the complainant and his predecessors in title, together with the respondents and their predecessors in title for the general purpose of the right of way as such alleyways are commonly used, among other things to enable trucks, carts and wagons of the sanitary department of the Town of Oxford to remove garbage and trash from the rear of complainant's premises, and along which to carry fuel, groceries and other articles by trucks or vehicles necessary and incident to the use of the dwelling, and for the purpose of reaching the garage on the rear of complainant's lot and for the general convenience of complainant; that until now such use of said alley has been and continues to be necessary to the enjoyment of complainant's house and lot.
"Complainant further respectfully represents that the respondents, their servants, agents and employees have repeatedly trespassed that portion of complainant's lot measuring 10 feet North and South by 132 feet East and West and distant from Gray Street 280 feet, more or less; that respondents, their said agents, servants and employees tore down and destroyed complainant's *817 fence, marking that part of his lot described in this paragraph and have gone upon complainant's said lot and erected a great barrier consisting of many posts measuring some 10 feet in height and many strands of barb wire; that complainant's said fence removed by respondents, their servants, agents and employees, has enclosed a part of respondent's premises hereinabove described for more than 20 years.
"Complainant further respectfully represents that the said 20 foot alley has been continuously used for more than 20 years and without interruption, and said 20 foot alleyway has been used by the complainant and his predecessors in title for the purpose of hauling groceries, fuel and household supplies to reach the garage on the rear of complainant's said lot, and by the sanitary department of the Town of Oxford, Alabama to remove trash and garbage from the rear of complainant's said lot; that said use was not permissive, but that complainant so used said alleyway under claim of right, openly, notoriously, and continuously, together with his predecessors in title, for more than 20 years, immediately last past.
"Complainant avers that during towit: the month of March, 1949, the respondents have obstructed said alleyway by erecting a fence or gate across the mouth of said alley on Gray Street, thereby permanently blocking said alley and denying the use thereof to the complainant and thereby, greatly inconveniencing him in the use of the said premises."
The bill verified by affidavit as to truth was presented to the Hon. Leslie Longshore, one of the Circuit Judges, on an application for fiat for the issuance of a temporary injunction on the day it was filed and the same was set down for hearing by him on the 15th day of April, 1949. On the 13th of April, Judge Longshore filed an order of recusal accompanied by an order vacating his former order with request that Judge DeBardelaben, his Associate Judge, take cognizance of said order and act thereon as he might see fit.
On May 21, 1949, the respondents filed their answer alleging "Respondents assert that the premises known as 128 Gray Street in the Town of Oxford, Alabama are owned by the Estate of Merit H. Toland and that they are not owned by Eugenia Toland Methvin and Ethel Toland, Respondents, and that all of the heirs of Merit H. Toland, deceased, are necessary and indispensable parties respondent in the above-styled cause and that this cause should not proceed until all of the heirs of Merit H. Toland are made parties respondent.
"Respondents deny that an alley exists between 128 Gray Street and 132 Gray Street and say that said twenty foot strip alleged to be an alley is a private driveway providing the owner entrance for vehicles into the residence of 128 Gray Street; that said drive ends at the rear of the property known as 128 Gray Street, that it has never been dedicated by the Town of Oxford as an alley nor used as such. Respondents deny that said drive has been used by the complainant and his predecessors in title for ingress and egress to the premises known as 132 Gray Street, now owned by the Complainant, Paul M. Haynes.
"Respondents would further show that because of the alleged claim of the Complainant, Paul M. Haynes, to this said drive in question, Respondents caused to be made a plat of survey by a registered civil engineer in June of 1948, which plat of survey shows clearly that the drive in question lies solely on the premises of 128 Gray Street and not on the property of the Complainant. So far as the Respondents know, Complainant has never had a plat of survey made in the attempt to validate his claim to the said drive. Respondents particularly deny that Complainant has used this driveway under claim of right, openly, notoriously and continuously, together with his predecessors in title for more than twenty years immediately past, and state that there has been on the property of 132 Gray Street a fence erected by the predecessors of title to Paul M. Haynes, which said fence shows that the predecessors of title to Paul M. Haynes clearly did not assert claim of any sort to the said drive in question.
"Respondents assert that they have built a wire fence between 132 and 128 Gray Street for their own protection because of *818 the repeated trespasses of the Complainant and persons living in his home, which said trespasses were intended to threaten, harass, and frighten Respondents and to keep them in a state of fear. Respondents assert that they live at 128 Gray Street alone, and that they are afraid for their safety because of the conduct of Complainant, members of his family, and other residents of 132 Gray Street.
"Respondents further deny using abusive, obscene, violent and threatening language to the Complainant and members of his family and deny threatening the Complainant and members of his family with bodily harm. * * *."
On motion of the solicitors for defendants with notice to the solicitors for complainants Judge DeBardelaben "for cause shown by said respondents," the hearing of said matter was continued from July 20 to August 30, 1949, at 9:00 A.M., "at which last mentioned appointed time the testimony in this case shall be taken orally before the Court." Notice was ordered to be given to the solicitors for both parties and a like order was made on motion of complainant's solicitors after notice to their adversaries and for cause shown "the hearing of said matter was continued from August 30th, 1949, to August 31, 1949, at 9:00 A.M." On the date last above mentioned the parties examined witnesses, their testimony covering some eighty or more pages of the record. At the conclusion of the examination of witnesses, the following colloquy occurred between Judge DeBardelaben and Mr. Porch, one of the defendant's solicitors:
"The Court: Is that all the documentary evidence and oral evidence in the case? Mr. Porch, do you have any evidence to offer for the respondents. I can't put this case off any longer.
"Mr. Porch: Well, I couldn't try it, there is no time. I told you before I couldn't do that and I guess this record will show.
"The Court: I really don't appreciate her attitude toward the Court. I am not critical of you but I think I have been more than fair about this thing. She left for Florida after the case was set and I don't appreciate that. I am just not willing to put it off any longer.
"Mr. Porch: When do you suggest we try the balance of this case?
"The Court: We are trying it right now unless you can offer it by tomorrow. If you can offer some testimony tomorrow I think I can hear it in the morning if you have some. I have given ample opportunity to you and to the people you represent.
"Mr. Porch: I am not prepared to submit at this time.
"The Court: I am not disposed to put it off any longer. I have given ample notice."
The solicitors for the complainant filed a note of testimony as of September 1, 1949. None was filed for the defendants. The final decree from which this appeal is prosecuted was entered and filed on September 2, 1949, granting the relief as prayed in the bill.
At the opening of hearing of testimony the record shows the following:
"The Court: I would like to go ahead. I would like for you to state to the court what you contend and whatshow on the board what the argument is about and also from Mr. Porch what his contention is.
"Mr. Porch: May it please the Court, the first paragraph of my answer is a plea of necessary parties and it has never been adjudicated and never been heard. I would think that would take place over the presentation of the case.
"Mr. Porch: We state that the respondents assert, or the two in this case, Ethel Toland and Eugenia Toland Methvin, assert the premises known as 128 Gray Street in the Town of Oxford, Alabama, are owned by the estate of Merit H. Toland and that they are not owned by Eugenia Toland Methvin and Ethel Toland and that all the heirs of Merit H. Toland are necessary and indispensable parties respondent in the *819 above styled cause and that this cause should not proceed until all the heirs of Merit H. Toland are made parties respondent. Now, I wish to go into that.
"(At this point the law was argued by counsel for both parties.)
"Mr. Porch: Now, the controversy from which this whole thing arose is over the question of land, of who owns the land.
"The Court: I will be glad to let you submit testimony on the question of the heirs.
"Mr. Porch: I would like to limit that testimony only in support of whether all heirs are parties respondent.
"Mr. Young, Jr: May I interrupt? Has your Honor read the bill, are you familiar with it? All we ask is the common alleyway used for fifty or 75 years be opened.
"The Court: I am not ruling. I am going to let him submit the proof as he wants to do as to whether there are other heirs and I would like to know who they are and where they are and then I will make my ruling. It is limited solely to the question of who the heirs are.
The only testimony taken by defendants shows that the property known as No. 128 Gray Street was owned in his lifetime by Merit H. Toland, that he died intestate and left surviving several heirs including the respondents Mrs. Methvin and Ethel Toland, Dasy Toland Grist, Jabez Curry Toland, Mrs. Margaret Toland Hale, three minors, heirs of James Gray Toland, and Robert A. Toland, Sr., and their interest in the house and lot known as No. 128 Gray Street and the said alley as their private property.
There can be no doubt that a permanent easement over lands whether created by grant or use is an incumbrance on the legal title affecting the salability and value and use of the property. Cowan v. Southern Ry. Co., 118 Ala. 554, 23 So. 754; Stein v. Dahm, 96 Ala. 481, 11 So. 597; McGhee v. Wilson, 111 Ala. 615, 20 So. 619, 56 Am. St.Rep. 72.
"The general rule is that persons whose rights are directly and necessarily affected by the decree, and are materially interested in the subject-matter of a suit, in equity, must be made parties." Turnipseed et al. v. Blan, 226 Ala. 549, 148 So. 116, 118; Webster v. Talley et al., 251 Ala. 336, 338, 37 So. 2d 190; Court of County Revenues for Lawrence County et al. v. Richardson, 252 Ala. 403, 41 So. 2d 749.
The learned trial Judge in proceeding to final decree over the objection of appellant seems to have relied on Rules 29 and 30 of Equity Practice. Code of 1940, Tit. 7 Appendix, p. 1075. Rule 29 provides, inter alia. "The decree shall be without prejudice to the rights of the absent parties in that they may claim their shares of any funds in court, or if paid out by order of court, may recover their shares from parties to whom such funds may have been so paid."
The quoted provision of said rule relates to cases dealing with the disbursement of funds subject to distribution, but cannot apply to a permanent incumbrance on the legal title or the right of unity of possession and use of tenants in common. Such incumbrance would be a source of irritation and the production of future litigation and vexation by necessary parties not being brought within the jurisdiction of the court in respect to the res. The burden of bringing necessary parties in is on the complainant and on final hearing if he has omitted a necessary party, his bill will be dismissed. Warner v. Warner, 248 Ala. 556 [8, 9], 566, 28 So. 2d 701; Ruffin v. Crowell, Ala.Sup., 46 So. 2d 218; Baisden v. City of Greenville, 215 Ala. 512, 513, 111 So. 2.
The legal title which passed to the several heirs at law of Merit H. Toland, deceased, as tenants in common is several, each tenant representing his own interest and no other. Ruffin et al. v. Crowell et al., supra. The parties not brought in are not so numerous as to warrant their omission under Rule 30 and they may be brought in as parties by constructive service by registered *820 mail or by publication so as to bind them as to the res located within the court's jurisdiction in Alabama. Turnipseed et al. v. Blan, supra.
It clearly appears from the record before us that "the matter" on which the case was set down for hearing was the application of the complainant for an order granting a temporary injunction and it was on this "matter" that the testimony was taken. At the conclusion of the hearing of the testimony the Judge announced he was trying the case as on final hearing on pleadings and proof and over the objection of the respondents' solicitor that he was not ready to submit testimony, the court entered the final decree from which this appeal is prosecuted.
The existence of said easement is disputed and the nature of the injunction which the complainant seeks is mandatory. "To sustain a bill to enjoin the obstruction of an easement, except as incidental to other equitable relief, it must appear that the remedy at law is either doubtful, difficult or not sufficient to grant adequate relief. Lide v. Hadley, 36 Ala. 627, at page 635, 76 Am. Dec. 338. * * *." Sellers v. Valenzuela, 249 Ala. 627, 629, 32 So. 2d 517, 518. "Mandatory injunctions are rarely granted on interlocutory applications except where right of complainant is clear and unmistakable on the law and the facts and there exists an urgent necessity for issuing of writ in order to prevent extreme or other serious damage which would ensue from withholding the writ." City of Decatur et al. v. Meadors, 235 Ala. 544, 180 So. 550; Wharton, Adm'r v. Hannon, 115 Ala. 518, 22 So. 287; Id., 101 Ala. 554, 558, 14 So. 630. Nor will a court of equity ordinarily intervene to supervise and restrain personal conduct of individuals. Such matters are left to courts of law. Montgomery & W. P. R. Co. v. Walton, 14 Ala. 207; 14 R.C.L. § 78, p. 376.
We are of opinion, therefore, that the decree granting the permanent mandatory injunction was laid in error and must be reversed not only because of the absence of necessary parties defendant but also because the case was not ready for submission except on the application for temporary injunction. Hughes et al. v. Stephens et al., 219 Ala. 134, 121 So. 397; City of Decatur et al. v. Meadors, supra; Ex parte Gilbert, Ala.Sup., 43 So. 2d 816.
Reversed and remanded.
LIVINGSTON, SIMPSON and STAKELY, JJ., concur. | March 30, 1950 |
c770a05a-05cb-49d0-9260-18875f1b284c | Sims v. State | 46 So. 2d 564 | N/A | Alabama | Alabama Supreme Court | 46 So. 2d 564 (1950)
SIMS
v.
STATE.
6 Div. 999.
Supreme Court of Alabama.
June 1, 1950.
Matt Murphy, Jr., of Birmingham, for appellant.
A. A. Carmichael, Atty. Gen., and Jas. T. Hardin, Asst. Atty. Gen., for the State.
FOSTER, Justice.
The question on this appeal is the identity of appellant as the one who killed deceased by shooting him. Deceased was a watchman and the shooting was without provocation. Besides his confessions made to several different persons, there was further proof of the identity of his finger prints made after his arrest with some made of him on a former occasion. There is no question raised as to the competency of the witness taking the finger prints and explaining them. See, Leonard v. State, 18 Ala.App. 427, 93 So. 56.
During the examination of the witness, State's counsel asked him questions in respect to finger prints formerly made of defendant. The following occurred during such examination:
"Q. Have you the known finger prints there? A. Yes, sir.
"Q. Is this (photograph) the known finger prints of Claude B. Sims? A. Yes, sir."
*565 Objection was made to this by defendant's counsel because it had not been shown how he knew they were the defendant's finger prints. No ruling was made on this objection.
The State's counsel then asked: "Q. Tell us how you know that to be the known finger prints of Claude B. Sims? A. On four, thirty, forty-seven Claude B. Sims was arrested for burglary and grand larceny."
Objection was made by defendant's counsel and a motion was made to exclude. Thereupon the State's counsel asked that it be excluded. Defendant's counsel then moved for a mistrial because the statement of the witness was highly inflammatory. The court granted the motion of State's counsel and stated "that part of the statement which the witness made goes out. I exclude it and it should not be considered."
During the further examination of the witness, the question was asked by the State's counsel: "Were these photographs taken at the time you took those finger prints?" Answer: "That also was done on the first arrest. When it is done one time it carries the same number all the way through: both of them are on file."
Defendant's counsel asked for a mistrial on the ground that the statement of the witness as to the first arrest was unlawful and should not have been made. The court overruled the motion for a mistrial and instructed the jury that they should not consider the statement made by the witness that defendant had been arrested for an alleged crime before this offense is alleged to have been committed, and charged them that they should give no consideration to that statement.
Counsel for appellant insists that there was reversible error in the refusal of the court to grant a mistrial on account of the injection into the evidence of the fact of a former arrest of the defendant. We observe however that the former arrest came out incidentally, not in response to a question which directly called for it, and was by reason of an objection made by defendant's counsel that the so-called known finger prints of the defendant had not been shown to be his. The witness was merely stating the occasion when said so-called known finger prints were made. It is our view that evidence of that kind is merely incidental to the matter of the taking of his finger prints and showing the occasion for doing so, tending to show the identity of defendant with the finger prints then taken. The taking of defendant's finger prints at a certain time without any explanation for doing so would cast a reflection upon the fact that they were actually the finger prints of the defendant. But whether so or not, the State's counsel in one instance requested that such evidence be excluded and it was excluded. In another instance, the court excluded such testimony without the same being withdrawn by the State's counsel. In doing so the court was careful to instruct the jury that they should not consider the statement the witness made with respect to a former arrest of the defendant. It is our view there could be no prejudice resulting to him on account of that state of the record.
During the examination of the coroner, he was asked with reference to an alleged confession by defendant to him and, in detailing that confession, he stated that defendant shot the deceased with a thirty-two rifle, and that he and another boy had tried to hold up two more men before that and that he got away. Defendant's counsel objected to that statement of the witness and the solicitor immediately requested that "it go out as evidence" in the case, and stated to the witness to get down to the occasion of the defendant shooting John Harden, the deceased. Thereupon, defendant's counsel made a motion for a mistrial on the ground that it tended to inflame the minds of the jury. This motion was overruled, and defendant excepted. The witness then stated that the defendant told him that he hid the rifle down by the bedding factory and went over to the freight lines and saw Mr. Harden sitting in a rocking chair and asked him the way to Bessemer; that Mr. Harden showed him the way to Bessemer; and then he proceeded to tell how he shot Mr. Harden.
*566 It is our view that there was no prejudicial error shown in this respect. Any reference to a former crime was immediately excluded, and we think it was not sufficient to justify a mistrial.
There were several confessions introduced in evidence upon proper preliminary proof being made that they were voluntary, some of them were in writing and some were verbal. Some of them contained a written statement of the questions to him and the answers given in respect to his conduct on the night when the deceased was killed. Being asked in detail as to what he did immediately preceding the shooting of the deceased, the following questions and answers were given:
"Q. About what time of night was that? A. Nine o'clock, somewhere around that.
At this point the defendant's counsel objected to the last statement of the witness contained in said confession on the ground that it was not a part of the res gestae of the alleged offense on trial, and merely introduced to inflame the minds of the jury. The State's counsel responded by observing that he was reading the whole confession as it appeared. The court overruled the objection, with defendant's counsel excepting. Continuing with the confession, the State's counsel read as follows:
"Q. In your best judgment, you did not hit him? A. No, sir.
"Q. What time was that? A. Along about twelve o'clock.
"Q. What did you do then? A. Went to the transfer place?" (That was the place where the deceased was killed. The confession then proceeded to give the details given by defendant as to what occurred at that place and the fact of his killing the deceased.)
All the features of a confession are not necessarily admissible even though it is voluntary. We think a good statement of the rule is that if the confession indicates that accused has committed a separate offense it should be excluded by the court if its separation is possible, leaving the balance intelligible, unless it tends directly to prove accused guilty of the crime charged, or the motive for its commission, or where such part tends to explain the remaining portion of the confession. 22 Corpus Juris Secundum, § 820, p. 1441; Martinez v. State, 138 Tex.Cr.R. 51, 134 S.W.2d 276; Coomer v. State, 97 Tex.Cr. R. 100, 260 S.W. 568; People v. Rejno, 402 Ill. 84, 83 N.E.2d 327; Commonwealth v. Parker, 294 Pa. 144, 143 A. 904; People v. Hurry, 385 Ill. 486, 492, 52 N.E.2d 173, 176; Hall v. State, 247 Ala. 263, 24 So. 2d 20; Davis v. State, 168 Ala. 53, 52 So. 939; Smith v. State, 88 Ala. 73, 7 So. 52.
It is our view that what we have stated as a part of the confession made by defendant, that he shot at the boy one time when he ran, is so immediately connected with the circumstances of the shooting of the deceased with the same rifle that it is but an incident leading up to the occurrence itself. It is a statement made by the defendant himself and shows that at the time he was in a reckless, dangerous, malicious mood, and that was immediately preceding the killing of the deceased.
We have given careful consideration to the entire record in this case and have treated the matters discussed in brief for appellant. We find the record free from any effort to inflame the jury against the defendant or unduly prejudice them in any respect. The charge of the court was full and complete. There is no exception to it, and there were no charges requested by the *567 defendant. There was no motion for a new trial made by defendant.
The record shows that all the requirements of the law and Constitution were observed and that defendant was represented by counsel of his own choice. The evidence was all carefully brought out in a legal manner. We find nothing prejudicial to the rights of appellant. It is therefore necessary to affirm the judgment of conviction. The time having expired when the execution of the judgment was required to be performed, it is necessary for us to set a new day for the electrocution of appellant. We therefore set July 21, 1950, as the date for execution.
Affirmed.
BROWN, LIVINGSTON, LAWSON, SIMPSON and STAKELY, JJ., concur. | June 1, 1950 |
bd09a526-3816-453a-88d7-8efdcd492f8c | Alabama Great Southern R. Co. v. Russell | 48 So. 2d 252 | N/A | Alabama | Alabama Supreme Court | 48 So. 2d 252 (1950)
ALABAMA GREAT SOUTHERN R. CO.
v.
Charles RUSSELL.
6 Div. 79.
Supreme Court of Alabama.
June 22, 1950.
Rehearing Denied November 2, 1950.
James J. Mayfield and Francis A. Massa, of Tuscaloosa, for petitioner.
Benners, Burr, Stokely & McKamy, of Birmingham, and Jones, Dominick & McEachin and Liston C. Bell, of Tuscaloosa, opposed.
SIMPSON, Justice.
Petition of Charles Russell for certiorari to the Court of Appeals to review and revise the judgment and decision of that Court, after remandment, in the case of Alabama Great Southern R. Co. v. Russell, Ala.App., 48 So. 2d 239, and motion by appellant to strike the petition.
Motion to strike overruled; writ denied.
FOSTER, LIVINGSTON and STAKELY, JJ., concur. | June 22, 1950 |
b8668d16-2beb-4cbb-bdae-9fa6ce555433 | Hamilton Motor Co. v. Cooner | 47 So. 2d 270 | N/A | Alabama | Alabama Supreme Court | 47 So. 2d 270 (1950)
HAMILTON MOTOR CO. et al.
v.
COONER.
6 Div. 982.
Supreme Court of Alabama.
June 22, 1950.
Rehearing Denied November 2, 1950.
*271 London & Yancey, Geo. W. Yancey, and Frank E. Lankford, all of Birmingham, for appellant.
Powell & MacLaurin and Bankhead, Skinner & Kilgore, all of Jasper, for appellee.
STAKELY, Justice.
This is a petition for certiorari to review the judgment of the lower court awarding compensation under the Workmen's Compensation Act, Code 1940, Tit. 26, §§ 253-325, to the widow and dependent children of Grady Cooner, deceased.
Grady Cooner met his death on June 15, 1948, at 5:25 p.m. in an automobile accident on Alabama Highway 78 approximately 1¼ miles east of Jasper, Alabama. The question for decision is whether the death of Grady Cooner arose out of and in the course of his employment.
Grady Cooner was employed by the defendant Hamilton Motor Company, a partnership of which Lee Hamilton was one of the partners. Grady Cooner worked as a mechanic in the shop which was located in Jasper, Alabama, and had worked for the defendant for about ten years prior to the time of the accident. During that time he was employed to do mechanical work and help on any other work for the advancement *272 of the company's business. He worked as a mechanic, servicing cars, pulling in wrecks from the highway to defendant's place of business, working sometime at night, sometime overtime and on the day of the accident and prior thereto he had assisted in digging the pit and fixing pipes where a grease rack was being installed by the defendant company.
The completion of the installation of the grease rack required the pouring, mixing and coloring the concrete. This work was commenced late on the evening of June 15, 1948 and required working late in the night as the concrete had to be worked while wet and before it hardened. Charlie Sisk, who was a mechanic for the defendant company, had been working on this grease lift from time to time. On the evening of the accident John H. Sampson had been employed by the defendant to pour and work the concrete for the defendant company. Lee Hamilton, who has been referred to, requested Charlie Sisk to stay, if he would and could, to help finish the concrete job. Sisk replied that his wife would be expecting him in a few minutes. Lee Hamilton knew that the wife of Charlie Sisk was not in good health at the time. Charlie Sisk lived near Cordova, Alabama, about eight miles east from Jasper. Charlie Sisk told Lee Hamilton that he (Sisk) or someone else would have to get word to his wife. Lee Hamilton made no reply to this statement. However, Charlie Sisk in the presence and hearing of Lee Hamilton asked S. B. Whatley, an employee of the defendant company, to notify his wife that he would be late getting home. For some reason S. B. Whatley could not go to notify the wife of Charlie Sisk. In the presence of Lee Hamilton, Charlie Sisk stated that he (Sisk) had "to stay there and finish the job." It was necessary for him to do this work immediately helping mix the concrete and color it and finish the floor of the rack and this had to go on before the cement set up and got hard. It was necessary for it to be done immediately as fast as it got ready to be done.
At about five o'clock Grady Cooner came to Charlie Sisk and told him that he would go to notify his wife. Thereupon Charlie Sisk pitched him his (Sisk's) car keys and Grady Cooner got into Sisk's car and left on the mission to notify Sisk's wife at Cordova. There is testimony tending to show that the working hours of the company were from 7 a.m. to 5:30 p.m. and that Grady Cooner had not checked out for the day. There is testimony that Grady Cooner was killed in an accident which happened at 5:25 p.m.
