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29f5cc74-e315-4b14-a5df-a31577c57162 | CIRCLE S INDUSTRIES, INC. v. Berryman | 613 So. 2d 329 | 1910496 | Alabama | Alabama Supreme Court | 613 So. 2d 329 (1993)
CIRCLE "S" INDUSTRIES, INC., et al.
v.
Steven R. BERRYMAN, et al.
1910496.
Supreme Court of Alabama.
January 22, 1993.
Phillip Henry Pitts of Pitts, Pitts & Thompson, Selma, and Robert K. Spotswood and Michael S. Denniston of Bradley, Arant, Rose & White, Birmingham, for appellants.
Daniel H. Markstein III, Tony G. Miller, and Michael D. Mulvaney of Maynard, Cooper, *330 Frierson & Gale, P.C., Birmingham, for appellees.
ADAMS, Justice.
Circle "S" Industries, Inc. ("CSI"), American Fine Wire Corp. ("AFW"), and American Fine Wire, Ltd. ("AFWL")referred to collectively as "the plaintiffs"appeal from an order denying their motion to appoint an arbitrator to determine whether Peter Douglas had failed to comply with the terms of a consent judgment entered in the plaintiffs' action against Douglas, Steven R. Berryman, and Douglas Fine Wire Corporation. We reverse and remand.
The plaintiffs, three affiliated corporations,[1] produce and market "interconnection bonding wire," that is, small diameter wire used in "micro-electronics." In August 1989, Douglas and Berryman resigned their positions as "key employees" of the plaintiffs and organized the Douglas Fine Wire Corporation. The plaintiffs subsequently sought and obtained a preliminary injunction against the defendants' competing in the fine wire industry. While the judgment granting the preliminary injunction awaited review in this Court, the parties consented to a judgment on the basis of a negotiated settlement agreement.
The consent judgment contained the following pertinent provisions regarding the obligations of Berryman and Douglas:
(Emphasis added.)
The consent judgment also contained the following provisions:
(Emphasis added.)
On October 28, 1991, the plaintiffs, alleging that Douglas had violated his noncompetition obligations by "orchestrat[ing] the financing and formation of a new fine wire company ... in Huntsville, Alabama," filed a motion requesting the appointment of an arbitrator to resolve their claims. The trial court denied the plaintiffs' motion for the appointment of an arbitrator.
It is undisputed that the consent judgment, per se, contemplates substantial interstate and international commerce. Douglas, however, contends that the Federal Arbitration Act ["FAA"] is inapplicable to this dispute, and, consequently, that the plaintiffs' claims are nonarbitrable, because, he argues, the alleged breach of the consent judgmentthe organization of a competitor company in Huntsvilleoccurred entirely within Alabama. Thus, he contends that whether the Federal Arbitration Act ("FAA") is invoked is determined not by the scope of the consent judgment, but by the locus actus of the alleged breach of the judgment. We disagree.[2]
Under Alabama law, "`the slightest nexus of the agreement with interstate commerce will bring the agreement within the ambit of the FAA.'" Ex parte Brice Building Co., 607 So. 2d 132, 134 (Ala.1992) (quoting and applying the standard set forth in Ex parte Costa & Head (Atrium), Ltd., 486 So. 2d 1272, 1275 (Ala.1986)). These cases do not support the proposition that clauses invoking the FAA are ineffectual, in a case like the present one, in which the record reveals substantial interstate commercial activity, nor do they support the contention that the locus actus, rather than the scope of the contract, determines the applicability of the FAA. Consequently, the order of the trial court is reversed and the cause is remanded for further proceedings.
REVERSED AND REMANDED.
HORNSBY, C.J., and STEAGALL, KENNEDY and INGRAM, JJ., concur.
[1] CSI is the holding company for AFW and AFWL.
[2] Section 2 of the FAA provides:
"A written provision in ... a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, or an agreement in writing to submit to arbitration an existing controversy arising out of such a contract, transaction, or refusal, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract." | January 22, 1993 |
0993458b-63b3-47a5-b3f3-656df18c1e28 | King v. Garrett | 613 So. 2d 1283 | 1911756 | Alabama | Alabama Supreme Court | 613 So. 2d 1283 (1993)
Lopaka Lewis KING
v.
James S. GARRETT.
1911756.
Supreme Court of Alabama.
February 26, 1993.
Lopaka Lewis King, pro se.
James H. Evans, Atty. Gen., and Fred E. Bell, Asst. Atty. Gen., for appellee.
MADDOX, Justice.
Lopaka Lewis King appeals, pro se, from the trial court's dismissal of his complaint against James S. Garrett, a circuit judge in Jefferson County. The record King designated contains the case action summary sheet but does not contain the complaint or any other pleadings or evidence considered by the trial court. This Court is limited to a review of the record alone. Sheetz, Aiken & Aiken v. Louverdrape, Inc., 514 So. 2d 797, 801 (Ala.1987); *1284 see also Allred v. Shirley, 598 So. 2d 1347, 1348 (Ala.1992). If the record does not contain the matter or materials considered by the trial court, then this Court has no basis upon which to review the trial court's judgment. Smith v. Smith, 596 So. 2d 1 (Ala.1992). The judgment of dismissal is, therefore, affirmed.
AFFIRMED.
HORNSBY, C.J., and SHORES, HOUSTON and KENNEDY, JJ., concur. | February 26, 1993 |
cfdd1a6a-2fe5-437d-a6e5-2ed5dccde67d | Blackwood v. Davis | 613 So. 2d 886 | 1920487 | Alabama | Alabama Supreme Court | 613 So. 2d 886 (1993)
Hestle B. BLACKWOOD
v.
Troy L. DAVIS, Jr., et al.
1920487.
Supreme Court of Alabama.
February 19, 1993.
James C. King and Edward L. McRight, Jr. of Wilson & King, Jasper, for appellant.
Michael D. Freeman and R. Bruce Barze, Jr. of Balch & Bingham, Birmingham, and Harvey S. Jackson, Jr. of Tweedy, Jackson & Beech, Jasper, for Troy L. Davis, Jr., Davis E. Clement, Jimmy W. Cook, Jon *887 Michael Craddock, Joseph W. Martin and Danny L. Vines.
HOUSTON, Justice.
Hestle B. Blackwood filed a worker's compensation claim against Alabama Power Company for injuries he allegedly sustained in an "on-the-job accident" at Alabama Power Company's Gorgas Plant in Walker County, Alabama. He also sued co-employees Troy L. Davis, Jr., Davis E. Clement, Jimmy W. Cook, Jon Michael Craddock, Joseph W. Martin, and Danny L. Vines, for damages based on injuries arising out of the same accident.[1] The court dismissed the claims against the co-employees pursuant to Rule 12(b)(6), Ala.R.Civ.P., and made the dismissal final pursuant to Rule 54(b), Ala.R.Civ.P. Blackwood appeals. We affirm.
In reviewing a motion to dismiss, the trial court must construe all allegations of the complaint in the light most favorable to the plaintiff, resolving all doubts in the plaintiff's favor. See Morton v. Prescott, 564 So. 2d 913 (Ala.1990). However, if the allegations of a complaint, even if proven, would not support a claim that would entitle the plaintiff to relief, dismissal is appropriate. Id.
The complaint in this case, when viewed in the light most favorable to Blackwood under the applicable standard of review, suggests the following:
While working in the line and scope of his employment with Alabama Power Company, Blackwood was checking fire extinguishers in old units No. 4 and No. 5 at the Gorgas Plant. The lights in those units were off. Blackwood was working his way down the stairwell of one of the units when, on the third step from the bottom, the heel of his shoe caught and he fell, sustaining injuries.
According to Blackwood, the co-employees willfully and intentionally decided to turn the lights off in the units of the plant where he was working and, at the same time, they required him to periodically perform his duties in those unlit areas. Furthermore, says Blackwood, the co-employees did not provide him flashlights to use as temporary safety devices on those occasions when he was required to work in those unlit units. He sued the co-employees under Ala.Code 1975, § 25-5-11(b), alleging that "[the co-employees'] willful and/or intentional failure to have adequate lighting in old units No. 4 and No. 5 of the plant was the practical equivalent of failing to provide a safety device for [him] with knowledge of the danger to [him] in those areas" and "as a proximate cause and result of [the co-employees'] conduct, [he] was caused to catch the heel of one of his shoes on a stair in an unlit stairwell and fall, which caused [him] permanent injuries and damages...."
Section 25-5-11(b) grants employees a cause of action for injuries resulting from the "willful conduct" of their co-employees. Section 25-5-11(c)(1) defines "willful conduct" in terms of a "purpose or intent or design to injure another." Section 25-5-11(c)(2) defines "willful conduct" as "the willful and intentional removal from a machine of a safety guard or safety device provided by the manufacturer of the machine with knowledge that injury or death would likely or probably result from such removal." See Reed v. Brunson, 527 So. 2d 102, 119-21 (Ala.1988), for an in-depth discussion of § 25-5-11(c)(1) and (c)(2).
Although the allegations indicate that the co-employees may have been negligent in turning off the lights in the units where Blackwood was working, there were no allegations that the co-employees' alleged failure to provide adequate lighting constituted "willful conduct" under § 25-5-11(c)(1)no allegations that any of the co-employees set out purposely, intentionally, or by design to injure Blackwood. Had these allegations been included in the complaint, we would have been required under our standard of review to reverse the dismissal and remand the case for the presentation *888 of evidence. Furthermore, the co-employees' alleged failure to provide adequate lighting does not constitute the removal of, or failure to install, a safety device or safety guard provided by manufacturers of machines, within the meaning of § 25-5-11(c)(2). Moore v. Reeves, 589 So. 2d 173 (Ala.1991), and Williams v. Price, 564 So. 2d 408 (Ala.1990), cited by Blackwood as authority for this claim are clearly distinguishable.
The trial court properly dismissed Blackwood's claim against the co-employees.
AFFIRMED.
HORNSBY, C.J., and MADDOX, SHORES and KENNEDY, JJ., concur.
[1] Davis was in safety supervision; Clement was plant manager; Martin was operations/support manager; Vines was support manager; Cook was operations manager; and Craddock was in supervision. | February 19, 1993 |
809225b6-2b15-46cc-847b-5a8d8d8efac6 | CSX Transp., Inc. v. Day | 613 So. 2d 883 | 1911612 | Alabama | Alabama Supreme Court | 613 So. 2d 883 (1993)
CSX TRANSPORTATION, INC.
v.
John W. DAY.
1911612.
Supreme Court of Alabama.
January 22, 1993.
*884 Charles E. Sharp and Joel A. Williams of Sadler, Sullivan, Herring & Sharp, P.C., Birmingham, for appellant.
Frank O. Burge, Jr. of Burge & Wettermark, P.C., Birmingham, for appellee.
HOUSTON, Justice.
John W. Day suffered extensive and severe personal injuries when he was struck by a train while performing his duties as an employee of CSX Transportation, Inc. ("CSX"). Day sued CSX, seeking damages under the Federal Employers' Liability Act, 45 U.S.C. § 51 et seq. ("FELA"). The case was eventually tried to a jury, which returned an $800,000 verdict for Day. The trial court entered a judgment on that verdict and later denied CSX's motion for a new trial. CSX appealed. We affirm.
Three issues have been presented for our review:
The following colloquy between Day's attorney and Larry McClendon, the CSX agent assigned to handle Day's claim, is conclusive with respect to the first issue:
As this part of the record shows, CSX did not object when McClendon testified that he had made a settlement offer to Day. Although CSX contends that the admission of this testimony constituted reversible error, it is familiar law that an adverse ruling below is a prerequisite to appellate review. We generally cannot consider arguments made for the first time on appeal. Matthews Brothers Construction Co. v. Lopez, 434 So. 2d 1369 (Ala.1983); see, also, cases *885 collected at 2 Ala.Digest, Appeal & Error, § 169 (1955). CSX did object when McClendon was asked to reveal the amount of CSX's offer, and the trial court sustained that objection before McClendon could respond to the question. Accordingly, we can find no basis in the first issue for reversing the judgment.
With regard to the second issue, the record shows that Day was allowed to testify as follows concerning his eligibility for a pension:
"Q. And do you get a pension?
"A. No, sir."
The record also shows that Day's attorney made the following comment during his closing argument to the jury:
CSX contends that Day's references to his eligibility for a pension were highly prejudicial because, according to an affidavit introduced in support of CSX's new trial motion, Day will become eligible to receive a pension upon reaching age 60. CSX argues that Day's testimony and his attorney's comments during closing argument distorted the jury's perception of Day's damages by creating the impression that Day would never be eligible to receive a pension. Day contends that this issue, like the first one, was not preserved for appellate review. In the alternative, Day argues that his testimony was truthful because he was not receiving a pension at the time of the trial, and that his testimony was relevant with respect to the issue of his present financial condition.
The record shows that CSX did not object to Day's testimony regarding the pension. Therefore, we cannot consider whether the admission of this testimony constituted error. The record does show that CSX objected to the closing argument made by Day's attorney ("He hasn't worked long enough to get a pension") and that that objection was sustained by the trial court. However, although CSX suggests that the trial court erred in not giving a curative instruction to the jury, the record shows that CSX did not request such an instruction. A party who invokes no further action by the trial court after his objection to closing argument has been sustained, thereby indicating his satisfaction with the trial court's ruling, cannot later complain of the trial court's failure to do what it was not asked to do. See Sovereign Camp W.O.W. v. Gunn, 224 Ala. 444, 140 So. 410 (1932); C.C. Hooper Cafe Co. v. Henderson, 223 Ala. 579, 137 So. 419 (1931). Furthermore, even if the reference to a pension by Day's attorney was improper, an issue that we do not decide, the comment was not, in our view, so grossly improper and highly prejudicial as to be beyond corrective action by the trial court. Thus, this case does not fall within the rule stated in Hill v. Sherwood, 488 So. 2d 1357 (Ala.1986). The second issue presents no basis for reversing the judgment.
CSX's third and final issue is whether the verdict is supported by the evidence. Specifically, CSX maintains that the verdict is excessive and that we should remand this case for a hearing and an order consistent with our holding in Hammond v. City of Gadsden, 493 So. 2d 1374 (Ala.1986).
Initially, we note that we have narrowed the scope of our holding in Hammond so that it does not apply to an award exclusively for compensatory damages, where the award is clearly supported by the record. See Dependable Insurance Co. v. Kirkpatrick, 514 So. 2d 804 (Ala. 1987); State v. McCurdy Concrete, Inc., 507 So. 2d 403 (Ala.1986). We also note that punitive damages are not recoverable *886 in FELA cases, Burlington Northern R.R. v. Warren, 574 So. 2d 758 (Ala.1990), and that the jury in the present case was instructed that it could award only compensatory damages. After carefully reviewing the record, we conclude that the jury's verdict is clearly supported by the record; therefore, a Hammond remand is not necessary. Day presented expert testimony tending to show that he suffered an economic loss of $488,537, including a loss of past and future income totaling $340,813. It is also clear from the record that Day suffered extensive, severe personal injuries as a result of his accident, including some permanent physical disfigurement. Day has undergone numerous medical procedures, and the evidence indicates that he will have chronic pain for the rest of his life. The jury apparently awarded Day a substantial sum to compensate him for his pain and suffering, and given the testimony that Day's economic loss totaled $488,537 and given the evidence regarding pain and suffering, we conclude that the amount awarded is not excessive. As with the first two issues, we can find no basis in the third issue for reversing the judgment.
Although we have not specifically addressed all of the arguments made by CSX, we have carefully considered each of them; and we hold that the judgment is due to be affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, SHORES and KENNEDY, JJ., concur. | January 22, 1993 |
4a548439-04a6-4533-871b-f0b285b7bab4 | Lucas v. Alfa Mut. Ins. Co. | 622 So. 2d 907 | 1920087 | Alabama | Alabama Supreme Court | 622 So. 2d 907 (1993)
Richard LUCAS and Frank Calvert
v.
ALFA MUTUAL INSURANCE COMPANY.
1920087.
Supreme Court of Alabama.
June 18, 1993.
*908 C. Harry Green of Green, Wood, Howell & Glenn and Jerry Guyton of Vinson & Guyton, Hamilton, for appellants.
Steve A. Baccus of Almon, McAlister, Ashe, Baccus & Tanner, Tuscumbia, for appellee.
PER CURIAM.
Richard Lucas and Frank Calvert, the defendants, appeal from a summary judgment in favor of the plaintiff, Alfa Mutual Insurance Company ("Alfa"). Alfa had sued Lucas and Calvert for a declaratory judgment to determine its obligations under an automobile insurance policy issued to Lucas. We affirm.
The issue presented on appeal is whether Alfa was entitled to a judgment because of a policy exclusion for injuries "caused by racing."
Underlying this case are the following facts: On August 26, 1990, Lucas and Calvert were talking with friends in the Hardee's restaurant parking lot in Hamilton, Alabama. Oliver Franklin drove up, and someone suggested an automobile race between Franklin and Lucas; the two men left the parking lot and lined up their cars at a traffic light and raced back to the Hardee's parking lot when the light turned green. Both cars slowed after reaching the Hardee's parking lot and stopped in the parking lot of a convenience store. The drivers exited their cars, but after several minutes of conversation, each of them got back in his own car. Calvert got in the car with Lucas. Franklin drove into the road first and stopped. Lucas then drove into the road and stopped about three car lengths behind Franklin. A passenger in Franklin's car hollered something out the window and Franklin took off. Immediately, Lucas took off and tried to catch Franklin. Lucas wrecked his car as he attempted to maneuver it through a curve at a speed of 85 to 90 miles per hour. (C.R. 63). Calvert was severely injured; he sued Lucas for damages based on his injuries.
Pursuant to Ala.R.Civ.P. 56(c), a summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions of file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and *909 that the moving party is entitled to a judgment as a matter of law." The burden of establishing that there is no genuine issue of material fact is on the movant. Berner v. Caldwell, 543 So. 2d 686, 688 (Ala. 1989). If the movant makes a prima facie showing of the absence of a genuine issue of material fact, then the burden shifts to the nonmovant to rebut the prima facie showing of the movant. In order to rebut such a prima facie showing, the nonmovant must show "substantial evidence" that creates a genuine issue of material fact. Substantial evidence is "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala.1989).
The applicable policy exclusion reads as follows:
Defendants contend that there exists a fact question as to whether "racing" caused the accident.
After thoroughly reviewing the record, we agree that the defendants offered no substantial evidence to rebut Alfa's prima facie showing that racing caused Calvert's injuries.
AFFIRMED.
HORNSBY, C.J., and SHORES, ADAMS and KENNEDY, JJ., concur.
HOUSTON, J., concurs specially.
HOUSTON, Justice (concurring specially).
The per curiam opinion does not address the public policy argument made by Lucas and Calvert. In Alabama Farm Bureau Mutual Casualty Insurance Co. v. Goodman, 279 Ala. 538, 188 So. 2d 268 (1966), this Court held that the following exclusion in a liability insurance policy was not inconsistent with public policy and was unambiguous and capable of only one reasonable construction:
"`This insurance does not apply under:
"`. . . .
"`(m) any of the coverages, if the injury or damage is caused by an automobile race or competitive speed test; * * *'"
In spite of Lucas and Calvert's insistence that the language in Goodman is not nearly so broad as the language in the policy at issue ("if the injury or damage is caused by a car race or a competitive test including informal racing on streets and highways"), I am persuaded that the language is so similar that we would have to overrule Goodman in order to reverse the judgment in this case, for I cannot distinguish Goodman from this case. In Goodman, this Court wrote:
279 Ala. at 541, 188 So. 2d at 270. (Emphasis added.) This Court held that it did not violate public policy for an insurance company to exclude that risk. To me, the risk sought to be excluded by the language of the policy in this case appears to be the same risk involved in Goodman.
Johnson v. Allstate Insurance Co., 505 So. 2d 362, 365 (Ala. 1987). | June 18, 1993 |
47da578b-5f00-43aa-8d32-3902d2093b7b | City of Birmingham v. Davis | 613 So. 2d 1222 | 1911140 | Alabama | Alabama Supreme Court | 613 So. 2d 1222 (1992)
CITY OF BIRMINGHAM
v.
Carla DAVIS, et al.
1911140.
Supreme Court of Alabama.
November 6, 1992.
As Modified on Denial of Rehearing February 19, 1993.
*1223 Lisa Huggins, Birmingham, for appellant.
Alicia K. Haynes and Elizabeth R. Jones of Haynes & Associates, Birmingham, for appellee.
Joseph Kettler, Montgomery, for amicus curiae Alabama League of Municipalities.
INGRAM, Justice.
With permission of this Court, granted in accordance with Ala.R.App.P. 5, the City of Birmingham appeals from a denial of its motion for a summary judgment.
Carla Davis, LaStarshia DeShaunta Davis, Calandra V. Davis, and Norma Jean Davis (hereinafter "the Davises") sued Ruben Deon Johnson and his mother, Rose Plump, for injuries allegedly suffered in a two-car accident. Carla Davis was driving one automobile and the remaining Davises were passengers; Johnson was driving the other automobile, which was owned by Plump. The accident occurred on September 30, 1989, within the City of Birmingham (hereinafter "the City").
The Davises filed their complaint on January 17, 1990. The complaint also listed various fictitiously named defendants, including one described as follows: "Defendant # 10, that person or entity who controlled or maintained the roadway and roadway signs where the accident was caused to take place." On April 10, 1990, the Davises amended their complaint to substitute the City for "Defendant # 10."
The City moved for a summary judgment on the grounds that the Davises had not filed a notice of claim with the City as required under § 11-47-23 and § 11-47-192, Ala.Code 1975. The trial court denied the motion for summary judgment, and this Court granted the City permission to appeal under Ala.R.App.P. 5.
The Davises failed to file a notice of claim with the city clerk of Birmingham or to substitute the City for fictitiously named defendant number 10 within the six-month period prescribed by law. However, the Davises argue that the City's substitution of a named defendant for a fictitiously named defendant properly sued relates back to the date the complaint was originally filed. The issue on appeal is whether the bar of the municipal notice statute can be avoided by substitution under Ala. R.Civ.P. 9(h) and relation back under Ala. R.Civ.P. 15(c).
Section 11-47-23 provides, "Claims [against a municipality] for damages growing out of torts shall be presented within *1224 six months from the accrual thereof or shall be barred." The Court has held:
Hill v. City of Huntsville, 590 So. 2d 876, 876 (Ala.1991).
Further, this Court has stated that the notice-of-claim statute is not a statute of limitations, but rather is a statute of nonclaim similar to the probate nonclaim statute. See Ivory v. Fitzpatrick, 445 So. 2d 262, 264 (Ala.1984) (citing Taylor v. City of Clanton, 245 Ala. 671, 18 So. 2d 369 (1944); City of Huntsville v. Goodenrath, 13 Ala.App. 579, 68 So. 676, cert. denied sub nom. Ex parte Gudenrath, 194 Ala. 568, 69 So. 629 (1915)). In construing the probate nonclaim statute, this Court has held that "nonclaim [does] not fall within the healing provisions of the relation back statute." Motley v. Battle, 368 So. 2d 20, 21 (Ala.1979). This Court stated that the "healing provisions" of Ala.R.Civ.P. 13, allowing relation back of counterclaims, are "`confined to the statute of limitation[s] in its express terms, and can not be extended further,'" and that "`[n]on-claim does not fall within its healing provisions....'" Id. (quoting Patrick v. Petty, 83 Ala. 420, 423, 3 So. 779, 780 (1888)). Similarly, relation back under Rule 15(c) was not allowed to ameliorate the effects of the probate nonclaim statute because nothing in the original complaint would put the estate on notice of the additional claim. Lett v. Watts, 463 So. 2d 138, 142 (Ala.1985). Clearly, the concept of relation back cannot be used to ameliorate the complete bar of the probate nonclaim statute occasioned by the failure to provide notice of the claim to the estate within the six-month claim period.
We note that the plaintiffs rely on Browning v. City of Gadsden, 359 So. 2d 361 (Ala.1978), for the proposition that substitution of a municipality for a fictitiously named party has been allowed to relate back to the time of the original filing for purposes of the notice-of-claim statute. In Browning, this Court held "that the amendment [substituting the City of Gadsden for a fictitiously named party] related back to the filing of the original complaint under Rule 15(c) and that suit was brought against the City within six months of the accrual of Browning's cause of action." 359 So. 2d at 364. However, in Motley, supra, which was decided just one year later, this Court held that the probate "nonclaim [statute] did not fall within the healing provisions of the relation back statute." Motley, 368 So. 2d at 21.
In Motley, this Court expressly stated that the nonclaim statute did not fall within the "healing provisions" of A.R.Civ.P. 13, allowing relation back of counterclaims, which provisions this Court held were "confined to the statute of limitations[s] in its express terms, and [could not] be extended further." 368 So. 2d at 21 (quoting Patrick v. Petty.) Therefore, because the municipal notice-of-claim statute is also a "nonclaim" statute, the effect of the procedural "healing provisions" is to be similarly applied.
We now hold that "relation back" and other procedural rules designed to "heal" violations of the statute of limitations cannot "heal" violations of the municipal notice-of-claim statute, and we expressly overrule Browning to the extent it conflicts with this opinion. The Davises' claims are barred because the City of Birmingham was not given notice within six months of the accrual of those claims. The substitution, outside of the six-month notice period, of a municipality for a fictitiously named party properly sued is not a sufficient presentation of the claim to the municipality to avoid the bar of § 11-47-23. The trial court's order denying the City's motion for summary judgment is reversed and the cause is remanded to the trial court for proceedings in accordance with this opinion.
REVERSED AND REMANDED.
HORNSBY, C.J., and ADAMS, STEAGALL and KENNEDY, JJ., concur.
INGRAM, Justice.
OPINION MODIFIED; APPLICATION OVERRULED.
HORNSBY, C.J., and ADAMS and STEAGALL, JJ., concur.
HOUSTON, J., concurs specially.
HOUSTON, Justice (concurring specially in the denial of rehearing).
In regard to the plaintiffs' equal protection argument, I note that there is no equal protection clause in the Constitution of Alabama of 1901. The equal protection clause in the Constitution of 1875 was deleted from the Constitution of 1901. This was deliberately done. See Official Proceedings of the Constitutional Convention of 1901, pp. 1622-34, pp. 1639-44, pp. 2254-60. The equal protection applicable to persons within the State of Alabama is not guaranteed by any section or combination of sections of the Constitution of Alabama, but is guaranteed by the 14th Amendment of the United States Constitution. See Moore v. Mobile Infirmary Ass'n, 592 So. 2d 156, 174-78 (Ala.1991) (Houston, J., concurring in the result). | February 19, 1993 |
1f18afaa-8b80-4f76-a354-124900c06581 | Centon Electronics, Inc. v. Bonar | 614 So. 2d 999 | 1911406 | Alabama | Alabama Supreme Court | 614 So. 2d 999 (1993)
CENTON ELECTRONICS, INC.
v.
Brian BONAR and AmSouth Bank, N.A.
1911406.
Supreme Court of Alabama.
January 29, 1993.
Rehearing Denied March 19, 1993.
*1000 James H. Richardson and John J. Callahan, Jr. of Bell Richardson, P.A., Huntsville, for Centon Electronics, Inc.
James T. Baxter III and Susan A. McMillan of Berry, Ables, Tatum, Little & Baxter, P.C., Huntsville, for AmSouth Bank, N.A.
Ernest L. Potter, Huntsville, for Brian Bonar.
HOUSTON, Justice.
On or about December 14, 1988, Centon Electronics, Inc. ("Centon"), a California-based distributor of computer components, placed an order for computer chips with Brian Bonar d/b/a BBE Providing Solutions, a computer chips broker doing business in Huntsville. Centon received the chips from Bonar the following day, via overnight delivery, and immediately mailed a check to Bonar as payment in full. A few weeks later, Centon placed a second order for computer chips with Bonar. These chips, which were different from those previously ordered, were received by Centon the following day, and Centon again promptly mailed a check to Bonar as payment in full. On or about January 5, 1989, after one of its customers had failed to purchase a number of the computer chips that Centon had received from Bonar pursuant to the first order, Centon contacted Bonar and requested a "return merchandise authorization," which would have allowed Centon to return the excess chips to Bonar for a credit against Centon's next order. The evidence is in dispute as to whether Bonar agreed to issue this authorization. Centon presented evidence tending to show that Bonar agreed to issue the authorization on the condition that Centon would go ahead and place a third order for computer chips. Bonar testified, however, that he did not agree to issue the authorization. He maintained, instead, that he agreed to assist Centon in finding another purchaser for the chips. In any event, on *1001 or about January 10, 1989, Centon placed a third order for computer chips with Bonar. These chips, which were of the same variety as those shipped pursuant to the second order, were received by Centon the following day. Centon immediately mailed a check to Bonar for $266,973.30, the full amount of the third order; however, on January 12, 1989, Centon stopped payment on this check, without notifying Bonar. An internal stop payment memorandum prepared by an employee of Centon and dated January 11, 1989, stated that Centon needed to send certain chips back to Bonar but that Bonar was giving Centon "a hard time." On January 13, 1989, Bonar deposited the check for the third order into his account at AmSouth Bank, N.A.. On January 20, 1989, Bonar received three boxes of computer chips from Centon, along with a note, dated January 15, 1989, stating that the chips were being returned as per an agreement reached between Bonar and Centon that certain chips from the first order could be returned. Bonar immediately notified Centon that he would not accept the returned chips, but he advised Centon that he would attempt to find a buyer for the chips at a lower price if Centon wanted him to do so. He further advised Centon that he would ship the chips back to Centon if he did not receive an authorization to sell the chips. After receiving no response from Centon, Bonar shipped the chips back to California. On or about February 15, 1989, Centon again shipped the chips back to Bonar, who, again, shipped them back to Centon. Ultimately, Centon sold the chips at a reduced price. During this time, Bonar tried unsuccessfully to contact Centon for an explanation. Centon never notified Bonar that it had stopped payment on its third check. Bonar, who had written checks against his account after depositing the $266,973.30 check from Centon, was notified by AmSouth on February 21, 1989, that Centon had stopped payment on the check. AmSouth honored all the checks that Bonar drew against Centon's check, even though it had been notified that Centon had stopped payment on the check. Centon eventually paid Bonar $102,804.06 toward the third order.
AmSouth sued Bonar, alleging that Bonar had overdrawn his account and seeking to recover $266,401.31, plus interest and attorney fees. Bonar counterclaimed against AmSouth, alleging negligence and misappropriation of funds, and he filed a third-party complaint against Centon, alleging breach of contract and promissory fraud. Bonar sought both compensatory and punitive damages from Centon. Centon denied any liability to Bonar and counterclaimed against Bonar, alleging fraud in the inducement and money paid by mistake. Before trial, AmSouth and Bonar entered into a written settlement agreement, resolving their respective claims against each other. That settlement agreement, which resulted in AmSouth's dismissing its action against Bonar with prejudice, provided, in pertinent part, as follows:
"....
"In consideration of the promises made by AmSouth to Bonar and by Bonar to AmSouth, AmSouth and Bonar agree that the following terms and conditions govern their agreement:
(Emphasis added.)
AmSouth never filed a claim against Centon. Instead, the record indicates that AmSouth, by virtue of its settlement agreement with Bonar, was allowed to align itself as a party plaintiff with Bonar against Centon, and that AmSouth participated with Bonar in the presentation of evidence at trial. Immediately following the presentation of evidence by Bonar and AmSouth at trial, Centon moved for a directed verdict based on the following four arguments: 1) that AmSouth's dismissal of its claim against Bonar with prejudice precluded liability on Bonar's third-party complaint as a matter of law; 2) that Bonar assigned a percentage of his contract claim to AmSouth in violation of the rule set out in Kansas City, Memphis & Birmingham R.R. v. Robertson, 109 Ala. 296, 19 So. 432 (1896), prohibiting the splitting of a contract cause of action, and that Bonar's purported assignment of his fraud claim to AmSouth was void and unenforceable under the rule stated in All States Life Ins. Co. v. Jaudon, 228 Ala. 672, 154 So. 798 (1934) (a cause of action sounding in fraud, being personal in nature, is generally nonassignable); 3) that Bonar had presented insufficient evidence to show that Centon never intended to pay the full price for the third order of computer chips; and 4) that Bonar had suffered no damage or loss as a result of his business dealings with Centon. The trial court directed a verdict in favor of Centon. AmSouth and Bonar immediately moved for a new trial, which the trial court granted. Centon appeals from the trial court's new trial order. For the following reasons, we affirm.
Centon makes the same arguments on appeal that it made in the trial court. With regard to the first argumentthat AmSouth's dismissal of its claim against Bonar with prejudice precluded liability on Bonar's third-party complaint as a matter of lawwe agree with Centon that Bonar's claims could not proceed as third-party claims after AmSouth settled with Bonar and dismissed its claim against Bonar. Rule 14, Ala.R.Civ.P. ("Third-party practice"), requires that the liability of a third-party defendant, such as Centon, be dependent on the outcome of the plaintiff's claim against the defendant/third-party plaintiff. See Southeast Mortgage Co. v. Mullins, 514 F.2d 747 (5th Cir.1975); United States v. Joe Grasso & Son, Inc., 380 F.2d 749 (5th Cir.1967); see, also, Opinion of the Clerk No. 3, 345 So. 2d 1338 (Ala.1977). However, we do not agree that Bonar's complaint against Centon was due to be dismissed as a matter of law. Although the trial court did not state that its ruling denying the dismissal was based on any particular rule of civil procedure, the legal effect of the ruling was to sever Bonar's claims against Centon, thus allowing them to proceed independently of AmSouth's claim against Bonar. This was permissible *1003 under Rule 21, Ala.R.Civ.P., which provides:
As a general rule, the original plaintiff and defendant are not prohibited from settling their dispute because of the presence of any third party impleaded under Rule 14. Modernage Homes v. Wooldridge, 55 Ala. App. 68, 313 So. 2d 190 (1975). However, AmSouth's settlement with Bonar resulted in Centon's being improperly joined in the action. Bonar's claims against Centon were properly severed under Rule 21. See Key v. Robert M. Duke Ins. Agency, 340 So. 2d 781 (Ala.1976).[1]
As to Centon's second argument that it was entitled to a judgment as a matter of law on the contract and fraud claims because Bonar had assigned a percentage of his contract claim to AmSouth and had attempted to assign a percentage of his fraud claimit appears to us from our review of the settlement agreement that although Bonar and AmSouth used certain language purporting to assign 70% of Bonar's claims against Centon to AmSouth, the actual intent of the agreement was that AmSouth was to receive 70% of any monetary recovery that Bonar received from Centon. The last sentence in paragraph d. of the settlement agreement states: "The intent of this paragraph is that Bonar does transfer to AmSouth seventy percent (70%) of the total amount he recovers from Centon, subject to the limitations set out in this Agreement." Our interpretation of the settlement agreement in this respect is also supported by the fact that although AmSouth aligned itself with Bonar and participated with Bonar in the presentation of evidence at trial, it never attempted to state a claim against Centon based on the settlement agreement. In fact, the settlement agreement specifically states that AmSouth was relying on Bonar to "vigorously and diligently" prosecute his claims against Centon. Thus, it appears that the intent of the settlement agreement was to replace whatever legal claim AmSouth had against Bonar with a contractual right to receive a percentage of any recovery obtained by Bonar from Centon.
With regard to Centon's third and fourth argumentsthat Bonar presented insufficient evidence to show that Centon never intended to pay the full price for the third order of chips and that Bonar suffered no damage or loss as a result of his business dealings with Centonthe record shows sufficient evidence to warrant submission of Bonar's fraud claim to the jury. In Hearing Systems Inc. v. Chandler, 512 So. 2d 84, 87 (Ala.1987), this Court, quoting Purcell Co. v. Spriggs Enterprises, Inc., 431 So. 2d 515, 519 (Ala.1983), held:
The evidence shows that Centon became aware on January 5, 1989, that it was not going to be able to resell some of the computer chips that it had purchased from Bonar pursuant to its December 14, 1988, order. Viewing the evidence in the light most favorable to Bonar, as we must do in *1004 accordance with our standard for reviewing the sufficiency of the evidence, see Anderton v. Gentry, 577 So. 2d 1261 (Ala.1991), we must accept as true Bonar's testimony that he did not authorize Centon to return the unsold chips. The credibility of Bonar's testimony in this regard is certainly bolstered by the internal memorandum that was apparently prepared by an employee of Centon the day before the stop payment order was issued on the check; that memorandum stated that Centon was having "a hard time" sending the chips back to Bonar. The evidence also shows that when Centon placed the third order for computer chips on or about January 10, 1989, it did not intend to pay the full amount for those chips. This is clearly evidenced by the fact that Centon issued the stop payment order on its check on January 12, 1989; in fact, Centon concedes that it issued its check for the full amount of the third order by mistake. There was sufficient evidence to create a fact question as to whether, as Bonar contends, Centon never intended to pay the full price for the third order of chips.
On the question of damages, Bonar alleged in connection with his fraud claim that he had suffered mental anguish as a result of his business dealings with Centon, and he sought both compensatory and punitive damages. The evidence was sufficient to submit the question of punitive damages to the jury. The evidence was also sufficient to allow the jury to determine whether Bonar was entitled to any damages for mental anguish. Finally, even though AmSouth honored all of Bonar's checks that were drawn against his account, we cannot agree with Centon that Bonar has no claim for pecuniary loss as a result of its failure to pay the full amount due on the third order of chips. First, the collateral source rule would apply to Bonar's fraud claim. That rule provides that benefits received from a source wholly independent of the wrongdoer in a tort case should not be taken into account in computing the plaintiff's recoverable damages. Ensor v. Wilson, 519 So. 2d 1244 (Ala. 1987). The rationale behind this rule is that tort-feasors should not be permitted to obtain a "windfall" by allowing them credit for the reasonable value of benefits that injured parties have received from third persons. See 22 Am.Jur.2d Damages § 566 (1988). Thus, Bonar's damages are not due to be reduced by the amount that AmSouth has paid to or for Bonar or by the amount of any monetary benefit that Bonar might receive by virtue of his settlement agreement with AmSouth, which requires Bonar to pay to AmSouth only 70% of any recovery that he receives from Centon. Second, it is a basic tenet of contract law that damages for a breach of contract should not put the injured party in a better position than he would have been in if there had been performance; however, it is equally well settled that damages for a breach of contract should return the injured party to the position the party would have been in had the contract been fully performed. Garrett v. Sun Plaza Development Co., 580 So. 2d 1317 (Ala.1991); Zippy Mart of Alabama, Inc. v. A & B Coffee Service, Inc., 380 So. 2d 833 (Ala. 1980); see, also, 22 Am.Jur.2d, supra, § 568. Consequently, although the collateral source rule is not applicable to a claim for breach of contract, Bonar is not precluded as a matter of law from recovering under his contract claim on the ground that he suffered no damage or loss. If Centon breached the contract, as Bonar contends, then Bonar's damages for breach of contract would be the amount to which AmSouth is entitled under the settlement agreement, for an award of that amount would vindicate Bonar and, in effect, restore him to the position that he would have been in, vis-a-vis AmSouth, had Centon fully performed. Bonar cannot, by virtue of his settlement agreement with AmSouth, receive a windfall as a result of a verdict in his favor on the contract claim.
We hold, therefore, that the trial court did not err in setting aside the directed verdict for Centon and reinstating this case to the trial docket.
AFFIRMED.
HORNSBY, C.J., and MADDOX, SHORES and KENNEDY, JJ., concur.
[1] It does not appear from our review of the record that a new case number was assigned to Bonar's suit against Centon. Normally, a new case number should be assigned once a claim is severed from the main action. See Key v. Robert M. Duke Ins. Agency, supra; Opinion of the Clerk No. 3, supra. | January 29, 1993 |
4b5893e8-56fb-4025-bebe-0719abecc910 | Dothard v. Dept. of Human Resources | 613 So. 2d 353 | 1911090 | Alabama | Alabama Supreme Court | 613 So. 2d 353 (1993)
Everline DOTHARD, et al.
v.
ALABAMA STATE DEPARTMENT OF HUMAN RESOURCES.
1911090.
Supreme Court of Alabama.
January 29, 1993.
*354 James R. Morgan and J. Wynell Brooks Crew of Morgan & Wooten, P.C., and Anna Lee Giattina, Birmingham, for appellants.
William Prendergast and Stephen K. Simpson, Asst. Attys. Gen., for appellee.
MADDOX, Justice.
The plaintiffs appeal from a summary judgment entered in favor of the defendant Alabama State Department of Human Resources (the "Department")[1] on claims that the plaintiffs, Everline Dothard and her minor son Clint Dothard assert under 42 U.S.C. § 1983. The claims arose from the death of Shante[2] Dothard, Ms. Dothard's minor daughter and Clint's sister, as a result of being hit by her foster parent's cousin while in the Department's custody, *355 and from alleged beatings that Clint received while he and Shante were living with the foster parent. Ms. Dothard, for herself and on Clint's behalf, raises these issues: 1) whether the plaintiffs' evidence regarding the Department's alleged failure, after discovering that Clint and Shante had been hit with a belt as punishment, to take additional measures to ensure that they were safe and not being disciplined with a belt amounted to "substantial evidence" of a constitutional violation entitling the plaintiffs to a remedy under § 1983, and 2) whether the plaintiffs presented substantial evidence of willful neglect or deliberate indifference in the Department's alleged failure to devise a "follow-up" policy and procedure to use when abuse or other Department violations are discovered.[3] We affirm, because we find no substantial evidence of deliberate indifference or of causation.
The Department gained temporary legal custody of Clint and Shante in 1981 after Ms. Dothard was diagnosed as suffering from schizophrenia and manic depression. In January 1982, the Department placed the children in Paulette Ford's home. Mrs. Ford had been approved as a foster parent in 1981 and was also keeping Pamela, another foster child.
During March 1982 Pamela's Department social worker visited Mrs. Ford's home and asked about the children. Mrs. Ford told her that she had not had to spank Clint or Shante.
On May 20, 1982, Merial Mathews, another Department social worker, visited Mrs. Ford's home. Mrs. Ford told Mrs. Mathews that she had spanked Clint and Shante once for stealing from a grocery store. During the conversation, Clint walked into the room with a belt and began grinning and nodding his head. This prompted Mrs. Mathews to discuss the Department's policy against using any instrument except the hand to spank foster children. Mrs. Ford stated that she understood. Although she did not conduct physical examinations of the children, Mrs. Mathews did observe them and did not see any marks or bruises on Clint or Shante. Mrs. Mathews discussed alternative methods of discipline with Mrs. Ford.
Mrs. Mathews also learned during this visit that Shante preferred sleeping with Mrs. Ford. Mrs. Mathews explained that the Department strictly forbids adults and foster children sleeping together. Mrs. Mathews suggested how to make transitions for Shante to sleep in another room with Pamela.
Mrs. Mathews instructed Mrs. Ford to report any household changes to the Department, and Mrs. Ford agreed to do so. Mrs. Mathews noted after her visit that, despite the violations, her general impression was that Mrs. Ford was providing good care for Clint and Shante, and that both children appeared happy to her.
On May 24, 1982, Mrs. Mathews wrote a memorandum to Carolyn Frith, the social worker assigned to Clint and Shante, in which she reported the violations and her discussion of Department policy with Mrs. Ford. She also suggested working with Mrs. Ford regarding alternative disciplinary methods and child care management, but stated that Mrs. Ford appeared to be doing a good job with the children. Mrs. Mathews wrote a letter to Mrs. Ford three days later, in which she complimented Mrs. Ford on her overall care of the children, but she reiterated that foster parents may not in any circumstances use a belt or other instrument to discipline a foster child, and that it was against Department policy for foster children to sleep with adults.
The next contact between the Department and Mrs. Ford was on July 2, 1982, when Mrs. Mathews and Ms. Frith went to remove the foster children from Mrs. Ford's home after the coroner had reported to Ms. Frith that Shante had died the day before as a result of a beating she had *356 received from Roderick Campbell, Mrs. Ford's cousin. Mr. Campbell had been staying with Mrs. Ford approximately two weeks and was babysitting for her on July 1 when he beat Shante twice. Mrs. Ford had not reported Mr. Campbell's presence in the home to the Department. Mrs. Mathews and Ms. Frith immediately removed Clint and Pamela from Mrs. Ford's foster home, which was officially closed a week later.
Mr. Campbell also admitted having hit Clint with a belt. Mrs. Ford denied knowledge of marks on Clint but admitted that she had "switched" Shante once or twice. The physician who examined Clint on July 2 found bruises on the back of his thighs that he determined were between 42 and 72 hours old.
In 1988, Ms. Dothard filed the complaint here under consideration; in it she alleged that Shante's wrongful death resulted from federal civil rights violations. She sued the State of Alabama, the Department, and other defendants. She also sued as Clint's mother and next friend for damages for alleged violations of Clint's civil rights. The trial court dismissed the complaint as to all defendants except the Department. In an unpublished order, this Court denied the Department's petition for a writ of mandamus or, in the alternative, a writ of prohibition, or other extraordinary writ, or an appeal raising the issue of sovereign immunity. The trial court later dismissed the complaint, based on the expiration of the statutory period of limitations, but gave Ms. Dothard until June 23, 1989, to amend her complaint. She amended her complaint to state a cause of action against the Department under 42 U.S.C. § 1983.
On November 14, 1991, the Department filed a motion for summary judgment, contending that a summary judgment was proper because the statutory period of limitations had expired; that Ms. Dothard could not properly sue on Clint's behalf because she did not have legal custody of him when she sued; that the Department was entitled to sovereign immunity or qualified immunity; and that the Department was not liable for the criminal acts of a third party. The trial court granted the motion, finding no substantial evidence of "willful indifference" or "gross negligence" sufficient to support a cause of action under § 1983, relying on Taylor v. Ledbetter, 818 F.2d 791 (11th Cir.1987), cert. denied, 489 U.S. 1065, 109 S. Ct. 1337, 103 L. Ed. 2d 808 (1989). The trial court appointed James R. Morgan and J. Wynell Brooks Crew, Clint's attorneys, as guardians ad litem to prosecute the action on Clint's behalf. The plaintiffs appeal.
In reviewing a summary judgment, we take into account the same factors that the trial court considered, Havens v. Trawick, 564 So. 2d 917, 919 (Ala.1990), and we must consider the facts before the trial court in a light most favorable to the non-moving party. Tripp v. Humana, Inc., 474 So. 2d 88 (Ala.1985). The movant has the initial burden of showing that no genuine issue exists as to any material fact and that the moving party is entitled to a judgment as a matter of law. Rule 56(c), Ala.R.Civ.P. If the movant makes this prima facie showing, then the burden shifts to the nonmovant. Maharry v. City of Gadsden, 587 So. 2d 966, 968 (Ala.1991). For actions not pending on June 11, 1987, the nonmovant must offer "substantial evidence" to overcome the prima facie showing. See Ala.Code 1975, § 12-21-12. "Substantial evidence" is "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala.1989). Our review is de novo. Maharry, 587 So. 2d at 968.
Ms. Dothard does not dispute that the Department made a prima facie showing that it was entitled to a summary judgment. However, she contends that in rebuttal she offered substantial evidence to preclude the summary judgment. She basically alleges that Department personnel, knowing that Mrs. Ford had violated Department policies, including hitting Clint and Shante with a belt, did not take affirmative steps to ensure that the children would not be subject to such punishment *357 again and that the Department willfully neglected or was deliberately indifferent to those infractions and that she was entitled to recover under § 1983 as that section was construed in Taylor.
In Taylor the Eleventh Circuit Court of Appeals, sitting en banc, held that a foster child's guardian who alleged that state and local officials were grossly negligent and deliberately indifferent in placing the child in a home where she was beaten and rendered comatose had stated a cause of action under § 1983. Taylor, 818 F.2d at 795. An agency may be held liable if its top supervisors are deliberately indifferent "to a known risk, a known injury, or a specific duty and their failure to perform the duty or act ... was a proximate cause [of a constitutional deprivation]." Id. at 797.
The parties disagree as to whether Taylor applies, because this action was filed before Taylor was decided. We need not resolve that dispute, because, whether or not Taylor applies, Ms. Dothard has not offered substantial evidence to support her claims.
We recognize that the United States Constitution imposes a duty on the state to assume some responsibility for the safety and general well-being of persons it takes into its custody and holds against their will. DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189, 199-200, 109 S. Ct. 998, 1005-1006, 103 L. Ed. 2d 249 (1989). The historical constitutional guarantee has been to protect against deliberate governmental deprivations of life, liberty, or property. Daniels v. Williams, 474 U.S. 327, 331, 106 S. Ct. 662, 665, 88 L. Ed. 2d 662 (1986). Regarding the claims of deliberate indifference in this case, the following excerpt from Judge Cherner's order is relevant:
R. at 400-01.
We agree with Judge Cherner. Reviewing the facts before the trial court in a light most favorable to Ms. Dothard, the nonmovant, we conclude that the only inference that can be drawn is that there was one disciplinary violation of which Department *358 personnel were aware, or should have been aware of, and that this violation prompted three responses by Mrs. Mathews. First, she explained the policy against using instruments to discipline foster children and discussed alternative methods. Second, she wrote a report to the social worker assigned to Clint and Shante. Third, she reiterated in a letter what she had told Mrs. Ford about the infractions. Mrs. Mathews testified in her deposition that in following this procedure she was doing more than she was required to do, and that there was no report, or even suspicion, of abuse. Even if Taylor applies, these affirmative responses are sufficient to establish a prima facie showing that there was no deliberate indifference or willful neglect regarding the children's safety.
Whether or not Taylor applies, Ms. Dothard did not offer substantial evidence that any act or failure to act by the Department proximately deprived her or either child of a constitutional right, so as to authorize a suit under 42 U.S.C. § 1983. The evidence shows that the Department had no knowledge that Mr. Campbell was living with Mrs. Ford, because she did not report his presence. We agree with the trial court that it is speculative at best to say whether more frequent visits or another "follow up" policy would have prevented Shante's death or alleged violations of Clint's civil rights.
In any action under § 1983, "proof of an affirmative causal connection between the official's acts or omissions and the alleged constitutional deprivation" is required. Zatler v. Wainwright, 802 F.2d 397, 401 (11th Cir.1986); see also Collins v. City of Harker Heights, ___ U.S. ___, ___, 112 S. Ct. 1061, 1066, 117 L. Ed. 2d 261 (1992). Furthermore, prevailing tort concepts of proximate causation guide analysis of a claim under § 1983. See Johnson v. Greer, 477 F.2d 101, 106 (5th Cir.1973). One such guiding concept is that "foreseeability is the cornerstone of proximate cause." General Motors Corp. v. Edwards, 482 So. 2d 1176, 1195 (Ala.1985). Nothing that the Department did or did not do could have been the proximate cause of the injuries alleged in this case, because Department personnel, not knowing that Mr. Campbell was staying in Mrs. Ford's home, could not have foreseen that he would hit the children and cause one of them to die. Without substantial evidence of proximate cause, Ms. Dothard's claims must fail.
Having addressed the merits of the claims, we affirm the summary judgment in favor of the Department because Ms. Dothard presented no substantial evidence of deliberate indifference, willful neglect, or proximate cause. It is, therefore, unnecessary to address the other arguments presented by the parties.
AFFIRMED.
HORNSBY, C.J., and ALMON, SHORES, ADAMS, HOUSTON, STEAGALL and INGRAM, JJ., concur.
KENNEDY, J., dissents.
KENNEDY, Justice (dissenting).
I respectfully dissent, because, in my view, the majority has not, as we agree this Court must, viewed the facts before the trial court in a light most favorable to the non-moving party. Specifically, the majority states: "[W]e conclude that the only inference that can be drawn is that there was one disciplinary violation of which Department personnel were aware ... and that this violation prompted three responses...." Majority opinion at 357-58. The majority concludes that Dothard failed, therefore, to offer substantial evidence on the issue of deliberate indifference.
Examining the evidence in a light most favorable to Dothard, one can reasonably infer that the Department knew that three-year-old Shante had been beaten with a belt, as had her brother. According to the Department employee who reached this conclusion and confronted the foster mother about it, the foster mother responded that "they [Shante and her brother] had made her so mad."
Although it was contrary to Department policy for a child of any age to be intentionally struck in this fashion, the Department did not investigate. There was no *359 physical examination of Shante or her five-year-old brother and no private interview of either of them, nor any follow-up visit to further investigate the home situation.[4] Approximately six weeks later, Shante was dead from abuse in the foster home and her brother was found to have numerous large bruises on his lower body from a beating with a belt.
In my view, there is certainly sufficient evidence that the Department was "deliberately indifferent." This is not to say that the Department has, in fact, done anything wrong in this case. This is to say that a jury must decide this matter. "Unless the evidence submitted on a summary judgment motion is wholly without adverse inferences or is free from any doubt, summary judgment must not be entered, but the issues must be submitted to the jury." Gossett v. Twin City Cable T.V., Inc., 594 So. 2d 635, 640 (Ala.1992).
However, the majority says also that Dothard failed to produce substantial evidence on the issue of proximate cause. It stresses that the Department did not know that the young man who did the fatal beating was staying in the foster home. It states: "Department personnel, not knowing that Mr. Campbell was staying in [the foster home], could not have foreseen that he would hit the children and cause one of them to die." Majority opinion at 358. Thus, it says, it was not foreseeable that this young man would harm Shante and Clint.
This reasoning is flawed. In circular fashion, it would hold that Dothard cannot prove that the Department caused the death through willful ignorance, because the Department was ignorant. Thus, the majority effectively negates any duty on the part of the Department to not have deliberate indifference (based on that willful ignorance), contrary to the mandates of the cases interpreting 42 U.S.C. § 1983.
Moreover, evidence on the question of foreseeability, taken in a light most favorable to Dothard, reveals that the risk of abuse not only was recognized, but was discussed within the Department.
[1] That state agency was previously known as the Department of Pensions and Security. On April 29, 1986, by Ala.Acts 1986, No. 86-432, the legislature changed the name of that agency.
[2] Sometimes in the record and the briefs the name is spelled "Shanta."
[3] In her original brief Ms. Dothard raised the issue whether the statute of limitations was tolled by her mental incompetency or by Clint's minority, but in her reply brief she asserts that the limitations issue is not ripe for review because the trial court did not rule on it. We therefore decline to address the question. See, e.g., Blair v. Fullmer, 583 So. 2d 1307, 1312 (Ala. 1991).
[4] The record indicates that often during this time, the foster mother was not at home and that a Department worker would have found the children alone in the care of the young man who abused them. | January 29, 1993 |
0261cf0d-6b5c-46c6-a77a-6c9a50993d9a | Precise Engineering Inc. v. LaCombe | 624 So. 2d 1339 | 1911918 | Alabama | Alabama Supreme Court | 624 So. 2d 1339 (1993)
PRECISE ENGINEERING, INC.
v.
Christopher LaCOMBE.
1911918.
Supreme Court of Alabama.
June 18, 1993.
Rehearing Denied August 6, 1993.
*1340 Robert E. Cooper, Charles J. Kelley, Deborah Alley Smith and Rhonda K. Pitts of Rives & Peterson, Birmingham, for appellant.
Vernon L. Wells II and Larry B. Childs of Walston, Stabler, Wells, Anderson & Bains, Birmingham, for appellee.
STEAGALL, Justice.
While working on a construction project, Christopher LaCombe was injured when a scaffold on which he was standing collapsed; the scaffold had been supported by wooden poles constructed out of 2 × 4 pieces of lumber nailed together. One of the poles snapped and caused the scaffold to collapse. Pump jacks, manufactured by Precise Engineering, had been used to raise and lower the scaffold. A pump jack is a scaffolding device used to support a work platform; it can be jacked up and down a wooden pole.
LaCombe sued Precise Engineering, Inc., and others, alleging liability for his injuries. His claims against Precise Engineering were based on negligence and the Alabama Extended Manufacturer's Liability Doctrine. LaCombe alleged that Precise Engineering had negligently failed to warn him and other pump jack users of the danger in using the pump jacks with long poles. A jury returned a verdict in favor of LaCombe and against Precise Engineering, awarding compensatory damages of $2.7 million. The trial court entered a judgment pursuant to the jury verdict; following the denial of its motion for judgment notwithstanding the verdict, new trial, or remittitur, Precise Engineering appealed.[1]
Precise Engineering argues that LaCombe failed to prove that the alleged failure to adequately warn of the dangers associated with using the pump jacks was the proximate cause of LaCombe's accident. Precise Engineering contends that LaCombe failed to prove that he would have observed and read an adequate warning placed on the pump jacks and would have heeded the warning and thereby prevented the accident. LaCombe asserts that because the evidence reveals there were no warnings on the pump jacks, positive proof of what he would have done if a warning had been provided would have been speculative; LaCombe argues that under the principle stated in Restatement (Second) of Torts, § 402A (1965), Comment j, where there is no warning the law assumes *1341 that a warning would have been read and heeded and that he presented sufficient evidence at trial to support the jury's conclusion that a proper warning would have prevented his accident. It is clear from the record that Precise Engineering provided an instruction label to be used with the pump jacks and that this label instructed users on setting the pump jack and poles, on raising and lowering the pump jack, and on how to "pass a pump pole brace." The label also gave instructions on the care and maintenance of the pump jacks and stated:
The instruction label does not use the word "danger" or "warning."
LaCombe testified that he looked over these instructions from time to time, but that he already knew how to use the pump jacks and therefore did not really need to look at the instructions. He testified that he had been instructed by David Graham, the foreman on the construction site, on how to use the pump jacks. There was also evidence that LaCombe was a careful worker who followed Graham's instructions. In light of the evidence that there were instructions on how to use the pump jacks, but no warning of the danger associated with using the pump jacks with long poles, the evidence that LaCombe did not need to read the instructions because he had been instructed by Graham on how to use the pump jacks and the evidence that LaCombe followed Graham's instructions and was a careful worker, we hold that LaCombe presented sufficient evidence that if there had been a warning of the danger associated with using the pump jacks with long poles, LaCombe would have read and heeded the warning.
Precise Engineering next argues that it was prejudiced by an improper reference by LaCombe during the trial to a change by Precise Engineering in its warning label and, therefore, that the trial court erred in denying its motion for a mistrial and its motion for a new trial. Specifically, Precise Engineering contends that LaCombe improperly commented on a subsequent remedial measure when, in questioning Precise Engineering's expert witness about the instruction label used on the pump jacks, LaCombe asked the expert witness whether he was aware that the warning had been modified and when LaCombe's counsel attempted to show the witness the "one that is in use now."
The record reveals that LaCombe asked Precise Engineering's expert witness whether he was aware that the warning had been modified and that the witness answered that he was not. Precise Engineering did not object to this question, and LaCombe then attempted to show the witness "one that is in use now." The witness responded to this question, but that response was inaudible to the court reporter. At this point, Precise Engineering objected and moved for a mistrial. The trial court sustained the objection to the reference to "one that is in use now" and denied the motion for a mistrial. Precise Engineering then made a motion in limine, asking the court to order that there be no further questions along this line. The trial court granted the motion in limine, prohibiting LaCombe from offering any evidence as to the alleged subsequent remedial modification of the label.
The law is clear, as Precise Engineering argues, that evidence of subsequent remedial measures is inadmissible unless that evidence is offered for limited purposes other than to show antecedent negligence. Phar-Mor, Inc. v. Goff, 594 So. 2d 1213, (Ala. 1992); Holland v. First National Bank of Brewton, 519 So. 2d 460 (Ala.1987). In this case, however, because Precise Engineering did not object when the expert was asked whether he was aware that the warning had been modified and because the court sustained Precise Engineering's objection to LaCombe's attempt to show the alleged modification and granted its motion in limine prohibiting any further questioning as to subsequent modification, we hold that the trial court did not err in denying Precise Engineering's motion for a mistrial or its motion for a new trial on the basis that LaCombe *1342 had referred to a subsequent remedial measure.
Precise Engineering also argues that it was prejudiced by an improper reference by LaCombe during closing argument to a model warning and, therefore, that the trial court erred in denying its motion for a mistrial and its motion for new trial based on that ground. During his cross-examination of Precise Engineering's expert witness, LaCombe showed the witness a document marked as Plaintiff's Exhibit 57 and asked the witness whether pump jack users would be more likely to brace the pump jacks if the language on Plaintiff's Exhibit 57 was on the pump jacks. The trial court sustained Precise Engineering's objection to the question, and when LaCombe continued to ask the witness about the language on Plaintiff's Exhibit 57, the court sustained all of Precise Engineering's objections to the line of questioning, but denied its motion for a mistrial. The record reveals that even though LaCombe referred to Plaintiff's Exhibit 57, that exhibit was never admitted into evidence. Precise Engineering contends that during closing argument LaCombe published to the jury a model containing the same language as Plaintiff's Exhibit 57. LaCombe argues that he merely used, as a demonstrative aid, a poster showing an example of a warning that, in light of the expert testimony, would have been "proper."
The decision whether to grant or to deny a motion for a mistrial is within the trial court's discretion, and this Court will not reverse the trial court's denial of a mistrial based on improper statements unless it appears from the record that the statements were probably prejudicial to the complaining party. Georgia Cas. & Sur. Co. v. White, 582 So. 2d 487 (Ala.1987). Moreover, before this Court will reverse the trial court's denial of a motion for new trial based on improper argument, it must be shown that that argument was made as a fact and not as an illustration. Southern Ry v. Jarvis, 266 Ala. 440, 97 So. 2d 549 (1957). See, also, Drs. Lane, Bryant, Eubanks & Dulaney v. Otts, 412 So. 2d 254 (Ala.1982).
After reviewing the record in this case, we conclude that the statements made by LaCombe during closing argument regarding a "model" warning were not made as fact, but were made as an illustration and that the statements were not probably prejudicial to Precise Engineering. We hold that the trial court did not err in denying Precise Engineering's motions for a mistrial or a new trial based on these arguments.
Precise Engineering next argues that the trial court erred in denying its motions for mistrial and new trial because, it contends, during closing argument, LaCombe "emphasized the importance of sending a punitive message to the scaffolding industry in order to deter similar conduct in the future, notwithstanding the absence of any claim for punitive damages."
The record reveals that during closing his closing argument, LaCombe's counsel stated, in part:
Precise Engineering objected at this point, and the trial court sustained the objection. LaCombe's counsel then stated, "Your message must reach the people who sell these." The trial court sustained Precise Engineering's objection to this argument, and later, in charging the jury, it instructed the jury only as to compensatory damages.
It is clear from the record that the trial court sustained Precise Engineering's objections to any argument by LaCombe about sending a message to the scaffolding industry. Moreover, because the trial court did not charge the jury that it could award LaCombe punitive damages, we fail to see how any argument about sending a message to the industry probably prejudiced Precise Engineering. See Georgia Cas. & Sur. Co. v. White, supra. Accordingly, we hold that the trial court did not err in denying Precise Engineering's motion for a new trial on this ground.
Precise Engineering's final argument is that the jury's award of $2.7 million in compensatory damages is excessive. After carefully reviewing the record, however, we conclude that the jury's verdict is clearly supported by the evidence. LaCombe presented evidence that he suffered extensive and severe personal injuries as a result of his accident, including permanent loss of control over his bladder and bowels; that he continues to suffer pain in his back and legs; and that he has suffered, and will continue to suffer, mental anguish as a result of his injuries. There was also evidence that LaCombe has undergone surgeries and numerous other medical procedures and that he has incurred medical expenses of approximately $41,375. The record further reveals evidence that LaCombe had suffered a loss of income of $77,902 and would in the future suffer a loss of income of $478,406. There was evidence that LaCombe had received $214,000 in settlements with other defendants in this case; the trial court instructed the jury that if it found that LaCombe was entitled to recover from Precise Engineering, then it should give Precise Engineering a credit for that amount. Given the evidence of LaCombe's permanent injuries and his pain and suffering, we cannot conclude that the amount of the jury award, which was based on a credit for the amount of the settlements with the other defendants, was excessive.
The judgment is affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, ALMON, SHORES, ADAMS, HOUSTON and INGRAM, JJ., concur.
[1] The judgment did not involve the other defendants and those other defendants are not parties to this appeal. | June 18, 1993 |
d47e752f-c400-4dd4-9a5e-7b891caa327e | Posey v. Posey | 614 So. 2d 1041 | 1911647 | Alabama | Alabama Supreme Court | 614 So. 2d 1041 (1993)
Mittie Marie POSEY
v.
Ronald Keith POSEY, et al.
1911647.
Supreme Court of Alabama.
March 12, 1993.
Bill Fite, Hamilton, for appellant.
Nelson Vinson of Vinson & Guyton, Hamilton, for appellees.
KENNEDY, Justice.
The plaintiff/widow, Mittie Marie Posey, appeals from what she calls a denial of her family allowance claim. The family allowance provision of the Probate Code, Ala. Code 1975, § 43-8-112, provides inter alia, "a reasonable allowance" from a decedent's estate for the decedent's "surviving spouse ... whom the decedent was obligated to support ... for [the spouse's] maintenance during the period of administration."
The pertinent facts of this case are undisputed.
Posey and her husband separated many months before his death. The husband's heirs are Posey, two surviving children *1042 from a previous marriage, and a grandchild.
Posey claimed, and was granted in the trial court,[1] a $6,000 homestead allowance and a $3,500 personal property allowance, but was denied, according to the parties, a "family allowance."
The trial court's order, if it was based on findings from ore tenus evidence as to whether Posey met the statutory requirements for a family allowance, would be entitled to considerable deference. Browning v. Carpenter, 596 So. 2d 906 (Ala.1992) (stating that such a judgment will be upheld unless the trial court is "plainly and palpably wrong").
To be "entitled to a reasonable allowance" Posey would have to meet the requirements of § 43-8-112,she must be a "surviving spouse ... whom the decedent was obligated to support."
As to what is a "reasonable allowance," the commentary to § 43-8-112 states several factors that "should" be taken into account, but directs that "need" is relative to the particular facts of each case.[2]
In the present case, there have been no factual findings on the family allowance claim, nor does it appear that the trial court has considered the merits of the claim and decided it. There is no mention of it in the trial court's order.
It could be argued that the trial court denied this claim by implication, through the language of its order stating that "all claims not herein adjudicated are denied." Through this language, the trial court may be understood to say that the parties were denied relief as to any claim the court did not consider.
It is fundamental to the proper exercise of judicial authority that such authority not be exercised to render a decision that is res judicata as to a claim, absent a consideration of the merits of the claim. Because in this instance, it affirmatively appears that the trial court did not consider the merits of the family allowance claim, we consider it to be unresolved, despite the trial court's seeming denial of it; we hold that this claim was not resolved by the trial court, by implication or otherwise, and that it is still before the trial court for a resolution.
Related to this matter, we deny the defendants' motion to strike, as untimely, an amendment to the trial court's order unrelated to the matter we have discussed. This motion is based on the assumption that the amendment was to a final judgment and was untimely as a post-judgment action. As we have suggested, the trial court's order in this case was not a final judgment. Therefore, the premise of the motion is flawed and we need not consider it.
MOTION DENIED; APPEAL DISMISSED.
HORNSBY, C.J., and MADDOX, SHORES, ADAMS and HOUSTON, JJ., concur.
ALMON and INGRAM, JJ., dissent.
INGRAM, Justice (dissenting).
I respectfully dissent from the majority's opinion. I believe that the record shows that the issue of a family allowance was presented to the trial court and that the evidence supports the trial court's denial of a family allowance to Mittie Marie Posey, the widow. I also dissent as to the denial of the appellees' motion to strike the trial court's amended order; the motion to strike should have been granted, because the trial court had no jurisdiction to amend its order more than 90 days after the post-judgment motion was filed.
The opinion of the majority states that the trial court did not consider Mittie Marie Posey's request for a family allowance and, therefore, that the judgment of the trial *1043 court is not final. This holding ignores the indications in the record that Mittie Marie asked for the family allowance, that evidence was presented both for and against her receiving a family allowance, and that the trial court specifically stated in its order, "All claims not herein adjudicated are denied." The majority also fails to consider that Mittie Marie stated in her motion for a new trial, "The Court erred in not awarding to Plaintiff her family allowance as the widow of Troy Posey," and, further, that this motion was denied by operation of law on June 10, 1992.
The law is settled that, in the absence of an order severing a claim or ordering a separate trial, "[a] judgment will be deemed a final judgment on all issues pleaded and any claims which are not specifically disposed of in the judgment will be deemed to have been rejected or denied." Poston v. Gaddis, 372 So. 2d 1099, 1101 (Ala.1979) (emphasis added). In Poston, the basis for finding the order nonfinal was stronger than that in the present case. Gaddis sued Poston, alleging breach of a construction contract; Poston counterclaimed, alleging that Gaddis had not paid him all that he was owed on the contract. The jury returned a judgment in favor of Gaddis on the breach of contract claim. Although Poston argued that he had voluntarily dismissed the counterclaim, no order dismissing the counterclaim was entered in the record. Unlike this case, in Poston no evidence was admitted on the counterclaim; also, the jury was not instructed on the counterclaim. One of the issues on appeal in Poston was whether the order of the trial court was a final judgment for purposes of appeal when the record did not contain an order dismissing the counterclaim or a Rule 54(b), A.R.Civ.P., certificate. Despite the failure to specifically address the counterclaim, and even lacking any evidence and/or instructions to the jury on the counterclaim, this Court held that the order awarding money damages to Gaddis was a final judgment on all claims; Poston's counterclaim was deemed to have been denied and/or rejected.
In the present case, evidence was presented both for and against a family allowance for Mittie Marie. The trial court specifically stated that the order of February 14, 1992, disposed of all claims, stating that those claims not specifically adjudicated were denied. After the entry of this order, Mittie Marie filed a motion for new trial, asking the trial court to make a family allowance award. On June 10, 1992, this motion for new trial was denied by operation of law.
The record supports the trial court's decision not to award a family allowance to Mittie Marie. That decision is supported by evidence showing that months before her husband died Mittie Marie had moved out of the home she had shared with him and that he was not supporting her at the time of his death. Section 43-8-112, Ala. Code 1975, provides for a family allowance to be paid to "the surviving spouse and minor children whom the decedent was obligated to support and the children who were in fact being supported by him." Section 43-8-112 also states that the amount of the family allowance award is to be set at "a reasonable allowance ... for [the surviving widow's and children's] maintenance during the period of administration." Also, a surviving spouse may not be entitled to a family allowance when she was not living with the decedent at the time of his death and when she had voluntarily abandoned, deserted, or separated from him. See 34 C.J.S. Executors and Administrators § 344(b) (1942). Therefore, the trial court's denial of a family allowance to Mittie Marie is supported by the record.
The appellees have filed a motion to strike the amended order of June 15, which disallowed funeral expenses that had been awarded to Ronald Keith Posey, in the amount of $3,602. The trial court had allowed these expenses in its order of February 14, 1992. The appellees contend, and I agree, that this amendment was untimely and that the trial court was without jurisdiction to amend its order more than 90 days after the post-judgment motion was filed.
*1044 Mittie Marie filed a post-judgment motion on March 12, 1992; therefore, the motion was denied by operation of law on June 10, 1992. Rule 59.1, Ala.R.Civ.P. The trial court purported to amend its order on June 15, 1992. The record contains no written agreement to extend the 90-day period; see Rule 59.1; therefore, the trial court acted outside its jurisdiction in amending the order after June 10, 1992.[3]
For the reasons stated above, I respectfully dissent from the majority's opinion overruling the motion to strike and dismissing this appeal as being from a nonfinal judgment.