Both Lee Hamilton and Charlie Sisk testified that Grady Cooner before leaving to go to Cordova asked Lee Hamilton if he wanted him (Cooner) to stay and help with the concrete and Hamilton replied, "Much obliged, Grady, Charlie is going to stay." According to the testimony of Lee Hamilton he did not know that Grady Cooner had gone to Cordova. At this time Grady Cooner had changed from his work clothes to his street clothes when he left on the mission to notify Sisk's wife. Lee Hamilton further testified that he did not personally send Grady Cooner on this mission. However, the evidence shows that Lee Hamilton told Charlie Sisk that he wanted him to stay after the usual working hours to work on the grease lift that was being installed if he could and would and Charlie Sisk replied that his wife should be notified and he told Lee Hamilton "It looks like I will have to knock off and run down and tell my wife that I will be working late." In the conversation between Charlie Sisk and Lee Hamilton relating to going to Cordova to notify the wife of Charlie Sisk or getting someone to go for him Lee Hamilton made no reply to Charlie Sisk about this.
The grease rack being worked on occupied a space of 35 to 40 feet square. The parties supervising the installation and work on the same were John H. Sampson, a concrete finisher, Charlie Sisk, who was entrusted with supervising the mixing of the concrete with the color finish to be placed on the floor of the grease rack, which had to be worked simultaneously with the pouring of the concrete, and Lee Hamilton, a partner of the defendant company. All of the conversations relating to the trip to Cordova took place within the foregoing area about 5:00 p.m. Lee Hamilton was present and according to S. B. Whatley's testimony *273 within eight feet of him and was standing between Whatley and Sisk when Sisk requested Whatley to go and make the trip to Cordova, although Hamilton testified that he did not hear the conversation. Charlie Sisk was working on the grease rack when Grady Cooner came and got the car keys in order to make the trip to Cordova and Lee Hamilton was present, although according to his testimony he did not see or hear what transpired.
At the time of the accident Grady Cooner was travelling the direct route over the highway to Charlie Sisk's home to perform the mission of notifying Charlie Sisk's wife that her husband was working late for the company.
We quote the following excerpts from the testimony of S. B. Whatley, an employee of the defendant company, with reference to the employment of Charlie Sisk.
"Q. Who had charge of building the lift? A. Charlie Sisk.
"Q. Did he supervise the building of it? A. That's it; he pushed that project; so far as I know he did supervise it.
"Q. You know he was a mechanic and when it came to that lift he did the work himself? A. Specifically assigned to work that project.
"Q. What did you hear him, Mr. Hamilton, tell him? A. Stay right on the job until it is finished."
We quote the following excerpt from the testimony of Lee Hamilton:
"Q. Mr. Cooner came up to you and made some inquiry, I believe you said, about whether you wanted him to stay, is that right? A. Yes, sir.
"Q. Did he go on to say whether you wanted him to help with the concrete? A. He calls me LeeLee and Grady; said `Lee, do you want me to stay and help you finish this concrete work?'
"Q. What did you say? A. I said, `No, Grady, much obliged, Charlie is going to stay.'
"Q. Charlie Sisk? A. Yes, sir.
"Q. When you replied to Mr. Cooner you knew Charlie Sisk was going to stay on the job. A. I did not know definitely he was going to stay; he indicated he would.
"Q. You assumed he would? A. Yes.
"Q. At that time Charlie Sisk had told you he or someone would have to notify his wife he was going to stay and work? A. Yes, sir.
"Q. You knew that was the case? A. Yes, sir.
"Q. You knew Sisk or someone for him would have to notify his wife if he stayed and worked overtime? A. That's what he told me.
"Q. When he told you that, after he told you that, you told Mr. Cooner, `Charlie is going to stay tonight.' A. Yes, sir.
"Q. Mr. Sisk would stay? A. Mr. Sisk would stay."
There is no doubt that at the time of his death Grady Cooner was performing a service for his employer. It was to keep an essential man on the job to perform a necessary service in working and coloring the concrete being poured while setting and before it hardened. While the defendant company did not need Grady Cooner's services for working on the concrete lift in pouring concrete, it did need his services or the services of someone to perform the act of notifying Sisk's wife. This service enabled the company to complete the emergency job after the usual working hours by keeping Charlie Sisk on the job to do the special work required by the company. This special work could not be delayed once the pouring of the concrete was commenced and Sisk was certainly needed for the purpose. In fact according to the proof this work continued until well into the early hours of the next morning. The court found that the act of Grady Cooner in going to notify Charlie Sisk's wife was expressly authorized by Sisk and impliedly authorized, acquiesced in and accepted by the defendant company. The court found that the trip by Grady Cooner was in the company's interest and the making of the trip by Grady Cooner was reasonably related *274 to his employer's business or work. The court found that Grady Cooner was engaged in an act of service naturally related to the company's business and that Grady Cooner by making this trip to Cordova did not take himself out of the scope of his employment as he was performing an act necessary to be done by someone for his employer and was either doing the work or performing a service he was engaged to do or perform.
When there is any legal evidence to support the findings of fact by the trial court in a proceeding of this kind, such findings are conclusive and will not be disturbed by the appellate court. Nor will such findings be disturbed because of mistakes made by the trial court in passing upon the weight of the evidence. But if the findings are not supported by any legal evidence, then such finding cannot be a basis for a judgment awarding compensation under the Workmen's Compensation Act. A total lack of evidence on the trial to support the finding of a material fact becomes a question of law which the appellate court will review. Woodward Iron Co. v. Dean, 217 Ala. 530, 117 So. 52, 60 A.L.R. 536; Ex parte Big Four Mining Co., 213 Ala. 305, 104 So. 764; Bryant v. Central Foundry Co., 217 Ala. 332, 116 So. 345.
This court has often pointed out that the Workmen's Compensation Act, being remedial in nature, should be given a liberal construction to accomplish its beneficent purposes. Sloss-Sheffield Steel & Iron Co. v. Nations, 236 Ala. 571, 183 So. 871, 119 A.L.R. 1403; Swift & Co. v. Rolling, 252 Ala. 536, 42 So. 2d 6; Ex parte Terry, 211 Ala. 418, 100 So. 768. And we have further held that the act must be liberally construed and all reasonable doubt resolved in favor of the employee. National Cast Iron Pipe Co. v. Higginbotham, 216 Ala. 129, 112 So. 734; Mobile Liners v. McConnell, 220 Ala. 562, 126 So. 626. Furthermore liberal statutory definitions of employer and employee control in incidents pertaining to workmen's compensation to the extent that they modify the common law governing master and servant. Sloss-Sheffield Steel & Iron Co. v. Crim, 219 Ala. 148, 121 So. 408; Martin v. Republic Steel Co., 226 Ala. 209, 146 So. 276.
The decisions of this court also show that an employee's injury arises out of and in the course of his employment when he is either doing the work or performing the services he was engaged to do or is engaged in an act or service naturally related thereto such as a reasonable judgment would refer to the express or implied elements of the contract of employment. Ex parte Majestic Coal Co., 208 Ala. 86, 93 So. 728; Ex parte Louisville & N. R. Co., 208 Ala. 216, 94 So. 289; Sloss-Sheffield Steel & Iron Co. v. Thomas, 220 Ala. 686, 127 So. 165; Ex parte Terry, supra. Furthermore whether the work was reasonably related to the employee's duties and whether done in good faith in furtherance of the employer's business are recognized tests of whether the resulting injury arose out of the employment. Vickers v. Alabama Power Co., 218 Ala. 107, 117 So. 650; Mobile Liners v. McConnell, supra. In Ex parte Majestic Coal Co., supra, this court said: "* * * What he was engaged in doing was for his master's benefit, and to push on his work. If a workman depart temporarily from his usual vocation to perform some act necessary to be done by some one for his master, he does not cease to be acting in the course of his employment. He is then acting for his master, not for himself. A rule of law which puts such an employe outside his usual course of employment, and so deprived him of his right to compensation for an injury suffered, would punish energy and loyalty and helpfulness and promote sloth and inactivity in employes. * * * The rule would be impractical. One trade must occasionally overlap another, if the work is to go on expeditiously and productively." [208 Ala. 86, 93 So. 730.]
There is testimony in the case tending to show that the decedent had never checked out and that his regular working hours were not at an end when he met his untimely death. The bookkeeper Curtis E. Flatt testified that according to his knowledge the time card of Grady Cooner had *275 not been punched so as to show that Grady Cooner had checked out. However, there are cases in which compensation has been allowed even though working hours had not begun or had ended. For example we note the following: Barnett v. Britling Cafeteria Co., 225 Ala. 462, 143 So. 813, 85 A.L.R. 85; Benoit Coal Mining Co. v. Moore, 215 Ala. 220, 221, 109 So. 878; Jett v. Turner, 215 Ala. 352, 110 So. 702.
It is agued that the act of Grady Cooner in driving the car at the time of his death was a voluntary act and beyond the scope of his employment. The evidence tends to show, however, that the act was done with the knowledge and acquiescence of his employer. In Republic Iron & Steel Co. v. Quinton, 194 Ala. 126, 69 So. 604, 606, this court affirmed a judgment for the plaintiff in a case involving a situation where an employee of a mine was killed while aiding in work outside of his regular employment and when it appeared that the superior in charge tacitly accepted the service of the employee. This court among other things said:
"Some of the testimony indicates that he was there for several minutes, and that he had hold of some of the timbers before he handled the wire. It was open to the jury to reasonably infer either that Lang heard Vandiver order the intestate to remain and assist, or [also] that he knew he was present and engaged in assisting, and hence that Lang tacitly assented thereto; and they might have so found in spite of Lang's denial of such knowledge.
"It is obvious that, if Lang tacitly accepted the service of the intestate in this behalf, though it was foreign to his regular employment, such service was authorized in a legal sense, and the intestate was thereby brought within the protection of those rules of law which shelter servants against the negligence of their master."
The foregoing case was an action at common law. Certainly under the Workmen's Compensation Act the principle would be no less favorable to the employee.
In Sloss-Sheffield Steel & Iron Co. v. Jones, 220 Ala. 10, 123 So. 201, this court said: "The evidence has been carefully read by the court in consultation, and we find no testimony justifying any reasonable inference therefrom that his change of work from that of mule driver to trammer was authorized either expressly or impliedly or was with the knowledge or consent or acquiescence of anyone in charge of the work at defendant's mine, * * *."
A similar case is Bullard v. Cullman Heading Co., 220 Ala. 143, 124 So. 200, 201, in which this court said that the defendant would not be accountable "if the service plaintiff was performing at the time of the injury was outside the scope of his employment, or was not directed or acquiesced in by a representative of the defendant authorized to control such service." See also Southern Cotton Oil Co. v. Bruce, 249 Ala. 675, 32 So. 2d 666.
Upon consideration of the matter we do not think it necessary to pass upon the authority of Charlie Sisk with reference to the trip of Grady Cooner to Cordova as we think that under all the facts and circumstances in the case in the light of the foregoing decisions in this court, Grady Cooner was acting within the course of his employment when he met his untimely end.
It is insisted by the petitioner that the testimony of Mrs. Grady Cooner shows that she had received the sum of $500 in settlement of her claim for damages against the Missala Bus Lines, whose bus it was that collided with the automobile driven by Grady Cooner resulting in his death. It is claimed that under § 312, Title 26, Code of 1940, credit for this amount should have been given by the court on the amount awarded as compensation. It does not appear from our examination of the record that this question was raised either on the trial of the cause or by a motion to set aside the award for excessiveness after the trial court had acted. Since the trial court should have had an opportunity to pass on the question, we will not put the court in error in this regard. We do not think that the petitioner can raise this question for the first time on this appeal. W. T. Rawleigh Co. v. Hannon, 32 Ala. *276 App. 147, 22 So. 2d 603; Central of Georgia Railway Co. v. Chambers, 197 Ala. 93, 72 So. 351; North Carolina Mut. Life Ins. Co. v. Terrell, 227 Ala. 410, 150 So. 318, 89 A.L.R. 1459; Southern Cement Co. v. Walthall, 217 Ala. 645, 117 So. 17; Birmingham Clay Products Co. v. White, 226 Ala. 89, 145 So. 668.
The judgment of the lower court is affirmed.
Affirmed.
FOSTER, LIVINGSTON and SIMPSON, JJ., concur. | June 22, 1950 |
d35e98d6-1960-431f-8325-6dd0900ff494 | Hillard v. City of Mobile | 47 So. 2d 162 | N/A | Alabama | Alabama Supreme Court | 47 So. 2d 162 (1950)
HILLARD
v.
CITY OF MOBILE et al.
1 Div. 420.
Supreme Court of Alabama.
June 15, 1950.
*163 Groves C. Hillard, of Mobile, pro se.
Harry Seale, of Mobile, for appellees.
LIVINGSTON, Justice.
This suit was instituted in the Circuit Court, in Equity, of Mobile County, Alabama, by Groves C. Hillard. He alleges that he is a resident of the City of Mobile, a home owner, owner of real and personal property subject to taxation in said city, a taxpayer, a water user from the waterworks system of Mobile, and the owner and holder of one of the general refunding bonds of the City of Mobile due on January 1, 1956; and that he brings this suit in his own behalf and on the behalf of every other holder or holders of any of the general refunding bonds or other outstanding bonds of the City of Mobile.
Respondents are the City of Mobile, a municipal corporation, Charles A. Baumhauer, J. R. Mitternight and E. M. Megginson, as members of the Board of Commissioners of the City of Mobile, the Water Works Board of the City of Mobile, a public corporation, B. S. Butler, Armistead *164 Leake and H. C. Slaton, as directors of the Water Works Board of the City of Mobile.
The pleadings are rather voluminous, but the real purpose of the litigation is to test the validity of the actions and proceedings of the respondents in their efforts to secure and maintain an adequate water supply for the City of Mobile, its inhabitants, business enterprises and industries. Specifically, the bill of complaint seeks to enjoin the Water Works Board of the City of Mobile and the City of Mobile from entering into a proposed contract between the board and the city in respect to a water supply; to test the Water Works Board's authority or power to acquire property by eminent domain; to test the authority or power of the board to issue securities which are exempt from all taxation under the laws of the State of Alabama; and to determine whether the property acquired by the board is exempt from ad valorem taxation under the laws of Alabama. The bill prays for general relief.
The cause was submitted to the court below under an agreement of the parties as to the time and place of submission, and the manner or method of the examination of witnesses. The trial court made and entered a special finding of facts and law in the cause and denied the prayer for an injunction.
For a clear understanding of this opinion we think the following undisputed facts should be here noted.
The Water Works Board of the City of Mobile is a public corporation organized under and by virtue of the provisions of Chapter 7, Article 5, sections 394-402, Title 37, Code of 1940. And in the case of Water Works Board of City of Mobile v. City of Mobile, Ala.Sup., 43 So. 2d 409, we held that said board was validly organized.
For brevity we will hereinafter refer to the Water Works Board of the City of Mobile as the Board, and the City of Mobile as the City.
On account of its growth and expansion within the last decade, Mobile has outgrown its presently existing water works system and source of supply. Although the City is still below or within its constitutional debt limits, the amount necessary to acquire or construct a water works system to adequately meet the present and future needs of the City would create debts over or beyond said constitutional debt limits.
On February 27, 1950, the Board adopted a resolution authorizing the issuance of revenue bonds for the purpose of acquiring lands and to do all things necessary for the construction of an adequate system for supplying water to the City of Mobile, including the execution of a deed of trust or mortgage as additional security for the payment of said revenue bonds. On the same day the Board adopted a resolution authorizing the execution of a contract with the City for water supply. On March 1, 1950, the Board, under the provisions of section 169 et seq., Title 7, Code of 1940, instituted validation proceedings in the Circuit Court, in Equity, of Mobile County, for the purpose of validating said revenue bonds and all proceedings had or taken in connection therewith including all covenants and provisions contained in the resolutions above referred to. On March 22, 1950, the court rendered its decree validating the revenue bonds, covenants, contracts, etc.
On April 11, 1950, the City adopted a resolution authorizing the execution of the contract with the Board for a water supply as contained in the Board's resolution of February 27, 1950, but with certain specified changes therein. By resolution of April 12, 1950, the Board approved said changes. Thereafter still other changes were made in the contract, which changes were approved on May 10, 1950 by resolution of both the City and the Board. On May 10, 1950, the validation decree of March 22, 1950 was, on motion of the Board, amended to reflect these changes.
It seems to be assumed by appellant in argument that if the validation decree of March 22, 1950 could not be amended in material aspects on May 10, 1950, because more than thirty days had elapsed from its rendition and the court had thereby lost jurisdiction, then the amended bonds, deed of trust, contracts, etc., were themselves invalid. The assumption is fallacious.
*165 In the first place, a validation proceeding under section 169 et seq., supra, is purely discretionary, and does nothing more than foreclose further inquiry into the questions decided, except by an appeal perfected within the time provided by the statute. In other words, such proceeding sets up a statutory estoppel "as to the validity of such obligations against the unit issuing them, and against all taxpayers and citizens thereof, and the validity" of such obligations or of the tax or other means provided for their payment." MacMahon v. Baumhauer, 234 Ala. 482, 175 So. 299, 304. Such a proceeding does not foreclose changes as such. The changed bonds, contracts, etc., may not have the protection of the validation decree, but they are not invalid because of the lack of such protection. We lay to one side then the effect of the amendment of the validation decree and proceed to a determination of the validity of the bonds, indentures, contracts, etc., as amended.
This appeal presents for review only such questions as were raised by assignments of error and insisted upon in brief. 2 Ala.Dig., Appeal and Error, 1075, 1079. Assignments not argued in brief are considered waived and are not here considered.
It is argued that the proposed contract, as last amended, between the City and the Board for a supply of raw water is violative of sections 22, 222 and 225 of the Constitution of Alabama of 1901. The alleged prohibited provisions are contained in sections 4, 11 and 12 of the contract as last amended, and read as follows:
"4. For the period commencing on the first day of the month following completion of the Industrial Water System in accordance with said plans and specifications, such date to be not later than March 1, 1952, and ending on the date of the final payment in full of the Industrial Water Revenue Bonds issued by the Board in connection with the construction of said Water System, the Board agrees to meet the City's requirements for raw water to the extent of 25,000,000 gallons per day and for such water the City agrees to pay at the rate of $288,000 per year, payable in monthly installments of $19,000 on or before the 15th day of each month, subject to the provisions of Paragraph 6 hereof.
"The Board warrants that it has entered into two contracts one with Lock Joint Pipe Company, a corporation, for manufacturing the pipe, and one with Carruth Pipe Corporation, for laying pipe, each of said contracts requiring completion of the work prior to July 1, 1951, and each of said contracts providing for liquidated damages of $200.00 for each day of delay over the time fixed in the contract, and the Board covenants that in any contracts to be let in the future for building the power and pumping station, and in the contract for constructing the dam, spillways, etc., it will require payment of liquidated damages, and will fix such damages at $200.00 per day until December 31, 1951, and thereafter the liquidated damages will be fixed at $400.00 per day.
"The Board is advised by the Consulting Engineers that water should be ready for delivery to contract customers during the month of September, 1951, and in no event later than January 1, 1952.
"The Board covenants and agrees that it will begin delivery of water to the City on or before February 28, 1952, and agrees to exercise diligence in completing the project.
"The Board covenants that any sums paid to it under any of the construction contracts as liquidated damages, and referred to above, will be paid by the Board into the Revenue Fund created under section 502 of the Indenture."
"11. In consideration of the services to be rendered by the Board to the City under the provisions of this contract, including the maintenance at all times of an adequate supply of water for the City's fire hydrants and the maintenance of a reserve supply of ten million gallons as provided in paragraph 5 hereof, and also in consideration of the credits to be received by the City under the provisions of paragraph 12 of this contract, the City agrees that, if on any June 1st or December 1st the total amount on deposit to the credit of the Bond Service Account and the Reserve Account (Special accounts created under the provisions *166 of section 506 of the Indenture) shall be less than the principal and interest requirements, as defined in the Indenture, for the ensuing twelve (12) months, the City will advance to the Board on or before the 20th day of such month, a sum sufficient to make up such deficiency; provided, however, that the City shall not make any such advance if it shall then be in default in the payment of the interest on or the principal of any bonds of the City which are now outstanding or any bonds issued to refund the same or in making any deposits to the credit of the interest and sinking funds for such outstanding bonds or any bonds issued to refund the same. Advances made by the City under the requirements of this paragraph are hereinafter referred to as `Advance Payments' for which the City is entitled to repayment in the manner provided in paragraph 12 hereof.
"12. If in any calendar month after completion of the System and while there shall exist no event or default as defined in section 802 of the Indenture, there shall exist in the Bond Fund, above described, amounts in excess of the aggregate amounts referred to in paragraph 11, together with the amount required by the Consulting Engineers for the Reserve Maintenance Fund as set forth in section 506, subsection (c) of the Indenture, then and in such event such excess funds shall constitute excess reserve funds. So long as there remain any Advance Payments for which the City has not already been reimbursed, such excess reserve funds may be used to reduce or eliminate, as the case may be, the obligation of the City to make payment for water to be used during the ensuing month."
Paragraph 6 of the proposed contract, referred to in paragraph 4, is as follows:
"6. In the event the water used by industrial customers and customers other than the City of Mobile produces revenue, which when added to the revenues to be paid to the Board by the City under paragraph 4 of this Contract, are in excess of a sum sufficient to pay for the ensuing fiscal year all operating and maintenance (including reserve maintenance) costs and all Principal and Interest Requirements as defined in section 101(f) of the Indenture securing the bonds of the Board then, and to that extent of such excess, the City, subject to any prior right of an industrial underwriting customer to reduce its minimum use of water as provided in its contract with said Board, may reduce the above mentioned minimum of 25,000,000 gallons and such reduction shall continue to the extent of such excess as long as the excess exists, provided that in no case shall the minimum be less than 20,000,000 gallons daily and the amount payable by the City to the Board under said paragraphs shall be decreased in proportion to such reduction, and provided further that no such reduction shall be made unless the amount then to the credit of the Reserve Account shall be not less than the requirement therefor under the provisions of section 506(b) of the Indenture."
Stripped of all surplusage, under the terms of the proposed contract between the Board and the City, the Board agrees to furnish the City with a sufficient volume of raw water to adequately meet the City's present and future requirements, including a standby volume to meet emergencies. The City agrees to pay therefor the amount named in the contract, and at the times and in the manner provided therein.
In the absence of a showing to the contrary, we assume, of course, that the City of Mobile has the ordinary public powers which are conferred on municipal corporations. "Nothing is more important, as a sanitary and police regulation, than an abundant supply of water. Its uses are too well known to require notice here." Intendant & Town Council of City of Livingston v. Pippin, 31 Ala. 542.
A supply of water for the extinguishment of fires and other ordinary public uses is one of the necessities of a city, and under its general authority the City of Mobile had and has the power to make a proper contract for such supply. Our cases are conclusive to the effect that the corporate authorities are entrusted with the discretion to determine how a water supply can best be obtained, and if they find it to the best public interest to enter into contracts carefully guarded for the accomplishment of that end they have a *167 right to do so. Livingston v. Pippin, supra; City of Greenville v. Greenville Water Works Co., 125 Ala. 625, 27 So. 764; Weller v. Gadsden, 141 Ala. 642, 37 So. 682, 3 Ann.Cas. 981; City of Gadsden v. Mitchell, 145 Ala. 137, 40 So. 557, 6 L.R.A., N.S., 781, 117 Ann.St.Rep. 20.
Appellant's argument is, in substance, that a contract calling for future periodical payments creates a debt of the city in violation of sections 222 and 225 of the Constitution of 1901. In a few states the rule has been adopted that, as soon as such a contract is entered into indebtedness to the amount of the aggregate future payments is deemed to be incurred, irrespective of any condition connected with the furnishing of the water. See, Dillon on Municipal Corporations (5th Ed.) p. 359, section 196. But the same section of that authority also states that:
"But the weight of authority and, as to think, reason also favor a more liberal construction of the constitutional limitations upon the power to incur indebtedness. Municipal contracts calling for future payments extending over a series of years usually relate to water, light, or some other municipal matter which is regarded as of prime or vital importance to the inhabitants. If the municipality has already reached its constitutional limit of indebtedness, it is obviously debarred from purchasing or establishing a plant of its own, and is forced to contract with some corporation or individual that is willing to incur the large expense necessary in erecting works upon the faith of the city paying annual rentals or other stipulated compensation. A construction, therefore, of these provisions which will debar the city from entering into a contract covering a period of years by making the aggregate amount to be earned and to be paid thereunder immediate indebtedness of the city, would be disastrous to the city's interest; and a city which has already reached the constitutional limit of indebtedness or whose indebtedness closely approaches that limit, would be as effectually debarred from making such a contract as it is from purchasing or contracting for the construction of works of its own. The courts have therefore recognized a distinction between a debt in the sense of the Constitution, and a contract for a future indebtedness to be incurred upon the performance by the contracting party of the agreement out of which a debt may arise. They also recognize a distinction between the latter case and one where an absolute debt is created at once, as by the issue of bonds for the erection of a public improvement, though such debt is payable in the future by installments. In the one case the indebtedness is not considered to be created until the consideration has been furnished; in the other the debt is created at once, the time of payment only being postponed. The courts, therefore, have generally held that contracts by municipalities for a supply of water, light, or other like necessary by which the municipality binds itself for the payment of an annual rental or other periodical consideration for the water or light furnished, do not create indebtedness until the property contracted for has actually been furnished, and the municipality may contract to make such yearly or periodical payments notwithstanding that the aggregate of such payments during the stipulated life of the contract may exceed the amount of the indebtedness limited by the Constitution or by a charter provision. But it has been held that if the city has reached the full limit of its indebtedness, a contract calling for future payments on the property is void under the constitutional provision, if the city has no money in the treasury yielded by current taxation or otherwise to pay for the property either at the time when the contract was made or when the property was delivered and accepted, although there were sufficient funds on hand to pay for it at the time fixed by the contract for payment."
We think the foregoing quotation from Dillon on Municipal Corporations is a correct statement of the principles of law which have application here, so far as it goes, but our cases have gone further in its application to provide that each year is a fiscal unit for a county, or city, or even the state, and while such political corporation may anticipate and provide for its necessities for years to come and *168 make present contracts for them, it can only do so, without creating a debt, by making the amount of the same payable each year out of current revenues received for that year; otherwise it constitutes a debt within the meaning of our Constitution.
In construing the legal status of the present situation, we are content to approve it as not constituting a debt of the City of Mobile by construing it to mean, as we do, that payments for water to be delivered in future fiscal years under said contract are to be made only out of revenues which the City derives during that fiscal year. That legal status was first given effect in this State in the case of Brown v. Gay-Padgett Hardware Co., 188 Ala. 423, 66 So. 161. Since that time we have had numerous occasions to apply the principle. The latest is the Opinion of the Justices, 251 Ala. 91, 36 So. 2d 475.
Paragraph 11 of the contract between the City and the Board, under the terms of which the City contracts for a water supply to meet its normal demands occasioned by the growth of the City, and obtains a reserve supply to service all fire hydrants and to meet fire hazards, is a reasonable provision of a considered contract and is a valid obligation on the part of the City.
The provision of such paragraph that payments for such future supply and fire protection are not to be paid if revenues pledged by the City to meet the principal and interest and sinking fund requirements of outstanding bonds of the City are insufficient to meet such principal and interest and sinking fund requirements, is a provision to protect the priority of such outstanding bonds of the City, insofar as the payments required under paragraph 11 of said contract are concerned, and such provision does not create a debt of the City in violation of section 222 or 225 of the Constitution of the State of Alabama.
This view also answers the contention that the contract violates section 400 of Title 37, Code of 1940.
We are also of the opinion that the contract between the Board and the City is not violative of section 22 of the Constitution of Alabama. It does not impair the obligation of any contract with the existing bond holders of the City.
Section 398, Title 37, Code of 1940, as amended by the Acts of the Legislature of 1949, see Pocket Part, section 398, Title 37, specifically confers on the Board the power of eminent domain, and exempts the property and income of such corporation from all taxation in the State of Alabama.
Section 400, Title 37, Code of 1940, as amended by the Acts of the Legislature of 1949, see Pocket Part, section 400, Title 37, exempts all bonds of the Board, the income therefrom and all mortgages and other instruments executed as security therefor, from all taxation in the State of Alabama.
In our opinion, from the evidence, the City's needs are urgent, and, further, that the contract which it proposes to enter into with the Board for a supply of raw water is for the best public interest, and is one carefully guarded for the accomplishment of that end.
We have studiously considered all assignments of error argued in brief and find no error therein. The decree of the lower court is therefore affirmed in so far as it is affected by the foregoing discussion.
Affirmed.
BROWN, FOSTER, LAWSON, SIMPSON and STAKELY, JJ., concur. | June 15, 1950 |
7c2c78fc-c12f-4e11-85fb-54242f3c4c74 | Stephens v. Stephens | 45 So. 2d 153 | N/A | Alabama | Alabama Supreme Court | 45 So. 2d 153 (1950)
STEPHENS
v.
STEPHENS.
7 Div. 2.
Supreme Court of Alabama.
March 2, 1950.
A. R. Powell, Jr., of Andalusia, and W. T. Starnes, of Pell City, for appellant.
*154 Earl McBee, of Birmingham, and T. Eric Embry, of Birmingham, for appellee.
SIMPSON, Justice.
Bill in the nature of a bill of review to set aside a decree of the circuit court, in equity, of St. Clair County, which decree dissolved the bonds of matrimony existing between the parties to this cause and granted appellee, J. E. Stephens, a divorce from appellant, Edith C. Stephens, on the ground of adultery.
This is the second appeal. The first appeal, affirming a decree overruling demurrer to the bill, is reported as Stephens v. Stephens, 251 Ala. 431, 37 So. 2d 918. That case held, among other things, that since from its allegations the bill showed that in the proceedings leading up to divorce the appellant here, defendant in that proceeding, was duly represented by guardian ad litem appointed by the court, no collusion or conspiracy on the part of the guardian ad litem having been charged, it was not made to appear that the divorce decree was otherwise than binding in that regard, citing Cunningham v. Wood, 224 Ala. 288, 140 So. 351; Edmondson v. Jones, 204 Ala. 133, 85 So. 799.
Following that opinion and before issue joined and testimony taken, the appellant amended her original bill of complaint to the effect that when the testimony to support the bill for divorce was taken before the commissioner, no notice of the taking of such testimony was given to appellant's guardian ad litem; that the said guardian ad litem had no knowledge or notice that any testimony was to be taken, was not present before the commissioner when the same was taken, and received no notice of any kind of the submission of the cause for final decree, nor did he prepare or file any note of submission in the cause, and that the final decree was rendered on such testimony without the knowledge or consent of said guardian ad litem.
The amendment further averred that the said guardian ad litem had no opportunity to confer or discuss the said divorce proceedings with appellant, that he was not even acquainted with her location or place of residence, and that the testimony was taken two days after his notice of appointment as such official and at a time when the said Edith C. Stephens was a non compos mentis confined in Bryce Hospital, Tuscaloosa, Alabama, some 120 miles from the residence of the guardian ad litem and ninety-two miles from Pell City, Alabama, where the testimony was taken.
The concluding paragraph of the amendment makes the foregoing as a basis of the allegation that appellant had been denied her day in court and thus denied due process of law, as guaranteed by the constitutions of the state and of the United States.
The court sustained the demurrer to the bill as amended and proceeded to a hearing on the other aspect of the bill relating to other allegations of fraud noticed in the first opinion, and on final hearing concluded against the appellant on that issue.
The sustaining of the demurrer to the amended bill is assigned as error on this appeal and on a painstaking consideration of the record in connection with the governing authorities, we have concluded that the learned trial court was in error in this ruling.
The authorities are agreed that: "If the complainant was a non compos mentis when he was served with process in the suit for divorce, and when the cause was tried and the decree and orders therein were made and enrolled, the decree and orders are due to be set aside since it is confessed that he was not represented by guardian ad litem or general guardian. Cunningham v. Wood, 224 Ala. 288, 140 So. 351; Dawson v. Haygood, 235 Ala. 648, 180 So. 705." Farrell v. Farrell, 243 Ala. 389, 391, 10 So. 2d 153, 155.
And the same rule must necessarily apply where, though there has been a guardian ad litem appointed, his representation is ignored and the proceedings against his ward are thus transacted ex parte without notice to him.
The contrary ruling of the trial court on the question seems to have been rested on the understanding that the first Stephens Case, supra, was controlling to that result; that the added allegations were merely an elaboration of the original allegations as *155 regards the guardian ad litem's status in the case. But that is not the case, since the first decision was rested on the absence of allegations as regards the matter here considered and it was there pointed out that from aught appearing (construing the allegations most strongly against the pleader) the plaintiff here was "represented by a guardian ad litem appointed by the court", etc. [251 Ala. 431, 37 So. 2d 921] The amendment materially changed this allegation, the effect of which was that the defendant, a non compos mentis, was not represented by her duly appointed guardian ad litem, but to the contrary, the proceedings were transacted ex parte without his notice or knowledge and without having been given an opportunity to represent his ward by reason of the improper manner of the procedure. A strict mandate of the law was violated in not giving the requisite written notices to the appellant's attorney of record, her guardian ad litem, of the time and place of the examination of the witnesses, Equity Rule 55, Code 1940, Tit. 7 Appendix, and of the submission of the cause for final decree, Equity Rule 60, and from then on to conclusion the bill as amended shows that what might be termed side bar proceedings were transacted without notice or knowledge of the appellant's legal representative, culminating in the final decree of divorcement. Conceding these allegations to be true, as must be on demurrer, it would indeed be a reflection upon the judicial system and regrettable beyond measure should a tribunal of justice, to which litigants look for protection, be impotent to relieve from such alleged oppression. The authorities are clear that relief is available to one in such a circumstance, who is free from fault in the premises and has a meritorious defense.
A court of equity, as a general proposition, has the undoubted right to set aside a judgment or decree procured through either fraud, accident or mistake when the complaining party has a meritorious defense and is without fault in its rendition. 5 Pomeroy, Equity Jur., 2d Ed., 4670, § 2068.
So, whether the alleged omission to follow the law in the taking of the testimony, the submission of the cause and procurement of the decree, thus denying appellant her day in court and right to be heard, be termed constructive fraud, Cadick Milling Co. v. Merritt, 246 Ala. 175, 19 So. 2d 720; Cunningham v. Wood, 224 Ala. 288, 140 So. 251, or extrinsic mistake, Hanover Fire Ins. Co. v. Street, 228 Ala. 677, 154 So. 816; Olivera v. Grace, 19 Cal. 2d 570, 122 P.2d 564, 140 A.L.R. 1328, or just plain accident, the end result was the same and one which the equity court may undertake to correct if seasonably applied to. For cases from other jurisdictions see citations in 140 A.L.R. 1334.
We have not overlooked the general rule as announced in our cases that there must be actual fraudan intention to take advantageon the part of the person chargeable to authorize equity, generally, to set aside a concocted decree. Farrell v. Farrell, supra; Graves v. Brittingham, 209 Ala. 147, 95 So. 542; McDonald v. Pearson, 114 Ala. 630(5), 21 So. 534. But as regards decrees against persons non compos mentis, recent decisions of this court have not made an intention to defraud essential to relief, the determining criterion being whether the defendant was in fact non compos mentis and if so, and a judgment or decree has been rendered against him without guardian ad litem or general guardian, such judgment or decree is subject to be set aside as for fraud. Cadick Milling Co. v. Merritt, supra; Cunningham v. Wood, supra; Farrell v. Farrell, supra; Wilkerson v. Wilkerson, 230 Ala. 567, 161 So. 820. See also 5 Pomeroy Eq.Jur. (2d Ed.), § 2070, p. 4673; United States v. Throckmorton, 98 U.S. 61, 25 L. Ed. 93; 140 A.L.R. 1334; 44 C.J.S., Insane Persons, p. 326, § 151; 32 C.J. p. 790; 28 Am.Jur. 748, § 118.
The Street Case, supra, is very analogous, where it was held that the fraud, accident or mistake of the clerk in not performing the statutory duty of giving notice of the date of the trial of a case to the opposite party, and thus allowing the plaintiff to take a default judgment, was such as gave equity power to annul the judgment. The following observation is persuasive: "The law is a reasonable master. *156 In its procedure, it is orderly and consistent. In its administration, it neither requires nor expects litigants to distrust its sworn ministers. Nor will itobserving rules of consistencyimpute negligence to a suitor because he relied upon the law, and upon its faithful observance by officials charged with the duty of complying with its provisions." 228 Ala. 681, 154 So. 820.
Much the same rationale is here pertinent. The defendant in the divorce proceeding, Mrs. Stephens, through her legally constituted guardian ad litem, had the right to depend upon the fact that the law would be complied with in the transaction of the proceedings and that they would not be transacted without notice to the one responsible for her proper defense.
Another striking analogue to the factual situation in the present record is found in the Cadick Milling Co. Case, supra, where, though the defendant in judgment who brought the bill of review to have it annulled had, when the complaint was filed, interposed a defense by his duly appointed attorney, was non compos mentis when the amendment to the complaint was filed and when a judgment nil dicit was taken on the amendment. It was there held that this constituted such extrinsic fraud because of the incompetency of the defendant as allowed equity to annul the judgment, the court observing: "It is sufficient if the incapacity of the defendant prevented a fair adversary hearing [citing cases] provided the defendant had a meritorious defense. * * *" 246 Ala. 177-178, 19 So. 2d 721.
The grounds on which divorce decrees are subject to vacation and annulment are the same as those with respect to other decrees or judgments. First Stephens case, supra; Hooke v. Hooke, 247 Ala. 450, 25 So. 2d 33. And this court is committed to the general doctrine that if the fraud or mistake inhered in the very act of obtaining the judgment or decree, that is, extrinsic or collateral to the matter tried in the original case, that would be such a circumstance as to warrant equitable interference. It is "fraud in the management of the action or proceeding, and by which the complainant was prevented from properly presenting and establishing his cause of action or defense, which may be a ground for relief in equity." Hooper v. Peters Mineral Land Co., 210 Ala. 346, 348, 98 So. 6, 8. "* * * fraud has been regarded as extrinsic or collateral, within the meaning of the rule here under consideration, where it is one the effect of which prevents a party from having a trial or from presenting all of his case to the court, or where it operates upon matters pertaining, not to the judgment itself, but to the manner in which it is procured, so that there is not a fair submission of the controversy * * *" 31 Am.Jur. 231-232, § 654.
See also 3 Pomeroy Eq.Jur., 5th Ed., 608, 609, § 919B; United States v. Throckmorton, supra; Snyder v. Woolf, 232 Ala. 87, 166 So. 803; Wilkerson v. Wilkerson, supra; Farrell v. Farrell, supra.
We do not consider it necessary to cite further authorities since it seems so plain to us that the cases noticed above fully sustain our view that the case as alleged comes clearly within the governing rule and was not subject to the grounds of demurrer interposed. The taking of the testimony and procurement of the decree without notice to the appellant's legal representative was the same as if she had had no guardian ad litem and the end result of such proceedings was tantamount to a sentence of the court pronounced against a party without a hearing or giving an opportunity to be heard, and in effect could not be a judicial determination of her rights.
The foregoing conclusion makes it proper to pretermit consideration of the constitutional question of due process, as well as the other assignments of error.
Therefore, a decree will be here rendered overruling the demurrer to the bill as amended and a reversal will be ordered to the end that the plaintiff be permitted, which she was denied on trial, to take testimony on the issue tendered by the amendment.
Short of this main controversy is the contention of appellee that the plaintiff *157 is shown to be guilty of laches in her efforts by the bill to obtain relief. The authorities do not sustain such a position. She filed this bill soon after her release from the asylum and immediately after learning of the divorce decree. Nothing is shown to indicate any negligence or remissness on her part and as so far appearing, the doctrine of laches cannot be invoked to bar prosecution of the cause on the bill as amended. Miller v. Miller, 234 Ala. 453(2), 175 So. 284; Hatton v. Moseley, 229 Ala. 240, 156 So. 546.
One further proposition will be noticed. Motion was made here to dismiss the appeal on the ground that it had been abandoned or waived because during its pendency the appellant filed a petition with the trial court to have awarded to her the temporary custody of the parties' infant children, on the basis of which the court granted her petition. There is nothing in that procedure to indicate a waiver or abandonment of her right, if her claim be satisfactorily proven, to have the original divorce decree set aside. The question of the custody of infant children is not an adversary proceeding between parents in the eyes of the law, but is a matter within the peculiar discretion of the chancellor as to the welfare of wards of the court. He acts as parens patriae and any matter affecting their rights or interests are within his peculiar jurisdiction, and it is immaterial whether that jurisdiction is invoked by an independent suit or by petition in the same cause. Any pleading which shows upon its face that the welfare of an infant requires an order with respect to its custody or support is sufficient to that end. Scott v. Scott, 247 Ala. 598, 25 So. 2d 673; Ex parte Bates, 247 Ala. 391, 24 So. 2d 421.
Either party, therefore, regardless of any pending proceedings and without waiver of any rights, may properly seek a modification of an award as regards the temporary custody of infants. Ex parte White, 245 Ala. 212, 16 So. 2d 500. The motion to dismiss the appeal is therefore not well taken.
Motion to dismiss the appeal overruled, decree sustaining demurrer to the bill as amended reversed and one here rendered overruling demurrer, and cause remanded.
Motion overruled, demurrer overruled, and cause remanded.
BROWN, FOSTER, LIVINGSTON, LAWSON and STAKELY, JJ., concur. | March 2, 1950 |
f513e29c-ad75-4db9-af85-e505e1a399ea | Davis v. Davis | 51 So. 2d 876 | N/A | Alabama | Alabama Supreme Court | 51 So. 2d 876 (1951)
DAVIS
v.
DAVIS.
4 Div. 636.
Supreme Court of Alabama.
March 1, 1951.
Rehearing Denied April 26, 1951.
*878 Patterson & Patterson, of Phenix City, for appellant.
Smith & Smith, of Phenix City, for appellee.
SIMPSON, Justice.
This case is here to review a decree in a suit by the wife against the husband for divorce on the ground of cruelty, in which she prayed for alimony, solicitors' fees and the custody of their two-year-old daughter.
The husband defended on the ground that a prior divorce decree in the State of Georgia in favor of his wife against a former husband was void; that therefore she was not legally divorced from her former husband, could not legally have contracted marriage with defendant, on the basis of which, by answer and cross bill, he prayed for an annulment of his marriage, yet asking for the custody of the child, even though should the marriage be annulled it would, in legal effect, bastardize his own daughter.
The decree here to be reviewed seems to contain obvious inconsistencies. It did annul the marriage of the couple, which, as observed, in effect illegitimates the child. At the same time, however, the decree ordered the defendant to pay to his former wife $50 per week for the support of the child, under which status so far as we know the court was without authority to so order. There is no duty on the father in that regard except as expressly provided by statute.Law v. State, 238 Ala. 428(1), 191 So. 803; Lewis v. Crowell, 210 Ala. 199, 97 So. 691; Simmons v. Bull, 21 Ala. 501, 56 Am.Dec. 257.
The principal question relates to that phase of the decree annulling the marriage of the parties, since if error prevailed there the appellant's bill was well proven and entitled her to a divorce, alimony, solicitors' fees, etc., there being no countervailing evidence proffered by the defendant except on the issue of the custody of the child.
The conclusion of the lower court that the Georgia divorce decree had not dissolved the appellant's former marriage seems to be rested on the theory that, since twelve months residence in that state is requisite to giving the Georgia court jurisdiction, and the appellant was proven not to have been so domiciled for the required period, the decree of divorce was a nullity, and being so, the appellant could not have lawfully contracted marriage with appellee, a fortiori the annulment of the marriage of the present parties on the prayer of the cross bill was due to be ordered.
There are several reasons to our minds why this view of the case is erroneous, some of which will be mentioned.
As preliminary to the discussion, however, we should like to first refer to the general principle that the humane instincts of civilized society are against supercritical legal technicalities which would bastardize children and when a decree of divorce is rendered, another marriage contracted and children born, it is against public policy to vacate the decree if such an order would render innocent parties guilty of bigamy and their children illegitimate.Fairclough v. St. Amand, 217 Ala. 19, 114 So. 472; Karren v. Karren, 25 Utah 87, 69 P. 465, 60 L.R.A. 294. We therefore must approach a decision of the question with this declared public policy in mind and if the record is susceptible of two interpretations, the burden being on the appellee to establish the invalidity of the prior divorce, as well as the nullity of his own marriage, we will accept the interpretation which would sustain that public policy and the validity of the subsequent marriage, if at all plausible from the recorded proof.
The first reason the decree of annulment cannot stand is that under our late decisions the Georgia divorce decree is entitled to full faith and credit in our courts. The requisite residence of the plaintiff in the Georgia suit was properly alleged and the defendant entered a general appearance in the cause (the effect being to join issue on that allegation), *879 agreed to the submission of same at the appearance term of the court, and waived further notice of process. No actual fraud is claimed or appears to have been perpetrated on the court, nor was there any collusion between the parties to give it jurisdiction. The court assumed jurisdiction and decreed accordingly, making it proper that our courts, under our decisions, give full faith and credit to that Georgia decree.Mussey v. Mussey, 251 Ala. 439, 37 So. 2d 921; Ex parte Jones, 249 Ala. 386, 31 So. 2d 314.
It may be conceded that the view in this jurisdiction is somewhat more liberal with respect to giving full faith and credit to this character of foreign decree than pertains in several other jurisdictions, but the court has attained this view after full deliberation in order to place the marital status of parties relying on such decrees on a proper substratum of much desired certainty, so important to our body politic. See 118 A.L.R. 1525, 1526, for general discussion of the subject.
However, this first reason aside, though sufficient, there are some other vital impediments which throw doubt on the correctness of the decree under review in so far as it relates to the annulment of the marriage of this young couple. We will state two which are at once manifest.
One is, the facts presented by the record are not at all satisfactory in establishing that appellant was not domiciled in Georgia for the requisite statutory period so as to confer jurisdiction on the Georgia court to render the divorce decree. On this question of residence in Georgia, while it does appear that appellant may have given testimony regarding that status, some of which would be in conflict with the allegations of residence in her Georgia petition for divorce, she sought to explain this testimony and at one point gave testimony tending to show that she was in fact a resident of Georgia for the period required by the statute as predicate for jurisdiction of the Georgia court. Therefore, the record being susceptible of these two conflicting constructions, it will be the duty of the court to adopt that construction which would hold the Georgia decree valid in order to sustain our public policy heretofore adverted to. For analogy see Smith v. Gibson, 191 Ala. 305, 308, 68 So. 143; King v. Kent's Heirs, 29 Ala. 542, 554.
The other important circumstance to challenge the correctness of the decree of annulment is that the burden was on appellee to establish the truth of his charge that the woman he has lived with for three years and who bore him his child, whose status as his wife he now denies, was in fact the wife of a living undivorced husband when he married heror afterward, under our rule of common law marriages, during their cohabitation as husband and wife.Hall v. Hall, 139 App.Div. 120, 123 N.Y.S. 1056(1); 120 A.L.R. 830. This would be true even though the invalidity vel non of the Georgia divorce decree should be ruled in his favor. In his initial pleading he admitted the marriage and interposed a defense to his wife's divorce suit on other grounds and asked for relief essentially inconsistent with the idea that she was in fact the wife of another man. The rule is well established that the fact of the marriage having been admitted, it will be presumed to have been a legal marriage, that neither party thereto became guilty of the crime of bigamy, and if either the husband or wife had been previously married, it would be presumed, in support of the legality of the second marriage, that the former husband or wife was dead or had been lawfully divorced. Farr v. Farr, 190 Iowa 1005, 181 N.W. 268; 120 A.L.R. 829; Hall v. Hall, supra; Whitman v. Whitman, 253 Ala. 643, 46 So. 2d 422; Faggard v. Filipowich, 248 Ala. 182, 27 So. 2d 10. Because also of this absence of proof to override the presumed validity of the second marriage, we would be reluctant to illegitimatize the issue of the marriage of this couple by pronouncing their marriage void under the slight evidence adduced to sustain that view.
The decree of annulment must therefore be reversed, set aside and held for naught. And this conclusion requires consideration of the remainder of the assignments of *880 error, such as the right of appellant to a divorce, alimony and solicitors' fees.
On the issue of appellant's right to a divorce, as heretofore observed, the evidence was without conflict to sustain her claim and was entirely sufficient to warrant a decree to that end on the ground of cruelty. So considered, it will accordingly be here so decreed.
The court has carefully considered the record in consultation and we are much impressed that the exigencies of this case require that we exercise our discretion and render such decree on all the issues as the trial court should have rendered so as to end the litigation.
With this in view, we will also determine the questions of alimony, solicitors' fees and the custody of the child.