ALMON, J., concurs.
[1] The administration of the husband's estate was removed from the Probate Court of Marion County to the Circuit Court of Marion County on the motion of Posey.
[2] We emphasize that "need" relates to how much of an allowance is reasonable, not to whether one is entitled to an allowance in the first instance.
[3] I note for the benefit of the parties that the amended order was supported by the record, which showed that the funeral expenses had been paid by burial insurance and not by Ronald Keith. The error in the February 14 order was not raised on appeal, apparently because Mittie Marie assumed that the trial court's amended order was valid. | March 12, 1993 |
549cbba9-ad1d-4d0f-b4cf-b37670bd938a | Kidd v. Kilpatrick Chevrolet, Inc. | 613 So. 2d 336 | 1911679 | Alabama | Alabama Supreme Court | 613 So. 2d 336 (1993)
C. O. KIDD
v.
KILPATRICK CHEVROLET, INC.
1911679.
Supreme Court of Alabama.
January 22, 1993.
William B. Hairston, Jr. and Judith D. Holt of Engel, Hairston & Johanson, P.C., Birmingham, for appellant.
LaBella S. Alvis and Rhonda K. Pitts of Rives & Peterson, Birmingham, for appellee.
HOUSTON, Justice.
C. O. Kidd sued Kilpatrick Chevrolet, Inc., a licensed General Motors dealership, alleging among other things, fraud and breach of warranty arising out of the sale to Kidd of a motor vehicle that Kidd alleges had been wrecked or damaged before the sale. Kilpatrick moved for a summary judgment; the trial court granted the motion and made the judgment final pursuant to Rule 54(b), A.R.Civ.P.[1] Kidd appeals. We affirm.
*337 Both parties agree that for purposes of this appeal the following material facts are basically undisputed:
The vehicle at issue in this case is a 1990 Chevrolet Caprice automobile, which was manufactured by General Motors Corporation. Around December 12, 1989, General Motors delivered the vehicle to CSX Railroad for delivery to Commercial Carriers, Inc. On December 18, 1989, Commercial Carriers received the vehicle. On December 22, 1989, Commercial Carriers delivered the vehicle to Robertson Chevrolet, Inc., a licensed General Motors dealership in Fort Payne, Alabama, where the vehicle was received into Robertson's inventory of new cars. By invoice dated December 26, 1989, Robertson Chevrolet transferred the vehicle to Kilpatrick's automobile sales lot in Boaz, Alabama.
In late 1989, after looking at several dealerships in Birmingham for a new vehicle with certain specifications, but not finding exactly what he wanted, Kidd contacted his wife's nephew, Joey Yarbrough, a salesman at Joe V. Clayton Chevrolet, Inc., a licensed General Motors dealership, and gave Yarbrough a description of the specific equipment Kidd wanted on the vehicle. Through a computer linkup that General Motors maintains with its dealerships, Yarbrough located the vehicle at Kilpatrick.[2] Thereafter, Yarbrough telephoned Kidd to tell him about locating the vehicle that met Kidd's specifications. After inquiring about the price, Kidd told Yarbrough to order the vehicle.
Subsequently, Yarbrough telephoned Kilpatrick and asked if it would "swap" another vehicle for the one that Kidd wanted to purchase. Kilpatrick agreed, and on January 12, 1990, Kilpatrick transferred the vehicle to Clayton Chevrolet. Clayton Chevrolet then sent a driver for the vehicle, and Yarbrough telephoned Kidd to come pick up the vehicle at Clayton Chevrolet. When the driver returned to Clayton Chevrolet, it was dark and the weather was rainy. Yarbrough sent the vehicle to be cleaned; after it was cleaned he and Kidd walked around the vehicle and drove it around the block before Kidd took it home. When the vehicle was delivered to Kidd, the "1990 Warranty and Owner Information" book was in the glove compartment.
Kidd began having trouble with the vehicle. Later, when Clayton Chevrolet inspected the vehicle, it found that the vehicle had been damaged and had been improperly repaired. Ken Sexton, the president of Kilpatrick, testified that Kilpatrick typically did not perform large-scale inspections when receiving automobiles in dealer trades, but rather visually inspected the vehicles when they were received from other dealerships. Sexton further testified that Kilpatrick would not have accepted the vehicle as a dealer trade from Robertson Chevrolet if it had not been in a presentable condition and that, so far as he knew, the vehicle had not been damaged before it arrived at Kilpatrick and it was not wrecked or damaged while it was at Kilpatrick. Kilpatrick did not conduct a large-scale inspection of the vehicle upon receiving it from Robertson Chevrolet or before transferring it to Clayton Chevrolet.
In entering a judgment for Kilpatrick on Kidd's breach of warranty claim and fraud claim, the trial court found that there was no substantial evidence (1) that the alleged damage was caused by Kilpatrick; (2) that the damage was repaired by Kilpatrick; (3) that Kilpatrick had any dealings with Kidd on a personal basis; or (4) that a detailed examination would have revealed the repaired damage.
*338 The summary judgment was proper if there was no genuine issue of material fact and Kilpatrick was entitled to a judgment as a matter of law. Rule 56, A.R.Civ.P. The burden was on Kilpatrick to make a prima facie showing that no genuine issue of material fact existed and that it was entitled to a judgment as a matter of law. If it made that showing, then the burden shifted to Kidd to present evidence creating a genuine issue of material fact, so as to avoid the entry of a judgment against him. In determining whether there was a genuine issue of material fact, we must view the evidence in a light most favorable to Kidd and must resolve all reasonable doubts against Kilpatrick. Stafford v. Mississippi Valley Title Ins. Co., 569 So. 2d 720 (Ala. 1990). Because this case was not pending on June 11, 1987, the applicable standard of review is the "substantial evidence" rule. Ala.Code 1975, § 12-21-12.
From a review of the record, we conclude that Kilpatrick made a prima facie showing that it breached no contract or duty imposed by law and that it made no misrepresentation of material fact in connection with the transfer/swap of the vehicle to Clayton Chevrolet, the dealership that sold the vehicle to Kidd. The burden therefore shifted to Kidd to present substantial evidence in support of each element of his cause of action so as to preclude the entry of a summary judgment for Kilpatrick.
Kidd maintains that he presented substantial evidence that Kilpatrick's failure to examine the vehicle and to determine whether it was a "new" vehicle "prior to placing the vehicle in the stream of commerce... constituted either a deliberate or [a] mistaken misrepresentation."
Viewing the evidence in the light most favorable to Kidd as the nonmoving party, we find no evidence of fraudno evidence that Kilpatrick made a false representation to Kidd upon which he relied. See Fincher v. Robinson Brothers Lincoln-Mercury, Inc. 583 So. 2d 256 (Ala.1991). According to Kidd's deposition testimony, he never spoke with anyone at Kilpatrick about purchasing the vehicle or about the damage to the vehicle and no one at Kilpatrick ever told Kidd or anyone at Clayton Chevrolet that the transferred vehicle was "new." Furthermore, according to Kidd's deposition testimony, he had no idea when he decided to purchase the vehicle that it had been transferred from Kilpatrick to Clayton Chevrolet.
For the foregoing reasons, the trial court correctly entered the judgment for Kilpatrick on Kidd's fraud claim.
Kidd also maintains that Kilpatrick breached the implied warranty of merchantabilitythat there was privity between him as the purchaser and Kilpatrick as the transferor and that he was a third-party beneficiary as to the implied warranties made by Kilpatrick. See Ala.Code 1975, § 7-2-314 ("Implied Warranty: Merchantability") and Ala.Code 1975, § 7-2-318 ("Third-party beneficiaries of warranties... implied").
Alabama has abolished privity requirements in actions involving personal injuries, but in actions where the claim alleges purely economic injury, such as this case, privity is still required. However, §§ 7-2-314 and 7-2-318 speak in terms of "seller," which is defined in § 7-2-103(1)(d), as "a person who sells or contracts to sell goods." Under the particular facts of this case, Kilpatrick is not a "seller"it did not sell the vehicle to Kidd; it transferred the vehicle to Clayton Chevrolet and Clayton Chevrolet sold the vehicle to Kidd. Therefore, because Kilpatrick was not the "seller," the implied warranty sections are not applicable. See, e.g., Wellcraft Marine v. Zarzour, 577 So. 2d 414 (Ala.1990).
The trial court correctly entered the judgment for Kilpatrick on Kidd's claim that it breached the implied warranty of merchantability.
AFFIRMED.
HORNSBY, C.J., and MADDOX, SHORES and KENNEDY, JJ., concur.
[1] Kidd also sued General Motors Corporation; Robertson Chevrolet, Inc.; Joe V. Clayton Chevrolet, Inc.; Commercial Carriers, Inc.; and CSX Railroad. Commercial Carriers and General Motors moved for summary judgments. The trial court entered a judgment for Commercial Carriers, making the judgment final pursuant to Rule 54(b), A.R.Civ.P.; Kidd has not appealed from that judgment. The trial court denied General Motors' motion for summary judgment. The claims against General Motors, Robertson Chevrolet, Joe V. Clayton Chevrolet, and CSX Railroad are pending below.
We note that Kidd's complaint contained claims other than breach of warranty and fraud. However, the only claims Kidd argues on appeal are those for breach of warranty and fraud.
[2] The computer linkup is part of General Motors' marketing program that enables every General Motors dealer to determine which vehicles are located at other General Motors dealerships, so as to assist the dealerships in selling the vehicles manufactured by General Motors. | January 22, 1993 |
423d4ace-0e21-4ef9-9ec7-d4e0b9473a54 | Palmer v. Resolution Trust Corp. | 613 So. 2d 373 | 1911410 | Alabama | Alabama Supreme Court | 613 So. 2d 373 (1993)
James A. PALMER and Lois Palmer
v.
RESOLUTION TRUST CORPORATION, as receiver and conservator for Altus Bank, a Federal Savings Bank.
1911410.
Supreme Court of Alabama.
February 5, 1993.
Marvin L. Stewart, Jr. of Najjar, Denaburg, P.C., Birmingham, for appellants.
Richard H. Walton of Haskell Slaughter Young & Johnston, Birmingham, for appellee.
INGRAM, Justice.
James A. Palmer and his wife Lois Palmer appeal from a summary judgment entered in favor of the Resolution Trust Corporation ("RTC") on its ejectment claim.
The Palmers borrowed $29,000 from First Capital Mortgage Corporation; the loan was evidenced by a note, which was secured by a mortgage on the Palmers' house. First Capital assigned the note and the mortgage to Altus Bank. The Palmers defaulted on the note, and Altus Bank foreclosed on the property according to the terms of the mortgage agreement.
Altus Bank made the highest bid for the property at the foreclosure sale and received *374 a foreclosure deed for the Palmers' house. Altus Bank made a demand for possession of the house on April 24, 1991. The Palmers refused to relinquish possession, and Altus Bank filed this ejectment action.
The Palmers, acting pro se, filed an answer stating that they had filed a bankruptcy petition under Chapter 11 and that they were trying to raise the money to pay the Altus Bank note. The Palmers also stated that they believed they had been "grossly, unfairly treated." Altus Bank moved for a summary judgment on its ejectment claim. The court took the motion under advisement on October 4, 1991, and on October 10, 1991, the Palmers, who had retained counsel in the interim, filed an amended answer and a counterclaim. The amended answer raised these affirmative defenses: (1) a lack of service of process on James Palmer; (2) that Altus Bank had failed to file an affidavit setting forth that there had been no violations of the Mini Code; (3) that the provisions of the note regarding payment of attorney fees violated the Mini Code; (4) that the note was void and unenforceable under the Mini Code because it did not contain a cautionary statement, see § 5-19-6, Ala.Code 1975, and the terms of the note allowed Altus Bank to collect more than the Mini Code allows; and (5) that Altus Bank breached its fiduciary duty by failing to pay the amount bid at the foreclosure sale in excess of the amount owed to Altus Bank. The counterclaim alleged a violation of the Truth-in-Lending Act; wrongful foreclosure; and breach of fiduciary duty. The counterclaim in large part restated the affirmative defenses raised in the Palmers' amended answer.
The trial court denied Altus Bank's motion for summary judgment on October 18, 1991. On November 15, 1991, Altus Bank moved for a reconsideration of the denial of its motion for summary judgment. While this motion was pending, the RTC, in its capacity as receiver and conservator of Altus Bank, was substituted for Altus Bank. After hearing oral argument, the trial court granted the motion for summary judgment on the ejectment claim and entered an order purporting to make the resulting judgment final pursuant to Rule 54(b), Ala.R.Civ.P.
The single issue raised on appeal by the Palmers is whether the facts alleged to support their designated "affirmative defenses" to the RTC's ejectment claim were sufficient to defeat the RTC's motion for summary judgment.
A summary judgment is appropriate upon a showing that no genuine issue of material fact exists and that the moving party is entitled to a judgment as a matter of law. Rule 56, A.R.Civ.P. In reviewing a summary judgment, this Court will view the evidence in a light most favorable to the nonmovant and will resolve all reasonable doubts against the movant. Fincher v. Robinson Bros. Lincoln-Mercury, Inc., 583 So. 2d 256 (Ala.1991). The present action was filed in June 1991; therefore, the applicable standard of review is the "substantial evidence rule." See § 12-21-12, Ala.Code 1975. "[S]ubstantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala.1989). "In determining whether there is substantial evidence to defeat a summary judgment motion, this Court reviews the record in the light most favorable to the non-movant and resolves all reasonable doubts against the movant." Specialty Container Mfg., Inc. v. Rusken Packaging, Inc., 572 So. 2d 403, 404 (Ala.1990).
"Actions of ejectment, or those in the nature thereof, are determinable upon the legal, and not the equitable, title." Lyons v. Taylor, 231 Ala. 600, 602, 166 So. 15, 17 (1936). In cases such as this one, where the mortgagee forecloses on the property under a power of sale in the mortgage, "the foreclosure deed executed by the mortgagee or his transferee, or the owner of the debt secured thereby, or his agent or attorney or personal representative, shall operate to convey the legal title to the lands sold to the purchaser at [the foreclosure *375 sale]." § 35-10-5, Ala.Code 1975. The RTC contends that, as receiver for the purchaser at the foreclosure sale and as the holder of the foreclosure deed, it has a right to possession of the property. It further contends that defenses such as those raised by the Palmers in their amended answer, which challenge the underlying debt, cannot be raised against the holder of a foreclosure deed. We agree.
The defenses raised by the Palmers concern the RTC's right to foreclose on its mortgage and are based on alleged irregularities in the underlying note that the Palmers argue made the note void and unenforceable. However, the RTC, as holder of the foreclosure deed, has full legal title, subject only to the right of redemption, see Wragg v. Federal Land Bank, 317 U.S. 325, 328, 63 S. Ct. 273, 275, 87 L. Ed. 300, 303 (1943), and has a right to immediate possession of the property, see Jones v. Butler, 286 Ala. 69, 71, 237 So. 2d 460, 463 (1970). The Palmers' "affirmative defenses," which challenge the underlying note, do not defeat the legal title created by the foreclosure deed and the right of the holder of the foreclosure deed to possession of the property at this time. Therefore, the summary judgment in favor of the RTC on its ejectment claim was proper because the Palmers failed to show substantial evidence of a genuine issue of material fact.[1]
However, the Palmers' counterclaims are based on contentions similar to those underlying the affirmative defenses; those contentions challenge the validity of the underlying loan transaction and foreclosure. We make no judgment as to the merits of these contentions; nevertheless, we note that if the Palmers are successful on their counterclaims, they would be entitled to relief from the RTC. Such relief, if merited, would affect the Palmers' right to redeem the property, and might support a claim for damages for wrongful foreclosure.
In addition to seeking compensatory and punitive damages, the Palmers seek to retain their property, based upon their affirmative defenses, which are actually counterclaims seeking to set aside the foreclosure; the RTC is also seeking possession of the property, based upon the interest it acquired at the foreclosure sale. Both parties seek possession of the property, one alleging a right to possession via the foreclosure sale; and the other seeking to retain possession by setting aside the foreclosure sale. We note that the foreclosure sale was conducted under the provisions of the mortgage agreement and that this is the first judicial proceeding to challenge the validity of that sale.
Any action to make the summary judgment on the ejectment claim final by Rule 54(b) certification at this time is premature, because the relief sought by the Palmers is so closely intertwined with the relief sought by the RTC that separate adjudications would pose an unreasonable risk of inconsistent results. This Court in Branch v. SouthTrust Bank of Dothan, N.A., 514 So. 2d 1373 (Ala.1987), stated:
514 So. 2d at 1374.
The Palmers contend that the loan transaction underlying the foreclosure was void and/or that the foreclosure was illegal. The RTC, which brought this ejectment action as the holder of the foreclosure deed and the party entitled by law to possession of the property, is the receiver and conservator of Altus Bank, which is the assignee of the lender, First Capital Mortgage. Therefore, the RTC is the proper party against which the Palmers may challenge the validity of the underlying loan transaction and the subsequent foreclosure sale.
The RTC's ejectment action and the Palmers' counterclaims are sufficiently intertwined to present the risk of an inconsistent resultsuch as a ruling that the RTC is entitled to possession, as against the Palmers, by virtue of its foreclosure deed, and a later ruling that the foreclosure sale, for which the RTC is responsible, was invalidand also to unreasonably hamper the rights of the Palmers to possession of the house if the underlying note is determined to be void and the subsequent foreclosure is found to be invalid. If the Palmers are not successful on their counterclaims, the RTC will be entitled to damages for the time that the property was wrongfully possessed by the Palmers.
Although the summary judgment in favor of the RTC on its claim for ejectment does not appear to be erroneous, given the record as it existed at the time of the ruling, the certification of that summary judgment as final was premature, given the nature of the Palmers' outstanding counterclaims. Therefore, the certification is set aside and the case is remanded to the trial court.
RULE 54(b), ALA.R.CIV.P., CERTIFICATION SET ASIDE; REMANDED.
MADDOX, ALMON, ADAMS and STEAGALL, JJ., concur.
[1] From our review of the record, we note that the trial court did not consider the merits of the affirmative defenses raised by the Palmers in their amended answer, but entered the summary judgment because the affirmative defenses, which claimed that the underlying note was void and that the foreclosure was improper, did not establish the Palmers' right to possession of the property against the holder of the foreclosure deed, the RTC. Therefore, we do not wish to be understood as making any judgment as to the merits of the contentions raised by the Palmers as the basis of their affirmative defenses and counterclaims. | February 5, 1993 |
c0483987-77ab-41c7-a439-d19b8e1551a1 | Blake v. Big B, Inc. | 613 So. 2d 1265 | 1911919 | Alabama | Alabama Supreme Court | 613 So. 2d 1265 (1993)
Lori B. BLAKE
v.
BIG B, INC.
1911919.
Supreme Court of Alabama.
February 19, 1993.
Lloyd W. Gathings, Birmingham, and E.L. Brobston, Bessemer, for appellant.
R. David Proctor and Brent L. Crumpton of Sirote & Permutt, Birmingham, and Lee E. Bains, Sr., Bessemer, for appellee.
PER CURIAM.
The issue presented by this appeal (whether the holding in Sims v. Union Underwear Co., 551 So. 2d 1078 (Ala.Civ. App.1989), triggered the application of the nonseverability section of Act 85-41, Acts of Ala.1984-85, and thus invalidated the entire amendatory act) was recently resolved in Jones v. Lowe, 611 So. 2d 345 (Ala.1992).
In Sims, the plaintiff Sims filed a worker's compensation claim, alleging injury by occupational disease; the claim was filed more than one year after, but within two years of, the date of the injury. Sims contended that the one-year statutory limitations period prescribed by Ala.Code 1975, §§ 25-5-117 and -147, had been effectively extended to two years by Act 85-41. It is without dispute that the amendatory act did so extend the period of limitations applicable to Article 3 injuries (§ 25-5-80) and that § 12 of the amendatory act states that "the provisions of this act shall be applicable to [the occupational disease articles]."
The defendant employer in Sims contended that any legislative attempt in Act 85-41 to extend the period of limitations for occupational diseases from one year to two years violated Ala. Const.1901, § 45. The trial court granted the employer's motion to dismiss. The Court of Civil Appeals agreed, holding that the application of § 12 of Act 85-41 to engraft the two-year period of limitations in amended § 25-5-80 onto §§ 25-5-117 and -147 would violate the prohibition of § 45, which proscribes amendments to existing legislation by mere reference to its title.
In Jones v. Lowe, supra, the plaintiff Lowe brought a third-party action against a fellow employee. Citing Sims, Lowe contended that the prohibition against such a cause of action (§ 25-5-53, as amended by Act 85-41) was invalidated by the nonseverability clause of the amendatory act (§ 13 of Act 85-41). This Court rejected the contention that the holding in Sims invoked the application of the nonseverability clause, and declared that the prohibition against fellow-servant actions, as proscribed by Act 85-41, was valid.
The Jones Court held that Sims did not declare § 12 of the amendatory act invalid; instead, it construed the Sims holding as simply rejecting the plaintiff's contention that § 12 of the amendatory act should be applied to effectively amend §§ 25-5-117 and -147 by mere reference to their titles, *1266 because the amendatory process, as suggested by the plaintiff, is constitutionally impermissible. The Jones Court recognized a material distinction between a declaration of unconstitutional application of a statute (as in Sims) and a holding declaring the statute itself unconstitutional. Thus, while the latter would invoke the application of a nonseverability clause, the former would not.
The plaintiff in this case brought an action pursuant to § 25-5-11.1 (§ 11 of Act 85-41), claiming retaliatory discharge from her employment because she had "instituted or maintained [an] action against [her] employer to recover workers' compensation benefits." As one of the grounds for its motion for summary judgment, the defendant/employer, Big B, Inc., challenged the validity of § 25-5-11.1, contending that the holding in Sims invoked the application of the nonseverability clause in Act 85-41 and, thus, invalidated the entire amendatory act, including § 11, the section on which this plaintiff based her claim. The trial court agreed and granted Big B's motion for summary judgment.
After the trial court entered the summary judgment in this case and while the appeal was pending, this Court released its opinion in Jones. After carefully reconsidering Jones, we reaffirm our holding in that case. Accordingly, we hold that the trial court in this case erred in entering the summary judgment on the ground that the entire amendatory act (Act 85-41) is invalid.
REVERSED AND REMANDED.
HORNSBY, C.J., and MADDOX, SHORES, HOUSTON and STEAGALL, JJ., concur. | February 19, 1993 |
3d396c55-6436-44ad-9309-a0da5d9b297a | Sharer v. Creative Leasing, Inc. | 612 So. 2d 1191 | 1911103 | Alabama | Alabama Supreme Court | 612 So. 2d 1191 (1993)
James L. SHARER, etc.
v.
CREATIVE LEASING, INC.
1911103.
Supreme Court of Alabama.
January 15, 1993.
*1192 John P. Carlton of Carlton, Vann & Stichweh, Birmingham, for appellant.
Rodney E. Nolen of Sirote & Permutt, P.C., Birmingham, for appellee.
INGRAM, Justice.
The defendant, James L. Sharer, appeals from a summary judgment entered in an action based on a lease contract. He raises two issues: (1) whether the value of a repossessed truck at the time of its sale is a material fact that is disputed; and (2) whether the lease agreement provides for late charges of 5% after the agreement is terminated.
A summary judgment is appropriate upon a showing that no genuine issue of material fact exists and that the moving party is entitled to a judgment as a matter of law. Rule 56, A.R.Civ.P. In reviewing a summary judgment, this Court will view the evidence in a light most favorable to the nonmovant and will resolve all reasonable doubts against the movant. Fincher v. Robinson Bros. Lincoln-Mercury, Inc., 583 So. 2d 256 (Ala.1991). The present action was filed in July 1991; therefore, the applicable standard of review is the "substantial evidence rule." See § 12-21-12, Ala.Code 1975. "[S]ubstantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala.1989). "In determining whether there is substantial evidence to defeat a summary judgment motion, this Court reviews the record in the light most favorable to the non-movant and resolves all reasonable doubts against the movant." Specialty Container Mfg., Inc. v. Rusken Packaging, Inc., 572 So. 2d 403, 404 (Ala.1990).
The record in this case, viewed in the light most favorable to Sharer, the nonmovant, reveals the following facts:
On August 18, 1987, Sharer executed an agreement to lease a specially equipped truck from Creative Leasing, Inc. Sharer leased the truck for use in his business, Sharer Sash and Door. Shortly after the lease was executed, Sharer incorporated Sharer Sash and Door. In April 1990, Sharer was forced out of the business by the other shareholders.
On October 26, 1990, Creative Leasing notified Sharer that he was in default under the lease agreement and that the lease agreement had been terminated and the truck repossessed according to the terms of the agreement. The agreement states:
The agreement also provides that upon default by Sharer and termination by Creative Leasing, Sharer is
Paragraph 6, "Termination," provides that any loss upon termination is to be determined in the following manner:
Creative Leasing notified Sharer that the "highest available cash offer at wholesale" was $3,300.[1] Sharer avers that he told Steve Palmer, a representative of Creative Leasing, that the offer was "ridiculous," because the truck had "a body specially equipped for the handling of millwork" and "was a premium quality vehicle for use in the millwork trade and was worth at least $10,000." According to Sharer, Palmer agreed not to sell the vehicle until Sharer "could do further investigation into the matter." We note that under the terms of the agreement, Sharer had the option to "bear the loss [upon termination] or [to] otherwise arrange the immediate sale of the vehicle in order to obtain the Termination Value of the vehicle" by notifying Creative Leasing in writing within five business days after the termination value is ascertained. Sharer did not notify Creative Leasing that he wished to assume the responsibility of arranging for the sale of the vehicle. He avers that after Palmer agreed to delay the sale of the truck, "[Palmer] faxed a copy of the lease papers to my attorney on November 7, 1990. I [Sharer] heard nothing further from Creative Leasing until I received a letter from [Creative Leasing's attorney] dated December 2, 1990, which demanded that I pay the full amount which they stated to be $14,394.32."
Creative Leasing filed a complaint on July 25, 1991, seeking payment of $10,795.74 plus 13% interest, based upon the lease agreement. Creative Leasing later moved for a summary judgment, setting forth its claim for $13,703.80. The trial court granted Creative Leasing's motion, and Sharer appeals from the resulting judgment.
Sharer argues that "his evidence of value of the collateral truck at the time of its sale clearly raises a dispute of material fact as to the commercial reasonableness of that sale under § 7-9-504, Ala.Code 1975." Section 7-9-504 states, in part, "A secured party after default may sell, lease or otherwise dispose of any or all of the collateral in its then condition or following any commercially reasonable preparation or processing." However, we note that Article 9 of the U.C.C., codified as §§ 7-9-101 to 507, Ala.Code 1975, applies "to any transaction (regardless of its form) which is intended to create a security interest in personal property." § 7-9-102(1)(a), Ala.Code 1975. "Security interest" is defined as:
§ 7-1-201(37). This Court has stated:
"`[W]e must gather the intention of the parties from the entire instrument without regard to its form, or technical terms used therein ... in the light of the nature of the transactions, the situation and relationship of the parties, and the purposes sought to be achieved by them.' The ultimate determination, therefore, must be a factual one."
Commerce Union Bank v. John Deere Industrial Equipment Co., 387 So. 2d 787, 790 (Ala.1980) (quoting RCA Corp. v. State Tax Commission, 513 S.W.2d 313 (Mo.1974)).
However, we note that the interpretation of an unambiguous contract is a question of law. "[W]hen the terms of a contract are unambiguous, the construction of the contract and its legal effect become questions of law for the court, and when appropriate, may be decided by summary judgment." Dill v. Blakeney, 568 So.2d *1194 774, 777-78 (Ala.1990). Therefore, whether an agreement is a lease or a secured sale agreement is a question of law when the decision is based upon construction of the agreement and not on extrinsic facts. See LMV Leasing, Inc. v. Conlin, 805 P.2d 189, 193 (Utah App.1991).
Neither party addresses the issue of whether this agreement was a lease or was a disguised security interest. Nevertheless, because Sharer raises an issue on appeal concerning the "commercial reasonableness" of the sale of the truck after termination, citing § 7-9-504, we must resolve the question of the intent of the agreement in order to determine if the provisions of Article 9 of the U.C.C., specifically that section codified in this state as § 7-9-504, controls the sale of the repossessed truck. Because there is no extrinsic evidence on this issue in the record before the trial court on Creative Leasing's motion for summary judgment, we look to the terms of the agreement to determine the intent of the parties.
Section 7-1-201(37), defining "security interest," states that reservation of title under a lease agreement, if "intended as security," may create a security interest. The section also states:
(Emphasis added.) Therefore, a lease agreement that includes an option to purchase is not necessarily intended as a security agreement, but it is intended to be a security interest if that option to purchase may be exercised for no additional consideration or for only nominal consideration.
In this agreement, there is no option to purchase; therefore, we must turn to the other terms of the agreement. In determining whether an agreement was a "lease intended as security," the Georgia Court of Appeals held:
Ford v. Rollins Protective Services Co., 171 Ga.App. 882, 884, 322 S.E.2d 62, 64 (1984).
We hold that in order to be viewed as creating a security interest, the lease agreement must provide the lessee with some ownership of the leased property. In LMV Leasing, Inc. v. Conlin, 805 P.2d 189 (Utah App.1991), in examining a substantially similar lease agreement, the Utah Court of Appeals held:
"Despite the presence of several factors [that indicated the lease may have been intended as a security agreement, such as provisions requiring the lessee to provide insurance and to pay taxes as well as repair and maintenance costs, provisions providing for acceleration and resale of the leased vehicles, rental payments roughly equivalent to the cost of the vehicle plus interest, and provisions excluding any warranties of fitness for purpose, merchantability, and quality], other aspects of the agreement demonstrate the clear intention of the parties that the agreement was nevertheless intended *1195 to be a true lease agreement. Most notably, there is no provision, either explicit or implicit, for transfer of ownership of the vehicles to [the lessee]. `The prime essential distinction between a lease and a conditional sale is that in a lease the lessee never owns the property.' Ford v. Rollins Protective Serv. Co., 171 Ga.App. 882, 322 S.E.2d 62, 64 (1984) (emphasis added). The agreement specifically provides for retention of title in [the lessor], which is the `paramount attribute of a lease.' Carlson v. Tandy Computer Leasing, 803 F.2d 391, 395 (8th Cir.1986). Moreover, the agreement includes no alternative provision for transfer of ownership such as an option to purchase at nominal or no additional consideration. Nor is there any indication that the lessee would receive the functional equivalent of ownership.
LMV Leasing, 805 P.2d at 196.
In In re Tillery, 571 F.2d 1361 (5th Cir.1978), the Fifth Circuit Court of Appeals, applying Alabama law and construing an agreement, purporting to be a lease, that was substantially similar to the agreement in LMV Leasing and to the agreement in this case, held that the "termination formula," which provided that the lessee would bear any loss or receive the benefit of any gain resulting from the sale of the leased vehicle after termination, "recognize[d] the equity of the `Lessee'" and, therefore, that the agreement was intended for security. The Court of Appeals stated, "An equity in the `Lessee' is one of the distinctive characteristics of a lease intended for security." However, we must disagree with the holding that such clauses in lease agreements like the one in Tillery and the one in this case represent an "equity" of the lessee in the leased vehicle.
Viewed as to its economic function, such a termination clause does not represent an equity in the vehicle, but a shifting of the risk that the actual value of the leased vehicle at the time the lease is terminatedas determined by the actual sale of the leased vehicle or, as in the instant case, by the taking of bidswill be different from the predicted "book value" or "depreciated value," e.g., the cost of the vehicle adjusted by a constant depreciation figure. If the actual value at the time of termination is less than the predicted book value, the lessee must pay the lessor the difference; if the actual value at the time of termination is more than the predicted book value, the lessee receives the benefit of this gain. We do not agree that the resulting loss or gain to the lessee necessarily represents an "equity" in the property.
"Equity" in an item, such as a truck, is generally considered to be the amount or value of property over the indebtedness against it. See Black's Law Dictionary 540 (6th ed. 1990) (citing Dorfman v. Dorfman, 457 S.W.2d 417, 422 (Tex.Civ.App.1970)). The lessee, under the termination scenario provided by the lease agreement at issue, assumes the risk of loss (or gain) in the event that the vehicle, at the end of the lease, cannot be disposed of at an *1196 amount equal to its "book value" or "depreciation value." Therefore, it cannot be said that such a shifting of the risk of loss in value of the item alone is sufficient to hold that any lease agreement containing such a clause necessarily was intended to create a security interest.
Based upon the rationale of LMV Leasing, supra, and its interpretation of a substantially similar agreement, we hold that the agreement between Sharer and Creative Leasing is a lease agreement and did not create a security interest. Therefore, the provisions of Article 9 of the U.C.C. do not apply to the agreement and the subsequent sale of the truck, and Sharer's assertion as to the value of the truck is not substantial evidence creating a disputed issue of material fact sufficient to defeat Creative Leasing's motion for summary judgment.
The second issue raised by Sharer is whether the trial court correctly awarded 13% interest on the amount held to be due on termination. Section 8-8-8, Ala.Code 1975, provides, "All contracts, express or implied, for the payment of money, or other thing, or for the performance of any act or duty bear interest from the day such money, or thing, estimating it at its money value, should have been paid, or such act, estimating the compensation therefor in money, performed." The legal interest rate in Alabama on written contracts is 8%. § 8-8-1, Ala.Code 1975. Because the termination amount that Creative Leasing claims arises from a breach of the lease agreement and is computed under the clear and unambiguous terms of the lease agreement, we hold that Creative Leasing is entitled to interest, at 8%, on the amount due upon termination.
The more sharply focused issue, therefore, is whether Creative Leasing is entitled to an additional 5% interest under the terms of the contract. As stated supra, "[w]hen the terms of a contract are unambiguous, the construction of the contract and its legal effect become questions of law for the court, and when appropriate, may be decided by summary judgment." Dill, 568 So. 2d at 777-78. The terms of this contract are unambiguous and clearly provide that the additional 5% interest that Creative Leasing argues it is entitled to under the terms of the agreement is not "interest," but rather is a "late charge" that may be assessed on monthly rental payments that are "not received within 15 days of the due date."
Paragraph one of the agreement, "Leased Vehicle, Rental Payment and Term," states:
(Emphasis added.) Indeed, Creative Leasing, in its affidavit in support of its summary judgment motion, averred the following: "That the sum of $9,095.44 is due and owing plus interest at the legal rate of 8% and late charges at the rate of 5% per month beginning October 26, 1990. ...."
(Emphasis supplied.)
Paragraph 10 of the lease agreement, entitled "Default," provides that Creative Leasing, Inc., may terminate the lease agreement for nonpayment of any rental payments. According to the clear terms of paragraph 10, if Creative Leasing chooses to terminate the lease agreement, any rental payments that are unpaid at the time of termination are included in the amount due on termination.
According to the terms of the agreement, as discussed above, when Creative Leasing terminated the lease agreement it was entitled to claim the following items and, according to the record, claimed the following amounts (taken from an affidavit filed by Creative Leasing):
The resulting figure (hereinafter referred to as the "default/termination loss amount") is the amount that Creative Leasing was entitled to upon its termination of the lease agreement due to Sharer's default on any rental payment.[2] When the lease agreement was terminated, according to the terms of the agreement all amounts due and owing as rental payments were merged with other amounts into the figure we refer to as the default/termination loss amount. Upon termination of the lease agreement, there are no more monthly rental payments. Therefore, as the 5% late fee is unambiguously limited to late "rental payments," the default/termination loss amount, or any part of it that can be traced to rental payments, is not subject to the 5% "late fee."
Therefore, the trial court erred in awarding Creative Leasing an amount equal to 13% prejudgment interest on the default/termination loss amount. The lease agreement is silent as to the interest rate on any default/termination loss amount; therefore, the default-termination loss amount bears only the legal rate of prejudgment interest.
Based on the foregoing discussion, the award of the default-termination loss amount stated in Creative Leasing's affidavit is affirmed; however, we reverse the trial court's award of 13% interest on this amount and remand this case with instructions for the trial court to modify its order so as to award prejudgment interest at the legal rate of 8%.[3]
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS.
HORNSBY, C.J., and MADDOX, ALMON, SHORES, ADAMS, HOUSTON, STEAGALL and KENNEDY, JJ., concur.
[1] The truck actually sold for $5,000 before Creative Leasing moved for a summary judgment. Creative Leasing figured its final claim using the larger figure of $5,000.
[2] The total of the figures in the table is actually $9,095.74. Creative Leasing claimed only $9,095.44; thus, the discrepancy in the totals.
[3] We note that the lease agreement also includes a provision for the payment of attorney fees. Creative Leasing does not claim interest at the legal rate of 8% or at the "late charge" rate of 5% on the amount claimed as its attorney fees. We recognize that Creative Leasing is entitled to its reasonable attorney fees, which it claimed were $3,425.95; however, because it does not include this amount in its total due upon termination as to which it seeks the prejudgment interest, that amount is not included in the total of $9,095.44. | January 15, 1993 |
1a12b48e-12df-4a98-bfb9-3b208566d15f | Bolan v. Bolan | 611 So. 2d 1051 | 1910582 | Alabama | Alabama Supreme Court | 611 So. 2d 1051 (1993)
Melvin BOLAN, et al.
v.
John Taylor BOLAN, et al.
1910582.
Supreme Court of Alabama.
January 8, 1993.
*1052 Robert E. Patterson, Huntsville, for appellants.
Billy C. Burney, Decatur, for appellees.
ALMON, Justice.
The proponents of a will appeal from a judgment on a jury verdict for the contestants.
On October 11, 1990, three children of Charley Bolan, deceased, as proponents of his purported will, petitioned to probate the will. On November 28, 1990, three other children and the heirs of a deceased child filed a contest, alleging that the will was invalid because of improper execution,[1] undue influence by the proponents in procuring the will, and lack of testamentary capacity. The contest was subsequently transferred to the Circuit Court of Morgan County, where, upon a trial, a jury returned a verdict for the contestants after the court had denied the proponents' motion for a directed verdict. The trial court then denied the proponents' motion for a j.n.o.v. or for a new trial. The issues are *1053 whether the will contest was properly transferred from the probate to the circuit court; whether the trial court properly instructed the jury on the elements of the proof required in a contest alleging undue influence; and whether the contestants presented sufficient evidence to withstand the proponents' motions for a directed verdict and for a j.n.o.v.
The facts of this dispute are as follows:
Charley Bolan died on October 8, 1990. He was survived by six children: Janie Bryant, Charles Bolan, Melvin Bolan, Bessie Walker, Betty Brown, and John Bolan. One child, James, had predeceased Charley, leaving a widow and five children. The evidence shows that Charley was elderly, illiterate, and in poor health immediately before his death.
Charley's wife had died in 1984. Thereafter, Janie and Betty entered into an agreement whereby Betty would cook for and take care of Charley in the morning and Janie would perform these duties in the afternoon and evening. Janie was with Charley daily from then on, while the evidence is conflicting as to how often Betty performed her duties.
On September 6, 1990, Charley attempted to execute a will. He dictated the terms of the will to Suprena Moats, the daughter of Melvin Bolan, who in turn copied his instructions onto a piece of paper that was appended to a preprinted will form. In this document, Charley left $1.00 each to John, Bessie, Betty, and each child of his deceased son James; he left the remainder of his estate to Janie, Charles, and Melvin. Suprena Moats testified that Charley told her that he was excluding the former parties because of the way they had treated him during his recent illness.
Subsequently, Janie called a local lawyer to determine whether the will was legally valid. The lawyer replied that the will needed to be notarized to be valid. After receiving the lawyer's opinion, Janie contacted Mr. Jackson, a notary public, and also arranged for witnesses to be present at a reexecution of the document.
On September 9, 1990, Mr. Jackson and three witnesses gathered at Charley's home, along with several members of the family. The three witnesses testified at trial that Mr. Jackson requested that the family members leave the room where Charley would be signing, and that they did. The witnesses further testified that Mr. Jackson read the will aloud to Charley and went over its provisions to make sure that Charley was aware of the dispositions he was making. All three witnesses to the execution of the will testified that they believed Charley was in sound mental condition at the time he signed the will. Betty, however, testified that she did not believe Charley's mental state was sound when he signed the will and that Charley's condition had been deteriorating for several months before he signed it. Another witness at trial also testified that Charley's physical and mental condition had worsened considerably in the months preceding the making of the will.
The proponents first argue that the circuit court never acquired jurisdiction over the proceedings because, they say, the contestants failed to comply with the requirements of § 43-8-198, Ala.Code 1975. That section provides, in pertinent part:
The proponents point out that the motion to transfer was filed on November 29, 1990, which they say was one day after the contest was filed, and they argue that the circuit court therefore failed to acquire jurisdiction over the case. The proponents concede that the document initiating the contest itself bears no filing date; they argue that it was filed on November 28, 1990, because that is the date of the certificate of service contained within the contest document. The proponents rely primarily upon Kaller v. Rigdon, 480 So. 2d 536 (Ala. 1985), as support for their conclusion. Kaller, however, is inapposite to the present situation, except to the extent that it *1054 simply restates the requirements of § 43-8-198.
Although the proponents correctly assert that § 43-8-198 ordinarily must be strictly followed in order to confer jurisdiction on the circuit court, Simpson v. Jones, 460 So. 2d 1282 (Ala.1984), the proponents have failed to show that the contest and the motion for transfer were filed on different days. The probate court's "certificate of transcript" includes the contest document and the motion for transfer together as item number 7 being transmitted to the circuit court. The contest document and the motion for transfer were consecutively paginated by the probate court; the contest document is three pages long and the motion for transfer is one page long. The contest document does not bear a filing date, but the motion is signed by the probate judge as being filed on November 29. From this record, it appears that the probate court treated the two documents as a single four-page filing. This Court will not elevate "form over substance at the expense of justice," Cook v. Cook, 396 So. 2d 1037, 1040 (Ala.1981), by reading the date of the certificate of service on the contest document as the date of filing.
The proponents next contend that the trial court erred in instructing the jury concerning the requirements necessary for a presumption of undue influence to arise. The relevant portion of the trial court's charge, which is patterned on Alabama Pattern Jury Instructions 38.10 and 38.11, is as follows:
The proponents specifically contend that this instruction was incomplete insofar as it omitted reference to the "controlling influence" element allegedly enunciated in Clifton v. Clifton, 529 So. 2d 980 (Ala.1988). The proponents assert that Clifton requires this element to be proven, in addition to the "confidential relationship," "dominance," and "undue activity" elements to establish a presumption of undue influence.
The Clifton court held that to establish a prima facie case of undue influence the contestant must proffer evidence:
529 So. 2d at 983 (emphasis added). In assessing the evidence required for the presumption of undue influence to arise, the Court stated:
Id., at 984 (emphasis in original). This is the passage relied upon by the proponents in their argument.
The "controlling influence" language is normally reiterative of the "dominance" element, as in the first quotation from Clifton above. In the second quotation from Clifton, however, it is clear that the Court is utilizing the "controlling influence" language *1056 not in reference to the "dominance" element but to the "undue activity" element; used that way, the term "controlling influence" in the second quotation is descriptive of the "undue activity" element and does not constitute a separate substantive prong of the test. Because the trial judge amply instructed the jury on all three elements necessary to raise a presumption of undue influence, his charge was a correct and sufficient statement of the law and the omission of the specific "controlling influence" language does not constitute reversible error. See Standard Plan, Inc. v. Tucker, 582 So. 2d 1024 (Ala.1991) (reviewing court must examine jury charge as a whole in determining if reversible error exists); Rule 51, Ala.R.Civ.P.
The proponents' final contention is that the evidence was legally insufficient to support the jury verdict on the grounds of undue influence, lack of testamentary capacity, or fraud, and that therefore their motion for a directed verdict or for a j.n.o.v. should have been granted. The trial court denied both of those motions.
In assessing whether the trial court should have granted a directed verdict or a j.n.o.v. on the grounds that the evidence was legally insufficient, this Court must determine whether the nonmoving partiesthe contestantspresented substantial evidence to support their claims. Ala. Code 1975, § 12-21-12; Bailey v. Avera, 560 So. 2d 1038 (Ala.1990). Moreover, the evidence must be viewed in the light most favorable to the nonmovant, and all permissible inferences favorable to the nonmovant must be drawn therefrom. Hanners v. Balfour Guthrie, Inc., 564 So. 2d 412 (Ala. 1990). It is with this standard in mind that we turn to an examination of the evidence.
To raise a presumption of undue influence in a will contest and thus shift the burden of proof to the proponent, the contestant must prove dominance in a confidential relationship and undue activity in the execution of the will by or for a favored beneficiary. Wilson v. Payton, 251 Ala. 411, 37 So. 2d 499 (1948); Hyde v. Norris, 250 Ala. 518, 35 So. 2d 181 (1948). Our cases sometimes restate this burden to require evidence
Parker v. Marshall, 549 So. 2d 463, 465 (Ala.1989); Clifton v. Clifton, supra, 529 So. 2d at 983.
Initially, there can be no doubt that a confidential relationship existed between Janie and Charley. Janie was with Charley daily following the death of Charley's wife in 1984; she came to his house, cooked for him, and attended to his affairs. Janie's name was listed on a joint checking account along with Charley's; no other child's name was on the account.
The proponents argue that even if a confidential relationship existed between Janie and Charley, there is no evidence that Janie is a "favored beneficiary" in the legal sense of that term. The term "favored beneficiary" was defined in Cook v. Morton, 241 Ala. 188, 192, 1 So. 2d 890, 892 (1941):
The proponents assert that the favoritism Charley showed toward Janie was not unnatural at all, but was entirely normal in light of the closeness of their relationship and all that Janie had done for Charley. There was evidence that Betty and Charley were both strong-willed people and simply did not get along, notwithstanding Betty's good intentions in trying to persuade Charley to take medicine, see a doctor, and so forth. There was also substantial testimony, however, that the contestants enjoyed a good relationship with Charley up until the *1057 very end of his life. In light of this testimony, and because whether a beneficiary is "favored" depends the particular facts of the case, Cook v. Morton, supra, the trial court did not err in submitting to the jury the question of whether Janie was a "favored beneficiary" under the controlling Cook definition.
The proponents also argue that the contestants presented no evidence that Janie was dominant and controlling in the confidential relationship. The law requires that a party, to be considered dominant in the confidential relationship, must exercise controlling influence over the testator's purposes. Smith v. Smith, 384 So. 2d 1069 (Ala.1980). Here, there was testimony concerning Charley's strong will. However, it is also clear that Janie was with Charley on a daily basis and was largely responsible for all his basic needs. Also, Betty Brown testified that Janie had told Charley that she (Betty) had attempted to drug him; Betty asserts that this and other similar statements served to alienate Charley from everyone except Janie. This testimony, coupled with the clear opportunity for Janie to exercise dominance over Charley, was sufficient to present a jury question as to whether Janie was dominant and controlling in her relationship with Charley.
Last, the proponents argue that the contestants submitted no substantial evidence that Janie engaged in undue activity in procuring the execution of the will. The contestants offered evidence that Janie effectively dictated the terms of the September 6 will; that she tricked Pollie McCary, a witness to the will, into signing as a witness by informing Pollie that the document merely appointed Melvin as administrator of the estate; and that she attempted to coerce Pollie into giving false testimony with respect to the September 6 will.
This testimony, however, does not directly establish undue activity on Janie's part, because the September 6 will is not the will in question; the September 9 will is the relevant will. The contestants connect Janie's procurement of the first will with the execution of the second will by asserting that after the September 6 will was signed Janie, of her own accord, sought legal advice concerning the validity of the will, and, upon learning that she needed witnesses and a notary in order to assure the legality of the will, proceeded to gather these parties together for the September 9 reexecution. Janie testified that she consulted the lawyer only at Charley's direction, and the law does provide that acting at the untrammelled direction of the testator in procuring the execution of a will does not constitute undue activity on the part of a beneficiary. Clifton, supra, at 984. We hold, however, that the evidence of Janie's actions, taken altogether, constituted sufficient evidence of undue activity in procuring the will to support submission of the question to the jury. Accordingly, we conclude that the contestants presented substantial evidence of undue influence and that the trial court did not err in denying the directed verdict and j.n.o.v. motions directed toward this contest ground.
The proponents next argue that the contestants failed to present sufficient evidence of Charley's lack of testamentary capacity.
In order to execute a valid will, one must possess
Knox v. Knox, 95 Ala. 495, 503, 11 So. 125, 128 (1892); Fletcher v. DeLoach, 360 So. 2d 316, 318 (Ala.1978). Every testator is presumed to have the capacity to make a will, however, and the burden is on the contestant to prove the lack of testamentary capacity. Johnston v. Johnston, 174 Ala. 220, 57 So. 450 (1912); Fletcher, supra. The contestant need not show that the testator suffered from permanent insanity; the contestant's burden may be carried by demonstrating that the testator lacked testamentary *1058 capacity at the time the will was executed. King v. Aird, 251 Ala. 613, 617, 38 So. 2d 883, 887 (1949); Tucker v. Tucker, 248 Ala. 602, 611, 28 So. 2d 637, 645 (1946).
When testamentary capacity is at issue, this Court has held that a very broad factual inquiry is desirable, so that evidence of the mental and physical condition of the testator, either before or immediately after the execution of the will, is admissible, since it tends to shed light upon the testator's condition at the time the will is executed. Burke v. Thomas, 282 Ala. 412, 417, 211 So. 2d 903, 908 (1968); Craig v. Perry, 565 So. 2d 171 (Ala.1990); Fletcher, supra.
Here, the witnesses to the September 9 will all testified that Charley was in sound mental condition on the date of the execution. There was testimony to the same effect from other family members. However, there was also testimony from Betty that Charley was in poor health before the date of execution; that he repeatedly held conversations with his dead wife; that he refused to bathe, change his clothes, or otherwise take care of himself; and that he had rigged up a dangerous spring-gun to protect himself from intruders when no real threat existed. Evidence of this type was determined to be admissible to show the testator's mental condition in Howard v. Crowder, 496 So. 2d 31 (Ala. 1986).
Although the evidence was conflicting, the contestants presented sufficient evidence of a lack of testamentary capacity to support the submission of the contest to the jury on this ground.
The proponents' final contention is that the contestants failed to produce substantial evidence on the fraud claim to submit that claim to the jury.
Fraud in the procurement of a will is generally considered a species of undue influence. Cook v. Cook, 396 So. 2d 1037, 1041 (Ala.1981). Because we have concluded that the contestants presented substantial evidence to support their undue influence claim, and because the proponents have not argued any independent basis for holding that it was error to deny a directed verdict on the fraud ground, we also conclude that no error is presented on this ground.
Because the contestants produced sufficient evidence to present a jury question on the stated grounds, the judgment entered on the verdict is hereby affirmed.
AFFIRMED.
HORNSBY, C.J., and ADAMS, STEAGALL and INGRAM, JJ., concur.
[1] This ground was abandoned by the contestants at trial and thus is not an issue on review. The contestants also amended their contest before the trial to state a fraud ground. | January 8, 1993 |
13c066c4-5ba8-4a4d-ae87-6e28eea1ce8f | Lollar v. Tankersley | 613 So. 2d 1249 | 1910738 | Alabama | Alabama Supreme Court | 613 So. 2d 1249 (1993)
James LOLLAR and Brenda G. Lollar
v.
Dr. Felix M. TANKERSLEY.
1910738.
Supreme Court of Alabama.
January 29, 1993.
Rehearing Denied March 5, 1993.
*1250 Stephen M. Langham, Prattville, for appellants.
Charles A. Stakely of Rushton, Stakely, Johnston & Garrett, Montgomery, and T.O. McDowell, Prattville, for appellee.
PER CURIAM.
James and Brenda Lollar appeal from a summary judgment in favor of Dr. Felix Tankersley on their claims alleging medical malpractice. We affirm.
On September 15, 1989, Brenda Lollar was examined by Dr. Tankersley, a licensed, board-certified obstetrician, who concluded that she was approximately three months pregnant. On September 27, Mrs. Lollar began to hemorrhage; she telephoned Dr. Tankersley. On his advice, she reported to the emergency room at Autauga Medical Center in Prattville. There, Dr. Tankersley advised her that she "was experiencing an inevitable, first-trimester, spontaneous abortion (miscarriage)." On the basis of this diagnosis, he performed a "dilatation and curettage" ("D and C") in order to remove the remaining placenta and fetal tissue from the uterus. She was released from Autauga Medical Center the same day.
On October 9, 1989, Mrs. Lollar began to hemorrhage again; she immediately returned to Dr. Tankersley for another examination. Following this examination, Dr. Tankersley referred her to Dr. Donna Gelder at the Obstetrics-Gynecology Center of the University of Alabama at Birmingham ("UAB").
On October 10, ultrasound tests performed at UAB revealed that Mrs. Lollar was still carrying a "well developed" fetus with a "viable heartbeat." Tests further revealed, however, a deficiency in the level of amniotic fluid in the uterus; this deficiency made a successful pregnancy unlikely. For this reason, another D and C was recommended. Mrs. Lollar refused the recommendation at that time because, she contends, she wanted to continue her pregnancy, if possible. The amount of amniotic fluid, which was monitored on a daily basis following the initial visit to UAB, did not increase, and, on October 13, following the onset of severe pain, she entered UAB, where the uterus was successfully evacuated.
On May 25, 1990, James and Brenda Lollar sued Dr. Tankersley in a complaint containing two counts. In the first count, James Lollar alleged that the defendant had wrongfully caused the death of his unborn child by failing to "conduct the proper diagnostic procedures and tests to determine the viability of [the] unborn child," and by performing an unnecessary D and C, which, he alleged, resulted in perforation of the amniotic sac with a consequent loss of amniotic fluid. In the second count, Brenda Lollar alleged, inter alia, that the defendant had "negligently or wantonly performed" a D and C and that his doing so had resulted in additional medical expenses and mental suffering.
Dr. Tankersley moved for a summary judgment, supporting his motion with two of his own affidavits. In opposition to the defendant's motion, the Lollars filed the affidavit and deposition of Dr. William Daniel, a licensed, board-certified obstetrician-gynecologist. The trial judge granted the defendant's motion for summary judgment.
On appeal from the summary judgment, the plaintiffs contend that the affidavits and deposition filed with the court raised genuine issues of material fact and thus rendered a summary judgment inappropriate. The defendant argues that the qualifications of Dr. Daniel, the plaintiffs' proffered expert witness, do not conform to Ala.Code 1975, § 6-5-548. For this reason, the defendant contends that the affidavit and deposition submitted by the plaintiffs were inadmissible, and that the plaintiffs, therefore, offered no evidence in opposition to the motion for a summary judgment.
This case presents an issue of first impression in this Court: Whether the Alabama *1251 Wrongful Death Act, Ala.Code 1975, § 6-5-391, permits an action based on the performance of a dilatation and curettage procedure that results in the death of a nonviable fetus. Because two other cases on this Court's docket, Gentry v. Gilmore, (1910254), and Alley v. Service America Corporation, (1910447), presented similar issues, we consolidated the three cases for oral argument. Subsequently, Service America Corporation filed for bankruptcy protection and this Court has stayed all proceedings in that appeal; the parties to the Service America case appeared as amici curiae in this case, favoring the Court with oral arguments and briefs. See Gentry v. Gilmore, 613 So. 2d 1241 (Ala.1993).
Section 6-5-391 provides: "When the death of a minor child is caused by the wrongful act, omission or negligence of any person ..., the father, or the mother..., or ... the personal representative of such minor may commence an action, and in any case shall recover such damages as the jury may assess...." It is undisputed that the disposition of this issue is controlled by the construction placed upon § 6-5-391 in Eich v. Town of Gulf Shores, 293 Ala. 95, 300 So. 2d 354 (1974); Wolfe v. Isbell, 291 Ala. 327, 280 So. 2d 758 (1973); and Huskey v. Smith, 289 Ala. 52, 265 So. 2d 596 (1972). The parties disagree fundamentally, however, over the nature of the principle derived from this construction. Dr. Tankersley and Service America contend that the Eich-Wolfe-Huskey trilogy recognizes a cause of action for the death of a fetus that attains viability, that is, a state of "such form and development of organs as to be normally capable of living outside the uterus," Wolfe, 291 Ala. at 329, 280 So. 2d 758, either before the injury or before death results from the injury. The Lollars and the Alleys (the plaintiffs in the Service America case), however, contend that under these cases, viability is simply irrelevant.
In Huskey, this Court recognized a cause of action for the death of a child due to injuries suffered in an automobile accident during the eighth month of his mother's pregnancy where the child was born alive but died five days thereafter. In doing so, the Court overruled Stanford v. St. Louis-San Francisco Ry., 214 Ala. 611, 108 So. 566 (1926), which had "held that a prenatal injury afforded no basis for an action in damages, in favor of the child or its personal representative." 289 Ala. at 54, 265 So. 2d at 596. The Court noted in Huskey that it was, at the time that case arose, the only jurisdiction in the United States "denying to a parent or legal representative the right to proceed in a wrongful death action where (a) the fetal child was viable at the time of the injury and (b) the child [was] born alive." Id. (emphasis in original).
One year later, this Court recognized a cause of action for the death of a child due to injuries it suffered in an automobile accident occurring prior to viability, where the fetus subsequently attained viability and was born alive but died within an hour of birth. Wolfe v. Isbell, 291 Ala. 327, 280 So. 2d 758 (1973). In rejecting the contention that a post-natal child's right to maintain a cause of action turned on whether the injury was sustained in a pre-viable or post-viable state of fetal development, the Court cited a plethora of authority recognizing the rights of children to sue for prenatal injuries, Hornbuckle v. Plantation Pipe Line Co., 212 Ga. 504, 93 S.E.2d 727 (1956); Bennett v. Hymers, 101 N.H. 483, 147 A.2d 108 (1958); Smith v. Brennan, 31 N.J. 353, 157 A.2d 497 (1960); Kelly v. Gregory, 282 App.Div. 542, 125 N.Y.S.2d 696 (1953); Sinkler v. Kneale, 401 Pa. 267, 164 A.2d 93 (1960); Sylvia v. Gobeille, 101 R.I. 76, 220 A.2d 222 (1966); Puhl v. Milwaukee Auto Ins. Co., 8 Wis.2d 343, 99 N.W.2d 163 (1959); and for wrongful death of a parent, LaBlue v. Specker, 358 Mich. 558, 100 N.W.2d 445 (1960); and recognizing the inheritance rights of posthumous children. Barnett v. Pinkston, 238 Ala. 327, 191 So. 371 (1939). From the authorities cited, it is apparent that the Court's attention was directed to instances in which the fetus had attained viability.[1]
*1252 Eich v. Town of Gulf Shores, 293 Ala. 95, 300 So. 2d 354 (1974), like Huskey, involved a fatal post-viability injury. In Eich, the injury occurred during the ninth month of fetal development and resulted in the stillbirth of the child. The Court rejected the contention that live birth constituted an element of a cause of action. That the Court ascribed greater relevance to the element of viability, however, is apparent from the following hypothetical example in which viability was the common factor:
293 Ala. at 99, 300 So. 2d at 357 (citations omitted.)
Contrary to the contention that the Eich-Wolfe-Huskey trilogy abrogated the viability requirement, a close reading of these cases reveals that viability was the commonindeed, the decisiveconsideration, in each case. Huskey and Eich allowed recovery because the fetus was viable at the time of the injury, and Wolfe allowed recovery because the fetus survived the injury long enough to attain viability. The rule proceeding from these cases, therefore, essentially comports with the analysis of Dr. Tankersley and Service America, that is, that a cause of action for death resulting from a pre-natal injury requires that the fetus attain viability either before the injury or before death results from the injury. To eliminate this requirement, as the Lollars and the Alleys propose, would require a substantial expansion of the principle emanating from these cases.
At the present time, it appears that no court in the United States has, without a clear legislative directive, recognized a cause of action for the wrongful death of a fetus that has never attained a state of development exceeding that attained in this case. In this connection, the Illinois legislature, in apparent response to the Illinois Supreme Court's reluctance to dispense with the viability requirement by statutory construction, amended its Wrongful Death Act to create a cause of action based on facts such as those presented here. See Smith v. Mercy Hosp. & Medical Ctr., 203 Ill.App.3d 465, 148 Ill.Dec. 567, 560 N.E.2d 1164 (1990) (discussing Ill.Rev.Stat.1989, ch. 70, par. 2.2 as amended in 1980). Courts in the remaining jurisdictions condition recovery on viability, "quickening,"[2] or live birth. See Comment Recovery for the Wrongful Death of a Fetus, 25 U.Rich. Law Rev. 391, 394-95 nn. 43-49 (1991).
The constructions placed by the courts in our sister states upon wrongful death legislation in their respective jurisdictions counsel caution in our consideration of the question whether a fetus that has never attained viability is a "minor child" within the contemplation of § 6-5-391. The peculiarity in the character of damages recoverable under § 6-5-391 does not dictate that the section be held to create a cause of action that virtually would be unique to the wrongful death legislation in this country. Without a clearer expression of legislative intent, we are reluctant to hold that § 6-5-391 creates a cause of action for the wrongful death of a fetus that has never *1253 attained viability. The summary judgment in favor of Dr. Tankersley was, therefore, appropriate as to the wrongful death claim.
A physician's negligence can be established only through the production of (1) "expert medical testimony as to the proper practice, treatment, or procedure," Dobbs v. Smith, 514 So. 2d 871, 872 (Ala.1987), or (2) facts rendering the "lack of skill or care... so apparent as to be within the comprehension of the average layman. Rosemont, Inc. v. Marshall, 481 So. 2d 1126 (Ala.1986)." Dobbs, 514 So. 2d at 872.
In an effort to avail herself of the first method of proof, Brenda Lollar offered the expert testimony of Dr. William Daniel, who gave the opinion that Dr. Tankersley had breached the applicable standard of care in performing the D and C. In his order granting the motion for a summary judgment, however, the trial judge pointed out numerous reasons for concluding that Dr. Daniel's credentials and experience failed to qualify him as a "similarly situated healthcare provider" as contemplated by § 6-5-548. Therefore, he rejected the proffered testimony.
It is well settled that the trial court has considerable discretion in admitting or rejecting expert testimony. Hagler v. Gilliland, 292 Ala. 262, 292 So. 2d 647 (1974); Baggett v. Allen, 273 Ala. 164, 137 So. 2d 37 (1962). Under the facts of this case, we cannot say that the trial judge abused his discretion in rejecting the proffered testimony.
Mrs. Lollar therefore did not present competent expert testimony to satisfy the criterion of the first method, and she has not argued for the application of the second method. Neither has she proposed that Dr. Tankersley's own affidavit presented substantial evidence of a breach of due care. Consequently, the summary judgment in favor of Dr. Tankersley is affirmed.
AFFIRMED.
HORNSBY, C.J., and ALMON, SHORES, ADAMS, STEAGALL and INGRAM, JJ., concur.
MADDOX, J., concurs specially.
HOUSTON, J., concurs in the result.
MADDOX, Justice (concurring specially).
I concur with the majority in this case, because the record shows, as a matter of law, that the plaintiffs here did not timely present substantial evidence to support the allegations made in the complaint; therefore, I agree that the trial court properly entered the summary judgment for the defendant.
On the question of the right to maintain a wrongful death action for the death of a nonviable fetus, see my dissenting opinion in Gentry v. Gilmore, 613 So. 2d 1241 (Ala. 1993).
HOUSTON, Justice (concurring in the result).
I concur with Justice Merrill's dissent (concurred in by Justices Coleman, Harwood, and McCall) in Eich v. Town of Gulf Shores, 293 Ala. 95, 100-01, 300 So. 2d 354, 358-59 (1974). Therefore, I would vote to overrule Eich v. Town of Gulf Shores and would hold that if the child is not born alive then there is no liability for causing the wrongful death of that child. This is consistent with the criminal law. To convict a person of homicide, the victim must be "a human being who had been born alive at the time of the homicidal act." Ala.Code 1975, § 13A-6-1(2). This, I believe, is consistent with the common law. See § 13A-6-1 commentary. There should not be different standards in wrongful death and homicide statutes, given that the avowed public purpose of the wrongful death statute is to prevent homicide and to punish the culpable party and not to compensate for the loss. This does not mean that the mother could not be compensated for the injury she receives.
[1] One case cited by Wolfe that did address and uphold a cause of action for wrongful death was Torigian v. Watertown News Co., 352 Mass. 446, 225 N.E.2d 926 (1967). In that case, a pre-viable fetus was injured in an automobile accident. More than two months later, the child was born alive but died within three hours of birth. Id., 352 Mass. at 446, 225 N.E.2d at 926. At the time of death, however, the fetus, at approximately 24 weeks of development, had attained the threshold of viability. See Roe v. Wade, 410 U.S. 113, 160, 93 S. Ct. 705, 730, 35 L. Ed. 2d 147 (1973) (viability may occur as early as 24 weeks); cf. Webster v. Reproductive Health Services, 492 U.S. 490, 515, 109 S. Ct. 3040, 3055, 106 L. Ed. 2d 410 (1989) (construing Mo.Rev.Stat. § 188.029 (1986) as creating "what is essentially a presumption of viability at 20 weeks" of gestation).
[2] See Porter v. Lassiter, 91 Ga.App. 712, 87 S.E.2d 100 (1955) (recognizing a cause of action where the fetus had quickened). | January 29, 1993 |
02efb7a0-f3e7-42cb-837f-4c82da7e28de | Alfa Mut. Ins. Co., Inc. v. Morrison | 613 So. 2d 381 | 1911651 | Alabama | Alabama Supreme Court | 613 So. 2d 381 (1993)
ALFA MUTUAL INSURANCE COMPANY, INC.
v.
R.O. "Jack" MORRISON, et al.
1911651.
Supreme Court of Alabama.
February 5, 1993.
Wilbor J. Hust, Jr. of Zeanah, Hust, Summerford & Davis, Tuscaloosa, for appellant.
William J. Donald III of Donald, Randall, Donald, Tipton & Donaldson, Tuscaloosa, for appellees.
SHORES, Justice.
The plaintiff, Alfa Mutual Insurance Company, Inc., appeals from a judgment declaring that Alfa owes the defendant, R.O. "Jack" Morrison, a duty to defend and/or indemnify him under a homeowner's liability policy in regard to a pending libel action against him (Case No. CV-91-56, Hale Circuit Court). We affirm.
The action underlying this present action was filed by E. Price Howell, Jr., against Morrison and Eugene Wright; it alleged libel or defamation in connection with the publication of statements contained in a letter dated May 28, 1990.[1] Howell's complaint alleged that, at the time they published the statements, Morrison and Wright "knew said statements were false" or "published said statements with reckless and gross disregard as to whether said statements were true or false." Howell *382 claimed damages for extreme mental anguish and emotional distress. Alfa initiated this declaratory judgment action to determine whether it owed Morrison a duty to defend and/or indemnify him under his homeowner's liability policy.
We affirm and adopt the well-reasoned order of Judge Jack W. Meigs as the opinion of this Court:
"The definition of `bodily injury' contained in the subject policy is similar to the language of the policy in the case American States Ins. Co. v. Cooper, 518 So. 2d 708 (Ala.1987). The Supreme Court, in that case, held that mental anguish is covered under that definition. [Thus, the first] issue to be determined by this Court [is] whether or not Alfa is obligated to defend under the policy for an allegation of libel.
"Alfa contends, and it is undisputed, that Howell was a public official. Under the longstanding principles and decisions regarding libel, a public official can [recover for defamation only by] showing that false statements were published by the defendant either with knowledge of their falsity or [with] reckless disregard of whether they were false or not. Alfa further contends that libel is an intentional tort and therefore not covered by insurance under the Supreme Court's decision in Tapscott v. Allstate Insurance Company, 526 So. 2d 570 (Ala.1988). Morrison, on the other hand, [says] that the allegations of the plaintiff in the underlying suit do not allege strictly an intentional tort, but knowing libel. While the tort of libel does require an intentional act (an intentional communication or publication), there are portions of the tort which may be done unintentionally. Of course, in the underlying case, for the plaintiff to recover, he must prove that Morrison ... acted intentionally or knowingly or with a reckless disregard. Anything less than that would bar the plaintiff's recovery. Since the complaint alleges reckless disregard, the Court finds that this allegation is sufficient to take this out of a strictly intentional tort.
"The other issue ... is whether the language of the policy, which states that the coverage does not apply to bodily injury which is expected or intended by *383 an insured, relieves Alfa from defending and indemnifying Morrison for the intentional portion of the claim. The Court must apply a subjective standard to determine whether Morrison expected or intended to inflict the damage claimed by the plaintiff in the underlying case. The uncontroverted evidence is that he did not.
We find substantial evidence in the record to sustain the judgment entered by the trial court. Considering all of the evidence, we cannot conclude that that judgment is plainly and palpably wrong. Therefore, it is due to be affirmed.
AFFIRMED.
HORNSBY, C.J., and ALMON, HOUSTON and INGRAM, JJ., concur.
STEAGALL, J., dissents.
[1] In the spring of 1990, Howell was a candidate for election to a seat on the Hale County Commission. He was then also a member of the Moundville City Council. Before the election, Howell published a political announcement in the local newspaper. In response, Morrison and Wright decided to co-author and publish the letter that is at the center of this dispute. | February 5, 1993 |
d9407e91-ae32-4479-aa7b-4fd04942fd2c | Vines v. McKenzie Methane Corp. | 619 So. 2d 1305 | 1911093, 1911488 | Alabama | Alabama Supreme Court | 619 So. 2d 1305 (1993)
James Harold VINES
v.
McKENZIE METHANE CORPORATION, et al.
J. Morris TRAYWICK and Ruth Traywick
v.
McKENZIE METHANE CORPORATION.
1911093, 1911488.
Supreme Court of Alabama.
February 19, 1993.
Rehearing Denied April 9, 1993.
*1306 William J. McDaniel and Edward E. Angwin of McDaniel, Hall, Conerly & Lusk, P.C. and Mac Parsons, Birmingham, for appellant James Harold Vines.
Alton B. Parker, Jr. and Pamela F. Colbert of Spain, Gillon, Grooms, Blan & Nettles, Birmingham, for appellants J. Morris Traywick and Ruth Traywick.
Isaac P. Espy of Espy, Nettles and Scogin, P.C., Tuscaloosa, for appellee McKenzie Methane Corp.
Conrad P. Armbrecht, Edward A. Dean and Duane A. Graham of Armbrecht, Jackson, DeMouy, Crowe, Holmes & Reeves, Mobile, for amicus curiae Jim Walter Resources, Inc.
Victor T. Hudson and William W. Watts III of Reams, Philips, Brooks, Schell, Gaston & Hudson, P.C., Mobile, for amicus curiae NCNB Tex. Nat. Bank.
PER CURIAM.
This opinion addresses two appeals, which present the same issue of first impression.