The granting of alimony, including the allowance of attorneys' fees, is, of course, within the sound judicial discretion of the court to be regulated by many factors, such as the husband's ability to pay, the wife's station in life, her financial worth and income, the nature of the conduct of the respective parties, etc.Russell v. Russell, 247 Ala. 284, 24 So. 2d 124; Steiner v. Steiner, 254 Ala. 260, 48 So. 2d 184; Morgan v. Morgan, 203 Ala. 516, 84 So. 754; Phillips v. Phillips, 221 Ala. 455, 129 So. 3; Code 1940, Title 34, §§ 32, 33. The misconduct of the husband was clearly proven, indeed not denied, and this also has a bearing on the question.Steiner v. Steiner, supra. Yet the conduct of the wife in certain respects was likewise not above reproach and this must have play in a consideration of the matter.Russell v. Russell, supra. It is undisputed that the husband has a large and seemingly regular income and on this basis the trial court thought $50 per week should be assessed against him for the support of the child. Using this conclusion somewhat as our guide, we think $300 per month, payable to appellant semi-monthly on the 1st and 15th of each month, for alimony and support of the child while in her custody to be just and proper, and when the child is in the legal custody of appellee the amount will be reduced to $200 per month, payable semi-monthly at the stated times. It will be so decreed.
The solicitors for appellant are likewise entitled to a reasonable fee, including a fee for their services on appeal, commensurate with the labor and skill involved, the results of the litigation and the earning capacity of the parties.Walling v. Walling, 253 Ala. 337, 45 So. 2d 6; Taylor v. Taylor, 251 Ala. 374, 37 So. 2d 645; Steiner v. Steiner, supra; Phillips v. Phillips, supra; Penn v. Penn, 246 Ala. 104, 19 So. 2d 353. The lower court awarded $300 solicitors' fees without granting divorce, see Keith v. Paden, Ala.Sup., 51 So. 2d 9, and we assume without considering the matter of appeal. Due to the outcome of the case and the other factors involved, we think a very reasonable fee to be $500 for services in the trial court and $250 for services on appeal in this court, and it will be so ordered.
It remains only to consider the matter of custody of the child which, as always, is a most troublesome and delicate matter to determine. Undoubtedly appellant's home surroundings are superior to those of appellee for the permanent residence and rearing of the child. Appellant lives with her father and mother in their home and her father is a well-reputed practicing physician in the city of Phenix City. Appellee has his home in a garage apartment on his father's dwelling lot and presumably it is proposed that the child, if custody be awarded to him, will reside to a considerable extent with her paternal grandparents. There is no specific proof as to the character of this home, but there is evidence that appellant and his father are engaged in business which is beyond the pale of the law. But the evidence is likewise without dispute that appellant, during her marriage, has also been engaged in this character of business with her husband and appellant's sister also is employed in one of those establishments. Considering the general atmosphere in which the child will be reared, therefore, the court is hard put to determine exactly what award of custody would serve the best interests of the child. The trial court thought that alternating the *881 custody from one to the other each week would be proper. But to our minds this method would be very deleterious to the stability of the child's home surroundings. We think an award on a more permanent basis would be better. As stated, the child is of tender years (two) and the presumption is that she would fare better in the care of her mother and in her mother's home.McLellan v. McLellan, 220 Ala. 376, 125 So. 225; Anderson v. Anderson, 165 Ala. 181, 51 So. 619; Code 1940, Title 34, § 35. Our view, therefore, is that the regular custody of the child be awarded to the mother for nine months, from September to May, both inclusive, and to the appellee for three months, from June to August, both inclusive, with the right of reasonable visitation on the part of either parent when in the custody of the other. This likewise will be so ordered.
The conclusion reached renders it unnecessary to consider the question of temporary custody or the remaining assignments or any of the cross assignments of error.
A decree will be entered pursuant to the foregoing, but the cause will be remanded to the lower court for enforcement and for such later modification as may become necessary, should the status of the respective parties or that of the child change so as to warrant it.
Let the appellee pay all the costs.
Reversed in part and rendered and in part modified, and the whole cause remanded.
LIVINGSTON, C. J., and BROWN, FOSTER, LAWSON, and STAKELY, JJ., concur.
On Rehearing.
SIMPSON, Justice.
On a recanvass of the authorities in the light of the brief and argument of counsel applying for rehearing, we are still convinced of the soundness of our original conclusions. Deferring, however, to counsel's earnestness, we will extend the opinion to comment that Taylor v. Taylor, 249 Ala. 419, 31 So. 2d 579, is no authority to contradict the holding that if the marriage between the parties be declared void (by invalidating the Georgia divorce decree) because appellant had a living, undivorced spouse, the issue of the marriage would be rendered illegitimate. The Taylor case was where, pursuant to § 4, Title 34, Code 1940, a young man under the age of seventeen years was permitted to interpose proceedings to invalidate his marriage, the court holding that the marriage was not void but merely voidable and that the rights of the parties and their child would be fixed as of the date of the rendition of the decree, having the effect of making the child legitimate. In the case at bar, however, we are dealing with an alleged void status. If the court should annul the prior divorce decree of Mrs. Davis and thereby adjudicate that when she married and when the instant proceedings were instituted she had a living, undivorced husband, then there was neither ceremonial nor common law marriage between her and appellee and the entire status would be void ab initio, rendering the issue thereof illegitimate. As was observed in Lewis v. Crowell, 210 Ala. 199, 97 So. 691, cited supra: "Jonas Crowell and Lucy Smith for many years prior to her death lived together as husband and wife, but during this time Jonas had a living wife, from whom he had never been divorced, and Lucy had a living husband, from whom she had never obtained a divorce. These two children were born while Jonas and Lucy were living together; and it appears from the evidence that Jonas was recognized as their father. As one had a wife and the other a husband living at that time, and no decree of divorce dissolving the former marriage had ever been rendered by a court of competent jurisdiction, they could not be husband and wife under a common-law marriage. Baccus v. Eads, 209 Ala. 578, 96 So. 757; Potier v. Barclay, 15 Ala. 439. These children are bastards, illegitimate children * * *." (Emphasis supplied.)
We will add that since original deliverance, the case of Johnson, Petitioner, v. Muelberger, 71 S. Ct. 474, was decided by the Supreme Court of the United States, *882 and which we think would also sustain the necessity of our giving credit to the Georgia divorce decree, regardless of our own liberal rule adverted to in the original opinion. Cf. 27 C.J.S. Divorce, § 336, p. 1304.
The application for rehearing is due to be overruled. So ordered.
Application overruled.
All the Justices concur. | March 1, 1951 |
5164c9e6-deda-4178-b0b7-d84c9f3b6349 | ALABAMA PUBLIC SERV. COM'N v. Atlantic Coast Line R. Co. | 45 So. 2d 449 | N/A | Alabama | Alabama Supreme Court | 45 So. 2d 449 (1950)
ALABAMA PUBLIC SERVICE COMMISSION
v.
ATLANTIC COAST LINE R. CO.
3 Div. 544.
Supreme Court of Alabama.
March 23, 1950.
Rehearing Denied April 20, 1950.
A. A. Carmichael, Atty. Gen., and MacDonald Gallion, Asst. Atty. Gen., for appellant.
Evans Hinson, of Montgomery, and G. E. Reeves, of Tampa, Fla., for appellee.
FOSTER, Justice.
This case comes to us on appeal from the Circuit Court, in Equity, of Montgomery County. It originated in an application made on February 2, 1948 by appellee to the Alabama Public Service Commission "to discontinue the present turn-around mixed train service, daily except Sunday, between Sprague, Alabama, and Luverne, Alabama, and to substitute tri-weekly local turn-around service between Montgomery, Alabama, and Luverne, Alabama." From Sprague to Luverne is 32.3 miles. After a formal hearing and finding of facts and conclusions of law, the commission made an order December 20, 1948 denying the application. On appeal to the circuit court, in equity, that court, on July 8, 1949, reversed the order of the commission and granted the application. The commission has appealed to this Court.
*450 The power and duty of the court on such appeal is controlled by Title 48, section 82, Code. The circuit court concluded that the commission erred in its application of the law and that its finding of facts was contrary to the substantial weight of the evidence.
There are some preliminary principles of law which need to be mentioned.
There is no statutory nor contractual duty of appellee to render such service. But the commission is charged with the duty of supervising, regulating and controlling all transportation companies doing business in this State in specified particulars, including the maintenance of such public service as may be reasonable and just. Title 48, section 104, Code.
When the statutory law of the state or provisions of a legislative charter make it the duty of a railroad operating in that state to maintain a daily railroad service, there is a different principle applicable than the one where there is no such duty. In the former instance the principle is linked to due process in two aspects, (1) the financial burden and (2) the need of the service: there is also involved its effect on interstate commerce. It is thus expressed in State v. Georgia Southern & Florida R. R. Co., 139 Fla. 115, 190 So. 527, 532, 123 A.L.R. 914: "The reasonable needs of the public are to be first considered, and all the revenue receipts, interstate and intrastate as well as mail, express and all other sources of revenue duly accruing to the line, should be considered in determining, not whether the line is self-sustaining, but whether the financial burden of the line grossly exceeds the needs of the public to a continuance of the service, and so reduces the revenue receipts of the company's entire system as to be a deprivation or taking of property of the company without due process and without just compensation, or so as to unduly burden the interstate commerce transportation service of the company. * * * it is (under that set up) clear that the duty to furnish reasonably adequate train service to local communities served by such carrier, is essentially among the imperative duties that are by law (of Florida) imposed upon railroad common carriers in consideration of the privileges conferred upon them by the State for the benefit of the public." (That is by the statutory law of Florida.)
Such imperative duty must be observed unless it "unduly affect[s] the receipts from the entire railroad system of the company, or impair[s] organic rights or directly and unreasonably burden[s] or impede[s] interstate or foreign commerce."
But under the authorities due process does not, under such statutes, require that each line or branch shall under every set-up yield sufficient revenue to provide a profit on that particular feature of the system. Insofar as that is concerned, the question goes to the burden on the entire system. 123 A.L.R. 930, 44 Am.Jur. 583, section 368.
When the imperative duty exists by statute such legal effect is well supported by the authorities. State v. Georgia S. & F. R. R. Co., 139 Fla. 115, 190 So. 527, 123 A.L.R. 922, et seq.; 51 Corpus Juris 972, section 883; Atlantic Coast Line R. R. v. North Carolina Corp. Comm., 206 U.S. 1, 27 S. Ct. 585, 51 L. Ed. 933, 11 Ann.Cas. 398; Atlantic Coast Line R. R. v. Public Service Comm. of South Carolina, 77 F.Supp.D.C., 675; Southern Railway Co. v. Public Service Comm., 195 S.C. 247, 10 S.E.2d 769; Kurn v. State, 175 Okl. 379, 52 P.2d 841; Ft. Smith L. & T. Co. v. Bourland, 267 U.S. 330, 45 S. Ct. 249, 69 L. Ed. 631; Railroad Comm. v. Texas & New Orleans R. R., Tex.Civ.App., 197 S.W.2d 176.
When that duty is not imperative, but what is called relative, as in Alabama, in order to justify a reduction of the service, the carrier is not required to show that the rate of return on the system requires the reduction, or that it would impede interstate commerce, but it is sufficient if the reduced plan would supply such train service as the public necessities demand and require. Delaware L. & W. R. Co. v. Van Santvoord, D.C., 232 F. 978, and cases last above cited, including Atlantic Coast Line R. R. v. Public Service Comm., D.C., 77 F. Supp. 675, 685. In the language of our statute, is "reasonable and *451 just." Title 48, section 104, Code. "It is evident that the public service agency is under no obligation to continue to offer a service which the public will not use, where the offer is a financial burden, and where it is unreasonable to demand its continuance." Thompson v. Boston & Maine R. R., 86 N.H. 204, 166 A. 249; Atlantic Coast Line R. R. v. Public Service Comm., supra 77 F.Supp. at page 684.
Another statement of the principle is that although the operation of the entire system yields a net profit, the loss resulting from the maintenance of a certain service on a particular branch must be of sufficient importance to outweigh the inconvenience which the public will suffer as a result thereof. 123 A.L.R. 928; Thompson v. Boston & Maine R. R., supra; Delaware L. & W. R. Co. v. Van Santvoord, supra.
Again, it is said: "The controlling criteria as we see it are these, the character and population of the territory served, the public patronage, or lack of it, the facilities remaining, the expense of operation as compared with revenue from same, and the operations of the carrier as a whole." Atlantic Coast Line R. R. v. Public Service Comm., D.C., 77 F. Supp. 675, 684(12).
The volume of business and the revenue from it fluctuate normally in business cycles. The volume of business on this branch prior to 1946 is not shown by the finding of facts. Prospects of patronage for the future look more favorable according to the evidence and findings. The population and business in the territory served seem to have steadily increased. Plans for business expansion have been made. In this connection the commission found as follows:
"The granting of the petition was vigorously opposed by a large delegation of protestants. Since 1940 the population of Crenshaw County, in which the greater portion of the branch is located, has increased about 4,000 and at Luverne, Alabama, the termini of the branch, the increase has been about 800. With increasing population it would normally follow that business would also increase in this area.
"Protestants point out that Luverne has been assured of a furniture factory, employing two to three hundred people, to be established as soon as a suitable building can be made available. This factory plans to manufacture and ship by rail one carload of furniture each day.
"One protestant, in the lumber business, stated that tri-weekly service would result in the loss of considerable export tonnage as shipments are made on telegraphic advice for immediate unloading which means that arrival at the port cannot be made ahead of time and one day's delay would probably result in missing the vessel. This position was concurred in by another lumber shipper.
"Other protestants represented many different types of businesses including city and county officials, dealers in clothing, automobiles, hardware, farm products, cotton, peanuts, building supplies and pulpwood and also a clothing manufacturer. All testified that the inauguration of tri-weekly service would seriously disrupt business and conditions in the area affected. In fact, one protestant, a lumber manufacturer, stated that this business at LaPine needed two switches a day and that if the petition is granted it would be necessary for his mill to shut down on the days when no service was rendered."
There is no other railroad service in that area. There is a good hard surface road and bus service for passengers in all directions, with one truck freight common carrier. The passenger patronage would not demand a continuance of the railroad service. The truck service cannot of course handle the main features of the heavy freight carried by the railroad. The branch is an extensive feeder to the main line.
Counsel for petitioner observe that United States mail is not handled by the present train service, and express is available only at Petrey and Luverne, that freight constitutes the only type of rail transportation which is here important.
As a result of the facts found and recited by the Public Service Commission in detail, *452 it thus expressed its conclusion from them:
"In determining whether public convenience and necessity permit the 50 percent curtailment of service proposed on the branch, the inconvenience occasioned by such curtailment and the consequent loss to the public must be weighed against the burden that the continued present operation or the line would impose upon the petitioner. The branch in question is of great importance to the City of Luverne, its crade area and all intermediate points on the branch, and the record shows that substantial injury thereto would result from such curtailment of service. The weight of the evidence is that the inconvenience and injury which would be occasioned by the granted (granting) of the petition offsets any burden the present operation may be upon the petitioner. This conclusion is based on our opinion that the expenses on the branch could be further minimized, that the prospect of increased tonnage and revenue are very encouraging and that tri-weekly operations would not afford adequate service.
"Upon consideration of all the evidence, we find that the present and future public convenience and necessity are not shown to permit the operation of tri-weekly service between Montgomery and Luverne in lieu of present daily, except Sunday, service between Sprague and Luverne."
The questions for us on this appeal are, whether the commission erred in applying the law to the facts found (including due process), or whether the order was based on a finding of facts contrary to legal evidence of substantial weight, Alabama Public Service Comm. v. Southern Bell T. & T. Co., Ala.Sup., 42 So. 2d 655, unless we find it expedient to remand the case to the commission for further proceedings or evidence. Title 48, section 82, Code.
The result reached is in the nature of an inference or conclusion from the facts found and an application of the law to it as well as a determination of whether the evidential facts recited by the commission are supported by the evidence. It is clear that the evidential facts recited are, in the main, properly supported. The question therefore is whether they sustain the conclusion reached and declared by the commission that the inconvenience and injury which would be occasioned by granting the petition would offset any burden the present operation imposes upon petitioner. If so, the law was properly applied. The burden is on one who would upset the order of the commission. Title 48, section 82, Code; Alabama Public Service Comm. v. Crow, 247 Ala. 120, 22 So. 2d 721.
There was no such legal status in Atlantic Coast Line R. R. v. Public Service Comm., D.C., 77 F. Supp. 675. That was not an appeal from a commission ruling but an independent suit in the federal court based on due process. It was there said that it was not an appeal from an administrative order, in which a factual finding based on substantial evidence would be conclusive.
The commission accepted the data furnished by petitioner as true. Presumably in the preceding years the revenue was not materially unsatisfactory, especially during the war years. For 1946 there was a net profit of $1207.37. For 1947 a net loss of $15,679.36. For the first three months of 1948 there was a net loss of $2194.54. The total operating revenue in 1946 from this branch was $129,833.87: in 1947, $135,305.10, an increase of $5,471.23: total operating expense for 1946, $128,626.50; for 1947, $150,984.46, an increase of $22,357.96.
The explanation made by petitioner of the difference between 1946 and 1947 is that crosstie replacements ($16,877.00) were largely deferred in 1946 to 1947, and because of postwar inflation. The average crosstie replacement for 1946 and 1947 (approximately $10,000.00) would alter those figures and show a net loss for 1946 also, and apparently that continues into 1948. But after making such allowance there would be a large increase of operating expense in 1947 over 1946 (approximately $17,000.00). This is said to be the result of postwar inflation. But it is hard to explain such a difference between 1946 and 1947 expense, since they were both probably subject *453 to the same postwar inflation. No effort is shown to reduce such expense by observing economies, as in Mississippi Railroad Comm. v. Mobile & Ohio R. R. Co., 244 U.S. 388, 37 S. Ct. 602, 61 L. Ed. 1216.
Loss of profits from the operation due to increased cost of it, not to decrease of patronage in the service, as here shown, should be taken care of in some other way if possible than a reduction of the service. The amount of the return is not here the controlling factor.
It is suggested by appellee that an increased rate structure should not be thought to be the remedy because the commission has steadily refused petitioner's application for such increase covering all its intrastate business comparable with that authorized by the Interstate Commerce Commission on interstate traffic. No such effort seems to have been made in respect solely to this branch operation. But the remedy of petitioner to recoup its diminishing returns from service on this branch due to increasing cost of operation, if there is any remedy, is more directly in that field and in that of economy than to reduce a service whose patronage built upon it is not diminishing, and its operating revenue is substantially increasing.
If petitioner is unable to secure redress before the commission in the matter of its rate structure here applicable and to make available economies so as to provide a net profit, the remedy is not to shift its effect to a reduction of this service, so long as the entire system as a whole would not be materially affected by a continuance of the service, and the inconvenience of one would offset the burden of the other. Those who continue to patronize the service and have built their business on the basis of its continuance and made their plans accordingly, so that the volume of the traffic and operating income are not being reduced but materially increased, should not be deprived of an important part of the service, if reasonably possible to continue it. The factual status here shown is not at all comparable to that considered by the federal court in Atlantic Coast Line R. R. v. Public Service Comm., D.C., 77 F. Supp. 675.
The foregoing discussion leads us to the conclusion that we cannot say that the order of the commission shows a misapplication of the law or that its order was based upon a finding of facts contrary to legal evidence of substantial weight or the substantial weight of the evidence. We therefore cannot say that the conclusion of the commission is wrong in finding that the inconvenience and injury which would be occasioned by the granting of the petition would offset the burden which the present operation imposes on petitioner.
The judgment of the circuit court on this appeal is therefore reversed and one is here rendered, affirming the order of the commission.
Reversed and rendered.
BROWN, LAWSON and STAKELY, JJ., concur. | March 23, 1950 |
b99bd85b-7289-4d7a-8f67-f94a67ac5471 | Huffstutler v. Edge | 47 So. 2d 197 | N/A | Alabama | Alabama Supreme Court | 47 So. 2d 197 (1950)
HUFFSTUTLER
v.
EDGE.
4 Div. 587.
Supreme Court of Alabama.
June 1, 1950.
Rehearing Denied June 30, 1950.
*198 Clayton & LeMaistre, of Clayton, and J. Terry Huffstulter, pro se., for petitioner.
Crews Johnston, of Clayton, opposed.
FOSTER, Justice.
On certiorari to the Court of Appeals, in which they affirmed a judgment against appellant rendered by the Circuit Court of Barbour County, without a jury, in a suit for malicious prosecution.
Whether there was probable cause for appellant to believe that Edge had stolen any of the property mentioned in the indictment was a question of law when the facts became certain. When there is a conflict in the evidence as to material facts relevant to that issue, a finding of the facts on that basis is one of fact not of law. But the legal effect of such finding on the issue of probable cause is one of law for the court and not one of fact. Molton Realty Co. v. Murchison, 212 Ala. 561, 103 So. 651; McMullen v. Daniel, 229 Ala. 194, 155 So. 687; Brackin v. Reynolds, 239 Ala. 419, 194 So. 876; Green v. Norton, 233 Ala. 489, 172 So. 634.
This case was tried without a jury, so that the trial judge was due to find the facts from conflicting evidence and then determine as a matter of law whether those facts show an absence of probable cause. On appeal to the Court of Appeals from a judgment of the trial court holding that there was an absence of probable cause, the Court of Appeals was due to review the conclusions of fact as it would the verdict of a jury. It would not reverse the trial court on its conclusions of fact unless contrary to the great weight of the evidence.
But the legal effect of such conclusions being one of law is not benefited by any presumption that it is correct.
In this case, the trial court did not make a finding of fact in terms, so far as the Court of Appeals advises us, but having rendered a judgment for plaintiff must have held that the facts did not show probable cause. On appeal to the Court of Appeals that court drew certain conclusions of fact from the evidence. It also set out the substance of the evidence on which such conclusions were based. On certiorari to that court inferences or conclusions from *199 the evidence will not be disturbed if they are not wholly unreasonable and arbitrary, although the evidence is set out. Reichert Milling Co. v. George, 230 Ala. 589, 162 So. 402; Sinclair Refining Co. v. Robertson, 247 Ala. 260, 23 So. 2d 872.
Although probable cause in such a case as this may in a sense be said to be an inference from established facts, it has been definitely classed as one of law and not of fact.
There was not much material conflict in the evidence insofar as it affected the question of probable cause. Having found that it showed an absence of probable cause, we will assume that the Court of Appeals accepted as true the version of Edge in such matters of conflict.
Edge on a Sunday went to the place of the mining operations of appellant in Barbour County, where he had been operating as an independent contractor for appellant, and loaded on his own trucks a lot of machinery and supplies. He had left the job several weeks before because he could not make a success of it. He owned the machinery at one time. Whether he had sold it to appellant was disputed. He claimed he had not done so. Appellant claimed he had. He was moving it to Calhoun County where he had a contract. He also included some supplies which he did not own, but which belonged to appellant. He did this loading openly, apparently under the observation of appellant's employees on the job. He left the next morning with it after the loading was done on Sunday. There was nothing about his conduct that looked like stealing. He claimed the machinery was his own. While the supplies were not claimed by him, there was nothing stealthy about the act of taking them.
Appellant presented the matter to the solicitor of Barbour County. He was not enthusiastic an offense of larceny had been committed, and stated to appellant that it was a weak case. In presenting it, appellant represented that all the property was his and that Edge had no interest in it. The grand jury indicted him for larceny of it all, and on trial he was acquitted. He is not protected by the indictment as conclusive of probable cause unless he reported to the solicitor and testified before the grand jury to the truth and to all the facts he knew material to the charge. Morgan v. Baird, 219 Ala. 225, 121 So. 526; King v. Second National Bank & Trust Co. of Saginaw, Mich., 234 Ala. 106, 173 So. 498. The petit jury evidently found that he did not, but that Edge had a substantial claim to the property, except certain supplies, and that there was no felonious intent necessary to constitute larceny. The petit jury must have concluded that Edge was in good faith asserting his claim to the machinery and included the supplies without a felonious intent. The circuit court and the Court of Appeals in this case must likewise have so found. Also that the circumstances which were manifest to appellant rebutted any larcenous intent. Such a finding of fact, known to appellant, would lead to the legal conclusion that appellant was without probable cause to believe that larceny had been committed.
There Must Be Malice Also On The Part Of Appellant.
Malice is an inference of fact, not of law, and it must be determined by the trier of the facts as any other issue of fact is tried. It may be inferred from an absence of probable cause. Parisian Co. v. Williams, 203 Ala. 378, 83 So. 122. But not if the facts disclosed that he was acting in good faith. United States Fidelity & Guaranty Co. v. Miller, 235 Ala. 340, 179 So. 239.
Malice in this sort of action implies the intentional doing of a wrongful act to the injury of another. King v. Second National Bank & Trust Co. of Saginaw Mich., 234 Ala. 106, 173 So. 498.
Appellant was persistent in his effort to prosecute Edge and interested in seeing that an indictment was returned in Barbour County. He swore out a warrant in Calhoun County, to which Edge had carried the material to use on his job there. The grand jury there first failed to indict, but another grand jury did indict. This was nol prosed. Then it was presented to the solicitor and grand jury in Barbour County, from which Edge had removed the property. There were differences between *200 them that should have been settled in the civil courts. Edge having left the operation in Barbour County in possession of appellant, including his machinery, may have been guilty of a trespass in removing it and in moving the supplies. But there was nothing to support a reasonable inference or a probable cause to believe that in doing so Edge was intending to steal the property of appellant. Civil differences should be settled in civil courts. The criminal courts were not set up for that purpose.
The bankruptcy proceeding was not given enough importance by the Court of Appeals to justify them in setting out the matters there disclosed. We cannot therefore look into the record to find out about it. The finding of malice by the trial court, concurred in by the Court of Appeals, is an inference of fact.
On well known principles we will not disturb such conclusion by that court. 4 Ala. Digest (Certiorari) section 68; Reichert Milling Co. v. George, supra; Sinclair Refining Co. v. Robertson, supra.
Affirmed.
BROWN, LIVINGSTON and STAKELY, JJ., concur.
LAWSON and SIMPSON, JJ., dissent.
SIMPSON, Justice (dissenting).
The majority opinion quite correctly takes cognizance of the well-recognized principle that in this character of action the question, vel non, of probable cause is one of law for the court, the facts being certain.
It is certain beyond doubt from the "delineation" of the facts in the rehearing opinion of the Court of Appeals that the appellee, Edge, took and carried away certain personal property which "without dispute in the evidence, were the property of the appellant and were included within the indictment which was returned against the appellee and which was the basis of the instant malicious prosecution suit." This property he (Edge) converted to his own use or that of another. Therefore, there was no conclusion open to the trial judge but that appellant Huffstutler did have probable cause to believe that Edge had stolen the property. `Brackin v. Reynolds, 239 Ala. 419, 194 So. 876, and cases cited.
It is not a question of whether Edge was in fact guilty, but whether Huffstutler, acting in good faith, and on the reasonable appearance of things, entertained a reasonable belief of his guilt, Torian v. Ashford, 216 Ala. 85, 88, 112 So. 418, and, the prosecution having been initiated by an indictment preferred by the grand jury, the burden was on the plaintiff (Edge) to establish by the evidence that the defendant (Huffstutler) did cause the indictment to be preferred through fraud, perjury, subornation, or willful suppression of known material facts. King v. Second National Bank & Trust Co., 234 Ala. 106, 173 So. 498; Bryant v. Hartford Fire Ins. Co., 230 Ala. 80, 159 So. 685; American Surety Co. v. Pryor, 217 Ala. 244, 115 So. 176. It is quite manifest from the quoted excerpt from the opinion of the Court of Appeals, supra, that the plaintiff did not carry this burden, since undisputedly appellant did have probable cause to believe that appellee did feloniously take away his property.
The judgment seems to me to be illfounded and I think the judgment of the Court of Appeals should be reversed.
I, therefore, respectfully dissent.
LAWSON, J., concurs in the foregoing view. | June 1, 1950 |
dc6d34b7-e1cf-42b0-a7bd-4db3936b44bd | George v. George | 50 So. 2d 744 | N/A | Alabama | Alabama Supreme Court | 50 So. 2d 744 (1951)
GEORGE
v.
GEORGE.
1 Div. 427.
Supreme Court of Alabama.
February 22, 1951.
*745 V. R. Jansen, of Mobile, for appellant.
Harry Seale, of Mobile, for appellee.
BROWN, Justice.
This is an appeal from a final decree of the Circuit Court of Mobile County, sitting in equity, granting a divorce to the complainant, Gertrude George, awarding to her the custody of two minor children, both boys, and granting to complainant an allowance of $30 per month for the support and maintenance of the children.
The bill alleges in substance that the complainant, Gertrude George, the respondent, Edward George, Jr., are each over twenty-one years of age and both bona fide residents of Mobile County, Alabama; that they were married in 1931 and were living in Mobile at the time of their separation; that respondent without just cause abandoned the bed and board of complainant and is failing to properly support her and their two minor children born of the marriage, which are now in her custody, and whose best interest would be served by their so remaining. The complainant then prays that the respondent be required to pay reasonable sums for her support and for the support of the minor children.
The respondent filed an answer admitting the marriage and the separation, denying his abandonment of complainant, but averring that complainant abandoned the home, the bed and board of respondent without fault on his part. Respondent further denies that he has failed to properly support complainant and the minor children even though denied their society and companionship, and that the children's best interest will be served by their remaining in the custody of the complainant. Respondent then prays that the complaint be dismissed.
Respondent filed a motion for permission to see the children. Complainant then filed a Motion for Reference, praying that the Court direct the Register to determine the amount of support which the Respondent should give to complainant, pending this suit. Complainant then amends her bill by adding paragraph five and additional prayer which amendment alleges that "The Respondent after their marriage committed actual violence on the person of the complainant, attended with danger to her life or health, by choking her and by striking her with his fists, and she had reasonable apprehension that if she continued to live with him he would commit actual physical violence on her attended with danger to her life or health, as on more than one occasion he had threatened to kill her and to kill their minor children. And the complainant further prays that upon final hearing of this cause a decree will be rendered dissolving the bonds of *746 matrimony now existing between the complainant and the respondent."
The parties were married either in 1931 or 1932 and lived together until December 3, 1949. Two children were born of this union, one, Oliver, who was seventeen at the time of the trial, and Edward Earl, who was seven. There is substantial uncontradicted testimony of the high character of both of these parties and of the apparent harmony of the home. However, on December 3, 1949 the wife saw fit to leave the home, taking with her the two children, and went to the home of her parents. On December 14, 1949, she filed a bill praying for support for herself and the children and on May 17, 1950 amended this bill by adding a prayer for divorce on the ground of cruelty.
The complainant testified in support of her allegations that the children were improperly fed and clothed and were abused; that the house was not suitable; that on one occasion he choked her and struck her and that since the separation he has threatened to kill her and the children. The testimony regarding the threats is corroborated by members of the wife's family. The husband, however, denies these charges.
The first point argued by appellant is that the trial court erred in considering the testimony taken at the trial and rendering his decree thereon without a Note of Testimony.
Rule 57, Equity Practice, Code of 1940, Title 7 Appendix, as amended by General Acts of 1945, P. 563, approved July 6, 1945, expressly provides that it is not necessary to note any testimony given orally before the judge in open court. This contention is without merit. Holman v. Hall, 248 Ala. 541, 28 So. 2d 629; White v. White, 246 Ala. 507, 21 So. 2d 436.
Appellant next contends that the evidence is insufficient to support a decree of divorce in favor of appellee on the ground of cruelty. It is not necessary to authorize the granting of a divorce to the wife on the ground of cruelty that she allege and prove that the husband has committed actual violence on her person attended with danger to life or health. Proof of course of conduct on the part of the husband sufficient to create reasonable apprehension that he will commit such violence on her person attended with danger to her life or health is sufficient to meet the requirements of the statute. § 22, Title 34, Code of 1940; Harris v. Harris, 230 Ala. 508, 162 So. 102; Farmer v. Farmer, 86 Ala. 322, 5 So. 434; Wood v. Wood, 80 Ala. 254; Hughes v. Hughes, 19 Ala. 307.
The wife testified in this connection that the husband threatened to kill her and to kill the children. The husband denies the threats. However the wife's testimony is sufficient to present a question of fact for solution by the trial court. The trial court heard and saw the witnesses in open court and his conclusion that the wife was entitled to a divorce will not be disturbed by this court on appeal unless palpably wrong. Hudson v. Hudson, 201 Ala. 569, 78 So. 965; Pruitt v. Pruitt, 205 Ala. 484, 88 So. 451; Moor v. Moor, 211 Ala. 56, 99 So. 316.
The appellant next contends that if there were acts of violence or conduct creating reasonable apprehension of such violence, that same was condoned by the complainant. Condonation of the grounds charged by the complainant is defensive matter which must be presented by pleadings and proof. Hudson v. Hudson, 204 Ala. 75, 85 So. 282; Chamberlain v. Chamberlain, 245 Ala. 105, 16 So. 2d 8; Kidd v. Kidd, 246 Ala. 313, 20 So. 2d 515.
In disposing of the issue of custody of the children, the court in the decree observed: "For some reason not entirely established the children have developed an aversion toward their father, which at the present time seems irrevocable. To undertake to force these young children to visit with, or permit the father to lavish his affections upon, them at this present time, would not be a workable or reasonable thing to hope for or expect."
The statute authorizes the court to award the custody and care of the children of the marriage to either of the parents, "having regard to the moral character and prudence of the parents, the age and sex *747 of the children * * *." Code of 1940, Tit. 34, § 35.
The granting of a divorce to the wife on the ground of cruelty is a circumstance to be considered in awarding the custody of the children to her. Hawkins v. Hawkins, 219 Ala. 31, 121 So. 92; Gayle v. Gayle, 220 Ala. 400, 125 So. 638.
The trial of the issues was on testimony given ore tenus and after due consideration thereof we are not able to affirm that the decree of the court is laid in error.Hill v. Gay, 252 Ala. 61, 39 So. 2d 384; Johnson v. Johnson, 215 Ala. 487, 111 So. 207; Glenn v. Glenn, 21 Ala.App. 148, 106 So. 226. We find no error in the record.
Affirmed.
FOSTER, SIMPSON and STAKELY, JJ., concur. | February 22, 1951 |
df68c183-36a3-4c3d-a2e5-a7e55a9a3761 | National Life & Accident Ins. Co. v. Claytor | 48 So. 2d 180 | N/A | Alabama | Alabama Supreme Court | 48 So. 2d 180 (1950)
NATIONAL LIFE & ACCIDENT INS. CO.
v.
CLAYTOR.
6 Div. 26.
Supreme Court of Alabama.
June 22, 1950.
Rehearing Denied November 2, 1950.
Lange, Simpson, Robinson & Somerville, of Birmingham, for appellant.
Andrew W. Griffin, of Birmingham, for appellee.
FOSTER, Justice.
The question on this appeal relates to the application of section 6, Title 28, Code of 1940. It is there provided that "No written or oral misrepresentation, or warranty therein made, in the negotiation of a contract or policy of insurance, or in the application therefor or proof of loss thereunder, shall defeat or void the policy, or prevent its attaching, unless such misrepresentation is made with actual intent to deceive, or unless the matter misrepresented increase the risk of loss."
The effective date for the operation of that status was either on July 6, 1948, when *181 the application was signed and a binder receipt given, or July 14, 1948, when the company's doctor made an examination, or August 26, 1948, when the policy of insurance was delivered. The insurance referred to is life insurance, not fire.
Part II of the application, which is the doctor's report dated July 14, 1948, in section 26 contains the following: "I hereby agree that the proposed contract shall not be effective until the policy has been issued and the first premium actually paid and accepted by the company and the policy has been delivered to and accepted by me in my lifetime, and while in good health, except as provided in the receipt referred to in part I, Item 34 hereof." Section 34 of part I of the application contained the following provision: "I have deposited with the company's representative $7.11 to cover all the first quarterly premium of the policy applied for, if issued, and I hold his receipt for the same made up without alteration or erasure, on the receipt form detached from and corresponding in date and number with this application. I assent to the terms of said receipt and to the declarations and agreements in part II." The receipt, which was then and there executed by one Lawson Corley, "Sup't.", dated July 6, 1948, with the same serial number as that of the application, and delivered to the applicant for insurance, who afterwards became the insured in the policy issued and dated August 26, 1948, contained the following provision material to this inquiry: "No insurance is in force on such application unless and until a policy has been issued thereon and delivered in accordance with the terms of said application, except that when such deposit is equal to the full first premium on the policy applied for and such application is approved at the home office of the company for the Class, Plan and Amount of the insurance and at the rate of the premium as so applied for, then, without affecting the issue date and anniversaries as set forth in the policy, the amount of the insurance applied for will be in force from the date of this receipt, but no obligation is assumed by the company unless and until such application is so approved." (Italics ours.)
The policy itself dated August 26, 1948, contained the provision: "When Policy Effective. After delivery of this policy to the insured during his lifetime and good health and payment of the first premium it becomes effective from the insurance date designated above." The insurance date designated above is August 26, 1948. The policy also contained a provision as follows: "16. Entire Contract. This policy and the application herefor, copy of which is attached to the policy and made a part of it, constitute the entire contract." Other features of that paragraph seem to be immaterial here. The application for the insurance and the doctor's report, to which we have referred, was made a part of the policy of insurance, but it does not appear that the receipt and binder, referred to above, was attached to and became a part of the policy contract, perhaps because it had then served its purpose.
The evidence showed that, without controversy, at the time of the delivery of the policy on August 26, 1948, the insured had a cancer of the lung, from which he died October 31, 1948. The evidence of the medical witnesses seem to agree that there was no indication of such affection on July 6, 1948, at the time when the application was made and receipt and binder given. On July 14, 1948, the applicant was examined by the company physician and no evidence of such trouble was found.
The trial court in construing that status instructed the jury in his oral charge that if they find from the evidence that at the time the insured paid one quarter in advance and received from the agent the receipt and binder that became the effective date to determine whether or not there was a misrepresentation or breach of warranty, since the conditions which make it so according to the terms of said binder had been accomplished, that is to say, that the deposit of $7.11 was the full first premium on the policy applied for and that the application was approved at the home office of the company for the class, plan and amount of insurance, and at the rate of the policy so applied for. The court thereby fixed July 6, 1948, as the controlling date to determine the applicability of section 6, Title *182 28, Code. The defendant excepted to that feature of the court's oral charge, which we have undertaken to set out in substance and effect, but not in terms. The defendant also requested the affirmative charge. However, it would be equally true that if the approval and acceptance of the application was induced by a misrepresentation or warranty of insured to the medical examiner on July 14, 1948, either with the actual intent to deceive or the matter misrepresented increased the risk of loss, then such date would also be one material to the inquiry.
The defendant, who is appellant here, assigns as error the ruling of the court in denying the affirmative charge, but did not assign as error that feature of the court's oral charge, to which exception was taken. There are only two assignments of error, one going to the refusal of the affirmative charge, and the other for the refusal of a motion for a new trial.
Section 75, Title 28, Code, provides that no life insurance company or any agent thereof "shall make any contract of insurance or agreement as to policy contract other than is plainly expressed in the policy issued thereon."
The legal capacity to execute a binder has been stated by this Court as affected by that statute. We have held that it does not prohibit such a contract of fire insurance issued by a general fire insurance agent who may make binding contracts of insurance whether orally or in writing. Sun Ins. Office of London v. Mitchell, 186 Ala. 420, 65 So. 143. But we have held that a local agent of a life insurance company is not privileged to make such a contract. In order to be effective, in the light of that statute, it must be made by an agent of the company with due authority, or accepted and approved by the company. Liberty National Life Ins. Co. v. Staggs, 242 Ala. 363, 6 So. 2d 432; American Life Ins. Co. v. Carlton, 236 Ala. 608, 184 So. 171; Cherokee Life Ins. Co. v. Brannum, 203 Ala. 145, 82 So. 175; Royal Neighbors of America v. Fortenberry, 214 Ala. 387, 107 So. 846; Alabama Gold Life Ins. Co. v. Mayes, 61 Ala. 163; 29 Am.Jur. 160.
The principle is expressed as follows in 2 A.L.R.2d 948: "Generally speaking, a general agent of the insurance company who has authority to bind the company by contract of ordinary insurance possesses also authority to issue binding receipts for temporary contracts of insurance, but a local agent is, as a rule not intrusted with power to bind the company by entering into contracts for temporary insurance before approval of the application by the home office." 44 Corpus Juris Secundum, Insurance, § 230, page 967, note 98.
In the case of Alabama Gold Life Ins. Co. v. Mayes, 61 Ala. 163, it was pointed out that under such a contract as this the company had a right to decline the acceptance of a proposal without assigning any cause, since no contract was made by an agent having authority in the first instance and, therefore, it is different from a situation where an agent has authority to make contracts of insurance and makes one subject to approval of his principal, when it was held that the principal cannot withhold his approval without sufficient cause.
In this case there is no evidence of the authority of Corley who issued the receipt and binder, but it was attached to and formed a part of the application blank and referred to in the application, as we have shown (part I, Item 34), and the application after the receipt was taken from it was sent to the home office and there accepted and approved by the issuance and delivery of the policy on August 26, 1948. Such acceptance gave validity to the binder as a temporary contract since it ratified and approved it. Since such a binder made by a soliciting agent as this does not become effective until the application is accepted and approved, the authority of the agent at the time of giving it to the appellant is not controlling on its effect after acceptance and approval.
While it does not affirmatively appear that the company had knowledge that the binder had been issued, the application itself, which was approved by the company, shows that it had been issued and made up without alteration or erasure. It is our *183 view, therefore, that the binder should be given effect according to its terms.
The authorities have treated such a binder as a temporary insurance extending from its date until the delivery of the policy. 2 A.L.R.2d 1011, section 33; DeCesare v. Metropolitan Life Ins. Co., 278 Mass. 401, 180 N.E. 154, 81 A.L.R. 327. It is also said that "upon the acceptance of the application, the insurer becomes obligated, notwithstanding the policy is not delivered, and the receipt protected the applicant against the contingency of sickness or disability rendering him uninsurable intervening the date of the receipt and the delivery of the policy. In other words, the vitality of such a receipt is retroactively derived from the acceptance of the application." 29 Am.Jur. 160.
There seems to be some refinement developed among the cases in the application of the above principles dependent upon the exact terms of the clause and the time of the change of physical condition of the applicant occurring within the interim. See the discussion of that subject in 2 A.L.R.2d 963, section 11, pages 967, 1017. It seems to be unnecessary for us to consider that question on account of the facts of this case, Alabama Gold Life Ins. Co. v. Mayes, supra, since the only knowledge we have with respect to such change is that it occurred some time after July 6, 1948, and prior to August 24, 1948, and the policy was issued and delivered August 26, 1948, without any evidence of the date when the insurer approved the application other than the date of issuance and delivery of the policy. We must assume therefore that such change occurred prior to the approval of the application.
It results that the provision in the policy, which we have quoted, that it becomes effective after its delivery to the insured during his lifetime and in good health, must be considered in connection with the temporary binder as soon as the company accepted and approved the application. It was without power under the terms of the binder, after it was approved and accepted, to refuse to deliver the policy to the insured, although he may then be in a state of health which rendered him uninsurable, if at the time when the application was taken and the medical examination made, he was in a state of health then insurable under the contract and made no material false representations or warranties with actual intent to deceive or as to a matter which increased the risk of loss.
We say this although there is no assignment of error by appellant challenging that feature of the court's oral charge, but the question is raised by the refusal of the court to give the affirmative charge for appellant. Appellant's counsel in brief, as we understand it, does not argue that because insured did become uninsurable in the interim, and was definitely found to be so on August 24, 1948, two days before the delivery of the policy on August 26, 1948, the policy was not on that account effective. But the argument proceeds upon the theory that there was a failure to disclose certain information which should have been given in the application and to the medical examiner in answer to the questions propounded to the insured, and that by reason of such failure there was a breach of warranty or false representation sufficient to avoid the policy under section 6, Title 28 of the Code.
We do not think it is necessary to set out even the substance of the evidence in connection with the answers of insured in the application and medical report to support our view that appellant has no cause to complain that the court left it to the jury, property instructed, to determine whether insured made a misrepresentation or warranty as to a matter material to risk with the actual intent to deceive, or as to a matter which increased the risk of loss although without such actual intent to deceive. It is without question that insured had no information that he had a cancer at any time before the policy was issued, or that he had any other condition which increased the risk of loss. If he did not answer some of the questions as fully as he should have done, as to which the evidence is in conflict, it was a question properly left to the jury to decide whether such failure was with the actual intent to deceive or that it would have disclosed a condition which increased the risk of loss.
*184 The court carefully instructed the jury as to those matters and properly denied the affirmative charge requested by appellant.
We are also of the opinion that the verdict of the jury was not contrary to the law as given them in the charge by the court or to the great weight of the evidence. Those are the only assignments of error and, therefore, the judgment must be affirmed.
Affirmed.
BROWN, LAWSON and STAKELY, JJ., concur. | June 22, 1950 |
7dbf0756-dc74-4aea-898c-a4ab736a449f | Cook v. Morton | 47 So. 2d 471 | N/A | Alabama | Alabama Supreme Court | 47 So. 2d 471 (1950)
COOK
v.
MORTON.
8 Div. 517.
Supreme Court of Alabama.
May 18, 1950.
Rehearing Denied June 30, 1950.
*473 Charles Douglass and L. Chandler Watson, Jr., of Anniston, for appellant.
Marion F. Lusk, of Guntersville, for appellee.
STAKELY, Justice.
Mollie Cook (appellant) filed a bill in equity against Malinda Jane Morton (appellee) to construe the will of Dr. D. A. Morton, deceased, and through that construction to establish a boundary line between the land devised to Malinda Jane Morton and land devised to Mollie Cook. The complainant is a daughter of Dr. D. A. Morton, deceased, by his first marriage and respondent is the widow of the decedent.
Dr. D. A. Morton died August 12, 1936. His will, which was executed January 25, 1936, was probated September 19, 1936. A copy of the will is attached to the bill as an exhibit and is made a part thereof. Paragraphs 2 and 3 of the will are as follows.
"2. I hereby give, devise and bequeath to my beloved wife, Malinda Jane Morton, my dwelling house and lot in Boaz, Alabama, where we now reside including all furniture contained therein; also my brick storehouse and warehouse on Main Street in Boaz, Alabama; also my Plymouth automobile, also my shares of stock and all interest in the Farmers Warehouse and Gin Company, at Boaz, Alabama, and all of my live stock, one high frequency machine, one iron safe; one duptherepy lamp, also all proceeds from all of my life insurance policies.
"3. I give, devise and bequeath to my daughter, Mollie Cook, the house and lot known as my old home house and lot, in Boaz, Alabama, now occupied at this time by J. V. Niles and family, which property is bounded on the north by line running due west from northwest corner of barn located on said lot."
The will was drafted by M. C. Sivley, an attorney of Gadsden, Alabama, and an old friend of the testator. It is very seriously insisted by appellant that certain memoranda and a rough plat in the handwriting and on the stationery of Dr. D. A. Morton and found in an envelope with the will after the death of Dr. D. A. Morton, should be considered by the court in construing the will. There is no reference to the memoranda or plat in the will. As we shall see the court refused to consider the memoranda and also refused to consider the plat. We set out the memoranda as follows. It will be observed that "Malinda", the wife's name, and "Mollie & Abe", the names of the daughter and her husband, appear beside the respective descriptions of the real estate.
The plat followed the foregoing descriptions in the memoranda.
Prior to the trial of the case at bar a contest of the will of Dr. D. A. Morton, deceased, was instituted by the appellant here in the Circuit Court of Calhoun County. Cook v. Morton, 241 Ala. 188, 1 So. 2d 890. On that trial there was testimony in connection with the execution of the will. By agreement excerpts from the transcript of the evidence of that case were introduced into the trial of this case. The testimony of M. C. Sivley was taken on the contest of the will. There is no need to set it out in detail because of the view which we take of the case. Suffice it to *474 say that he went to the hospital where Dr. D. A. Morton was being treated at the latter's request and discussed with him the matter of a will. He advised Dr. Morton that it would be necessary for him first to determine just how he wanted to devise his property. Later he returned and was furnished memoranda by Dr. D. A. Morton. He then prepared the will which Dr. D. A. Morton signed "word for word as he had written it." However on cross-examination tendencies of his testimony show that the memoranda and draft of plat to which we have referred were the only papers which he received from Dr. Morton, that he turned over everything which he received to either Dr. Morton or Mrs. Morton and these particular documents were placed in an envelope with the will. We have referred to this testimony briefly because it is the contention of appellant (1) that the memoranda and plat to which we have referred served as a guide to M. C. Sivley in drafting the will or (2) even if M. C. Sivley did not have before him the particular information given by these documents, these documents were properly before the court and should have been used by the court in determining the intention of the testator.
Attached to the answer of the respondent as an exhibit and made a part of the answer is a diagram, which, omitting consideration of the boundary line here involved, shows the property of Dr. D. A. Morton as it was at the time of his death. The diagram will appear in the report of the case. It will be noted that the property is bounded on the north by the Bynum property, on the east by the railroad right-of-way, on the south by the Denson property and on the west by Main Street. The diagram shows the lot which the testimony shows was occupied by the testator at the time of his death. It includes the orchard, the pasture and his garden. The diagram also shows the lot which the evidence shows was occupied by J. V. Niles and family at the time of testator's death. It is bounded on the east by the fence as shown, on the south by the Denson property and on the west by Main Street. The north boundary line of the lot occupied by J. V. Niles and family is the principal question in this case. If this line is established in accordance with the language of the will alone, it runs "due west from northwest corner of barn located on said lot." If the will should be construed with the description contained in the documents found in the envelope it should be established from "a point on sidewalk due west of the northwest corner of barn and strait east from above mentioned point on sidewalk on east side of property on railroad right of way." It is obvious that if the latter description prevails the lot devised to Mollie Cook will include the part of the pasture which lies to the rear of house occupied by J. V. Niles.