James Harold Vines sued McKenzie Methane Corporation ("McKenzie Methane") and Daniel Clark, land manager for McKenzie Methane, alleging that the company had wrongfully extracted coalbed methane gas from beneath land that he owned in Shelby County. McKenzie Methane counterclaimed, arguing that it holds a leasehold interest for the coalbed methane gas via a lease executed in 1902 between the landowners and the previous mineral owner, USX Corporation. Through subsequent assignments, McKenzie now has this leasehold interest in "all of the coal, iron ore, and other minerals, in, under, and upon" Vines's property. The trial court held that McKenzie Methane's estate in coal included the right to drill for coalbed methane, and it entered a summary judgment for the company. Vines appeals.
While Vines's suit was pending, McKenzie Methane brought a declaratory judgment action against J. Morris Traywick and Ruth Traywick, asking the court to declare that the company was entitled to extract coalbed methane gas from a parcel of land owned by the Traywicks. The land is subject to an 1898 mineral lease held by Southern Electric Company, which grants a leasehold interest in "all the coal and other minerals, in, under, or upon" the land and also grants an easement for the "conveying and transporting to and from any of said lands all material or implements that may be of use in the mining and removal of said coal and other minerals, or in the preparation for market." In 1989, Southern Electric leased its mineral rights to McKenzie Methane "for the purposes of investigating, exploring and prospecting for coalbed methane gas." The court entered a summary judgment for McKenzie Methane, holding that the 1898 lease of "coal and other minerals" entitled McKenzie Methane to drill for coalbed methane gas as the assignee of this lease. The Traywicks appeal.
We begin by noting the evidence in the record concerning the nature of coalbed methane gas. Coalbed methane gas is produced from coal seams, formed during and as a by-product of the coalification process. Murray, "Coalbed Methane: A Significant New Source of Clean Energy for the 21st Century," IV Interstate Oil & Gas Compact Comm. Bull., 67 (1990). Coal is a reservoir for the gas, like any other stratum containing natural gas reserves. While some of the gas generated during the coal-forming process migrates out of the coal, a large amount is retained within the coal itself; that is, the gas is physically *1307 bound to and absorbed into the coal. Murray. As the coal is mined, the draining of water out of the cracks of the coal and the stresses placed on the coal cause increasing quantities of the methane to become free from the coal and to accumulate in the mining area. Murray. Because the gas is toxic and highly explosive, its release from the coal causes a significant hazard to the miners, as well as to the mining machinery and the mining process itself. Olsen, "Coalbed Methane: Legal Considerations Affecting Its Development as an Energy Resource," 13 Tulsa L.J. 377 (1978). Because of this hazard, the mine operator is required by federal and state law to monitor and control the rate of methane seepage from the coal during the mining process. 30 U.S.C. § 863; § 25-9-82(b), Ala. Code 1975. While mining operators use ventilation fans to remove most of the methane from the coal, they also drill "vertical" and "horizontal" wells to remove the methane gas that is released prior to the intensive mining procedures and drill "gob" wells to remove the gas that is released immediately after active mining. Bowles, "Coalbed gas: Present Status of Ownership Issue and Other Legal Considerations," 1 Eastern Mineral Law Institute, 7-1 (1980). The existence of coalbed methane in commercial quantities was recognized in Alabama as early as the 1920's; however, coalbed methane did not support a significant industry until the 1980's, when technological developments and changes in federal law made the gas a commercially viable alternative energy source.
The dispositive issue in these appeals is whether the mineral leases in question conveying interests in coal also gave McKenzie Methane the right to drill for coalbed methane gas. The meaning of the term "minerals" as that word is used in any particular grant or reservation is not to be determined by rigid and arbitrary definitions, but from the language of the grant or reservation, the surrounding circumstances, and the intention of the grantor, if it can be ascertained. Exxon Corp. v. Waite, 564 So. 2d 941 (Ala.1990). When the leases in question in these appeals were drafted, coalbed methane gas had little or no commercial value and was not removed from the earth for the sake of its own value. Vines and the Traywicks thus conclude that the lessors of interests in the coal and other minerals could not have intended to give the lessees the right to drill for coalbed methane.
Because drilling coalbed methane gas has only recently become a profitable business, there are few cases addressing the issue of whether that gas is necessarily included within the lease of an interest in coal. The first case to address the issue was United States Steel Corp. v. Hoge, 503 Pa. 140, 468 A.2d 1380 (1983). United States Steel Corporation owned "all of the coal" contained in certain tracts of land owned by the individual defendant, Hoge, as well as "all the rights and privileges necessary and useful in the mining and removing of said coal, including ... the right of ventilation." 503 Pa. at 144, 468 A.2d at 1382. Hoge retained the "right to drill and operate through said coal for oil and gas without being held liable for any damages." Id. After considering the nature of methane gas, the Pennsylvania Supreme Court held that the gas as it is present in coal intrinsically belongs to the owner of the coalbed, so long as it remains part of the coalbed, and that ownership would be lost only upon a grant of rights or when the gas left the coalbed through the process of migration. In determining that coalbed methane gas was included in the grant of rights contained in the 1920 deed, the court ascertained the intent of the parties according to the following rationale:
By this rationale, the court determined that "subterranean gas is owned by whoever has title to the property in which the gas is resting" and that the title holder "may mine his coal, extract the gas from it, or both." Hoge, 503 Pa. at 147, 468 A.2d at 1384.
In Rayburn v. USX Corp., No. 85-G-2261-W, July 28, 1987, (N.D.Ala.), affirmed, 844 F.2d 796 (11th Cir.1988), the district court for the Northern District of Alabama held that a 1960 deed conveying "minerals and mining rights," but reserving oil and gas rights, did not reserve the right to coalbed methane. The court noted that, at the time of the conveyance, there was no record of extracting coalbed methane gas for commercial profit and no indication that such an industry would arise. The court concluded that the parties could not have considered the coalbed methane to be a gas that was severable from the coal and, thus, a part of the reserved oil and gas estate.
In Carbon County v. Baird, (Ms. No. DV-90-120, Dec. 14, 1992, Thirteenth Judicial District Court, Carbon County, Montana), Carbon County in 1974 had conveyed to Red-Lodge Bear-Creek Partners "all coal and coal rights [in a certain parcel of land] with the right of ingress and egress to mine and remove the same." Those rights were later transferred to Union Reserve Coal Company. Then, in 1991, Carbon County gave Florentine Exploration and Production Company an oil and gas lease purporting to grant "the exclusive right for purpose of mining, exploring by geophysical or other methods, and operating for and producing therefrom oil and all gas, including coal seam methane of whatsoever nature or kind." In determining that the conveyance of coalbed methane to Florentine was invalid, the court recognized that coal seam methane is part of the coal itself and that it is required by law to be drained from the coalbed. Because the commercial drilling for the gas required Florentine to invade the coal itself, the court held that it interfered with Union Reserve's coal mining operation:
The court concluded that a grantor could not sever the right to drill methane gas from the right to mine for coal.
The evidence in the two cases now before us confirms that the processes of drilling for coalbed methane gas and mining for coal are inextricably intertwined. Although the methods of drilling commercially for coalbed methane are somewhat different from those methods used to merely drain the gas and counteract its danger, the process of drilling for the substancefor whatever reasonintrudes upon the process of mining for coal. As early as 1888, this Court held that one who is granted the exclusive right to mine coal upon a tract of land has the right of possession so far as is reasonably necessary to carry on his mining operations. Williams v. Gibson, 84 Ala. 228, 4 So. 350 (1888). "To construe away this right would be to construe away the grant itself, which cannot be enjoyed without it." Williams, *1309 84 Ala. at 232, 4 So. at 353. In recognizing this, however, we are not inclined to hold that a grantor may never grant separate estates in coal and coalbed methane gas. Rather, in keeping with earlier Alabama law construing mineral leases, we hold that an express grant of "all coal" necessarily implies the grant of coalbed methane gas, unless the language of the grant itself prevents this construction. See generally Carter Oil Co. v. Blair, 256 Ala. 650, 57 So. 2d 64 (1952).
The severance deeds before us in these two appeals grant expansive rights to "all coal" and "minerals" contained within the respective lands. Neither instrument bears any limiting language that would indicate that the grantor intended to retain any portion of any substance that could be characterized as a part of the coal or intended to grant anything less than total control over such a substance. On the contrary, both deeds clearly reserve for the owners of the land only surface rights. When the intentions of the grantor can be ascertained from the face of the instrument, rules of construction need not be applied; the law must assume that the parties intended what is plainly and clearly set out. Camp v. Milan, 291 Ala. 12, 277 So. 2d 95 (1973). We therefore hold that the ownership of methane gas, with the accompanying rights to drill for this substance, was necessarily included in the mineral estates granted in the instruments. The summary judgment entered for McKenzie Methane in each case is hereby affirmed.
1911093 AFFIRMED.
1911488 AFFIRMED.
HORNSBY, C.J., and MADDOX, ADAMS, HOUSTON and INGRAM, JJ., concur.
ALMON, J., concurs in the result.
SHORES and STEAGALL, JJ., dissent.
SHORES, Justice (dissenting).
I respectfully dissent, because I believe that the deeds in these cases are ambiguous, and that the ambiguity presents a genuine issue of material fact involving the intention of the parties, thus precluding summary judgment.
I believe the trial courts in these two cases erred in holding, as a matter of law, that the parties to the deeds could have contemplated the conveyance of coalbed methane gas, which was of no commercial value when the leases were made. As to the interpretation of when mineral rights are conveyed, the United States Court of Appeals for the former Fifth Circuit (interpreting Alabama law) has stated:
United States v. Harris, 115 F.2d 343, 344 (5th Cir.1940). The intent of the parties to a deed of mineral rights as to what property is conveyed may be ascertained by reference to facts existing when the instrument was made and as to which the parties may be presumed to have had reference. Exxon Corp. v. Waite, 564 So. 2d 941 (Ala. 1990).
The intent of the parties to a conveyance of mineral interests has been defined as being "consistent with and limited to those minerals commonly known and recognized by legal or commercial usage in the area where the instrument was executed." Western Coal & Mining Co. v. Middleton, 362 F.2d 48 (8th Cir.1966), quoting Ahne v. Reinhart & Donovan Co., 240 Ark 691, 401 S.W.2d 565 (1966). This Court has said:
W.S. Newell, Inc. v. Randall, 373 So. 2d 1068, 1069 (Ala.1979). "Although there is no precise definition of the term `mineral,' it necessarily implies a substance rare and exceptional in character possessing special value...." Id. at 1070.
There is no dispute that there was no commercial value to coalbed methane gas when the conveyances in these cases were made. McKenzie Methane's land manager, Mr. Clark, testified by deposition in the Traywick case that it was not until the 1970's that the technology made it commercially feasible to extract coalbed methane gas. In fact, until that time, the presence of the gas presented a serious hazard in coal mines. Therefore, I do not believe the parties to the conveyances could have contemplated, or intended to convey, the right to drill for methane gas. Certainly, the question of their intent creates a genuine issue of material fact, precluding summary judgment. See Rule 56(c), A.R.Civ.P.
STEAGALL, J., concurs. | February 19, 1993 |
98605283-c3d9-46ca-8937-95d76ecf39ed | Ex Parte Sanders | 612 So. 2d 1199 | 1910899 | Alabama | Alabama Supreme Court | 612 So. 2d 1199 (1993)
Ex parte James Randall SANDERS.
(Re James Randall Sanders v. State).
1910899.
Supreme Court of Alabama.
January 29, 1993.
Stephen R. Glassroth of Kendrick & Glassroth, Montgomery, for petitioner.
James H. Evans, Atty. Gen., and Robin Blevins, Asst. Atty. Gen., for respondent.
Richard S. Jaffe and Stephen Strickland, Birmingham, for amici curiae Nat. Ass'n of Cr. Defense Lawyers, Inc. and the Alabama Cr. Defense Lawyers' Ass'n.
KENNEDY, Justice.
The defendant, James Randall Sanders, was convicted of robbery in the first degree and was sentenced to life in prison without the possibility of parole, pursuant to the Habitual Felony Offender Act. The Court of Criminal Appeals affirmed the conviction, with an unpublished memorandum. 602 So. 2d 1232.
This Court granted certiorari review in order to determine whether an indigent defendant, for whom a third party has retained legal counsel, has a right to funds for expert assistance when the need for that assistance and its relevance to the defense theory is shown; and, if so, whether the defendant showed that need and relevance.
On June 26, 1987, a Coffee County sheriff's deputy responded to a telephone call about an abandoned automobile. The deputy saw a Lincoln Continental parked approximately 50 to 75 feet from the road. The deputy saw no one inside the car or anywhere near it. He checked the license plate on the car with the police computer in order to find the owner; however, the license plate number was "not in the computer's file." The deputy then looked inside the car for identification. He found a *1200 car rental agreement, which stated that J. Randall Anderson had leased the car (as lessee). The deputy then called for a tow truck to move the car. The deputy left the area where the car was located, in order to meet the tow truck driver. The deputy led the tow truck to the location of the car. When the deputy arrived at the scene, he saw the defendant placing a briefcase inside the car. He asked the defendant for identification. The defendant showed the deputy a Florida driver's license with the name J. Randall Sanders on it.
At this time, another deputy arrived on the scene. The second deputy questioned the defendant, and the defendant showed him a florida driver's license with the name David Sanderson. The deputies searched the defendant and the car. The defendant consented to a search of his briefcase, which contained a variety of diamond jewelry the defendant claimed was related to his work. The deputies found a shoulder holster and some .45 caliber ammunition in the trunk. The defendant stated that he did not have a .45 caliber gun. The defendant agreed to go to the sheriff's station with one of the deputies.
On the way to the station, the deputy claimed, the defendant fired a gun from the back seat of the car. He claimed that the defendant told him to get out of the car, and that he did so. The defendant then left in the deputy's car. The car was later found abandoned. On June 27, 1987, an investigator from the sheriff's office removed a bullet from the dashboard of the deputy's car.
According to the defendant, he told the deputy that he would pay him $900 if the deputy would release him. The defendant claims that the deputy said that he would tell the sheriff that the defendant pulled a gun on him and forced him out of the car. The defendant said that he drove the deputy's car a few miles and then abandoned it.
The defendant was indicted by the grand jury on August 26, 1987, for robbery in the first degree, in violation of § 13A-8-41, Ala.Code 1975. The defendant was later charged with kidnapping in the second degree. The State issued arrest warrants for the defendant.
On August 17, 1988, the defendant was arrested in Houston, Texas, by FBI agents for interstate flight to avoid prosecution of charges in Alabama. A .45 caliber gun was found on the defendant. The defendant filed a request for disposition of the detainer lodged against him based on the charges. On January 5, 1990, the defendant was arraigned in Alabama. At the arraignment, he was found to be indigent and the court appointed counsel to represent him. Two weeks later, the defendant's family retained counsel to represent him and appointed counsel withdrew.
Prior to trial, the defendant asked the court to approve funds for an expert to examine the dashboard in order to determine whether the bullet could have gone through the dashboard and still maintained its shape. The trial court denied the motion, stating, "[Y]ou have got retained counsel, and I am not going to provide funds to do that. There is nothing to examine. The dashboard, I understand, has been destroyed." (R.T.Supp. p. 19.) The jury found the defendant guilty of robbery in the first degree, but was unable to reach a verdict on the kidnapping charge.
Section 15-12-1 defines an indigent defendant "[a]ny person involved in a criminal or juvenile proceeding in the trial or appellate courts of the state for which proceeding representation by counsel is constitutionally required and who under oath or affirmation states that he is unable to pay for his defense and who is found by the court to be financially unable to pay for his defense." Section 15-12-21(d) provides that "Counsel [appointed to defend an indigent defendant] shall also be entitled to be reimbursed for any expenses reasonably incurred in such defense to be approved in advance by the trial court...."
We note that the defendant had already shown to the trial court that he was indigent; therefore, the only issue before us are whether this indigent defendant had a right to public funds to hire an expert when he was represented by counsel retained by a third party and whether the defendant had shown the need and relevance for the expert assistance.
*1201 The criteria for determining indigency are set out in § 15-12-5(b):
We agree with the holding of the Court of Criminal Appeals in Russaw v. State, 572 So. 2d 1288 (Ala.Cr.App.1990), that the assets of friends and relatives, not legally responsible for the defendant, are not included within the "assets" referred to in § 15-12-5(b).
572 So. 2d at 1295.
If the assets of friends and relatives who are not legally responsible for the defendant are not included in determining a defendant's indigency, then the fact that a friend or relative pays for an indigent defendant's counsel should not be considered in determining whether the defendant is entitled to funds for expert assistance. The simple fact that the defendant's family, with no legal duty to do so, retained counsel for the defendant, does not bar the defendant from obtaining funds for expert assistance when the defendant shows that the expert assistance is necessary.
The fundamental rule in construing statutes is to give effect to the intent of the legislature in enacting the statute; the intent is gathered from the language of the statute itself, but reason and necessity for the statute are also relevant. McClain v. Birmingham Coca-Cola Bottling Co., 578 So. 2d 1299 (Ala.1991).
Looking at the statute, we agree that the legislature intended for the trial court, in determining indigency, to consider only the assets of those persons legally responsible for the defendant. This is consistent with the purpose of establishing the indigent defense system in Alabama, which is to provide indigent defendants with their constitutionally guaranteed right to adequate representation.
We must now look to the specific facts of this case and determine whether the defendant showed that the expert testimony was indeed necessary and relevant to his defense. The defendant requested payment for the cost of having an expert examine the dashboard to determine "if in his opinion ... the bullet [could go] through what the State is contending it went through and still be in the shape it's in."
(R.T. p. 19 supp.)
Grayson v. State, 479 So. 2d 69, 72 (Ala.Cr.App.1984), affirmed, 479 So. 2d 76 (Ala.), cert. denied, 474 U.S. 865, 106 S. Ct. 189, 88 L. Ed. 2d 157 (1985).
The record indicates that the dashboard no longer exists. Although the defendant argues that he requested a ballistics expert to examine only the bullet, it is clear from *1202 the record that the expert was requested for the purposes of examining the dashboard in order to determine "if in his opinion... the bullet [could go] through what the State is contending it went through and still be in the shape it's in." (R.T.Supp. p. 19.) During the conversation with the trial judge concerning the expert, the defendant repeatedly referred to examining the dashboard. (R.T.Supp. p. 18-20.) It is unclear from the record whether the trial court denied the request for funds because the defendant was indigent or because the dashboard no longer existed. It would have been error to deny the request because the defendant was indigent; however, such an error would have been harmless, because the defendant specifically requested an expert for the purpose of examining an object that no longer existed.
Based on the foregoing, we affirm. All other issues presented by the defendant are without merit.
AFFIRMED.
HORNSBY, C.J., and MADDOX, SHORES and HOUSTON, JJ., concur. | January 29, 1993 |
af6c7bae-8a2d-49bc-a9e6-70b2caaffb36 | Hall v. Gaines | 613 So. 2d 370 | 1911269 | Alabama | Alabama Supreme Court | 613 So. 2d 370 (1993)
Christopher HALL,
v.
Richard Lamar GAINES and Quality Assurance Testing Laboratories, Inc.
1911269.
Supreme Court of Alabama.
February 5, 1993.
*371 Richard C. Dean, Jr., Montgomery, for appellant.
Ronald G. Davenport of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for appellees.
HORNSBY, Chief Justice.
On May 17, 1990, Christopher Hall was struck by an automobile driven by Richard Lamar Gaines. Gaines was employed by Quality Assurance Testing Laboratories, Inc. ("Quality"), at the time of the accident. Hall suffered a broken leg and, initially, spent one week in a hospital. His resulting medical bills and lost wages totaled $5,198.97. On June 7, 1990, three weeks after the accident, Michael Ownings, a claims adjuster employed by American States Insurance Company ("American"), the liability insurer for Quality and Gaines, went to Hall's home and negotiated a $10,000 settlement with Hall. Hall signed an agreement entitled "Full and Final Release," stating that Hall, "for the sole and only consideration of [$10,000], ... released and discharged ... [Quality and Gaines] ... from any and all liability ... on account of personal injuries ... caused by or resulted or hereafter resulting to [Hall] from an accident which occurred on" May 17, 1990. Hall also accepted a check for $10,000 from Ownings on the same day. Thereafter, Hall's doctor determined that the leg was not healing properly. To repair the bone, the doctor operated on the leg and placed it in a cast for 10 months. Hall was unable to work during this period and, eventually, his employer dismissed him. Ultimately, Hall's medical bills exceeded $10,000.
On June 21, 1991, Hall sued Gaines and Quality, alleging that Gaines had negligently and wantonly operated the automobile and that his negligence had caused Hall's injury, and seeking to rescind the release and to recover damages to compensate for the expenses incurred after he signed the June 7, 1990, release. The defendants moved for a summary judgment, arguing that the release expressly protected them from any further liability to Hall and that it was not subject to rescission. The trial court entered a summary judgment for the defendants, and Hall appealed. We affirm.
"In reviewing the disposition of a motion for summary judgment, we utilize the same standard as the trial court in determining whether the evidence before [it] made out a genuine issue of material fact" and whether the movant was "entitled to a judgment as a matter of law." Bussey v. John Deere Co., 531 So. 2d 860, 862 (Ala.1988) (citing Chiniche v. Smith, 374 So. 2d 872 (Ala.1979)); Rule 56(c) Ala. R.Civ.P. Our review is further subject to the caveat that this Court must review the record in a light most favorable to the nonmovant, resolving all reasonable doubts against the movant. Hanners v. Balfour Guthrie, Inc., 564 So. 2d 412, 413 (Ala. 1990); Wilson v. Brown, 496 So. 2d 756, 758 (Ala.1986); Harrell v. Reynolds Metals Co., 495 So. 2d 1381, 1383 (Ala.1986).
Hall argues that the release he signed is not valid, either because Ownings procured it by fraud or because the parties were mutually mistaken as to the facts underlying the release. In support of his arguments, Hall points out that he was 19 years old when he signed the release. Further, Hall states in his affidavit:
Hall also alleges that he has a learning disability and that he did not have anyone to advise him when he signed the release.
Ownings denies making statements as to whether Hall's doctor would remove the cast at Hall's next visit and as to whether Hall's leg would be all right. Ownings also points out that Hall's aunt, Viola Harris, was present when Hall signed the release and that she stated in her deposition that she believed Hall was capable, at the time, of making a decision as to whether to settle his case.
Hall contends that the summary judgment was improper because, he says, there is a genuine dispute as to whether Ownings procured the release by fraud. A release induced by fraud is void. Taylor v. Dorough, 547 So. 2d 536 (Ala.1989). Fraud has four elements: (1) misrepresentation of a material fact; (2) made willfully to deceive or recklessly without knowledge; (3) which was justifiably relied upon by the plaintiff under the circumstances; and (4) which caused damage to the plaintiff as a proximate consequence. Ramsay Health Care, Inc. v. Follmer, 560 So. 2d 746, 749 (Ala.1990) (citing Bowman v. McElrath Poultry Co., 468 So. 2d 879, 880 (Ala.1985)), quoted in Harris v. M & S Toyota, Inc., 575 So. 2d 74, 76 (Ala.1991).
This Court adopted the "justifiable reliance" standard in Hickox v. Stover, 551 So. 2d 259, 263 (Ala.1989), to replace the "reasonable reliance" standard used prior to Hickox. Under the justifiable reliance standard:
Id. (quoting Southern States Ford, Inc. v. Proctor, 541 So. 2d 1081, 1091-92 (Ala.1989) (Hornsby, C.J., concurring specially)).
The defendants argue that, even if Ownings made the misrepresentations alleged, a jury could not find that Hall justifiably relied on those misrepresentations. We agree. Hall stated in his deposition that he read the release before he signed it. Further, as to his state of mind when he signed it, Hall stated that he understood that Ownings was a claims adjuster and not a doctor, that he did not personally believe that there would be any further problems with his leg, and that he knew that he was releasing Quality and Gaines from any claim he might have against them. Therefore, we conclude that, even if Hall proved the alleged misrepresentations, he could not, as a matter of law, establish that he justifiably relied on Ownings's statements as to his medical prognosis.
Alternatively, Hall contends that the summary judgment was improper because, he says, there is a genuine dispute as to whether Ownings and Hall were mutually mistaken as to the facts upon which the release was based. This Court held in Boles v. Blackstock, 484 So. 2d 1077 (Ala. 1986), that "as a matter of law, reliance on a prediction as to future events will not support a claim for rescission of a release based on a claim of mutual mistake of fact." Id. at 1082, relying on Louisville & Nashville R.R. v. Solchenberger, 270 Ala. 536, 544-45, 120 So. 2d 704, 711 (1960).
Ownings admitted in his deposition that he and Hall discussed the eventual removal of Hall's cast and that, had Ownings known when he made Hall the settlement offer that Hall would have to undergo surgery, he possibly would not have made the offer or would not have attempted to settle the case. However, even if Ownings did tell Hall that the doctor would remove the cast on the next visit and that Hall's leg would be all right, Hall presented no evidence that these statements constituted anything other than predictions as to future events. Accordingly, Hall's claim of a *373 mutual mistake will not support a rescission.
The summary judgment is due to be affirmed.
AFFIRMED.
MADDOX, ADAMS, STEAGALL and INGRAM, JJ., concur.
ALMON, J., concurs in the result. | February 5, 1993 |
5dd0cc1b-d1da-4244-a15c-f9552ceb8dc8 | Highway Dept. v. Stuckey's/DQ of Grand Bay | 613 So. 2d 333 | 1911518 | Alabama | Alabama Supreme Court | 613 So. 2d 333 (1993)
ALABAMA HIGHWAY DEPARTMENT and Perry Hand
v.
STUCKEY'S/DQ OF GRAND BAY, INC.
1911518.
Supreme Court of Alabama.
January 22, 1993.
*334 Jerry L. Weidler, Counsel, State of Alabama Highway Dept., Montgomery, for appellants.
Cooper C. Thurber and William E. Shreve, Jr. of Lyons, Pipes & Cook, P.C., Mobile, for appellee.
SHORES, Justice.
The Alabama Highway Department and its director appeal from a judgment declaring that a billboard belonging to the plaintiff, Stuckey's/DQ of Grand Bay, Inc. ("Stuckey's"), does not violate the provisions of the Highway Beautification Act Outdoor Advertising, Alabama Code 1975, §§ 23-1-270 through -288.[1] We affirm.
In 1965, Congress enacted the Federal Highway Beautification Act, 23 U.S.C. § 131, requiring states to either enact laws regulating highway advertising or face reduction of federal highway funding. Federal regulations under the Act permitted maintenance and continuance or "grandfathering" of "nonconforming signs," i.e., signs lawfully erected and in existence on the effective date of state laws regulating highway advertising, but not conforming to the requirements of such laws. 23 C.F.R. § 750.707. Nonconforming signs "must remain substantially the same as ... on the effective date of the State law or regulations," provided, however, that "Reasonable repair and maintenance ... is not a change which would terminate nonconforming rights." 23 C.F.R. § 750.707(d)(5). The regulations further provide that nonconforming signs may continue as long as they are not destroyed or abandoned, but permit states to make exception "for signs destroyed due to vandalism and other criminal and tortious acts." (Id.)
In 1971, in response to the federal act, the Alabama Legislature enacted the Highway Beautification ActOutdoor Advertising, Alabama Code 1975, §§ 23-1-270 through -288, prohibiting the erection of signs not meeting the location, size, lighting, and spacing requirements of the Act. Signs erected in violation of the Act may be removed by the Highway Department upon 30 days' notice to the owner. Alabama Code, § 23-1-278(a). The Act gives the director of the Highway Department authority "to adopt such rules and regulations as are necessary and appropriate to carry out the provisions" of the Act. Alabama Code 1975, § 23-1-286.
In 1974, the Highway Department adopted its "Rules and Regulations No. 1," subsequently incorporated by reference as Highway Department Administrative Code § 450-3-1-.06(a). The regulation concerns maintenance of nonconforming signs and provides in pertinent part as follows:
Stuckey's is an Alabama corporation doing business at the Grand Bay exit off Interstate Highway 10 in Mobile County, Alabama. Stuckey's opened for business in 1968 and erected an advertising billboard adjacent to I-10 and near the Grand Bay exit, facing eastbound traffic that might use that exit. It is undisputed that the billboard was in existence on the effective date of the state Act, that it did not conform to the requirements of the Act, and that, as an existing, nonconforming sign, it was permitted to remain for its normal life, subject to customary repair and maintenance.
In March 1991, Stuckey's hired two contractors to strip, prime, and paint the face of the billboard. After the old paint had been stripped, the billboard primed, and some fresh paint applied, vandals, using a chain saw, cut all six poles that supported the sign. The billboard itself sustained little or no damage; only the poles were damaged. Stuckey's reerected the sign on new poles at the same location.
*335 In April 1991, Stuckey's received a letter from the Highway Department advising that it considered the billboard to have been erected in violation of its Regulation No. 1, prohibiting repair of nonconforming signs "damaged to the extent of 50% or more as determined by visual inspection," and instructing Stuckey's to remove the billboard or face its removal by the Highway Department.
Stuckey's filed a complaint for a temporary restraining order and a preliminary injunction against the removal of the sign and a declaratory judgment action pursuant to Alabama Code 1975, § 23-1-278(b), against the defendants: the Alabama Highway Department, Perry A. Hand, and M.L. Risher,[2] seeking a declaration that the Stuckey's billboard did not violate the Highway Department's Regulation No. 1. The trial court entered a temporary restraining order, and the defendants consented to the entry of a preliminary injunction.
The defendants filed an answer to the complaint for the declaratory judgment, and they counterclaimed, alleging that the Stuckey's billboard violated the Highway Beautification ActOutdoor Advertising. The trial court entered its findings of fact, conclusions of law, and judgment on May 18, 1992, holding that the billboard did not violate the Highway Department regulation or the Act, and it entered a judgment in favor of Stuckey's and against the defendants:
This case was heard by the trial court without a jury. "Under the `ore tenus rule,' a presumption of correctness accompanies the trial court's judgment when it has made findings of fact based on disputed oral testimony without a jury, and its judgment will not be reversed unless it is shown to be plainly and palpably wrong, considering all of the evidence and all inferences that can be logically drawn from the evidence. King v. Travelers Ins. Co., 513 So. 2d 1023 (Ala.1987); McCrary v. Butler, 540 So. 2d 736 (Ala.1989). This presumption, coupled with the wide discretion vested in the trial judge in declaratory judgment actions, Home Ins. Co. v. Hillview 78 West Fire District, 395 So. 2d 43, 45 (Ala. 1981), compels the conclusion that the trial judge properly found that the billboard was legally reerected.
The State Highway Department contends that the repair and reerection of the billboard constituted "erecting a new billboard" in violation of the Act. The trial court found that the billboard was less than 50% damaged. Because the regulation provides that repairing and reerecting a billboard damaged more than 50% constitutes "the erection of a new sign" in violation *336 of the Act, the converse necessarily follows: repairing and reerecting a billboard less than 50% damaged is not "erection of a new sign" and does not violate the Act. Ala.Code 1975, § 23-1-271(5).
The trial court's findings are fully supported by the evidence and they support the judgment. Therefore, that judgment is due to be affirmed. See Department of Transp. v. Keller Development Corp., 122 Ill.App.3d 1038, 78 Ill.Dec. 413, 462 N.E.2d 532 (1984); Gannett Outdoor of Chicago v. Baise, 163 Ill.App.3d 717, 114 Ill.Dec. 760, 516 N.E.2d 915 (1987); National Advertising Co. v. Bradshaw, 48 N.C.App. 10, 268 S.E.2d 816 (1980), review denied, appeal dismissed, 301 N.C. 400, 273 S.E.2d 446 (1980).
AFFIRMED.
HORNSBY, C.J., and MADDOX, HOUSTON and KENNEDY, JJ., concur.
[1] Ala.Acts 1971, 3d Ex.Sess., No. 276, § 1.
[2] The Alabama Highway Department is a department of the State of Alabama created by statute, Alabama Code 1975, § 23-1-20. Hand is the director of the Highway Department and Risher is a division engineer employed by the Highway Department. | January 22, 1993 |
ed09fd5b-7fd8-4263-9043-1726ec2b9517 | Kirksey v. Roberts | 613 So. 2d 352 | 1920260 | Alabama | Alabama Supreme Court | 613 So. 2d 352 (1993)
Donnell KIRKSEY
v.
Hattie May Kirksey ROBERTS.
1920260.
Supreme Court of Alabama.
January 29, 1993.
*353 Donnell Kirksey, pro se.
Frank C. Ellis, Jr. and J. Frank Head of Wallace, Ellis, Fowler & Head, Columbiana, for appellee.
HOUSTON, Justice.
Donnell Kirksey, pro se, sued Hattie May Kirksey Roberts, alleging breach of contract. On January 17, 1992, Roberts filed an answer and a jury demand. On February 14, 1992, the trial court set the case for trial on July 27, 1992, with a docket call to be held on July 24, 1992. Approximately five months after the trial court set the case for trial, Kirksey moved for a continuance, saying "[he] was incarcerated and unable to [obtain] an order [from] the Department of Corrections to transport [him] to the Shelby County Courthouse on the day of trial"; and that his "intended attorney... [could not] schedule his appearance for the said date and [Kirksey] require[d]... additional time to retain another attorney." In the alternative, if the trial court denied his motion for continuance, Kirksey requested that the trial court issue "a writ of habeas corpus ordering the Sheriff's Department to transport [him] from the Department of Corrections to the trial court." The trial court denied Kirksey's motion. Thereafter, at the call of the docket, "being notified by way of [Kirksey's] motion for continuance ... that Kirksey is incarcerated and unavailable for trial," the trial court granted Roberts's motion to dismiss. Kirksey appeals, pro se. We affirm.
In his brief on appeal, Kirksey maintains that the "action taken by the [trial] court denied [him] the right to prosecute the action." Kirksey's brief contains no legal analysis and no citation to any legal authority supporting his argument. Kirksey, therefore, has technically failed to comply with Rule 28, A.R.App.P. While the Court endeavors to avoid affirming judgments based on technicalities, when the Court cannot discern the merits of an appellant's claim because the appellant has failed to articulate the claim and has failed to present authorities in support of the claim, the Court will refuse to consider the appeal, if the circumstances of the appellant's failure make it appropriate that we do so. See, Stover v. Alabama Farm Bureau Ins. Co., 467 So. 2d 251 (Ala.1985). However, in this case, because we are able to adequately discern the issue Kirksey presents, in spite of his failure to present authorities in support of his claim, we will not affirm merely because of a technicality. We affirm, nonetheless, because Kirksey failed to present any evidence that the trial court abused its discretion in denying his motion for a continuance, Wood v. Benedictine Society of Alabama, Inc., 530 So. 2d 801 (Ala.1988); Scullin v. Cameron, 518 So. 2d 695 (Ala.1987), and because he failed to comply with the statutory requirements of Ala.Code 1975, § 15-21-1, in seeking a writ of habeas corpus.
AFFIRMED.
HORNSBY, C.J., and MADDOX, SHORES and KENNEDY, JJ., concur. | January 29, 1993 |
48111201-f75b-472f-a05d-72ac041b7e5c | First Alabama Bank v. Prudential Life Ins. | 619 So. 2d 1313 | 1911400, 1911401, 1911417 | Alabama | Alabama Supreme Court | 619 So. 2d 1313 (1993)
FIRST ALABAMA BANK OF SOUTH BALDWIN
v.
PRUDENTIAL LIFE INSURANCE COMPANY OF AMERICA, et al.
PRUDENTIAL LIFE INSURANCE COMPANY OF AMERICA
v.
Carole B. TINDAL.
Carole B. TINDAL, et al.
v.
PRUDENTIAL LIFE INSURANCE COMPANY OF AMERICA, et al.
1911400, 1911401 and 1911417.
Supreme Court of Alabama.
February 26, 1993.
Rehearing Denied April 30, 1993.
*1314 J. Connor Owens, Jr., and Charles C. Simpson III of Owens, Benton & Simpson, Bay Minette, for First Alabama Bank of South Baldwin.
*1315 Norborne C. Stone, Jr., and George R. Irvine III of Stone, Granade, Crosby & Blackburn, P.C., Bay Minette, for Prudential Life Ins. Co. of America, Inc.
Allan R. Chason of Chason & Chason, P.C., Bay Minette, for Donna T. Badners, individually and as executrix of the estate of Thomas M. Badners, deceased.
Mary E. Murchison of Murchison and Sutley, Foley, for Carole Tindal.
INGRAM, Justice.
These related appeals arise from the refusal of Prudential Life Insurance Company of America ("Prudential") to pay certain life insurance benefits to Carole B. Tindal. They are presently before this Court for the second time; for a complete history of the cases, see Badners v. Prudential Life Insurance Co., 567 So. 2d 1242 (Ala.1990).
Tindal, the former wife of the deceased policy holder (Thomas Badners), sued Prudential and First Alabama Bank of South Baldwin ("FAB"), alleging a breach of contract. At the end of the trial, the trial court charged the jury that it could return a verdict against either Prudential or FAB, but not against both defendants. The jury returned a verdict for Tindal and against Prudential and awarded $38,246.46[1] in damages.
Prudential appeals, contending that the jury's verdict is against the great weight of the evidence. Prudential also argues that the trial court erred by admitting the testimony of Donna Badners regarding a conversation with John Grant, an agent of Prudential.
On January 4, 1974, Prudential issued a life insurance policy naming Thomas Badners as insured and his wife Carole Badners as beneficiary. (Thomas and Carole Badners later divorced; Carole remarried and is now known as Carole B. Tindal.) The face amount of the policy was $6,000, with a decreasing term rider in the sum of $30,000. The policy specified that the premium due dates were at intervals of one month after the policy issue date, January 4, 1974. The policy further stated that if any premium was not paid when due, it would be in default. The policy allowed a grace period of 31 days for the payment of a premium that was in default. During the grace period, the policy would continue in force, and if the insured died within this grace period, any premium in default would be deducted from the payment to the beneficiary. However, if a premium remained unpaid at the end of the grace period, the policy would terminate and would be of no value except as might be provided by the nonforfeiture provision.
Tindal testified that when the policy was purchased from Prudential, the agent told her and Mr. Badners that the monthly premiums would be a "little bit cheaper" if they chose to make their payments by draft. Therefore, by agreement between Mr. Badners and FAB, the monthly premium ($28.62) was to be paid by a "Pru-matic" draft drawn each month on the account of Mr. Badners (account number XX-XXX-XX). The premium due date specified by the policy was the 4th of each month; however the checks printed by Prudential were dated as of the 7th of each month.
Tindal testified that before her divorce from Mr. Badners in 1984, she regularly balanced the family checking account, and, according to her recollection, the checks were processed for payment on different dates each month. She stated that on a few occasions the premium check missed the bank statement cutoff date (which she recalled was around the 18th), and that on such occasions two checks would be paid during the next statement period. Tindal further testified that a premium check "bounced" on one occasion and that the draft was returned to Prudential because of insufficient funds in the account. However, *1316 she testified that Prudential wrote her a letter advising her of what had happened. Tindal stated that she then sent in the payment and that Prudential reinstated the policy right away.
In March 1984, Mr. Badners and Carole were divorced. Mr. Badners closed his checking account (XX-XXX-XX) and opened a new account. Thereafter, when Prudential would send the draft on the closed account, FAB would manually change the account number of the draft to the number of a funded account (either Mr. Badners's personal account or his business account). This was all done with the knowledge of Mr. Badners. Eventually, Mr. Badners requested that the draft be deducted from his personal account. However, he never formally changed his account number with Prudential on the "Pru-matic" draft.
This procedure continued for over 25 months, until June 1986. On June 12, 1986, FAB did not pay the premium draft but returned it to Prudential. An employee of FAB testified that she could not explain why the rejection of the draft by the computer was not manually overridden, as had been done for the past 25 months.
The statement closing date for both of Mr. Badners's active checking accounts with FAB was June 17, 1986. Mr. Badners did receive the statements issued on that date, but they were not opened until after Mr. Badners's death.
Thomas Badners died on July 18, 1986. About two weeks later, Donna Badners (widow of Mr. Badners)[2] was contacted by John Grant, an agent of Prudential. It is undisputed that this was beyond the 31-day grace period set out in the policy. Mr. Grant advised Mrs. Badners that he needed to come by and talk about the June premium. When they met, Mrs. Badners testified that when he told her the June payment had not been paid, she asked Grant if she needed to pay the premium. She stated that he first said "yes," but that when she started to write a check, he told her not to pay "because the insurance company had messed up, and they would just total it out when they made the payoff." She testified that the agent referred to some kind of a problem about a change in Prudential's method of billing.
Mrs. Badners testified that she heard nothing further from John Grant, but that she did receive an envelope from Prudential postmarked August 14, 1986. Inside was a coupon book for the monthly premiums. It had a coupon for the June 4, 1986, premium payment, which stated "Please make your check or other order for payment payable to [Prudential]." She testified that the amount of the premium on the coupon was $29.28, which reflected a slight increase due to the method of payment. (As noted above, when the policy was originally purchased, Mr. Badners had chosen to pay by "Pru-matic" draft because the premium would be slightly lower.)
Before the June premium payment was dishonored, Mr. Badners had requested information from Prudential concerning changing his account number on the "Pru-matic draft." Prudential's files show two separate documents showing this request, along with a notation that Mr. Badners wished to change his checking account number on the draft.
After Mr. Badners's death, Tindal claimed benefits under the policy and, instead of receiving approximately $36,000 due under the policy, she received a reduced payment of $8,092.75. Tindal stated that because this was far less that she had expected, she telephoned Prudential to find out why. Prudential informed Tindal that the June 1986, premium draft had been returned unpaid by FAB and that Mr. Badners had died outside the 31-day grace period. Prudential therefore paid the policy as extended term insurance, under the automatic nonforfeiture provision. Under this provision, the insurance amount is the face amount of insurance, plus paid-up additional insurance provided by dividends (approximately $8000).
As noted above, Tindal sued Prudential, alleging breach of contract, and the jury found in her favor. The court overruled *1317 Prudential's motion for a new trial, and Prudential appeals.
"`The function of the jury, which is authorized to draw all reasonable inferences from the evidence, is to resolve controverted factual inferences.'" Thorne v. C & S Sales Group, 577 So. 2d 1264, 1267 (Ala.1991) (quoting George v. Nevett, 462 So. 2d 728 (Ala.1984)). The jury's verdict is presumed to be correct, and that presumption is strengthened by the trial court's denial of the motion for a new trial. Thorne, supra. Further, this Court must review the evidence in a light most favorable to the prevailing party. Standard Plan, Inc. v. Tucker, 582 So. 2d 1024 (Ala. 1991). Applying that standard of review, we conclude that there was sufficient evidence from which the jury could reasonably find that there had been a forfeiture of the waiver provision, or that there had been some alteration by practice or circumstance on which Mr. Badners had relied, or that Prudential had waived its right to forfeit the policy.
We also conclude that the trial court did not abuse its discretion in admitting into evidence certain testimony regarding the conversation between Prudential's agent and Donna Badners. "The determination of the relevancy of the evidence rests largely in the discretion of the court and its ruling will not be reversed on appeal unless it is plain that error was committed." Harper v. Baptist Medical Center-Princeton, 341 So. 2d 133, 135 (Ala. 1976).
As concerns Tindal's cross-appeal, we also find no merit. She argues that the trial court erred in refusing to allow her to amend her complaint to allege counts of negligence and wantonness against Prudential and FAB in order to seek additional damages. Specifically, Tindal argues that this Court should examine Prudential's entire procedure here to "determine whether or not the company had breached its duty of good faith and fair dealing with [Tindal] to assure that the benefits were paid."
Here, Tindal originally alleged breach of contract, fraud, and bad faith. The trial court dismissed the fraud and bad faith claims, and this Court affirmed the dismissal. See Badners, supra. Therefore, damages were limited to those recoverable on the breach of contract claim. On remand, in an effort to recover greater damages than those available under the breach of contract claim, Tindal sought to amend her complaint to allege negligence and wantonness. The trial court, however, dismissed her amendment.
Generally, amendments are to be liberally allowed. However, the trial court is given discretion in the exercise of that liberality. Rule 15(a), A.R.Civ.P.; Covington v. Exxon Co., U.S.A, 551 So. 2d 935 (Ala.1989). Here, it appears that Tindal advanced a new theory on the basis of the same facts that had been offered in support of the bad faith claim, which had been rejected. A plaintiff may not "resurrect a dead claim by renaming it as a new cause of action based upon the exact same evidence as that relied upon for the original claim." Covington, at 940. The trial court correctly denied Tindal's amendment.
Mrs. Donna Badners (the widow of Mr. Badners) sued FAB, claiming that FAB had wrongfully dishonored the draft sent by Prudential. The jury returned a verdict in favor of Mrs. Badners and against FAB and awarded damages in the amount of $12,185.
FAB appeals, basically contending that the jury verdict in favor of Mrs. Badners was against the great weight of the evidence and is due to be reversed. First, it contends that there was no wrongful dishonor; second, it contends that the draft authorization contained an exculpatory clause releasing the bank from liability for wrongful dishonor; and, third, it contends that the damages claimed by Mrs. Badners were not proximately caused by any wrongful dishonor.
In 1973 Thomas Badners signed an agreement authorizing Prudential to draw drafts on the Badnerses' checking account *1318 at FAB. That authorization specifically referred to account number XX-XXX-XX as being the account that would be drafted. That arrangement continued, and drafts were drawn monthly on that account, from 1973 until March 14, 1984, when the account was closed. On and after that date, the drafts were charged against a new account that Mr. Badners had opened following his divorce from Carole Tindal. However, Prudential was never notified of any change in the accounts. After March 1984, because the drafts were on a closed account, they were directed to Dorothy Bruhn, an assistant vice-president at FAB. She manually changed the account number against which the drafts were drawn. Ms. Bruhn told Mr. Badners what she was doing.
In June 1986, after having manually drafted the new account for over 25 months, FAB did not pay the Prudential draft, but, rather, dishonored it. Ms. Bruhn testified that she thought the draft should have been paid and that she could not explain why it was not. It is undisputed that Mr. Badners had sufficient funds in his account to pay the draft.
An action for wrongful dishonor is authorized by § 7-4-402, Ala.Code 1975. Generally speaking, a wrongful dishonor must arise out of some agreement with the bank. See, generally, Annot. 88 A.L.R.4th 568 (1991). Normally, that agreement would be found on the signature card, which usually incorporates or includes the terms of the deposit agreement, or in some other agreement with the bank, e.g., a draft authorization. Here, the draft authorization lists the number of a closed account, but one of FAB's assistant vice-presidents undertook to manually change the monthly draft to an open account for over 25 consecutive months, all of this with the knowledge and approval of Mr. Badners.
Under these circumstances, we hold that an implied-in-fact agreement did exist between FAB and Mr. Badners by which FAB was to continue paying the Prudential drafts out of his new account.
Radiology Associates, P.A. v. St. Clair Timber Co., 563 So. 2d 1020, 1021 (Ala. 1990) (quoting Broyles v. Brown Engineering Co., 275 Ala. 35, 38, 151 So. 2d 767, 770 (1963)). "An implied-in-fact contract may be found from circumstances showing that a mutual agreement had been reached." Radiology Associates, at 1021. This principle of law applies with equal force to banking agreements. (See Boyett v. Oakes, 518 So. 2d 37 (Ala.1987), where a jury verdict in favor of a customer was affirmed where there was testimony that the bank officer orally agreed to honor an overdraft and that the bank then failed to do so.)
We also find no merit in FAB's argument that an exculpatory clause in the draft authorization releases it from any liability. Section 7-4-103(1), Ala.Code 1975, prohibits clauses that seek to exculpate a bank from responsibility for its own failure to exercise ordinary care.
Finally, FAB contends that the dishonor of the Prudential premium draft did not proximately cause Mrs. Badners to suffer a monetary loss. We disagree.
The wrongful dishonor of the Prudential draft by FAB caused the forfeiture of Mr. Badners's life insurance policy, which he was obligated to keep in force under the terms of the divorce judgment. As a result, Tindal sued Mrs. Badners, both individually and as executrix of Mr. Badners's estate. In connection with that action, Tindal recorded a lis pendens notice against certain real property owned by Mrs. Badners, to secure her claim against Mr. Badners's estate. That action was ultimately resolved in favor of Mrs. Badners, but not before the existence of the lis pendens had *1319 resulted in the cancellation of a contract to sell certain real property.
The jury obviously concluded that the loss of the first sale of the Badners property was proximately caused by FAB's wrongful dishonor and that the appropriate damages were the difference between the sales price as originally contracted and the price for which the property was ultimately sold.
The jury's verdict is presumed to be correct, and that presumption is strengthened by the trial court's denial of the motion for a new trial. Thorne, supra. Reviewing the evidence in a light most favorable to the prevailing party, we find sufficient evidence to support the jury verdict.
Prudential filed a cross-claim against FAB, seeking "full and complete protection, indemnification and right to be held harmless by [FAB]." The thrust of its claim is that FAB breached its duty to honor the preauthorized draft written by Prudential against a nonexistent account. Therefore, it alleged that if Prudential was required to pay the proceeds of the policy to Tindal (and the jury found it was), then in equity and good conscience FAB should be required to make Prudential whole. The trial court agreed and granted Prudential's post-trial motion for summary judgment and denied that of FAB. The effect of the court's order was to indemnify Prudential.
In Alabama, a joint wrongdoer may claim indemnity when he has not been guilty of any fault, except technically or constructively, or where both parties are at fault but the fault of the party from whom indemnity is claimed was the efficient cause of the injury. See Crigler v. Salac, 438 So. 2d 1375 (Ala.1983).
Sherman Concrete Pipe Machinery, Inc. v. Gadsden Concrete & Metal Pipe Co., 335 So. 2d 125, 126 (Ala.1976).
Here, the full amount of the policy (the extended term rider) was not paid because an employee of FAB did not change the account number on Prudential's preauthorized draft (for June 1986), as it had done monthly for over two years, and pay the draft out of an active account. The trial court, sitting without a jury, determined that in equity and fairness FAB should bear the liability for the damages.
Where a trial court has received ore tenus evidence, its judgment, based upon that evidence, is presumed correct and will be reversed only if the judgment is found to be plainly and palpably wrong. Knox Kershaw, Inc. v. Kershaw, 552 So. 2d 126 (Ala. 1989).
We hold that FAB, through its actions and custom for over two years, created a duty to Prudential to exercise ordinary care to pay the preauthorized drafts presented by Prudential against Mr. Badners's account in a reasonably prudent manner. We find no error in the trial court's entry of the summary judgment in favor of Prudential.
Likewise, we conclude that the trial court correctly denied FAB's summary judgment motion for indemnity against Prudential. The evidence is undisputed that Prudential followed the same course of conduct that it had followed for over 25 months after the closing of the account against which it was authorized to issue preauthorized drafts. The evidence was undisputed that Prudential's draft in June 1986 was against the closed account. FAB admitted that the check should have been paid and that if Ms. Bruhn, an assistant vice president, had known about the draft in June, it would have been paid. She had no excuse or explanation for FAB's failure to pay the check. Mr. Badners died before the breakdown in the system was corrected. The trial court found that in equity and good conscious FAB should bear the responsibility for its conduct and should indemnify *1320 Prudential from the damages awarded by the jury.
The judgment in this case is due to be affirmed.
AFFIRMED.
HORNSBY, C.J., and ALMON, ADAMS and STEAGALL, JJ., concur.
[1] This amount was stipulated between the parties.
[2] After his divorce in 1984, Thomas Badners married Donna Badners. | February 26, 1993 |
7bd6be52-82b8-4380-aa27-618cb8c11f5e | Ex Parte Anonymous | 618 So. 2d 722 | 1920533 | Alabama | Alabama Supreme Court | 618 So. 2d 722 (1993)
Ex parte ANONYMOUS.
In the Matter of ANONYMOUS, a minor.
1920533.
Supreme Court of Alabama.
January 19, 1993.
PER CURIAM.
A minor petitions this Court to review a judgment of the Court of Civil Appeals, 618 So. 2d 718 (Ala.Civ.App.1993), affirming a judgment of the trial court denying her *723 petition for a waiver of parental consent to an abortion. We reverse and render.
In Ex parte Anonymous, 595 So. 2d 497 (Ala.1992), this Court said regarding a petition for waiver of parental consent for an abortion:
Ex parte Anonymous, 595 So. 2d 497, 498 (Ala.1992) (emphasis in text original). Thus, in order to deny a waiver in the case before us, the trial court had to determine that the minor was not mature enough and not well enough informed and that the abortion was not in her best interest. Ex parte Anonymous, supra. The trial judge did technically follow the directions of § 26-21-4(f) and (g), but he did not do so in a manner consistent with leading precedents in this area of the law.
The record in this case indicates that the minor is a sixteen-year-old in the eleventh grade who became pregnant in November 1992. She was one month and 12 days pregnant at the time of the hearing in December. Her testimony indicated that she had been dating a boy for approximately 13 months and that they had engaged in sexual relations once, on November 7, 1992; that upon discovering that she was pregnant, she discussed her condition with her boyfriend, and that he said he would support whatever decision she made regarding the pregnancy; that she also discussed her pregnancy with another friend her age; and that she contacted an abortion clinic in Birmingham, which gave her the name of someone to contact regarding the procedure required to obtain a waiver of parental consent. She testified:
The minor testified that she spoke more than once with someone at the abortion clinic and that she was apprised of the risks involved. She stated that she was told of the possibility of hemorrhaging and that she inquired regarding her ability to become pregnant again should she elect to abort the fetus. Her inquiry in this regard indicates that she wanted to consider all aspects of any decision she might make.
Her testimony indicated that she had considered the alternatives to abortion. She stated that she was only 16 and that she wanted to attend junior college upon graduating from high school. With a baby to care for, she said, she would not be able to do so and she said she would not be financially able to provide for the child. In addition, she stated that she did not wish to marry at age 16. The trial court focused its attention on the minor's testimony that she had been raised in a good Christian *724 home, that her parents had always been good to her, and that they would probably support any decision she made if they were apprised of her condition. The court found that she appeared concerned about what her parents would think of her and her own embarrassment in having to tell them that she was pregnant. We do not consider her concerns to be unnatural, nor do we find that they indicate that she is too immature to seek an abortion without parental consent. To the contrary, a review of the record indicates that the minor has considered the fact that her parents would probably support her decision; nevertheless, she has elected to seek an abortion without their consent. Despite her desire to do so, however, her testimony indicated that should she experience problems, such as hemorrhaging, following the abortion, she would consider informing her parents of the abortion. When questioned regarding any emotional trauma she might experience following the abortion, the minor stated that should she experience any emotional turmoil after the abortion, there was free counseling at her school. She also testified that she had a good network of friends who could help her through any post-abortion trauma.
In a well-reasoned dissent from the opinion of the Court of Civil Appeals affirming the trial court's order, Judge Thigpen wrote as follows:
We agree. The minor has elected to pursue an abortion without the consent of her parents, and a waiver of consent is in no way contingent on her proving that her parents would disapprove or abuse her should they be consulted regarding her decision to obtain an abortion. In fact, the reaction of the minor's parents is of little consequence as long as she can demonstrate to the court that she is mature enough and well enough informed to make *725 the decision on her own or that an abortion is in her best interest.
The error of the trial judge lies in placing undue weight on the minor child's responsibility to consult with her parents. Although the trial judge is allowed to take into consideration the relationship of the child with her parents and the sympathetic or unsympathetic attitude of the parents, this should not be the main focus of the trial judge's deliberation. Whether we agree with Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973), or not, the Supreme Court of the United States has determined that the main focus should be on the woman's or minor female's right to decide what should be done with her body within certain defined limitations. The constitutionality of the parental consent statute rests mainly on the premise that a child of tender years may not be thoroughly mature enough to make the decision to terminate a pregnancy even within the first trimester. However, if it can be demonstrated that she is sufficiently mature or that an abortion would be in her best interest, then she should be given a waiver of parental consent.
In every case where a minor female is involved, we would not find the experience to be expected of an adult female. Hence, the trial judge's preoccupation with the experience of this minor is misplaced; no minor female would be able to pass the experience test if adult-level experience were a criterion.
Furthermore, it is not the court's responsibility to superimpose its judgment or its moral convictions on the minor in regard to what course of action she should take with reference to her own body. It is not a question of whether she is making a decision that we would approve of, but whether she is making a mature decision or one in her best interest.
The minor testified that she was aware of the emotional trauma that may follow an abortion, as well as the emotional trauma associated with not having an abortion. Her testimony is that she is only 16 years old; that she cannot support a child; that she has no way of taking care of a child; that she has no money; that she needs to finish high school and go to college; that she does not want to have a baby without being married; and that she does not want to marry at age 16. Under these circumstances, who can say that her decision is not mature or is not in her best interest?
The only testimony in this case was by the minor petitioner; therefore, the testimony in this case is undisputed. When the facts are undisputed, the ore tenus rule has no application. The role of the appellate court is, therefore, to determine whether the trial court "misapplied the law to the undisputed facts." Matter of Anonymous, 515 So. 2d 1254, 1256 (Ala.Civ.App. 1987) (emphasis in original). Inasmuch as the trial judge impermissibly focused more on the rights of the parents, rather than on the right of the minor to make her own decision, if she is mature enough to do so, the trial court misapplied the law to the facts of this case.
Therefore, the judgment of the Court of Civil Appeals is reversed, and a judgment is entered granting a waiver of parental consent.
REVERSED AND JUDGMENT RENDERED.
HORNSBY, C.J., and ALMON, SHORES, ADAMS, KENNEDY and INGRAM, JJ., concur.
MADDOX, J., dissents.
MADDOX, Justice (dissenting).
I would affirm the judgment of the trial judge, who determined, based on the facts of this case, that the minor was not entitled to a waiver of the parental notification requirement. A majority of the Court of Civil Appeals affirmed his decision. I believe that court applied the correct standard of review, and I would affirm its judgment; consequently, I dissent. | January 19, 1993 |
977e3d0b-8783-4fc9-9f42-844c8d563795 | Dentman v. State | 99 So. 2d 50 | N/A | Alabama | Alabama Supreme Court | 99 So. 2d 50 (1957)
Robert E. Lee DENTMAN
v.
STATE of Alabama.
7 Div. 307.
Supreme Court of Alabama.
December 12, 1957.
Rehearing Denied March 6, 1958.
*51 Roy D. McCord and L. D. Martin, Gadsden, for appellant.
John Patterson, Atty. Gen., and Paul T. Gish, Jr., Asst. Atty. Gen., for the State.
LIVINGSTON, Chief Justice.
The appellant, Robert E. Lee Dentman, was indicted by the Grand Jury of Calhoun County, Alabama, for the offense of murder in the first degree. On a plea of not guilty, trial was had and the jury returned a verdict of guilty as charged and fixed punishment at imprisonment in the penitentiary for life. The trial court sentenced the appellant accordingly, and he perfected an appeal to this court.
The following appears without conflict from the evidence on the trial of the case:
On the morning of June 20, 1955, Roy Turner, William Barnwell and Roy Lee Wilkerson, employees of the Waterworks Department of the City of Jacksonville, Alabama, went to the defendant's grocery store on "D" Street in Jacksonville, Alabama, and went around behind the defendant's store on the defendant's property and were proceeding to dig up and plug a water line belonging to the Profile Cotton Mills in Jacksonville, Alabama, which said water line furnished water to the defendant's store. When the defendant discovered the three city employees digging on his property, he asked what they were doing, and ordered them to stop and get off his property. Roy Turner informed the defendant that he would get off the property but that he would bring the police back with him, at which time the defendant asked him not to bring the police but to bring the mayor, as he wanted to discuss the matter with the mayor and see if something could be worked out. The three city employees left the defendant's premises, but returned some 15 or 20 minutes later. They were immediately preceded by the Chief of Police of Jacksonville, Mr. Dudley *52 Whiteside. Mr. Whiteside parked his automobile, a car belonging to the city, and walked over to Dentman's store, and was met at the steps thereof by the defendant. Whereupon, the Chief of Police and defendant engaged in a conversation lasting several minutes. There is some conflict in the testimony as to what was said during the conversation by the Chief of Police and the defendant. After talking for a few minutes, the defendant pulled a pistol from the bib of his overalls and shot the Chief of Police one time, which resulted in the death of the Chief of Police.
The defendant's testimony tended to show that during the conversation the Chief of Police informed the defendant that they were going to dig up and plug the water line leading into the store whether he liked it or not, whereupon the defendant stated to the Chief of Police that they were not going to dig up that water line until they put another water line into his store to furnish him a water supply. Defendant's testimony also tended to show that Mr. Whiteside grabbed the defendant by his shoulder and shook him, threatening to beat him if he interfered further. Dentman then jerked loose from Whiteside, and Whiteside immediately reached for his pistol which was strapped on his right side in a scabbard, whereupon Dentman drew a small 22 pistol from the bib of his overalls and shot Whiteside one time before Whiteside was able to complete the draw of his own weapon.
This case must be reversed for the admission of illegal testimony, or the trial court's refusal to exclude it on proper motion of defendant after it was admitted, which testimony, we think, is prejudicial.
It seems that the controversy between the defendant and the Chief of Police, Whiteside, arose out of a situation with reference to supplying defendant's store with water. It seems that defendant's store had been supplied with water from a plant or system operated by the Profile Cotton Mills of Jacksonville, Alabama, and not the city. It further appears that the city was attempting to dig up and plug the mains of the Profile Cotton Mills and had laid a main in front of Dentman's store in order to supply water to the mill village.
The defendant testified in his own behalf. On cross-examination by the solicitor he was asked if he knew one Mr. Jim Marible, and he replied that he did not. Mr. Marible was one of the members of the City Council of Jacksonville. The defendant was then asked if he ever talked to Mr. Marible over the telephone, and he replied that he had not. This question was then propounded to the defendant:
In rebuttal, the state proved by Mr. Marible that he was a member of the City Council. Then the following occurred:
This purported telephone conversation was objected to and exceptions reserved to the court's action in overruling the objections. But we will assume for the sake of *53 the argument that the grounds assigned to support the objections were either too general or untenable.
On cross-examination, Mr. Marible was asked the following questions and gave the following replies:
Motion was then made to exclude the testimony of Mr. Marible with reference to the telephone conversation, and being overruled, the defendant duly reserved an exception. One of the grounds of the motion to exclude was "You don't have any positive proof that this man ever made that call other than by the call itself."
Speaking generally, communications through the medium of the telephone may be shown in the same manner, and with like effect, as conversations had between individuals face to face, but the identity of the parties against whom the conversation is sought to be admitted must be established by some testimony either direct or circumstantial
Unquestionably, the defendant was never identified as being the party who had the telephone conversation with Mr. Marible. The defendant himself denied having had the conversation, and Mr. Marible testified that all he had to go by was that the man who had the conversation with him said that he was Dentman (the defendant). There are no other circumstances which would identify the defendant as the person who called Marible.
We will first dispose of a question of procedure. We will assume that the grounds of objection to the questions propounded to Marible on his direct examination concerning the telephone conversation in question were inapt or untenable. The objection that the party calling Marible was not properly identified was not made during direct examination of Marible; but we think that the attorney for the defendant could well presume that Marible knew the voice of the defendant, and knew who he was talking to when he said that he talked to Dentman, the defendant. We do not think that it was incumbent upon the defendant during the direct examination of Marible to attempt to establish that Marible knew, or did not know, the defendant's voice over the telephone, or to in any manner examine him on that point if he did not desire to ask the court's permission to do so at that time. He could well wait until the cross-examination of Marible to determine as to whether or not he knew the caller to be the defendant, Dentman. The burden was on the state to establish the identity of the person who called Marible, and not on the defendant to prove that he did not call Marible. He could, both timely and apt, move to exclude the telephone conversation when it was brought out on cross-examination that Marible didn't know who he was talking to. It was stated in Davis v. Arnold, 143 Ala. 228, 39 So. 141:
And in the case of Brown v. Brown, 242 Ala. 630, 7 So. 2d 557, it was said:
Likewise, in the case of Central of Georgia Ry. Co. v. Barnett, 220 Ala. 284, 124 So. 868, 869, this court said:
And in the case of Theodore Land Co. v. Lyon, 148 Ala. 668, 41 So. 682, 683, it was said:
In the instant case, the trial court's attention was directed to the lack of identity of the defendant as the man who had the telephone conversation with Marible, and he was given ample opportunity to then exclude the evidence, and if it were inadmissible, it should have been excluded.
Questions too numerous to mention may and do arise over the admissibility of telephone conversations. We will make no attempt here to deal in generalities, but will confine our discussion to the exact question presented by this record; neither will we deal with the exceptions to the above-stated rule. See the following authorities: Morris v. State, 25 Ala.App. 494, 149 So. 359; Vaughn v. State, 130 Ala. 18, 30 So. 669; Crosswhite v. Chattanooga Brewing Co., 10 Ala.App. 425, 65 So. 298; Kirby v. State, 16 Ala.App. 467, 79 So. 141; Kirby v. State, 17 Ala.App. 151, 82 So. 641, certiorari denied 203 Ala. 473, 83 So. 416; also Dorchester Trust Co. v. Casey, 268 Mass. 494, 176 N.E. 178, 71 A.L.R. p. 5, and 105 A.L.R. p. 326.
*55 In the case of Vaughn v. State, supra [130 Ala. 18, 30 So. 671], it was said:
The decision was that the telephone conversation was properly excluded.
The rule applicable to the conversation here is stated in 22 C.J.S. Criminal Law § 644, p. 983, as follows:
In the first place, we think the testimony given by Mr. Marible as to the telephone conversation was prejudicial to the rights of the defendant. At least, it contained a veiled threat as to what the defendant would do unless his water were cut on by 6 o'clock on Monday, the 20th day of June, 1955, and we are unwilling to say that it could not possibly have affected the jury in its deliberation as to the guilt or innocence of the defendant.
The record is clear that the witness Marible did not know the defendant, Dentman, and based the assertion that it was Dentman who called him on the telephone on the sole fact that the caller said he was Dentman. The witness stated, "That is all I have got to go by."
For aught appearing, another than the defendant may have called Marible at the time in question. To hold the appellant responsible for statements made over telephone by unidentified persons would, in our judgment, open the door for fraud and imposition.
Under the authorities which we have cited, we are clear to the conclusion that the evidence of the telephone conversation was inadmissible, and the trial court committed reversible error in not excluding it on appellant's motion.
The case is due to be, and is, reversed and remanded to the trial court.
Reversed and remanded.
SIMPSON, GOODWYN and COLEMAN, JJ., concur.
LAWSON and MERRILL, JJ., dissent.
STAKELY, J., not sitting.
MERRILL, Justice (dissenting).
There is no difference of opinion between the majority and me as to the law enunciated in that opinion. The disagreement comes in the application of that law to the facts as stated in the opinion. From a reading of the record, my interpretation of the facts differs from those recited in the majority opinion, and lead me to a conclusion that the statement of the defendant related by Marible was not a veiled threat against the deceased or any agent of the city, and when all the circumstances are considered, even if error was committed, it was not prejudicial to the rights of the defendant.
I, therefore, respectfully dissent.
LAWSON, J., concurs in the foregoing dissent. | December 12, 1957 |
845dd603-a9cc-431a-96bb-bd5bfdc223f0 | SCOTTSDALE INS. v. Orange Beach | 618 So. 2d 1323 | 1911232 | Alabama | Alabama Supreme Court | 618 So. 2d 1323 (1993)
SCOTTSDALE INSURANCE COMPANY
v.
TOWN OF ORANGE BEACH, et al.
1911232.
Supreme Court of Alabama.
January 29, 1993.
Rehearing Denied March 26, 1993.
Thomas R. McAlpine of Sintz, Campbell, Duke & Taylor, Mobile, for appellant.
Steven L. Nichols of Sirote & Permutt, P.C., Mobile, for appellees.
*1324 INGRAM, Justice.
The Town of Orange Beach ("Town") sued Scottsdale Insurance Company ("Scottsdale"),[1] alleging a breach of a contract of insurance. The trial court submitted the issue of coverage to the jury. Specifically, the question presented to the jury was whether a letter notifying the Town of the possibility of a pending suit was considered a "claim" within the meaning of the policy language.
The jury ruled in favor of the Town, finding that the letter was not a "claim." The parties had previously stipulated that the amount of damages to compensate for not having provided coverage was $17,689. Scottsdale appeals from the resulting judgment.
The record reveals the following: Scottsdale issued a "public officials and employees legal liability" policy of insurance to the Town. The policy insured the Town for all sums that it would become legally obligated to pay as damages as the result of "claims made" during the policy period (October 21, 1988, to October 21, 1989) and for attorney fees for defending such claims.
The policy, in pertinent part, reads as follows:
(Emphasis added.) We note that the policy does not define "claim."
It is undisputed that on October 19, 1988, which was before the effective date of the insurance policy, the Town received a letter from the owners of a business known as Isle of Fantasy, which stated:
It is also undisputed that when the Town was served with a copy of a summons and complaint in the action against it (Isle of Fantasy v. Town of Orange Beach, et al.), which was within the policy period, Scottsdale was immediately notified in accordance with the policy. Scottsdale assumed the defense of the Town, but later declined to provide any further defense and declined coverage. Scottsdale contended that the October 19, 1988, letter was a "claim," within the terms of the policy of insurance, and that because it had come before the effective date of the policy, no coverage was due. However, the Town contended that the letter was not a "claim" within the meaning of the policy and that Scottsdale had breached its contract of insurance when it declined coverage.
Scottsdale contends that the trial court erred in submitting the issue of coverage to the jury. It contends that the trial court should have ruled that, as a matter of law, Scottsdale neither owed coverage nor owed a duty to defend the pending litigation against the Town because, it says, there was a "claim first made" against the Town (the October 19, 1988, letter) before the effective date of the policy of insurance.
We do not disagree with Scottsdale's argument that the trial court had the authority to resolve ambiguities in the policy regarding its coverage. However, the trial court found an issue of fact, which it presented to the jury. The jury found that issue in favor of the insured, and we are *1325 cited no authority that compels us to hold that the trial court committed reversible error.
"If a contract in its terms is plain and free from ambiguity, there is no room for construction, and it is the duty of the court to enforce it as written." Murray v. Alfab, Inc., 601 So. 2d 878 (Ala.1992), quoting McDonald v. U.S. Die Casting & Development Co., 541 So. 2d 1064 (Ala.1989). However, if the language of an insurance policy is ambiguous it is to be liberally construed in favor of the insured. National Union Fire Ins. Co. v. City of Leeds, 530 So. 2d 205 (Ala.1988).
Here, the policy provides that its liability is limited to "claims first made during the [policy] period," October 21, 1988, to October 21, 1989. However, when applying the policy language (as set out above) to the October 19, 1988, letter, we find an ambiguity as to whether that letter constituted a "claim." The ambiguity created by the policy centers around the distinction made in the policy between the word "claim" and a "notice" of an "intention ... to hold the insureds responsible." It seems obvious that the determination of what is or is not a "claim" is essential to a resolution of the coverage question; however, Scottsdale did not define the term in its policy of insurance. Therefore, the jury was asked to make this determination, which it did in favor of the Town.
We note that Scottsdale also raises an evidentiary question concerning the admission of certain testimony. The decision to allow testimony is a matter within the discretion of the trial court. Mason Dixon Line, Inc. v. Byrd, 601 So. 2d 68 (Ala.1992). The record shows no abuse of discretion in this regard.
The judgment is affirmed.
AFFIRMED.
MADDOX, ALMON and STEAGALL, JJ., concur.
ADAMS, J., concurs in the result.
[1] Scottsdale's agent, Dennis Statska, was dismissed as a defendant in this case prior to trial. | January 29, 1993 |
af717386-ff9a-411e-819a-5a220c6fa123 | Metro Bank v. HENDERSON'S BUILDERS SUPPLY | 613 So. 2d 339 | 1911841 | Alabama | Alabama Supreme Court | 613 So. 2d 339 (1993)
METRO BANK, an Alabama corporation
v.
HENDERSON'S BUILDERS SUPPLY COMPANY, INC., a corporation.
1911841.
Supreme Court of Alabama.
January 22, 1993.
Hugh E. Holladay of Blair, Holladay and Parsons, Pell City, for appellant.
Erskine R. Funderburg of Church, Trussell & Funderburg, P.C., Pell City, for appellee.
HOUSTON, Justice.
This case involves a dispute as to the priority of respective liens.
In March 1991, Carol Chandler, as president of Lakeside Cove, Inc., began constructing a commercial building in St. Clair County. (Hereinafter Chandler and Lakeside Cove will be referred to collectively as "Chandler.") Chandler obtained financing for the construction from Metro Bank and obtained building materials from Henderson's Building Supply Company, Inc. ("Henderson").[1] On March 22, 1991, Chandler executed a $125,000 mortgage to Metro Bank. On March 25, 1991, Chandler contracted with Henderson to supply materials for the construction of the commercial building. On that same date, Chandler received statutory notice of a lien filed by Henderson, and Chandler acknowledged that Henderson would be supplying materials for the construction of the commercial building and that Henderson claimed a lien on the real property on which the commercial building was situated. On March 26, 1991, Henderson began delivering the materials. On April 2, 1991, Metro Bank recorded the mortgage from Chandler in the probate office of St. Clair County in Pell City. Chandler defaulted on the payment to Henderson for the materials furnished and on the loan to Metro Bank. On July 26, 1991, within six months after furnishing materials and within the statutory period provided by law, Henderson filed a materialman's lien in the amount of $22,742.60 (the total due for materials delivered on March 26, 1991, and subsequently).
On August 2, 1991, Metro Bank sued Chandler on the promissory note. *340 Henderson moved to consolidate and to intervene in Metro Bank's suit against Chandler, claiming that its materialman's lien was superior to Metro Bank's mortgage lien. On January 21, 1992, the trial court entered a default judgment for Metro Bank and ordered the foreclosure and sale of the property. Henderson moved to set aside the trial court's order and to enjoin the foreclosure sale of the property pending a final determination of priority, because the trial court had entered judgment for Metro Bank without ruling on Henderson's motion to consolidate and intervene. The trial court determined that its order of January 21, 1992, would remain in effect except to the extent that it adjudicated the priority of the lien or liens on the real property owned by Chandler and on which Metro Bank held a mortgage; it granted Henderson's motion to intervene and to consolidate; and by consent of the parties, it enjoined the foreclosure sale of the property. Thereafter, the trial court held that Henderson's materialman's lien was prior to and senior to Metro Bank's mortgage lien to the extent of $17,500. Metro Bank appealed "from the order giving a $17,500 priority of lien on behalf of [Henderson]." We affirm.
Greene v. Thompson, 554 So. 2d 376, 379 (Ala.1989). (Citations omitted.) Section 35-11-211, which governs priority between construction mortgages and materialman's liens, reads in part as follows:
The date of the recording of a mortgage and the date of the furnishing of materials by the materialman control in determining the priority between the mortgage and the materialman's lien. Empire Home Loans, Inc. v. W. C. Bradley Co., 286 Ala. 449, 241 So. 2d 317 (1970); see, also, Southern Sash of Birmingham, Inc. v. City National Bank of Birmingham, 351 So. 2d 873 (Ala. 1977).
It is undisputed that Henderson complied with the requirements § 35-11-210 in creating the materialman's lien and that it perfected the lien according to § 35-11-213 and § 35-11-221. Because Henderson took these essential steps, its materialman's lien related back to March 26, 1991, when it provided the materials to Chandler. Therefore, Henderson's materialman's lien took priority over Metro Bank's mortgage lien that was recorded on April 2, 1991, which was after the commencement of the work.
Based on the foregoing, the trial court correctly held that Henderson's materialman's lien had priority over Metro Bank's mortgage lien.
We note Henderson's argument that the amount of the judgment entered in its favor should have been $31,239.98, instead of $17,500. Henderson did not challenge the $17,500 amount below, nor did it file a cross appeal. See Rule 4(a)(2), A.R.App.P.; McMillan, Ltd., v. Warrior Drilling & Engineering Co., 512 So. 2d 14 (Ala.1986). Therefore, that issue is not properly before us, and we pretermit any further discussion of it.
AFFIRMED.
HORNSBY, C.J., and MADDOX, SHORES and KENNEDY, JJ., concur.
[1] Metro Bank and Henderson are corporations with their principal offices in Pell City, Alabama. | January 22, 1993 |
0bdfe2ce-9d14-42ae-a9b7-87110bbb185b | Ex Parte Mobil Oil Corp. | 613 So. 2d 350 | 1920092 | Alabama | Alabama Supreme Court | 613 So. 2d 350 (1993)
Ex parte MOBIL OIL CORPORATION, et al.
(Re MOBIL OIL CORPORATION, et al. v. ANADRILL, INC.)
1920092.
Supreme Court of Alabama.
January 29, 1993.
*351 W. Dewitt Reams of Reams, Philips, Brooks, Schell, Gaston & Hudson, P.C., Mobile, and Lucian Gillis, Jr. of Drew, Eckl & Farnham, Atlanta, GA, for petitioners.
J.P. Courtney III and Thomas H. Benton, Jr. of Lyons, Pipes & Cook, P.C., Mobile, for respondent.
KENNEDY, Justice.
Mobil Oil Corporation, Mobil Oil Exploration and Producing Southeast, Inc., and Mobil Exploration and Producing Services United States, Inc. (collectively referred to as "Mobil") petition this Court to order the Circuit Court of Mobile County to limit discovery in a pending case to matters relevant to the one factual determination before the trial court.
The dispute underlying this petition has previously been before this Court. In Mobil Oil Corp. v. Schlumberger, 598 So. 2d 1341 (Ala.1992), Mobil appealed from a summary judgment in favor of Anadrill, Inc. (previously known as Anadrill Schlumberger). The issues concerned indemnity provisions in two separate agreements between Mobil and Anadrill. Mobil's claim for indemnity arose from a personal injury that occurred at Mobil's dock.
The facts set out in that opinion are as follows:
598 So. 2d at 1343.
Mobil filed a third-party complaint against Anadrill based on indemnity provisions in two separate agreements with Anadrill. Anadrill filed a motion for summary judgment, which was subsequently granted. Mobil appealed. On appeal, the issue was whether a 1971 agreement or a 1987 agreement between the parties was controlling and whether the indemnity clause in the controlling agreement required that Anadrill indemnify Mobil.
This Court stated:
598 So. 2d at 1346.
We reversed the summary judgment and remanded the case for a trial to determine whether Acme was a contractor of Anadrill or of Mobil. We subsequently denied rehearing.
*352 On remand, Anadrill moved to compel discovery, including answers to interrogatories and production of certain documents. Mobil requested a pretrial conference to discuss the discovery requests by Anadrill, arguing that many of the discovery requests involved issues already decided as a matter of law by this Supreme Court in Mobil Oil Corp. v. Schlumberger. Mobil argued that discovery should be limited and that certain issues were precluded from litigation. After hearing arguments from both parties, the trial court granted the motion to compel discovery on all the requests made by Anadrill and denied Mobil's motion to limit discovery and finding that no issues were precluded from litigation.
Anadrill argues in its brief that it is entitled to put before the jury the issues of which agreement applies and whether indemnity is required under the controlling agreement and it argues that full discovery should be granted. However, this argument is wholly without merit.
It is abundantly clear from our earlier opinion that the only issue to be determined at trial is whether Acme was a contractor of Anadrill or of Mobil. This Court determined, as a matter of law, that the 1987 agreement between the parties is controlling. This Court went so far as to "draw the parties a picture" of the sole issue to be determined at trial by stating, "If the jury determines that Acme was a contractor of Anadrill, then Anadrill must indemnify Mobil for the injuries to Lebouef. If the jury determines that Acme was a contractor of Mobil, then Mobil is not entitled to indemnity from Anadrill." 598 So. 2d at 1346. The opinion is unambiguous and can be interpreted only one way. This Court issued a definite and specific mandate to the trial court.
Trial courts are required to follow the mandates of appellate courts. Ex parte United States Fidelity & Guaranty Co., 585 So. 2d 922 (Ala.1991). On remand, a trial court is not free to reconsider issues finally decided by the appellate court and must comply with the appellate mandate. Auerbach v. Parker, 558 So. 2d 900 (Ala. 1989), citing Erbe v. Eady, 447 So. 2d 778 (Ala.Civ.App.1984). If a trial court fails to comply with an appellate court's mandate, mandamus will lie to compel compliance. Ex parte Alabama Power Co., 431 So. 2d 151 (Ala.1983).
Based on the foregoing, we grant Mobil's petition for the writ of mandamus and order the circuit court to limit discovery to information relevant to, or reasonably calculated to lead to admissible evidence pertaining to, the sole issue before the trial courtwhether Acme was a contractor of Anadrill or of Mobil.
WRIT GRANTED.
HORNSBY, C.J., and MADDOX, SHORES and HOUSTON, JJ., concur. | January 29, 1993 |
f3da7e0c-c25c-4c89-8650-a114eaec3077 | Bagwell v. Powell | 99 So. 2d 195 | N/A | Alabama | Alabama Supreme Court | 99 So. 2d 195 (1957)
Imogene BAGWELL et al.
v.
Arthur Lee POWELL.
4 Div. 943.
Supreme Court of Alabama.
December 19, 1957.
*196 Alto V. Lee, III, and Huey D. McInish, Dothan, for appellants.
J. Theodore Jackson, Dothan, for appellee.
PER CURIAM.
Respondents in a bill in equity bring this appeal from a final decree providing for complainant's visitation with twin boys of whom complainant is the putative father: said twins having been born out of wedlock.
The case was heard on the pleadings and evidence of witnesses examined ore tenus in open court. That evidence is not in the recordfor what reason we do not know. So that, the review must be based on the assumption that the evidence supports the facts found by the court as set out in the decree. We quote the finding and decree, as follows:
Reliance is had by appellants on the case of Baugh v. Maddox, Ala., 95 So. 2d 268, which was a suit in equity brought in the name of a bastard child by his next friend against the putative father seeking provision for support. The respondent had been adjudged to be the father of the child in a bastardy proceeding as provided in Title 6, section 1 et seq., Code, and provision was made for the payment of $100 annually for ten years for the child's support. But it was alleged that such amount was wholly inadequate for his support, maintenance and education. The denial of relief was based on the theory that there was no legal duty on the part of the father to support a bastard child except as expressly provided by statute; and that the bastardy proceeding above mentioned is the only statutory provision. Therefore, the provision there made must measure the child's right to support from the putative father.
Of course that case is based upon the status which then existed. It had no reference to one where the putative father had legitimated the child as provided in Title 27, section 11, Code. A compliance with that statute results in rendering the child capable of inheriting the estate of the adopting parent as if the child had been born in wedlock. We think the inference is clear that when the statute is complied with the child not only is capable of inheriting as a legitimate child would, but such putative father puts himself in the attitude of a legitimate parent with respect to the child's maintenance and support. It is a public declaration which cannot be denied. There are only two procedures which serve to legitimate a bastard and make him capable of inheriting from his father. They are section 10, Title 27, Code, by the putative father marrying the mother and recognizing his paternity of the child; and pursuing the course provided for in section 11, Title 27, supra. Lingen v. Lingen, 45 Ala. 410.
The authorities hold, as expressed in 10 C.J.S. Bastards § 17, p. 84, that "a father has a legal right to reasonable access to his bastard child, where he contributes to its support, and there is no showing that such right would be detrimental to the child's best interests". Baker v. Baker, 81 N.J.Eq. 135, 85 A. 816; Strong v. Owens, 91 Cal. App. 2d 336, 205 P.2d 48.
But this right of visitation by the putative father should not be dependent upon evidence of actual support and maintenance unless there is a failure or refusal to do so on demand. It is not always so conditioned. Ex parte Hendrix, 186 Okl. 712, 100 P.2d 444.
It appears that these children were born on March 5, 1957. This bill was filed August 9, 1957. No question of a failure *198 or refusal to support seems to have been presented. Complainant alleges in the bill that he stands ready, able and willing to support the children. We think there is a duty to support arising out of the legitimation proceeding discussed above. On the facts as found by the trial court appellee is entitled to visit the children but he should not be the judge of the details incident thereto. There should be an order of court fixing reasonable and regular intervals and other details for such visitation. Ex parte Hendrix, supra.
Appellants' answer alleges in substance that appellee seeks to use a decree of the court permitting visitation by him as an excuse to gain an opportunity to disrupt the peace and tranquility of the life of the mother and of her present husband; and that it will have such a tendency. There is some merit in that contention. We think the generality of the decree of the court should be modified so it will not be left to appellee to decide when it would be reasonable and appropriate for the visitation to occur, the place where and the length of time it should continue. The court should determine those details subject to change to meet changed conditions which may arise.
The decree of the trial court should be reversed and the cause remanded with instructions that the decree conform to the foregoing directions.
The foregoing opinion was prepared by FOSTER, Supernumerary Justice of this Court, while serving on it at the request of the Chief Justice under authority of Title 13, section 32, Code, and was adopted by the Court as its opinion.
Reversed and remanded with instructions.
LIVINGSTON, C. J., and LAWSON, MERRILL and COLEMAN, JJ., concur. | December 19, 1957 |
32f23b35-f5c0-47b4-90f8-3458a370b360 | OCCIDENTAL LIFE INSURANCE COMPANY OF CAL. v. Nichols | 97 So. 2d 879 | N/A | Alabama | Alabama Supreme Court | 97 So. 2d 879 (1957)
OCCIDENTAL LIFE INSURANCE COMPANY OF CALIFORNIA
v.
Fred W. NICHOLS.
6 Div. 772.
Supreme Court of Alabama.
October 31, 1957.
*881 Spain, Gillon & Young, Frank M. Young and S. R. Starnes, Birmingham, for appellant.
Sirote, Permutt, Friend & Friedman, Birmingham, for appellee.
GOODWYN, Justice.
Appellee, Fred W. Nichols, brought suit against appellant, Occidental Life Insurance Company of California, to recover disability benefits ($350 per month for two months) and return of a premium paid ($1,213.80) as provided for in a policy of insurance issued to him by the appellant. A jury verdict was rendered in favor of plaintiff and a judgment thereon was duly entered. The defendant's motion for a new trial being overruled, it brought this appeal.
The policy sued on provides for payment of $35,000 on death of the insured and disability benefits of $350 per month for permanent and total disability. There is a provision in the policy that a disability shall be considered permanent and total after it has continued for four months, with no benefits being allowed for the first four months. The claim in this suit is for two months' disability following the four months' waiting period.
The complaint, as last amended, consisted only of Count A, which will be set out in the report of the case. Defendant's demurrer to the amended complaint being overruled, it entered a plea in short by consent. The primary defenses relied on were the general issue and fraud and misrepresentation on the part of plaintiff in his application for the insurance.
The principal factual issue revolves around the answer to a question in the application. Plaintiff answered "No" to the following question: "Have you ever had any of the following diseases or symptoms? * * * Mental derangement or any nervous disease?" The evidence discloses that he had been confined to a hospital in Birmingham on two separate occasions in 1938. The original diagnosis by his doctor at that time showed that he was suffering from manic depressive psychosis, a mental disease. *882 However, some time thereafter, the doctor changed his diagnosis to "an anxiety reaction," terming it a "gastric neurosis." There is a conflict in the evidence as to when this was done and as to whether it was properly made. Apparently, the jury believed the change was made other than for purposes of the trial.
There was conflicting medical testimony as to the symptoms of manic depressive psychosis, how closely these symptoms matched those of plaintiff during his 1938 illness, and as to the probability of recurrence of the disease.
There is no evidence that plaintiff knew, prior to the trial, that he had ever been diagnosed as suffering from manic depressive psychosis. He testified he had been told by his doctor that the 1938 illness was hyperinsulinism.
Subsequent to that illness, plaintiff applied for and received several policies of insurance from other companies, all of which were introduced in evidence in this case. In applications for the earlier of these other policies plaintiff answered questions to the effect that he had had a nervous disorder in 1938. In this connection, it was stipulated by defendant that prior to receipt of plaintiff's application, it was in possession of coded information furnished it by the Medical Information Bureau on August 18, 1943, that plaintiff had, within "3-4-5 years" prior to that time, suffered an attack of "neurasthenia or nervous prostration"; and that "this information was in the knowledge of the defendant company at the time the defendant's policy number 2505161 [the policy sued on] was issued." It was also virtually uncontroverted that plaintiff's 1952 illness had no relation to that in 1938.
From the summer of 1952, and into the winter of the following year, plaintiff was in several hospitals and received treatment from several doctors. He suffered severe headaches, throat aches, some fever, stomach cramps, loss of appetite, loss of weight, diarrhea and muscle wasting. It appears to be undisputed that he was permanently and totally disabled during this period and that, unless the claimed misrepresentation by him is a bar to recovery, he is due the disability payments sought in this suit.
A doctor for defendant examined plaintiff prior to and in connection with issuance of the policy involved in this case. In filling out the part of the application dealing with plaintiff's medical history the doctor took information from prior examination records which he had made in connection with his examination of plaintiff for insurance with other companies. Those records did not disclose any prior nervous or mental disease. Plaintiff signed the application but did not read it.
Defendant demurred to the complaint taking the point, among others, that it does not show plaintiff was permanently totally disabled as the result of an accident or disease. The argument is that the policy provides for disability payments during "permanent total disability of the insured" while the complaint alleges only "that plaintiff became so totally disabled on, to-wit, July 4, 1952 so as to be wholly unable to engage in any occupation and perform any work for compensation or profit and the plaintiff was continuously so totally disabled during the months of to-wit, July, August, September, October, November, December of 1952 and the first part of January, 1953."
It seems to us, from a consideration of all the allegations of Count A, that it sufficiently alleges the insured's permanent total disability. It first sets out that the insurer agreed to pay a monthly income to the plaintiff "if the plaintiff * * * should become permanently and totally disabled as the result of injury or disease so as to be wholly unable to engage in any occupation or to perform any work for compensation or profit." It then alleges that the policy provides "that such total disability shall be presumed to be permanent *883 after the plaintiff has been continuously totally disabled for not less than four (4) months and was during all that period wholly prevented from engaging in any occupation or performing any work for compensation or profit by cause or causes other than death." It then alleges that "plaintiff became so totally disabled on, to-wit, July 4, 1952 so as to be wholly unable to engage in any occupation and perform any work for compensation or profit and the plaintiff was continuously so totally disabled during the months of to-wit, July, August, September, October, November, December of 1952 and the first part of January 1953."
There seems to be no question about the right to disability benefits under the policy being dependent upon the insured's permanent total disability nor that the complaint must show that insured is permanently totally disabled, within the meaning of those terms as used in the policy. It is our view that Count A sufficiently alleges the insured's permanent total disability. The policy expressly provides that a total disability shall be presumed to be permanent after a continuous total disability for not less than four months. The complaint alleges that plaintiff was "so totally disabled" for more than the prescribed four months, thus effectively alleging, in accordance with the terms of the policy itself, facts showing a permanent total disability. As already noted, the complaint seeks payment for only two months of the period of disability, the first four months being excluded by an express provision of the policy.
Another insistence is that Count A is defective because it does not contain an allegation that the policy sued on is the "property of the plaintiff." The argument is that Form 12 of § 223, Tit. 7, Code 1940, calls for such allegation. Form 12 prescribes a form of complaint on a policy of life insurance brought by one after the death of the insured. There is no specific Code form for a complaint on a disability insurance contract. And we do not think it essential that the complaint in this type case allege that the policy sued on is the property of the plaintiff. Such allegation would appear to be superfluous. In this connection it is to be noted that Forms 13 and 14, prescribing forms of complaint in suits on policies of fire and marine insurance brought by the insured himself, as in the case before us, makes no requirement of an allegation of ownership of the policy by the plaintiff-insured. We do not think good pleading requires such an allegation in the instant case.
No error was committed in overruling the demurrer on the grounds here insisted on.
The primary question presented on the merits relates to the effect on the case of § 6, Tit. 28, Code 1940, which provides as follows:
We do not understand defendant to insist here that the claimed misrepresentation was made with actual intent to deceive. Even if so, there was ample evidence to support the jury's finding that there was no such intent.
The issue, then, is whether the withholding of the information that plaintiff had had either manic depressive psychosis or a nervous disease in 1938 increased the risk of loss, within the meaning of § 6, Tit. 28, supra. As we see it, this phase of the case boils down to this: If plaintiff had manic depressive psychosis in 1938, the question for decision would be whether that fact increased the risk of *884 loss. On the other hand, if it was a jury question whether he had that disease, and the jury found he did not, then there would be no occasion to decide whether such condition increased the risk of loss. It seems clear to us that, under the evidence, it was a factual issue, for the jury's determination, as to whether plaintiff suffered from manic depressive psychosis in 1938. In arriving at their verdict for the plaintiff the jury must have concluded that he was not suffering from that disease in 1938. As to plaintiff's nervous condition, we do not see how defendant can claim that it increased the risk of loss in view of defendant's admitted knowledge of such condition.
As already noted, the trial court denied defendant's motion for a new trial. In this situation, the established rule of review is thus stated in Smith v. Smith, 254 Ala. 404, 408, 48 So. 2d 546, 548:
In the light of this rule, we find no basis for reversing the cause on the ground that the verdict was against the great weight of the evidence.
It is insisted that error was committed in allowing plaintiff to testify, over defendant's objection, as to disclosures he made to the insurance broker, who handled the insurance policy here involved, concerning plaintiff's previous medical history. The import of the testimony was that plaintiff, before issuance of the policy, told the broker of his nervous condition in 1938. The argument is that the broker was the agent of plaintiff and not the defendant and, for this reason, it was improper to admit such evidence. At the conclusion of the oral testimony the defendant stipulated, as already noted, it had knowledge that plaintiff was suffering from a nervous disorder in 1938. In view of that, it seems to us to be immaterial whether the broker was plaintiff's agent or defendant's agent. If he was defendant's agent the evidence was clearly admissible. If the plaintiff's agent, it was not properly admitted; but, in view of defendant's stipulation, it was error without injury. Rule 45, Revised Rules of the Supreme Court, Code 1940, Tit. 7, Appendix, Pocket Part; 261 Ala. XIX, XXXVII.
Another insistence is that it was error to admit in evidence a photograph of plaintiff taken during his 1952 illness. The picture shows him sitting in a chair with a towel across the middle part of his body. It illustrates the loss of weight and muscle wasting incident to his illness. Defendant claims it was offered solely to arouse the sympathy of the jury.
The basis of plaintiff's claim is his permanent total disability. Defendant's plea of the general issue, in short by consent, controverted the allegations of the complaint showing such disability. Thus, one of the principal issues was whether plaintiff was in fact so disabled. Plaintiff contends that the photograph was material and relevant on this controverted issue. We agree. Bearing on plaintiff's disability *885 was the fact that he had lost considerable weight and had suffered from muscle wasting. Although the photograph may be regarded as being cumulative, it nevertheless shed some light upon a material inquiry. See Birmingham Electric Co. v. McQueen, 253 Ala. 395, 400, 44 So. 2d 598; Harris v. Snider, 223 Ala. 94, 96, 134 So. 807; Birmingham Baptist Hospital v. Blackwell, 221 Ala. 225, 227, 128 So. 389. We have examined the photograph, sent up for our inspection, and do not think it was improperly received in evidence.
Another assignment of error relates to the admission of testimony by plaintiff to the effect that, subsequent to 1938, he had never attempted to commit suicide. The question followed other inquiries tending to establish that plaintiff had fully recovered from his 1938 illness and that no symptoms of manic depressive psychosis had evidenced themselves subsequent to 1938 and up to the time of the trial. Prior to the question under review there was medical testimony that manic depressive psychosis is "frequently accompanied by suicidal tendencies."
The insistence is that the testimony objected to is within what is commonly known in this state as the "rule of exclusion," that is, a witness, whether a party to the cause or not, may not testify as to his uncommunicated intent, purpose or motive. See Pyles v. State, 262 Ala. 1, 2, 78 So. 2d 816; Hardie v. State, 260 Ala. 75, 79-80, 68 So. 2d 35; Cooke v. Embry, 219 Ala. 623, 626, 123 So. 27; Alabama Power Co. v. Edwards, 219 Ala. 162, 166, 121 So. 543; Western Union Tel. Co. v. Tatum, 35 Ala.App. 478, 482-483, 49 So. 2d 673, certiorari denied 255 Ala. 13, 49 So. 2d 678; McElroy, "Admissibility, in Alabama, of a Witness' Testimony to His Own Intent or Other State of Mind", 1 Ala. Lawyer 221. We do not think this testimony falls within the rule. It seems to us that an attempt to commit suicide is essentially factual. An "attempt" is thus defined in 7 C.J.S., Attempt, p. 688, viz.:
In Jackson v. State, 91 Ala. 55, 56, 8 So. 773, 24 Am.St.Rep. 860, cited to the foregoing text, it is said:
Black's Law Dictionary, 4th Ed., p. 162, defines "attempt" as follows:
In Webster's New International Dictionary, Second Ed., it is said that to attempt to do something is "to try; to endeavor to do or perform."
We do not think it was error to permit plaintiff to testify that he had not attempted to commit suicide.
Appellant charges the trial court with error in sustaining plaintiff's objection to the following question directed to Dr. *886 Ward, one of defendant's medical witnesses, viz.:
Aside from any other ground thought to be sustentive of the trial court's ruling, it seems to us that the question is rather involved and confusing, and, for this reason, if there be no other, the trial court should not be put in error for sustaining the general objection thereto.
During the examination by plaintiff of one of his medical witnesses the following occurred:
The overruling of defendant's objection to the foregoing question is assigned as error. It seems to us that the statement made by the trial court in ruling on the objection is sufficient answer to the claimed error. It is common knowledge that people change their minds and that doctors sometimes have occasion to change their diagnoses. If there was any error in admitting such testimony it was harmless. Rule 45, Rules of Practice in the Supreme Court, Code 1940, Tit. 7, Appendix; Rule 45, Revised Rules of the Supreme Court, Code 1940, Tit. 7, Cumulative Pocket Part, 261 Ala. XIX, XXXVII.
Several of the assignments of error relate to the overruling of defendant's objections to portions of plaintiff's attorney's argument to the jury. We have carefully considered these assignments of error and are not persuaded that error to reverse can properly be rested thereon. Much must be left, in the matter of an attorney's argument, to the enlightened judgment of the trial court, with presumptions in favor of its rulings. To justify a reversal we must conclude that substantial prejudice has resulted. In the light of the record as a whole, and the general tenor of the trial, we cannot say that substantial prejudice to the defendant resulted from the portions of the argument objected to. Adams v. Queen Ins. Co. of America, 264 Ala. 572, 580, 88 So. 2d 331; Birmingham News Co. v. Payne, 230 Ala. 524, 528, 162 So. 116; Birmingham Electric Co. v. Mann, 226 Ala. 379, 381, 147 So. 165. As said in Alabama Great Southern Railroad Co. v. Gambrell, 262 Ala. 290, 295, 78 So. 2d 619, 622:
The defendant offered in evidence the following passages from a standard medical book:
Plaintiff's objection to this evidence was sustained. That ruling is assigned as error.
We entertain the view that this was a matter within the trial court's sound discretion and that a reversal cannot be based on such ruling. The applicable principle is thus stated in 31 C.J.S. Evidence §§ 158, 159, pp. 866, 868:
The rule is thus stated in Sorrell v. Scheuer, 209 Ala. 268, 269, 96 So. 216, 217:
Finding no error to reverse, the judgment appealed from is due to be, and is, affirmed.
Affirmed.
LIVINGSTON, C. J., and SIMPSON and COLEMAN, JJ., concur. | October 31, 1957 |
95b40436-8183-404e-b734-5cdfa45112f7 | Ryan v. First Alabama Bank | 620 So. 2d 568 | 1910485, 1910943, 1911092 | Alabama | Alabama Supreme Court | 620 So. 2d 568 (1993)
Robert T. RYAN and Elizabeth W. Ryan
v.
FIRST ALABAMA BANK.
Roy L. WILSON and Jan Wilson
v.
FIRST ALABAMA BANK.
DON HOGUE HOMEBUILDERS, INC.
v.
FIRST ALABAMA BANK.
1910485, 1910943 and 1911092.
Supreme Court of Alabama.
February 19, 1993.
Rehearing Denied April 9, 1993.
*569 Edward L. Hardin, Jr. and Maston E. Martin, Jr. of Hardin Tucker & Martin, Birmingham, for appellants Robert T. Ryan and Elizabeth W. Ryan and Roy L. Wilson and Jan Wilson.
Donald H. Brockway, Jr., Birmingham, for appellant Don Hogue Homebuilders, Inc.
Joseph W. Mathews, Jr. and R. Alan Deer of Lange, Simpson, Robinson & Somerville, Birmingham, for appellee First Alabama Bank.
Rehearing Denied in 1910943 and 1911092 April 9, 1993.
PER CURIAM.
The appeal of the plaintiffs Roy and Jan Wilson (1910943), has been consolidated with the appeal of the plaintiffs Robert T. and Elizabeth W. Ryan (1910485), on motion of the Ryans. Both of these appeals are from a summary judgment in favor of the defendant, First Alabama Bank, as is that of the plaintiff Don Hogue Homebuilders, Inc. ("Hogue Builders") (1911092), whose appeal we shall address with the Wilson and Ryan cases, for purposes of review.
The plaintiffs purchased lots from a real estate developer. The developer had promised the plaintiffs that he would satisfy the indebtedness and obtain releases on the lots from a First Alabama mortgage on the development, but did not do so. The plaintiffs lost their lots when First Alabama later foreclosed on the developer's mortgage.
The records in the Wilson and Hogue Builders cases indicate the following additional and more specific facts pertinent to an understanding of these appeals.
James Davenport, a real estate developer, sought to develop a parcel of property into a residential subdivision, operating through Longleaf, Inc. The centerpiece of the Longleaf development was to be the Bissell House, a house already located on the parcel. The Bissell House, including its grounds, had been appraised at $1,010,000. It represented a substantial portion of the value of the parcel as a whole.
It was First Alabama's policy to require a current appraisal on properties like the parcel Davenport wanted to develop through Longleaf before lending money on them. Also, it was First Alabama's policy that its maximum loan amount for any such property would not exceed 75% of the value of the property.
Davenport sought financing for the Longleaf project in the spring of 1988, from First Alabama. First Alabama approved the Longleaf loan to Davenport for $3.5 million, without an appraisal on the parcel, and in an amount in excess of 75% of the value of the property as approximated by Davenport. Alford Sinclair, a banking expert who testified by affidavit for the Wilsons, stated that the approval of the Longleaf loan was not only contrary to First Alabama's own policies, but contrary to responsible banking practices.
This loan was recommended by Charles Watkins, as senior real estate loan officer at First Alabama, and was accepted by three First Alabama loan committees.
The records suggest that Davenport was a poor financial risk. The records also indicate that First Alabama had knowledge of his financial position. Both before and after the loan transaction with First Alabama, First Alabama was engaged in monitoring Davenport's First Alabama checking account activity for suspected check kiting. In addition, Davenport was frequently overdrawn on his First Alabama account. According to the records, Watkins was *570 aware of this recurring problem with Davenport and, indeed, often discussed the problem with him.
Watkins of First Alabama and Davenport had considerable other involvement, both before and after the loan transaction. For example, the flight log for Davenport's private airplane reflects that Watkins was a guest on Davenport's plane for a dozen trips between September 1987 and February 1989. The records indicate that in 1988, Watkins received a Rolex wristwatch from Davenport, and that Watkins received three cash payments totalling $8000 as purported fees from Davenport, allegedly for Watkins's advice on where to position some houses in another Davenport development. Watkins was a guest in Davenport's private box at Auburn University home football games in 1987 or 1988, and often during the late 1980's was a guest at Davenport's Gulf Coast condominium. In addition, Davenport helped finance out-of-state golf and hunting excursions for Watkins.
The records further indicate that First Alabama's president, William Jordan, and other First Alabama employees were aware of some of the trips Watkins had taken with Davenport's aid or as his guest.
In December 1988, months after the Longleaf loan transaction, Davenport sold the Bissell House property of the development for $400,000, a more than 60% loss, given the $1,010,000 appraisal. Despite the serious reduction in its security interest on the Longleaf development that this would represent, Watkins approved a release of the Longleaf mortgage as to the Bissell House property in exchange for a $400,000 payment to First Alabama on the Longleaf loan.
Also, by multiple transfers totalling nearly $400,000 of the Longleaf loan proceeds, money was diverted by Davenport to Davenport Companies, Inc. The records indicate that Watkins was aware of these transfers and that the Longleaf loan agreement provided that the Longleaf loan proceeds were to be used only for the Longleaf project. Watkins testified that Davenport Companies, Inc., did "very little" work on the Longleaf project.
In March 1989, Davenport met with Watkins to discuss Davenport's cash flow problems. During the same month, Davenport defaulted on the Longleaf loan. First Alabama did not foreclose.
Davenport testified that he spoke with Watkins a couple of times a week regarding contracts that he had in hand for the sale of Longleaf lots. Regarding such contracts, in May 1989 Davenport executed a sales contract for a Longleaf lot with the Ryans for $110,000, and one with the Wilsons for $100,000. The plaintiffs allege that as to these lots, and as to a lot later sold to Hogue Builders for $120,000, Davenport promised that he would obtain a release of each lot from the Longleaf mortgage. They also allege that Davenport promised to pay the proceeds of these sales to First Alabama on the Longleaf loan in an amount representing the value of First Alabama's security interest in the lots.
The Wilson, Ryan, and Hogue Builders transactions were all closed in-house by Davenport between June 5, 1989, and June 12, 1989. These buyers were given warranty deeds. The records indicate that Watkins was aware that Davenport was closing loans in-house.
In July 1989, an attorney for other purchasers of a Davenport property wrote to First Alabama. That attorney notified First Alabama that Davenport had sold his clients property on the misrepresentation that he would satisfy a First Alabama mortgage applicable to that property and would obtain a release from the mortgage (which he did not do).
By a letter dated July 31, 1989, counsel for First Alabama notified Davenport that First Alabama was aware of similar irregularities in the sale of yet another Davenport property.
It appears from the records that Davenport would sometimes take proceeds from the sale of a lot and, rather than paying the proceeds to First Alabama to obtain a release of the lot, would direct the proceeds toward other debts. Eventually, the Wilsons, the Ryans, and Hogue Builders discovered that Davenport had never satisfied *571 the indebtedness specific to their lots and that, accordingly, no releases had been obtained.
However, during July and August 1989 Davenport paid approximately $650,000 on various First Alabama loans.
On August 9, 1989, Davenport met with Watkins and counsel for First Alabama regarding his selling lots without obtaining releases. On that day, Davenport also wrote to Watkins, stressing his recent $650,000 in payments and asking Watkins's patience while he tried to work everything out. Davenport said: "[P]lease bear with me and allow me to function in the community so that we might all come out whole."
Approximately four months passed. Until December 1989, First Alabama did not report Davenport's activity to authorities. Until November 1989, First Alabama had continued to do business with Davenport. Thereafter, as the First Alabama and Davenport relationship soured, First Alabama instituted foreclosure action on the Wilson, Ryan, and Hogue Builders lots.
The Ryans, the Wilsons, and Hogue Builders all sued First Alabama, alleging that the relationship between First Alabama and Davenport as to Longleaf was such that First Alabama was liable to them for the loss of their purchase money. They made claims based, in pertinent part, on theories of breach of contract, negligence, and a civil conspiracy to defraud. The trial court granted First Alabama's motions for summary judgment against the Wilsons and Hogue Builders.
A final judgment was entered against the Ryans on a Rule 12(b)(6), Ala. R.Civ.P., motion by First Alabama, which the trial court, sua sponte, treated as a motion for summary judgment. However, the Ryans state, and the record reveals, that they were given no notice by the trial court that it intended to treat First Alabama's motion to dismiss as a motion for summary judgment. This failure to give notice is prejudicial and reversible error. Hales v. First Nat'l Bank of Mobile, 380 So. 2d 797 (Ala.1980).
As to the remaining issues, the arguments of Hogue Builders mirror those of the Wilsons, just as, in pertinent part, the Hogue Builders record mirrors the Wilson record. Therefore, we need not address these arguments separately. We will discuss these issues as they are ably examined by the Wilsons and First Alabama, but our discussion shall have equal applicability to Hogue Builders.
As to the breach of contract and negligence claims, we agree with First Alabama that the trial court ruled correctly in the Wilson and Hogue Builders cases. First Alabama made a prima facie showing that there was no genuine issue of material fact as to those claims and that it was entitled to a judgment as a matter of law as to those claims, and the Wilsons and Hogue Builders did not rebut that showing. A summary judgment is appropriate where there is no genuine issue of material fact and the movant is entitled to a judgment as a matter of law. Ala.R.Civ.P. 56(c). Accordingly, the summary judgments were proper as to those claims.
One moving for summary judgment has the burden of showing, prima facie, that there is no genuine issue of material fact. Schoen v. Gulledge, 481 So. 2d 1094 (Ala. 1985). If the movant makes such a showing, then the burden shifts to the nonmovant to demonstrate, by "substantial evidence," the existence of an issue of material fact. Id.; § 12-21-12, Ala.Code 1975. Substantial evidence is "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala.1989).
Our review of such a judgment is de novo. Hightower & Co. v. United States Fidelity & Guar. Co., 527 So. 2d 698 (Ala. 1988). Moreover, in examining the question of whether the nonmovant has rebutted a prima facie showing of the absence of a genuine issue of material fact, we must review the evidence in a light most favorable to the nonmovant, resolving all reasonable doubts against the movant.
As to their claim of breach of contract, the Wilsons assert that Davenport was merely an instrumentality of First Alabama. *572 Therefore, they say, First Alabama is an imputed party to their real estate sales contract with Davenport. They aver that this contract was breached.
However, after thoroughly reviewing the record in the Wilson case, we are unpersuaded by the Wilsons' arguments that one could reasonably infer from the evidence that Davenport was merely an instrumentality of First Alabama in the real estate contract transaction. See Twine v. Liberty Nat'l Life Ins. Co., 294 Ala. 43, 311 So. 2d 299 (1975); North Carolina Mut. Life Ins. Co. v. Holley, 533 So. 2d 497 (Ala.1987) (discussing the relationships required between parties in order for one to maintain a lawsuit for breach of contract). Accordingly, we hold that the trial court properly entered a summary judgment on the Wilson contract claims.
On the negligence claim, the Wilsons argue that First Alabama, through Watkins, was violating a state banking statute, Ala. Code 1975, § 5-6A-22, which prohibits the acceptance of bribes by bank officials. The Wilsons state that First Alabama was negligent per se, because, they say, Watkins was violating this provision. Without suggesting that Watkins was or was not violating the provision, we disagree.
Section 5-6A-22 provides, in pertinent part:
A critical element of negligence per se is that the statute violated have been enacted to protect a class of persons that includes the litigant. Fox v. Bartholf, 374 So. 2d 294, 295 (Ala.1979). Here, it is evident that the statutory language alleged to have been violated was intended to protect, for example, depositors who can be harmed by "bad loans" that might be induced by bribes, because such loans can lead to bank failures. Clearly, this provision does not exist to protect a person from buying encumbered property on the untruthful promise that the encumbrance would later be removed. Moreover, such a person is not brought within the class protected by this language simply because the encumbrance in question is security on what turns out to be a bad loan.
In sum, we affirm the summary judgments in the Wilson and Hogue Builders cases (1910943 and 1911092) as to the negligence and breach of contract claims. We reverse the summary judgment in the Ryan case (1910485) in toto. This leaves for our resolution the Wilson and Hogue Builders civil conspiracy claims; on these claims, we reverse.
The crux of the fraud allegations on the conspiracy claims of the Wilsons and Hogue Builders is that their money was taken on false pretenses, effectively stolenthat it was not paid to First Alabama to secure the release of their lots as promised.
The Wilsons allege that First Alabama acted in conjunction with Davenport in order that the plaintiffs' money would be fraudulently diverted to the benefit of Davenport and First Alabama and that First Alabama was a conspirator in Davenport's fraud.
The judge in the Wilson case stated that, seemingly, "[the] plaintiff makes a showing of some species of culpability on the part of [First Alabama]." He went on to conclude, however, that the "court can find no authority" upon which the Wilsons would be entitled to relief.[1]
This latter statement sums up the position of First Alabama. It argues essentially, that even if a factfinder resolves every allegation in favor of the plaintiffs, they still cannot prevail, because, as a matter of law, First Alabama says, it had no *573 legal duty to them. We disagree. For example, as to the Wilsons and Hogue Builders, First Alabama was clearly under a legal duty not to knowingly aid Davenport in a fraudulent diversion of the purchase money so that it was not used to obtain a release of their lots; not to knowingly receive money stolen from the Wilsons and Hogue Builders; and not to alienate any money so stolen to its and Davenport's benefit.
A civil conspiracy is a combination of two or more persons to accomplish an unlawful end or to accomplish a lawful end by unlawful means. Eidson v. Olin Corp., 527 So. 2d 1283 (Ala.1988). The conspiracy does not supply the cause of action. It is the end of the conspiracy, the wrong sought, that is the gist of the action. Tapscott v. Fowler, 437 So. 2d 116 (Ala.1983).
Recall that during July and August 1989, First Alabama accepted from Davenport payments totalling approximately $650,000. The Wilsons and Hogue Builders had paid for their lots in June 1989. Viewed most favorably to the Wilsons and Hogue Builders, the record suggests that their purchase money, which was supposed to have been used to secure the release of their lots, was held by Davenport and that it later constituted part of the $650,000 payments to First Alabama. There is also evidence from which one could reasonably infer that at the time of the payments in July and August, First Alabama had actual knowledge that it was accepting monies that had been, in effect, stolen, and that it accepted these monies to render itself a benefit by reducing the Longleaf indebtedness, at the plaintiffs' expense. Davenport enjoyed a reduction in his debts, and First Alabama enjoyed a repayment of Davenport's debts while retaining a security interest in the Wilson and Hogue Builders lots.
We conclude that this evidence constituted substantial evidence in support of their conspiracy claims. Therefore, the summary judgment was not proper on the conspiracy claims in the Wilson and Hogue Builders cases.
Because we so hold, it is not necessary for us to address other additional evidence on these conspiracy claims discussed by the Wilsons and Hogue Builders, although that evidence may be relevant at trial.
1910485 REVERSED AND REMANDED.
1910943 AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
1911092 AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
SHORES and KENNEDY, JJ., concur.
HORNSBY, C.J., and ADAMS and INGRAM, JJ., concur in the result.
[1] Indeed, the Wilson and Hogue Builders cases present peculiar (and complex) factual situations, making them difficult to categorize in terms of a cause of action. They also present situations in which the plaintiffs' own actions can obscure potential liability by First Alabama; the plaintiffs exhibited very poor judgment in a transaction of some magnitude. The record indicates, for example, that although the Wilsons were aware of Davenport's financial difficulties, none of the checks they tendered as payment for the purchase of their lot named First Alabama as a payee. Apparently none of the plaintiffs made prompt efforts to determine whether, in fact, Davenport had obtained a release of their lot from the First Alabama mortgage. There is no evidence to suggest that any of the plaintiffs sought professional advice or assistance in these transactions, but relied on Davenport to close these sales.
The Wilsons also have the unsavory distinction of having had the purchase price for their lot untruthfully inflated by $30,000 on their deed and closing statement. First Alabama discusses related matters that suggest that this was part of an effort by Mr. Wilson to unlawfully reduce the Wilsons' future tax liability. | February 19, 1993 |
12150ec7-64f0-43f3-aaf0-c300d11c26a1 | Ex Parte Bronner | 623 So. 2d 296 | 1911014, 1911016 | Alabama | Alabama Supreme Court | 623 So. 2d 296 (1993)
Ex parte David G. BRONNER, et al.
(Re David G. BRONNER, et al. v. David AVANT.)
Ex parte David AVANT.
(Re David G. BRONNER, et al. v. David AVANT.)
1911014, 1911016.
Supreme Court of Alabama.
January 15, 1993.
Rehearing Denied March 5, 1993.
William T. Stephens, Montgomery, for petitioners/cross-respondents.
*297 Robin G. Laurie of Balch & Bingham, Montgomery, for respondent/cross-petitioner.
PER CURIAM.
We granted certiorari review in this case concerning retirement credit for part-time legislative employees in order to determine whether the Court of Civil Appeals erred in upholding Act No. 89-800, 1989 Ala.Acts, codified as §§ 36-27-100 to -103, Ala.Code 1975 (Cum.Supp.1989), and in its interpretation of Act. No 89-915, codified as § 36-27-53. We affirm in part (as to Act No. 89-800), reverse in part (as to Act No. 89-915), and remand.
David Avant, a part-time legislative employee of the State of Alabama, sought retirement credit in the Employees' Retirement System ("ERS") under Act. No. 89-800 and Act. No 89-915 for his part-time work. The ERS's Board of Control denied Avant's request to purchase retirement credit until the constitutionality of Act No. 89-800 could be judicially determined. Act No. 89-800 allows certain part-time legislative employees to purchase retirement credit in addition to the credit they already had, by paying specified amounts to the ERS.
The Board of Control directed its general counsel to seek a judgment declaring Act No. 89-800 unconstitutional, and the Board filed a complaint in the Circuit Court of Montgomery County, on December 12, 1989. Avant counterclaimed, seeking to be allowed to purchase additional retirement credit under Act No. 89-915 for service for which he already had retirement credit.
Judge Joseph D. Phelps held a nonjury trial on June 7, 1990. The parties stipulated as to certain facts. In an order entered December 19, 1990, Judge Phelps held that Act No. 89-800 did not violate the equal protection provisions of the state and federal constitutions, because, he concluded, it furthered the legitimate government purpose of aiding in the employment of part-time legislative employees. He also ruled that Avant was entitled to buy the retirement credit he sought under Act. No. 89-915.
The Board of Control appealed to the Court of Civil Appeals. That court affirmed with respect to the constitutionality of Act. No. 89-800, but reversed with respect to the interpretation and application of Act. No. 89-915, on the grounds that Avant had already purchased retirement credit in 1984 under Act No. 84-805 for his part-time legislative employment.
We granted certiorari review and heard oral argument in this case on the ERS's petition to review the Court of Civil Appeals' judgment with respect to the constitutionality of Act No. 89-800 and on Avant's petition to review the judgment with respect to the interpretation and application of Act No. 89-915.
Having carefully considered the record and the oral and written arguments in this case, we adopt as part of our own opinion the following order by Judge Phelps:
We have also considered the ERS's claim that Act No. 89-800 is unconstitutional under Art. IV, §§ 45 and 68, Constitution of Alabama 1901. We find the contention that the Act violates § 45 to be without merit, on the authority of Thomas v. Niemann, 397 So. 2d 90 (Ala.1981); Opinion of the Justices No. 138, 262 Ala. 345, 81 So. 2d 277, 281 (1955); and we find the contention that the Act violates § 68 to be without merit also, on the authority of Kohen v. Board of School Comm'rs of Mobile County, 510 So. 2d 216 (Ala.1987).
We therefore affirm that portion of the judgment of the Court of Civil Appeals upholding Act No. 89-800; we reverse that *300 portion of the judgment denying Avant an opportunity to purchase credit under Act No. 89-915 for his part-time employment under the Act; and we remand this cause for proceedings consistent with this opinion.
AFFIRMED as to Act No. 89-800; REVERSED as to Act No. 89-915; AND REMANDED.
MADDOX, ALMON, SHORES, ADAMS and INGRAM, JJ., concur.
HOUSTON, J., concurs in the result.
HOUSTON, Justice (concurring in the result).
There is no equal protection clause in the Constitution of Alabama of 1901. The equal protection clause that was in previous Alabama Constitutions was purposefully deleted by the Constitutional Convention of 1901. See 2 Official Proceedings of the Constitutional Convention of 1901, pp. 1622-34, 1639-44, and 2254-60.
Likewise, §§ 1, 6, and 22 of the Alabama Constitution taken together do not guarantee the equal protection of the laws. Moore v. Mobile Infirmary Ass'n, 592 So. 2d 156, 175-77 (Ala.1991) (Houston, J., concurring in the result). | January 15, 1993 |
8bb6a58a-0c8b-403e-ae7c-8624e963cd7b | Busch Jewelry Company v. City of Bessemer | 98 So. 2d 50 | N/A | Alabama | Alabama Supreme Court | 98 So. 2d 50 (1957)
BUSCH JEWELRY COMPANY
v.
CITY OF BESSEMER et al.
6 Div. 940.
Supreme Court of Alabama.
October 31, 1957.
J. Asa Rountree, III., Meade Whitaker and Cabaniss & Johnston, Birmingham, for appellant.
Lee Bains, Bessemer, and Richard A. Billups, Jr., Jackson, Miss., for appellees.
COLEMAN, Justice.
Appellant filed its bill for declaratory judgment against the City of Bessemer et al. attacking the validity of Ordinance No. 1112 of the City of Bessemer, adopted February 9, 1954.
We are unable to find from the record that "the attorney-general of the state" has been "served with a copy of the proceeding." In fact, the record does not in anywise refer to the Attorney General of this State.
§ 166 of Title 7, 1940 Code, provides as follows:
Paragraph 8 of the Amended Bill contains the following recital:
Thus it appears in the instant case that the ordinance "is alleged to be unconstitutional."
Under the holding of this court in Wheeler v. Bullington, 264 Ala. 264, 87 So. 2d 27, 29, the allegations of the bill in the case at bar require service of "a copy of the proceeding" on the Attorney General. The record does not show that this service has been made.
In Wheeler v. Bullington, supra, with reference to this requirement of the statute, this court said:
Under that holding we cannot avoid the conclusion that the court below never acquired jurisdiction to authorize the rendition of the decree appealed from and that said decree is void.
The absence of jurisdiction is apparent on the face of the record. This court has held:
Because the decree in the court below is void on the face of the record, this court is without jurisdiction to entertain this appeal.
Appeal dismissed.
LIVINGSTON, C. J., and SIMPSON and GOODWYN, JJ., concur. | October 31, 1957 |
a3379a0c-2ad8-4c72-aa1b-6d694211efde | Ex Parte Johnson | 620 So. 2d 709 | 1910945 | Alabama | Alabama Supreme Court | 620 So. 2d 709 (1993)
Ex parte Rickey Lee JOHNSON.
(In re Rickey Lee Johnson v. State).
1910945.
Supreme Court of Alabama.
January 15, 1993.
Rehearing Denied April 9, 1993.
*710 Kevin M. Doyle and Bryan A. Stevenson, Montgomery, and Connie Parson, Birmingham, for petitioner.
James H. Evans, Atty. Gen., and Sandra J. Stewart and Melissa G. Math, Asst. Attys. Gen., for respondent.
STEAGALL, Justice.
Rickey Lee Johnson was convicted in the Jefferson Circuit Court of capital murder. In a unanimous decision, the Court of Criminal Appeals affirmed Johnson's conviction and sentence. Although Johnson raises numerous issues on appeal, we find it necessary to address only three of those issues.
A detailed discussion of the facts is contained in State v. Johnson, 620 So. 2d 679 (Ala.Cr.App.1992); thus, we begin by noting only the most pertinent details from the record. Seventy-year-old Emma Whitehead was severely beaten in her house on the afternoon of June 8, 1988, sustaining numerous head injuries that contributed to her death. Ruby Brown, Whitehead's cousin and housemate, testified at trial that she came onto the scene of the attack at approximately 3:45 p.m. She walked into Whitehead's house and saw a man, whom she later identified as Johnson, standing behind the door holding an electric clothes iron. The house had been ransacked. Johnson hit Brown with the iron, knocking her off balance, and then hit her in the head with a crystal candy dish. He left the *711 room, and Brown escaped out the front door into the yard; however, Johnson overtook her and dragged her back into the house, telling her that he was going to kill her. Once inside, he grabbed a brass lamp and hit Brown with it. She then saw him grab her purse and take about $78 dollars from it. Brown asked Johnson what he had done to Whitehead, and then she began to scream for help. Johnson replied that Brown should save her energy because Whitehead was going to need her assistance. He then began to beat Brown again, demanding money. Brown pretended to lose consciousness, until Johnson went into a back room of the house. She then realized that the house was on fire, and she escaped through the front door. When the police arrived, they found Whitehead's body; it was later determined that she had died from head injuries and smoke inhalation.
In the ensuing investigation of the murder, the police arrested Johnson as a suspect. Following his arrest, Johnson gave a statement to the police, which was audiotaped. His picture was included in a photographic array shown to Brown on June 16, 1988, and he appeared before her in a line-up on July 7, 1988. Brown was unable to identify her assailant on either occasion. Immediately after the July 7 line-up, Brown went to the office of Sgt. Randy Boissel, the investigating officer on the case, to look at another group of photographs. Boissel began to locate and organize photographs of several men who spent time at a vacant house located beside Brown's home. At trial, Brown testified that a photograph of Johnson fell out of one of the photograph books and that she then identified the person pictured in that photograph as her assailant.
The first issue raised is whether the trial court erred in admitting into evidence the audiotaped statement Johnson gave to the police following his arrest. Johnson contends that that statement was involuntary and violated the principles of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), and was thus due to be suppressed.
An in-custody statement by an accused is prima facie involuntary and inadmissible; to overcome this presumption, the State must first establish that before the defendant gave his statement the police informed him of his rights, as required by Miranda. Ex parte Callahan, 471 So. 2d 463 (Ala.1985). See, also, Swicegood v. State, 50 Ala.App. 105, 277 So. 2d 380 (1973). To this end, the State must spell out with clarity and precision the specific Miranda warnings the police gave to the defendant. Swicegood.
At trial, Sgt. Boissel testified that Johnson volunteered to give a statement following his arrest and after being given a Miranda warning. Boissel testified:
This was the extent of the State's inquiry as to exactly what the police said to Johnson concerning his Miranda rights before they took his statement. Under the principles of Swicegood, this exchange was not sufficient to establish the necessary Miranda predicate, because the general question of whether the Miranda warnings were given does not adequately establish whether the warnings were properly given and understood by the defendant. Swicegood. See, also, Arthur v. State, 575 So. 2d 1165 (Ala.Crim.App.1990), cert. denied, 575 So. 2d 1191 (Ala.1991); Robinson v. State, 399 So. 2d 902 (Ala.Crim.App.1981); and Thomas v. State, 370 So. 2d 1066 (Ala.Crim. App.1978), writ quashed, 370 So. 2d 1070 (Ala.1979). In each of those cases, the State sought to establish a Miranda predicate by merely asking the police whether the warnings were given, and this was consistently held to be inadequate under Swicegood. The Court of Criminal Appeals properly explained in Thomas:
370 So. 2d at 1070.
In Ex parte Callahan, 471 So. 2d 463 (Ala.1985), this Court was urged to overrule Swicegood, and we specifically addressed that opinion and its progeny for the first time. After a detailed analysis of the United States Supreme Court decisions underlying Swicegood, as well as earlier Alabama cases, we concluded that Swicegood has a solid foundation in constitutional law and that any attempt to overrule it "would be but an effort to overrule the United States Supreme Court, a power which does not reside with this Court". Callahan, 471 So. 2d at 467. We likewise have no power to deviate from Swicegood today.
We note that in-custody statements given by the defendant relating to purely collateral matters and not inculpatory in any respect do not fall under the principle of Swicegood and, thus, evidence of such statements is admissible without the showing of a proper Miranda predicate. Cartwright v. State, 469 So. 2d 674 (Ala.Crim.App.1984). Here, some of the statements contained in the audiotape are in regard to purely collateral matters and would not, standing alone, invoke the principles of Swicegood. There are other statements, however, that do connect Johnson with the crime of which he is accused. On the tape, Johnson admitted he knew that the police were looking for him to question him about Whitehead's death and about another "felony warrant" sworn out on him. He stated that he was "afraid of what they said I had done" and described how he eluded the police by going from house to house on the day after the crime. He stated that, while eluding arrest, he confessed to a friend that "I got myself into a little trouble." Johnson also described how members of his family and a friend all accused him of burning Whitehead's house. Because these statements relate to matters that are not purely collateral, evidence of them was inadmissible without a proper Miranda predicate.
The State argues that even if evidence of Johnson's statements was inadmissible, its introduction into evidence was harmless error. We must recognize, however, that Johnson's statement that he had gotten himself into trouble and that he had eluded the police, as well as his statements regarding the accusations of his family and friend, were in some respects inculpatory. We cannot therefore hold that the improper admission of this evidence constituted harmless error.
Although we reverse for the reasons stated above, for the sake of judicial economy we address two other issues raised by Johnson, which are almost certain to come up again on remand for a new trial.
First, Johnson argues that the pretrial eyewitness identification procedures were unnecessarily suggestive and that the resulting identification evidence was therefore inadmissible. Pretrial identifications are to be set aside on grounds of prejudice only if the pretrial identification procedure is so suggestive as to give rise to a substantial likelihood of misidentification. Ex parte Stout, 547 So. 2d 901 (Ala.1989). The totality of the circumstances surrounding the out-of-court identification need be analyzed only when the pretrial procedures used appear to have been unnecessarily or impermissibly suggestive. Stout.
Johnson argues that because his picture was included in two photographic arrays and he appeared in a line-up before Brown identified him, the process of identification was improperly repetitive. To bolster his argument, Johnson relies on Foster v. California, 394 U.S. 440, 89 S. Ct. 1127, 22 L. Ed. 2d 402 (1969), wherein the United States Supreme Court held that a robbery victim's identification of the defendant was tainted because the victim had been repeatedly exposed to the defendant in pretrial identification processes. In that case, the defendant was presented to the victim *713 in a line-up, and the victim was unable to positively identify him. The victim asked for the opportunity to speak to the defendant, and he was subsequently brought in alone and seated across from her: however, the victim was still uncertain whether he was the guilty man. The police held a second line-up, and at that line-up the victim was "convinced" that the defendant was the robber. The participants in the line-ups did not bear a particular resemblance to the defendant, and the defendant was the only individual to participate in both line-ups. The Supreme Court held that by repeatedly presenting the defendant to the victim and by isolating him after the first line-up, the police "arranged" pretrial confrontations that made the resulting identification of the defendant virtually inevitable. The Court stated that, "in effect, the police repeatedly said to the witness `This is the man,'" Foster, 394 U.S. at 443, 89 S. Ct. at 1129 (emphasis original), and concluded that this procedure so undermined the reliability of the identification process so as to violate the defendant's due process rights.
In this case, there is no indication that the police repeatedly arranged confrontations between Johnson and Brown; the mere fact that Brown was shown Johnson's picture and also saw him in the line-up does not establish any impropriety in the identification process. Under Alabama law, it is not error to have a defendant participate in both a photographic array and a line-up, even though he may be the only common participant in the two procedures. Nicholes v. State, 409 So. 2d 454 (Ala.Crim.App.1981). Unlike Foster, this case presents no evidence that the defendant was ever singled out by the police or that the witness was coerced by the police to choose the defendant. Moreover, the record indicates that the individuals in the photographic array and the line-up were physically similar to Johnson. The officer in charge of choosing the individuals for the line-up testified at trial that he took special care to locate participants who resembled Johnson, so that it would be as difficult as possible for Brown to distinguish Johnson. Because these pretrial identifying procedures did not make Brown's identification of Johnson inevitable, the Court of Criminal Appeals correctly held that the pretrial identification procedures were not impermissibly suggestive and that Brown's identification testimony was properly presented to the jury for its consideration. We are not, therefore, required to further examine the totality of the circumstances to determine whether there was a substantial likelihood of misidentification.
Next, Johnson argues that the evidence does not show that he murdered Whitehead during a first-degree robbery of Brown. Johnson points out that, under Alabama law, a robbery committed as a "mere afterthought" and unrelated to the murder will not sustain a conviction for the capital offense of robbery murder, pursuant to § 13A-5-40(a)(2). He argues that the State failed to prove that his robbery of $78 from Brown was related to his murder of Whitehead and further argues that the jury was not properly instructed as to the evidentiary requirements of § 13A-5-40(a)(2).
To sustain a conviction under § 13A-5-40(a)(2), the State must prove beyond reasonable doubt (1) a "robbery in the first degree or an attempt thereof," as defined by § 13A-8-41; (2) a murder as defined by § 13A-6-2(a)(1); and (3) that the murder was committed "during" the robbery or attempted robbery, i.e., that the murder was committed "in the course of or in connection with the commission of, or in the immediate flight from the commission of" the robbery or attempted robbery in the first degree. § 13A-5-39(2); Hallford v. State, 548 So. 2d 526 (Ala.Cr.App.1988), affirmed, 548 So. 2d 547 (Ala.), cert. denied, 493 U.S. 945, 110 S. Ct. 354, 107 L. Ed. 2d 342 (1989). The intentional killing must take place during the course of the robbery in question; however, the taking of the property of the victim need not occur before the killing. Hallford. Moreover, the capital offense of robbery-murder encompasses a robbery-murder in which the person killed is not the person robbed. Taylor v. State, 442 So. 2d 128 (Ala.Crim. *714 App.1983). The fact that the murder victim was dead when the property was taken would not prevent a finding of robbery, if the murder and the taking of property formed a continuous chain of logically related events. Hallford. The question whether the defendant had the intent to kill at the time of the taking is usually a jury issue, and the jury may infer from the facts and circumstances that a robbery began when the accused attacked the victim and that the capital offense was consummated when the accused took the robbery victim's property and fled. Hallford.
Johnson contends that, according to the evidence, Whitehead's murder was complete before Brown arrived at the house and that the robbery of Brown was thus the result of a mere afterthought arising after Whitehead's murder. This argument is not supported by the record, which would support a finding that Whitehead's murder was not complete until after Johnson had robbed Brown. The record shows that the house was ransacked at the time Brown arrived. During the course of his attack on her, Johnson not only robbed Brown but also repeatedly demanded that she tell him where Whitehead kept her money. Johnson told Brown that Whitehead would need her assistance later, thus indicating that Whitehead was still alive at that time. Most significantly, evidence regarding Whitehead's autopsy reveals that she had a high level of carbon monoxide in her blood and sooty deposits in her lungs; from this, the jury could properly infer that Whitehead was breathing when Johnson set the house ablaze, after he had robbed Brown. The jury could further infer that Johnson intended to rob Brown when she entered the house and that Whitehead's death occurred in the course of Johnson's attempt to execute this robbery. Accordingly, we find no merit in Johnson's argument regarding the sufficiency of the evidence.
In view of the foregoing, the judgment of the Court of Criminal Appeals is reversed and this cause is remanded for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
HORNSBY, C.J., and MADDOX, SHORES, ADAMS, HOUSTON and KENNEDY, JJ., concur. | January 15, 1993 |
53c5d4f5-5bf6-4181-ad81-0c70f98475c9 | PACIFIC ENT. OIL v. Howell Petroleum | 614 So. 2d 409 | 1910365 | Alabama | Alabama Supreme Court | 614 So. 2d 409 (1993)
PACIFIC ENTERPRISES OIL COMPANY (USA)
v.
HOWELL PETROLEUM CORPORATION.
1910365.
Supreme Court of Alabama.
January 22, 1993.
*411 Rae M. Crowe, Duane A. Graham and Broox G. Holmes, Jr. of Armbrecht, Jackson, DeMouy, Crowe, Holmes & Reeves, Mobile, for appellant.
Thomas A. Carraway of Rives & Peterson, Birmingham, for appellee.
MADDOX, Justice.
This case concerns a dispute over how Pacific Enterprises Oil Company (USA) (formerly, Terra Resources, Inc.; hereinafter "Terra"[1]) should compute payment on Howell Petroleum Corporation's overriding royalty interest in oil and gas production from the Chadley 27-9 well in Fayette County, Alabama. Two issues are presented for our consideration. The first issue, an issue of apparent first impression in this State, is whether the trial court erred in holding that an Oil and Gas Board order "respacing" the land upon which Howell Petroleum's overriding royalty was computed had no effect on how Terra was contractually obligated to pay Howell Petroleum its overriding royalty. The second issue is whether an award of attorney fees pursuant to the Alabama Litigation Accountability Act (§ 12-19-270 et seq., Ala. Code 1975) was proper under the facts of this case.
Howell Petroleum owned or controlled approximately 75% of the oil and gas leases in Section 27 (Township 14 South, Range 11 West) in Fayette County, Alabama. Terra also owned or controlled certain oil and gas leases in Section 27 and wanted to drill for oil there. Because Howell Petroleum did not desire to develop its mineral leases, Howell and Terra negotiated a "farm out" agreement.[2] In the farm out agreement, Howell agreed to assign its leases in "the unit established for [the] Earning Well" to Terra after Terra explored and drilled an earning well. In exchange for this assignment of the oil and gas leases, Howell reserved to itself an overriding royalty interest in any oil and gas produced from "the unit established for the earning well." Howell's royalty interest was 27½% of the well's production before, and 40% after, "payout." "Payout" occurred when all the costs associated with drilling the well, except costs associated with drilling dry wells, were paid. The written "farm out" agreement was executed and signed by both Terra and Howell representatives in July 1986.
In September 1986, Terra applied for a drilling permit from the Oil and Gas Board for all of Section 27. Later that month, the Oil and Gas Board granted Terra's requested permit.
In October 1986, Terra executed a "Declaration of Unit" that was signed by all the working interest and royalty owners, including Howell Petroleum. The declaration established all of Section 27 as the *412 drilling or production unit. Also in October 1986, Terra drilled the Chadley 27-9 well, which, according to the farm out agreement, became the earning well. Soon thereafter, Howell assigned all its leases in Section 27 to Terra.
In December 1986, the Oil and Gas Board promulgated Order No. 86-287, which amended the special field rules for the Northeast Davis Chapel Field. Section 27 and the Chadley 27-9 well were productive extensions of the Northeast Davis Chapel Field. Order No. 86-287 allowed drilling or production units in the Northeast Davis Chapel Field to be 320-acres rather than 640 acres. Terra filed a motion asking the Board to reconsider this order, but later withdrew this request. Soon thereafter, Terra petitioned the Board for a 320-acre drilling or production unit for the Chadley 27-9 well. The Board granted Terra's petition, thus "respacing" Section 27 and creating two drilling or production units in the section: one in the eastern ½ and one in the western ½
Based on the success of the Chadley 27-9 well, both parties apparently believed that the western ½ would be productive. Also, there were apparently some concerns about the leases in the western ½ expiring unless a well was drilled. Terra attempted to drill two wells in the western ½ of Section 27. Both wells were dry holes.
In January 1987, Terra executed a new "Declaration of Unit" designating the eastern ½ of Section 27 as the drilling or production unit for the Chadley 27-9 well. Howell Petroleum's representatives specifically refused to sign this second declaration.
In August 1987, Terra sent out division orders to its working interest, royalty, and overriding royalty interest owners. Terra computed Howell Petroleum's overriding royalty interest on a 320-acre basis, that is, on the basis of the drilling or production unit established for the eastern ½ of Section 27. Howell specifically protested this computation scheme in a letter dated August 25, 1987. When Terra refused to change the computation method, Howell sued.
Howell sought a judgment declaring that its overriding royalty interest should be computed on a 640-acre basis (i.e, on the original drilling or production unit designation for all of Section 27) in the future and compensation for alleged past underpayment. Also, Howell requested costs and attorney fees.
In its answer, and indeed throughout all the proceedings at the trial level, Terra contended that the Board's "respacing" of Section 27 superseded or amended its agreement with Howell as to Howell's overriding royalty. Terra argued that the Board's order creating two drilling or production units for Section 27 altered the computation for Howell Petroleum's overriding royalty based on the agreement itself. Also, or alternatively, Terra argued that the Board's "respacing" meant that royalties and overriding royalties had to be paid strictly on the two newly established drilling or production units. To do otherwise, Terra argued, would dilute the correlative rights of other interest holders in each newly established unit.
After discovery, both parties moved for summary judgment. The trial court granted a summary judgment for Howell Petroleum. Terra appealed to this Court, but then sought, and was granted, leave to file a motion for relief from judgment in the trial court.
Terra then filed a Rule 60(b), Ala.R.Civ. P., motion in the trial court based on "new matters and newly discovered evidence." Specifically, Terra noted that it had failed to cite the trial court to various cases from other jurisdictions that might be pertinent to the case. Also, Terra asserted that it had newly discovered evidence concerning Howell's knowledge of its petition for the Board to "respace" Section 27, of the Board's order, and of other pertinent matters. The trial court granted Terra's Rule 60(b) motion and set the case for trial.
After hearing the evidence, the trial court made extensive findings of fact and conclusions of law and concluded that the farm out agreement and the initial declaration of unit constituted a written contract. Further, the court found that Howell, in *413 assigning its leases in Section 27, had fulfilled its part of the bargain. Additionally, the trial court found that the declaration of unit was a voluntary pooling agreement that became an integral part of the contract. Importantly, the court held that the Board's "respacing" of Section 27 into two 320-acre drilling or production units did not change the underlying contract between Terra and Howell. The court entered a judgment awarding Howell Petroleum $90,236.18, plus interest, for past underpayment and declaring that, in the future, Terra was to compute Howell's overriding royalty payments on a 640-acre unit of measure.
In an amended judgment, the trial court found that Terra had filed the Rule 60(b) motion for relief from judgment merely to impose delay and without substantial justification. Specifically, the trial court found that Terra failed to proffer any newly discovered evidence at trial or to otherwise justify its motion for relief from judgment. The court did not award any specific amount for attorney fees before Terra appealed.
Initially, Terra argues that other oil and gas producing jurisdictions hold that a valid order of the Oil and Gas Board, or those States' functional equivalents, supersedes or amends royalty or overriding royalty agreements based on a voluntary spacing or pooling declaration. Terra cites Hladik v. Lee, 541 P.2d 196 (Okla.1975), Humble Oil & Refining Co. v. Jones, 125 So. 2d 640, (La.App.1961), annulled and remanded, 241 La. 661, 130 So. 2d 408, aff'd on rehearing, 157 So. 2d 110 (La.App.1968), Fletcher v. Ricks Exploration, 905 F.2d 890 (5th Cir.1990), and 4 Eugene Kuntz, A Treatise on the Law of Oil and Gas § 48.3(k) (1990), in support of this contention.
In response, Howell Petroleum argues the distinction between spacing and pooling. Under Alabama statutes, both spacing and pooling may be either voluntary or compulsory. See, §§ 9-17-12(b) and 9-17-13(a), Ala.Code 1975. According to Howell, compulsory spacing, or compulsorily establishing a drilling or production unit under § 9-17-12(b), Ala.Code 1975, is merely a conservation measure that has no effect on royalty payments. Howell apparently concedes, however, that compulsory pooling, or compulsorily integrating interests into a drilling or production unit under § 9-17-13(a) does affect royalty payments.