The cardinal rule of construction is that the intention of the testator must be ascertained and given effect. Without question the descriptive language in the will presents a latent ambiguity as to what constituted the dwelling house and lot where the testator was residing with his wife at the time of his death. Also the will presents a latent ambiguity as to what constituted at the time of testator's death the "house and lot known as my old home house and lot occupied at this time by J. V. Niles and family." It was proper to remove these latent ambiguities by appropriate parol evidence to identify these properties and to give these descriptions the meaning which the testator intended they should have. Achelis v. Musgrove, 212 Ala. 47, 101 So. 670; Wiley v. Murphree, 228 Ala. 64, 151 So. 869.
But the principle to which we have referred does not mean that parol evidence can be introduced to show that the will means something different from the ordinary intendment of its words. Extrinsic evidence is not admissible to vary, contradict or add to the plain and unambiguous language of the will. Authorities, supra. There is nothing ambiguous in the description in the will of the line marking the north boundary of the lot now occupied by J. V. Niles and family as follows: "which property is bounded on the north by line running due west from the northwest corner of barn located on said lot." We must take the terms which the testator *475 used in the will. "It is never admissible to show terms the testator intended to use." Achelis v. Musgrove, supra. [212 Ala. 47, 101 So. 672]. In other words "parol evidence is not admissible to show that the testator meant one thing when he said another." 57 Am.Jur. p. 579. The memoranda and plat, though enclosed in an envelope with the will, is not admissible to show the testator's intent as to the boundary line between the properties devised by the will, where the will makes no reference to these documents and the line is described in the will without ambiguity. Dozier v. Dozier, 201 Ala. 174, 77 So. 700; Kyle v. Jordan, 196 Ala. 509, 71 So. 417; Johnston et al. v. King et al., 250 Ala. 571, 35 So. 2d 202.
Appellant further argues that the practical construction placed on the will by Malinda Jane Morton became binding on her. There is testimony tending to show a statement by her that the north boundary of the property devised to appellant extended east to the railroad right-of-way. As we have pointed out the description of the north boundary line is without ambiguity and so the statement claimed to have been made by appellee is irrelevant. 69 C.J. p. 125. Besides appellee denies that she made the statement attributed to her.
Lastly appellant argues that the rights of appellee should be governed by a statement made in argument by her counsel on the trial of the contest of the will. There he stated in argument in effect that the will devised to Mollie Cook the part of the pasture which lies east of the house and lot occupied by J. V. Niles. This position is not tenable. The statement of counsel made in argument on the contest of the will on the ground of undue influence was not a distinct, formal solemn admission made for the express purpose of relieving Mollie Cook from establishing the correct interpretation of the will in subsequent trials such as the case at bar. Le Barron v. City of Harvard, 129 Neb. 460, 262 N.W. 26, 100 A.L.R. page 775; 31 C.J.S., Evidence, § 361, page 1137. See § 46, Title 46, Code of 1940; Blackwood v. Maryland Casualty Co., 227 Ala. 343, 150 So. 180. Besides as we understand the situation it was argued by counsel for Mollie Cook that Malinda Jane Morton had exercised undue influence in getting the testator to forego the plans for division which he had made as evidenced by the memoranda and plat and so reduced the area of the property willed to her by using the description of the property contained in the will.
In the answer of Malinda Jane Morton which she prayed to be taken as a cross bill she alleged that on June 14, 1943 she recovered of complainant in the Probate Court of Marshall County three judgments in the respective amounts of $163.50, $91.77 and $87.50, that certificates of these judgments were duly recorded in the probate office of Marshall County, Alabama so as to constitute liens upon all property of Mollie Cook subject to execution in said county and that the property devised to complainant by the will of D. A. Morton was and is subject to execution and that these judgments are due and unpaid. She prayed that unless the judgments were paid within a time fixed by the court that the property devised to Mollie Cook be sold to satisfy the judgments.
Demurrer was interposed to the foregoing allegations on the ground that the judgments were not germane to the issues presented by the original bill. However, the original bill was amended so as to show in substance that the indebtedness evidenced by the judgments aggregated in amount less than $273 and the complainant paid that amount in court as a tender to Malinda Jane Morton in full settlement of the judgments. The court sustained the demurrer to the paragraph of the amended bill which contained the allegations with reference to the tender and yet in its final decree the court ordered the register to pay to the respondent the amount of the tender made by complainant in full satisfaction of the liens referred to in the cross bill.
The effect of sustaining the demurrer to the paragraph of the amended bill setting up the tender was to strike that paragraph from the bill as amended and to deprive the court of the power to render a decree holding the tender good. Bates v. Baumhauer, 239 Ala. 255, 194 So. 520; Dinsmore v. J. H. Calvin Co., 216 Ala. 503, *476 113 So. 522. As shown, however, in Gamble v. Andrews, 187 Ala. 302, 65 So. 525, the action of the court is regarded as an inadvertence and the decree will be corrected so as to eliminate reference to the tender. The judgments are hereby established as liens on the property devised to Mollie Cook and the court will enter a decree ascertaining the proper amount due and ordering a sale of the property for payment of the liens at such time and place and under such conditions as the court may deem proper.
The property in this case had been owned by Dr. D. A. Morton and by him devised to the two parties to this suit, his widow and his daughter. These judgments were recovered by the widow against the daughter on the final settlement of decedent's estate in the Probate Court. Appellant brought the title to her lot into court, claiming to be the holder of the title. We think appellee could show that such title was subject to liens in her favor. No other property was sought to be brought in and there were no other parties. The subject matter of the cross bill, viz., the judgments, the liens arising from recordation of the certificates thereof, and the effort to collect the judgments were under the circumstances germane to the subject matter of the original bill. Propst v. Brown, 250 Ala. 282, 34 So. 2d 497.
As corrected the decree of the lower court is affirmed.
Corrected and affirmed.
FOSTER and SIMPSON, JJ., concur.
LAWSON, J., concurs in the result. | May 18, 1950 |
95644892-2f46-4ce0-a387-c613677a4bad | Rodgers v. Thornton | 46 So. 2d 809 | N/A | Alabama | Alabama Supreme Court | 46 So. 2d 809 (1950)
RODGERS
v.
THORNTON.
6 Div. 956.
Supreme Court of Alabama.
May 11, 1950.
Rehearing Denied June 22, 1950.
H. L. Anderton, of Birmingham, for appellant.
Jas. H. Bradford and Jackson, Rives & Pettus, of Birmingham, for appellee.
SIMPSON, Justice.
This case was here before on appeal from a decree on demurrer, where it was held that the bill was good as one to establish a resulting trust. Reference may be had to that opinion for the pleadings in the case. Thornton v. Rodgers, 251 Ala. 553, 38 So. 2d 479.
The present appeal presents for decision the right of appellant to relief on the facts.
Mrs. Rodgers, the appellant, formerly wife of defendant, J. L. Thornton, in March, 1948, filed the bill against him to establish a resulting trust in various of his real estate holdings on the theory that in 1925 he had received a certain sum of money of her separate estate and had invested it in a tract of real estate, along with his own money, with the understanding that she would have an interest in it and that throughout the years intervening she had been led to believe that she still was to have an interest in his successive holdings after the sale many years ago of that particular piece of *810 property. The appellant's claim to the sum of money as her separate estate is based on the payment of $3,000 by the Birmingham Gas Company in 1925 as damages by reason of a gas explosion in appellee's home, where the couple resided, the contention being that a part of the sum which was paid in settlement of the damages was for personal injuries to herself; that though the husband, appellee, received and utilized the entire sum of money himself, it was to purchase a piece of property upon which another home was later constructed, with his agreement with her that she would have an interest in the property and that her interest would be protected; that though this piece of property was disposed of, as well as many others, her husband left her under the impression that her interests were always to be protected.
In addition to a denial of the entire claim of appellant, the defendant defended on the ground of (1) laches and (2) an agreement (reported with the first case) which was executed between the parties in 1943 in contemplation of a divorce, then obtained by him, whereby it is contended that appellant had released all interest which she might have ever claimed.
The applicable principles of law were fully discussed on the former appeal. The principles are well understood and need no further elaboration. The question which we are to decide is one of fact. The trial court on a hearing of the witnesses in open court concluded against Mrs. Rodgers and we are constrained to sustain that holding. We are left unconvinced, after a studious consideration of the record, that she has sustained the onus probandi.
For emphasis, we refer to the favorable presumption of correctness attending the trial court's conclusion on issues of fact in such cases. On a hearing ore tenus, such conclusions will not be disturbed unless palpably erroneous and are against the great weight of the evidence; and it is not necessarily what view the reviewing court might have of the evidence, but if under any reasonable aspect the decree below is fairly supported by credible evidence, it is our duty to affirm. Lane v. Bruner, 236 Ala. 269, 182 So. 5; Ray v. Ray, 245 Ala. 591, 18 So. 2d 273; Penny v. Penny, 247 Ala. 434, 24 So. 2d 912. Aided by this presumption, it is clear the decree must be affirmed.
But this presumption aside, it is clear the claim of trust cannot be sustained. The evidence is too uncertain that any ascertainable part of the $3,000 was paid by the gas company in settlement for personal injuries of Mrs. Thornton (Rodgers) or that any of her money went into the purchase of any property as a basis even to establish a trust in the first property acquired, had Thornton still held title to it. To declare a trust upon property, the specific trust fund or some ascertainable part of it must be traced into that property. Kennedy v. Carter, 217 Ala. 573(3), 117 So. 182; 19 Ala. Digest, Trusts. This, as observed, appellant has not done.
It must be remembered that the theory underlying the right to relief is the use of appellant's money to buy land or an interest in land, the title being taken in her husband. The principle has its foundation in the natural presumption that one who supplies the purchase money intends the purchase to be for his own benefit and not for another, and when the conveyance is taken in the name of another the presumption usually arises that the grantee is holding the land in trust for the purchaser. But this is only a rule of presumption to be applied in the absence of all rebutting circumstances. And where the attendant circumstances rebut such presumption, then the duty is on the one seeking to establish the trust to prove it by clear, convincing and unequivocal evidence. We have said in such cases that the proof must correspond more closely with the pleadings than in other cases, and if the proof is doubtful, uncertain or unsatisfactory, relief will be denied. Merchants National Bank of Mobile v. Bertolla, 245 Ala. 662, 18 So. 2d 378; Lauderdale v. Peace Baptist Church, 246 Ala. 178, 19 So. 2d 538.
*811 In the light of this established principle, we are not willing to disturb the finding below. The trial court must have been impressed, as are we, with the adumbrant character of proof proffered to sustain the trust, as well as the long delay of the plaintiff in attempting to assert any rights in any of her husband's properties. Even though, we gather from her testimony, there had been strained relations between herself and her husband for many years prior to the divorce, during all these years she joined in conveyances of various of his properties, and then when the divorce proceedings were concluded in 1943 she entered into the agreement which apparently settled any claim she might have had to any of his property, and still took no steps to protect herself in regard to this claim of trust. She, of course, sought to prove her lack of understanding of the agreement, but here again the trial court was warranted in concluding that she failed to sustain the burden of proof.
Our conclusion is that the decree below should not be disturbed.
Affirmed.
FOSTER, LIVINGSTON and STAKELY, JJ., concur. | May 11, 1950 |
db21d647-3631-447c-9e5b-52d5c42b20a2 | Kilgore v. Gamble | 44 So. 2d 767 | N/A | Alabama | Alabama Supreme Court | 44 So. 2d 767 (1950)
KILGORE
v.
GAMBLE.
6 Div. 933.
Supreme Court of Alabama.
March 2, 1950.
Bankhead, Skinner & Kilgore, of Jasper, for appellant.
J. A. Posey, of Haleyville, for appellee.
BROWN, Justice.
The bill was filed by appellant August 8, 1948, seeking to redeem the lands described in the bill situated in Winston County, Alabama, from a tax sale made in default of the payment of taxes by the owner on August 28, 1933, for taxes due and payable in 1932. At said sale the lands were bought in by the state.
The complainant, appellant here, asserts his right to redeem as the remote assignee of a recorded mortgage on the land executed by the owner John Kilgore on May 22, 1928, to Eclipse Coal Company. The appellee, a grantee of the state once removed was made the sole party defendant. The defendant, as the allegations of the bill show, claims under the original purchaser from the state to whom the lands were conveyed December 21, 1937, and then conveyed to defendant February 20, 1939, putting him in possession. At the filing of the bill he was engaged in operating a coal mine on said lands and as against this activity, the bill prays for temporary and permanent injunctive relief, for an accounting against the defendant for the value of the coal removed from the land and for the value of the timber cut in the mining operation. The complainant claims the right to redeem through a chain of assignments of said John Kilgore mortgage, running from Eclipse Coal Company through the Birmingham Mortgage Company, all of which, as the bill alleges, were duty recorded in the Probate Office of Winston County, Alabama. The bill alleges "that on towit February 12th, 1929, the said Shackelford Corporation transferred and assigned all of the interest it had in said mortgage to the Birmingham Mortgage Company; that during the month *768 of April, 1941, Birmingham Mortgage Company, a corporation, was forced into receivership, or involuntary bankruptcy in a court of competent jurisdiction; that during the period of said receivership and prior to the discharge of the receiver, L. F. Jeffers as receiver of Birmingham Mortgage Company transferred and assigned said mortgage to Shackelford Corporation by instrument dated March 6, 1942," which was recorded in the office of the judge of probate.
"Complainant avers that on towit January 8, 1938, after W. A. Gamble purchased from the State of Alabama, on December 21, 1937, or within eighteen (18) days Birmingham Mortgage Company made application to redeem said lands, deposited with the Probate Judge of Winston County, Alabama, the amount for which said lands were sold to the state, namely, forty-six ($46.00) Dollars, together with all interest, taxes and costs to that date, and that the Probate Judge has held said money on deposit for the said W. A. Gamble, or the respondent, since that date, but the said Probate Judge refused to issue to Birmingham Mortgage Company a certificate of redemption, and that said W. A. Gamble refused to accept said money."
Subsequent to the foregoing, the bill alleges that Birmingham Mortgage Company on March 6, 1942, through said Jeffers as receiver conveyed its interest in said mortgage and said lands to Shackelford Corporation and that the last mentioned transferred its interest in said mortgage and said lands to appellant November 24, 1942."
On these averments the complainant in effect seeks to be subrogated to any benefit the Birmingham Mortgage Company may have gained by its alleged effort to redeem.
The bill also alleges that neither the State of Alabama, the State Tax Commission or State Land Commissioner gave said mortgagee or any assignee or complainant any written notice of any kind to redeem before the sale of said lands to W. A. Gamble or that the respondent W. A. Gamble gave any written notice to redeem to the Birmingham Mortgage Company or appellant, "and no such notice was given by any person or agency."
There is an absence of allegation in the bill that any of said assignees of said mortgage, other than the Birmingham Mortgage Company, took any steps to redeem. Nor does the bill allege that said Birmingham Mortgage Company acted for the benefit of any one except to protect its own interest and the allegations show that it failed to press the matter to a successful conclusion.
The trial court sustained demurrer to the bill for the reason assigned in the decree that complainant does not occupy the status of a person authorized by section 303, Title 51, Code, to redeem, because he has no interest in the land as contemplated by that statute; is not a judgment creditor or other creditor having a lien on the land, but only an assignee of a mortgage on November 24, 1942, more than nine years from the date of the tax sale.
We understand that holding to be that for an assignee of a mortgage to be allowed to redeem he must be such at the time of the tax sale. But section 303, supra, has not received that construction. Alabama Mineral Land Co. v. McFry, 236 Ala. 632(8), 184 So. 192. That authority observes that a person may redeem under section 303, supra, if he comes into the status of one thus authorized before the right to redeem expires. That includes any person having an interest in the land. We see no reason to doubt that the assignee of a valid mortgage, who becomes such before the right to redeem has expired, may exercise that right. Under section 303, supra, it may be redeemed at any time before the title passes out of the State. And if a person is either the original mortgagee or his transferee of record, an additional period of one year is allowed from the date of giving written notice to him by the purchaser of his purchase. The period in which a redemption may be had when the purchaser is one other than the State is three years, with such additional allowance of one year, above noted. The right of a mortgagee or his transferee of record continues therefore along with the right of others mentioned in section 303, *769 supra, as long as the State holds title under the tax purchase. The notice provided in section 303, supra, according to its terms, would extend the period of one year after the notice and therefore may continue after the State has sold the land. If such written notice is not given at all, as there provided, the right to redeem by a mortgagee or his transferee of record would be cut off only by adverse possession.
The bill shows that complainant and his predecessors were each transferees of record of a mortgage also of record during the entire period extending from the date of the tax sale to the filing of this suit. And that no such written notice was given to any of them, as required by section 3109, Code of 1923, § 303, supra.
The right to redeem under §§ 303 and 304, Title 51, Code of 1940, continued at least until the sale was made on December 21, 1937, by the land commissioner. A few days after this sale was made the Birmingham Mortgage Company, then a record transferee of a recorded mortgage, undertook to redeem under § 304, supra. If no notice had been given to it before then and no notice had been given to the mortgagee or to the Shackelford Company, a preceding transferee of record of the mortgage, the right to redeem existed in the Birmingham Mortgage Company when it undertook to redeem unless the notice required by § 316, Title 51, Code of 1940, had been given to it. That statute does not require notice to all persons entitled to redeem under section 303, supra, but only to some one of them. If it was given to any one of them the sale by the State would not be void. But if no notice was given to a transferee of record of a mortgage as provided in section 303, it necessarily follows that no notice was given him as provided in § 316, supra, because notice sufficient under § 316 would include the requirements of section 303, supra. So that since the bill alleges that notice was not given to the Birmingham Mortgage Company, the Shackelford Company, or the mortgagee, it follows that the sale by the State on December 21, 1937, did not cut off the right to redemption then existing in the Birmingham Mortgage Company. So that, when on January 8, 1938, the Birmingham Mortgage Company undertook to redeem it had the prima facie right to do so, if the mortgage was then subsisting. The Birmingham Mortgage Company pursued the right course as provided in § 304, supra, to redeem. But that act on the part of the Birmingham Mortgage Company showed that it had actual knowledge of the tax sale and of the matters which the written notice provided for in section 303, supra, would disclose. No other written notice is necessary to be given it or a subsequent transferee of the mortgage. The Birmingham Mortgage Company could have enforced that right by requiring the judge of probate to take the steps provided for in § 304, supra. A failure to do so until there was a transfer of the mortgage to the Shackelford Company on March 6, 1942, and by it to complainant on November 24, 1942, amounted to an abandonment of the right, and the transfers of the mortgage did not carry anything in that respect. If the then holder of record of a mortgage has knowledge of the facts prescribed in § 303, supra, or such notice is given him, the rights of any subsequent holder are cut off by the failure of the former to act within the one year period. Therefore the failure of the Birmingham Mortgage Company to pursue its effort to redeem allowing four years to pass without taking some further action to enforce what it had started, serves to cut off all such rights which it had and a subsequent transferee is in no better position.
The bill also shows that it is subject to the ground of demurrer which goes to the point that the mortgage is over twenty years old and, therefore, presumably paid. Staten v. Shumate, 243 Ala. 261, 9 So. 2d 751; Hendley v. First National Bank, 235 Ala. 664, 180 So. 667. When so the duty is on complainant to overcome that presumption by alleging the facts which keep it subsisting. Ussery v. Darrow, 238 Ala. 67, 188 So. 885; Phoenix Chair Co. v. Daniel, 228 Ala. 579, 155 So. 363; Mullen *770 v. First National Bank, 226 Ala. 305, 146 So. 802.
No such facts are alleged. It is unnecessary to discuss the statute as it appears in § 174, Title 47, Code of 1940, in this connection. See, Hendley v. First National Bank, supra.
The bill shows on its face that if the facts are as alleged no amendment could give it equity.
We think the decree sustaining the demurrer and dismissing the bill was without error and it is affirmed.
Affirmed.
FOSTER, LAWSON, SIMPSON and STAKELY, JJ., concur. | March 2, 1950 |
6238115d-9624-4b8b-8f06-8711346d6fcd | Ramsey v. Wilkins | 46 So. 2d 407 | N/A | Alabama | Alabama Supreme Court | 46 So. 2d 407 (1950)
RAMSEY et al.
v.
WILKINS.
HORN
v.
RAMSEY.
6 Div. 819, 863.
Supreme Court of Alabama.
May 11, 1950.
A. W. Jones, of Birmingham, for appellants (and appellees) Ramsey and Estill.
Robt. C. Garrison and Drennen & Drennen, of Birmingham, for appellant Horn.
Amzi Barber, of Birmingham, for appellee Wilkins.
LIVINGSTON, Justice.
Two appeals from separate rulings on demurrer, as will appear from the opinion, are consolidated and presented here on one record.
The original bill in this case was filed by J. L. Ramsey against Lambert Horn and W. L. Estill. It alleged the formation of a partnership between the three parties for *408 the operation of a brokerage business in the City of Birmingham, Alabama, to be known as Lambert Horn and Company. It sought a dissolution of the partnership, the appointment of a receiver, the collection and sale of the assets of the partnership and a distribution of the proceeds, and general relief. No point is here presented as to the sufficiency of the original bill of complaint.
Lambert Horn answered the bill and made his answer a cross bill. J. L. Ramsey interposed demurrers to the cross bill as a whole and to the several aspects thereof. Demurrers were sustained to all of the aspects of the cross bill, save one to be noted later, and from that decree Horn prosecuted the appeal which presents one of the questions now before us for review.
Pending the suit in the court below, A. V. Wilkins filed a petition to intervene in said cause between Ramsey, Horn and Estill. Ramsey and Estill demurred to the petition of Wilkins. From a decree overruling their demurrers, Ramsey and Estill appealed. That decree presents the other question for review. We will consider the questions in the order set out above.
The original bill of complaint, as amended, filed by J. L. Ramsey alleges in substance that on, to wit, October 13, 1945, Lambert Horn, Arledge Wilkins and W. L. Estill entered into a written partnership agreement for the purpose of operating a brokerage business known as Lambert Horn and Company, a copy of which agreement as amended is marked exhibit "A", attached to the bill of complaint and made a part thereof; that on, to wit, the 26th day of July, 1946, Ramsey purchased the interest of Wilkins, and that by written agreement, which is the amendment of the partnership agreement of October 13, 1945, Ramsey, Horn and Estill adopted the partnership agreement of Horn, Wilkins and Estill dated October 13, 1945. It further alleges disagreements of the partners in the conduct of the partnership business and seeks a dissolution of the partnership, the appointment of a receiver, the distribution of assets, etc. As above stated, the question of the sufficiency of the original bill is not before us.
In his answer Horn admits the execution of the partnership agreement of October 13, 1945, and the execution of the amendment thereto of July 26, 1946. These agreements do not contain any provision for the continuance of the partnership for any definite period of time. In his cross bill Horn, in pertinent part, alleges that in 1936 he entered the brokerage business under the name of Lambert Horn and Company; that in November 1944 he entered into a written agreement with Wilkins for the sale of said business, the agreement to take effect January 1, 1945; that under the agreement with Wilkins, Horn was to receive twenty-five percent of the gross receipts of the business for a period of ten years. Horn also reserved the right or option, upon conditions named, to repurchase from Wilkins an interest in the business. The sales agreement contains other provisions not here material. Horn's cross bill further alleges in substance that at the time of the execution of the partnership agreement of October 13, 1945, by Horn, Wilkins and Estill, that Estill "desiring to become a partner with the said Arledge V. Wilkins in the purchase of the said Lambert Horn and Company, brought about the execution of the ostensible partnership agreement of October 13, 1945, which was intended to have the ultimate effect of a sale by this respondent (Horn) of his said business and make W. L. Estill an equal owner with the said Arledge V. Wilkins in the purchase of said business on the basis of the payment to this respondent (Horn) of one-third of the profits of said business for a period of ten years ending October 13, 1954. Also that said partnership agreement should constitute an extension and modification of the terms of the original sales contract between this respondent (Horn) and said Arledge V. Wilkins." He further alleges that at the time the partnership agreement of October 13, 1945, was executed it was agreed between the parties that said agreement should remain in force and effect for a period of ten years and that it was not intended to create a partnership at will. He further alleges, in substance that, under the amendment of the partnership agreement of July 26, 1946, Ramsey acquired *409 no rights other than the right of Wilkins, encumbered by the alleged obligation of Wilkins.