After carefully reading the cited authorities, we conclude that "respacing" by the Board does not affect a prior royalty agreement, unless the agreement explicitly makes, or can reasonably be interpreted to make, royalty computations dependent on spacing by the Board.[3] Also, we agree *414 with Howell that compulsory or forced pooling under § 9-17-13 does affect prior royalty agreements. See, Humble Oil & Refining, 125 So. 2d at 646-47, aff'd on rehearing, 157 So. 2d at 112.[4]
In Jones v. Bronco Oil & Gas Co., 446 So. 2d 611, 613 n. 3 (Ala.1984), this Court stated:
We reaffirm our statement in Bronco Oil. However, implicitly, for a Board order to "supersede or supplement" a provision in a private contract the Board order and the contractual provision must conflict. See, Arkansas Louisiana Gas Co. v. Southwestern Natural Production Co., 221 La. 608, 609, 60 So. 2d 9, 10 (1952). We conclude that the Board order at issue here does not address royalty payments, and, thus, cannot conflict with the private contractual agreement between Terra and Howell Petroleum.
However, we agree with Terra's second argument that the agreement between it and Howell Petroleum, by its very terms, made computation of Howell's overriding royalty dependent on spacing by the Board.[5] We conclude that the trial court erred in making its legal determination that the agreement between Howell and Terra was not affected by the Board's order.
It is well settled that "two or more instruments executed contemporaneously by the same parties in reference to the same subject matter constitute one contract and should be read together in construing the contract." Haddox v. First Alabama Bank of Montgomery, N.A., 449 So. 2d 1226, 1229 (Ala.1984). Whether an agreement is ambiguous is a legal question for the court. Terry Cove North, Inc. v. Baldwin County Sewer Authority, Inc., 480 So. 2d 1171, 1173 (Ala.1985). If an agreement is found to be unambiguous, the court then has the duty to determine the meaning of the agreement. Id. The trial court should give the terms of the agreement their clear and plain meaning. Id. Further, the court should presume that the parties intended what the terms of the agreement clearly state. Id.
We agree with the trial court that the farm out agreement, the initial unit declaration, and the assignment of leases formed a binding contract between Howell and Terra. We disagree, however, with the trial court's legal conclusion that this agreement was not affected by the Board's "respacing" order.
The farm out agreement states, in pertinent part:
(Plaintiff's Exhibit 1 at p. 2; Supp.R. at 4; emphasis supplied.)
The Declaration of Unit states, in pertinent part:
(Plaintiff's Exhibit 5 at p. 1; Supp.R. at 20; emphasis supplied.)
The basic legal question that the trial court had to answer was what was meant by "the unit established for said Earning Well." Neither party contests that the "earning well" was the Chadley 27-9. Clearly, initially the "unit established" for the Chadley 27-9 was the voluntarily created unit consisting of all 640 acres in Section 27. However, the declaration of unit clearly was made subject to "the rules, regulations, and orders of the Oil and Gas Board of Alabama." Therefore, when the Board "respaced" Section 27 and created two drilling or production units, the "unit established" for the Chadley 27-9 became the eastern ½ of Section 27. No other reasonable interpretation can come from the clear and plain meaning of the terms of the agreement. The trial court erred in interpreting the plain language of the agreement.
After granting Terra's Rule 60(b) motion and hearing evidence from both parties, the trial court determined that Terra had filed the Rule 60(b) motion and put Howell through a trial "without substantial justification." In its amended judgment, the trial court stated:
(Vol. 6 R. at 795.)
At the parties' mutual request, however, the trial court deferred making an award of attorney fees, and it had made no award of attorney fees before Terra appealed the judgment to this Court.
Terra argues that the trial court incorrectly determined that it acted "without substantial justification" in filing and pursuing its Rule 60(b) motion. Further, Terra argues that the trial court implicitly found merit in its Rule 60(b) motion when it granted the motion.
Ala.Code 1975, § 12-19-271(1), provides:
"The phrase `without substantial justification,' when used with reference to any action, claim, defense or appeal, including without limitation any motion, means that such action, claim, defense or appeal (including any motion) is frivolous, groundless in fact or in law, or vexatious, or interposed for any improper purpose, including without limitation, to cause unnecessary delay or needless increase in the cost of litigation, as determined by the court."
On the other hand, Howell argues that the trial court's grant of Terra's Rule 60(b) motion should not be taken as a showing of implicit merit. Also, Howell stresses that Terra failed to prove the new claims and defenses set forth in its Rule 60(b) motion at trial, and that, therefore, the trial court correctly determined that the motion was "without substantial justification."
Our research reveals no prior cases in exactly the same posture as this one. Initially, then, we must determine what our standard of review will be.
We find the federal model under Rule 11, Fed.R.Civ.P., to be persuasive in determining our standard of appellate review. We note that the legislature, in defining "without substantial justification," used terms virtually synonymous with those Congress used in defining the certification standard[6] in Rule 11.
Viewing the two definitions sideby-side illustrates their remarkable similarity.
Rule 11, Fed.R.Civ.P., states, in pertinent part:
"The signature of an attorney or party constitutes a certificate by the signer that the signer has read the pleading, motion, or other paper; that to the best of the signer's knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation."
The certification standard was added to federal Rule 11 in 1983. See, 5A Charles Allen Wright and Arthur R. Miller, Federal Practice and Procedure § 1331 (1990). Because the legislature enacted the Litigation Accountability Act in 1987, the striking similarity of language cannot be an accident. Based on the striking similarity between the definition of "without substantial justification" and the certification standard *417 in Rule 11, we conclude that the legislature intended for the "without substantial justification" determination to serve the same purpose as the certification standard.
In Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 393, 110 S. Ct. 2447, 2454, 110 L. Ed. 2d 359 (1990), the United States Supreme Court stated:
(Emphasis supplied.) See, also, Business Guides, Inc. v. Chromatic Communications Enter., Inc., 498 U.S. 533, 111 S. Ct. 922, 112 L. Ed. 2d 1140 (1991).
If the central purpose of Rule 11 is to "deter baseless filings in district court," it stands to reason that the certification standard serves the same purpose. We conclude that the legislature intended to accomplish the same purpose through the "without substantial justification" determination. See, Robert D. Hunter, Alabama's 1987 Tort Reform Legislation, 18 Cumb. L.Rev. 281 (1988), and 5A Charles Allen Wright and Arthur R. Miller, Federal Practice and Procedure § 1335 (1990).
Because the underlying purposes of the certification standard and the "without substantial justification" determination are the same, and because the language used in each is synonymous, we look to federal case law construing Rule 11 for guidance in determining our standard of appellate review. Cooter & Gell, supra, is the latest statement from the United States Supreme Court on appellate review of a district court's Rule 11 determination.
In Cooter & Gell, the United States Supreme Court held that federal appellate courts should apply an "abuse of discretion" standard to all aspects of a district court's Rule 11 determination. According to the Court, this standard calls for (1) a determination that the district court did not apply an erroneous view of the law, and (2) a determination that the district court did not erroneously assess the evidence. See also, Davis v. Carl, 906 F.2d 533 (11th Cir.1990), as an example of how the 11th Circuit Court of Appeals applies Cooter & Gell.
Section 12-19-272(a), Ala.Code 1975, requires a trial court to determine that an action, claim or defense is "without substantial justification" before it can assess attorney fees against the party or attorney (or both) asserting the action, claim, or defense.[7] We conclude that this determination may be either a factual or a legal determination, depending on the grounds upon which the trial court bases its determination.
Section 12-19-271(1), Ala.Code 1975 states:
(Emphasis supplied.)
*418 The clear terms of § 12-19-271(1) require that for an action, claim, or defense to be "without substantial justification" it must be either "frivolous," "groundless in fact," "groundless in law," "vexatious," or "interposed for any improper purpose." We conclude that the terms or phrases "frivolous," "groundless in fact," "vexatious," and "interposed for any improper purpose" require factual determinations that will be entitled to deference on appeal. See, Smith v. Smith, 551 So. 2d 1024 (Ala.1989). Thus, if a trial court determines that a party's action, claim, or defense is "without substantial justification," based on the applicability of any one of these terms or phrases, that determination will not be disturbed on appeal "unless it is clearly erroneous, without supporting evidence, manifestly unjust, or against the great weight of the evidence." Cove Creek Development Corp. v. APAC-Alabama, Inc., 588 So. 2d 458, 461 (Ala.1991).
However, we conclude that the phrase "groundless in law" clearly calls for a legal determination. Therefore, if the trial court determines that a party's action, claim, or defense is "without substantial justification" because it is "groundless in law," that determination will not be entitled to a presumption of correctness. Rather, the appellate courts of this State will test the validity of the trial court's legal conclusion.
Also, we conclude that the legislature had no intention to chill attorney creativity in making good faith arguments for changes in the law. Trial courts should be exceedingly careful in making a "without substantial justification" finding, so as not to discourage attorneys from creatively arguing for change in the law based on rational, good faith argument.
Additionally, we will require a trial court making the "without substantial justification" determination to make its determination, the ground or grounds upon which it relies, and the legal or evidentiary support for its determination, a part of the record, either by drafting a separate written order or by having these findings transcribed for the official record. This process will aid the appellate courts of this State during review.[8]
In this case, we cannot determine upon what basis, or upon what legal or evidentiary points, the trial court based its determination that Terra's asserted Rule 60(b) "new matters" were "without substantial *419 justification." Accordingly, we reverse the trial court's determination that the motion was filed "without substantial justification," and we remand the cause to the trial court for written or transcribed findings, as mandated above. Also, the trial court is instructed, should it decide on remand to make a determination that the motion was filed "without substantial justification," to set forth its reasoning, based on the factors enumerated in § 12-19-273. See, A & M Grocery, Inc. v. Lopez, 567 So. 2d 261 (Ala.1990).
Based on the foregoing, we reverse the judgment of the trial court and remand this cause for action consistent with this opinion.
ISSUE I: REVERSED AND REMANDED.
ADAMS, HOUSTON, STEAGALL, KENNEDY and INGRAM, JJ., concur.
ISSUE II: REVERSED AND REMANDED.
HORNSBY, C.J., and SHORES, ADAMS, HOUSTON and INGRAM, JJ., concur specially.
ADAMS, Justice (concurring specially as to Issue II).
I concur with the majority opinion both as to Issue I and Issue II, but in regard to Issue II, I write specially to point out that Rule 11 of the Federal Rules of Civil Procedure is presently under considerable discussion and revision. Inasmuch as our treatment of the Litigation Accountability Act is patterned after Rule 11, it is worthwhile to discuss ways in which Rule 11 will be changed, and the notes of the Advisory Committee on Civil Rules of the United States Judicial Conference as to how federal district courts should implement these changes.[9]
The principal purpose of Rule 11, which is to discourage frivolous lawsuits, is being retained. However, the means by which that purpose is attained is not being retained.
It is significant that prior to 1983, when Rule 11 was amended, only a few Rule 11 decisions had been reported, but that after the amendment and the appointment of Republican judges by Presidents Reagan and Bush, over 600 Rule 11 decisions have been reported. See, Georgene M. Vairo, Rule 11: A Critical Analysis, 118 F.R.D. 189 (1988), and Eric K. Yamamoto and Danielle K. Hart, Rule 11 and State Courts: Panacea or Pandora's Box?, 41 Def.L.J. 185 (1992).
The rule has been criticized as having a chilling effect on public interest attorneys filing novel and innovative lawsuits in the interest of the public. Such lawyers and law firms are hesitant to file such lawsuits when faced with the possibility of large monetary sanctions. Usually, such law firms are assisted by national organizations, such as the NAACP, the Sierra Club, and Legal Aid Services, whose resources are obtained from public and foundation support.
The committee comments discuss at great length the need for flexibility in the imposition not only of monetary sanctions, but sanctions of any description. For the benefit of the bench and bar, I am including in this concurring opinion the committee's recommendation for the change of Rule 11, as well as its comments, which are due to go before the United States Supreme Court and the United States Congress this year for approval and adoption *420 as the law on an attorney's responsibility with reference to motions, pleadings, and conduct of litigation in the federal system.
Inasmuch as the majority opinion is based on Rule 11, the federal counterpart of our Litigation Accountability Act, it will be good for us to take into consideration how the federal system will probably handle Rule 11 in the future. Even if the United States Supreme Court and Congress do not adopt all these changes, I think that these changes are good and should be considered by our courts in implementing our Litigation Accountability Act, which, to some extent, parallels Rule 11.
The proposed new Rule 11, with comments, is as follows:
HORNSBY, C.J., and SHORES, HOUSTON and INGRAM, JJ., concur.
[1] Terra Resources, Inc., merged with and changed its name to Pacific Enterprises Oil Company (USA) sometime after all the pertinent events in this case. (Vol. 6 R., Trial Transcript at 126.) Because at trial the court and the attorneys referred to Pacific as Terra, and because all the pertinent documents refer to Pacific as Terra, for convenience we will refer to Pacific as Terra.
[2] A "farm out" agreement is defined as "A very common form of agreement between operators, whereby a lease owner not desirous of drilling at the time agrees to assign the lease, or some portion of it (in common or in severalty) to another operator who is desirous of drilling the tract. The assignor in such a deal may or may not retain an overriding royalty or production payment. The primary characteristic of the farm out is the obligation of the assignee to drill one or more wells on the assigned acreage as a prerequisite to completion of the transfer to him." Howard Williams and Charles Meyers, Manual of Oil and Gas Terms 262 (5th ed. 1981).
[3] Terra cites Hladik in support of its contention that "respacing" by the Board supersedes prior royalty agreements between private parties. We find Hladik distinguishable in that the leases involved in Hladik contained provisions that made royalty computations dependent on spacing by the Oklahoma Corporate Commission (the functional equivalent of Alabama's Oil and Gas Board).
In Hladik, an oil and gas lessee voluntarily pooled numerous oil and gas leases and created a voluntarily declared 480-acre drilling or production unit. Id. at 197. The Corporate Commission then ordered that all drilling or production units within the field consist of 160 acres. Id.
Importantly, each lease involved in Hladik provided that each lessor "[would] receive only such proportion of royalty stipulated in [the] lease as lessor's acreage in [the] unit [bore] to [the] total acreage in [the] unit." Id. Also, the Corporate Commission's order specifically provided:
"`That all royalty interest within any spacing unit created herein shall be communitized and each royalty owner within any unit shall participate in the royalty from the well drilled thereon in the relation that the acreage owned by him bears to the total acreage in the unit.'"
Id. at 197.
The Oklahoma Supreme Court concluded that the Corporate Commission's drilling or production unit superseded the voluntarily declared drilling or production unit. Id. at 199. The Court held that, pursuant to the royalty provisions in the leases and the intent implied by those provisions, royalty payments were properly made on the basis of the Commission's 160-acre drilling or production unit. Id.
[4] Humble Oil can be read as holding that an order of the Commissioner of Conservation compulsorily pooling leases into a drilling or production unit supersedes a voluntarily established unit and amends prior royalty agreements, unless the parties established "a specific and positive intention to freeze the old [voluntarily created] unit." 125 So. 2d at 646.
[5] We note that Howell makes much of the asserted fact that Terra pays itself based on a 640-acre unit of measure while paying Howell based on a 320-acre unit. Our review of the record reveals that this assertion mischaracterizes the facts. (See, Vol. 7 R.; Trial Transcript at 245-57, 255-56, 317, 330-32.)
[6] See, 5A Charles Allen Wright and Arthur R. Miller, Federal Practice and Procedure § 1335 (1990) (Professors Wright and Miller use the term "standard of certification" to refer to the fifth sentence in Rule 11).
[7] Section 12-19-272(a), Ala.Code 1975 states:
"Except as otherwise provided in this article, in any civil action commenced or appealed in any court of record in this state, the court shall award, as part of its judgment and in addition to any other costs otherwise assessed, reasonable attorneys' fees and costs against any attorney or party, or both, who has brought a civil action, or asserted a claim therein, or interposed a defense, that a court determines to be without substantial justification, either in whole or in part."
(Emphasis supplied.)
[8] Justice Adams has obtained proposed amendments to Federal Rule 11, which, if approved by the United States Supreme Court and adopted by the Congress, will make substantial changes in that rule. In his special concurrence, Justice Adams includes the full text of those proposed amendments "for the benefit of the bench and bar." Also, he says:
"Inasmuch as the majority opinion is based on Rule 11, the federal counterpart of the Litigation Accountability Act, it will bode well for us to take into consideration how the federal system will probably handle Rule 11 in the future. Even if the United States Supreme Court and Congress do not adopt all these changes, it is my opinion that these changes are good and should be considered by our courts in the implementation of our Litigation Accountability Act, which, to some extent, parallels Rule 11."
Opinion at 420.
I have examined the proposed amendments and comments. It is my personal opinion that the requirements placed on trial judges in imposing sanctions under the Alabama Litigation Accountability Act, as interpreted in Part II of this opinion, are just as stringent as, if not more stringent than, those placed on federal judges by the proposed amendments to federal Rule 11.
Furthermore, I do not believe that Alabama judges have used or will use the provisions of the Litigation Accountability Act to chill attorney creativity or to deny a party an opportunity to present a meritorious claim or defense. Part II of this opinion cautions trial judges to be "exceedingly careful" in imposing sanctions.
I have always believed that there is some merit in having Alabama civil procedure substantially parallel the procedure in the federal courts. As I see it, the legislature intended the Litigation Accountability Act to accomplish the same goals as federal Rule 11. The Litigation Accountability Act, as interpreted in Part II of this opinion, already contains as many safeguards against sanctions as do the proposed amendments to federal Rule 11, or perhaps more, especially insofar as appellate review is concerned.
Justice Adams discusses what has happened in the federal system and what is being proposed to correct it. I do not believe that abuse of the same kind or to the same degree is occurring or will occur in Alabama, and I believe that the safeguards of the Litigation Accountability Act are as good as, if not better than, those proposed for the federal system.
I see no need to say that we should adopt the federal amendments. Our interpretation of the Act accomplishes the same goals and more.
[9] This committee is chaired by the Honorable Sam C. Pointer, presiding judge of the United States District Court for the Northern District of Alabama. Public hearings have been held throughout the country on these changes over the past two years, and these changes are due to go before the United States Supreme Court for its actions prior to their transmission to Congress. | January 22, 1993 |
b5436eca-1275-4b05-9e0f-04980c0098c9 | State Farm Auto. Ins. Co. v. Morris | 612 So. 2d 440 | 1911426 | Alabama | Alabama Supreme Court | 612 So. 2d 440 (1993)
STATE FARM AUTOMOBILE INSURANCE COMPANY
v.
Vera H. MORRIS.
1911426.
Supreme Court of Alabama.
January 8, 1993.
Thomas A. Woodall of Woodall & Maddox, P.C., Birmingham, for appellant.
M. Jack Hollingsworth, Birmingham, for appellee.
*441 INGRAM, Justice.
State Farm Automobile Insurance Company appeals from a judgment entered on a jury verdict in favor of the plaintiff, Vera H. Morris. In this action for damages for the tort of outrage, the jury returned a verdict against State Farm awarding Morris $60,000 in punitive damages. The trial court denied State Farm's posttrial motion for judgment notwithstanding the verdict or for new trial.
The issues before us are (1) whether Vera Morris produced substantial evidence that State Farm intentionally or recklessly engaged in conduct so extreme and outrageous as to be actionable under the tort law of this state; and if so, then (2) whether Morris produced substantial evidence that as a result of State Farm's action she suffered emotional distress so severe that no reasonable person could be expected to endure it. See American Road Service Co. v. Inmon, 394 So. 2d 361 (Ala.1980).
In September 1988, Morris sued State Farm, alleging that in delaying payment under Timothy Scott Cason's liability coverage and Morris's underinsured motorist coverage, State Farm committed the tort of outrage. Morris also claimed breach of contract, fraud, and bad faith because of State Farm's alleged delay in paying under Morris's underinsured motorist coverage. By agreement, Morris's contract claims were dismissed. Subsequently, the trial court entered a summary judgment in favor of State Farm on Morris's bad faith and fraud claims. The outrage claim proceeded to trial.
On July 6, 1987, Vera Morris and her husband Kenieth Morris were injured when their automobile was struck by a vehicle driven by Timothy Scott Cason. Cason was also severely injured in the accident, and his son was killed. It is undisputed that the accident was caused by Cason's loss of control, which had been brought on by excessive speed. Both automobiles were covered under insurance policies issued by State Farm. Cason's liability coverage provided for $25,000 per person and $50,000 per accident. The Morrises' underinsured motorist coverage provided for up to $20,000 above any other recovery.
On July 10, 1987, State Farm assigned both claims to Brad Goodwin, a State Farm claims representative. Goodwin made photographs of the scene and obtained a police report. On July 14, 1987, Goodwin completed a preliminary report, wherein he recorded his opinion that Cason was 100% at fault. Also on July 14, 1987, Goodwin received a letter from attorney James Harris notifying State Farm that he had been retained to represent the Morrises. Neither Goodwin nor any other representative of State Farm had any further direct contact with the Morrises after that date.
On July 14, 1987, Goodwin paid the full amount of the Morrises' property damage claim. On August 27, 1987, Harris requested payment under the medical payments coverage of the Morrises' insurance policy. Goodwin paid the maximum provided under Vera Morris's medical payments coverage. Goodwin later disbursed payments under Kenieth Morris's medical payments coverage.
In December 1987, the Morrises sued Cason in St. Clair County. Pursuant to Cason's liability policy, State Farm retained attorney Dwight Blair to represent Cason. State Farm did not direct or restrict Blair's representation of Cason. Blair was not able to meet with Cason until February 1988, because Cason had personally retained attorney Robert King to represent him and because Cason continued to have medical problems. Robert King continued to serve as Cason's personal counsel throughout this litigation.
Cason contended that he lost control of the vehicle because the accelerator stuck. State Farm had some suspicion, however, that Cason might have been under the influence of alcohol at the time of the accident. State Farm requested Cason's authorization to obtain copies of his medical records in order to determine his blood alcohol level. In response to Cason's failure to provide such authorization, State Farm notified Robert King that State Farm could deny coverage due to Cason's failure to assist State Farm in gathering evidence *442 regarding the claims against him. No further steps were taken, however, to obtain Cason's medical records until the Morrises' attorney subpoenaed them in the course of litigation. The records showed that when Cason arrived at the emergency room following the accident his blood alcohol level was 163 milligrams per deciliter.[1]
The evidence further shows that State Farm did not retain an expert to determine the viability of Cason's contention that the accelerator on his car had stuck. State Farm presented undisputed evidence, however, that it requested King to retain an expert at State Farm's expense. During the course of the litigation between the Casons and the Morrises, King had possession or control of Cason's automobile.
On March 25, 1988, Cason was deposed. At the deposition, Harris gave Blair a letter demanding the policy limits under Cason's liability insurance and indicated that the Morrises would also make a claim under the underinsured motorist coverage of their own policy. Blair forwarded the demand letter to Robert B. Stamps, a State Farm claims superintendent. Blair and Stamps had other conversations regarding the evaluation and status of the Morrises' claim; and Harris wrote follow-up letters regarding the possibility of settlement.
On August 31, 1988, Kenieth Morris was deposed. Vera Morris was not deposed because of her medical condition. On the same day, Blair recommended to Stamps that Vera Morris be paid the maximum provided under Cason's liability coverage as well as the underinsured coverage under her own insurance policy. After obtaining authority from his supervisor, Stamps authorized Blair to offer Vera Morris $25,000 under Cason's policy and $20,000 under her underinsured motorist coverage. Stamps also authorized Blair to offer Kenieth Morris $20,000 under Cason's liability coverage.
State Farm presented evidence that Blair attempted to communicate this offer to Harris on August 31, 1988, but that Blair was not able to get in touch with Harris. The Morrises filed the present action on September 7, 1988. It is undisputed that on September 8, 1988, Blair communicated State Farm's offer to Harris. Harris then notified Blair that this law suit had been filed in Jefferson County and that Harris would defer to counsel in the present action regarding any further settlement offer. Blair then wrote a letter to Harris confirming the telephone conversation.
There is no evidence that the September 8 settlement offer was communicated to the Morrises. Vera Morris testified that the offer was not communicated to her and that she does not know whether Harris advised her husband of the offer. In his deposition, Kenieth Morris testified that Harris had not relayed any information to him regarding the claim.
In November 1988, Cason and his wife, through their attorney, Robert King, filed a counterclaim against Kenieth Morris for damages for the alleged wrongful death of their son. Pursuant to his liability coverage, State Farm retained counsel to defend Mr. Morris. In December 1989, the litigation between the Morrises and the Casons was settled. The Casons did not recover any damages on their wrongful death claim against the Morrises; and Vera Morris received the limit under Cason's liability policy as well as under her underinsured motorist coverage.
In Nabors v. St. Paul Ins. Co., 489 So. 2d 573, 574 (Ala.1986), we stated that an action alleging outrage or outrageous conduct "is an action difficult of proof and one for which recovery may be had only upon meeting all the elements of the stringent standard announced in American Road Service Co. v. Inmon, 394 So. 2d 361 (Ala.1980). "In Inmon, we held that one who, "by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another," is "subject to liability for such emotional distress." Inmon, 394 So. 2d at 365. In order for the plaintiff to recover for emotional distress, it "must be so severe that no reasonable person could be expected to endure it." Inmon, 394 So. 2d at 365. "Any recovery *443 [of damages for this tort] must be reasonable and justified under the circumstances, liability ensuing only when the conduct is extreme." Inmon, 394 So. 2d at 365. Extreme conduct is that which is "so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized society." Inmon, 394 So. 2d at 365.
Recovery of damages for the tort of outrage is limited "to the most reprehensible situations." Kizziah v. Golden Rule Ins. Co., 536 So. 2d 943, 948 (Ala.1988). Moreover, we have held that an insurer cannot be held liable for the tort of outrage when it has done nothing more than insist upon its legal rights in a permissible way. Garvin v. Shewbart, 564 So. 2d 428, 431 (Ala.1990).
"`A jury's verdict is presumed correct and will not be disturbed unless plainly erroneous or manifestly unjust. This presumption of correctness is further strengthened when a motion for new trial is denied by the trial judge....
"`In reviewing the correctness of a jury verdict, this Court must review the record in a light most favorable to the appellee.'"
Continental Cas. Ins. Co. v. McDonald, 567 So. 2d 1208, 1211 (Ala.1990) (quoting Pate v. Sunset Funeral Home, 465 So. 2d 347, 350 (Ala.1984)). Because the jury returned a verdict for Morris, any disputed questions of fact must be resolved in her favor, and we must presume that the jury drew from the facts any reasonable inferences necessary to support its verdict. However, the plaintiff's burden in a case such as this is a heavy one, Green Tree Acceptance, Inc. v. Standridge, 565 So. 2d 38, 44 (Ala.1990), and this Court cannot affirm a judgment based on a verdict if the plaintiff has failed to prove all of the elements of the tort of outrage.
The first issue presented in this appeal is whether Morris presented substantial evidence that State Farm's conduct was "so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized society." Inmon, 394 So. 2d at 365. Absent proof of such conduct, Morris cannot recover damages for the tort of outrage.
In Gibbs v. Aetna Casualty & Surety Co., 604 So. 2d 414 (Ala. 1992), we acknowledged that McDonald, supra, has come to represent the minimum threshold that a defendant must cross in order to commit outrageous conduct. In McDonald, the plaintiff produced evidence that CNA engaged in a concerted pattern of delays in order to cause distress to McDonald and to pressure him into accepting a settlement. 567 So. 2d at 1212. CNA's delay in paying certain hospital bills caused hospitals to file collection actions against McDonald; similarly, McDonald's pharmacy refused to provide further pain medication to McDonald because of CNA's failure to pay previous claims. Id. Moreover, McDonald presented a great deal of documentary evidence that CNA was intent on pressuring McDonald into settling for an amount far less than his actual expenses.
In the present case, although Vera Morris certainly was concerned about her financial condition as a result of State Farm's delay in paying under Cason's liability policy, there is no evidence that State Farm intended to cause her severe emotional distress or that State Farm had improper motives in dealing with her.
In Inmon, the case in which we recognized this tort, we held that the plaintiff had not produced evidence sufficient to support the jury verdict in his favor. 394 So. 2d at 367. In that case, Inmon, the plaintiff, a claims representative for an insurance company, was investigated by his employer regarding his participation in a kickback scheme. Inmon presented evidence that his employer engaged in conduct designed "to keep him off balance" and that "he had been harassed, investigated without cause, humiliated, accused of improper dealings, treated uncustomarily, and terminated without justification." 394 So. 2d at 367. We held, however, that Inmon's evidence did not meet the requirements of the cause of action for the tort of outrage. 394 So. 2d at 367.
*444 The American Law Institute's Restatement (Second) of Torts § 46 (1977) sets out an analysis of the tort of outrage. This Court has adopted the position set forth in comment g to that section; the comment reads: "The actor is never liable, for example, where he has done no more than to insist upon his legal rights in a permissible way, even though he is well aware that such insistence is certain to cause emotional distress...." Inmon, 394 So. 2d at 368; Garvin, 564 So. 2d at 431.
In Garvin, the plaintiff, Garvin, an injured worker, presented evidence that CNA's claims representative delayed processing Garvin's request for coverage of a third back operation. The evidence further showed that CNA stopped paying for prescription medications that Garvin was taking because of her back injury. In affirming the trial court's summary judgment in that case, we stated that "CNA was doing `no more than [insisting] upon [its] legal rights in a permissible way,' Inmon, 394 So. 2d at 368, for which it cannot be held liable in an action based on outrage." Garvin, 564 So. 2d at 431.
Similarly, in the instant case, State Farm was doing no more than insisting upon its legal rights in a permissible way. In the first place, State Farm was not obligated to pay anything under the Morrises' underinsured motorist coverage until the limits of Cason's liability coverage had been exhausted. Under § 32-7-23(b)(4), Ala.Code 1975, underinsured motorist coverage is defined in terms of the excess of damages to which the injured is legally entitled over the sum of the proceeds of all liability bonds and insurance that are available to the injured. With regard to its underinsured motorist coverage, State Farm's insurance policy provides: "There is no coverage until the limits of liability of all bodily injury liability bonds and policies that apply have been used up by payments of judgments or settlements." In construing a similar provision in another policy, we held: "Plaintiff can recover uninsured motorist benefits from [the insurer] only after the limits of applicable liability policies have been exhausted by payment of judgments or settlements." United Services Auto. Ass'n v. Allen, 519 So. 2d 506, 508 (Ala.1988).
The terms of Cason's liability policy obligate State Farm to pay damages that an insured becomes legally obligated to pay. Moreover, State Farm was entitledeven requiredto provide legal representation to Cason in order to defend against the Morrises' action against him.[2] In spite of the undisputed fact that State Farm's claims representative expressed in his preliminary report an opinion that Cason was 100% at fault, Morris did not produce evidence that State Farm's delay in settling the claim was "outrageous and extreme"; nor has Morris presented evidence from which a reasonable jury could conclude that State Farm's actions were taken with the intent to cause Morris severe emotional distress or with the knowledge that Morris was likely to experience severe emotional distress as a result of its conduct. While it was within State Farm's power to settle the claim against Cason before a legal determination was made, we have noted that "there is clearly a threshold beyond which an insurance company's recalcitrance must go before it crosses into outrageous conduct." McDonald, 567 So. 2d at 1216. State Farm's conduct in this case did not cross that threshold.
It is undisputed that soon after the accident State Farm paid the full amount of the Morrises' property damage claim. Moreover, State Farm promptly made payments under the medical payments coverage of the Morrises' insurance policy. State Farm also presented undisputed evidence that just over one year from the date of the accident, State Farm attempted to communicate to the Morrises' attorney an offer to pay the limits of Cason's liability coverage and the limits under Vera Morris's underinsured motorist coverage. The Morrises' counsel then notified State Farm that the present action had been filed. During the pendency of this action, State Farm settled the claim under Cason's liability coverage for $25,000 and paid Vera *445 Morris $20,000 under her underinsured motorist coverage.
After reviewing the evidence in light of the standard set out above, we conclude that, as a matter of law, Vera Morris did not produce evidence from which a reasonable jury could conclude that State Farm engaged in conduct so "extreme" and "outrageous" as to lead to liability for damages for the tort of outrage. See Inmon, 394 So. 2d at 365.
Even if State Farm's conduct had been of such a character as to be termed "outrageous" and "extreme" within the meaning of Inmon, we nevertheless would have to conclude that Morris produced no evidence from which a reasonable jury could conclude that she suffered emotional distress so severe that no reasonable person could be expected to endure it. Inmon, 394 So. 2d at 365.
Vera Morris presented testimony that she became more and more worried and frustrated during her lengthy convalescence. She further showed that she suffered sleeplessness and distress, wondering how she and her husband would pay everyone. In light of the fact that the Morrises had paid $25,000 of their own money for medical expenses, one could conclude that she was concerned about their financial condition. The evidence indicated that her worrying lasted from the time she became well enough to be aware until the proceeds of the insurance policies were paid. She further testified that she did not have to seek professional treatment or counseling because of her distress.
In McDonald, we noted that the plaintiff's pain "was an immediate, day to day need." 567 So. 2d at 1220. While treatment for Vera Morris's medical condition was also a day to day need and concern, her situation was not similar to that of the plaintiff in McDonald, because, in that case, the defendant's delay in paying McDonald's claims led to refusals by certain providers to provide further medical treatment. There is no evidence that either of the Morrises was unable to obtain medical treatment for the injuries. Rather, the record shows that Vera Morris's concern was over their future financial condition.
In U.S.A. Oil, Inc. v. Smith, 415 So. 2d 1098, 1101 (Ala.Civ.App.), cert. denied, 415 So. 2d 1102 (Ala.1982), the Court of Civil Appeals commented:
In that case, the court stated that "though [the plaintiff] apparently did suffer some distress, it was not so `severe' as to support recovery for the tort of outrage." 415 So. 2d at 1101. Similarly, we conclude that although the evidence indicates that Vera Morris did suffer some emotional distress, it does not support the jury's conclusion that her distress was so severe that no reasonable person could be expected to endure it.
Thus we conclude that the trial court erred in overruling State Farm's motion for a judgment notwithstanding the verdict. Accordingly, the judgment of the trial court is reversed and a judgment for the defendant is rendered.
REVERSED AND JUDGMENT RENDERED.
HORNSBY, C.J., and ALMON, ADAMS and STEAGALL, JJ., concur.
[1] A level of 163 milligrams per deciliter is equivalent to .163 percent by weight alcohol in blood.
[2] In accord with this requirement, State Farm also retained legal counsel to represent Mr. Morris in defense of the Casons' claim against him. | January 8, 1993 |
06bca5b7-04e6-4eae-a93f-1ed390a499ae | SH Kress & Company v. Thompson | 103 So. 2d 171 | N/A | Alabama | Alabama Supreme Court | 103 So. 2d 171 (1957)
S. H. KRESS & COMPANY
v.
Kate THOMPSON.
6 Div. 932.
Supreme Court of Alabama.
October 24, 1957.
Rehearing Denied June 12, 1958.
*172 White, Bradley, Arant, All & Rose and J. Reese Murray, Jr., Birmingham, for appellant.
Harold M. Cook, Birmingham, for appellee.
LIVINGSTON, Chief Justice.
This suit was filed by appellee, Mrs. Kate Thompson, against appellant, S. H. Kress & Company, for personal injuries alleged to have been suffered by Mrs. Thompson when she slipped and fell in the appellant's store located in Birmingham, Alabama.
In substance, the complaint alleged that the injuries of the appellee were sustained from a fall which was proximately caused by the negligent maintenance of the floors in the store of the appellant. The judgment below was for the appellee, and from this judgment the appellant has perfected an appeal.
The sole question argued on this appeal is the refusal of the trial court to give the affirmative charge in favor of the appellant. It is argued that the appellee did not present a prima facie case, in that she did not introduce evidence of the appellant's alleged negligence.
To determine if the court below committed reversible error in refusing to give the affirmative charge in favor of the appellant, all the evidence introduced in the case will have to be considered in its most favorable aspect for the plaintiff. F. W. Woolworth Co. v. Ney, 239 Ala. 233, 194 So. 667.
The evidence tended to show that the appellee was proceeding from the rear toward the front of the store, upon a major aisle running the entire length of the store. She was walking in a "normal" and "ordinary" manner. While proceeding down the aisle, she slipped and fell. There was *173 testimony to the effect that the substance she slipped upon was "many times bigger" than a half-dollar, that it was "splattered" and "smeared," and that it "didn't appear to be candy. There was too much of it there." The nature of this foreign substance was never specifically identified, though it was contended by the appellant that it was "spit-out candy."
There was uncontroverted evidence introduced to the effect that the appellant had cleaned its floor only a few minutes before the appellee fell. In interrogatories propounded by the appellee, the appellant answered that they "had a full-time porter who continuously inspects and cleans said first floor; he has no other duties. No time had elapsed since said porter inspected and cleaned said floor as he continuously inspected and cleaned said floor on said date." The appellant further stated that they had from "* * * four to five employees, including the supervisor, continuously inspect said floor including the passageway during store hours." There was also evidence introduced which tended to show that there were fourteen clerks stationed behind the counters along the aisle. One of these clerks saw the appellee fall.
There was no evidence introduced by the appellee as to how long the foreign substance had been on the floor, nor was it shown that any of the agents or employees of the appellant knew it was on the floor. There was no dispute of the testimony of the appellant that the floor had been swept by the janitor shortly before the accident occurred.
The crucial question in the instant case is whether there was sufficient evidence introduced to show that the appellant was negligent in allowing the foreign substance to be or remain upon the floor. If there was sufficient evidence introduced to take the question to the jury, the decision below must be affirmed.
In the instant case, the appellee is an invitee, and being upon the premises of the appellant in that capacity there was a duty cast upon the appellant to exercise reasonable care to keep the premises in safe condition in her behalf. Ten Ball Novelty & Mfg. Co. v. Allen, 255 Ala. 418, 51 So. 2d 690; Standard Oil Co. v. Gentry, 241 Ala. 62, 1 So. 2d 29; F. W. Woolworth Co. v. Ney, supra. But because the defendant is burdened with this duty does not render him an insurer, he is liable only for his negligence in failing to exercise reasonable care to maintain his premises in a safe condition. F. W. Woolworth Co. v. Ney, supra; Ensley Holding Co. v. Kelley, 229 Ala. 650, 158 So. 896.
In concluding that the burden of proving the negligence of the defendant rested upon the plaintiff, and in determining the extent of proof necessary to show such negligence, this court in F. W. Woolworth Co. v. Ney, supra [239 Ala. 233, 194 So. 669], made the following statement:
The rule is also well established that if there is evidence which tends to show that a foreign substance has been on the floor for a long while, it is proper for a jury to impute negligence to the defendant for not discovering and removing such foreign substance. Great Atlantic & Pacific Tea Co. v. Popkins, 260 Ala. 97, 69 So. 2d 274; Rowe v. Alabama Power Co., 232 *174 Ala. 257, 167 So. 324; Anjou v. Boston Elevated Railway Co., 208 Mass. 273, 94 N.E. 386. So to prove negligence on the part of the defendant it is necessary to prove that the foreign substance was on the floor a sufficient length of time to impute constructive notice to the defendant, or that he had actual notice, or that he was delinquent in not discovering and removing it. In the absence of such proof, the plaintiff has not made out a prima facie case that the defendant was negligent in the maintenance of its floors. Concerning this element of proof, Justice Holmes in Goddard v. Boston & M. R. Co., 179 Mass. 52, 60 N.E. 486, having affirmed the decision below for the defendant, stated:
It is not necessary, however, to enter direct evidence as to the length of time a foreign substance has remained on the floor; it is permissible to allow a jury to infer the length of time from the nature and condition of the foreign substance. In Great Atlantic & Pacific Tea Co. v. Popkins, supra, wherein the plaintiff slipped on a lettuce leaf, this court stated [260 Ala. 97, 69 So.2d 276]:
In the instant case, there was no evidence introduced as to how long the foreign substance upon which Mrs. Thompson slipped was on the floor. For aught that appears from the evidence introduced, it might have been dropped upon the floor a minute before the appellee slipped upon it. No evidence was introduced to the effect that the appellant or any agent of the appellant knew the substance was on the floor. Evidence was introduced to the effect that the foreign substance was "scattered and smeared" and many times bigger than a half-dollar, but such evidence as to the condition and size of the substance would not tend to show that it had been upon the floor for any appreciable length of time. In fact, the more logical inference as to the substance being scattered and smeared would be that this occurred when Mrs. Thompson slipped and fell on such substance.
It is the contention of the appellee, however, not that the appellant negligently failed to inspect its premises, but that the inspection of the premises was performed in a negligent manner. Appellee's argument seems to be based on the theory that a proper inspection of the floor was bound to reveal the existence of the foreign substance. In support, she calls attention to appellant's answers to appellee's interrogatories which were in evidence.
Appellee cites, among others, the case of Central of Georgia Ry. Co. v. Lee, 227 Ala. 661, 151 So. 840, 841, where it was said:
This theory is not applicable here.
By no stretch of the imagination can it be said that appellant's answer to interrogatories, as set out above, means that the *175 porter continuously inspected the exact spot where appellee fell; nor is the position fortified by the presence in the store of a supervisor and other employees who continuously inspect said floor, including the passageway, during store hours. The porter's duties required him to inspect and clean the entire first floor of the building in which appellant operates its business. The testimony shows that the aisle in which appellee fell was 7 feet wide and 122 feet long. Obviously, the porter cannot be on all parts of the first floor at one and the same time.
Considering this insistence, and the evidence claimed to support it, it does not change the result. In order to prove that there was a negligent inspection, it is still incumbent upon appellee to prove, or to offer evidence from which it can reasonably be said, that the foreign substance was on the floor at the time of the inspection. This, the appellee has failed to do.
We do not think the evidence is sufficient, under our cases, to make a case for the jury, and the appellant was due the affirmative charge.
Reversed and remanded.
SIMPSON, GOODWYN and COLEMAN, JJ., concur.
On Rehearing
PER CURIAM.
Application for rehearing overruled.
LAWSON, GOODWYN and COLEMAN, JJ., concur.
SIMPSON and MERRILL, JJ., dissent.
STAKELY, J., not sitting.
SIMPSON, Justice (dissenting).
The facts sufficiently appear in the opinion of the Chief Justice.
Where the affirmative charge is refused to the defendant we are guided by the oft stated rule that the evidence must be viewed in the light most favorable to the plaintiff, and if there is a scintilla to support the complaint, the trial court's action in refusing the charge must be affirmed. Adams v. Queen Ins. Co. of America, 264 Ala. 572, 88 So. 2d 331; Hasty v. Hasty, 260 Ala. 90, 69 So. 2d 282; Aircraft Sales & Service v. Gantt, 255 Ala. 508, 52 So. 2d 388.
Several Alabama cases have been concerned with the problem presented on this rehearing. Following are some.
In Britling Cafeteria Co. v. Naylor, 254 Ala. 84, 47 So. 2d 187, the plaintiff slipped and fell while passing through the serving line. Later she discovered a bean on the bottom of her shoe. This court held there was no evidence showing the defendant caused the bean to be on the floor or that the defendant was in any way negligent in allowing the bean to remain on the floor. The court, of course, held that from the mere fact of injury, negligence cannot be assumed.
In Kittrell v. Alabama Power Co., 258 Ala. 381, 63 So. 2d 363, plaintiff slipped and fell while on the premises of the defendant. This court held that there was no evidence tending to show that an employee of defendant knew the substance was on the floor nor that anything had arisen which would cause a reasonable person to investigate the floor as to existing conditions.
In the Britling case, supra, the plaintiff had gotten a verdict in the trial court and this court held the affirmative charge should have been given. In the Kittrell case, supra, the trial court gave the affirmative charge with hypothesis for defendant at the close of plaintiff's evidence and we affirmed.
Another case stating the scintilla rule is Sullivan v. Alabama Power Co., 246 Ala. 262, 20 So. 2d 224, 227. Plaintiff's intestate was killed while trying to disengage *176 a kite from power lines with an iron pipe. The trial court directed a verdict for defendant on the ground that there had been a failure to prove negligence. This court reversed. The opinion stated:
The evidence for the plaintiff in the case at bar from which the inference of negligence might be drawn is as follows (R. 34-35):
"Q. I will ask you if it was compact, or did it appear to be smeared? A. It was smeared.
"Q. Could you tell whether it had been tracked on?
"(Objection)
The evidence for the plaintiff further showed there was nothing to prevent the clerks from seeing the substance on the floor. And in answer to interrogatories the defendant stated that there was a porter on duty who cleaned the floors and inspected them continuously. If such be true (continuous inspections) then it seems fair to say that the jury could have inferred from the condition of the offending substance that this employee was negligent in not discovering it in time to protect invitees, such as plaintiff, by removing it.
We think three recent cases by this court are sustentive in holding that the case presented a jury question, Great Atlantic & Pacific Tea Co. v. Popkins, 260 Ala. 97, 69 So. 2d 274; Great Atlantic & Pacific Tea Co. v. Weems, 266 Ala. 415, 96 So. 2d 741; Great Atlantic & Pacific Tea Co. v. Bennett, Ala., 103 So. 2d 177.
In the Popkins case the plaintiff slipped and fell in a grocery store on a piece of lettuce leaf and the court stated [260 Ala. 97, 69 So.2d 276]:
In the Weems case [266 Ala. 415, 96 So. 2d 743] the substance was an "old, dirty, mashed lettuce leaf".
In the Bennett case, the leaf on which the plaintiff slipped was a vegetable leaf. "`It was green and kind of rolled * * * appeared to be rolled up or crushed'" and was dirty, pushed, or crumpled.
In each of these cases this court, after serious deliberation, concluded that there was a scintilla of evidence to go to the *177 jury and that the affirmative charge was properly refused.
It is impossible to rationalize any distinction between the last three cited cases and the one at bar.
Mr. Justice MERRILL concurs in this dissent. | October 24, 1957 |
68495cbd-1b96-4325-bea4-d4eedd0c1546 | Ex Parte Plumbers & Steamfitters, Local 52 | 622 So. 2d 347 | 1910881 | Alabama | Alabama Supreme Court | 622 So. 2d 347 (1993)
Ex parte PLUMBERS AND STEAMFITTERS, LOCAL 52.
(Re PLUMBERS AND STEAMFITTERS, LOCAL 52 v. ALABAMA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT, et al.)
1910881.
Supreme Court of Alabama.
January 29, 1993.
L. Gilbert Kendrick of Kendrick & Glassroth, Montgomery, for petitioner.
Tommy E. Bryan, Asst. Atty. Gen., Alabama Dept. of Environmental Management, for respondents.
Mel S. Schulze of Hunton & Williams, Atlanta, GA, and David R. Boyd and Dorman Walker of Balch & Bingham, Montgomery, for intervenor-respondent General Elec. Co.
KENNEDY, Justice.
The Plumbers and Steamfitters Local Union 52 ("Local 52"), has petitioned for certiorari review of the judgment of the Alabama Court of Civil Appeals in Plumbers & Steamfitters, Local Union 52 v. Alabama Dep't of Envtl. Management, 622 So. 2d 343 (Ala.Civ.App.1992). The Court of Civil Appeals affirmed the trial *348 court's judgment dismissing Local 52's appeal from a decision of the Alabama Environmental Management Commission ("EMC"); that dismissal had been on motion of General Electric Company ("G.E."), and the Alabama Department of Environmental Management ("ADEM"), who are respondents in this Court.
The undisputed facts of this case are as follows:
In 1988, G.E. applied to ADEM for permits to build and operate two boilers at its Burkville, Alabama, plastics manufacturing plant. ADEM approved, and issued G.E. the permits; thereafter, Local 52 filed an appeal of that issuance with the EMC. In response, the EMC appointed a hearing officer to make a recommendation to it as to how it should rule on Local 52's appeal.
After extensive discovery, a hearing was held on April 19 and 20, 1989. Thereafter, the hearing officer recommended that the issuance of the permits be reversed. She concluded that, contrary to law, ADEM had failed to properly examine whether G.E. would utilize the best available technology for controlling air pollutants. In this regard, she stated that "the evidence established that ADEM, in violation of EPA policy statements and guidelines, failed to adequately consider alternative technologies available." She further determined that ADEM had issued the permits without obtaining "monitoring data and inventory data in arsenic and benzene emissions." She stated that, in fact, "ADEM and G.E. ha[d] not performed an air quality analysis for arsenic and benzene."
Despite the conclusions of its hearing officer, the EMC affirmed the issuance of the permits. From that decision, Local 52 appealed to the Circuit Court of Montgomery County, consistent with the review provisions of the Alabama Environmental Management Act (the "AEMA") at Ala. Code 1975, § 22-22A-7(c)(6).
It is undisputed that Local 52 did not comply with the provisions of the Administrative Procedure Act (the "APA") at Ala. Code 1975, § 41-22-20.
At issue is whether in perfecting an appeal of a decision of the EMC, like this one, one is required only to adhere to the AEMA at § 22-22A-7(c)(6). On this question, the trial court determined that in most respects § 41-22-20 of the APA must be followed in addition to the requirements of § 22-22A-7(c)(6), and it dismissed Local 52's appeal.
The AEMA, at Ala.Code 1975, § 22-22A-7(c)(6), which Local 52 followed in appealing, provides in pertinent part:
The APA contains an express exception to its applicability where the foregoing provision applies. The APA states in pertinent part, that "[e]xcept as provided in subsection (6) of subsection (c) of section 22-22A-7, judicial review of any order of the environmental management commission modifying, approving or disapproving an administrative action of [ADEM] shall be in accordance with ... [§] 41-22-20," Ala.Code 1975, § 41-22-27(f) (emphasis added). Stated differently, consistent with § 41-22-27(f) of the APA, where the APA at § 41-22-20 and the AEMA at § 22-22A-7(c)(6) conflict, the latter controls. Where there is no conflict, they are to be read together.
In this regard, the trial court held that the APA at § 41-22-20 differed from § 22-22A-7(c)(6) as to perfecting an appeal in only one respect: the time for filing an appeal. Thus, concluded the trial court, all other requirements of the APA at § 41-22-20 as to perfecting an appeal applied to augment the requirements of § 22-22A-7(c)(6) of the AEMA.
The AEMA has simple and straightforward requirements at § 22-22A-7(c)(6) for *349 perfecting an appeal from an order of the EMC. The AEMA does not require a petition for review, nor any bond. Rather, under § 22-22A-7(c)(6), it is sufficient that a notice of appeal is filed with the appropriate circuit court. Under § 22-22A-7(c)(6), the notice of appeal must be filed with the appropriate circuit court "within" 30 days after an order of the EMC is issued. Venue is prescribed as appropriate in Montgomery County and in the county where the appellant does business or resides.[1] Ala.Code 1975, § 22-22A-7(c)(6).
As to each of the foregoing matters, the APA at § 41-22-20 is squarely at odds with § 22-22A-7(c)(6). For example, the APA at § 41-22-20 requires that the notice of appeal be filed with the agency "within 30 days after receipt of the notice of or other service of the final decision of the agency." Within 30 days after that filing, a "petition for review" (in a prescribed form and content) must be filed in the appropriate circuit court. As stated, the AEMA at § 22-22A-7(c)(6) directs that the notice of appeal be filed with the appropriate circuit court within 30 days of the issuance of EMC's order. Under § 22-22A-7(c)(6) there is no requirement of a petition for review.
The APA at § 41-22-20 approves of venue in Montgomery County, where the agency is headquartered, where any party (other than an intervenor) resides or, if such a party is a corporation, then where the corporation has a registered office or principal place of business in this state. The APA also requires a cost bond. In contrast, § 22-22A-7(c)(6) indicates as a proper venue only Montgomery County or the county where the appellant resides or does business, and it requires no cost bond.
Because, in its requirements for perfecting an appeal, the APA at § 41-22-20 is different from § 22-22A-7(c)(6) in every material respect, § 41-22-20 does not, consistent with the exception to its applicability found at § 41-22-27(f), apply to prescribe requirements for perfecting an appeal from the EMC to the circuit court, such as this one.
In creating simple and brief requirements for perfecting an appeal at § 22-22A-7(c)(6), and in giving an exemption from the provisions of § 41-22-20 where § 22-22A-7(c)(6) applies, the legislature evidenced an understandable sensitivity to the gravity of the type of appeals covered by the AEMA at § 22-22A-7(c)(6). These appeals often involve some risk of serious adverse effects to the health and welfare of the public and sometimes the risk of widespread and irreparable harm. Although technical requirements for perfecting an appeal have significant benefits, the greater the detail or the greater the number of technical requirements for perfecting any appeal, the greater the risk that an appeal will never be heard on its merits. Such increased risk is logically undesirable where, as here, potentially grave and far-reaching matters involving the public health and welfare are involved.
However, we emphasize that § 22-22A-7(c)(6) prescribes rules for perfecting appeals from the EMC. Thus, the "`except as provided for' in § 22-22A-7(c)(6)" language found in the APA at § 41-20-27(f) would not apply to exclude the coverage of § 41-22-20 where it addresses questions unrelated to perfecting such an appeal. See e.g., Ala.Code 1975, § 41-22-20(j) (which provides that "[t]he review shall be conducted by the court without a jury").
REVERSED AND REMANDED.
MADDOX, ALMON, SHORES, ADAMS and STEAGALL, JJ., concur.
[1] Section 22-22A-7(c)(6) states literally that venue is proper in Montgomery County or "the circuit court in which the appellant does business or resides." Because one obviously does not "do business" or "reside" in a "circuit court," it is apparent that the legislature meant to say "in the circuit court of the county where the appellant does business or resides." | January 29, 1993 |
a0ee053c-9cdf-423e-98f4-e4af9b696efa | Drill Parts and Service Co. v. Joy Mfg. | 619 So. 2d 1280 | 1911102 | Alabama | Alabama Supreme Court | 619 So. 2d 1280 (1993)
DRILL PARTS AND SERVICE COMPANY, INC., and Carlton Montgomery
v.
JOY MANUFACTURING COMPANY, et al.
1911102.
Supreme Court of Alabama.
January 8, 1993.
Rehearing Denied April 9, 1993.
*1282 Charles Cleveland of Cleveland & Cleveland, P.C., and Frederick A. Erben of Beddow, Erben & Bowen, P.A., Birmingham, for appellants.
Jasper P. Juliano and David A. Lee of Parsons, Lee & Juliano, P.C., Birmingham, for appellees.
HORNSBY, Chief Justice.
On February 18, 1983, Drill Parts and Service Company, Inc. ("Drill Parts"), and Carlton Montgomery sued Joy Manufacturing Company ("Joy"), Donald Earl Giles, Legal Services Detective Agency ("Legal Services"), Richard Gianetti, and Michael Jenkins, alleging false imprisonment, trespass, abuse of process, defamation, and conspiracy. The defendants moved for a summary judgment. On March 11, 1992, the trial court entered a summary judgment for the defendants as to all claims. The plaintiffs appeal. We affirm.
Before relating the facts, we note that "[i]n reviewing the disposition of a motion for summary judgment, we utilize the same standard as the trial court in determining whether the evidence before [it] made out a genuine issue of material fact" and whether the defendant was "entitled to a judgment as a matter of law." Bussey v. John Deere Co., 531 So. 2d 860, 862 (Ala.1988); Rule 56(c), Ala.R.Civ.P. Because the plaintiffs commenced this action before June 11, 1987, the applicable standard for testing a summary judgment motion is the "scintilla rule." Ala.Code 1975, § 12-21-12. Under that standard, when the movant has made a prima facie showing, by admissible evidence, that there is no genuine issue of material fact and that the movant is entitled to a judgment as a matter of law, the party opposing the summary judgment motion need only produce a scintilla of evidence establishing the existence of a genuine issue of material fact. If the nonmovant carries this burden, the trial court must deny the motion for summary judgment. Kimbrel v. Mercedes-Benz Credit Corp., 476 So. 2d 94 (Ala.1985); see Rule 56(c), Ala.R.Civ.P., and comments thereto. Our review is further subject to the caveat that this Court must review the record in a light most favorable to the nonmovant, resolving all reasonable doubts against the movant. Hanners v. Balfour Guthrie, Inc., 564 So. 2d 412, 413 (Ala.1990).
Joy manufactures "Robbins Drills," rotary drills used primarily in the mining and construction industries to drill holes for *1283 explosives. It acquired the right to manufacture Robbins Drills in 1971 from Robbins Machinery Company, Inc. ("Robbins"). Approximately 40 percent of the replacement parts for Robbins Drills are custom designed and manufactured to fit the drills. Joy manufactures some of these custom-designed parts itself and it subcontracts with independent machine shops for the manufacture of some parts. Joy's engineers calculate the configurations, dimensions, materials, tolerances, and other specifications for each part and record this information on an engineering drawing. Joy places its logo on each engineering drawing, and it contends that these drawings are its trade secrets. Although the parties in this action dispute the adequacy of the security measures Joy uses to protect its drawings from use by competitors, this Court has already reviewed the evidence pertaining to Joy's protective measures in Drill Parts & Service Co. v. Joy Manufacturing Co., 439 So. 2d 43 (Ala.1983) (hereinafter Drill Parts I). In that case we held that there was sufficient evidence from which the trial court could find that Joy's drawings constituted trade secrets. Id. at 45-47, 49-50.
The plaintiff Carlton Montgomery worked first for Robbins and thereafter for Joy, until 1977, when he left Joy to form Drill Parts, a company designed to compete with Joy in servicing and selling replacement parts for mining and construction equipment, including Robbins Drills. The plaintiffs admit that Montgomery obtained several hundred copies of Joy's engineering drawings and used them to manufacture parts for Robbins Drills. However, they claim he violated no criminal law in obtaining these drawings.
In August 1982, Joy's vice president, Donald Giles, received an anonymous tip informing him that a former Joy employee had stolen copies of Joy's engineering drawings. This tip prompted Joy to hire Legal Services, a private detective agency owned by Richard Gianetti, to investigate several of Joy's competitors. In September 1982, Gianetti contacted Sergeant Dennis Blass of the "Leviticus Project Association," a United States Department of Justice investigation into crime in the coal industry. Gianetti, Giles, and Blass met to discuss the possibility of criminally prosecuting any of Joy's competitors in possession of Joy's drawings. Although the parties to this action dispute the details and the significance of this meeting, as a result of it Blass commenced a criminal investigation of Montgomery and Drill Parts.
Blass made several telephone calls to Montgomery, posing as a "locator" from Fort Collins, Colorado, trying to find replacement parts for Robbins Drills on behalf of a client in Mexico. Ultimately, Montgomery agreed to sell Blass a set of 65 engineering drawings for $18,000 in cash. On October 18, 1982, the day before the exchange took place, Blass and Gianetti, without Montgomery's knowledge, inspected Drill Parts' warehouse, through an open door. They claim to have seen in the warehouse at that time several copies of engineering drawings bearing Joy's logo. Around 9:00 p.m. the same day, Blass and Gianetti went to Judge Jack Montgomery's home and secured from him a warrant authorizing a general search of Drill Parts' premises and a seizure of any documents belonging to Joy.
On October 19, 1982, before Blass met Montgomery, Blass met with a Jefferson County deputy sheriff and several officers from the Birmingham Police Department and instructed them in executing the search warrant at Drill Parts. At 9:00 a.m. Blass met Montgomery in the lobby of the Airport Holiday Inn in Birmingham and took him to room 212. Montgomery then sold Blass copies of Joy's engineering drawings, and Blass arrested him for theft of property. Police officers located in room 210 listened to the transaction between Blass and Montgomery and assisted Blass with Montgomery's arrest. Gianetti was also present in room 210, as was a reporter from the Birmingham News, Nancy Campbell.
Following his arrest, Montgomery was taken to jail, fingerprinted, and photographed. He was released from custody that afternoon. He has never been criminally prosecuted for his possession of Joy's *1284 engineering drawings. Montgomery alleges that the defendants caused his arrest and that Blass did not have probable cause to arrest him. Therefore, he says, the defendants are liable for falsely imprisoning him.
At about 12:00 noon on October 19, 1982, shortly after Montgomery's arrest, police officers executed the search warrant against Drill Parts. Giles and Michael Jenkins, a private investigator employed by Legal Services, assisted the officers in examining file cabinets, desks, and bookshelves on Drill Parts' premises. The officers seized several copies of Joy's engineering drawings and two hardware books containing the serial numbers for Joy's custom designed parts. The plaintiffs claim that Giles and Jenkins trespassed on Drill Parts' premises, not only because, they say, the officers executing the search warrant had not requested Giles and Jenkins's assistance, but also because, they say, Judge Montgomery lacked probable cause for issuing a search warrant.
The plaintiffs further allege that the defendants knew, or should have known because of what they refer to as Joy's inadequate protective measures, that the plaintiffs had violated no criminal law in obtaining copies of Joy's engineering drawings and, they further allege, the defendants, despite their knowledge, caused Judge Montgomery to issue a search warrant against Drill Parts by willfully misrepresenting to Blass and Judge Montgomery that the defendants had violated a criminal law. The plaintiffs claim that the defendants used the criminal search warrant to gather information to use in a civil trial against Drill Parts.[1] Therefore, the plaintiffs contend that the defendants are liable for abuse of process.
On October 20, 1982, November 5, 1982, and January 30, 1983, the Birmingham News published articles about Montgomery's arrest, his possible theft indictment, and the search of Drill Parts' premises. The Birmingham Post-Herald also published an article on October 21, 1982, about Montgomery's arrest. The plaintiffs claim that all of these articles were defamatory per se.
First, the plaintiffs argue that the summary judgment for the defendants was improper as to the false imprisonment claim, because, they say, the defendants caused Montgomery's arrest and the arrest was unlawful because Blass had not complied with either § 15-10-3 or -4, Ala.Code 1975.
"False imprisonment consists of the unlawful detention of the person of another for any length of time whereby he is deprived of his liberty." Ala.Code 1975, § 6-5-170. Section 15-10-4 lists the procedural requirements for a warrantless arrest. It provides, in part: "When arresting a person without a warrant, the officer must inform [the arrestee] of his authority and the cause of arrest, except when the person is arrested in the actual commission of a public offense or on pursuit." Ala. Code 1975, § 15-10-4 (emphasis added). The defendants admit that, because Blass was operating undercover, he did not inform Montgomery that he was a police officer. However, the defendants argue that Montgomery's arrest was within the exception to § 15-10-4, for arrests made during the actual commission of an offense. Because the defendants made a prima facie showing that Blass arrested Montgomery because Blass believed that Montgomery was selling him stolen engineering drawings, and the plaintiffs offered no *1285 scintilla of evidence to rebut that showing, the arrest complied with § 15-10-4.
The plaintiffs also argue that Montgomery's arrest violated § 15-10-3, the statute authorizing warrantless arrests, because, they say, had Blass conducted a proper investigation, he would have learned that Montgomery had violated no criminal law in obtaining copies of Joy's engineering drawings. Therefore, they say, Blass lacked the probable cause necessary to arrest Montgomery without a warrant.
Blass stated in his affidavit that he arrested Montgomery without a warrant because he had probable cause to believe that Montgomery had stolen Joy's property. Blass says he based his belief on his knowledge of Joy's procedures for protecting the secrecy of its engineering drawings; on his investigation of Drill Parts' warehouse, which, he says, revealed copies of Joy's engineering drawings in Drill Part's possession; and on the fact that, he says, during one of his conversations with Montgomery, Montgomery asked him not to reveal that Montgomery was selling him copies of Joy's drawings. Therefore, the defendants made a prima facie showing that, even if Montgomery obtained copies of Joy's drawings without violating a criminal law, at the time Blass arrested Montgomery Blass had probable cause for believing that Montgomery had committed a theft of property, and the plaintiffs have presented no scintilla of evidence to rebut this showing. See Ala.Code 1975, § 15-10-3(4).
Because the evidence showed that Blass's arrest of Montgomery did not violate § 15-10-3 or -4, we conclude that Montgomery's arrest was not wrongful. Accordingly, we affirm the summary judgment as to the plaintiffs' false imprisonment claim.
The plaintiffs also argue that the summary judgment for the defendants was improper as to the trespass claim. The plaintiffs assert alternative theories under which the defendants would be liable for trespassing on Drill Parts' premises. First, the plaintiffs argue that everyone who entered Drill Parts' premises under the authority of the search warrant committed trespass, because, they say, the warrant was invalid. They say it was invalid because, in issuing it, they say, Judge Montgomery did not comply with Ala.Code 1975, §§ 15-5-2, -4, and -5, and because, they also say, it did not describe with particularity the property to be seized.
Alabama Code 1975, § 15-5-5, authorizes a judge to issue a search warrant when he has probable cause for believing that one of the grounds for issuance listed in § 15-5-2 exists. In this case Judge Montgomery stated in the search warrant that he was issuing it because he found probable cause for believing that Drill Parts possessed "blueprints and other documents belonging to Joy." This finding satisfies § 15-5-2(1), which authorizes the issuance of a warrant when there is probable cause for believing that property has been stolen or embezzled.
Section 15-5-4 requires a judge, before issuing a warrant, to take a written deposition from the complainant, setting forth the facts establishing probable cause for issuing the warrant. The record shows that Blass prepared a written memorandum setting forth the facts giving him probable cause for suspecting Montgomery and Drill Parts of theft, and it further shows that Blass gave this memorandum to Judge Montgomery. Clearly, Judge Montgomery satisfied § 15-5-4.
Because we reject the plaintiffs' argument that the warrant was invalid under § 15-5-2, -4, or -5, we turn to the plaintiffs' argument that the search warrant did not describe with particularity the property to be seized. The search warrant directed any lawful officer of Jefferson County, Alabama, to conduct a search of Drill Parts' premises and to seize "[b]lueprints and other documents belonging to Joy." The plaintiffs argue that, because the warrant specified only property "belonging to Joy," it was not adequate guidance for officers attempting to determine what property to seize.
*1286 The Alabama Court of Criminal Appeals has held that a search warrant is not invalid merely because it provides only a general description of the property to be seized, "if a more precise description is not possible." State v. Teague, 469 So. 2d 1310, 1317 (Ala.Crim.App.1985). The record in this case shows that Blass attached an affidavit to the search warrant. The affidavit listed property, possessed by Montgomery, but allegedly belonging to Joy, including blueprints to Joy's products and equipment. The affidavit also contained Blass's statement that he had seen the listed items on Drill Parts' premises. In his deposition, Blass stated that, in preparing the officers assigned to search Drill Parts' premises, he showed them a copy of one of Joy's engineering drawings, and, he says, he told them that representatives from Joy would be present during the search to help the officers identify Joy's property. The defendants' evidence, unrebutted, requires a conclusion that the search warrant was not invalid for a lack of specificity, and we therefore reject the plaintiffs' argument that everyone who entered Drill Parts' premises pursuant to the search warrant was a trespasser.
Alternatively, the plaintiffs argue that Giles and Jenkins trespassed on Drill Parts' premises because they accompanied the police officers who searched Drill Parts' premises but, the plaintiffs say, had not been invited by those officers. Ala. Code 1975, § 15-5-7, provides: "A search warrant may be executed by any one of the officers to whom it is directed, but by no other person except in aid of such officer at his request, he being present and acting in its execution." (Emphasis added.) In construing the emphasized portion of this statute, the Alabama Court of Criminal Appeals has held that an officer need not expressly request the civilian's assistance in order to comply with the statute; instead, that court concluded that § 15-5-7 is satisfied if a reasonable person would infer from the circumstances that the officer executing the search warrant requested the civilian's assistance. Yeager v. State, 500 So. 2d 1260, 1273 (Ala.Crim.App.1986).
In his deposition given in support of the defendants' summary judgment motion, Blass stated that, before the search, he asked Giles and Jenkins to help the officers conducting the search to identify Joy's property and, he says, he told all the officers executing the warrant that Giles and Jenkins would be available to assist them during the search. All of the evidence indicates that Blass was ultimately responsible for the search. Therefore, we conclude that the defendants have made a prima facie showing that a reasonable person would infer from these circumstances that the officers who physically executed the search warrant had requested assistance from Giles and Jenkins. The plaintiffs presented no scintilla of evidence rebutting that showing. Accordingly, we affirm the summary judgment as to the plaintiffs' trespass claim.
The plaintiffs also argue that the summary judgment was improper as to their abuse of process claim because, they say, the defendants used a criminal search warrant to gather evidence for a civil action against the plaintiffs. This Court recently held, in Dardess v. Blasingame, 585 So. 2d 8, 10 (Ala.1991), that "[t]he elements of a cause of action for abuse of process are: 1) malice; 2) the existence of an ulterior purpose; 3) an act in the use of process not proper in the regular prosecution of the proceedings; and 4) lack of probable cause." Over the years this Court has struggled with the question of whether lack of probable cause is an essential element of an abuse of process action. This Court defined the actions of malicious prosecution and abuse of process, and distinguished between these actions, in Dickerson v. Schwabacher, 177 Ala. 371, 375-76, 58 So. 986, 988 (1912):
(quoting Brown v. Master, 104 Ala. 451, 462-63, 16 So. 443, 446-47 (1894)). After Dickerson, this Court stated, in Clikos v. Long, 231 Ala. 424, 428, 165 So. 394, 397 (1936), that an abuse of process action consisted of two elements: "`First the existence of an ulterior purpose, and, second, an act in the use of process not proper in the regular prosecution of the proceedings.' " (Quoting T. Cooley, Cooley on Torts § 131, at 437 (4th ed. 1932)).
Tarver v. Household Finance Corp., 291 Ala. 25, 277 So. 2d 330 (1973), was the first Alabama case holding that lack of probable cause was an element in an abuse of process action. The Tarver Court discussed Dickerson and Clikos, and quoted an excerpt from Prosser on Torts (4th ed.) § 121 stating that, "`in an action for abuse of process it is unnecessary for the plaintiff to prove that the proceeding has terminated in his favor, or that the process was obtained without probable cause or in the course of a proceeding begun without probable cause.'" Tarver, 291 Ala. at 28, 277 So. 2d at 333. Ultimately, the Tarver Court relied upon the following statement from Dudley v. Stansberry, 5 Ala.App. 491, 59 So. 379 (1912), as authority for requiring the plaintiff to prove lack of probable cause in an abuse of process action: "`If the ... [appellees] procured the garnishment ... for the purpose of extorting money from [the appellant], then there was an absence of probable cause and no grounds for procuring the writ of garnishment....'" Tarver, 291 Ala. at 27, 277 So. at 332 (quoting Dudley, 5 Ala.App. at 494, 59 So. at 380).
After Tarver, this Court considered several abuse of process claims, none of which referred to Tarver or to lack of probable cause as an essential element of abuse of process. See Reynolds v. McEwen, 416 So. 2d 702 (Ala.1982); Farm Country Homes, Inc. v. Rigsby, 404 So. 2d 573 (Ala. 1981); Duncan v. Kent, 370 So. 2d 288 (Ala. 1979); Wilson v. Brooks, 369 So. 2d 1221 (Ala.1979). This Court did refer to Tarver in Tapscott v. Fowler, 437 So. 2d 116, 119 (Ala.1983), as an alternative ground for affirming the trial court's dismissal of an abuse of process claim. Later, however, this Court decided Warwick Development Co. v. GV Corp., 469 So. 2d 1270, 1274 (Ala.1985), in which we indicated that the defendant was liable for abuse of process, even though he had probable cause for initiating the process, because the "abuse of process rests on the wrongful use of the process after it has been issued." We further stated, in Warwick, that "[a]n abuse of process action `presupposes an originally valid and regular process, duly and properly issued, and the validity of the process is not a defense to an action for its abuse.'" Id. at 1274 (quoting Rigsby, 404 So.2d at 576).
This Court resurrected Tarver in Higgins v. Wal-Mart Stores, Inc., 512 So. 2d 766, 768 (Ala.1987), and buried it again in Eidson v. Olin Corp., 527 So. 2d 1283, 1287-88 (Ala.1988), where we cited the plaintiff's lack of evidence of wrongful use of process, not the existence of probable cause for the process, as the ground for holding that he could not recover on an abuse of process claim. In Caine v. American Life Assur. Corp., 554 So. 2d 962, 965 (Ala.1989), a majority of this Court resurrected Tarver again. However, "[t]he great weight of authority is to the effect that in an action for abuse or malicious use of legal process it is not necessary to allege want of probable cause." Annot., Necessity and Sufficiency of Allegations in Complaint for Malicious Prosecution or Tort Action Analogous Thereto That Defendant or Defendants Acted Without Probable Cause, 14 A.L.R.2d 264, 323 (1950). See Grip-Pak, Inc. v. Illinois Tool Works, Inc., 694 F.2d 466, 471 (7th Cir.1982) (applying Illinois law), cert. denied, 461 U.S. 958, 103 S. Ct. 2430, 77 L. Ed. 2d 1317 (1983); Deary v. Evans, 570 F. Supp. 189, 200 (D.V.I.1983); Sage International, Ltd. v. Cadillac Gage Co., 556 F. Supp. 381, 388-90 *1288 (E.D.Mich.1982); Voytko v. Ramada Inn of Atlantic City, 445 F. Supp. 315, 325 (D.N.J.1978); United States v. Chatham, 415 F. Supp. 1214, 1218 (N.D.Ga.1976); Chain v. International City Bank & Trust Co., 333 F. Supp. 463, 481 (E.D.La. 1971) (applying Mississippi law); Hall v. Field Enterprises, Inc., 94 A.2d 479, 481 (D.C.App.1953); Nienstedt v. Wetzel, 133 Ariz. 348, 651 P.2d 876, 881 (Ariz.App. 1982); Gause v. First Bank of Marianna, 457 So. 2d 582, 584 (Fla.Dist.Ct.App.1984); Cline v. Flagler Sales Corp., 207 So. 2d 709, 711 (Fla.Dist.Ct.App.1968); Price v. Fidelity Trust Co., 74 Ga.App. 836, 41 S.E.2d 614, 616 (1947); Davison-Paxon Co. v. Walker, 45 Ga.App. 395, 165 S.E. 160, 163 (1932); Holiday Magic Inc. v. Scott, 4 Ill.App.3d 962, 282 N.E.2d 452, 455 (1972); Brody v. Ruby, 267 N.W.2d 902, 905 (Iowa 1978); Grigsby's Ex'r v. Ratecan, 6 Ky. Ops. 170 (1872); Page v. Cushing, 38 Me. 523 (1854); Cottman v. Cottman, 56 Md. App. 413, 468 A.2d 131, 140 (1983); Dangel v. Offset Printing, Inc., 342 Mass. 170, 172 N.E.2d 610, 611 (1961); Moore v. Michigan National Bank, 368 Mich. 71, 117 N.W.2d 105, 106-07 (1962); Grimestad v. Lofgren, 105 Minn. 286, 117 N.W. 515, 518 (1908); Pic-Walsh Freight Co. v. Cooper, 618 S.W.2d 449, 453 (Mo.1981); Board of Education of Farmingdale Union Free School District v. Farmingdale Classroom Teachers Ass'n, Inc., 38 N.Y.2d 397, 380 N.Y.S.2d 635, 641, 343 N.E.2d 278, 282 (1975); Klander v. West, 205 N.C. 524, 171 S.E. 782, 783 (1933); Ash v. Cohn, 119 N.J.L. 54, 194 A. 174, 176 (1937); Priest v. Union Agency, 174 Tenn. 304, 125 S.W.2d 142, 143 (1939); Kool v. Lee, 43 Utah 394, 134 P. 906, 909 (1913); Glidewell v. Murray-Lacy & Co., 124 Va. 563, 98 S.E. 665, 667 (1919); Gem Trading Co. v. Cudahy Corp., 92 Wash. 2d 956, 603 P.2d 828, 832 n. 2 (1979); Strid v. Converse, 111 Wis.2d 418, 331 N.W.2d 350, 355 (1983).
According to W. Keeton, Prosser and Keeton on Torts § 121 (5th ed. 1984), "in an action for abuse of process it is unnecessary for the plaintiff to prove that the proceeding has terminated in his favor, or that the process was obtained without probable cause or in the course of a proceeding begun without probable cause." Likewise, 72 C.J.S. Process § 107 (1987), states:
(Footnotes omitted.)
Restatement (Second) of Torts § 682 cmt. a (1977) states the following with respect to abuse of process actions:
In light of the overwhelming authority and persuasive analysis indicating that lack of probable cause is not an essential element of abuse of process, we reaffirm the Dickerson, Clikos, Wilson, Duncan, Rigsby, Reynolds, Warwick Development Co., and Eidson holding that lack of probable cause is not a necessary element of abuse of process, and we overrule Dardess, Caine, Higgins, Tarver, Tapscott, and Dudley to the extent that they held otherwise.
Because we have adopted this position, we need only address the defendants' argument that the plaintiffs presented no evidence of malice. The plaintiffs contend that the defendants caused Judge Montgomery to issue a criminal search warrant against Drill Parts by willfully misrepresenting to Blass and Judge Montgomery that Drill Parts had violated a criminal law when, they say, the defendants knew, or should have known, because of Joy's inadequate protective measures, that the plaintiffs had violated no criminal law to obtain *1289 copies of Joy's drawings. The plaintiffs rely on the fact that neither Montgomery nor Drill Parts has been criminally prosecuted for possessing copies of Joy's engineering drawings. Conversely, the defendants contend that they did not know how Drill Parts obtained copies of Joy's engineering drawings. Giles testified that he initiated an investigation of several of Joy's former employees that were competing with Joy to supply designed parts for Robbins Drills because, he said, he had received an anonymous tip indicating that one of these competitors had stolen Joy's drawings.
In Clikos this Court stated: "`To be remedial the abuse of process must have been willful and for an unlawful purpose. Good faith is a defense.'" Clikos, 231 Ala. at 428, 165 So. at 398 (emphasis added) (quoting 50 C.J. Process § 378, at 616 (1930)); see 72 C.J.S. Process § 109 (1987). Because the element of malice requires the plaintiff to show willful conduct on the defendant's part, to establish malice in this case the plaintiffs must show that the defendants willfully caused a criminal search warrant to issue for the wrongful purpose of obtaining discovery for a civil action against the plaintiffs. The record establishes that Giles and Jenkins were on the premises of Drill Parts to assist in identifying property belonging to Joy, and the plaintiffs have presented no substantial evidence that their presence was for a wrongful purpose. Accordingly, we affirm the summary judgment as to the plaintiffs' abuse of process claim.
The plaintiffs also argue that the summary judgment was improper as to their claim alleging libel per se because, they say, the defendants caused, or participated in, the publication of newspaper accounts of Montgomery's arrest and of the search of Drill Parts' premises and that these accounts, directly or by innuendo, falsely accused the plaintiffs of stealing engineering drawings from Joy.
McCaig v. Talladega Publishing Co., 544 So. 2d 875, 877 (Ala.1989) (citing Restatement (Second) of Torts § 558 (1977)). "Truth is an absolute defense to defamation." Liberty Loan Corp. of Gadsden v. Mizell, 410 So. 2d 45, 49 (Ala.1982). When reviewing a defamation issue, we are constrained by First Amendment considerations. McCaig, 544 So. 2d at 877.
"Generally, any false and malicious publication, when expressed in printing or writing, or by signs or pictures, is a libel [if it] ... charges an offense punishable by indictment or ... tends to bring an individual into public hatred, contempt or ridicule or charges an act odious and disgraceful in society." McGraw v. Thomason, 265 Ala. 635, 639, 93 So. 2d 741, 744 (1957). This Court has held that falsely imputing the commission of a larceny to an individual is defamatory per se. Nelson v. Lapeyrouse Grain Corp., 534 So. 2d 1085, 1091 (Ala.1988).
Id. at 1092 (quoting W. Prosser and W. Keeton, The Law of Torts, § 112 (5th ed. 1984)).
The test to be applied in determining whether a newspaper article makes a defamatory imputation is whether an ordinary reader or a reader of average intelligence, reading the article as a whole, would ascribe a defamatory meaning to the language. Loveless v. Graddick, 295 Ala. 142, 148, 325 So. 2d 137, 142 (1975). The question of "[w]hether the communication is reasonably capable of a defamatory *1290 meaning is a question, in the first instance, for the court," and "if the communication is not reasonably capable of a defamatory meaning, there is no issue of fact, and summary judgment is proper." Harris v. School Annual Publishing Co., 466 So. 2d 963, 964-65 (Ala.1985).
Initially, the plaintiffs claimed that several newspaper articles describing Montgomery's arrest and the officers' search of Drill Parts' premises were defamatory per se. On appeal, the plaintiffs limit their allegations to four articles. The first article was published by the Birmingham News on October 20, 1982. It was written by Nancy Campbell, a newspaper reporter who was present in room 210 of the Airport Holiday Inn when Montgomery was arrested. It stated that Blass investigated Montgomery because of information "that patented blue prints had been stolen from" Joy. If quoted Blass as saying that "other companies apparently have been producing machinery from the stolen plans." Finally, it stated that "[a] Joy representative later identified most of the plans" confiscated from Montgomery and Drill Parts as belonging to Joy.
The second article was published by the Birmingham Post-Herald on October 21, 1982. It described the nature of the Leviticus Project and Montgomery's arrest. The third was published by the Birmingham News on November 5, 1982; essentially, it was a follow-up to the October 20, 1982, article. The fourth was published by the Birmingham News on January 30, 1983; it corrected a January 12, 1983, article because the January 12 article had stated that evidence against Montgomery had been presented to a grand jury when, in fact, it had not.
When the trial court entered the summary judgment for the defendants as to the defamation claim, it specifically referred only to the October 20, 1982, article in the Birmingham News, stating that that article was "substantially correct" and that the plaintiffs had not presented any evidence to the contrary. We infer from the trial court's order that it also concluded that the other articles were substantially correct. Because we conclude that a jury, when reading these articles in their entirety, could not find that they conveyed a false meaning, we affirm the summary judgment as to the plaintiffs' defamation claim.
"A civil conspiracy requires a combination of two or more individuals to accomplish a lawful end by unlawful means." Nelson v. University of Alabama System, 594 So. 2d 632, 634 (Ala.1992), cert. denied, ___ U.S. ___, 113 S. Ct. 62, 121 L. Ed. 2d 30 (1992). Conspiracy is not an independent cause of action; therefore, when alleging conspiracy, a plaintiff must have a viable underlying cause of action. Allied Supply Co. v. Brown, 585 So. 2d 33, 36 (Ala.1991). Because we have concluded that the plaintiffs have no viable claims against the defendants to support a conspiracy claim, we affirm the summary judgment as to the plaintiffs' conspiracy claim as well.
AFFIRMED.
MADDOX, ALMON, SHORES, ADAMS, HOUSTON, STEAGALL, KENNEDY and INGRAM, JJ., concur.
[1] Joy sued Drill Parts and Montgomery for an injunction and damages, alleging misappropriation of trade secrets. Jefferson Circuit Court, No. 82-504-850. Judge William Thompson granted Joy a preliminary injunction in that case. On appeal, this Court affirmed the injunction. Drill Parts I, 439 So. 2d at 43. Joy then moved for a summary judgment on its damages claims. On August 20, 1991, Judge Marvin Cherner entered a partial summary judgment against Drill Parts and Montgomery, and he set a nonjury hearing to determine damages. Drill Parts and Montgomery petitioned for a writ of mandamus ordering that the summary judgment be set aside. This Court denied the writ on the ground that Drill Parts and Montgomery could appeal the final judgment. Ex Parte Drill Parts & Service Co., Inc., 590 So. 2d 252 (Ala. 1991). Some aspects of that case are still pending in the trial court. | January 8, 1993 |
0e2c17c1-06a4-49ff-911c-6d3ed78ad6ef | Talbot v. Braswell | 98 So. 2d 7 | N/A | Alabama | Alabama Supreme Court | 98 So. 2d 7 (1957)
Charles TALBOT, Adm'r,
v.
Bessie BRASWELL, Ex'x.
4 Div. 858.
Supreme Court of Alabama.
November 7, 1957.
J. C. Fleming, Elba, for appellant.
S. Fleetwood Carnley, Elba, for appellee.
LIVINGSTON, Chief Justice.
The original bill of complaint in this cause was filed by W. C. Braswell and Bessie Braswell against Charles Talbot, as administrator of the estate of H. C. Talbot, deceased.
Pending the proceedings in the lower court, W. C. Braswell died, and the cause was revived as to him in the name of Mrs. Bessie Braswell, executrix of the estate of W. C. Braswell, deceased.
The bill seeks to enjoin the respondent, Charles Talbot, as administrator, from foreclosing a certain mortgage executed by the complainants on November 27, 1933. The appeal is from a final decree of the Circuit Court of Coffee County, Alabama, in Equity, granting the relief prayed for and permanently enjoining the respondent from foreclosing the mortgage.
*8 The original bill alleged inter alia that complainants executed a mortgage in the amount of $3,520 to H. C. Talbot, respondent's intestate, on November 27, 1933, upon certain described real estate; that the mortgage had been paid in full, and that complainants had been given a receipt by H. C. Talbot in which he so accepted payment in full of the mortgage indebtedness; that the respondent, as administrator of the estate of H. C. Talbot, deceased, had begun proceedings to foreclose said mortgage; that if complainants be mistaken the mortgage had been paid in full, and the court should find that said mortgage had not been paid, that complainants be permitted to redeem the real estate upon the payment of the balance found due on the mortgage. An appropriate prayer for relief is contained in the bill. Upon the institution of the proceedings, a temporary injunction was granted restraining the foreclosure of the mortgage.
The answer made by the respondent to the original bill, in essence, denied that the mortgage had been paid, but admitted that a receipt had been executed by H. C. Talbot during his lifetime (showing payment in full); but further alleged that when said receipt was executed by H. C. Talbot he was in such a state of mind from pain-relieving drugs as not to know the full import of any business transaction, and, therefore, said receipt is of no force and effect.
Complainants amended the original bill and alleged, in substance, that they had executed other mortgages to H. C. Talbot (other than the mortgage contained in the original bill), and that these other mortgages had also been paid. The amended bill contained further allegations to invoke estoppel and laches. Respondent's demurrer to the amended bill was sustained. Complainants again amended the bill and alleged, in substance, that all of the mortgages executed by complainants to H. C. Talbot had been paid; that complainants had continuously relied on the receipt which was issued to complainants under date of May 28, 1937; that for ten years preceding his death, in April 1947, the said H. C. Talbot never by word, act or conduct repudiated the receipt, or questioned same, or sought in any manner to avoid it; that since the death of H. C. Talbot in 1947, the respondent, Charles Talbot, had stood silently by, not making any claims on the said lands; that respondent is estopped to deny payment of the mortgage and estopped to deny that the receipt held by complainant is valid; and that respondent is guilty of laches in his assertion that the receipt was procured by fraud.
Respondent's demurrer to the bill of complaint as last amended was overruled and respondent filed his answer. In his answer respondent denied that the mortgage indebtedness involved in this suit had been paid. For further answer "Respondent admits that a receipt was issued by H. C. Talbot to complainants' intestate, W. C. Braswell, but for answer, says that said receipt was given without consideration and that the said H. C. Talbot at the time he executed said receipt was sick and physically and mentally unable to understand a business transaction."
Respondent further expressly denied that the complainants have continuously since the date of said receipt relied upon the same as being payment in full of said indebtedness, but to the contrary says that said W. C. Braswell knew that said receipt was given as above set forth and knew that no consideration had passed for the giving of said receipt. For further answer, respondent expressly denied that for ten years preceding the death of H. C. Talbot, in 1947, that he never did by word, act or conduct repudiate said receipt, but to the contrary says that the same was repudiated by him. The respondent further denied the allegation that H. C. Talbot during his lifetime did not seek to question said receipt.
Upon the issues thus raised, the testimony was taken ore tenus before the trial *9 judge, and resulted in a decree for the complainants to the effect that the mortgage had been paid in full, and permanently enjoined its foreclosure.
In support of the allegations of payment of the indebtedness, secured by the mortgage here involved, complainants introduced in evidence an instrument in writing reciting, in part, as follows:
Appellant assigns five rulings of the trial court as error.
1. The appellant claims as error the overruling of the respondent's demurrer to the complainant's bill at last amended. The demurrer was directed to the bill as a whole, which contained more than one aspect.
Our cases are clear to the effect that if in any aspect the bill states a cause of action, the demurrers addressed to it as a whole should be overruled. Tyler v. Copham, 245 Ala. 151, 16 So. 2d 316, Ala.Digest, Equity.
Clear enough, that aspect of the bill alleging payment of the mortgage in question is sufficient, and this assignment of error is without merit.
Revised Rule 9 of the Supreme Court of Alabama, Code 1940, Tit. 7 Appendix, provides, in part, that: "Assignments of error not substantially argued in brief will be deemed waived and will not be considered by the court."
Appellant's brief does not substantially argue Assignments of Error numbered 2, 3 and 4, and we cannot consider them.
In support of the 5th Assignment of Error, appellant insists that the court erred in finding the issues in favor of the complainant and rendering its final decree holding that said mortgage had been paid as shown by the receipt dated May 28, 1937. In substance, the entire argument is to the effect that the decree of the trial court is contrary to the evidence.
The evidence is without conflict that the receipt, dated May 28, 1937, and relied on by the appellees as showing full payment of the mortgage here involved, was executed by H. C. Talbot. The appellant asserts the receipt was procured at a time when Talbot did not know the full import of his actions. In this regard, the trial court found respondent's evidence insufficient to support appellant's position. We cannot say that its finding in that regard was improper. The questions of payment and respondent's contention that the said receipt was obtained when Talbot did not know the full import of his actions were questions of fact to be determined by the trial court. The applicable rule is that where evidence is taken ore tenus before the trial court, the appellate court accords to the finding of fact by the trial court the same weight and credence, and indulges the same presumption in favor of the lower court as it would in favor of the verdict of a jury rendered upon the same facts, and will not set aside such findings by the trial court, unless upon the same facts it would set aside a like verdict of a jury thereon; i. e., unless plainly erroneous and contrary to the weight of the evidence. Ala.Digest, Appeal and Error.
We are unwilling to disturb the findings and decree of the lower court, and the cause is due to be, and is, affirmed.
Affirmed.
SIMPSON, GOODWYN, and COLEMAN, JJ., concur. | November 7, 1957 |
0cb2dfb8-be66-48c9-bd12-4d1fc7793ab0 | Ex Parte St. Clair County Dept. of Human Resources | 612 So. 2d 482 | 1920224 | Alabama | Alabama Supreme Court | 612 So. 2d 482 (1993)
Ex parte ST. CLAIR COUNTY DEPARTMENT OF HUMAN RESOURCES.
(Re STATE DEPARTMENT OF HUMAN RESOURCES v. B.A.S. and R.B.S.)
1920224.
Supreme Court of Alabama.
January 22, 1993.
William Prendergast and Mary E. Pons, Asst. Attys. Gen., for petitioner.
Michael C. Shores and Terri Snow, Birmingham, for respondent.
Tommie Fletcher, Pell City, guardian ad litem.
SHORES, Justice.
The Court of Civil Appeals, 612 So. 2d 480, stated that the record testimony showed a lack of resources on the part of the parents, and, therefore, concluded that the trial court did not commit reversible error in refusing to order the parents to make child support payments as required by § 12-15-71(i), Ala.Code 1975. The petitioner has supplied no facts to refute this conclusion. Therefore, we deny the writ.
We note, however, that § 12-15-71(i) requires a trial court to order child support in conformity with Rule 32, Ala.R.Jud.Admin., and that this rule requires the court to order the parents to pay child support when the parents have resources *483 for child support. A trial court, therefore, must apply the guidelines set out in Rule 32 when making child support determinations in cases such as this. These guidelines require the trial court to consider the resources of the parents, not simply their incomes, in making a determination of child support.
WRIT DENIED.
HORNSBY, C.J., J., and MADDOX, HOUSTON and KENNEDY, JJ., concur. | January 22, 1993 |
58b5dab9-67f0-49bc-a483-a0837d69608b | Ex Parte Jackson | 614 So. 2d 405 | 1911997 | Alabama | Alabama Supreme Court | 614 So. 2d 405 (1993)
Ex parte Willie JACKSON.
(Re State of Alabama v. Willie Jackson).
1911997.
Supreme Court of Alabama.
January 8, 1993.
Rehearing Denied February 26, 1993.
John M. Bolton III of Robison & Belser, P.A. and Truman M. Hobbs, Jr. of Copeland, Franco, Screws & Gill, Montgomery, for petitioner.
*406 James H. Evans, Atty. Gen., and Sandra J. Stewart, Deputy Atty. Gen., for respondent.
INGRAM, Justice.
Willie Jackson seeks a writ of mandamus directing the Montgomery County Circuit Court to grant his motion to dismiss the capital murder indictment returned against him.
Jackson was arrested and charged with the murder of Alisa Desha Roberts. The grand jury of Montgomery County returned an indictment charging that Jackson,
Section 13A-5-40(a)(17), Ala.Code 1975, makes "murder in which the victim is killed while in a motor vehicle by a deadly weapon fired from outside that motor vehicle" a capital offense. It is undisputed that the victim here was not, at any relevant time, the occupant of a motor vehicle. In its order denying Jackson's motion to dismiss the indictment, the trial court first concluded that "the gravamen of [this offense] is that a defendant murder a victim while the victim is in a motor vehicle." The court went on to hold, however, that the State would be required to prove only "that the Defendant killed someone with intent to cause the death of a person in a vehicle."
Jackson first petitioned the Court of Criminal Appeals for a writ of mandamus. That court denied the petition, and Jackson now seeks de novo review in this Court. Rule 21(e), A.R.App.P.
"Statutes creating crimes are to be strictly construed in favor of the accused; they may not be held to apply to cases not covered by the words used...." United States v. Resnick, 299 U.S. 207, 209, 57 S. Ct. 126, 127, 81 L. Ed. 127 (1936). See also, Ex parte Evers, 434 So. 2d 813, 816 (Ala.1983); Fuller v. State, 257 Ala. 502, 60 So. 2d 202, 205 (1952). Moreover, "criminal statutes should not be `extended by construction.'" Ex parte Evers, 434 So. 2d at 817 (quoting Locklear v. State, 50 Ala. App. 679, 282 So. 2d 116 (1973)). Section 13A-1-6 provides in part: "All provisions of [the Criminal Code] shall be construed according to the fair import of their terms to promote justice and to effect the objects of the law...."
Because the meaning of statutory language depends on context, a statute is to be read as a whole. King v. St. Vincent's Hospital, 502 U.S. ___, ___, 112 S. Ct. 570, 574, 116 L. Ed. 2d 578 (1991). Subsections of a statute are in pari materia and "should be construed together to ascertain the meaning and intent of each." McCausland v. Tide-Mayflower Moving & Storage, 499 So. 2d 1378, 1382 (Ala. 1986).
Jackson asserts that because Roberts was not in a vehicle when she was killed, Jackson cannot be prosecuted under § 13A-5-40(a)(17). The State argues, however, that because he intended to kill Prickett, who was in a vehicle, Jackson can be prosecuted for the capital offense of "murder in which the victim is killed while in a motor vehicle by a deadly weapon fired from outside that motor vehicle." § 13A-5-40(a)(17).
The State argues that § 13A-5-40(a)(17) should be construed in pari materia with the remainder of the capital murder statute and that when it is so construed Jackson can be convicted of capital murder if the State proves that Jackson killed Roberts with the intent to kill Prickett.
Section 13A-6-2(a)(1) provides that a person commits murder if "[w]ith intent to *407 cause the death of another person, he causes the death of that person or of another person."
The State argues that, pursuant to § 13A-5-40(b), a person commits capital murder if, with the intent to cause the death of another person, he causes the death of that person or someone else and he does so pursuant to one of the aggravating factors set out in § 13A-5-40(a). By its language, § 13A-6-2(a)(1) clearly invokes the doctrine of transferred intent in defining the crime of murder. For example, if Defendant fires a gun with the intent to kill Smith but instead kills Jones, then Defendant is guilty of the intentional murder of Jones. The same analysis, however, does not apply to the factual circumstances that elevate the crime of murder (§ 13A-6-2(a)(1)) to capital murder (§ 13A-5-40).
Under the facts alleged in the indictment, Jackson's intent to kill Prickett can certainly be "transferred" to the conduct that actually resulted in the death of Roberts. However, Prickett's location (in a motor vehicle) cannot be "transferred" to Roberts so as to elevate the crime to capital murder.
First, the clear statutory language of § 13A-5-40(a)(17), considered together with § 13A-5-40(b) and § 13A-6-2(a)(1), does not yield that result. Section 13A-5-40(b) refers to § 13A-6-2(a)(1) for the definition of "murder"; and § 13A-6-2(a)(1) codifies the doctrine of transferred intent in that definition. However, § 13A-5-40(a)(17) makes a "murder" capital only when "the victim is killed while in a motor vehicle." That is, that section defines a factual circumstance rather than merely a state of mind; and that factual circumstance is not present in this case. Prickett was not "killed" and Roberts was not "in a motor vehicle."
Second, we presume that the Legislature knows the meaning of the words it uses in enacting legislation. Moreover, we are convinced that the Legislature, if it intended § 13A-5-40(a)(17) to apply in this case, knew how to draft a statute to reach that end. In the 1975 death penalty statute, the Legislature made capital a "[m]urder when perpetrated against any witness subpoenaed to testify at any preliminary hearing, trial or grand jury proceeding against the defendant who kills or procures the killing of witness, or when perpetrated against any human being while intending to kill such witness." Ala.Code 1975, § 13-11-2(a)(14) (emphasis added). The analogue to that section in the 1981 death penalty statute does not retain that transferred intent provision, and therefore the section would apply only to the murder of the witness intended to be killed. § 13A-5-40(a)(14), Ala.Code 1975. See Joseph A. Colquitt, The Death Penalty Laws of Alabama, 33 Ala.L.Rev. 213, 247 (1982). We conclude, therefore, that had the Legislature intended § 13A-5-40(a)(17) to apply to the facts of Jackson's case, it would have included a transferred intent provision similar to that included in the 1975 act. The judiciary will not add that which the Legislature chose to omit.
Finally, we note that both Jackson and the State rely on our holding in Ex parte Murry, 455 So. 2d 72 (Ala.1984). In its order denying Jackson's motion to dismiss the indictment, the trial court concluded "that Murry supports, rather than condemns the indictment against [Jackson] for capital murder." The trial court's reliance on Murry is misplaced. The defendant in that case was charged with the capital murder of a police officer. We held in Murry that the trial court erred in failing to instruct the jury that "the murder could be raised to a capital offense only if Murry knew that the victim was a police officer on duty." 455 So. 2d at 78. The doctrine of "transferred intent" was not at issue in that case. This Court defined the issue in that case as "whether [former § 13A-5-40(a)(5)] requires that the accused know that the victim was a peace officer in order for the murder to be a capital offense."[1]Murry, 455 So. 2d at 73.
*408 We conclude that the holding in Murry supports the decision we reach today. In order for one to have "knowledge" of a given circumstance, that circumstance must exist in reality. That is, in order for the defendant in Murry to have "known" that his victim was a peace officer, that victim must have been a peace officer in reality. Similarly, we hold that Jackson must have "known" that his alleged victim was "in a motor vehicle."[2] It follows then, that for Jackson to have "known" that Roberts was in a motor vehicle, she must actually have been in a motor vehicle. She was not.
In Act No. 87-709, Ala. Acts 1987 (the act modifying § 13A-5-40(a)(5)) the Legislature made clear its intent to overrule this Court's interpretation of that section in Murry. If the Legislature disagrees with our interpretation of § 13A-5-40(a)(17), then it will enact appropriate legislation to modify the statute and yield a different result in subsequent cases. With that action, this Court would not be asked to do so. This Court will not make such a modification for it. Construing § 13A-5-40(a)(17) according to the fair import of its terms (see § 13A-1-6), we conclude that it does not apply to the undisputed facts in this case.
Having determined that § 13A-5-40(a)(17) does not apply to the facts presented in this case, we must now determine whether a writ of mandamus is the proper remedy. We first note that
Ex parte Edgar, 543 So. 2d 682, 684 (Ala. 1989).
Mandamus may issue to compel the exercise of discretion by an inferior court; however, it may not be used to control or revise the exercise of that discretion except in a case of abuse. Ex parte Edgar, 543 So. 2d at 684 (citing Ex parte Smith, 533 So. 2d 533 (Ala.1988)). "Mandamus is an extraordinary remedy, but is appropriate in exceptional circumstances which amount to judicial usurpation of power." Ex parte Nice, 407 So. 2d 874, 877 (Ala.1981). Mandamus is not to be used as a substitute for an appeal, but mandamus can be used to prevent a gross disruption of the administration of criminal justice. Id.
In light of the interpretation we have given § 13A-5-40(a)(17), the state can prove no set of facts under which Jackson can be convicted of capital murder. Therefore, he has a legal right to have the indictment against him dismissed. It is not within the authority or discretion of the trial court not to dismiss the indictment for capital murder brought under § 13A-5-40(a)(17).
Certainly, if Jackson were convicted under the present indictment and sentenced to death, he would be entitled to an automatic appeal to the Court of Criminal Appeals, § 13A-5-55, and certiorari review as a matter of right in this Court. Rule 39(c), A.R.App.P. However, we hold that to allow the prosecution under this indictment to proceed to a jury verdict would result in a disruption of the criminal justice system. Ex parte Nice. We conclude, therefore, that Jackson is entitled to the relief for which he has petitioned.
A writ of mandamus shall, therefore, issue to the Circuit Court of Montgomery County directing that court to dismiss the indictment charging Willie Jackson with capital murder under § 13A-5-40(a)(17). The State of Alabama shall be granted *409 leave to re-indict Jackson under appropriate provisions of the Alabama Criminal Code.
WRIT GRANTED.
HORNSBY, C.J., and ALMON, SHORES and ADAMS, JJ., concur.
[1] If, in Murry, the defendant had fired a handgun with the intent to kill a person that he knew to be a peace officer but instead killed a bystander, then the Court would have been faced with the same issue we are faced with in this case.
[2] While the statute at question in Murry has been modified expressly to remove the knowledge requirement, the provision at question in this case does not contain language similar to that language modifying the Murry statute. | January 8, 1993 |
5783be1f-d39c-42ab-a3b2-0226c5a260fd | Gross v. QMS, INC. | 613 So. 2d 331 | 1911374 | Alabama | Alabama Supreme Court | 613 So. 2d 331 (1993)
William David GROSS, Jr., and Conde Systems, Inc.
v.
QMS, INC.
1911374.
Supreme Court of Alabama.
January 22, 1993.
*332 E.J. Saad of Crosby, Saad, Beebe, Cavender & Crump, P.C., Mobile, for appellants.
Louis E. Braswell and Caine O'Rear III of Hand, Arendall, Bedsole, Greaves & Johnston, Mobile, for appellee.
SHORES, Justice.
William David Gross, Jr., and Conde Systems, Inc., appeal from an interlocutory order granting a preliminary injunction in favor of QMS, Inc., pending a final hearing and trial. We affirm.
Gross was an employee of The Laser Connection ("TLC"), a wholly owned subsidiary of QMS, between 1987 and 1990. TLC merged with QMS in October 1990. Gross remained an employee of QMS until his employment was terminated in January 1992.
Gross had signed an employment contract with QMS on July 4, 1987. Included in the contract was a covenant not to compete, whereby Gross agreed not to engage in any business "which is the same or essentially the same as the business of TLC" for a period of three years after the termination of his employment with QMS. Gross also agreed, in the employment contract, not to solicit QMS customers or employees for three years after his termination, and not to use or disclose confidential information obtained as a QMS employee.
Gross and another former QMS employee, Neil Armentrout, sued QMS on February 26, 1992, seeking payment of compensation allegedly owed them under their employment contracts with QMS.[1] QMS counterclaimed against Gross and Armentrout for specific performance of the covenants in their employment contracts. QMS also joined Conde Systems, Inc. ("Conde"), a company formed by Gross and Armentrout after their termination from QMS, as a defendant in its countersuit.
QMS moved for a preliminary injunction on April 16, 1992, to enjoin Gross, Armentrout, and Conde, pending the final outcome of the case, from competing with the business of QMS, from soliciting QMS's customers or employees, or from using and disclosing confidential information of QMS in violation of their agreements with QMS. After a four-day hearing, the trial court entered a preliminary injunction against Gross, Armentrout, and Conde, dated May 22, 1992. QMS posted a $350,000 cash bond pursuant to the preliminary injunction order. Gross and Conde appeal from the trial court's order granting the preliminary injunction.
The sole issue is the validity of the preliminary injunction. A proper interpretation of the provisions of Gross's employment contract with QMS and any other substantive issues involving the merits of the case below are matters to be decided by the trial court.
This appeal from an interlocutory, or preliminary, injunction is properly before this Court. Rule 4(a)(1)(A), A.R.App. P. Therefore, we must determine if the trial court acted within the scope of its power in issuing the preliminary injunction. "It is well established that the issuance of injunctive relief is within the sound discretion of the trial court, especially when ... the facts are in dispute and the evidence is presented *333 ore tenus." Davis v. Hester, 582 So. 2d 538, 540 (Ala.1991) (citation omitted).
The trial court here followed the three-pronged test for review of a motion for a preliminary injunction, as set forth in Howell Pipeline Co. v. Terra Resources, Inc., 454 So. 2d 1353, 1356 (Ala.1984). See Martin v. First Federal Sav. & Loan Ass'n of Andalusia, 559 So. 2d 1075, 1079 (Ala.1990). Martin provides a complete analysis of the standard of review for an appeal from an order entering a preliminary injunction, where the decision of the trial court is based upon ore tenus evidence. Id. at 1078-79. To succeed on appeal, the appellant must establish that the trial court abused its discretion in granting the injunctive relief. Id.; see Davis, supra, at 540.
The trial court weighed the hardship and benefits that the preliminary injunction would be likely to impose or bestow on the parties. There was little evidence of any significant harm to the appellants that would occur from the issuance of the preliminary injunction, especially in light of the trial court's order requiring QMS to post a $350,000 bond "for payment of costs, damages and reasonable attorney's fees as may be incurred or suffered by the enjoined parties if they are later found to have been wrongfully enjoined or restrained." Order for Preliminary Injunction at 6; see Martin, supra, at 1079.
Based on the foregoing, and having carefully reviewed the evidence in the record, we determine that the trial court's conclusion that irreparable harm would result if it denied QMS's motion for preliminary injunction was not plainly and palpably erroneous. Therefore, we hold that the trial court did not abuse its discretion in granting the preliminary injunction. The order entering the preliminary injunction is due to be, and it is hereby, affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, HOUSTON and KENNEDY, JJ., concur.
[1] Mr. Armentrout had signed an employment contract with QMS that was essentially identical to Gross's July 4, 1987, contract. Armentrout consented to the entry of an order resolving his dispute with QMS after the filing of this appeal, and this Court dismissed Armentrout from this appeal on August 19, 1992. | January 22, 1993 |
86565b4c-bc92-469b-98a0-c29dbebec3b0 | United States Steel Corporation v. Baker | 97 So. 2d 899 | N/A | Alabama | Alabama Supreme Court | 97 So. 2d 899 (1957)
UNITED STATES STEEL CORPORATION
v.
Nannie H. BAKER, as Administratrix.
6 Div. 96.
Supreme Court of Alabama.
October 31, 1957.
*900 Burr, McKamy, Moore & Thomas, Birmingham, for appellant.
Lipscomb, Brobston, Jones & Brobston, Bessemer, for appellee.
GOODWYN, Justice.
This is a workmen's compensation case. It is here on certiorari from the circuit court of Jefferson County, Bessemer Division.
The parties have stipulated as follows: While the plaintiff's intestate was employed in defendant's mine, he sustained a compensable accident resulting in a 35% permanent partial disability from silicosis. Under a court-approved settlement the employer agreed to pay the employee $18.85 a week for 300 weeks making a total claim of $5,646. Payments of compensation were made from the date of the employee's injury in December, 1954, until his death on September 4, 1955. It is agreed that the employee's death had no relation to his injury. The employer refused to make further payments after the death of the employee. The plaintiff in this case is the employee's dependent widow and the administratrix of his estate. She instituted this proceeding to require the employer to pay to her husband's estate the unpaid weekly installments under the settlement agreement which would have been paid to her husband if he had remained alive.
Both parties agree that a single question of law, of first impression in Alabama, is presented. That question is whether or not, under the law of Alabama as it existed on September 4, 1955, the unmatured installments payable under a court-approved workmen's compensation settlement agreement (Code 1940, Tit. 26, § 278, as amended by Act No. 661, § 3, appvd. July 10, 1940, Gen.Acts 1939, p. 1036) between an employer and an employee, whereby the employer agrees to pay the employee compensation for a permanent partial disability, survive the employee's death and pass to his estate or dependents when his death results from a cause not connected with the injury giving rise to the compensation agreed upon.
The problem is one of statutory construction and effect.
Although we have held that the Workmen's Compensation Act should be liberally construed to the end that its beneficent objects may be advanced (Baggett Transp. Co. v. Holderfield, 260 Ala. 56, 61, 68 So. 2d 21; Hamilton Motor Co. v. Cooner, 254 Ala. 422, 426, 47 So. 2d 270; Birmingham Post Co. v. Sturgeon, 227 Ala. 162, 169, 149 So. 74) we have also held that it should not be extended beyond its legitimate scope and contrary to the clear legislative purpose and *901 intent (Nichols v. St. Louis & S. F. R. Co., 227 Ala. 592, 594, 151 So. 347, 90 A.L.R. 842; Birmingham Post Co. v. Sturgeon, supra). A careful analysis and consideration of the provisions of the Act, as it existed on September 4, 1955, (which controls in this case), convinces us that the legislative intent was to limit payment of installments of a compensation award to those falling due during the lifetime of the employee, and that installments accruing after his death do not survive in favor of his personal representative or his widow and dependent children. This, of course, applies in a case where the employee's death is from a cause unconnected with the injury for which compensation has been awarded. Provision is made for payment of compensation to the widow and dependent children where the employee's death is attributable to the injury made the basis of the award. Sections 279 (F) and 283, Tit. 26, Code 1940, as amended by Act No. 563, appvd. Aug. 29, 1951, effective Oct. 28, 1951, Acts 1951, p. 978.
We proceed to a discussion of pertinent provisions of the Act which we think clearly show the legislative intent, viz.:
Section 279, Tit. 26, Code 1940, as amended supra (the law existing on September 4, 1955; however, it was further amended by Act No. 355, appvd. Sept. 7, 1955, Acts 1955, p. 855, to which reference will be made hereinafter), prescribes the schedules for compensation. Schedule (A) covers "Temporary Total Disability" and provides for maximum and minimum weekly payments. It also contains the following provisions: "This compensation shall be paid during the time of such disability, not, however, beyond three hundred weeks. Payments are to be made at the intervals when the earnings were payable, as nearly as may be."
Schedule (B) prescribes compensation payable for "Temporary Partial Disability" and contains in subdiv. 1 the following provision: "This compensation shall be paid during the period of such disability, not, however, beyond three hundred weeks, payments to be made at the intervals when the earnings were payable, as nearly as may be, and subject to the same maximum as stated in subsection (A)."
Schedule (C) provides for compensation in case of "Permanent Partial Disability". Subdiv. 1 provides that "for permanent partial disability the compensation shall be based upon the extent of such disability." It also prescribes the compensation payable for the loss of members of the body and for a "serious disfigurement, not resulting from the loss of a member or other injury specifically compensated, materially affecting the employability of the injured person." Subdiv. 6 provides that "in all other cases of permanent partial disability not above enumerated, the compensation shall be fifty-five percent of the difference between the average weekly earnings of the workman at the time of the injury and the average weekly earnings he is able to earn in his partially disabled condition subject to the same maximum as stated in subsection (A)." The award of compensation to the employee in the case before us was under this subdivision. Subdiv. 7 provides that "compensation shall continue during disability, not however, beyond three hundred weeks." (This obviously has reference to cases of permanent partial disability under subdiv. 6, for under subdiv. 1 provision is made for payment during four hundred weeks. See also, the original Workmen's Compensation Act, appvd. Aug. 23, 1919, effective Jan. 1, 1920, Gen.Acts 1919, p. 206, subsec. (c), on page 214, where the location of this provision in the Act makes its meaning clear.)
Schedule (D) covers "Permanent Total Disability". It provides in subdiv. 1 that compensation therefor "shall be paid during such permanent total disability, not exceeding five hundred and fifty weeks * * *; payment to be made at the intervals when the earnings were payable, as nearly as may be" and that "such payments, with the approval of the circuit judge, may be monthly or quarterly". Subdiv. 2 provides that where "an employee, who is permanently *902 and totally disabled becomes an inmate of a public institution, then no compensation shall be payable unless he has wholly dependent on him for support a person or persons named in sections 280 and 281 of this title, whose dependency shall be determined as if the employee were deceased, in which case the compensation * * * shall be paid for the benefit of such person so dependent, during dependency, in the manner ordered by the court, while the employee is an inmate in such institution."
Schedule (E) defines "Permanent Total Disability". Subdiv. 3 fixes the amount of compensation for such disability other than as defined in Schedule (E) and provides that "this compensation shall be paid during the period of such permanent disability not exceeding four hundred weeks; payments to be made at the intervals when the earnings were payable as nearly as may be", and, "with the consent of the circuit judge, may be made monthly or quarterly."
Schedule (F) provides for "Compensation for Death after Disability" as follows: "In case a workman sustained an injury occasioned by an accident arising out of and in the course of his employment and during the period of disability caused thereby death results proximately therefrom, all payments previously made as compensation for such injury shall be deducted from the compensation, if any, due on account of death." This schedule was amended by Act No. 355, appvd. and effective on September 7, 1955, Acts 1955, p. 855, by adding the following paragraph:
It is to be noted that Act No. 355 became law after the employee's death on September 4, 1955. Hence the amendment has no bearing on this case except such relevancy as it may have in determining the intent of the legislature with respect to the Workmen's Compensation Act as it existed prior to the amendment. Appellee argues that the amendment simply had the effect of intercepting the balance of the judgment in favor of the "widow and/or dependent children" instead of said balance going to the deceased employee's personal representative. In other words, the amendment should not be taken as a legislative recognition that there was no right of survivorship in the unpaid balance prior to the amendment but rather that its purpose was to take away an already existing survivorship in favor of the personal representative and give it to the widow and dependent children. This argument necessarily presupposes a legislative intent, in the absence of such amendment, that unaccrued installments of an award survive in favor of the personal representative. We are unable to agree with this interpretation of the Act.
Schedule (G) provides that average weekly earnings shall be the basis of benefits.
Schedule (H) prescribes a percentage increase for a dependent wife and dependent child or children and provides that such increase "shall be paid only during the dependency of the dependent upon whom such increase is based."
Section 283, as amended by Act No. 563, § 2, appvd. Aug. 29, 1951, effective Oct. 28, 1951, Acts 1951, p. 978 (also amended by Act No. 356, appvd. Sept. 7, 1955, Acts 1955, p. 864, and by Act No. 338, appvd. Aug. 21, 1957, but the changes made have no significance in this case), provides for compensation to dependents of an employee where his death "results proximately from the accident within three years." Subsection A, par. 11, is as follows:
Subsection B of § 283, as amended, prescribes the maximum and minimum death compensation and provides that "this compensation shall be paid during dependency, not exceeding three hundred weeks, payments to be made at the intervals when the earnings were payable, as nearly as may be."
Section 284, as amended by Act No. 661, § 4, appvd. July 10, 1940, effective January 1, 1941, Gen.Acts 1939, pp. 1036, 1037, provides that "in case of remarriage of a widow of an employee who had dependent children, the unpaid balance of compensation, which would otherwise become due her, shall be paid to such children", or to some other person designated by the court for the use and benefit of such children.
Section 286 provides that compensation to children is limited to those "under eighteen years of age, or those over eighteen years of age, who are physically or mentally incapacitated from earning"; and it is provided that the former are to "receive compensation only during the time they are under eighteen, the latter for the time they are so incapacitated, within the period of three hundred weeks."
Section 290 provides that compensation being paid to a dependent "shall cease upon the death or marriage of such dependent."
Section 297 provides for submission to the circuit court of a controversy with respect to the right to compensation. In this connection see § 278, as amended by Act No. 661, § 3, appvd. July 10, 1940, effective Jan. 1, 1941, Gen.Acts 1939, pp. 1036, 1037, which provides for settlements between the parties and contains the following provision: "Upon such settlements being approved, judgment shall be rendered thereon and duly entered on the records of said court in the same manner and to have the same effect as other judgments or as an award if the settlement is not for a lump sum." This seems to us to be a clear legislative purpose to make a distinction between the effect of a lump sum award and an award payable in installments. Thus, when there is a lump sum award it has the same effect as the usual judgment for money, that is, it becomes vested on rendition of the judgment just as would be the situation if all compensation installments to which an employee is entitled shall have accrued at the time of an award. See Goodyear Tire & Rubber Company of Alabama v. Downey, Ala., 96 So. 2d 278, 287(8). In such cases the awards are vested and not subject to the contingencies prescribed by the Act when payment is made in installments.
As bearing on the question before us, it should be noted that the provisions of § 284, as amended, supra, and §§ 286 and 290 clearly indicate that future-due installments of an award do not become vested in the dependent-payee. It is noteworthy, too, that all of the provisions of the Workmen's Compensation Act with reference to payment of an award to dependents in installments are to the effect that such payments continue only so long as the widow and children are dependent. In other words, the widow, on remarriage or death, ceases to be a dependent; a child, on reaching the age of eighteen years (if not physically or mentally incapacitated from earning, §§ 280, 286, Tit. 26) or dying, ceases to be a dependent. It seems to us that the provisions of the Act itself manifest a clear legislative intent that the right of dependents to accuring *904 installments continue only during dependency. Although this is not the question before us it is relevant in determining the overall legislative purpose and scheme.
Section 299, as amended by Act No. 36, § 8, appvd. June 2, 1949, Acts 1949, p. 47, provides for commuting of periodic payments to one or more lump sum payments. (This section was also amended by Act No. 335, appvd. Aug. 20, 1957, but the amendment is of no significance here.) This section has consistently been construed as requiring the agreement of the parties in order for a lump sum payment to be made. Edwards v. Doster-Northington Drug Co., 214 Ala. 640, 108 So. 862; County Coal Co. of Alabama v. Bush, 215 Ala. 25, 109 So. 151; Richardson Lumber Co. v. Pounders, 254 Ala. 285, 48 So. 2d 228. In other words, if the employer and employee agree to a lump sum payment, and such payment is approved by the court, the obvious inference to be drawn is that the right thereto becomes vested in the employee; this because, by commuting, all installments are made presently due. On the other hand, if there is no commutation, the logical inference is that only those installments accruing during the employee's lifetime become vested in him. What happens to unaccrued installments when the employee's death results proximately from the compensated injury is specifically provided for in §§ 279(F) and 283, Tit. 26, as amended, supra. But no provision is made for anyone to get any interest in unaccrued installments when the employee's death is from a cause unconnected with such injury. Moreover, it is specifically provided that compensation shall be paid only during disability (§ 279, Tit. 26, as amended, supra) except, of course, where death results from the compensated injury. On the death of an employee compensation being paid him by installments comes to an end unless his death results proximately from the injury for which compensation is being paid.
Section 300 provides as follows:
In view of the provision there made for modifying an award, how can it be said, with good reason, that installments falling due after an employee's death become so fixed and finally determined as to survive in favor of his personal representative or dependents? When an employee's death results proximately from the accident there is, as already noted, express provision for payment of compensation to his dependents (§ 283, as amended, supra), it being further provided that "all payments previously made as compensation for such injury shall be deducted from the compensation, if any, due on account of death" (§ 279(F), as amended by Act No. 563, appvd. Aug. 29, 1951, effective Oct. 28, 1951, Acts 1951, p. 978, supra). There is no corresponding provision for continuing the payment of unaccrued installments when the employee's death is not attributable to the injury.
Section 301, as amended by Act No. 36, § 9, appvd. June 2, 1949, Acts 1499, p. 47, provides, in pertinent part, as follows:
The last clause, it seems to us, significantly provides, in effect, that installments of an award to an employee, handled under said section, which have not accrued at the time of the employee's death shall be returned to the employer.
Appellee directs attention to §§ 306, 307 and 308 as showing a legislative intent that an award of compensation is, in effect, the same as any other judgment. Although these sections refer to an award of compensation as a judgment we are unable to agree that they should be construed as over-riding the other provisions of the Act clearly showing, we think, that an award of compensation is limited to the injured employee during his lifetime (except when an inmate of a public institution, § 279(D) 2, as amended, supra) and, at his death, to his dependents, who are entitled to compensation only when his death results proximately from a compensable injury.
Although there are differences between the Minnesota and Alabama Workmen's Compensation Laws, we have recognized that our law in material respects was modeled after that of Minnesota, M.S.A. § 176.01 et seq. Swift & Co. v. Rolling, 252 Ala. 536, 539, 42 So. 2d 6; Alabama By-Products Corporation v. Winters, 234 Ala. 566, 569, 176 So. 183. The Supreme Court of that state, in Tierney v. Tierney & Co., 176 Minn. 464, 465-467, 223 N.W. 773, 774, held that where an employee, who had been awarded compensation at a specified sum per week for a period of 100 weeks, as the result of an accidental injury, died 13 weeks after the allowance was made from a cause other than the injury, his wife, who was wholly dependent upon him, was his sole heir, and was appointed special administratrix of his estate, was not, in any of these capacities, entitled to the weekly compensation for the remainder of the period during which her husband would have been entitled thereto, had he lived. It seems to us that the reasoning in that case is significantly applicable here, viz.:
The Supreme Court of Mississippi, in M. T. Reed Const. Co. v. Martin, 215 Miss. 472, 61 So. 2d 300, 63 So. 2d 528, 531-532, had this to say:
The following from 58 Am.Jur., Workmen's Compensation, §§ 577, 578 and 579, pp. 931-932, is also pertinent, viz.:
Without doing some legislating on the subject, we see no escape from the conclusion that an award of compensation to an employee made payable in installments is unenforceable as to installments accruing after an employee's death, when his death results from a cause in no way connected with the injury upon which the award was based. We are at the conclusion, therefore, that the judgment of the trial court was laid in error and is due to be reversed. It is so ordered.
Reversed and rendered.
LIVINGSTON, C. J., and SIMPSON and COLEMAN, JJ., concur. | October 31, 1957 |
65a77638-c256-40c1-bc02-de25d4d1d86e | Kingry v. McCardle | 98 So. 2d 44 | N/A | Alabama | Alabama Supreme Court | 98 So. 2d 44 (1957)
W. C. KINGRY
v.
Myrtle McCARDLE.
4 Div. 857.
Supreme Court of Alabama.
October 31, 1957.
*45 L. A. Farmer, Jr., and L. A. Farmer, Dothan, for appellant.
W. G. Hardwick, Dothan, for appellee.
LIVINGSTON, Chief Justice.
This is an action to recover damages for personal injuries received in an automobile collision. The defendant filed pleas of contributory negligence and recoupment, and sought to recover for damages sustained in the same automobile collision. The suit, tried before the Circuit Court of Houston County, Alabama, resulted in a general verdict for the plaintiff and damages were awarded in the sum of $8,500. From this judgment, the defendant has now duly appealed.
The complaint, consisting of two counts, is in pertinent part, as follows:
The appellant's assignments of error (1) and (2) are predicated on the overruling of the demurrers to Counts 1 and 2.
It is argued by the appellant that Count 1 of the complaint, attempting to aver simple negligence, is defective because it fails to show that there was a duty owed by the appellant to the appellee. His contention is that "then and there" as used in Count 1 characterizes the act of negligence, and not that the accident occurred upon a public highway. It is his insistence that there is no allegation that the plaintiff was on the public highway at the time of the collision.
Though it is undoubtedly true that pleading is to be construed most strongly against the pleader, there should not be a strained and unnatural construction of the language used. The count as a whole should be considered, and the words used should be given a reasonable construction. Ruffin Coal & Transfer Co. v. Rich, 214 Ala. 622, 108 So. 600; Louisville & N. R. Co. v. Cunningham Hardware Co., 213 Ala. 252, 104 So. 433; Street v. Treadwell, 203 Ala. 68, 82 So. 28; Slight v. Frix, 165 Ala. 230, 51 So. 601.
It was alleged that the appellant was "driving an automobile upon the public highway," and there was a sufficient averment in Count 1 to show that the collision had taken place upon the highway. That is a sufficient allegation to show that the appellee was not a trespasser, and was at a place where the appellant owed him a duty. Ruffin Coal & Transfer Co. v. Rich, supra; Tillery v. Walker, 216 Ala. 676, 114 So. 137; Plylar v. Jones, 207 Ala. 372, 92 So. 445. "The substantive law of torts in this state would subject a defendant to liability if by his simple negligence he injures anyone * * * when on a public highway * *." Alabama Fuel & Iron Co. v. Bush, 204 Ala. 658, 86 So. 541, 542.
From the view we take of the case, it will not be necessary to consider if the overruling of appellant's demurrer to Count (2), which charged the defendant with willful and wanton conduct, was erroneous. The appellant has also assigned as error the failure of the trial judge to give the affirmative charge in favor of the appellant under Count (2) of the complaint.
An examination of the evidence presented in the case clearly reveals that there was insufficient evidence to support Count (2) of the complaint, and to that extent the appellant was entitled to the affirmative charge.
Admitting that the overruling of the demurrer to Count (2), and the failure to give the affirmative charge to such count of the complaint was error, the crucial problem remains: Were these reversible errors, or errors without injury?
There were no written charges given to the jury, and an examination of the court's oral charge reveals that they were in no way instructed as to willful or wanton conduct, or as to the damages arising from such conduct.
In the case of Putman v. White, 18 Ala. App. 15, 88 So. 355, 357, as in this case, there was one count charging simple negligence, and a second count charging willful or wanton misconduct. The demurrer to the second count charging willful or wanton misconduct was erroneously overruled. The court in holding that it was error without injury stated:
In the instant case, as the jury was in no way charged as to Count 2 of the complaint, there being no instructions as to wanton conduct or punitive damages, the rulings of the trial court, though error, were error without injury. Putman v. White, supra; Alabama City, G. & A. Ry. Co. v. Lee, 200 Ala. 550, 76 So. 908; Cartwright v. Hughes, 226 Ala. 464, 147 So. 399. Supreme Court Rule 45, Code 1940, Tit. 7 Appendix.
There is a distinction between the case at bar and such cases as Jordan v. Henderson, 258 Ala. 419, 421, 63 So. 2d 379, 381, which states that:
In the Jordan case, supra, the counts which were not supported by the evidence were submitted to the jury and the trial court charged with reference to them.
In the instant case, the count (wanton) which was not supported by the evidence was not submitted to the jury but was in effect excluded from the jury's consideration by the trial court when he, in effect, charged that the issue for determination was the negligence, vel non, of the defendant. This situation clearly showed that the error in refusing the affirmative charge on said count was harmless.
The appellant, under Assignments of Error 7 and 8, contends that the trial court committed error by overruling timely objections to questions propounded to witnesses by counsel for plaintiff in attempting to determine if they "smelled anything on him (the defendant)." Both witnesses testified they smelled liquor on him.
It is common knowledge that a person under the influence of alcohol is usually unfit to operate a motor vehicle. Wigginton's Adm'r v. Rickert, 186 Ky. 650, 217 S.W. 933. For this reason, a general charge of negligence is broad enough to include negligence in driving while intoxicated. Wise v. Schneider, 205 Ala. 537, 88 So. 662. Therefore, evidence tending to show intoxication while operating an automotive vehicle is admissible on the issue of negligence. Davis v. Radney, 251 Ala. 629, 38 So. 2d 867; Wise v. Schneider, supra.
Intoxication may be shown by introducing evidence of acts and circumstances which taken together are relevant to show intoxication. Southern Natural Gas Co. v. Davidson, 225 Ala. 171, 142 So. 63; Davis v. Radney, supra.
In the case of Clyde v. Grill, Sup., 172 N.Y.S. 136, 137, an automobile collision case, the court stated:
Testimony that an automobile driver's breath smelled of liquor is generally held to be competent evidence tending to prove intoxication. Davis v. Radney, supra; Barrett v. Harman, 115 Cal. App. 283, 1 P.2d 458; 61 C.J.S. Motor Vehicles § 516, p. 251, and cases cited thereunder. This is especially true where such testimony is coupled with other acts or circumstances tending to prove intoxication. Cheatham v. Chartrau, 237 Mo.App. 793, 176 S.W.2d 865, 868.
In the case of Cheatham v. Chartrau, supra, where there had been testimony introduced to the effect that the defendant had the odor of liquor on his breath at the time of the collision, the court stated:
In the instant case, not only was there testimony that the driver of the automobile smelled of alcohol, but there was also testimony tending to establish the fact that defendant's car was being driven on the wrong side of the road. These facts coupled together could lead to the conclusion that the appellant was intoxicated at the time of the collision.
It follows, therefore, that no reversible error appears in the record, and the judgment below must be affirmed.
Affirmed.
SIMPSON, GOODWYN and COLEMAN, JJ., concur. | October 31, 1957 |
aa20f2eb-abb8-4a96-bd78-eb15d85315cd | Ex Parte Reese | 620 So. 2d 579 | 1911583 | Alabama | Alabama Supreme Court | 620 So. 2d 579 (1993)
Ex parte Ralph Junior REESE.
(Re Ralph Junior Reese v. State).
1911583.
Supreme Court of Alabama.
March 19, 1993.
*580 Joseph J. Gallo, Dothan, for petitioner.
James H. Evans, Atty. Gen., and Andy S. Poole, Asst. Atty. Gen., for respondent.
INGRAM, Justice.
Ralph Junior Reese was charged with possession of marijuana "for his personal use only after having been previously convicted of unlawful possession of marijuana... for his personal use only," § 13A-12-213, Ala.Code 1975; he pleaded guilty and was sentenced to five years in the state penitentiary. As evidence of Reese's prior conviction, the State introduced a certified record of Reese's conviction in Dothan Municipal Court. On the docket sheet in that prior case was a stamped notation indicating that Reese had waived his right to counsel before pleading guilty. Reese asserts that that prior conviction cannot be used for enhancement because the State presented no evidence in that earlier case that Reese had voluntarily and knowingly waived his right to counsel.
In pleading guilty, Reese specifically reserved the right to challenge on appeal the use of his prior conviction for enhancement purposes. The Court of Criminal Appeals affirmed Reese's conviction and sentence by an unpublished memorandum, 609 So. 2d 461. We granted his petition for the writ of certiorari to address the following issue: Whether the Court of Criminal Appeals erred in holding that the State proved that Reese's prior guilty plea to possession of marijuana was not obtained in violation of his right to counsel.
A defendant's right to counsel in criminal prosecutions is guaranteed by the Sixth Amendment of the United States Constitution. This right is applied in the state courts through the Fourteenth Amendment. Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963). The right to counsel is to be applied in misdemeanor cases involving a loss of liberty. Argersinger v. Hamlin, 407 U.S. 25, 92 S. Ct. 2006, 32 L. Ed. 2d 530 (1972). In misdemeanor cases, however, the right applies only when the defendant is actually sentenced to jail. Scott v. Illinois, 440 U.S. 367, 99 S. Ct. 1158, 59 L. Ed. 2d 383 (1979).
An uncounseled prior conviction cannot be used to support a finding of guilt or to enhance punishment. Burgett v. Texas, 389 U.S. 109, 88 S. Ct. 258, 19 L. Ed. 2d 319 (1967); Ladd v. State, 431 So. 2d 579, 580 (Ala.Crim.App.1983). "Thus, unless it is shown that the accused was represented by counsel, or waived counsel, at the time of his prior conviction, the conviction is not available for consideration under the Habitual Felony Offender Act. Watson v. State, 392 So. 2d 1274, 1279 (Ala.Cr.App.1980), cert. denied, 392 So. 2d 1280 (Ala.1981)." Ladd, 431 So. 2d at 580. Nor is an uncounseled conviction available for consideration under § 13A-12-213.
"If an accused waives his right to counsel, that waiver must be intelligently and *581 understandingly made and cannot be presumed from a silent record. Carnley v. Cochran, 369 U.S. 506, 82 S. Ct. 884, 8 L. Ed. 2d 70 (1962)." Lake v. City of Birmingham, 390 So. 2d 36, 38 (Ala.Crim.App. 1980). The state must prove that the accused has waived the right to counsel. Brewer v. Williams, 430 U.S. 387, 97 S. Ct. 1232, 51 L. Ed. 2d 424, rehearing denied, 431 U.S. 925, 97 S. Ct. 2200, 53 L. Ed. 2d 240 (1977). "The burden is on the State to show that a defendant's waiver of counsel was made knowingly and intelligently. Zuck v. Alabama, 588 F.2d 436 (5th Cir. 1979), cert. denied, 444 U.S. 833, 100 S. Ct. 63, 62 L. Ed. 2d 42 (1979)." Leonard v. State, 484 So. 2d 1185, 1189 (Ala.Crim.App. 1985).
Reese's previous conviction was for possession of marijuana for personal use only, in violation of § 13A-12-214. That crime is a class A misdemeanor, and Reese was sentenced to six months in the municipal jail. Therefore, he had a right to counsel in that case.
Reese argues that the record is silent as to whether he validly waived his right to counsel in the earlier case and that the State failed to present any evidence that his waiver was made knowingly and intelligently. The State asserts that the record is not silent. That is, the State argues that the stamped notation on the docket sheet from Dothan Municipal Court is sufficient evidence that Reese made a valid waiver of his right to counsel.
The United States Supreme Court has held: "Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver." Carnley, 369 U.S. at 516, 82 S. Ct. at 890, 8 L. Ed. 2d at 77 (emphasis added). The record of Reese's previous conviction, though not completely silent, does not sufficiently show that Reese was offered counsel and that he knowingly and intelligently rejected that offer.
"A defendant may waive his or her right to counsel in writing or on the record, after the court has ascertained that the defendant knowingly, intelligently, and voluntarily desires to forgo that right." Rule 6.1(b), A.R.Crim.P. (emphasis added). There is no evidence that the judge in the municipal court engaged in the colloquy necessary to ascertain that Reese knowingly, intelligently, and voluntarily desired to forgo his right to counsel.
Based on that prior record, Reese was convicted of possession of marijuana in the first degree, § 13A-12-213, and was sentenced to five years in the state penitentiary. Because the State did not meet its burden of proving that Reese validly waived his right to counsel before pleading guilty to the first possession charge, the conviction on that charge cannot be used to elevate the crime in this case.
Accordingly, the judgment of the Court of Criminal Appeals affirming Reese's conviction and sentence is reversed, and the case is remanded. The Court of Criminal Appeals is instructed to reverse the judgment of the trial court and remand the case to the trial court for further proceedings consistent with this opinion.
REVERSED AND REMANDED WITH INSTRUCTIONS.
HORNSBY, C.J., and SHORES, ADAMS, HOUSTON, STEAGALL and KENNEDY, JJ., concur.
MADDOX, J., dissents. | March 19, 1993 |
92844a8f-f718-4280-97e3-5e21cfe32c9e | Levesque v. Regional Medical Center Bd. | 612 So. 2d 445 | 1910395 | Alabama | Alabama Supreme Court | 612 So. 2d 445 (1993)
Teresa LEVESQUE, as mother and next friend of Thomas Anthony Levesque, a minor
v.
REGIONAL MEDICAL CENTER BOARD, d/b/a Northeast Alabama Regional Medical Center, et al.
1910395.
Supreme Court of Alabama.
January 15, 1993.
*446 Leon Garmon, Gadsden, for appellant.
Robert C. Dillon of Merrill, Porch, Dillon & Fite, Anniston, for appellee Northeast Alabama Regional Medical Center.
Michael K. Wright of Starnes & Atchison, Birmingham, for appellee Anniston Family Practice Residency Program.
Randal H. Sellers and M. Christopher Eagan of Starnes & Atchison, Birmingham, for appellee Dr. Dolores Victoria.
ALMON, Justice.
The plaintiff appeals from a judgment based on a directed verdict in favor of the defendants, a doctor and a hospital, in a medical malpractice action. The plaintiff also appeals from the trial court's summary judgment in favor of the doctor's employer.
On July 3, 1986, Teresa Levesque, as mother and next friend of Anthony Levesque, a minor, brought an action against Northeast Alabama Regional Medical Center ("NEARMC") and Dr. Dolores Victoria[1] for damages for injuries she alleged Anthony had sustained because of negligence on the part of the defendants during his delivery on July 15, 1978. Later, the plaintiff amended her complaint to add Anniston Family Practice Residency Program ("AFP") as a defendant, alleging that AFP had negligently failed to supervise or train Dr. Victoria; a yet later amendment alleged that AFP was liable on a respondeat superior theory because it had employed Dr. Victoria at the time of the alleged injuries. Before the trial, AFP was awarded a summary judgment because the statutory period of limitations on the respondeat superior action had run before the complaint was amended to add AFP.
*447 Although the plaintiff raises several issues relating to the alleged spoliation of medical records by NEARMC, the admissibility of testimony concerning NEARMC's standard of care under the "corporate liability" theory, and the trial court's summary judgment for AFP on statute of limitations grounds, these issues are dependent upon the resolution of the primary issue: whether the plaintiff presented sufficient evidence of proximate causation in the negligence action against Dr. Victoria to avoid the directed verdict entered by the trial court. Because we decide the proximate causation issue adversely to the plaintiff, we do not reach the other issues presented.
The facts giving rise to this action, although disputed on several points, are basically as follows:
On July 15, 1978, Teresa Levesque was transported to NEARMC about 1:00 a.m. in order that she might deliver her baby. At that time, Ms. Levesque told hospital personnel that she was having contractions about four to five minutes apart. She was evaluated by Dr. Alig, the attending family physician, and Dr. Holder, a resident on duty. Those doctors found her cervix to be dilated to about four to five centimeters at that time. Shortly thereafter, she was given 100 milligrams (mg) of Demerol. At that point, her labor seemed to be proceeding normally. Ms. Levesque was given another 50 mg of Demerol at 4:35 a.m. At approximately 5:00 a.m., her "bag of waters" ruptured, and the fluid was stained with meconium.[2] Ms. Levesque's cervix still had not dilated much more than the initial four to five centimeters.
At 7:40 a.m. hospital personnel administered another 50 mg of Demerol to Ms. Levesque.[3] Dr. Victoria arrived at NEARMC about 8:00 a.m. to begin her shift. She examined Ms. Levesque; Dr. Victoria testified that she found nothing abnormal about the labor at that point. After another 50 mg of Demerol had been administered to Ms. Levesque about 10:30 a.m., Dr. Victoria administered the "saddle-block" anesthesia at 10:45 a.m. and delivered Anthony with the aid of forceps at around 11:00 a.m.[4]
Although the NEARMC records indicate that Anthony was a "normal newborn," his pediatrician, Dr. Vincent Fuselli, testified at trial that Anthony suffers from several disorders: (1) right hemiparesis, or an imbalance in the motor skills between the right and left sides of his body; (2) severe mental retardation; (3) epilepsy; and (4) optic nerve hypoplasia. There was also evidence that Anthony suffers from cerebral palsy. The plaintiff sought to prove, through the testimony of two experts, Dr. Engel and Dr. Fuselli, that Dr. Victoria and NEARMC were negligent during Anthony's delivery and that their negligence caused him to develop the conditions from which he now suffers. Specifically, the plaintiff alleges that the presence of the meconium-stained fluid, coupled with the nondilation of Ms. Levesque's cervix for an extended period of time, should have alerted Dr. Victoria and NEARMC that her labor was not progressing properly, and that a cesarean section or other means of delivery should have been performed. Also, the plaintiff alleges that NEARMC negligently overadministered Demerol to her, and in doing so rendered her unable to properly deliver Anthony on her own. The plaintiff contends that all these factors acting in concert amounted to actionable negligence *448 on the part of Dr. Victoria and NEARMC.
To prevail on a claim of medical malpractice, a plaintiff must prove that the doctor breached the standard of care and that the plaintiff's injury was proximately caused by that breach. Ala.Code 1975, § 6-5-484; Hannon v. Duncan, 594 So. 2d 85 (Ala.1992); Bradford v. McGee, 534 So. 2d 1076 (Ala.1988). Ordinarily, the plaintiff is required to prove these elements through expert testimony. Dobbs v. Smith, 514 So. 2d 871 (Ala.1987); Lightsey v. Bessemer Clinic, 495 So. 2d 35 (Ala. 1986); Bell v. Hart, 516 So. 2d 562 (Ala. 1987).
Here, we are reviewing a directed verdict, and we need deal only with the proximate causation element. Because this action was filed before June 11, 1987, the "scintilla rule" applies. See Ala.Code 1975, § 12-21-12; Caterpillar Tractor Co. v. Ford, 406 So. 2d 854, 856 (Ala. 1981).
The standard to be utilized in reviewing a proximate causation issue in light of the scintilla rule was recently restated by this Court in Hannon v. Duncan, 594 So. 2d 85 (Ala.1992):
594 So. 2d at 91, quoting Ensor v. Wilson, 519 So. 2d 1244, 1251 (Ala.1988) (emphasis omitted). See Brillant v. Royal, 582 So. 2d 512 (Ala.1991); Williams v. Bhoopathi, 474 So. 2d 690 (Ala.1985).
The plaintiff asserts that certain testimony by Dr. Engel, one of her experts, establishes the proximate causation element. She specifically relies on the following exchange between her attorney and Dr. Engel in an offer of proof:
(Emphasis added.) The ensuing questions concerning Anthony's conditions of hemiparesis and optic nerve hypoplasia were phrased in exactly the same manner; Dr. Engel responded "yes, in all medical probability" to each of the questions.
These exchanges came in an offer of proof because defense counsel had objected to this line of questioning on two grounds. First, he had asserted that Dr. Engel was not qualified as an expert as to the causation issue. Second, defense counsel had contended that Dr. Engel was not proposing to testify that the actions of Dr. Victoria probably caused the injuries, but only that it was probable that her actions could have been the cause of Anthony's injuries; therefore, defense counsel said, the testimony amounted merely to a statement that there was a possibility of causation, and was not legally sufficient. After hearing the offer of proof, the trial court agreed and refused to allow the jury to hear the testimony.