By amendment Horn alleged in his cross bill, in substance, that the parties to the partnership agreement of October 13, 1945, as amended by the agreement of July 26, 1946, intended that the partnership agreement was to continue for a term of ten years; that it was so agreed between the parties, but through inadvertence and the mutual mistake of the parties, the written agreement was executed without such stipulation being contained therein. As to this aspect of the bill, he prays for a reformation of the agreement in order that it be made to speak the truth and agreement of the parties. Demurrers addressed to this aspect of the bill were overruled, but we are not here concerned with that part of the decree.
As we understand it, appellant Horn argues for a reversal on the theory that the allegations of his cross bill show that in the formation of the partnership on July 26, 1946 between Horn, Estill and Ramsey, it was agreed to continue the partnership for a term of ten years and the effort to dissolve the partnership constituted a breach of the partnership agreement, destroyed his business and contemplated profits.
Undeniably the writings constituting the partnership agreement between Ramsey, Horn and Estill, and which Horn admits executing, contain no provision for the continuation of the partnership business for any definite period of time. The partnership is therefore a partnership at will which may be terminated at any time at the will of either partner without liability for doing so. Section 33, Title 43, Code of 1940.
It is not alleged that the agreement or provision for the continuation of the partnership for a definite term was in writing. The general rule in the law of contracts is that when the parties reduce their agreements and obligations to writing, the writing, in the absence of mistake or fraud, is the sole expositor of the transaction and intention of the parties, and obligations not expressed therein may not be raised by implication. 12 Am.Jur. page 755, section 232; Birmingport Lumber Co. v. Chickasaw Wood Products Co., 244 Ala. 345, 13 So. 2d 770.
It follows that the aspects of the cross bill now under review were subject to the demurrer interposed and were properly sustained.
The further question presented by the record is the propriety of the court's action in overruling the demurrer of Ramsey and Estill to the petition of Wilkins to intervene in the suit for a dissolution of the partnership.
On July 7, 1948, Arledge V. Wilkins filed his written motion in the Circuit Court, in Equity, of Jefferson County, asking that he be allowed to file a petition to intervene in the suit of Ramsey against Horn and Estill for a dissolution of the partnership. Equity Rule 37, Code 1940, Tit. 7 Appendix; see, also, Title 7, section 247, Code. Attached to the motion was a copy of the petition to intervene and also a copy of the bill of complaint in the nature of a cross bill stating his alleged claim against the parties. The court set the motion for hearing and ordered copies of the motion, petition for intervention and the bill in the nature of a cross bill served on Ramsey and Estill. Service was so had. At the time he filed his motion, Wilkins also filed his petition to intervene and his bill in the nature of a cross bill. Ramsey and Estill demurred to the petition to intervene and also demurred to the bill in the nature of a cross bill. The court overruled the demurrers to the petition to intervene, and that is the only ruling we now have before us for consideration.
Section 754, Title 7, Code, provides for appeals from final judgments. Section 755 of the same title provides for appeals from certain designated interlocutory judgments and decrees. The decree now considered is neither a final decree within the purview of section 754, nor an interlocutory decree within the purview of Section 755 and will not support an appeal. See the following cases: Montgomery, Supt. v. Jefferson County, 228 Ala. 568, 154 So. 785; Thomas v. Thomas, 214 Ala. *410 293, 107 So. 810; Devane v. Smith, 216 Ala. 177, 112 So. 837; Hicks v. Ward, 240 Ala. 236, 198 So. 705; Ex parte Weissinger, 247 Ala. 113, 22 So. 2d 510; Sims v. Sims, 250 Ala. 494, 35 So. 2d 89; McGregor v. McGregor, 250 Ala. 662, 35 So. 2d 685.
This Court is without jurisdiction to entertain the appeal and must of its own motion take note of such lack of jurisdiction. Hicks v. Ward, supra.
We are not to be understood as holding that an appeal will not lie from a decree sustaining or overruling a demurrer to a bill of intervention. In that connection see Cortner v. Gaylon, 223 Ala. 405, 137 So. 30.
The decree of the lower court sustaining the demurrer to Horn's cross bill is affirmed. The appeal from the ruling of the trial court overruling the demurrer to Wilkins' petition to intervene is dismissed.
Affirmed in part and in part the appeal is dismissed.
FOSTER, SIMPSON and STAKELY, JJ., concur. | May 11, 1950 |
80516543-d6d0-4d40-891c-575d09ba0296 | Cornelison v. Logan | 46 So. 2d 215 | N/A | Alabama | Alabama Supreme Court | 46 So. 2d 215 (1950)
CORNELISON
v.
LOGAN.
6 Div. 975.
Supreme Court of Alabama.
May 11, 1950.
*216 Hollis B. Parrish, Jr., and Geo. W. Yancey, of Birmingham, for appellant.
Francis H. Hare and Nicholas S. Hare, of Birmingham, for appellee.
SIMPSON, Justice.
Oneda Logan recovered a judgment for personal injuries against Otis S. Cornelison on a single count alleging wanton conduct in the operation of a motor vehicle in which she was riding as a passenger, and he has appealed.
The appeal asserts two propositions as error: (1) the refusal to the defendant of the general affirmative charge, and (2) the denial of the motion for a new trial. On a careful scrutiny of the record, the court is of the opinion that neither insistence can be sustained.
The plaintiff, Miss Logan, was a guest passenger when she was being escorted to her home by the defendant in his truck-tractor about 11:30 p. m., July 19, 1946. It was a dark night and the defendant admitted he had no view of the road ahead without lights. His headlights were defective and had previously gone out twice the same night, but had "flickered" back on. He was driving his truck about thirty-five miles an hour downgrade, or "faster immediately before the accident," when the lights again went out. He was not familiar with the road, didn't know where the turn-off from the highway was located, but continued to drive in the dark and attempted to make the turn without lights and applied no brakes until he realized he was leaving the road. He collided with a telephone or light pole, ran into the Republic Commissary, about forty feet from the road, and finally came to a stop. The plaintiff suffered serious injuries. There is some dispute in the evidence as to the distance travelled after the lights went out. Just before the accident the plaintiff had warned the defendant to watch for the turn-off to his right. The top of the hill to the intersection where the defendant attempted to turn off the highway was almost a couple of blocks, and *217 there is some evidence that the defendant drove about half the distance, or nearly a block, in the dark after the lights went out. He knew the road was crooked and that there was an intersection or turn-off ahead, but he was not familiar with the exact location. Yet he continued to drive on in the dark and attempted to make this sharp turn-off road.
Our view is that this evidence justified the refusal of the affirmative charge and the overruling of the motion for a new trial. A strong and substantial inference may be drawn against the defendant to support the charge of wantonness, and we think the jury had a right to conclude against him on that issue.
On the question of the propriety of the affirmative charge, we, of course, review the tendencies of the evidence in the most favorable light toward the plaintiff, and this without any regard to the view which we may have as to its weight, and allow such reasonable inferences as the jury was free to draw, not those which we think to have been the more probable. Duke v. Gaines, 224 Ala. 519, 140 So. 600; Capitol Motor Lines v. Billingslea, 246 Ala. 501, 21 So. 2d 240, 157 A.L.R. 1207.
The defendant knew of the dangerous circumstances under which he was driving; namely, a narrow winding road, a steep downgrade, a dark night without any visibility, and defective condition of his lights. With full knowledge of these conditions, he consciously and intentionally continued to drive his truck at a speed of approximately thirty-five miles per hour or more after his lights went out, for a distance of at least 100 or 150 feet (or a half-block or more), without applying brakes or attempting to slow down, even though he was aware of such dangerous situation and was unfamiliar with the road ahead, and even though the plaintiff had cautioned him about the turn-off to the right.
The governing rule is well understood. Wanton injury is injury produced by a conscious and intentional wrongful act, or the omission of a known duty with reckless indifference to the consequences. So if the defendant with knowledge that the plaintiff or some person so situated would be subject to danger of being injured as a probable consequence of his conduct, and with reckless disregard of such consequences he pursued that conduct which proximately caused the injury complained of, he would be guilty of wantonness. Dean v. Adams, 249 Ala. 319, 30 So. 2d 903, and cases cited; Duke v. Gaines, supra.
Our view is that the record manifests a typical case of wanton injury, or at least it was open to the jury to draw such an inference, of consequence of which the affirmative charge and the motion for a new trial were well refused.
In addition to the cases, supra, the following may be cited as sustentive: Griffin Lumber Co. v. Harper, 247 Ala. 616, 25 So. 2d 505; First National Bank of Dothan v. Sanders, 227 Ala. 313, 149 So. 848; Simon v. Goodman, 244 Ala. 422, 13 So. 2d 679; Lambert v. Birmingham Electric Co., 244 Ala. 333, 13 So. 2d 579; Birmingham R. L. & P. Co. v. Jung, 161 Ala. 461, 475, 49 So. 434, 18 Ann.Cas. 557; Birmingham Electric Co. v. Mann, 226 Ala. 379, 147 So. 165; Dozier v. Woods, 190 Ala. 279, 67 So. 283; Daniel v. Motes, 228 Ala. 454, 153 So. 727, 728; Couch v. Hutcherson, 243 Ala. 47, 8 So. 2d 580, 141 A.L.R. 697; Seitz v. Heep, 243 Ala. 372, 10 So. 2d 148; Alabama Power Co. v. Buck, 250 Ala. 618, 35 So. 2d 355; Godfrey v. Vinson, 215 Ala. 166, 110 So. 13, 15; Birmingham Ice & Cold Storage Co. v. McFarling, 240 Ala. 479, 200 So. 110; Norton v. Puter, 138 Cal. App. 253, 32 P.2d 172; Smith v. Central of Ga. Ry. Co., 165 Ala. 407, 51 So. 792; Walker v. Bacon, 132 Cal. App. 625, 23 P.2d 520; Peterson v. Peterson, 20 Cal. App. 2d 680, 67 P.2d 759; Meek v. Fowler, 3 Cal. 2d 420, 45 P.2d 194, 197; Turner v. Standard Oil Co., 134 Cal. App. 622, 626, 25 P.2d 988, 990; Goss v. Overton, 266 Mich. 62, 253 N.W. 217.
Affirmed.
FOSTER, LIVINGSTON, and STAKELY, JJ., concur. | May 11, 1950 |
f97d452b-55e2-474d-8972-c0c4b8f2b4cb | Milliner v. Grant | 45 So. 2d 314 | N/A | Alabama | Alabama Supreme Court | 45 So. 2d 314 (1950)
MILLINER
v.
GRANT.
8 Div. 482.
Supreme Court of Alabama.
March 30, 1950.
Ralph H. Ford and Griffin, Ford, Caldwell & Ford, of Huntsville, and Joe M. *315 Dawson and Brown, Scott & Dawson, of Scottsboro, for appellant.
Proctor & Snodgrass, of Scottsboro, for appellee.
LIVINGSTON, Justice.
This suit was instituted to cancel, set aside and hold for naught a deed alleged to be the product or result of the "undue or dominating" influence of respondent upon complainant. We take it that, as here used, "undue" and "dominating" mean one and the same thing. The cause was tried in the court below on the depositions of witnesses, and there is no presumption here in favor of the finding of that court on the evidence.
The parties are sisters. At the time the deed was executed and delivered the appellant and grantor in the deed was approximately 22 years old and the and the appellee and grantee was approximately 30 years of age.
The property in question, a farm, was inherited in the year 1930 by descent cast from the father of the parties to this proceeding. On December 27, 1941, the appellant executed and delivered to the appellee a deed conveying her undivided one-half interest in and to the farm inherited from the father. The recited consideration was $5,000 to be paid in 25 equal payments over a peroid of 25 years, and secured by a mortgage on the property, the unpaid balance to bear interest at the rate of four percent per annum. This mortgage was executed and delivered to appellant and payment made in accordance therewith until this suit was instituted on, to wit, December 23, 1946. The appellant is of a low order of mentality and has twice (once in 1936 and again in 1942) been an inmate of Bryce Hospital, an Alabama state hospital for the mentally deficient at Tuscaloosa. But the validity of the deed in question has not been attacked on the ground that appellant was mentally incompetent to make it. A short time before this suit was brought appellant married one Milliner, a man some 25 years older than she. Appellee's testimony was to the effect that Milliner was the instigator of this suit and the moving spirit behind its prosecution: that her sister did not want the suit brought and did not testify in the case, although she was well and able to attend court.
Every phase of the law applicable to the facts of the instant case is stated in the case of Floyd v. Green, 238 Ala. 42, 188 So. 867, 869, as follows:
"In Walling v. Thomas et al., 133 Ala. 426, 430, 31 So. 982, 983, the authorities are collected to the effect that, `A conveyance of lands, obtained for a grossly inadequate consideration, by unfair advantage taken of great mental weakness, though not amounting to absolute incapacity, of the grantor, will, in equity, be set aside, on equitable terms, when application therefor is made seasonably by the grantor, his representatives or heirs. Waddell v. Lanier, 62 Ala. [347] 349; Shipman v. Furniss, 69 Ala. [555] 562, 44 Am.Rep. 528; Burke v. Taylor, 94 Ala. 530, 10 So. 129; Allore v. Jewell, 94 U.S. 506, 24 L. Ed. 260; Harding v. Handy, 11 Wheat. 103, 125, 24 U.S. 103, 6 L. Ed. 429; Raymond v. Wathen, 142 Ind. 367, 41 N.E. 815; 18 Enc. Pl. & Prac. 765, 771. In such case, the deed, being voidable only, and not wholly void, passes title to the grantee, and the heirs' claim to relief rests not on legal succession to the title, but on an equitable right to be invested with such succession. The relief appropriate to be afforded by the courts is by enforcing rescission of the contract of sale, and cancellation of the deed.'
"To like effect are the recent decisions in this court and in other jurisdictions. Kirby v. Arnold, 191 Ala. 263, 68 So. 17; Pool v. Menefee, 205 Ala. 531, 88 So. 654; Strickland v. Strickland, 206 Ala. 452, 90 So. 345; L.R.A.1916D, 388, note; 2 A.L.R. 432-note; 2 A.L.R. 449, note.
"As to just what constitutes undue influence depends on the facts and circumstances of each individual case. Pilcher v. Surles, 202 Ala. 643, 81 So. 585; Barkley v. Boyd, 211 Ala. 50, 99 So. 196.
"There are certain principles that are established, illustrated and well stated as follows:
*316 "In the case of Hutcheson v. Bibb et al., etc., 142 Ala. 586, 38 So. 754, it is declared:
"`* * * "Undue influence with respect to gifts and conveyances inter vivos is a very different matter. It may exist without either coercion or fraud. It may result entirely from the confidential relation, without activity in the direction of either coercion or fraud, on the part of the beneficiary occupying the position of dominant influence. It is upon him not only to abstain from deceit and duress, but to affirmatively guard the interests of the weaker party, so that their dealing may be upon a plane of equality and at arm's length. To presume undue influence in such a case, therefore, is not to presume fraud or coercion, or any act which is malum in se, but simply the continuance of the influence which naturally inheres in and attaches to the relation itself." The doctrine is that, in addition to the relations between the testator and the beneficiary under the will, in order to put the burden of upholding the validity of the will upon the beneficiary, when assailed on the ground of undue influence, there must be some evidence of coercion in its execution, or, in other words, that the will is not the will of the testator. This may be done by showing that the person who is the principal or a large beneficiary under the will actively participated in the preparation or execution of the will. McQueen v. Wilson, 131 Ala. 606, 31 So. 94.
"`The rule in such cases is based upon grounds of public policy, and was never intended to deprive one of the right of a voluntary and untrammeled disposition of his own property, but rather to guard and protect that right. It is in effect a rule of evidence, putting upon the dominant party in confidential relations, claiming a benefit under the transaction, the burden and duty of rebutting and overcoming the prima facie case so made by the presumptions which the law raises. * * *.'
"This rule has long prevailed. Justice Goldthwaite said in Boney et al. v. Hollingsworth et al., 23 Ala. 690, 698 and 700, that,
"`There is also another, and a very comprehensive class of cases, in which equity looks to the peculiar situation which the parties occupy towards each other, and if one occupies a relation from which an unusual degree of confidence, affection, or sense of duty naturally springs, the utmost degree (uberrima fides) is demandedStory's Eq. § 218; and when this relation does exist, says Judge Story, courts of equity acting upon this superinduced ground, in aid of general morals, will not suffer one party, standing in a situation of which he can avail himself against the other, to derive advantage from that circumstance; for it is founded in a breach of confidence.Story's Eq. § 308.
"`* * * taking into consideration the position they occupy towards Mrs. Hollingsworth, we think that proof of the mere execution or ratification of the deed, so far as she is concerned, is not sufficient to sustain it. Until some inducement is shown, the law must always regard with suspicion an act by which a sister divests herself of a valuable interest in favor of a brother. There may be no fraud; everything may be honest and fair; but until the act is satisfactorily accounted for, the inference of fraud, artifice or abuse of confidence, is so strong, that we think equity should always relieve against it.
"`In the present case, the ties of affection and confidence resulting from the near relation of the parties, it is reasonable to suppose, were drawn closer by the recent bereavement common to both, and by the fact that the sister was a widow. Unless, therefore, a sufficient inducement is shown, the deed must be set aside as to Mrs. Hollingsworth.'
"The more recent declaration by this Court in Dowe v. Farley et al., 206 Ala. 421, 423, 90 So. 291, 293, is: `That the son was the dominant party under the evidence in this cause cannot admit of doubt. The burden was upon him to show the transaction was fair, just, and equitable in every respect. It needs no discussion to disclose that this burden has not been discharged. This feature of the decree is therefore free from error.'
*317 "In Kyle v. Perdue, 95 Ala. 579, 585, 588, 10 So. 103, 104, Mr. Justice Walker, for the Court declared:
"`There are well-established rules to be applied in passing upon transactions between persons whose relations are such as to suggest that in dealing between them confidence is reposed and accepted to such an extent that one of them is subject to the influence or ascendency of the other. When such a relationship is shown to exist, if the one who was in a position to exert the influence claims the benefit of a contract with the person bestowing the confidence, the burden is cast upon the former to show affirmatively that the influence of his position was not unduly exerted; that the utmost good faith was exercised; and that all was fair, open, voluntary, and well understood. This rule as to the burden of proof is of familiar application to contracts by which benefits are conferred by a cestui que trust upon his trustee, by a ward upon his guardian, by a child upon his parent, by a client upon his attorney, by a patient upon his physician, or by any one upon his priest or spiritual advisor. Noble's Adm'r v. Moses, 81 Ala. 530, 1 So. 217 (60 Am.Rep. 175); Dickinson v. Bradford, 59 Ala. 581 (31 Am.Rep. 23); Malone v. Kelley, 54 Ala. 532; Boney v. Hollingsworth, 23 Ala. 690; Johnson v. Johnson, 5 Ala. (90) 94; Marx v. McGlynn, 88 N.Y. 357; Huguenin v. Baseley, 2 White & T. Lead. Cas. 1156. The relations here mentioned are but instances in which the principle is applicable. It is not essential that any formal or technical relationship of a fiduciary character has been established between the parties. It sufficed that they stand in such a relation to each other that, while it continues, confidence is justifiably reposed by one, and the influence which naturally grows out of that confidence is possessed by the other. * * *
"`The testimony of the grantees themselves shows that the grantor never intended to make such a disposition of her property as is embodied in the instrument which she signed. In view of the relations of trust and confidence existing between the parties, and of the evident reliance by the grantor on the false assurances of one of the grantees, an instrument, the provisions of which fall so far short of the grantor's understanding of its operation in her favor, cannot prevail against her impeachment of it. The result is that, accepting the version of the transaction as detailed by the parties who assert its validity, it must, upon their own statements, be pronounced invalid. It is therefore unnecessary to pass upon the conflicts in the testimony upon the issue as to Mrs. Perdue's mental competency at the time she signed the instrument.'
"We may further observe that there are other principles of law governing the case that may be touched upon as follows: It is not necessary to have fiduciary relations in order to have what the law defines as `confidential relations.' In addition to fiduciary relations, this Court has long held that confidential relations arise in cases `in which confidence is reposed and accepted, or influence acquired,' and also in `all the variety of relations in which dominion may be exercised by one person over another.' Such conditions of confidential relations are defined in many cases from this jurisdiction. Worsham v. Johnson, 231 Ala. 265, 164 So. 381 and authorities there cited; Cox v. Parker, 212 Ala. 35, 101 So. 657; Harraway v. Harraway et al., 136 Ala. 499, 34 So. 836; Kyle et al. v. Perdue et al., 95 Ala. 579, 10 So. 103; Holt v. Agnew et al., 67 Ala. 360; Malone v. Kelley, 54 Ala. 532.
"For example, it has been declared that confidential relations exist between brother and sister, sister and sister, and mother and son. Boney et al. v. Hollingsworth et al., 23 Ala. 690 (between brother and sister); Hutcheson v. Bibb et al., 142 Ala. 586, 38 So. 754 (between sisters); Dowe v. Farley et al., 206 Ala. 421, 90 So. 291 (between mother and son); Gibbons et al. v. Gibbons, 205 Ala. 636, 88 So. 833 (between mother and son).
"From the foregoing authorities and citations, where confidential relations exist, the burden of proving that the transaction was fair, free from undue influence, fraud or deceit or misrepresentations, and *318 in the case of deeds the grantor, had disinterested, independent and competent advice, is cast upon the beneficiary in such confidential relation. Burke v. Taylor, 94 Ala. 530, 10 So. 129; Worsham v. Johnson, 231 Ala. 265, 164 So. 381; Dowe v. Farley, supra; Gibbons v. Gibbons, supra; Verner et al. v. Mosely, 221 Ala. 36, 127 So. 527; McQueen v. Wilson et al., 131 Ala. 606, 31 So. 94.
"In Verner v. Mosely, 221 Ala. 36, 42, 127 So. 527, 532, the rule of the case of McQueen v. Wilson et al., supra, is again produced, and the conclusion in the Verner case is well stated, as follows: `To repeat, in cases such as this: "The burden rests on the party claiming under the deed, to prove satisfactorily that it is just, fair and equitable in every respect, and not on the party seeking to avoid it to establish that it is fraudulent." Spiva et al. v. Boyd (206 Ala. 536, 90 So. 289, 290); Burke v. Taylor, 94 Ala. 530, 10 So. 129.'"
We have no doubt but that a confidential relationship existed between appellant and appellee and, further, that appellee was the dominant party in that relationship. The only question is, whether appellee met the burden of proving that the transaction was just, fair and equitable in every respect, and that appellant had disinterested, independent and competent advice. We think, as did the trial court, that she has met that burden.
In the first place, we are to the conclusion that the price agreed upon between the parties was fully adequate. True, the evidence as to value was conflicting and, as usual in such cases, the opinions of the witnesses covered a wide range, influenced no doubt by the general rise in property values since 1941.
We are further of the opinion that the time and manner of paying the agreed purchase price was to the best interest of the appellant. We are also fully persuaded that Mr. Nathan Sanders, the uncle of the parties to the suit, and the former guardian of appellant, and who looked after the farm and other property of appellant and appellee for a number of years, and who seems to have done a very creditable job for his nieces, gave to appellant competent disinterested and independent advice in respect to the sale of her interest in the farm to her sister. Having handled the farm for several years and having paid off a mortgage on it, he was in a position to know its value. Sanders testified that the price paid was all that appellant's interest was worth.
Appellant's failure to testify to any feature of the case lends some credence to appellee's testimony that she was not the instigator of the suit. But we forego further discussion.
Affirmed.
BROWN, SIMPSON and STAKELY, JJ., concur. | March 30, 1950 |
baa810b6-2b71-4892-8138-dd285bdde109 | Rush v. State | 45 So. 2d 761 | N/A | Alabama | Alabama Supreme Court | 45 So. 2d 761 (1950)
RUSH
v.
STATE.
8 Div. 450.
Supreme Court of Alabama.
April 13, 1950.
*762 Starnes & Starnes, of Guntersville, for appellant.
A. A. Carmichael, Atty. Gen., and Wm. N. McQueen, Asst. Atty. Gen., for the State.
STAKELY, Justice.
C. C. Rush (appellant) was indicted for murder in the first degree. Trial of the case resulted in a conviction of murder in the second degree and a sentence of 35 years in the penitentiary. This appeal is from the conviction and sentence.
On May 20, 1947, C. C. Rush, his son Wesley Rush, his son-in-law Odis Rainwater, W. M. Rodgers and W. M. Rodgers, Jr. were plowing and sowing on the Rush farm which adjoins the farm of E. E. Ridgeway in Marshall County, Alabama. Two shots were heard apparently coming from the thicket on the boundary line between the two farms. Tendencies of the evidence show that bullets passed near Odis Rainwater, Wesley Rush and W. M. Rodgers, Jr.