Defense counsel was correct on both grounds of the objection, and the trial court committed no error in its rulings. Dr. Engel admitted on cross-examination that he had no expert knowledge of the causes of any of Anthony's problems:
An expert may testify only as to matters within his training and experience. Southern Metal Treating Co. v. Goodner, 271 Ala. 510, 125 So. 2d 268 (1961); Central Aviation Co. v. Perkinson, 269 Ala. 197, 112 So. 2d 326 (1959). Moreover, it is error for the trial court to allow an expert witness to testify as to matters outside his expertise. Cook v. Cook, 396 So. 2d 1037 (Ala.1981). Dr. Engel, although an expert in the OB/GYN field, admitted that he simply had no knowledge of the causes of epilepsy, hemiparesis, cerebral palsy, or optic nerve hypoplasia from which to render an expert opinion in regard to Anthony's problems. Therefore, his causation testimony was properly excluded.
Even if Dr. Engel were qualified as an expert on the causation issue, the plaintiff's claim would still fail, because Dr. Engel was unable to testify that acts or omissions of Dr. Victoria probably caused Anthony's injuries. The questions posed to Dr. Engel elicited only the answer that Dr. Victoria's actions probably could have caused the injuries; this answer falls short when measured by the standard by which evidence of proximate causation is tested. See Hannon v. Duncan, supra. Moreover, the testimony of Anthony's other expert, Dr. Fuselli, also fails when measured by that standard. Dr. Fuselli testified that the etiology of Anthony's problems is unclear and that he could not state whether the actions or omissions of Dr. Victoria caused Anthony's problems. The plaintiff seeks to escape the consequences of this lack of evidence by extracting pieces of expert testimony on causation issues from Hannon, supra, and Davison v. Mobile Infirmary, 456 So. 2d 14 (Ala. 1984), and attempting to analogize them to the present situation. Hannon and Davison are inapposite to this case, because those cases involved direct testimony that actions of the defendant probably caused the plaintiff's injuries and thus involved testimony far stronger than that offered here.
The plaintiff offered no evidence of causation other than the testimony of Drs. Engel and Fuselli that we have discussed here. The absence of proof of causation applies to the allegations against NEARMC as well as to the allegations against Dr. Victoria.[5] Therefore, the plaintiff offered no evidence on this element of the cause of action. The summary judgment for AFP and the judgment based on the directed verdict for the other defendants are affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, SHORES, HOUSTON and STEAGALL, JJ., concur.
ADAMS, J., concurs in the result.
[1] The original complaint, filed on July 3, 1986, named Dr. Vincent Fuselli as a defendant rather than Dr. Victoria. Dr. Fuselli was dismissed as a defendant before he had answered, and Dr. Victoria was substituted on July 9.
[2] Ms. Levesque's expert witness, Dr. Joel Engel, testified at trial that the presence of this meconium fluid, which is actually the stool of the baby, might indicate problems in the mother's labor if coupled with other factors tending to show "distress," such as failure of the cervix to dilate properly, which was alleged to be the case here.
[3] Ms. Levesque alleges that the hospital failed to apply the "internal spiral electrode"a device used for measuring the baby's heart rateuntil about the time of the third administration of Demerol. Furthermore, Ms. Levesque alleges that the device actually came off during that period, making the hospital unable to measure the heart rate, which she says was crucial in light of the meconium-stained fluid.
[4] One of the most hotly disputed fact questions is whether Dr. Victoria was supervised by Dr. Alig, the attending physician on duty, at the time of the delivery. Because that question is crucial only with respect to Ms. Levesque's collateral issues, we decline to address it here.
[5] The claim against AFP is wholly derivative of the claim against Dr. Victoria, so the judgment in her favor on the merits supports the judgment in favor of AFP and moots the statute of limitations issue. | January 15, 1993 |
f1a8bcb7-efde-42bc-a419-5c5766ec6844 | Ex Parte Grantham | 613 So. 2d 1260 | 1911123 | Alabama | Alabama Supreme Court | 613 So. 2d 1260 (1993)
Ex parte Katherine Lee GRANTHAM.
(Re Katherine Lee Grantham v. State).
1911123.
Supreme Court of Alabama.
February 19, 1993.
Phyllis J. Logsdon, Dothan, for petitioner.
James H. Evans, Atty. Gen., and Cecil G. Brendle, Jr., Asst. Atty. Gen., for respondent.
ALMON, Justice.
The Court of Criminal Appeals, by unpublished memorandum, 602 So. 2d 1226, *1261 affirmed Katherine Lee Grantham's conviction on retrial for possession of marijuana. In her appeal she had attacked that judgment on the basis that the trial court had erred in denying her "petition of former jeopardy." We granted certiorari review to decide whether the judgment of the Court of Criminal Appeals conflicts with prior opinions or violates the prohibitions against double jeopardy, U.S. Const. amend. V, Ala. Const.1901, art. I, § 9.
In her first trial arising out of the facts at issue here, Grantham was convicted of possession of marijuana, first degree, Ala. Code 1975, § 13A-12-213; that was in a nonjury trial. During that trial, the State attempted to introduce the report of a toxicologist to prove that the plant material found at Grantham's home was indeed marijuana. The toxicologist was not present to testify. The defense objected to the introduction of the report, asserting that the State had not shown that the toxicologist was unavailable to testify, and that, therefore, Grantham's right to confront the witnesses against her, guaranteed by the 6th Amendment to the United States Constitution, would be violated. The trial court overruled the objection, admitted the report, and subsequently denied Grantham's motion for judgment of acquittal.
On the first appeal, the Court of Criminal Appeals reversed the conviction and remanded for a new trial. 580 So. 2d 53 (Ala. Cr.App.1991). The court held that the trial court erroneously admitted the toxicologist's report over Grantham's objection. The court held that the admission of the report to prove an essential element of the State's case without a showing that the witness was unavailable violated Grantham's constitutional right to confront the witnesses against her. The court further held that the admission of such hearsay testimony could not be deemed harmless error because it constituted an integral part of the State's case.
Following the reversal and remand by the Court of Criminal Appeals,[1] Grantham filed a "petition of former jeopardy" with the trial court, alleging that, in light of the judgment of the Court of Criminal Appeals, one must conclude that her previous motion for judgment of acquittal had been erroneously denied. Therefore, she argued, a retrial would violate the Federal and State constitutional prohibitions against double jeopardy. The trial court denied Grantham's petition, stating that because the appellate court's ruling went to the admissibility of the evidence rather than to its sufficiency, a retrial would not contravene Grantham's constitutional right of protection against double jeopardy.
At the retrial, the State called Joseph Saloom, a forensic scientist and the laboratory director of the Enterprise Division of the Alabama Department of Forensic Sciences. Saloom testified, after the parties stipulated to his qualifications, that the plant material submitted to him by the State following the search of Grantham's residence was indeed marijuana. The court found Grantham guilty of marijuana possession in the first degree. The Court of Criminal Appeals affirmed the conviction, and Grantham filed with this Court her petition for a writ of certiorari.
In her brief supporting that petition, Grantham argues that the Court of Criminal Appeals erred in holding that her second trial did not violate the Double Jeopardy Clauses. Specifically, she argues that because the State failed at the first trial to produce legal evidence of an essential element of the charged crime, her motion for judgment of acquittal was improperly denied, and that, therefore, the retrial was merely an unwarranted "second bite at the apple" for the State.
The legal rules governing this issue are straightforward. In its decision in Burks v. United States, 437 U.S. 1, 98 S. Ct. 2141, 57 L. Ed. 2d 1 (1978), the United States Supreme Court considered the Double Jeopardy Clause of the Federal Constitution and attempted to derive workable principles from a line of cases that it felt could "hardly be characterized as models of consistency and clarity." 437 U.S. at 9, 98 S.Ct. at *1262 2146, 57 L. Ed. 2d at 8. Burks was tried for the offense of bank robbery with a dangerous weapon. His primary defense at trial was insanity, and he offered expert testimony to establish the defense. After the Government offered its rebuttal witnesses, the defense moved for an acquittal, which was denied by the trial court. The jury subsequently returned a verdict of guilty.
On appeal, Burks argued that the evidence was insufficient to support the verdict because, he said, the Government had failed to adequately rebut Burks's prima facie showing of insanity. The Court of Appeals for the Sixth Circuit agreed, holding that the Government had indeed failed to rebut the petitioner's insanity defense with the required expert testimony. The court of appeals then remanded the case to the district court for further proceedings, instead of terminating the case against Burks.
The United States Supreme Court granted Burks's petition for a writ of certiorari, stating the issue to be "whether an accused may be subjected to a second trial when conviction in a prior trial was reversed solely for lack of sufficient evidence to sustain the jury's verdict." 437 U.S. at 2, 98 S. Ct. at 2143, 57 L. Ed. 2d at 4. In holding that a defendant may not be constitutionally retried in such a situation, the Court distinguished between a reversal based on insufficiency of the evidence and a reversal based on "trial error." With respect to the latter situation, the Court held that the Double Jeopardy Clause did not preclude the retrial of a defendant after a reversal based on some error in the proceedings. The Court stated:
437 U.S. at 15, 98 S. Ct. at 2149, 57 L. Ed. 2d at 12. The Court justified this distinction by reiterating society's interest in retrying defendants whose convictions are reversed because of trial error, and asserted:
Id. (quoting United States v. Tateo, 377 U.S. 463, 466, 84 S. Ct. 1587, 1589, 12 L. Ed. 2d 448 (1964).
The Court, however, took a very different view of a reversal by a reviewing court based on the insufficiency of the evidence. In such a situation, the Court felt that the prosecution could scarcely complain of any prejudice, for it had already been given an opportunity to assemble its proof at the initial trial. The Court noted that a reversal based on evidentiary insufficiency is tantamount to a ruling for the accused on a motion for judgment of acquittal at the trial level; such a reversal necessarily means that the State's case was so deficient that it should not have been submitted to the jury. The Court, agreeing with Justice Douglas's observation in Sapir v. United States, 348 U.S. 373, 75 S. Ct. 422, 99 L. Ed. 426 (1955), stated that it should make no difference whether the evidence was deemed insufficient by the trial court or by the reviewing court. The Court concluded by emphasizing the absolute finality accorded to a jury verdict of acquittal; it failed to see how a society could have any interest in retrying a defendant after a court had determined that the jury could not have correctly returned a guilty verdict.
Ten years later the Court expanded considerably on its Burks decision in Lockhart v. Nelson, 488 U.S. 33, 109 S. Ct. 285, 102 L. Ed. 2d 265 (1988). In Lockhart, the State *1263 of Arkansas wished to enhance Nelson's sentence under its habitual offender statute. In order to accomplish this, the State had to prove, beyond a reasonable doubt, that Nelson had at least four prior felony convictions. At the sentencing hearing, the State introduced four certified copies of prior felony convictions of Nelson. For one of the convictions, however, Nelson had been pardoned by the governor of Arkansas; that conviction was therefore, under Arkansas law, ineffective to prove a fourth conviction; the prosecutor did not know this before he offered the convictions as evidence. Nelson stated that he believed that he had been pardoned as to one of the convictions, and a discussion ensued between the parties regarding this particular conviction. Nelson never formally objected to the conviction, and the case was submitted to the jury. The jury found that the State had sustained its burden, and it imposed an enhanced sentence on Nelson.
Later, it was discovered that Nelson was correct in his assertion concerning the pardon, and he sought a writ of habeas corpus in a federal district court, contending that his sentence was invalid because it had been based on the pardoned conviction. The district court held that the Double Jeopardy Clause prohibited the State from resentencing Nelson. The Court of Appeals for the Eight Circuit affirmed, holding that the conviction was not admissible under Arkansas law, and that, without it, the State failed to produce sufficient evidence to sustain the enhanced sentence.
On review, Chief Justice Rehnquist framed the issue as follows:
488 U.S. at 40, 109 S. Ct. at 290, 102 L. Ed. 2d at 273. While Chief Justice Rehnquist framed the issue in terms of sufficiency of the evidence to support the conviction, it appears that no question was raised about the conviction of the felony, but that the Court was actually dealing with sufficiency of the evidence to support the finding, at the sentence hearing, of four prior felony convictions.
The Court, with three Justices dissenting, held that "the logic of Burks requires that the question be answered in the affirmative." Id. Chief Justice Rehnquist characterized the situation as one of mere trial error, while discounting the evidentiary insufficiency that necessarily flowed from the inadmissibility of the conviction. He stated:
Id. (Emphasis in original.)
The underlying premise needed to give the Lockhart decision logical coherence was this statement by Chief Justice Rehnquist:
488 U.S. at 40-41, 109 S. Ct. at 291, 102 L. Ed. 2d at 274. (Emphasis added.) Chief Justice Rehnquist then characterized an appeal based on insufficiency of the evidence as the functional equivalent of a motion for judgment of acquittal at the trial court, and he concluded that because the trial court considers all admitted evidence in deciding whether to grant the motion for a judgment of acquittal, a reviewing court should do likewise, notwithstanding that some of the evidence may have been erroneously admitted.
*1264 The Burks/Lockhart rule clearly controls the present situation. Grantham seeks to avoid the application of that rule by citing several Alabama cases holding generally that the State must present all of its evidence at the initial trial and that it cannot be permitted to amass more proof against the accused after it has once failed to present evidence of each element of the charged offense. See Ex parte Beverly, 497 So. 2d 519 (Ala.1986); Nicholson v. State, 369 So. 2d 304 (Ala.1979); Prantl v. State, 462 So. 2d 781 (Ala.Cr.App.1984). These cases, however, do not present the Lockhart problem of a jury finding based on inadmissible evidence, and, in any case, they predate Lockhart. Chief Justice Rehnquist's opinion in that case made it clear that the evidence need not be admissible to be considered by either the trial court on a motion for judgment of acquittal or by the reviewing court on an appeal asserting insufficiency. Moreover, Grantham makes no specific argument that the cited cases compel, as a matter of State constitutional law, a result different from that reached in Lockhart as a matter of Federal constitutional law.
Grantham seeks to distinguish her case from Lockhart and Fortier v. State, 564 So. 2d 1041 (Ala.Cr.App.1990), cert. denied, 564 So. 2d 1043 (Ala.1990)a case following Lockharton the ground that in those cases neither a timely objection nor a proper and specific motion for judgment of acquittal had been made, whereas in this case the trial court had an opportunity to rule correctly and merely failed to do so. Although this is a correct observation, it does not significantly distinguish the prior cases from the present one. The entire underpinning of the Lockhart decision is that a reviewing court's assessment of the sufficiency of the evidence is equivalent to, and is governed by the same principles as, the motion for judgment of acquittal; here it is conceded that Grantham made a motion for a judgment of acquittal and that the trial court denied it. Hence, there is no merit in Grantham's attempt to distinguish the cases.
Also damaging to Grantham's case is the notion of curability of the tainted evidence, which is implicit in the Lockhart opinion. In Lockhart, Chief Justice Rehnquist noted that the conviction for which the defendant had been pardoned, while necessary to enhancement, was not the only means of proving the case: it was undisputed that Nelson had many other convictions and the State would have been allowed to introduce evidence of one of these supernumerary convictions if the trial court had excluded the evidence of the conviction for which the defendant had been pardoned.
Here, under the rationale of Lockhart, the admission of the report presented a problem only because the trial court committed an error in ruling on the 6th Amendment objection; the State is not barred by Burks from the opportunity to correct that error. Grantham has alleged no bad faith on the part of the State; the absence of an allegation of bad faith was also important in Lockhart. In fact, the premise of good faith undergirds much of contemporary criminal justice.
The present situation is clearly covered by decisions of the United States Supreme Court. Also, Grantham has failed to set forth any specific argument as to why an analysis under the State double jeopardy provision, Ala. Const., art. I, § 9, should reach a different result from the Fifth Amendment analysis under the Burks/Lockhart rule. For these reasons, the judgment of the Court of Criminal Appeals is due to be affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, SHORES, ADAMS, HOUSTON, STEAGALL and INGRAM, JJ., concur.
[1] The State, following the reversal by the Court of Criminal Appeals, elected to retry the case instead of petitioning this Court for a writ of certiorari. | February 19, 1993 |
02b4b17e-01cd-4cb2-a464-b00bfc566141 | Ex Parte Aratex Services, Inc. | 622 So. 2d 367 | 1911818 | Alabama | Alabama Supreme Court | 622 So. 2d 367 (1993)
Ex parte ARATEX SERVICES, INC., and ARA Services Inc.
(In re Sylvia HUNT v. ARATEX SERVICES, INC., and ARA Services, Inc.)
1911818.
Supreme Court of Alabama.
January 15, 1993.
Drew W. Peterson and Rhonda K. Pitts of Rives & Peterson, Birmingham, for petitioners.
Thomas H. Guthrie of Law Offices of Jerry R. Barksdale, Athens, for respondent.
HOUSTON, Justice.
The plaintiff, Sylvia Hunt, contended that she was injured on February 27, 1989, while working for the defendant. Specifically, she claimed to suffer an alleged on-the-job injury sustained while she was employed at Aratex from carpal tunnel syndrome[1] in both wrists and she alleged that it had been caused by her employment with *368 the defendant, Aratex Services, Inc., a subsidiary of ARA Services, Inc. (hereinafter the defendant is referred to as "Aratex"). In October 1989, when she had not returned to her job with Aratex (having been away from her work since February) Aratex terminated her employment, pursuant to a company policy by which an employee was removed from the active payroll after missing six months of work due to illness. On July 6, 1990, Hunt filed a worker's compensation action against Aratex, based on her alleged on-the-job injury. Although Aratex denied liability, it resolved Hunt's claim against it by petitioning for a lump-sum settlement, which the trial court approved. Thereafter, Hunt sued Aratex, alleging that she had been wrongfully discharged from her employment because she had filed a worker's compensation claim.[2] Aratex answered, raising, among other things, the affirmative defenses of release and res judicata; and it filed a motion to dismiss or, in the alternative, a motion for summary judgment. In support of its motion, Aratex relied upon the petition and proposed settlement previously executed between the parties in the worker's compensation action; upon certain portions of Hunt's deposition testimony taken in the worker's compensation case; and upon a memorandum brief. The trial court entered a judgment for Aratex.[3]
The Court of Civil Appeals reversed, holding that the release executed by Hunt in the worker's compensation action was "not a general release." See Hunt v. Aratex Services, Inc., 622 So. 2d 364 (Ala.Civ. App.1992). That court overruled Aratex's application for rehearing and denied its Rule 39(k), A.R.App.P., motion. Aratex petitioned for a writ of certiorari, which we issued to determine whether Hunt's execution of the release in her prior worker's compensation case barred her claim for retaliatory discharge.
The settlement agreement between Hunt and Aratex stated in part:
(Emphasis added.) Hunt had been discharged by Aratex before she executed the release. The language of the release is virtually identical to the language of the release at issue in Sanders v. Southern Risk Services, 603 So. 2d 994 (Ala.1992), a case decided after the Court of Civil Appeals had issued its opinion in this case.
In Sanders, an employee, Sanders, sued his former employer and his employer's worker's compensation insurance carrier, alleging that he had been discharged from his employment because he had filed a worker's compensation claim, that he had been denied rehabilitation expenses, and that a fraud had been committed on him with regard to the computation of his worker's compensation benefits. Sanders entered into a worker's compensation court-approved settlement for his work-related injury, which settlement read in part as follows:
"... The employee has received the sum of $7,451.91 in temporary total disability benefits ... and in the interest of *369 settlement, the employer agrees to pay and the employee agrees to accept the sum of $7,500.00 in one lump sum in full settlement of any and all claims for compensation benefits due and rehabilitation or retraining benefits due under the Workmen's Compensation Act of the State of Alabama. The employer has paid all medical expenses incurred by the employee to date and shall be responsible for any medical or surgical expenses required by the Workmen's Compensation Act to be paid.
603 So. 2d at 995. (Emphasis added.)
The trial court entered a judgment for the employer. Sanders appealed. In regard to Sanders's retaliatory discharge claim, because (as in this case) the employee had signed a settlement petition approved by the trial court, because (as in this case) there was no evidence of fraud, and because (as in this case) the employee had not expressly reserved the right to pursue a specific claim except for future medical expenses, this Court held that the release was a general release. This Court said:
Sanders, 603 So. 2d at 995-96.
In this case, there was no allegation of fraud and there is no evidence of fraud. Therefore, the settlement of Hunt's claim under the Worker's Compensation Act was "conclusive of any other claims" she might have had except those claims expressly reserved in the release. See Regional Health Services, Inc. v. Hale County Hospital Board, 565 So. 2d 109 (Ala. 1990). Hunt did not expressly reserve her claim for wrongful discharge; the only claim she reserved was a claim for "such future medical benefits as required by the Workmen's Compensation Act in effect on the date of [her] injury."
Based on the foregoing, we conclude that the trial court properly held that Hunt's claim alleging wrongful discharge, filed under § 25-5-11.1, was barred by the release agreement with Aratex. We, therefore, reverse the judgment of the Court of Civil Appeals and remand the case for the entry of an order consistent with this opinion.
REVERSED AND REMANDED.
HORNSBY, C.J., and MADDOX, SHORES, STEAGALL and KENNEDY, JJ., concur.
[1] "Carpal tunnel syndrome" is defined as "[p]ain and paresthesia (tingling, burning, and numbness) in the hand area of distribution of the median nerve, caused by compression of the median nerve by fibers of the flexor retinaculum. Stedman's Medical Dictionary 1524 (25th ed. 1990).
[2] We note that the law firm that represented Hunt in her worker's compensation case also represented her in this wrongful discharge action.
[3] The trial judge who entered the judgment for Aratex was the same trial judge who had approved Hunt's lump-sum worker's compensation settlement. | January 15, 1993 |
d191674c-58d3-49a0-b8f1-da67d775da98 | Jackson County Hosp. v. ALA. HOSP. TRUST | 619 So. 2d 1369 | 1911272 | Alabama | Alabama Supreme Court | 619 So. 2d 1369 (1993)
JACKSON COUNTY HOSPITAL
v.
ALABAMA HOSPITAL ASSOCIATION TRUST.
1911272.
Supreme Court of Alabama.
April 16, 1993.
*1370 Jack Livingston of Livingston, Porter & Paulk, P.C., Scottsboro, for appellant.
James E. Williams of Melton, Espy, Williams & Hayes, P.C., Montgomery, for appellee.
STEAGALL, Justice.
The Alabama Hospital Association Trust (hereinafter the "Trust") contracted with Jackson County Hospital (hereinafter the "Hospital") to provide general liability insurance and to defend the Hospital in certain kinds of lawsuits. Gerri Adkins, an employee at the Hospital, subsequently sued the Hospital under Ala.Code 1975, § 25-5-11.1, alleging a retaliatory discharge; she alleged that the Hospital had terminated her from her job as a collector solely because she had filed a workers' compensation action against the Hospital. Adkins and another employee, Alice Webb, also filed sex discrimination actions against the Hospital in a federal court. The Trust refused to defend the Hospital against these three actions, which it determined were excluded from coverage under the policy, and it sued for a judgment declaring that it had provided no coverage as to those actions. The trial court entered a summary judgment for the Trust, and the Hospital appeals.
The first issue raised is whether the insurance agreement requires the Trust to defend the Hospital on Adkins's wrongful termination claim under § 25-5-11.1. That statute provides:
The Hospital argues that a claim under § 25-5-11.1 is a traditional tort claim, not a claim under our Workers' Compensation Act, and is thus included under the insurance agreement. This Court has recognized that § 25-5-11.1 was created to "prevent an employee's termination `solely because the employee [had] instituted or maintained [an] action against the employer to recover worker's compensation benefits.'" Twilley v. Daubert Coated Prods., Inc., 536 So. 2d 1364, 1367 (Ala.1988). This Court has not, however, previously determined that a § 25-5-11.1 claim for retaliatory discharge "arises under" the Workers' Compensation Act to the extent that it *1371 ceases to be characterized as a "tort claim" in the traditional sense of that term.
To establish that Adkins's § 25-5-11.1 claim was excluded from coverage under the policy, the Trust relied upon Wojciak v. Northern Package Corp., 310 N.W.2d 675 (Minn.1981), wherein the Supreme Court of Minnesota construed an insurance provision similar to that before us to exclude coverage for a retaliatory discharge claim provided for by the Minnesota workers' compensation statutes. The Minnesota statute specifically provides (a) damages for diminution in workers' compensation benefits, (b) punitive benefits not to exceed three times the amount of workers' compensation benefits, and (c) no offset by any worker's compensation to which the employee is entitled. The Minnesota statute thus intertwines damages relating to traditional workers' compensation benefits with the claims of "discharging or threatening to discharge" an employee seeking worker's compensation benefits.
By contrast, the Alabama statute has no special provisions tying the claim to damages relating to workers' compensation benefits; on the contrary, a plaintiff who brings a claim under § 25-5-11.1 can be awarded damages under the general law of torts. Caraway v. Franklin Ferguson Mfg. Co., 507 So. 2d 925 (Ala.1987). See, also, Continental Eagle Corp. v. Mokrzycki, 611 So. 2d 313 (Ala.1992) (mental anguish and loss of wages compensable "under the general law of torts and, thus, under Ala.Code 1975, § 25-5-11.1." 611 So.2d at 315). The award of such damages could entail proof of damage or harm and could entail jury trials, which are nonexistent in traditional workers' compensation actions and which are not contemplated by the Minnesota workers' compensation law. Based on the differences between the Alabama statute and the Minnesota statute, we find the holding of Wojciak not persuasive here.
We note that claims that do "arise under" workers' compensation laws are generally for occupational diseases and accidental injuries resulting from one's employment. The § 25-5-11.1 action for retaliatory discharge operates to protect an employee who files a traditional worker's compensation claim but, in so doing, does not itself become a "worker's compensation" action. We therefore hold that the retaliatory discharge claim is in the nature of a traditional tort, albeit one that is applied in the specialized circumstances of a worker's compensation claim, and thus does not arise "under" our workers' compensation law for purposes of the general liability insurance provision in this case. The trial court thus erred in holding that the Trust was entitled to a judgment as a matter of law on the claim of retaliatory discharge; thus, as to that claim its judgment is reversed and the cause is remanded for further proceedings.
The second issue raised is whether the insurance agreement requires the Trust to defend the Hospital on the sexual discrimination claims filed by Adkins and Webb. The agreement provides:
(Emphasis added.) For purposes of coverage under Agreements A and B, an "occurrence" is defined as an "[a]ccident, including continuous or repeated exposure to conditions, or the happening of any of the offenses described in the definition of `Personal Injury,' which results in personal injury or property damage neither expected nor intended from the standpoint of the member."
The Hospital argues that the sexual discrimination claims brought by Adkins and Webb pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17 (1970 & Supp. II 1972), are based on a continuous "occurrence," as that term is defined in the agreement. In their complaints, Adkins and Webb allege that they were treated less favorably than their co-employees and were so treated because of their sex. To sustain this "disparate treatment" cause of action, the plaintiffs must establish that their employer acted with a discriminatory intent. Solo Cup Co. v. Federal Ins. Co., 619 F.2d 1178 (7th Cir. 1980), cert. denied, 449 U.S. 1033, 101 S. Ct. 608, 66 L. Ed. 2d 495 (1980). Under the terms of its policy with the Trust, the Hospital has coverage only for injuries arising from its unintentional acts; accordingly, the trial court properly determined that the Trust has no duty to defend the Hospital on the sexual discrimination claims.
The summary judgment is hereby affirmed in part and reversed in part, and the cause is remanded.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
HORNSBY, C.J., and MADDOX, ALMON, SHORES, ADAMS, HOUSTON, KENNEDY and INGRAM, JJ., concur. | April 16, 1993 |
b01876ce-cbad-4f51-8da0-ced6fb16d3c1 | Green v. Mutual Benefit Health & Accident Ass'n | 99 So. 2d 694 | N/A | Alabama | Alabama Supreme Court | 99 So. 2d 694 (1957)
Olen G. GREEN
v.
MUTUAL BENEFIT HEALTH & ACCIDENT ASSOCIATION.
4 Div. 926.
Supreme Court of Alabama.
December 19, 1957.
Rehearing Denied January 23, 1958.
*695 Tipler & Fuller, Andalusia, for appellant.
Jackson, Rives, Pettus & Peterson, Birmingham, for appellee.
MERRILL, Justice.
Appeal from a judgment for appellee resulting from the giving of the peremptory affirmative charge for defendant by the trial court.
*696 Appellant sued appellee for $1,200 on a policy of insurance wherein appellee agreed to pay appellant $200 per month for each month that appellee was totally and continuously disabled. Appellee filed a special plea showing that the policy provided that the sickness for which it furnished coverage specifically excluded "heart trouble" unless it was contracted more than six months after the policy date, which was April 12, 1955. The plea further showed that appellant became sick on August 22, 1955, with a coronary occlusion, which was "heart trouble," within six months of April 12.
At the conclusion of the testimony, the court gave the affirmative charge with hypothesis in favor of appellee. Some time after the jury had retired, it was recalled and the court gave the following charge: "I charge you gentlemen of the jury that your verdict must be for the defendant," and marked the charge with hypothesis "Refused." The trial court explained to the jury that "the court judicially knows that coronary occlusion is heart trouble and therefore does not come within the terms of this policy."
The basic question in this case is whether coronary occlusion is heart trouble.
Appellant argues first that we do not reach the basic question because there was no medical evidence that he suffered coronary occlusion. We cannot agree. The policy required proof of loss and the appellee furnished a single sheet of paper for the submission of proof of loss. The front page of the form provided questions for the claimant to answer. One of these was "What sickness or injury was suffered?" Appellant answered "coronary occlusion" over his signature. The reverse side of the form was the "attending physician's report." The second question was "your diagnosis." The answer"coronary occlusion," and that side of the form appears to have been signed by Dr. William G. Cumbie.
Appellant contends that the reverse side of the proof of loss was not admissible because Dr. Cumbie was not called as a witness and nobody established the signature as his. This contention cannot prevail. One of the requirements of the policy called for proof of loss in the filing of a claim. Proofs of loss furnished by the beneficiary to the insurer in accordance with the terms of the policy are prima facie evidence of the facts therein stated, as against the beneficiary, and, when not explained, avoided or rebutted, are conclusive. Metropolitan Life Ins. Co. v. James, 225 Ala. 561, 144 So. 33; Woodmen of the World Life Ins. Society v. Phillips, 258 Ala. 562, 63 So. 2d 707; 12 Ala. Dig., Insurance. The statements on the proof of loss in the instant case were not avoided or rebutted and must be taken as conclusive. Furthermore, the hospital records showed coronary occlusion on both the admitting and the final diagnosis. We must hold that the undisputed evidence shows that appellant suffered a coronary occlusion within five months after the policy date.
That brings us to the main questionis coronary occlusion heart trouble? Considerable evidence was adduced from medical testimony, writings from recognized medical authorities and pictures of the heart, the effect of which was to sustain appellee's contention that coronary occlusion is heart trouble. In addition, appellee cited two cases which uphold that position, Greenberg v. Mutual Ben. Health & Accident Ass'n, Omaha, Neb., 267 App.Div. 186, 45 N.Y.S.2d 193, and Frank v. United Benefit Life Insurance Co., Mo.App., 231 S.W.2d 234, 239. In the latter case, the court said:
The following statement may be an oversimplification, but as we understand it, and avoiding medical terminology, a coronary occlusion is the partial or complete blocking or stoppage of the flow of blood through coronary arteries. These arteries are embedded in the heart; they start in the heart and they end in the heart. Therefore, any trouble in the coronary arteries is heart trouble as that term is commonly accepted.
The next point arising is whether the trial court was correct in holding that the court took judicial knowledge of the fact that coronary occlusion is heart trouble. In Hodge v. Joy, 207 Ala. 198, 92 So. 171, 174, this court quoted from Gordon v. Tweedy, 74 Ala. 232, 49 Am.Rep. 813, as follows:
We have held that the courts take judicial knowledge of the fatal character of tuberculosis and cancer, Independent Life Ins. Co. v. Carroll, 222 Ala. 34, 130 So. 402, and that angina pectoris is a disease of the heart and "this may be said to be the common acceptation of the meaning of the words." Liberty National Life Ins. Co. v. Tellis, 226 Ala. 283, 146 So. 616.
We have also held that the court may know many matters judicially which it does not know actually and, when so, evidence may be taken to inform courts and juries what the fact is that in law is a matter of common knowledge. Hodge v. Joy, supra; Mutual Building & Loan Ass'n v. Moore, 232 Ala. 488, 169 So. 1. But once it is established that a fact is judicially known, or that judicial knowledge of it has been taken, no proof is required. Jobe-Rose Jewelry Co. v. City of Birmingham, 235 Ala. 178, 178 So. 215, 9 Ala.Dig., Evidence. We, therefore, conclude that the trial court was correct in taking judicial knowledge that coronary occlusion is heart trouble.
Next is the contention that the court erred in directing the verdict instead of giving the affirmative charge with hypothesis. The rule is that where a party's own witnesses establish his adversary's case or defense, without material conflict or dispute, there can be no issue upon the credibility of the evidence, and the affirmative charge may properly be given *698 without such hypothesis. Dorough v. Alabama Power Co., 200 Ala. 605, 76 So. 963; Harris v. State, 215 Ala. 56, 109 So. 291. The instant case comes within the rule. There was no dispute as to the policy date; or that appellant became ill within the period of time denying protection to one becoming sick with heart trouble; or that appellant's sickness was coronary occlusion. All of this evidence was adduced by plaintiff before he rested his case in chief. There being no evidence to the contrary, the court was authorized to give the peremptory charge in favor of defendant.
In view of the conclusion stated in the preceding paragraph, it is not necessary to reply to other argued assignments of error as they are concerned with rulings of the court on reception of evidence during the examination of witnesses for the defendant.
The judgment of the circuit court is affirmed.
Affirmed.
LIVINGSTON, C. J., and LAWSON and COLEMAN, JJ., concur. | December 19, 1957 |
5a5559f6-0f7d-4b58-ad36-138edb463420 | Southern Railway Co. v. Jarvis | 97 So. 2d 549 | N/A | Alabama | Alabama Supreme Court | 97 So. 2d 549 (1957)
SOUTHERN RAILWAY CO. et al.
v.
Troy L. JARVIS.
6 Div. 863.
Supreme Court of Alabama.
October 24, 1957.
*550 Cabaniss & Johnston, Leigh M. Clark and Drayton T. Scott, Birmingham, for appellants.
Parsons, Wheeler & Rose and Luther Patrick, Birmingham, for appellee.
LIVINGSTON, Chief Justice.
This is a wrongful death action under Tit. 7, § 119, Code of Alabama 1940, by Troy L. Jarvis for the death of his minor son, Billy Jarvis, against Southern Railway Co. and Morrison O. Allen. From a judgment for plaintiff for $16,500, the defendants appeal.
The evidence presented in the case tends to show the following:
The collision involved in this law suit occurred on April 17, 1953, at approximately 5:55 p.m., on Mineral Springs Road, at a public crossing near Republic, Alabama. Harry Lee Sanford was the driver of the automobile, and Billy Jarvis, the plaintiff's minor son, was the only passenger. Jarvis was sitting in the right-hand front seat. The car was proceeding north on the Mineral Springs Road and the train was going west. The train approached the crossing around a curve which was 350 to 400 feet east of the crossing. The Mineral Springs Road going north had a sharp curve in it about 200 feet from the crossing, and was down grade. About 65 to 70 feet from the crossing, a dirt road intersected the Mineral Springs Road. The dirt road was on a bank, and there was evidence tending to show that bushes, underbrush and trees were on this embankment at the time the collision occurred. There is testimony to the effect that there was only one railroad crossing sign, and this sign was east of the crossing about 12 feet from the edge of the pavement. This sign, according to testimony, was about 8½ feet tall and could not be seen by one going north on the Mineral Springs Road until approximately 110 feet from the crossing. Traffic could not be seen on the Mineral Springs Road from the cab of the Diesel until the train was 100 to 125 feet from the crossing, and a person in the cab could only see about 100 feet south up the Mineral Springs Road.
There was a conflict of testimony as to whether or not signals were sounded at the railroad crossing. There were some six witnesses who testified they heard no signals. However, the engineer testified that he did properly signal for the crossing. The evidence is also in conflict as to the speed of the train, the speed estimates varying from 30 to 50 miles per hour. The evidence also tended to show that the front end of the train and automobile collided, but there is conflicting testimony as to who hit who.
Harry Lee Sanford, being in the military service, was not available as a witness, and therefore a showing was made for him. Such showing tended to show that he saw *551 the train when about 135 to 140 feet from the crossing. The showing further stated that as he applied the brakes the gas pedal was caught under it and caused the car to jump and speed up, and that he did not get the car out of gear until he was about 8 feet from the train. There was also testimony to the effect that there were approximately 81 feet of heavy skid marks left by the car up to the crossing.
Though the record is not entirely clear, we take it that the showing for Harry Lee Sanford was agreed upon, subject to legal objections to be made when the showing was offered stating what the witness would swear if present. The trial court sustained plaintiff's objection to the last sentence contained in the showing and excluded it from the jury.
It is contended by the appellant that the refusal of the trial court to admit the last sentence of the written statement by the driver of the automobile in question is reversible error. The first part of the statement by the witness relates entirely to a recounting of the accident; the last paragraph contains the only testimony in evidence which qualifies said witness as an expert driver, and the last sentence expresses an opinion of the witness as to whether the automobile could have been stopped in time.
The last paragraph states:
This statement is an opinion of the witness, and if admissible at all is admissible as expert testimony. Jones v. Keith, 223 Ala. 36, 134 So. 630. An expert can testify as to what is the most effective way to stop a car. Armour & Co. v. Cartledge, 234 Ala. 644, 176 So. 334.
But only an expert can give expert opinion evidence, and the further question is: Has Harry Lee Sanford been shown to be an expert? Whether or not Sanford was qualified as an expert was within the sound judicial discretion of the trial court. Stewart v. Sloss-Sheffield Steel & Iron Co., 170 Ala. 544, 54 So. 48; Housing Authority of City of Decatur v. Decatur Land Co., 258 Ala. 607, 64 So. 2d 594; Alabama Consolidated Coal & Iron Co. v. Heald, 168 Ala. 626, 53 So. 162. The only evidence which appears in the record besides the statement by Harry Lee Sanford relating to the qualification of Sanford as an expert was elicited from Mr. Strickland, witness for the plaintiff, on cross-examination. There was an attempt by the cross examiner to determine when Mr. Strickland had last seen Harry Lee Sanford, and if he had been driving at that time. The testimony is as follows:
A reading of the statement by Sanford contained in the showing, and a consideration of the above testimony is not convincing to us that there was a palpable abuse of discretion by the trial court in excluding the portion of the showing which set forth the opinion of Sanford, set out above. Dorsey Trailers, Inc., v. Foreman, 260 Ala. 141, 69 So. 2d 459; Lambert v. Jefferson, 251 Ala. 5, 36 So. 2d 594; Johnson v. Battles, 255 Ala. 624, 52 So. 2d 702.
*552 Assignments of Error 3 and 22
During the course of the cross-examination of one of plaintiff's witnesses as to the movements of the train at or about the time of the collision, the following occurred:
Immediately following this, there was a request for a mistrial. The trial judge refused such request, but offered to go further in instructing the jury to disregard the voluntary statement. This offer counsel for the defendant declined.
Admitting that the answer of the witness was nonresponsive and inadmissible, it does not appear that the motion for a mistrial was improperly refused. Error cannot be predicated on this ruling by the court, for if anything, it was more favorable to the defendant than was warranted.
The defendant made a general objection to a nonresponsive answer. It would have been proper for the judge to overrule such general objection, for the proper way to object to a nonresponsive answer is by a motion to exclude. Howell v. Howell, 210 Ala. 429, 98 So. 630; Ward v. Lane, 189 Ala. 340, 66 So. 499. However, the court sustained the objection and promptly and emphatically sought to cure the error by instructing the jury to disregard the voluntary answer. Fortson v. Hester, 252 Ala. 143, 39 So. 2d 649; Empire Coal Co. v. Goodhue, 200 Ala. 265, 76 So. 31; Alabama Power Co. v. Edwards, 219 Ala. 162, 121 So. 543. We feel that the effect of the voluntary statement upon the jury was rendered harmless by the action of the trial court.
The defendant in Assignment of Error No. 1 set forth the following:
Officer Fulton was being questioned concerning the driver, as follows:
It is the contention of the appellant that although the driver of the automobile was not a party to the instant suit, a statement by him as to how the accident occurred would amount to a declaration against interest, and would therefore be admissible.
Without passing on the above, we need only state in passing that there was no showing as to what the driver of the automobile said to the policeman; therefore, it is impossible to state with certainty that it would have been a declaration against interest. For aught that appears from the record, the trial court was not in error in respect to the foregoing.
*553 Assignments of Error 7, 9, 10, 11, 19, 20, 21
It is the contention of the appellant, under Assignments of Error 7, 9, 10, 11, 19, 20 and 21, that they were entitled to the affirmative charge with hypotheses; for that from the evidence presented in the case, it was the actions of Harry Lee Sanford, the driver of the automobile in which the plaintiff's son was riding, which were the proximate cause of the collision between the automobile and the train engine.
The evidence introduced which sheds light on the actions of the driver of the doomed vehicle tends to show that it skidded some 81 feet prior to the collision. There was also a showing introduced into evidence by the appellant's counsel for Harry Lee Sanford, who was not present. The showing indicated that the driver saw the train when he was about 135 or 140 feet from the train crossing. The showing made no mention of whether the brakes on the car became locked, or of the speed of the car, or of the tires skidding at all, but stated:
Whether the driver of the automobile saw the train in time to stop is a question for the jury to determine from the evidence presented in the case, especially since such evidence tends to raise conflicting inferences.
Hence, it is also for the jury to determine whether it was the negligence of the trainman or the driver of the automobile that proximately caused the collision. Miles v. Hines, 205 Ala. 83, 87 So. 837; Alabama Great Southern R. Co. v. Moundville Motor Co., 241 Ala. 633, 4 So. 2d 305; Payne v. Roy, 206 Ala. 432, 90 So. 605.
The affirmative charge was properly refused to the defendant.
Assignments of Error 6 and 22
The appellant in Assignments of Error 6 and 22 asserts that there was improper argument by counsel for appellee and that the overruling of the objection to such argument was reversible error.
The remarks objected to were as follows:
"The law says you can do one more thing."
"The Court: Overrule the objection; go ahead.
"The Court: No, I heard it."
This court has set no hard and fast rules determining what argument is proper and improper in the presence of a jury. As was stated in Birmingham Railway, Light & Power Co. v. Gonzalez, 183 Ala. 273, 61 So. 80, 84:
The control of arguments of counsel rests largely in the discretion of the trial court, before whom the argument is made, and who sees and can judge the demeanor of the counsel making the argument, and who can determine whether a prejudicial atmosphere is created by such remarks; therefore, we will not interfere where this discretion is not abused. Birmingham Electric Co. v. Mann, 226 Ala. 379, 147 So. 165; Smith v. Reed, 252 Ala. 107, 39 So. 2d 653; Adams v. Queen Insurance Co. of America, 264 Ala. 572, 88 So. 2d 331.
As stated in Birmingham Electric Co. v. Cleveland, 216 Ala. 455, 113 So. 403, 407, in regard to whether there should have been a reversal because of error in overruling defendant's motion for a new trial based on improper argument:
However, as was stated in Beaird v. State, 219 Ala. 46, 121 So. 38, 41:
Certainly where the improper argument is prejudicial and is based on facts not in evidence, the erroneous overruling of objection to the argument by the trial court would be cause for reversal. Cross v. State, 68 Ala. 476; Wolffe v. Minnis, 74 Ala. 386. But, not all improper argument is so prejudicial as to require reversal. Birmingham Electric Co. v. Mann, supra; Beaird v. State, supra; Street v. Browning, 210 Ala. 331, 98 So. 203.
It is also established that before there can be a reversal for improper argument the statement must be made as a fact and not as an illustration. Cross v. State, supra; Clinton Mining Co. v. Bradford, 200 Ala. 308, 76 So. 74; Kuykendall v. Edmondson, 208 Ala. 553, 94 So. 546.
The court in the Cross case, supra, stated as follows:
Under the test as established in the Cross case, supra, and further considering that *555 so far as we can observe from the record, the trial was properly conducted in an atmosphere void of prejudice, we do not think that the portion of the argument here appearing on the record is so inflammatory as to require a reversal.
Also, the court below in his oral charge to the jury stated:
If the argument was improper, this instruction by the court, in the circumstance of the instant case, would have a curative effect. Alabama Great Southern R. Co. v. Swain, 248 Ala. 535, 28 So. 2d 714. There is no basis for reversal because of improper argument.
It is insisted by the appellant that the damages awarded, $16,500, are excessive. It was stated in City of Mobile v. Reeves, 249 Ala. 488, 31 So. 2d 688, 696, that:
In the instant case, it does not appear that under the evidence the amount of damages was excessive or that the jury was actuated by passion, bias, or prejudice. Further, the trial judge refused to grant a new trial where the excessiveness of the verdict was argued. As was stated in Louisville & Nashville Railroad Co. v. Tucker, 262 Ala. 570, 80 So. 2d 288, 298:
And so in this case the verdict will be allowed to stand. The decision is affirmed.
Affirmed.
SIMPSON, GOODWYN and COLEMAN, JJ., concur. | October 24, 1957 |
3c9d748d-2406-474d-8bda-d8a359db212f | Epperson v. Stacey | 96 So. 2d 750 | N/A | Alabama | Alabama Supreme Court | 96 So. 2d 750 (1957)
Arthur C. EPPERSON and Jimmie Patterson
v.
J. H. STACEY, Jr.
1 Div. 714.
Supreme Court of Alabama.
August 22, 1957.
Arthur C. Epperson, Foley, for appellants.
Jas. A. Brice, Foley, for appellee.
SIMPSON, Justice.
Appeal from a judgment rendered against the respondents in a declaratory judgment proceeding instituted in the Circuit Court in Equity of Baldwin County. The bill seeks interpretation of a written lease of real estate.
Appellant Epperson was lessee of Alfred Newman and Claude Peteet. Appellant Patterson is the sub-lessee of Epperson. The lease was executed in 1951 and *751 contained the following clause which is here in controversy:
On May 31, 1956 the appellee, successor in title to the property, through his attorney, gave written notice to the appellant Epperson that the lease would be cancelled as of September 1, 1956, which date was the end of the original five year term. Appellant Epperson gave a written acknowledgment of receipt of this notice.
Subsequent to the receipt of this notice from appellee, the appellant Epperson notified him that he wished to exercise his option to renew the lease under the second phrase of the above quoted provision of the lease. The appellee refused to renew the lease and appellant refused to vacate the premises, claiming he had subleased the same to Patterson. The appellee brought this declaratory judgment proceeding as stated. The trial court found the lease had been duly terminated, that appellants Epperson and Patterson were illegally retaining possession of the property; and finally ordered that appellants pay a rental of $75 per month for the actual time possession of the property is retained by them from September 1, 1956.
It is first argued by the appellant Epperson that under the above quoted provisions of the lease "that the Lessors will not lease the aforesaid premises to a third party upon the expiration of any term of tenure under this lease without giving the lessee ample time to renew this lease", he had an option to renew regardless of the clause immediately preceding giving the right of termination to the lessors (and of course to their successor in title, the appellee). In this connection the appellants seem to insist that there was some understanding between the original parties that Epperson would have an opportunity to renew his lease for a succeeding period of five years. However, in the absence of fraud or mistakenot here claimed or shownthe terms of a written contract cannot be varied by parol evidence. Griffin v. Tatum Chevrolet, 231 Ala. 534, 166 So. 49; Miles v. Sledge, 157 Ala. 528, 47 So. 595.
The primary contention of appellants is that the option to renew the lease quoted above took precedence over the prior provisions for termination. The rule is to the contrary. If there exists inconsistency between two clauses of a contract which cannot be reconciled, the inconsistency must be resolved in favor of the prior clause, unless an intention to thereafter qualify is plainly expressed. Irwin v. Baggett, 231 Ala. 324, 164 So. 745; Lowery v. May, 213 Ala. 66, 104 So. 5. The controverted provision of the lease under consideration is governed by this principle. It is quite clear the lease was for an initial period of five years. See Irwin v. Baggett, supra (6). Hence, in the light of the above noted rule of construction, it must be held that the termination provision of the lease took precedence over the provision for renewal. That is to say, as a converse, appellants' right of renewal was from year to year after the expiration of the original term, so long as the right of termination was not asserted by the lessor. See for analogy the following from other jurisdictions. Stewart v. Kuskin & Rotberg, Inc., Tex.Civ.App., 106 S.W.2d 1074; Jacob Dold Packing Co. v. King County Refrigerating Co., 176 App.Div. 407, 162 N.Y.S. 1035; Willcox v. Montour Iron & Steel Co., 147 Penn. 540, 23 A. 840. It results that the lessor divested the lessee of his right to renew when he seasonably exercised his right of termination.
*752 Indian Head Mills v. Hamilton, 212 Ala. 97, 101 So. 747 is distinguishable from the present situation in that the provision there concerned a right to terminate an existing lease, whereas here the question is the right, vel non, of the lessee to a continuation of an existing lease.
Error is also argued in the ruling of the Court in fixing the rental of the property at $75 per month. In the light of the favorable resumption attending the finding below on conflicting evidence heard ore tenus, we would not be justified in overturning that ruling. 2A Ala. Dig., Appeal & Error.
Other assignments of error not argued in brief and are waived. Supreme Court Rule 9, Tit. 7 Appendix, Code 1940, 1955 Cum. Pocket Part.
We find no error.
Affirmed.
All the Justices concur except STAKELY, J., not sitting. | August 22, 1957 |
a2e3ea4b-cc2e-477a-a9e2-d1a3d0804b9f | Taylor v. State | 97 So. 2d 802 | N/A | Alabama | Alabama Supreme Court | 97 So. 2d 802 (1957)
Samuel TAYLOR
v.
The STATE of Alabama.
6 Div. 38.
Supreme Court of Alabama.
June 27, 1957.
Rehearing Denied November 14, 1957.
Marcus Jones and Morel Montgomery, Birmingham, for appellant.
John Patterson, Atty. Gen., and Geo. Young, Asst. Atty. Gen., for the State.
*803 GOODWYN, Justice.
Samuel Taylor, alias "Iron Man", was convicted of rape and sentenced to death by electrocution. His appeal is here pursuant to the statute providing for automatic appeals in death cases. Act No. 249, appvd. June 24, 1943, Gen.Acts 1943, p. 217, Code 1940, Tit. 15, § 382(1) et seq., Pocket Part.
The evidence tended to show the following: At a little past midnight on Saturday morning the prosecuting witness and her date drove out to a secluded spot off the Tarrant-Huffman Highway, in Jefferson County, and parked. It was a bright moonlight night. While the couple sat in the parked car listening to the radio, the girl noticed a Negro man (later identified as Thomas Black) outside the window, motioning her to unlock the door. Before the girl's companion was able to get the car started, the Negro broke the window and unlocked the door from the inside. The couple tried to escape through the opposite door, but were met there by two other Negroes. These two Negroes were later identified as the defendant, Taylor, and Mark Spruce. Black came around the car, caught hold of the prosecutrix and forced her to the ground near the rear of the car and raped her while the defendant and Spruce held her escort near the front of the car. Then the defendant raped her, while Spruce and Black held her escort. After the defendant had finished, all three ran away.
The commission of the crime in this manner was admitted by defendant in voluntary statements made by him to police officers after his arrest and corroborated by the testimony of the prosecuting witness, her escort, and a Negro named William Welch. Welch testified that he had heard the defendant and one of his companions planning, on Wednesday before the rape took place, to go hunting some "white stuff" on the following Friday night. He further testified that he had watched the whole affair from a distance of 15 or 20 feet, and identified the defendant as one of the participants.
The state presented other witnesses including the doctor who examined the prosecuting witness immediately after the alleged rape and several police officers to whom defendant made statements concerning his participation in the offense. A proper predicate was laid for the introduction of these statements, the evidence clearly showing that they were made voluntarily and free from any force, coercion or other improper influence.
The jury returned a verdict finding the defendant guilty as charged and fixing his punishment at death. This sentence was duly imposed by the court.
Defendant's motion for a new trial, based principally on newly discovered evidence, was overruled.
The main insistence here is that the trial court erred in refusing to grant the motion for a new trial. The newly discovered evidence presented in support of the motion consisted of Welch's repudiation of his testimony given at the trial. It appears that Welch was a witness for the state in the trial of Thomas Black which was held two or three weeks subsequent to the trial of this defendant. On direct examination his testimony was essentially the same as in the Taylor case. However, on cross-examination he repudiated all of his previous testimony given on direct examination. The evidence adduced at the hearing on the motion for new trial is conflicting as to why Welch repudiated his previous testimony. The defendant sought to show that Welch's testimony implicating the defendant was untrue and forced from him by the coercion of law enforcement officers. The state's evidence tended to show that his initial version of the facts was true, and that Welch repudiated his testimony because of outside pressure and sympathy for Blackhe did not want to see Black die in the electric chair like Taylor was going to do. The jury in the Black case returned a verdict fixing punishment at 10 years' imprisonment. The same judge presided in both cases.
*804 At the conclusion of the hearing on the motion for new trial the trial judge, in announcing his decision overruling the motion, made the following observations, viz.:
To establish his right to a new trial on the ground of newly discovered evidence the defendant must meet the following requirements: (1) That the evidence is such as will probably change the result if a new trial is granted; (2) that it has been discovered since the trial; (3) that it could not have been discovered before the trial by the exercise of due diligence; (4) that it is material to the issue; and (5) that it is not merely cumulative or impeaching. Washington v. State, 259 Ala. 104, 107, 65 So. 2d 704; O'Pryor v. State, 237 Ala. 13, 185 So. 374; Hodge v. State, 32 Ala.App. 283, 286, 26 So. 2d 274, certiorari denied 248 Ala. 73, 26 So. 2d 278; Folmar v. State, 22 Ala.App. 317, 116 So. 110, certiorari denied 217 Ala. 410, 116 So. 112; 39 Am. Jur., New Trial, § 158, p. 165.
The only evidence adduced by the defendant in support of his motion for a new trial was that the state's witness, Welch, had repudiated his testimony given at the original trial. It is abundantly clear from an examination of the record that Welch's testimony was cumulative and that there was ample evidence to support the conviction without considering his testimony. This is conceded in appellant's brief, but it is argued that without the influence of Welch's testimony the result of the trial would have been different in that the punishment fixed by the jury would have been less severe. On its face, the evidence in support of the motion merely tends to impeach one of the state's witnesses whose testimony was not essential to support the verdict of the jury. Even if it should be conceded that Welch's testimony was false, we cannot say with any degree of certainty that the absence of such testimony on another trial would probably change the result. This is the conclusion reached by the trial judge and we find no basis for disturbing it. The granting or the refusal of a motion for new trial on the ground of newly discovered evidence is addressed to the sound discretion of the trial court and will not be revised on appeal unless it clearly appears that that discretion has been abused. Washington v. State, 259 Ala. 104, 108, 65 So. 2d 704, supra; Maund v. State, 254 Ala. 452, 462, 48 So. 2d 553; Slaughter v. *805 State, 237 Ala. 26, 27, 185 So. 373; Aaron v. State, 181 Ala. 1, 3, 61 So. 812; 23 C.J.S. Criminal Law § 1453, pp. 1224-1227. We cannot say that there has been an abuse of discretion in this case.
As bearing on the question before us, we quote the following from an annotation in 158 A.L.R. 1062-1063:
We have carefully considered all of the testimony, even though no lawful objection or exception was made thereto, as is required of us, and we do not find any testimony that was seriously prejudicial to the rights of the appellant; nor can we say, upon consideration of all the testimony, that the verdict is so decidedly contrary to the great weight of the evidence as to be wrong and unjust, which would call for an order reversing the judgment and granting a new trial. Code 1940, Tit. 15, § 382(10), Pocket Part, Act No. 249, appvd. June 24, 1943, Gen.Acts 1943, p. 219, § 10, supra. The verdict is amply supported by the evidence.
No error to reverse appearing, the judgment is due to be, and is, affirmed.
Affirmed.
All the Justices concur. | June 27, 1957 |
62bde7e8-9ce5-4c3c-a445-8553b8d184c7 | Lasseter v. Lasseter | 97 So. 2d 555 | N/A | Alabama | Alabama Supreme Court | 97 So. 2d 555 (1957)
Sam D. LASSETER, Jr.
v.
Marzell P. LASSETER.
7 Div. 375.
Supreme Court of Alabama.
October 24, 1957.
*556 Roy D. McCord, L. D. Martin and Roberts & Orme, Gadsden, for appellant.
Hawkins & Rhea, Gadsden, for appellee.
MERRILL, Justice.
Appellant filed a bill against appellee, his wife, for divorce. She filed a cross-bill seeking custody of their three minor children and support and maintenance for herself and the children. The final decree denied the divorce, awarded custody of the children to appellee and fixed the amount of support and maintenance at $230 per month.
Appellant failed to pay the sum awarded and garnishment proceedings were instituted against City of Gadsden, appellant's employer, as garnishee. Appellant is one of the City Commissioners of Gadsden. The City filed an answer showing appellant's salary to be $500 per month. A motion to dismiss the garnishment on the ground that appellant's salary was not subject to garnishment was denied. The appeal is from this judgment, which was a final judgment from which an appeal would lie. Callaway v. Security Loan Corp., 249 Ala. 81, 29 So. 2d 567; Rayford v. Faulk, 154 Ala. 285, 45 So. 714.
The question to be decided is whether the salary paid to appellant is subject to garnishment on a judgment or decree rendered for support of appellant's wife and children.
Appellant cites Tit. 7, § 1035, Code 1940, which provides:
He insists that "the judgment on which the garnishment was issued was not a judgment rendered on a contract and was therefore not an ex contractu judgment."
A decree for alimony and attorney's fees is not a "debt contracted" within the meaning of our Constitution and statutes. Littleton v. Littleton, 224 Ala. 103, 139 So. 335; Horan v. Horan, 259 Ala. 117, 65 So. 2d 486; Coon v. Coon, 264 Ala. 127, 85 So. 2d 430; and "as related to exemptions, the demand is in tort and not ex contractu." Rogers v. Rogers, 215 Ala. 259, 110 So. 140, 142.
The plain and unambiguous language of § 1035, supra, exempts the salary of the public official from garnishment issued on judgments ex delicto. We are constrained to hold, therefore, that the salary of appellant is not subject to the writ of garnishment, since the decree for support and maintenance "is in tort and not ex contractu."
The duty of a husband to provide for his wife and children is a public and moral duty, as well as a duty by contract. Clisby v. Clisby, 160 Ala. 572, 49 So. 445; Miles v. Miles, 211 Ala. 26, 99 So. 187. But the clear provisions of § 1035, supra, exempt appellant's salary from the writ of garnishment issued in this cause. The result reached in the instant case is not that which we would have desired, but the remedy must lie with the Legislature, not with the courts.
Application in the form of a motion is made to us for allowance of an attorney's fee for representation of appellee on this appeal. The motion must be denied because "the allowance of a solicitor's fee is not appropriate in a proceeding looking to the enforcement of an award already made." Jordan v. Jordan, Ala., 96 So. 2d 809, 812.
The decree denying the motion to dismiss the writ of garnishment is reversed and one is here rendered dismissing the writ.
Motion for attorney's fee denied.
Reversed and rendered.
LIVINGSTON, C. J., and LAWSON and GOODWYN, JJ., concur. | October 24, 1957 |
9c383669-9256-4791-8827-81eef3f0e024 | Relf v. State | 99 So. 2d 216 | N/A | Alabama | Alabama Supreme Court | 99 So. 2d 216 (1957)
William RELF
v.
The STATE of Alabama.
5 Div. 671.
Supreme Court of Alabama.
November 7, 1957.
Rehearing Denied December 19, 1957.
*217 Harry D. Raymon, Tuskegee, for appellant.
John Patterson, Atty. Gen., and Wm. C. Younger, Asst. Atty. Gen., for the State.
MERRILL, Justice.
Appellant was indicted, tried and convicted of rape, was sentenced for a term of thirty-five years in the penitentiary, and has appealed.
The State has filed a motion to strike the entire record and, in the alternative, has moved that the transcript of the evidence be stricken. The motion must be granted in both alternatives, and we shall discuss the reasons in each instance.
Appellant was convicted and sentenced on October 22, 1956, and on that same day, defendant gave "notice of appeal to the Supreme Court of Alabama."
Title 15, § 368, Code 1940, provides:
Appellant took his appeal at the time the judgment was rendered and any later compliance with subsection (b) of § 368 was ineffectual. An appeal is taken, within the meaning of the statute, when the record shows the defendant has expressed a desire to take an appeal and has complied with the statutory requirements upon which the law gives the right, Campbell, v. State, 182 Ala. 18, 62 So. 57; Sherman v. State, 15 Ala.App. 175, 72 So. 755; or to express it differentlyan appeal is deemed perfected if the defendant, upon the rendition of a judgment, expresses a desire to appeal. McDaniel v. State, Ala.App., 96 So. 2d 319.
Act No. 886, Acts of Alabama 1951, p. 1527, listed in the Pocket Part of the Code as Tit. 7, §§ 827(1)-827(6), as amended by Act No. 97, Acts of Alabama Special Sessions 1956, p. 143, provides that the court reporter's transcript of the evidence must be filed with the clerk of the circuit court within sixty days from the date on which the appeal was taken; or within sixty days from the date of the court's ruling on the motion for a new trial, whichever date is later.
Here, a motion for a new trial was timely made and duly and legally continued until January 31, 1957. No further orders pertaining to the motion were made until February 6, 1957, when it was overruled. The motion, therefore, became discontinued and the order overruling the motion was of no effect. Clark v. State, 38 Ala.App. 480, 87 So. 2d 669; McVey v. State, 38 Ala.App. 327, 82 So. 2d 926. Since there was no judgment on the motion, there was no new point of departure from which the time for filing the transcript of the evidence could begin to run. The time, therefore, must be dated back to the date on which the appeal is taken. Stallings v. Clark, 218 Ala. 31, 117 So. 467; Folmar v. First Nat. Bank of Montgomery, 223 Ala. 625, 137 So. 777; Central of Georgia Ry. Co. v. McDaniel, 262 Ala. 227, 78 So. 2d 290. See Richards v. Williams, 231 Ala. 450, 165 So. 820; Merritt v. Carter, 243 Ala. 272, 9 So. 2d 779; Pate v. State, 244 Ala. 396, 14 So. 2d 251.
Applying the law of these cases to the facts in the instant case, it follows that the transcript of the evidence should have been filed within sixty days after October 22, 1956, unless the time was extended by the trial court for cause. It was not filed until May 2, 1957, more than four months after it was due, and there is nothing in the record showing that the period of time for filing the transcript with the clerk was "extended by the trial court for cause" as provided by the statute. The motion to strike the transcript of the evidence must be granted. Watkins v. Kelley, 262 Ala. 524, 80 So. 2d 247; McDaniel v. State, Ala.App., 96 So. 2d 319.
We come now to the question of whether the transcript of the record should be stricken.
The appellant gave notice of appeal on October 22, 1956; the sixtieth day thereafter was December 21, 1956. The transcript of the record was filed in this court on May 21, 1957.
Supreme Court Rule 37, Code 1940, Tit. 7 Appendix, as amended February 17, 1956, reads as follows:
Rule 37 clearly requires the filing of the transcript of the record in this court within sixty days from two possible dates. The first date is the actual establishment of the bill of exceptions or the transcript of the testimony. The procedure for establishing the bill of exceptions or the transcript of the evidence is set out in the 1940 Code, Pocket Part, listed as Tit. 7, § 827(1a). Usually, no objections are made and in that event, the correctness of the transcript of the evidence is conclusively presumed as of the date of its filing. Section 827(1a), supra. There should be no difficulty in arriving at the correct date from which the sixty days begin to run.
The second date is more difficult to set. It is pertinent in the instant case. If a transcript of the evidence is sought under Tit. 7, § 827(1), but is not filed or established, or, if, as here, it is established too late (which amounts to the same thing as not established at all), what is the date from which the sixty days begin to run? We set that date as the last day upon which the transcript of the evidence could or should have been filed by the court reporter with the circuit clerk. The court reporter had sixty days after October 22, 1956, to file the transcript of the evidence, no extension of time having been sought, and the sixtieth day was December 21, 1956. Therefore, the transcript of the record should have been filed here sixty days after December 21st, no extension of time having been sought under Supreme Court Rule 37, which would have been February 19, 1957.
Our holding here is distinguishable from that in Duke v. State, 264 Ala. 624, 89 So. 2d 102. There, the appeal was on the record proper without a transcript of the evidence, and we held that since there was no effort to secure a transcript of the evidence, the sixty days began to run from the time the appeal was taken, and had expired more than five months before the record was filed in this court.
Also, we call attention that there is no conflict in our holding in the instant case with the two Court of Appeals cases of Lane v. State, 38 Ala.App. 487, 87 So. 2d 668, and Clark v. State, 38 Ala.App. 480, 87 So. 2d 669. In each of those cases, the transcript of the evidence was filed by the court reporter but the transcript of the record was not filed in the Court of Appeals within the required sixty days, no extension of time having been sought. Certainly, the court reporter is not required to wait the full time allowed in which to file his transcript of the evidence, and, there being no objections filed to it, the sixty days in which to file the transcript of the record in this court begin to run from the date of the filing of the transcript of the evidence with the circuit clerk. See Lane v. State, supra.
*220 No extension of time for the filing of the transcript of the record was sought by appellant in the lower court or in this court as provided by Rule 37, supra.
The motion to dismiss the appeal is granted.
Appeal dismissed.
LIVINGSTON, C. J., and LAWSON and COLEMAN, JJ., concur.
MERRILL, Justice.
Appellant earnestly insists that he and his counsel are not at fault because the motion for the new trial became discontinued and the transcript of the evidence was filed on an incorrect date. He concedes that to grant a rehearing in this cause, we would have to overrule many decisions which we followed as precedent in holding that since the motion for a new trial became discontinued, the time for filing the transcript must begin to run from the date on which the appeal was taken. We are not willing to overrule those authorities.
However, subsequent to the announcement of our decision in this cause, we have read a letter from the trial judge and an affidavit of the court reporter, taking upon themselves the blame for certain deficiencies which compelled us to dismiss the appeal, and absolving appellant and his counsel of any blame therefor. In view of these peculiar circumstances, we have read the record and carefully and minutely considered every point raised in appellant's brief. We are clear to the conclusion that had the appeal not been dismissed, the judgment of the circuit court would have been affirmed.
Application for rehearing overruled.
LIVINGSTON, C. J., and LAWSON and COLEMAN, JJ., concur. | November 7, 1957 |
510f4b8a-3523-4a04-a0d1-e4d7b51284ec | Ex Parte Denton | 96 So. 2d 296 | N/A | Alabama | Alabama Supreme Court | 96 So. 2d 296 (1957)
Ex parte James Herbert DENTON.
6 Div. 160.
Supreme Court of Alabama.
June 20, 1957.
Roger F. Rice and Frank L. Parsons, Birmingham, for petitioner.
John Patterson, Atty. Gen., Bernard F. Sykes and Geo. Young, Asst. Attys. Gen., for respondent.
GOODWYN, Justice.
James Herbert Denton filed in this court on April 22, 1957, an original petition for mandamus to be directed to the Honorable Wallace Gibson, Judge of the Circuit Court of Jefferson County. It appears that petitioner is under indictment in Jefferson County for the offense of robbery. On April 12 he was arraigned and entered a plea of not guilty and his case was set for trial on April 22. On April 18 the attorneys for petitioner notified the solicitor that they would take the depositions of certain named witnesses on April 19, under the provisions of Act No. 375, appvd. Sept. 8, 1955, Acts 1955, p. 901, Code 1940, Tit. 7, § 474(1) et seq., Cumulative Pocket Part. Subpoenas were served on the witnesses. On April 19 the solicitor moved that the subpoenas be quashed on the ground that Act No. 375 does not apply to criminal cases. This motion was granted. It was then that petitioner instituted this proceeding seeking a writ requiring the respondent-judge to vacate the order granting said motion.
There is only one question presented and that is whether Act No. 375 is applicable to criminal cases. We issued the rule nisi in order to settle the question and thus avoid any continuing doubt as to the Act's applicability. The respondent-judge made answer to the rule, taking the position that the Act is applicable only to civil cases.
The question, as we see it, is purely one of legislative intent. In other words, did the legislature in enacting Act No. 375, intend that its provisions be applicable to criminal cases? In Ex parte Rice, 265 Ala. 454, 92 So. 2d 16, 17, this court said:
We find nothing indicating that Act No. 375 was intended to apply to criminal cases. Accordingly, we hold that it is not applicable to such cases.
Peremptory writ is due to be denied. So ordered.
Writ denied.
All the Justices concur. | June 20, 1957 |
e7f097fb-2806-4c45-b1d0-860be3c4b945 | Wilma Corp. v. Fleming Foods of Alabama | 613 So. 2d 359 | 1911257 | Alabama | Alabama Supreme Court | 613 So. 2d 359 (1993)
WILMA CORPORATION,
v.
FLEMING FOODS OF ALABAMA, INC., et al.
1911257.
Supreme Court of Alabama.
January 29, 1993.
*360 Paul M. Harden and Anthony J. Bishop, Evergreen, for appellant.
Benjamen T. Rowe and David L. Kane, Mobile, for appellees.
HORNSBY, Chief Justice.
This case involves a dispute over whether the parties entered into a lease of shopping center property. Wilma Corporation, the proposed landlord, brought claims alleging breach of contract and fraud against the proposed tenants: Fleming Foods of Alabama, Inc., Fleming Companies, Inc., Dixieland Food Stores, Inc., and Aubrey Cochran (collectively referred to as "Fleming"). The trial court entered a summary judgment in favor of the proposed tenants on both claims. Wilma Corporation appeals, and we affirm.
Wilma Corporation undertook development of a shopping center in Evergreen, Alabama. Pursuant to its development plan, it began negotiations in 1986 with Dixieland, a wholly owned subsidiary of the Fleming companies, for placement of a Piggly Wiggly grocery store in the shopping center. Initially, Edwin M. McIntyre, Jr., the president of Wilma Corporation, contacted Aubrey Cochran, the director of retail development for Dixieland, regarding the proposed lease of space for a Piggly Wiggly store in Evergreen. The parties continued negotiations intermittently over the next three years.
The parties met on May 30, 1989, to discuss the terms of a proposed lease agreement. Wilma Corporation alleges that the purpose of the meeting was to finalize the lease agreement. Fleming, however, contends that the meeting was held for Cochran to obtain the information necessary to complete paperwork for the preparation of a lease agreement. McIntyre represented Wilma Corporation at this meeting, while Cochran represented Dixieland. John Milner, an architect employed by Wilma Corporation, was also present at the meeting. The meeting resulted in a document called "Build and Lease Agreement and Sublease Lease Information," which specified the terms of an anticipated lease.