A. P. Ridgeway, the deceased, was living at the home of his father E. E. Ridgeway. There had been a dispute over the boundary line between the two farms about two months prior to the present difficulty and some of the stakes showing the boundary line as fixed by the surveyor were still standing. Upon hearing the shots Wesley Rush ran to his father, who was about a hundred yards away, and told him that "A. P. was over there shooting at me." C. C. Rush thereupon stopped his mules, left the field in his jeep, went to his house about half a mile away, got his rifle and shortly returned. He first parked his jeep in the field and then proceeded toward the boundary between the two places.
A. P. Ridgeway, the deceased, was sitting on the front porch of his father's home along with his father, his mother, Charley Hilburn and the latter's daughter Vergie Hilburn. Tendencies of the evidence *763 showed that when he saw C. C. Rush approaching he left the porch and went to meet him despite the efforts of his father and mother to deter him. In fact his mother, an elderly woman, went along with him and persisted in trying to stop him. Tendencies of the evidence showed that appellant had cursed the deceased and told him to come out there. According to tendencies of the evidence deceased stated in substance, as he left the porch, that the appellant would do him no harm. Tendencies of the evidence further showed that when the appellant was about 30 to 40 yards from the deceased, appellant standing on his property and deceased on the property of his father, appellant fired at the deceased missing him. Appellant then raised his rifle again, took aim and this time hit A. P. Ridgeway, who dropped dead in his tracks.
Tendencies of the evidence showed that deceased went down to meet appellant dressed only in a shirt and his working pants and was unarmed. Tendencies of the evidence further showed that a pistol belonging to the deceased was found after the shooting in a shed at the rear of the home of E. E. Ridgeway and tendencies of the evidence further showed that Charley Hilburn was seen to approach the body of deceased, lean down over the body and then proceed toward the shed. Tendencies of the evidence further showed that no one approached the body of the deceased until the officers arrived after the killing. The officers testified that there were no tracks around the body of the deceased and no weapon found on him.
I. On October 1, 1947 an order was entered by the court for a special term of court to be held October 27, 1947 and on October 10, 1947 the judge drew the general venire for the special term from which the grand jury and petit juries for the special term were later drawn and impaneled.
By plea in abatement the appellant raised the defense that the venire from which the names of the grand jurors were drawn and impaneled was not drawn from the jury box in open court but was drawn behind locked doors with only the Judge, the Hon. J. S. Stone, the Sheriff and the Clerk of the Court being present. It is alleged in the plea in substance that members of the public and members of the bar were denied or refused admittance to the office of the circuit clerk while the venire was being drawn behind locked doors as aforesaid.
Section 285, Title 15, Code of 1940 provides as follows. "No objection can be taken to an indictment, by plea in abatement or otherwise, on the ground that any member of the grand jury was not legally qualified, or that the grand jurors were not legally drawn or summoned, or on any other ground going to the formation of the grand jury, except that the jurors were not drawn in the presence of the officers designated by law; and neither this objection nor any other can be taken to the formation of a special grand jury summoned by the direction of the court."
It is insisted that by reason of the provisions of the foregoing statute the matter set forth in the foregoing plea is not available for attack against the venire and the indictment. It is true that the statute limits objection to an indictment to the sole ground that the jurors were not drawn in the presence of the officers designated by law. But this court has pointed out that this statute is designed to prevent quashing of the indictment for mere irregularities and to obviate resulting delays in administration of justice. Vernon v. State, 245 Ala. 633, 18 So. 2d 388. And further that the statute was not designed to nullify matters deemed essential to the established concept of trial by jury which offend basic principles of due process. Smith v. State, 34 Ala. App. 45, 38 So. 2d 341, certiorari denied 251 Ala. 559, 38 So. 2d 347; Spooney v. State, 217 Ala. 219, 115 So. 308. It is, therefore, necessary for us to consider the effect of the drawing of the venire behind locked doors as alleged in the plea.
Section 30, Title 30, Code of 1940 provides in effect that the names of the jurors shall be drawn by the judge from the jury box in open court. This court has had occasion to define the meaning of the words "open court" a number of times and it is clear that open court means when the court is open for the transaction *764 of the business of the court, that is "the time when the court can properly exercise its functions." Ex parte Branch, 63 Ala. 383; Zaner v. Thrower, 203 Ala. 650, 84 So. 820; Letcher v. State, 159 Ala. 49, 48 So. 805, 17 Ann. Cas. 716. But we think that the expression "open court" means that the court must not only be open for the transaction of business but also means that the court must be sitting openly, so that all persons who conduct themselves in an orderly manner may freely see and hear the proceedings in the court. Vol. 29 Words and Phrases, Perm. Ed., page 523. This does not mean that the judge must necessarily be acting in the court room. The office of the clerk is a part of the quarters provided for the court. Ex parte Morris, 252 Ala. 551, 42 So. 2d 17. But we think there can be no objection that the judge in the presence of the sheriff and the clerk was drawing names of the jurors from the jury box in the office of the clerk. If the drawing was behind locked doors, this would not comport with the fairness and openness which should characterize the transaction of court business. The evident purpose of the requirement that the general venire be drawn in open court is to remove any idea that the jurors have been selected for some special case and to remove this important arm of the court from any suspicion of bias or prejudice. We take it for granted that proceedings of a star chamber character behind locked doors would tend not only to create suspicion but bring the court into disrepute. Doss v. State, 220 Ala. 30, 123 So. 231, 68 A.L.R. 712. The provision of § 30, Title 30, Code of 1940 that the names of the jurors shall be drawn by the judge from the jury box in open court is mandatory and must be obeyed. Zininam v. State, 186 Ala. 9, 65 So. 56.
The trial judge set the case down for hearing on the issues made by the foregoing plea. We have read the evidence with the greatest care. The proof shows that on orders from the judge the jury box was secured by the sheriff from the place where it is kept and carried to the office of the clerk and in the office of the clerk, the Judge, Hon. J. S. Stone, in the presence of the Circuit Clerk and the Sheriff proceeded to draw the names from the jury box. It is undisputed that when the drawing began the door of the office of the clerk was open and besides the three officers others were present and if at any time the door became closed, it was without the intention of any of these officers. In fact we wish to make it abundantly clear that neither counsel nor any one else imputes any evil or fraudulent intent to any of these officers. On the contrary it is conceded that each and all of them are held in the highest regard. The proof shows that the door was equipped with a spring lock and that if it were pulled to it would become locked. It may be that during the drawing of the names from the jury box some one in leaving the room may have pulled the door to and caused it to become locked. The proof certainly shows that during the time of the drawing others were free to enter and leave the room and did so. We are not satisfied from the evidence that the door did become locked, but if it did, it was a mere inadvertence and certainly no one who wished to be present when the drawing was made in order to observe the proceedings, was precluded from attending the drawing. The witnesses testified orally before Hon. Reuben Wright who presided as Judge in the trial of the case. He resolved the issues made by the plea in favor of the state. We see no reason to disturb his findings which we take as presumptively correct.
II. Various other defects in procedure are pointed out as grounds for quashing the indictment which may be enumerated as follows, (a) Twenty-one members were excused from jury duty without being examined under oath on voir dire as to their excuses or exemptions from jury duty, (b) Twenty days had not elapsed from the date of drawing the venire to the first day of the session, (c) The cards of fifteen members of the venire affirmatively show that they were not qualified because their ages were not given, (d) The venire from which the grand jury was drawn and impaneled contained the name of a person who had been convicted of a crime involving moral turpitude to wit grand larceny.
*765 In Doss v. State, 220 Ala. 30, 123 So. 231, 68 A.L.R. 712, it was shown that while § 285, Title 15, Code of 1940 refers to § 30, Title 30, Code of 1940 providing for the creation of the general venire, § 278, Title 15, Code of 1940 is the section to consider when § 38, Title 30, Code of 1940 is involved. See Smith v. State, supra. We set out § 278, Title 15, Code of 1940 as follows. "No objection to an indictment on any ground going to the formation of the grand jury which found the same can be taken to the indictment, except by plea in abatement to the indictment; and no objection can be taken to an indictment by plea in abatement except upon the ground that the grand jurors who found the indictment were not drawn by the officer designated by law to draw the same; and neither this objection, nor any other, can be taken to the formation of a special grand jury summoned by the direction of the court."
In Spivey v. State, 172 Ala. 391, 56 So. 232, it was pointed out that the statutes which are now sections 278 and 285, Title 15, Code of 1940, limited the objections to indictments as to the grand jury or grand jurors finding and returning the indictment to the one objection that it was not drawn in the presence of officers designated by law. We do not consider that any of the alleged defects as enumerated was sufficient to vitiate the indictment. Wilson v. State, Ala.Sup., 29 So. 2d 294.
III. When the case was called for trial the defendant made a motion to quash the indictment and it appeared that the bailiff appointed to wait upon the grand jury (§ 186, Title 13, Code of 1940) was seated just inside the door of the grand jury room for about five minutes while one of the witnesses was being examined before the grand jury. The court heard and passed upon the motion to quash and so we assume that the court in the exercise of its discretion allowed the motion to be filed. Smith v. State, 142 Ala. 14, 39 So. 329.
It is the policy of the law that the preliminary inquiry by the grand jury as to the guilt or innocence of persons charged with criminal offenses should be conducted in secret. The oath administered to the grand jurors is in keeping with this idea. §§ 73 and 74, Title 30, Code of 1940. Various reasons among others are given for this secrecy which is so different from publicity which generally attends judicial proceedings. One is that if the proceedings were public those charged before the grand jury might become informed and offered the chance to escape before the grand jury had completed its deliberations and arrests made. Another reason is that there should be entire freedom of discussion and deliberation by the grand jury which would not be the case if the proceedings were not secret and all disclosure of the deliberations of the grand jury prohibited. Blevins v. State, 68 Ala. 92.
However in the present case it is sufficient to say that the person who was in the grand jury room was the bailiff, an officer appointed by the court to wait upon the grand jury, and there is nothing to show that the bailiff gave the grand jury any counsel or expressed to them any opinion unfavorable to the defendant or did any act affecting their deliberations. He was not in the grand jury room when the grand jury was deliberating or passing on the indictment against the defendant in this case. In fact he did not mention the case to any one. Under these circumstances it does not appear to us that the appellant has suffered any injury from the presence of the bailiff in the grand jury room. Jones v. State, 150 Ala. 54, 43 So. 179; Blevins v. State, supra; King v. State, 208 Ala. 152, 93 So. 855; State v. Bacon, 77 Miss. 366, 27 So. 563; L.R.A.1916D, 1125; 24 Am.Jur. 862. The court acted correctly in overruling the motion to quash the indictment.
IV. The trial court permitted the state for impeachment purposes to prove by the oral testimony of the defendant that he had been convicted of manslaughter in the State of Arkansas. It is argued that there was higher and better proof of the conviction, namely a certified court record. Assuming that appropriate objection was made although this is doubtful, there is no merit in the contention. By virtue of the statute (§ 435, Title 7, Code of 1940) a witness *766 may be examined orally touching his conviction for crime. Sims v. State, 14 Ala.App. 24, 70 So. 959.
It is further claimed that prejudicial error intervened when the court refused to allow the defendant to show that the conviction was had upon circumstantial evidence and that the trial court, the prosecuting attorney and the jury which convicted him all signed a petition requesting the Governor of the State of Arkansas to grant the defendant his full pardon and restore his civil rights and that the governor granted the petition and pardon. It is enough in answer to the argument to say that the defendant was allowed to testify that he received a full pardon from the governor of that state. The fact that the defendant convicted of a crime involving moral turpitude subsequently received full pardon does not abrogate the rule that such conviction goes to his credibility. Terry v. State, 25 Ala.App. 135, 148 So. 157. We think that the credibility of the defendant under all the circumstances, including the pardon, was for the jury. 58 Am.Jur. p. 402.
V. The court allowed the defend to show that the deceased A. P. Ridgeway had made threats against him and that these threats had been communicated to the defendant. A number of witnesses for the defendant testified as to these threats. It is claimed that although the defendant was allowed to show the threats made by A. P. Ridgeway he was not allowed to show that A. P. Ridgeway had a pistol with him at the time he made the threats and was further not allowed to show where the deceased carried the pistol on his person. There appears to be a misapprehension about this phase of the case and the record shows no error in the ruling in this regard. For example, Grady Raines, a witness for the defendant, testified that prior to the fatal difficulty the deceased came to his store and asked if he could leave the gun which he had on him at the store. He was advised by the witness to leave it somewhere else. According to the witness the deceased then said: "He was going to use that gun on the old man or he was going to make the old man use one on him." It is apparent that the defendant was allowed to show that the deceased was armed at the time the threat was made because not only was there proof that deceased had the pistol at the time the threat was made but the threat itself shows that he had the pistol at the time.
The witness Eddie Vernon Shores was asked the question by counsel for the defense: "Where was he carrying it when you saw him with it?" The court first sustained objection to the question and then said: "You mean where on his body?" Counsel, "Yes, sir." The Court: "I thought you meant some other locality. You can ask him that." The witness was then asked the question, "Where did he carry it on his body?" Answer. "I have seen him with it a number of times and he usually carried it in his bosom stuck down his belt."
In addition to the matters which we have discussed we have carefully examined the entire record and find no error therein.
Affirmed.
BROWN, FOSTER and LAWSON, JJ., concur. | April 13, 1950 |
b7b07201-09d2-4563-a0a7-6d6449f8e17a | Sims v. Sims | 45 So. 2d 25 | N/A | Alabama | Alabama Supreme Court | 45 So. 2d 25 (1950)
SIMS
v.
SIMS.
8 Div. 532.
Supreme Court of Alabama.
March 2, 1950.
*26 Potts & Young, of Florence, for appellant.
Bradshaw & Barnett, of Florence, for appellee.
FOSTER, Justice.
This is an appeal from a decree in equity modifying a provision in a former decree fixing alimony, granting a divorce and awarding the custody of children, and other relief not necessary here to mention.
The former decree was rendered December 22, 1948. The petition to modify was filed July 6, 1949. A decree granting the petition and making the modification was made July 15, 1949. The decree of December 22, 1948, contained the following finding of certain facts:
"The court ascertains and finds from the pleadings and proof that the respondent, Leroy Sims, has badly mistreated his wife in their marital relationships, that he has deliberately withheld the recordation of a deed of conveyance to the home hereinafter described for the purpose of preventing the wife from securing an interest therein or any benefit or security therefrom; that he fraudulently and for the same purpose attempted to convey to members of his family household goods and other personal property, and that he for the same purpose removed deposits of money in two banks and in a safe deposit box, and the court upon consideration feels that it will not be an abuse of discretion to award a settlement in gross or a partial one to the wife on her claim for alimony. But there are other considerations involved which leads the court to believe that such an award would be impracticable. There are four minor children who must be provided for in future years and even more important is an adequate provision for their proper rearing, support, and education in this important phase of their lives, and these are days of inordinately high prices for food, clothing, and medical attention, and there is an outstanding claim for federal income taxes of approximately *27 $4,000.00 for the collection of which a distraint notice has been lodged by the income tax authorities with the register and this sum must necessarily be paid by the respondent and if not paid the same will remain a claim or charge against his estate and possibly proceeds of future earnings, and in fact, non-payment might conceivably result in other and more drastic action. Anything which might impair the future earning power of the husband or which might result in a dissipation of the estate will not inure to the best interest of the minor children or the parties. Considering all facts the court finds a settlement of alimony in gross not advisable but does find that a lien should be impressed against the real estate hereinafter described as security for the wife and minor children and further finds that as liberal monthly allowances as possible should be decreed for the wife and children."
The decree awarded to this appellant the custody of the four minor children (ages approximately 13, 12, 9 and 5 years), and made a monthly allowance of $220.00 payable semimonthly, and declared a lien on the dwelling house and lot, settling the title to it and restraining this appellee from disposing of it in any way or mortgaging it. The decree also provided for the payment of an outstanding doctor's bill and $1,000.00 to appellant's counsel. There was no appeal from that decree.
It is shown in that case that this appellee owned an automobile free of incumbrance besides the house and lot. Also that on or about December 22, 1947, he drew from banks some $12,500.00 and from a safety box $2,000.00 to $3,000.00, and delivered to his father $6,500.00 in cash, all of which was returned to him by his father. He paid into court $5,600.00. He was shown to be a professional gambler and had no other occupation or business.
There was a hearing before the trial judge on the petition to modify. The only evidence introduced was the testimony of appellee, petitioner in this proceeding; that of an attorney as to a reasonable attorney's fee in the proceeding; that of a doctor as to the need of this appellant for eye treatment and glasses; and the record of the two suits as consolidated and the decree on them referred to above. One suit was for divorce and alimony and the other for discovery of assets and quieting of title to same.
There was no conflict in the evidence and the only duty of the court was to analyze it and determine from it whether there has been a substantial change in the financial ability of appellee from what it was on December 22, 1948, to the time of the hearing July 15, 1949, or other change of circumstances so as to justify a modification of the former decree. Colton v. Colton, 252 Ala. 442, 41 So. 2d 398. The full line of our cases is there cited and need not be repeated. That is controlled by a consideration of his testimony on this petition in connection with his status on December 22, 1948.
Appellee testified that he earned nothing in 1948 and up to July 15, 1949, had earned $2,500.00 and collected $400.00 on an old debt. That his income tax (for the years 1943 to 1946), unpaid at the former hearing, was about $4,500.00, and that he has since then paid about $3,600.00, leaving $1,070.00 now unpaid. Such payment was from funds which had been impounded. He sought and was granted permission to mortgage his house to obtain an amount sufficient to pay such balance. It was shown that in January 1949 he traded for a new Plymouth automobile, paying a difference of $510.00 cash and his old car valued at $1200.00, and that there was no incumbrance on it. He lived alone in the dwelling of six rooms and a bath. No part of the house was rented nor attempted to be rented because he says it needed repairs. His personal living expenses were estimated at five dollars a day. He testified that the gambling business was bad in 1949 and worse in 1948.
In rendering the decree on this petition the court stated: "The court recognizes the fact that the issue presented by the petition is whether or not there have been changed circumstances in the money or property either owned by or earned by the original respondent after the decree of December 22, 1948 as contrasted to before the rendition of said decree. In said December decree the court's decree was based largely upon *28 income shown to have been earned and possibly in existence at some place, said incomes consisting of monies deposited by and later withdrawn by the petitioner from banks. The court now on this hearing determines from the testimony that undoubtedly there is no part of said monies still available for or owned by the petitioner, and therefore, action on the present petition is necessarily based on the matter of earning power pure and simple and this the court finds has been decreased also."
Upon that finding and reasoning the trial court reduced the monthly allowance for the support of the wife and minor children from $220.00 to $175.00, payable semimonthly on the 1st and 15th of each month, beginning August 1, 1949, and also provided that appellee be authorized and directed to execute a mortgage on said dwelling house and lot for $1,000.00 to secure a loan for that amount, and to pay the same to the United States Government on account of his income tax, and further decreed that appellee pay an attorney's fee for appellant's solicitor in the sum of $25.00 for representing her in defense of the instant petition. The only evidence was that the attorney's services were worth $50.00. Appellant has no separate estate and earns nothing.
We cannot agree with the trial court that there was a change of circumstances which justified the modification. Aiken v. Aiken, 221 Ala. 67, 127 So. 819; Tidmore v. Tidmore, 248 Ala. 150, 26 So. 2d 905; Colton v. Colton, 252 Ala. 442, 41 So. 2d 398.
On the first hearing the trial court thought best not to award a definite lump sum for alimony, which could have been paid out of monies then in court and could have given her the use of the home, Smith v. Smith, 251 Ala. 694, 39 So. 2d 230; Ex parte Gurganus, 251 Ala. 361, 37 So. 2d 591; Sills v. Sills, 246 Ala. 165, 19 So. 2d 521, but instead concluded that semimonthly payments were better and as to the home he concluded it would be better to charge it with a lien to secure said semimonthly payments and enjoin its disposition. Appellee had withdrawn from the banks a year before more than $12,500.00, which was immediately after their separation. He turned over to his father $6,500.00, which was returned to him. He paid into court $5,600.00 and claimed he spent the balance. He could have paid his income tax and repaired the house, and could have gone into a legitimate business. In July 1949 the only difference in his financial condition from what it was in December 1948 was the use of $3,600.00, which had been deposited in court, to pay on his income tax. Presumably the balance of the $5,600.00 was paid in court costs and attorney's fees. That was no change in his financial status. The use of the money was to pay claims then existing. While the money was used, the obligations were discharged, not changing his financial worth. The balance of the $12,500.00 and the $2,000.00 to $3,000.00 had been disposed of prior to December 1948, as he testified.
We do not think this status shows any such substantial change of circumstances as to justify a modification of the former decree. The petition to modify should have been denied in our opinion.
As to the matter of attorney's fees for appellant for defending against this petition, appellant complains that it should have been at least $50.00 for services rendered in the trial and asks us to allow an additional fee for representing her on this appeal of approximately one-half of that sum.
We have made such an allowance pending an appeal. Windham v. Windham, 234 Ala. 309, 174 So. 500. We have reviewed the trial court in making such an allowance pending an appeal. Ex parte Taylor, 251 Ala. 387, 37 So. 2d 656. But in none of those cases did the question arise as to a controversy contested after the decree of divorce had become effective and the parties were no longer man and wife. Such a question has given rise to differences of opinion. 17 Am.Jur. 436, section 541, page 441, section 552, and page 455, section 576; 14 A.L.R. 613; 27 Corpus Juris Secundum, Divorce, § 219(b) p. 914; 19 Corpus Juris, § 543, p. 228.
But we held that an attorney's fee necescesary to aid in the collection of an amount awarded as alimony is not available and said that when the right to a decree fixing alimony is exhausted so is the right to an *29 attorney's fee. Rochelle v. Rochelle 235 Ala. 526, 179 So. 825.
We have held that alimony and attorney's fees in the nature of suit money are dependent upon the existence of the marital relations, either admitted or proven. Ex parte Gurganus, 251 Ala. 361, 37 So. 2d 591; Ex parte Jones, 172 Ala. 186, 55 So. 491. Those cases related to the question of whether there was such a relation. If not, the suit is vexatious and not prosecuted in good faith. The Supreme Court of Florida, overruling one of its cases, applied that principle to the instant situation and denied an allowance after divorce in such a proceeding. Vinson v. Vinson, 139 Fla. 146, 190 So. 454. But there is much authority to the contrary. 14 A.L.R. 614, et seq.; 27 Corpus Juris Secundum, Divorce, § 219(b), p. 914.
Counsel for appellee is not taking the position that the court does not have such power. Our Court does not seem to have had the question before it. But we are constrained to hold that the court has such power, since it is in the nature of a continuous proceeding in a case where the relation did exist and was only terminated by the decree which also provided for an attorney's fee and alimony, Epps v. Epps. 218 Ala. 667, 669, 120 So. 150, and the right to fix alimony is not exhausted. It should not be treated as one where there has never been a valid marriage, and where the proceeding is not supplementary to the decree of divorce or continuous in nature in respect to it. Although the power to award alimony is dependent upon the relation of husband and wife, yet when the decree of divorce makes provision for alimony that provision may be increased or decreased by subsequent proceedings, though the right to do so is not reserved in the divorce decree. Epps v. Epps, supra; Aiken v. Aiken, supra; Garlington v. Garlington, 246 Ala. 665, 22 So. 2d 89. So that the court having the power to alter the allowance may provide for an attorney's fee as a feature of the power.
We have held that on a bill of review attacking a divorce decree for fraud but also seeking a decree of divorce and alimony pendente lite, the court could make such provision on a prima facie showing that the former decree was not valid. Ex parte Gurganus, supra; Golden v. Golden, 102 Ala. 353, 14 So. 638. This would of course include an attorney's fee. Ex parte Austin, 245 Ala. 22, 15 So. 2d 710.
The duty to pay alimony is because of the duty of a man to support his wife. Ex parte Austin, supra. A divorce without provision for alimony cuts off the right. A divorce with provision for alimony creates a duty as there provided. It is continuing if so decreed notwithstanding a severance of the relation. If it is provided to be continuing, it is subject to the future control of the court whose jurisdiction over it continues to meet changed conditions. The relation of husband and wife gave rise to a power which is not terminated although the relation has terminated.
We think the allowance should be $50.00 for the services rendered in the trial court and $25.00 in this Court, making $75.00 in all. A decree will be here rendered dismissing the petition and providing for the payment to appellant on her cross-bill of the sum of $75.00 as attorney's fees for representing her in this proceeding.
Reversed and rendered, and allowance made for attorney's fee.
BROWN, LIVINGSTON, LAWSON, SIMPSON and STAKELY, JJ., concur. | March 2, 1950 |
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