Neither party treated this document as a final copy of the lease. Fleming contends that the document was a working draft from which Cochran was to draft a recommendation for lease to Fleming. Wilma Corporation alleges that the document was more binding, but it concedes that this document was not the final lease. Wilma Corporation asserts that Cochran told McIntyre that Fleming would complete and execute the lease, based on the information in the document, and that Wilma Corporation would receive a final copy of the lease *361 three weeks after the meeting on May 30, 1989.
Wilma Corporation asserts that at the meeting on May 30, 1989, Cochran fraudulently misrepresented that the lease agreement was a "done deal" when Cochran signed the lease order, otherwise referred to as the "Build and Lease Agreement and Sublease Lease Information." Specifically, Wilma Corporation alleges that it relied on Cochran's statement, which was described by McIntyre in deposition:
Milner agrees that Cochran made this statement, although Cochran denies it.
Wilma Corporation alleges that, in reliance on Cochran's alleged misrepresentation, it demolished two buildings, one of which was worth approximately $150,000 and produced rental income of approximately $1,000 per month, and incurred other costs, in anticipation of constructing and leasing a building to Fleming for the grocery store. After Fleming notified Wilma Corporation that it did not plan to proceed with the lease agreement, Wilma Corporation sued Fleming, alleging breach of contract and fraud.
The trial court entered a summary judgment in favor of Fleming on both claims, holding that the contract claim was barred by the Statute of Frauds, Ala.Code 1975, § 8-9-2. With regard to the fraud claim, the trial court held that Wilma Corporation had presented no evidence of an intent by Fleming to deceive at the time of the alleged misrepresentation, on May 30, 1989. In addition, the trial court held that Wilma Corporation had presented no evidence that it justifiably relied on the alleged misrepresentation by Cochran.
On appeal, Wilma Corporation argues that the trial court erred in entering the summary judgment on the contract claim because, it argues, it produced a writing sufficient to satisfy the Statute of Frauds. Alternatively, Wilma Corporation argues that Fleming is equitably estopped from asserting the Statute of Frauds as an affirmative defense because, it argues, Fleming acted fraudulently. Wilma Corporation also challenges the summary judgment on the fraud claim. Wilma Corporation contends that it presented sufficient evidence of each element of the claim to survive a motion for summary judgment.
"In reviewing the disposition of a motion for summary judgment, we utilize the same standard as the trial court in determining whether the evidence before [it] made out a genuine issue of material fact" and whether the defendant was "entitled to a judgment as a matter of law." Bussey v. John Deere Co., 531 So. 2d 860, 862 (Ala.1988) (citing Chiniche v. Smith, 374 So. 2d 872 (Ala.1979)); Rule 56(c), A.R.Civ.P. The movant has the burden of "showing material facts, which, if uncontested, entitle the movant to judgment as a matter of law." Berner v. Caldwell, 543 So. 2d 686, 688 (Ala.1989); Woodham v. Nationwide Life Ins. Co., 349 So. 2d 1110, 1111 (Ala.1977). Once the movant has made this showing, the opposing party then has the burden of presenting evidence creating a genuine issue of material fact. Danford v. Arnold, 582 So. 2d 545, 546 (Ala.1991); Bass v. SouthTrust Bank of Baldwin County, 538 So. 2d 794, 797-98 (Ala.1989).
The present action was filed after June 11, 1987; therefore, the nonmovant must establish the existence of a genuine issue of material fact by presenting substantial evidence. Ala.Code 1975, § 12-21-12; Bass v. SouthTrust Bank of Baldwin County, supra. "Substantial evidence" is "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." *362 West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala.1989).
Our review is further subject to the caveat that this Court must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Hanners v. Balfour Guthrie, Inc., 564 So. 2d 412, 413 (Ala.1990); Harrell v. Reynolds Metals Co., 495 So. 2d 1381, 1383 (Ala.1986); Wilson v. Brown, 496 So. 2d 756, 758 (Ala. 1986).
Wilma Corporation argues that Fleming breached a contract for the lease of real property for a term of 15 years. Fleming, however, contends that the purported lease is not valid because, it argues, the purported lease does not comply with the Statute of Frauds. The Statute of Frauds provides, in pertinent part:
Ala.Code 1975, § 8-9-2.
Wilma Corporation concedes that the agreementa contract for the sale of an interest in real property for a term greater than one yearfalls within the Statute of Frauds. However, Wilma Corporation contends that it produced a writing sufficient to satisfy the Statute. The Statute of Frauds does not require a formal or complete contract; rather a note or memorandum containing the essential elements of the agreement, signed by the party to be charged, is sufficient. Bunch v. Garner, 208 Ala. 271, 272, 94 So. 114, 115 (1922).
As evidence of the parties' contract, Wilma Corporation presented the "Build and Lease Agreement and Sublease Lease Information," which Cochran signed, as Dixieland's store development representative, on May 30, 1989. This document includes the essential terms of the lease, including the lessor's name and address, lessee's name, location of the property, term of the lease, options, base rent, percentage rent, payment method, tax obligations, detailed agreements for interior and exterior requirements for the building, size of the parking lot, common area maintenance, liability insurance obligations, and additional space requirement guarantees for the supermarket. Although Wilma Corporation contends that this writing was sufficient to create an enforceable contract, neither party treated it as the final lease agreement.
Wilma Corporation contends that Cochran's signature on the "Build and Lease Agreement and Sublease Lease Information" is sufficient to bind Fleming. Fleming, however, argues that Cochran had no authority to enter into the alleged contract with Wilma Corporation. Further, Fleming argues that Cochran's authority to enter into a contract that is subject to the Statute of Frauds on behalf of Fleming must be in writing. See Hight v. Byars, 569 So. 2d 387, 388 (Ala.1990). In Hight, this Court noted that it is a well-settled principle "that in order for an agent to act on a principal's behalf regarding a matter controlled by the Statute of Frauds, the agent's authority must be in writing." Id. The Court also acknowledged that "any contract made by an agent without written authority is void if the contract itself is one that has to be in writing." Id. (emphasis in original); see also Cammorata v. Woodruff, 445 So. 2d 867, 872 (Ala.1983); Thompson v. New South Coal Co., 135 Ala. 630, 634, 34 So. 31, 32 (1903).
*363 The record in this case is devoid of any writing authorizing Cochran to enter into a lease agreement with Wilma Corporation on behalf of Fleming. Wilma Corporation does not argue that Cochran had such implied or apparent authority to enter into the agreement that a written authorization would not be required. See Black Diamond Coal Mining Co. v. Jones Coal Co., 204 Ala. 506, 86 So. 27 (1920) (holding that an agreement signed by the company's president, who was also the company's "alter ego," was sufficient to bind the company without a written authorization).
Because Wilma Corporation presented no evidence of a writing granting Cochran actual authority and no evidence of Cochran's implied or apparent authority, Cochran's signature is not sufficient to bind Fleming. Therefore, the document Wilma Corporation presented does not satisfy the Statute of Frauds.
Alternatively, Wilma Corporation argues that the doctrine of equitable estoppel bars Fleming's use of the Statute of Frauds as a defense. This Court has recognized two exceptions to the Statute of Frauds: "the statutory part performance exception [and] an exception based on the defendant's fraudulent conduct, a form of equitable estoppel." Durham v. Harbin, 530 So. 2d 208, 212 (Ala.1988). Wilma Corporation does not argue the applicability of the part performance exception but argues that Cochran's alleged misrepresentation constitutes fraudulent conduct sufficient to estop Fleming from asserting the Statute of Frauds as a defense.
The fraudulent conduct exception requires a showing of "inherent fraudthat is, an intention not to perform operating from the inception of the transaction." Durham, 530 So. 2d at 212. This Court has held that "a mere refusal to perform a promised act is insufficient evidence of such inherent fraud to allow equity's intervention." Id.; see also Darby v. Johnson, 477 So. 2d 322, 326-27 (Ala.1985). Wilma Corporation presented no evidence that either Fleming or Cochran, at the very time when Cochran made the alleged misrepresentation, intended not to perform. Therefore, Wilma Corporation has not made the showing of fraud inherent from the inception of the transaction that is required to estop Fleming from relying on the Statute of Frauds defense.
Wilma Corporation cites Dean v. Myers, 466 So. 2d 952, 955 (Ala.1985), in support of its equitable estoppel argument. In Dean, this Court held that the "acceptance of benefits may give rise to estoppel, particularly if the promisee has fully performed." Wilma Corporation does not argue, nor does the evidence indicate, that Wilma Corporation has fully performed its part of the agreement or that Fleming obtained any benefits from Wilma Corporation's actions. Therefore, this argument is without merit.
Because the equitable estoppel exception does not apply and because Wilma Corporation presented no evidence, in writing or otherwise, of Cochran's authority to enter into this agreement on behalf of Fleming, the Statute of Frauds bars Wilma Corporation's breach of contract claim against Fleming. Accordingly, the summary judgment is due to be affirmed with respect to that claim.
Wilma Corporation alleges that Fleming misrepresented that the lease agreement was a "done deal" when Cochran signed the "Build and Lease Agreement and Sublease Lease Information" on May 30, 1989. Wilma Corporation contends that Cochran's statement constituted a fraudulent misrepresentation of a present, material fact: that the parties had reached an agreement. Fleming, however, contends that Wilma Corporation made a claim of promissory fraud, which claim requires proof of two additional elements. See Padgett v. Hughes, 535 So. 2d 140, 142 (Ala.1988) (where this Court stated that two elements in addition to the elements of fraud must be satisfied to prevail on a promissory fraud claim; these additional elements are "proof that at the time of the misrepresentation, the defendant had the intention not to perform the act promised, *364 and ... proof that the defendant had an intent to deceive").
The trial court construed Wilma Corporation's complaint to allege a claim of promissory fraud and required Wilma Corporation to present evidence of the two additional elements of promissory fraud. The trial court held that Wilma Corporation, in response to the properly supported summary judgment motion, had not presented substantial evidence that, at the time of the alleged misrepresentation, Fleming intended not to perform the acts promised. The trial court also held that the summary judgment was proper on the basis that Wilma Corporation had presented no evidence of justifiable reliance.
In support of its contention that it made a claim of fraudulent misrepresentation rather than of promissory fraud, Wilma Corporation cites Standard Furniture Manufacturing Co. v. Reed, 572 So. 2d 389 (Ala.1990), in which the distinction between fraudulent misrepresentation and promissory fraud was at issue. In Reed, the plaintiff claimed that his employer had told him that if he took an early retirement he would receive a lump sum payment of $38,000 from the pension plan. In reliance on that statement, Reed retired early but was paid only $11,242.82 from the pension plan. This Court stated that the employer "represented a present fact: the amount Reed would receive in the future based upon the present state of the pension fund." Reed, at 392. Therefore, this Court held that Reed needed only to prove the elements of fraudulent misrepresentation.
Wilma Corporation contends that it, like the plaintiff in Reed, asserted a claim of fraudulent misrepresentation. Wilma Corporation argues that its complaint asserts a claim that Cochran, on behalf of Fleming, misrepresented a present factthat the parties had a "done deal," that is, that the parties had reached an agreement on the terms of the lease. Wilma Corporation argues that this constitutes a claim of fraudulent misrepresentation rather than of promissory fraud. Wilma Corporation asserted in its complaint, and presented evidence, that the alleged misrepresentation that they were in agreementinvolved the present state of the parties' minds.
Like the plaintiff in Reed, the plaintiff here alleged that the defendant misrepresented a present fact, that which was to be performed in the future. Therefore, Wilma Corporation made a claim of fraudulent misrepresentation. Accordingly, Wilma Corporation need not proffer substantial evidence of the additional elements of promissory fraud in order to survive a motion for summary judgment. Therefore, the trial court erred in basing the summary judgment on the grounds that Wilma Corporation had not presented substantial evidence of the additional elements of promissory fraud.
Wilma Corporation's claim of fraudulent misrepresentation is comprised of four elements: (1) a false representation; (2) concerning a material fact; (3) that is justifiably relied upon by the plaintiff; and (4) that causes damage to the plaintiff as a proximate result of the reliance. Reed, supra, at 391; Bank of Red Bay v. King, 482 So. 2d 274, 281 (Ala.1985). Thus, once Fleming, in support of its summary judgment motion, makes a prima facie showing that one of these elements is missing from the plaintiff's case, Wilma Corporation must present substantial evidence creating a material issue of fact as to that element in order to survive Fleming's motion for summary judgment. Harper v. First Alabama Bank of Dothan, 514 So. 2d 1366, 1368 (Ala.1987); Rule 56, A.R.Civ.P.
Fleming contends, and the trial court held, that the summary judgment was appropriate because Wilma Corporation presented no evidence of justifiable reliance. Wilma Corporation, however, argues that under the circumstances of the negotiations, it justifiably relied on Cochran's alleged statement that the parties had reached an agreement.
The element of justifiable reliance is assessed according to the circumstances surrounding the representation:
Hickox v. Stover, 551 So. 2d 259, 263 (Ala. 1989) (quoting Southern States Ford, Inc. v. Proctor, 541 So. 2d 1081, 1091-92 (Ala. 1989) (Hornsby, C.J., concurring specially)). This standard requires the party making the representation to refrain from dishonest, untrue, and recklessly inaccurate statements, while requiring the party receiving the representation to be alert to statements that are patently false. The burden of knowing the truthfulness of a statement is placed on the party making the statement.
Wilma Corporation argues that it justifiably relied on Cochran's alleged misrepresentation that the lease agreement was a "done deal" when Cochran signed the lease order. Wilma Corporation presented evidence that Cochran signed the "lease order," otherwise called the "Build and Lease Agreement and Sublease Lease Information" at the meeting on May 30, 1989, when Cochran allegedly made the misrepresentation. Wilma Corporation argues that because Cochran fulfilled the only condition he allegedly said was required to finalize the agreement, Wilma Corporation's reliance was justifiable.
Wilma Corporation also presented evidence that Cochran was the primary source of information regarding the lease proposal and that McIntyre believed that the purpose of the May 30, 1989, meeting was to finalize the lease agreement. Wilma Corporation argues that it, therefore, expected Cochran to come to the meeting with his superiors' prior approval of the lease and their authority for him to finalize the lease on their behalf. Thus, Wilma Corporation contends that under the circumstances of these negotiations, it justifiably relied on Cochran's statement.
To establish that Wilma Corporation could not have justifiably relied on Cochran's alleged misrepresentation, Fleming presented evidence that Wilma Corporation knew that Cochran did not have authority to approve the lease agreement. Fleming presented a copy of a letter Cochran sent to McIntyre, dated November 15, 1988, which stated that Cochran did not have the authority to approve the lease agreement but that he would have to obtain the approval of his superiors before the lease agreement would be final.
Fleming further contends that Cochran could not have had Fleming's prior approval of the lease because May 30, 1989, was the first time the parties had agreed on the details of the lease. Cochran, therefore, had had no opportunity to ask his superiors for their approval of the alleged agreement before Cochran allegedly told McIntyre that the agreement was a "done deal." Therefore, Fleming argues that Wilma Corporation could not have justifiably relied on Cochran's alleged misrepresentation.
Fleming also presented evidence that John Milner, an architect and developer who undisputedly acted as an agent for Wilma Corporation, knew that any lease agreement would have to be approved by Cochran's superiors before the agreement would be finalized. Milner testified in deposition as follows:
Fleming contends that Milner's knowledge is imputed to Wilma Corporation because Milner acted as Wilma Corporation's agent. Fleming argues that, based on Milner's knowledge as well as its own, Wilma Corporation had to "close [its] eyes to avoid the discovery of the truth" and therefore did not justifiably rely on Cochran's alleged statement.
*366 Wilma Corporation acknowledges that it received from Cochran the letter stating that Cochran would have to obtain the approval of his superiors to finalize the lease agreement. Wilma Corporation further concedes that it knew that Cochran did not have Fleming's authority to act on its behalf. In addition, Wilma Corporation concedes that Milner acted as its agent and that, through Milner, it knew that Cochran did not have the authority to make the final decision on the lease agreement.
An agent's knowledge concerning the subject matter of the agency is imputed to the principal. Carnival Cruise Lines, Inc. v. Goodin, 535 So. 2d 98, 103-04 (Ala.1988); Bynon v. Citizens' Bank of Carbon Hill, 221 Ala. 626, 130 So. 391 (1930). Because Milner knew that Cochran did not have the authority to act on Fleming's behalf, Wilma Corporation must be taken as knowing that also. In addition, Wilma Corporation admits that it had notice that Cochran did not have authority to approve the lease. Wilma Corporation presented no evidence that Fleming had given such written authority for Cochran to act on its behalf that Cochran's signature would bind Fleming notwithstanding the Statute of Frauds.
Furthermore, both Wilma Corporation and Fleming are corporate entities engaging in a business transaction involving the lease of land. This case does not involve a consumer transaction, but an arm's-length transaction between two corporations whose agents knew or should have known of the requirements of the Statute of Frauds. Because Wilma Corporation deals in property development and leasing, it either knew or should have known that the Statute of Frauds prohibits an agent from entering into a contract for the lease of land on a principal's behalf without written authority from the principal.
In summary, Wilma Corporation participated in a commercial transaction within its usual field of activity, the acquisition and development of real property. The requirement that real estate transactions be in writing is well known in our society, particularly in the context of commercial business transactions. Further, Wilma Corporation had not seen the written authorization that it knew was required for Cochran to execute the lease. Finally, Wilma Corporation knew that no properly executed lease was executed by Fleming at the May 30, 1989, meeting.
Therefore, "given the particular facts of [Wilma Corporation's] knowledge, understanding, and present ability to fully comprehend the nature of the subject transaction and its ramifications," we conclude that Wilma Corporation has not presented substantial evidence creating a genuine issue as to whether it had "justifiably relied" on the alleged misrepresentation. Hickox v. Stover, 551 So. 2d 259, 263 (Ala.1989) (quoting Southern States Ford, Inc. v. Proctor, 541 So. 2d 1081, 1091-92 (Ala.1989) (Hornsby, C.J., concurring specially)).
Although Fleming makes a strong argument that Cochran's statement was merely a statement of his opinion, we pretermit any discussion of this issue because we have disposed of this case on the issue of justifiable reliance. The summary judgment in favor of Fleming is due to be affirmed.
AFFIRMED.
MADDOX, SHORES, HOUSTON and KENNEDY, JJ., concur. | January 29, 1993 |
6a24d1d3-68d7-421e-b294-7de4601ccaa1 | Self v. Baker | 98 So. 2d 10 | N/A | Alabama | Alabama Supreme Court | 98 So. 2d 10 (1957)
W. E. SELF
v.
Robert BAKER.
8 Div. 895.
Supreme Court of Alabama.
November 7, 1957.
*11 Bell, Morring & Richardson, Huntsville, for appellant.
Griffin, Ford, Caldwell & Ford, Huntsville, for appellee.
MERRILL, Justice.
Appellee sued appellant for $5,000 as damages allegedly resulting from the negligent operation of appellant's milk truck which caused appellee's tractor and trailer "to be thrown or to run off said public road and off the shoulder of said road and to turn over." Demurrer to the two counts of the complaint, both in simple negligence, was overruled. Appellant pleaded the general issue in short by consent and filed a plea in recoupment. Verdict was for appellee in the amount sued for, judgment was rendered accordingly, a motion for a a new trial was overruled and this appeal was taken.
The first assignment of error is the overruling of the demurrer on the ground that "appellee does not allege in his complaint what act or omissions of the appellant, if any, proximately resulted in his injuries alleged." It is sufficient to say that the two counts follow the simple negligence count in Buffalo Rock Co. v. Davis, 228 Ala. 603, 154 So. 556, which was held to be adequate on demurrer. The facts in that case and in the instant case are quite *12 similar. We have repeatedly held that negligence may be averred in general terms, and that the quo modo need not be set out. Brown v. City of Fairhope, 265 Ala. 596, 93 So. 2d 419; 15 Ala.Dig., Negligence. In his reply brief, appellant concedes that the action of the trial court was correct and no longer insists on this assignment.
The second assignment of error is that the trial court erred in overruling the motion for a new trial. This presents the question of the sufficiency of the evidence, the contention that appellee's contributory negligence was a bar to recovery, and an alleged comment upon the effect of the evidence to the jury by the trial court.
Neither the appellee nor the appellant were present when the events giving rise to the suit took place. Appellant's milk truck was being driven by one Vann and there was a helper in the back of the truck handling milk cans. Appellee's tractor and trailer was being driven by one Christian. He was alone; the trailer was loaded with soy beans and the total weight of the vehicle was 60,000 pounds.
Both vehicles were going east on an east-west road. Vann had stopped to pick up a can of milk at the home of one Carpenter. This stop was about a quarter of a mile west of a T-intersection where a road intersected the east-west road from the north. As Vann left Carpenter's, he saw the tractor-trailer driven by Christian approaching. He said he watched it through his rear view mirror, on the left side of the cab, that he "knew" Christian was following him and that they were going at about the same speed, 15 to 20 miles per hour. Testified that there was a curve in the road and he lost sight of Christian; that some 300 to 400 feet before he reached the intersection, he tried to roll down the left window of the truck so that he could make a turn signal, but the window would not come down; that he finally twisted the handle so hard it came off, but he never did give any signal that he was going to turn left; that some 150 feet before he reached the intersection of the north road, he began veering over to the left to turn left at the intersection. He had not seen Christian's vehicle since rounding the curve, and only saw it as it was turning over in a ditch at the northwest corner of the intersection, and the tractor slid up over a small culvert at that corner of the intersection. He said he had never heard a horn or signal of any kind from Christian. Vann stopped his truck after making the turn into the north road.
Christian testified that he first saw the milk truck when it stopped at Carpenter's on the left side of the road. (Vann disputes this, testifying that he stopped on the right side of the road, and that his helper went across the road to pick up Carpenter's milk can). He stated that he was driving about 30 miles per hour; that he blew his horns, both air and electric, intending to pass Vann as he was stopped on the left side of the road, but Vann pulled off and stayed on the left of the center for about 100 yards; that he kept blowing and when Vann pulled over to the right, he started around him. At that time, he was about 300 feet from the intersection. In another 100 feet, he had pulled up nearly even with Vann, at which point their eyes met in the rear view mirror on Vann's truck. At about 200 feet west of the intersection, Vann began to veer his truck to the left and Christian, blowing his horns, also began to give way to the left, and was forced onto the shoulder of the road and went into the ditch over 100 feet from the intersection. The trailer turned over and the tractor turned partly over. The tractor went about two feet past the end of the culvert and barely tipped the left back wheel of Vann's truck, knocking over some milk cans.
Two patrolmen testified that the tractortrailer left the pavement from 130 to 150 feet from where it came to rest. Some witnesses did not hear any horn blow, others, more than half a mile away, heard an air horn blow several times, then heard *13 the sound of falling milk cans and came to the scene of the accident.
Both drivers were familiar with the roads and the intersection. They knew each other as Christian had previously worked the same milk route with Vann. The accident happened in the daytime in clear, dry weather.
Appellant concedes that Vann was negligent in failing to give a signal for a left turn, but insists that Christian was guilty of contributory negligence for overtaking and attempting to pass at an intersection in violation of Tit. 36, § 13(c). It is urged that the facts in the instant case show that as a matter of law, appellee cannot recover on account of Christian's contributory negligence, and four cases are cited to support that contention. The first is Greer v. Marriott, 27 Ala.App. 108, 167 So. 597, 598. In the statement of the facts in that case, it appears that "* * * plaintiff * * * undertook to pass the truck within the intersection of the two streets; * * *." Those are not the facts in the instant case and are one distinguishing feature from the case at bar. Another is that there was no question of subsequent negligence in that case as there is in the instant case.
The next case cited is Government Street Lumber Co. v. Ollinger, 18 Ala.App. 518, 94 So. 177, 181, certiorari denied Ex parte Ollinger, 208 Ala. 699, 94 So. 922. One of the distinguishing features of that case is stated in the opinion: "* * * For aught that appears in this case, * * * the driver of defendant's car had no notice of the approach of a car from his rear, and no reason to believe one was in close proximity to him, * * *." The other is again the question of subsequent negligence, which the court noted was absent from that case.
The third case cited is Griffith Freight Lines v. Benson, 234 Ala. 613, 176 So. 370, 372. There, the court stated that the evidence showed that the "* * * driver was wholly unaware of the proximity of plaintiff and his truck * * *", and the court also showed why subsequent negligence did not apply in that case.
The last case cited is Holman v. Brady, 241 Ala. 487, 3 So. 2d 30. The judgment in that cause was reversed because the majority of the court thought that the wanton count should not have been submitted to the jury. We do not understand the opinion to hold that plaintiff was guilty of contributory negligence as a matter of law. If that had been the holding, the defendant would have been entitled to the general charge on both counts and the judgment would have been reversed and rendered. We understand the opinion to decide only two questions, first, that the evidence did not support the wanton count, and second, that a question and answer were inadmissible. It could be inferred that the defendant's evidence, if believed, would support the plea of contributory negligence to the count in simple negligence.
In the instant case, the defendant's evidence, if accepted by the jury, was sufficient to support the plea of contributory negligence, but the evidence did not convict appellee of contributory negligence as a matter of law. The question remained one for the jury.
In the decree overruling the motion for a new trial, the court said in part:
We think the facts and the conclusions drawn therefrom in this statement are supported by the evidence.
Appellant contends that the trial court orally charged the jury on the effect of the evidence in violation of Tit. 7, § 270, Code 1940. It is only necessary to say that no objections or exceptions were reserved to any portion of the oral charge and this contention is unsustainable. Guy v. Lancaster, 250 Ala. 287, 34 So. 2d 499; Sorrow v. Industrial Life & Health Ins. Co., 259 Ala. 544, 68 So. 2d 43; Lackey v. Lackey, 262 Ala. 45, 76 So. 2d 761.
As previously noted, there was a conflict in the testimony, and the credibility of the witnesses was for the determination of the jury. The trial judge heard the testimony of the witnesses and observed their demeanor on the stand and had a better opportunity than we to judge their credibility. He denied the motion, thereby strengthening the presumption in favor of the correctness of the verdict. After a review of the evidence, we are unwilling to affirm that his ruling was erroneous. Montgomery Traction Co. v. Haygood, 152 Ala. 142, 44 So. 560; Mulkin v. McDonough Construction Co. of Georgia, Ala., 95 So. 2d 921.
Appellant argues assignments of error four and five together. They are concerned with the giving of two requested written charges for plaintiff. We quote from his brief:
When unrelated assignments of error are argued together and one is without merit, the others will not be considered. Gulf, M. & O. R. Co. v. Sims, 260 Ala. 258, 69 So. 2d 449. Thus, if either charge is good, the other will not be considered. Whitt v. Forbes, 258 Ala. 580, 64 So. 2d 77, and *15 cases therein cited. Charge P-7, while not a model for completeness, has been held good in Gulf, M. & N. R. Co. v. Fowler, 19 Ala.App. 163, 96 So. 87 (Charge 2); see Jones, Alabama Jury Instructions, § 3763. We also observe that there was no hypothesis of proximate cause in charges 1 and 2 in Faulkner v. Gilchrist, 225 Ala. 391, 143 So. 803. It was held not reversible error to give them.
The remaining assignments of error charge error in the refusal to give requested written charges 1 and 8 for defendant. A charge, although abstractly correct, which ignores issues raised by the evidence, is properly refused. Ray v. Brannan, 196 Ala. 113, 72 So. 16. This rule is particularly applicable to charge 8 and justifies the refusal of charge 1, which, in addition, is misleading. Moreover, the court covered requested written charge 1 clearly and completely in the oral charge.
Appellee contends that none of the given or refused charges are reviewable in the instant case because the action of the trial court on them was not assigned as a ground in the motion for a new trial. He cites cases supporting this proposition listed in 2 Ala.Dig., Appeal & Error. The rule of those cases applies only where the motion for a new trial is the only matter which is subject to review on appeal. In the instant case, the appeal is from the judgment and the court's overruling of the motion for the new trial is only one of several appropriate assignments of error.
The judgment of the lower court is due to be, and is, affirmed.
Affirmed.
LIVINGSTON, C. J., and LAWSON and GOODWYN, JJ., concur. | November 7, 1957 |
7a3cf942-cd6f-479e-86d0-8606144258f9 | Tipton v. Tipton | 100 So. 2d 14 | N/A | Alabama | Alabama Supreme Court | 100 So. 2d 14 (1957)
W. Earl (W. E.) TIPTON, Adm'r et al.
v.
Mattie TIPTON et al.
6 Div. 172.
Supreme Court of Alabama.
October 31, 1957.
Rehearing Denied January 23, 1958.
Robt. A. Sapp, Cullman, for appellants.
Julian Bland, Cullman, for appellees.
COLEMAN, Justice.
This is an appeal by respondents from a decree of the Circuit Court, In Equity, overruling demurrers.
The transcript was filed in this court on July 16, 1957. Appellants' brief was filed in this court on August 16, 1957.
Appellees have filed a motion to dismiss the appeal or affirm the case on the ground that appellants' brief was not filed in this court within thirty days after the transcript was filed here, as required by Rule 12 of the Revised Rules of this court.
Rule 12 in pertinent part recites as follows:
"Counsel for appellant shall file his brief with the clerk of this court within thirty days after the transcript of the record has been filed in this court. Upon failure to so file, the appeal shall be *15 dismissed or the case affirmed, as the case may be. * * * Upon written application, served upon opposing counsel, the court, or a justice thereof, for good cause shown, may extend the time for the filing of any of appellant's or appellee's briefs for not exceeding fifteen days." 261 Ala. XXIV; Code 1940, Title 7 Appendix, Cumulative Pocket Part, Revised Rules of Practice in the Supreme Court, Rule 12.
Appellants' brief was filed, not within thirty days after the transcript had been filed in this court, but within thirty-one days after said transcript had been so filed.
In the instant case, no extension of time for filing brief has been granted to appellants; appellants have not applied for any such extension of time; and no cause for granting the same has been shown.
Old Rule 13 provided:
"Counsel for appellant at the time of submission of any civil cause shall file his brief and arguments, * * *. Upon his failure to comply with this rule, the case shall not be submitted or heard on his motion, and may be dismissed on motion of the appellee * * *." (Emphasis supplied.)
The requirements of Old Rule 13 with respect to time for filing appellants' brief have been superseded by Rule 12 presently in effect.
It is to be noted that the language of old Rule 13 with reference to dismissal for failure to file brief in time used the permissive word "may." In the new Rule 12, the language is not permissive, but is mandatory.
The word "shall' is used both for setting the time when appellant shall file his brief and also for setting out the penalty for failure to file appellant's brief as required. Under the mandatory requirements of Rule 12, this court is required to grant the motion to dismiss or, in the alternative, to read the word "thirty," as it appears in the rule, to be the word "thirtyone." This we do not have authority to do. It follows that the appeal must be dismissed, or the case affirmed.
In Terry v. State ex rel. Pettus, 264 Ala. 133, 85 So. 2d 449, appellant filed his brief more than thirty days after the transcript was filed in this court. That case also was an appeal from a decree in equity which overruled demurrers to the bill of complaint. Appellee moved to dismiss the appeal on the ground that appellant had not filed his brief in this court within thirty days as required by Rule 12.
This court held that the requirements of Rule 12 with respect to time for filing appellant's brief did not apply in Terry v. State ex rel. Pettus, supra, because an appeal from a decree overruling a demurrer has a preferred standing in this court (Code 1940, Title 7, § 755) and was, in that respect, controlled by Rule 47. Rule 47, at that time, provided in pertinent part as follows:
"In all cases as are required by law to have a preferred standing on the appeal to this court, Rules 4(4) and 12 supra shall not have application * * *." 261 Ala. XXXVII; Code 1940, Title 7 Appendix, Cumulative Pocket Part, Revised Rules of Practice in the Supreme Court, Rule 47.
Rule 47 has been amended since the decision in Terry v. State ex rel. Pettus, supra. See 263 Ala. XXII. The above quoted provision from former Rule 47 is not found in the amended rule; and, on an appeal from a decree overruling a demurrer, amended Rule 47 does not relieve the appellants from the requirements of Rule 12 with respect to the time of filing appellants' brief.
The decision of appeals on the merits is much to be desired. Where, however, as in this case, appellants have not complied with the mandatory requirements governing appeals, on motion to dismiss filed by appellees no course of decision is open *16 to this court other than to follow and enforce the pertinent rule.
The motion filed by appellees is granted and the appeal is dismissed.
Appeal dismissed.
LIVINGSTON, C. J., and SIMPSON and GOODWYN, JJ., concur.
On Rehearing
COLEMAN, Justice.
Appellants make known to us that their brief was mailed on the 28th day after the filing of the transcript in this case. With reference to a petition for certiorari, we have held that posting or mailing is not the equivalent of filing. The reasons given for that holding with respect to filing a petition for certiorari apply with equal force to filing a brief.
In a recent case we have said:
"As stated in In re State ex rel. Attorney General, 185 Ala. 347, 349, 64 So. 310, 311, `Manifestly the posting of [a petition], properly addressed, is not a compliance with the rule. It must be filed within the period stipulated. The mail must and could only be the agent or agency of the party applying [for the certiorari]. If there be delay in the transmission of the application by the mail, however free from fault or negligence the applicant may have been, it cannot be said that he had complied with this * * * rule. In mailing or otherwise transmitting the application, the chance of miscarriage or delay is a contingency, the happening of which the applicant must assume. * * * [It] cannot be affirmed that seasonable, proper posting answers the prescription of the rule.'" Morrow v. State, Ala., 97 So. 2d 547, 548.
Opinion extended. Application for rehearing overruled.
LIVINGSTON, C. J., and LAWSON, SIMPSON, GOODWYN and MERRILL, JJ., concur. | October 31, 1957 |
a512d20c-ca46-4a37-b9bb-c6e5ec1e16aa | Roberts v. Hutchins | 613 So. 2d 348 | 1911387 | Alabama | Alabama Supreme Court | 613 So. 2d 348 (1993)
Dr. Curtis ROBERTS and Dr. Roger D. Eiland
v.
Sharon HUTCHINS, as administratrix of the Estate of Freeman Hutchins, Jr., deceased.
1911387.
Supreme Court of Alabama.
January 29, 1993.
Michael K. Wright, Walter W. Bates and Sybil Vogtle Abbot of Starnes & Atchison, Birmingham, for appellants.
M. Clay Alspaugh and Shay Samples of Hogan, Smith, Alspaugh, Samples & Pratt, P.C., Birmingham, for appellee.
*349 STEAGALL, Justice.
Sharon Hutchins, as administratrix of the estate of Freeman Hutchins, Jr., deceased, sued Dr. Curtis Roberts; Dr. Roger Eiland; Surgery Practice, P.C.; and Central Alabama Community Hospital, alleging medical malpractice. The jury returned a verdict of $1 million against Dr. Roberts, Dr. Eiland, and Surgery Practice, and found for the hospital. The court entered a judgment based on that verdict. Dr. Roberts and Dr. Eiland appeal. The sole issue on review is whether the trial court improperly dismissed for cause seven potential jurors who were, or had been, patients of the defendant physicians and who described one or the other of them as their "family doctor."
The defendants argue that the trial court based its dismissal on an erroneous interpretation of Dixon v. Hardey, 591 So. 2d 3 (Ala.1991). In that case, the plaintiff sued her gynecologist, alleging medical malpractice. During the course of jury selection, the trial court refused to strike for cause a potential juror who was a patient of the defendant doctor. Although the potential juror expressed doubt as to whether she could serve without bias, the trial court did not question her to determine whether this bias existed, and it prevented the plaintiff's counsel from inquiring further into the subject. This Court recognized the "intimate or trusted relationship" that develops between a patient and her gynecologist and held that proof of such a relationship is prima facie evidence of probable prejudice on the part of a veniremember. Once this prima facie evidence has been presented, "`it is the trial court's function to question the juror further, so as to ascertain whether the juror can be impartial.'" Dixon, at 7, quoting Knop v. McCain, 561 So. 2d 229, 234 (Ala. 1989). Even if a juror eventually states that he or she could render a verdict exclusively upon the evidence, the simple affirmative response does not necessarily absolve that juror of probable prejudice. Dixon.
In this case, the record shows that at the outset of the jury selection process, a number of jurors indicated that they were, or had been, patients of the defendant physicians. The trial court asked the following questions:
The trial court repeated these questions in substance at intervals during the jury selection, and counsel for both parties also asked questions to determine if the veniremembers harbored any bias based on their relationship with the defendants. None of the veniremembers responded to these questions. The trial court gave the attorneys for both sides an opportunity to further question the jurors on the matter, but they declined to do so. The trial court then dismissed for cause seven of the jurors who had said they were patients of Dr. Eiland.
The defendants contend that the trial court improperly interpreted Dixon to mean that a potential juror in a medical malpractice case who is a patient of the defendant must automatically be struck from the venire, and they point out that Dixon expressly rejects such an absolute rule of exclusion. The record reveals, however, that the trial court merely accepted the jurors' relationship to the defendants as prima facie evidence of probable prejudice. This presumption was apparently rebutted as to the eight jurors who had been patients of the defendants but were allowed to remain on the venire. The trial court set out the following reasons for dismissing the other seven veniremembers:
We emphasize that a trial judge is given broad discretion in regard to sustaining or denying a challenge for cause, and his decision is therefore entitled to great weight and will not be interfered with unless it is clearly erroneous and equivalent to an abuse of discretion. Kumar v. Lewis, 561 So. 2d 1082 (Ala.1990). Here, it is clear that the trial court based its determination upon its own observations and impressions of the potential jurors, not upon an inaccurate application of our opinion in Dixon. The record indicates no abuse of the trial court's discretion; therefore, the judgment is affirmed.
AFFIRMED.
MADDOX, ALMON, ADAMS and INGRAM, JJ., concur. | January 29, 1993 |
314163ab-b9af-49e5-9e6a-421391ec2d5c | Bell v. Sugarwood Homes, Inc. | 619 So. 2d 1298 | 1911261 | Alabama | Alabama Supreme Court | 619 So. 2d 1298 (1993)
Willie BELL
v.
SUGARWOOD HOMES, INC., et al.
1911261.
Supreme Court of Alabama.
February 5, 1993.
Rehearing Denied April 9, 1993.
*1299 Samuel Maples, Birmingham, for appellant.
Thomas A. Woodall and Jeff W. Parmer of Woodall & Maddox, P.C., Birmingham, for appellees.
SHORES, Justice.
The plaintiff appeals from a judgment based on directed verdicts entered for two defendants in a case based on a personal *1300 injury sustained on a construction site. We affirm.
On September 23, 1988, Willie Bell sued Sugarwood Homes, Inc., Eddie Abbott, and various fictitiously named parties, to recover damages for personal injuries he sustained on September 14, 1987, while working for a brickmason subcontractor on the construction of a residence in Shelby County, Alabama. Bell alleged that the roofing subcontractor, Abbott, negligently dropped a piece of lumber onto Bell's head; that Sugarwood Homes was the building contractor for the construction, and, as such, had negligently failed to provide a reasonably safe workplace for Bell; and that Abbott and Sugarwood Homes had thereby caused his injuries.
On March 22, 1990, Bell amended the original complaint to substitute Lynda Bryant for fictitiously named parties B and F. Party B had been designated as "that person, firm or corporation who had the right to control the activities and conduct of the individual who negligently dropped the piece of lumber, which struck [Bell]," while party F had been designated as "that person, firm or corporation who negligently supervised, hired or controlled the performance of work by Eddie Abbott." On April 24, 1990, Bryant answered Bell's complaint, asserting the defense of the statute of limitations and denying that she had been properly substituted for a fictitiously named party.
The case was tried before a jury February 3, 1992. At the conclusion of Bell's evidence, Abbott, Sugarwood Homes, and Bryant each moved for a directed verdict. The trial court directed a verdict in favor of Sugarwood Homes and Bryant, but overruled Abbott's motion.[1] The trial of Bell's claims against Abbott concluded on February 6, 1992, when the trial court entered a judgment on the jury's verdict for Bell against Abbott in the amount of $107,174.20 plus costs.
On February 25, 1992, Bell moved for a new trial, or in the alternative, to alter, amend, or vacate the judgment that the trial court had entered in favor of Bryant and Sugarwood Homes based on the directed verdicts for those defendants. The court overruled Bell's motion, and Bell appealed the judgment for Sugarwood Homes and Bryant.
Under the "substantial evidence rule" (§ 12-21-12, Ala.Code 1975) a directed verdict is proper when the plaintiff has failed to present substantial evidence as to one or more of the elements of the plaintiff's cause of action. Danford v. Arnold, 582 So. 2d 545 (Ala.1991); Chamlee v. Johnson-Rast & Hays, 579 So. 2d 580 (Ala.1990); Koch v. State Farm Fire & Cas. Co., 565 So. 2d 226 (Ala.1990). "[S]ubstantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870 (Ala. 1989).
In reviewing a trial court's ruling on a motion for a directed verdict, the appellate court must determine whether the party having the burden of proof has produced substantial evidence creating a question requiring resolution by the jury. Anderton v. Gentry, 577 So. 2d 1261 (Ala. 1991). A party moving for a directed verdict is required to show that the party having the burden of proof has presented no question of material fact for a jury to resolve.
The evidence reflects that on the morning of September 14, 1987, Bell was struck in the head by a piece of lumber (referred to in the record as a "toeboard") while he was working as a brickmason's helper on a residential construction job. The piece of lumber had been thrown from the roof by Abbott, who was working as the roofing subcontractor on the house.
The residence on which Bell was working was being built as the personal residence of Lynda Bryant, and she was serving as *1301 the general contractor on the project. Although Bryant was the president and a 50% shareholder of Sugarwood Homes, Inc., a residential construction company, the lot was deeded to her personally and she personally acquired the building permit. There was no agreement between Bryant and Sugarwood Homes concerning the construction of the home. Upon completion of the residence in December 1987, Bryant moved into the house, and she was still living there at the time of trial.
Abbott was roofing Bryant's house pursuant to an oral agreement with Bryant. The evidence reflects that Abbott was an independent subcontractor, employing one or two helpers to assist him, paying those helpers and directing the way they did their work. Bryant did not supply Abbott or his crew with any tools, supplies, or materials necessary for them to roof her house.
It is fundamental that generally neither a premises owner nor a general contractor is responsible for the negligent acts of an independent contractor. Boroughs v. Joiner, 337 So. 2d 340 (Ala.1976). By an exception to the general rule, under the principles of respondeat superior, an independent contractor's negligence may be imputed to a premises owner or to a general contractor if the owner or general contractor reserved a right to control the work of the independent contractor. Pate v. United States Steel Corp., 393 So. 2d 992, 994 (Ala.1981). The record does not indicate that Bryant or Sugarwood Homes reserved the right to control Abbott's work or activities in roofing Bryant's home.
Bell argues that the directed verdicts in favor of Bryant and Sugarwood Homes were improper because, he contends, Abbott's throwing toeboards from the rear of the house was a "hidden defect" that existed on Bryant's premises on the day in question and, therefore, he says, Sugarwood Homes and Bryant are liable for his injuries. However, as the evidence indicates, it was not a defect in the premises that caused Bell to be injured, but rather a negligent act by the roofing subcontractor.
Although the trial court did not specify the grounds upon which it based the directed verdicts, the record indicates that Bryant was entitled to a directed verdict because she was not properly made a party to Bell's action. Payne v. Alabama Cemetery Ass'n, Inc., 413 So. 2d 1067 (Ala. 1982). Bell attempted to substitute Lynda Bryant as a defendant more than 17 months after he had filed his original complaint and more than 30 months after he had sustained the personal injuries that were the basis of his complaint. Section 6-2-38, Ala.Code 1975, provides that personal injury actions based on negligence must be brought within two years. The accident in which Bell was injured occurred on September 14, 1987, but Bryant was not added as a defendant until March 22, 1990. The plaintiff's claim is time-barred if he did not properly follow Rule 9(h) in substituting Bryant for the fictitiously named defendant; if he did properly follow Rule 9(h), then, pursuant to Rule 15(c), the substitution relates back to the filing of the original complaint.
In order to invoke the relation-back principle and proceed under Rule 9(h), the plaintiff has the burden of satisfying two conditions:
Columbia Engineering International, Ltd. v. Espey, 429 So. 2d 955, 958-59 (Ala. 1983).
The record reflects that on the date of the accident Bell was placed on notice of Bryant's identity. It is undisputed that Bryant was present at the construction site on the day of the accident and that she took Bell to a doctor after the accident occurred. After the visit to the doctor, she took Bell home and gave him a business card with her name and telephone number on it. Bell's employer testified that, after the accident, Bell asked him for the name *1302 of the owner of the property and that he gave him Bryant's name.
The facts of this case are analogous to the facts presented in Kinard v. C.A. Kelly & Co., 468 So. 2d 133, 135 (Ala.1985). In Kinard, a tenant injured in the parking lot of an apartment building sued the lessor and various fictitiously named parties. The trial court entered a summary judgment in favor of the defendants whom the plaintiff had later sought to substitute for the fictitiously named parties, and the tenant appealed. In affirming the judgment, we noted that the reason for having the "fictitious parties" rule is to ensure that "[t]he diligent plaintiff who is truly ignorant of the defendant's identity at the time of filing the original complaint is not penalized." Id. at 135. We further noted:
Id. The Kinard Court concluded that, although the plaintiff had filed her complaint within the statutory period of limitations, she had not acted reasonably with regard to discovering the true names of the parties named fictitiously in the original complaint, and the Court concluded, therefore, that the trial court had properly entered the summary judgment in favor of the substituted parties.
For these reasons, the judgment of the trial court is due to be affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, ALMON, ADAMS, HOUSTON, STEAGALL and INGRAM, JJ., concur.
[1] The directed verdict for Sugarwood Homes was based upon testimony that Bryant herself was acting as contractor, not Sugarwood Homes. There was no evidence that Bell had an agreement with Sugarwood Homes. | February 5, 1993 |
296f96da-1fd3-49da-9412-1091a16ba4e9 | Simpson v. Life Ins. Co. of Georgia, Inc. | 614 So. 2d 994 | 1911235 | Alabama | Alabama Supreme Court | 614 So. 2d 994 (1993)
Gregory L. SIMPSON
v.
LIFE INSURANCE COMPANY OF GEORGIA, INC., and David L. Tomlin.
1911235.
Supreme Court of Alabama.
January 8, 1993.
As Modified on Denial of Rehearing March 19, 1993.
*995 Leonard A. Mancini, Huntsville, for appellant.
Ruth Ann Martin and Danny D. Henderson, Huntsville, for appellees.
STEAGALL, Justice.
Gregory L. Simpson was arrested and charged with stealing funds from his employer, Life Insurance Company of Georgia (hereinafter "Life of Georgia"). He was convicted, but the trial court granted his motion for a new trial; the State then declined to further prosecute the charge. Simpson sued Life of Georgia and David Tomlin, a Life of Georgia sales manager, alleging malicious prosecution and abuse of process. The trial court entered a summary judgment for the defendants, and Simpson appeals.
To sustain a claim of malicious prosecution, Simpson was required to prove that Life of Georgia filed charges against him without probable cause and with malice, and that the resulting trial ended in his favor but nevertheless caused him damage. Hornbuckle v. Berry, 575 So. 2d 1103 (Ala. 1991). The sole issue on appeal is whether the warrant for Simpson's arrest was based on probable cause.[1]
The record reveals these facts: Simpson was employed by Life of Georgia as an insurance agent in the company's office in Huntsville, Alabama. Tomlin was Simpson's sales manager and direct supervisor. To monitor its agents' job performance, Life of Georgia generates several reports tracking their sales and collection records. The reports score the number of premiums that are not current in an agent's account and, when the score reaches 150, Life of Georgia may begin to monitor *996 an agent's activity. In June 1990, Simpson's score exceeded 150 and Tomlin informed him that the company would audit his accounts. Simpson resigned within two days. The subsequent Life of Georgia audit revealed a shortage of $3109.38 in Simpson's accounts, based upon the company's regular tracking reports.
At Life of Georgia's request, Tomlin filed an incident report with the Huntsville Police Department, alleging that Simpson had "manipulated the money and financial figures" of various Life of Georgia accounts during his employment with the company. Tomlin submitted two affidavits of company officials attesting to the results of the Life of Georgia audit, and he signed a warrant for Simpson's arrest. Based on this audit, Simpson was indicted by the Madison County Grand Jury for first-degree theft.
A jury ultimately found Simpson guilty. He moved for a new trial, arguing that the Life of Georgia audit had been admitted in violation of the best evidence rule. Simpson argued that a document based on voluminous records can be admitted into evidence only if the underlying records are made available to the opposing party. Because all of the records underlying the Life of Georgia audit were not made available to Simpson, the trial court concluded that the audit had been improperly admitted into evidence, and it ordered a new trial. Later, upon the State's request, the court nol-prossed the charge.
Simpson argues that the audit did not constitute probable cause for his arrest because its contents had not been independently verified by the investigating police officer before the warrant was issued. At trial, however, the investigating officer testified that he and his staff were not qualified to conduct a separate investigation of the facts underlying the audit, because it was based upon lengthy, complex business documents. He further testified that, in cases alleging business fraud, he usually relied upon the information provided by the complaining party and merely acted as a "go-between" to get the information to the warrant magistrate.
Simpson also argues that Life of Georgia lacked probable cause because the police report showed that Tomlin merely accused him of "manipulating" the missing funds, not stealing them. At trial, several former agents for Life of Georgia testified that the term "manipulation of funds" describes a common practice whereby company agents collect premiums from one client and pay them into the company but actually credit the premiums to the account of another client whose policy is about to lapse for nonpayment. Tomlin testified, however, that neither he nor his supervisors had knowledge of the practice of "manipulation." Moreover, the Life of Georgia audit indicated that the funds were missing, not that they had been transferred to other accounts or otherwise "manipulated."
"Probable cause" is defined as "a reasonable ground for suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guilty of the offense charged." Lynch v. Greentree Acceptance, Inc., 575 So. 2d 1068 (Ala. 1991). When a prosecution ends in a criminal conviction, the conviction is prima facie evidence of probable cause for instituting the prosecution, even if the conviction is later vacated and the accused discharged. Brown v. Parnell, 386 So. 2d 1137 (Ala. 1980). This prima facie evidence may be rebutted only by competent evidence that clearly overcomes the presumption of probable cause created by the conviction. Brown. Likewise, the return of an indictment is prima facie evidence of probable cause, and that evidence may be overcome only by a showing that the indictment was produced by the misconduct of the party seeking the indictment. Smith v. Wendy's of the South, Inc., 503 So. 2d 843 (Ala. 1987).
Here, the presumption of probable cause is not clearly overcome by the evidence. Although Simpson presented evidence to the jury to show that he "manipulated" the missing funds rather than "stole" them, he nevertheless had been indicted and convicted. Simpson resigned when he learned that Life of Georgia would *997 audit his accounts, and the subsequent audit indicated that Simpson had misappropriated money from the company. The audit was based upon a fairly complex tracking system initiated by the company, and it did not reflect a "manipulation" of the missing funds. We therefore hold that these undisputed facts constituted probable cause for Life of Georgia to suspect Simpson of theft and, therefore, to commence the criminal proceeding.
A summary judgment is proper and must be affirmed on appeal if there is no genuine issue of material fact and the movant is entitled to a judgment as a matter of law. Rule 56, Ala.R.Civ.P.; Lee v. City of Gadsden, 592 So. 2d 1036 (Ala.1992). The defendants made a prima facie showing that they were entitled to the summary judgment, and the plaintiff did not rebut that showing. The summary judgment is affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, ALMON, SHORES, ADAMS, HOUSTON, KENNEDY and INGRAM, JJ., concur.
[1] This Court recently determined that probable cause is not an element to be proven in an abuse of process action. See Drill Parts & Service Co. v. Joy Mfg. Co., [Ms. 1911102, January 8, 1993], 1993 WL 1936 (Ala.1993). We therefore consider the issue of probable cause only as it relates to Simpson's malicious prosecution claim. Our review of the record reveals a lack of substantial evidence to rebut Life of Georgia's prima facie showing that it was not guilty of abuse of process. Therefore, the summary judgment was proper on this claim. | March 19, 1993 |
27e02104-7784-4310-ab54-9574fdcdc2d5 | Morrison v. State | 100 So. 2d 744 | N/A | Alabama | Alabama Supreme Court | 100 So. 2d 744 (1957)
Arthur MORRISON
v.
STATE of Alabama.
8 Div. 912.
Supreme Court of Alabama.
August 22, 1957.
John Patterson, Atty. Gen., and Paul T. Gish, Jr., Asst. Atty. Gen., for petitioner.
J. A. Lee and John B. Tally Scottsboro, opposed.
*745 MERRILL, Justice.
We granted the writ of certiorari to the Court of Appeals because that Court stated that it was bound to follow the holdings in State v. Autery, 1 Stew. 399, and Caldwell v. State, 160 Ala. 96, 49 So. 679, that in criminal proceedings charging assault and battery, the defendant may prove the pendency of a civil action against him for the same assault in mitigation of a possible fine, although it doubted the soundness of these holdings.
We do not agree with the reasoning in those cases as to the admissibility of the pendency of a civil action. That would permit the mitigation of the punishment for a criminal offense upon the amount of the suit, irrespective of the actual merits of the alleged offense.
We have found no case in this State where a judgment rendered in a civil case, as in the instant case, was held to be admissible for the defendant in possible mitigation of punishment. We do not think it advisable to so hold. There are statements in Helms v. State, 35 Ala.App. 187, 45 So. 2d 170, 171; certiorari denied 253 Ala. 467, 45 So. 2d 171, which express sounder views on the question generally. The court said:
As pointed out in the opinion of the Court of Appeals, evidence of a judgment in a criminal case in Alabama is correctly excluded from the jury's consideration in civil cases. It appears to us that the same rule should apply in both criminal and civil cases, and that the same rule should apply whether in an assault and battery case or a manslaughter case. Therefore, we hold that the trial court correctly sustained objections to the offer to show that a judgment for damages had been rendered against the defendant in a civil action involving the same matter. It follows that the contrary holdings in State v. Autery, 1 Stew. 399, Phillips v. Kelly, 29 Ala. 628, and Caldwell v. State, 160 Ala. 96, 49 So. 679, ought to be overruled, and any inferences from language used in Alabama Power Co. v. Goodwin, 210 Ala. 657, 99 So. 158, and McMickens v. State, 18 Ala.App. 36, 88 So. 342, tending to support the rule in the Autery case, ought to be disregarded.
In overruling the cited cases, supra, only a rule of evidence is concerned and not a rule of substantive law. No party to a cause has a vested interest in a rule of evidence.
We add this comment to clarify one point. W. D. Austin, the person to whom *746 the question about the judgment was addressed and who was the plaintiff in the civil action, was a witness for the State. It was when he was recalled for crossexamination that the question as to the admissibility of the judgment arose. It was proper to permit the defendant to show that Austin had instituted a civil action against the defendant to show his interest, he being a party to that suit. Cabel v. State, 18 Ala.App. 557, 93 So. 260. The record discloses that the trial court correctly overruled the State's objection as to whether the witness had filed a civil suit against the defendant.
The judgment of the Court of Appeals is reversed and the cause remanded.
Reversed and remanded.
LAWSON, SIMPSON and GOODWYN, JJ., concur.
LIVINGSTON, C. J., and COLEMAN, J., dissent. They would affirm the judgment of the Court of Appeals. | August 22, 1957 |
150a58be-8904-4b23-bb8d-8e76ec9fa273 | Thompson v. State | 99 So. 2d 198 | N/A | Alabama | Alabama Supreme Court | 99 So. 2d 198 (1957)
A. J. (Bud) THOMPSON et al.
v.
STATE of Alabama.
7 Div. 370.
Supreme Court of Alabama.
October 24, 1957.
Rehearing Denied December 19, 1957.
*199 Starnes & Holladay, Pell City, and Roberts & Orme, Gadsden, for appellants.
John Patterson, Atty. Gen., and Wm. C. Younger, Asst. Atty. Gen., for appellee.
MERRILL, Justice.
On December 17, 1953, the State of Alabama, on relation of L. P. Waid, Jr., as Circuit Solicitor of the Thirtieth Judicial Circuit, filed a bill of complaint against appellants charging that the establishment known as The Ark or The Ark Annex, located at Riverside on U. S. Highway No. 78 in St. Clair County, under the management and control of appellants, was a liquor nuisance as defined in Tit. 29, § 97, Code 1940.
Appellee prayed for, and was granted, a temporary order restraining appellants from operating the establishment as a liquor nuisance.
Demurrers were filed by all the appellants and were overruled on January 25, 1954. This ruling was affirmed by this court in 1955 in Thompson v. State ex rel. Waid, 263 Ala. 463, 83 So. 2d 70.
On June 11, 1956, appellee filed a petition alleging that appellants had violated the temporary injunction. After answer was filed, a hearing was held before the court on June 29, 1956. A decree was entered on March 1, 1957, holding the appellants *200 in contempt of court for violating the preliminary writ of injunction issued on December 17, 1953, finding as a matter of fact that the use of the premises constituted a liquor nuisance as defined by the statute, making permanent the temporary injunction, and perpetually enjoining appellants from operating the business and ordering the premises padlocked, subject to certain conditions not necessary to enumerate here. Appellants filed a motion for rehearing which was denied on March 29, 1957, and an appeal was taken to this court on April 1, 1957.
This court takes judicial knowledge that St. Clair County is a "dry county." Cooley v. State, 262 Ala. 136, 77 So. 2d 488.
The assignments of error presented in brief are argued in three groups.
Assignments of error 1, 2, 3 and 5 are argued together. The first three read:
"1. That said verdict and judgment is contrary to the law.
"2. For that said verdict and judgment is contrary to the evidence.
We have held repeatedly that such assignments of error are not adequate. They allege no error on the part of the trial court. Only adverse rulings of the trial court are subject to an assignment of error and reviewable on appeal. Mulkin v. McDonough Construction Co. of Georgia, Ala., 95 So. 2d 921; King v. Jackson, 264 Ala. 339, 87 So. 2d 623.
When unrelated assignments of error are argued together and one is without merit, the others will not be considered. Stewart v. Weaver, 264 Ala. 286, 87 So. 2d 548; Gulf, M. & O. R. Co. v. Sims, 260 Ala. 258, 69 So. 2d 449; 2A Ala.Dig., Appeal & Error. However, we feel justified in saying that we have examined the evidence and it is ample to support the decree. At least nine persons testified that they had purchased whiskey or beer on the premises in question over a long period of time, both before and after the issuance of the temporary injunction.
The assignment of error alleging that the court erred in overruling the demurrer to the bill of complaint is answered in our decision in Thompson v. State ex rel. Waid, 263 Ala. 463, 83 So. 2d 70, when this cause was before us on that question. We adhere to the opinion in that case.
Assignments of error 6, 7, 8, 9 and 10 are argued in bulk. Number 6 reads:
This is not adequate as an assignment of error. It does not state concisely in what the error consists, and is entirely too general. Taylor v. Taylor, 251 Ala. 374, 37 So. 2d 645; Jackson Lumber Co. v. Butler, 244 Ala. 348, 13 So. 2d 294; Hall v. Pearce, 209 Ala. 397, 96 So. 608, Supreme Court Rule 1.
Assignment of error 7 charges error in admitting into evidence a letter from Homer Snead of the Internal Revenue Department, and assignment 9 the admission of a letter from George Patterson, Director of Internal Revenue. These letters are not in the record and they have not been separately certified to this court under Supreme Court Rule 41, Code 1940, Tit. 7, Appendix. We cannot say the trial court erred in admitting them. Butler v. Hughes, 264 Ala. 532, 88 So. 2d 195; Starkey v. Bryant, 257 Ala. 557, 59 So. 2d 796.
Assignment of error 8 charges error in admitting a subpoena duces tecum to George Patterson. This exhibit also is not in the record and presents no reviewable question.
Assignment of error 10, having been argued in bulk with the four others *201 which were without merit, need not be considered. Authorities supra. It may not be amiss to state that the admission of evidence, the basis of assignment 10, that the witness had inspected the records of the Internal Revenue Department and those records showed the issuance of a Federal retail liquor license to A. J. Thompson, proprietor of The Ark, for part of the period in question, and one to Mrs. A. J. Thompson, proprietor of The Ark, for the remainder of the period covered by this suit, was correct. A predicate was adequately laid to show that the best evidence was not available and was without the jurisdiction of the court, and when so, secondary evidence of the contents of the documents or records is admissible. Memphis & Charleston R. Co. v. Hembree, 84 Ala. 182, 4 So. 392; Hall v. State, 21 Ala.App. 476, 109 So. 847, certiorari denied 215 Ala. 148, 109 So. 849; State v. Nippert, 74 Kan. 371, 86 P. 478; State v. Schaeffer, 74 Kan. 390, 86 P. 477.
The evidence was ore tenus, and when such is the case, the conclusion of the trial court is like unto the verdict of a jury and will not be disturbed by this court unless contrary to the great weight of the evidence, and this rule applies to cases where alleged liquor nuisances are sought to be abated. Harvell v. State ex rel. Sanford, 235 Ala. 329, 179 So. 233. The decree of the lower court is affirmed.
Affirmed.
LIVINGSTON, C. J., and LAWSON and COLEMAN, JJ., concur.
On Rehearing
MERRILL, Justice.
On application for rehearing, appellants earnestly insist that the trial court was without authority to assess the fine which was imposed against them.
This argument, which is made for the first time on application for rehearing, cannot now be considered because it was not made or suggested until our judgment was rendered. Rudolph v. Rudolph, 251 Ala. 317, 36 So. 2d 902; Goodgame v. Dawson, 242 Ala. 499, 7 So. 2d 77.
Application overruled.
LIVINGSTON, C. J., and LAWSON and COLEMAN, JJ., concur. | October 24, 1957 |
dba31614-961f-4270-b8a0-9151c97267a2 | State Farm Fire and Cas. Co. v. Davis | 612 So. 2d 458 | 1910714 | Alabama | Alabama Supreme Court | 612 So. 2d 458 (1993)
STATE FARM FIRE AND CASUALTY COMPANY
v.
Jerry H. DAVIS and Delores Davis.
1910714.
Supreme Court of Alabama.
January 15, 1993.
*459 Jeffrey W. Smith and Christopher J. Hughes of Beers, Anderson, Jackson & Smith, Montgomery, for appellant.
Walter Gregory Ward, Lanett, for appellees.
MADDOX, Justice.
United States District Judge Truman Hobbs has certified to this Court several questions pursuant to Rule 18, Ala.R.App.P. Those questions call for us to consider whether State Farm Fire and Casualty Company, under the terms of a homeowner's policy, was under a duty to defend its insureds in a civil action against its insureds alleging sexual abuse and molestation of minor children.
On September 21, 1990, four mothers, suing on behalf of their minor daughters, sued Jerry and Delores Davis in the Circuit Court for Chambers County, Alabama, alleging personal injury as the result of sexual abuse and molestation by Jerry Davis. The plaintiffs claimed on behalf of their respective children that the abuse took place in the Davises' home with the knowledge of Delores Davis. As a result of this alleged abuse, Jerry Davis pleaded guilty in state court to one count of sexual abuse in the second degree, in violation of § 13A-6-67, Ala.Code 1975.
On March 28, 1991, State Farm Fire and Casualty Company sued in the United States District Court for the Middle District of Alabama for a judgment declaring that, under its homeowner's policy issued to the Davises, it had no duty to indemnify or defend the Davises in the civil action brought by the mothers in Chambers County for damages based on personal injury resulting from the alleged sexual abuse and molestation of the children. The Davises answered State Farm's complaint, and the mothers (the plaintiffs in the underlying action) were allowed to intervene on May 6, 1991.
On February 11, 1992, Judge Hobbs requested this Court to consider questions of state law involved in the declaratory judgment action filed in the federal court. This Court consented to consider them. He certified the following questions:
Because our answer to question C disposes of the issues presented in the declaratory judgment action, we need not address the remaining questions.
The State Farm policy, which the parties stipulate was in full force and effect at all pertinent times, contains the following exclusions:
"1. Coverage L (Personal Liability) and Coverage M (Medical Payments to Others) do not apply to:
"a. bodily injury or property damage
(Emphasis added.)
This Court has never answered the question presented in a case in which sexual abuse or molestation was the cause of the alleged injury, but has considered the issue in other factual contexts, and has established rules of law to apply. In Alabama Farm Bureau Mut. Cas. Ins. Co. v. Dyer, 454 So. 2d 921 (Ala. 1984), for example, this Court, in interpreting an analogous provision of an insurance contract, held that a purely subjective standard governed the determination of whether an insured either "expected or intended" to inflict bodily injury upon another. In Dyer, the insured shot and killed his brother after an argument over a water ski. The insured then committed suicide. The trial court found that the shooting of the brother was neither expected nor intended from the standpoint of the insured and entered a judgment accordingly. Farm Bureau appealed, but this Court affirmed. This Court reviewed its prior rulings wherein it had previously held that an intentional act could have an unexpected or unintended result and that insurance coverage can be extended in such a case.[1] In defining the purely subjective standard, the Court stated:
454 So. 2d at 925. In Dyer, the Court distinguished the subjective intent rationale from objective methodology by explaining as follows:
Id. Although the subjective intent test enunciated in Dyer has been used in Alabama in several similar contexts,[2] our courts have never addressed a case where *461 an insured seeks indemnification for damages assessed because of the insured's sexual abuse of children.
In Alabama, because of this subjective intent test, whether an injury the insured inflicts upon another person is "expected or intended" from the standpoint of the insured is generally a question of fact for the jury or judge. White v. Maryland Cas. Co., 589 So. 2d 1294 (Ala.1991); Dyer; Boyd v. Great Central Ins. Co., 401 So. 2d 19 (Ala.1981).
Our courts have never directly addressed the situation where an insured seeks indemnification for damages assessed because of sexual abuse or molestation of children, but two United States District Courts in Alabama have addressed the issue and have reached opposite results. In State Auto Mut. Ins. Co. v. McIntyre, 652 F. Supp. 1177 (N.D.Ala.1987), a federal district court concluded that Dyer mandated that a subjective intent standard govern all manner of cases in which an exclusion for intentional acts existed. In McIntyre, a grandfather, the insured, sued for a judgment declaring that he had coverage under his homeowner's policy for damages that might be assessed against him in a personal injury action arising out of a claim that he had sexually abused his granddaughter. The insured pleaded guilty to sexual abuse in the first degree and was sentenced to serve six years in the state penitentiary. In applying the Dyer subjective intent test to that case, the court held:
McIntyre, 652 F. Supp. at 1193-92.
The McIntyre court's reliance on Dyer and its progeny in the context of the sexual abuse of children is misplaced. The decision in McIntyre has been criticized and its validity questioned by those courts that have discussed it. In Horace Mann Ins. Co. v. Fore, 785 F. Supp. 947 (M.D.Ala. 1992), where the insurer sought a declaration that, because of exceptions in its homeowner's policy, it owed no duty to defend or indemnify its insured, a school teacher, in a civil action based on alleged sexual abuse of three minor students, Judge Carroll stated that "no amount of qualification could persuade this court that [McIntyre] is correct." 785 F. Supp. at 949-50. The Fore court, in rejecting the McIntyre interpretation of Alabama law in this context, distinguished cases such as Dyer from cases of sexual abuse as follows:
Fore, 785 F. Supp. at 951-52. We agree with the reasoning of the Fore court.
Allstate Ins. Co. v. Roelfs, 698 F. Supp. 815 (D.Alaska 1987), dealt with a declaratory judgment action brought by the insurer where its insured's son had sexually molested two minor females. The court noted that provisions excluding coverage for bodily injury "expected or intended" by an insured have generally been construed to preclude coverage only when the actual injury or harm was intended, and not just when the act causing the injury was intended. 698 F. Supp. at 819. The court also noted that "courts have developed three different approaches for determining whether the insured intended to cause injury and thus whether the exclusion applies to a particular case. See generally, [James L. Rigelhaupt] Annotation, [`Construction and Application of Liability Insurance Policy Expressly Excluding Injuries Intended or Expected by Insured'] 31 A.L.R.4th 957 [1991]." 698 F. Supp. at 815. The court in Roelfs discussed these three approaches as follows:
698 F. Supp. at 819-20. The Roelfs court followed the third approach referred to, holding that the intent to cause injury should be inferred as a matter of law from the act of sexual assault. 698 F. Supp. at 820. "This conclusion comports with the purposes of the intentional acts exclusion clause, which is to `prevent extending to the insured a license to commit wanton and malicious acts.' Farmers Ins. Exchange v. Sipple, 255 N.W.2d 373, 375 (Minn.1977)." 698 F. Supp. at 820-21.
It is this third approach, clearly the majority rule in cases of sexual abuse of children, that McIntyre rejected in favor of the subjective intent test. As noted in Roelfs, 698 F. Supp. at 820 n. 5, the Dyer case, upon which the McIntyre court based its decision, was based on the reasoning employed in Continental Western Ins. Co. v. Toal, 309 Minn. 169, 244 N.W.2d 121 (1976). The Toal court, while adopting the subjective approach, also specifically stated the following:
309 Minn. at 177, 244 N.W.2d at 125. (Emphasis added.)[3]
The Minnesota court in Toal reasoned that, while the subjective standard is to be followed generally, there are occasions when an insured's intention to inflict injury can be inferred from the nature of the insured's conduct itself. After Toal was decided, the courts of Minnesota found such an inference in cases of sexual abuse. See Horace Mann Ins. Co. v. Independent School District No. 656, 355 N.W.2d 413 (Minn.1984); Estate of Lehmann v. Metzger, 355 N.W.2d 425 (Minn.1984); Fireman's Fund Ins. Co. v. Hill, 314 N.W.2d 834 (Minn. 1982).
The rule applied by an overwhelming majority of courts is that, in cases involving sexual abuse of children, intent to injure is inferred as a matter of law "regardless of claimed intent." Whitt v. DeLeu, 707 F. Supp. 1011, 1016 (W.D.Wis.1989). In Whitt, the court was faced with an insured who had intentionally had unpermitted and offensive sexual contact with minors. The insured asserted that he did not intend or expect to cause physical or psychological injury or harm to the minors. The court noted that some 14 states had, at that time, considered the issue and had adopted the majority rule inferring the intent to cause injury as a matter of law in liability insurance cases involving sexual misconduct against minors.[4] 707 F. Supp. at 1014.
*464 The Whitt court named Alabama, California, Colorado, Florida, and New Hampshire as states with courts that had followed the minority subjective-intent approach in child sex abuse cases. While this Court has not before today issued a decision regarding sexual misconduct involving minors, the supreme courts of the other four states that previously followed the minority approach have all now adopted the majority approach.[5]
Alabama now joins the growing number of states that have adopted the inferred-intent rule in child sex abuse cases. As Judge Carroll observed in Fore, "the inferred-intent rule has been adopted in other states that apply the subjective-intent standard to other categories of insurance liability cases." 785 F. Supp. at 955. Our holding today does not alter the holding of Dyer and its progeny, but only creates one narrow exception in cases of sexual abuse of children. As further stated in Fore:
785 F. Supp. at 955-56.
The basis for our holding is illustrated by the words of a Florida justice:
Zordan v. Page, 500 So. 2d 608, 613 (Fla.Dist.Ct.App.1986), review denied, 508 So. 2d 15 (Fla. 1987) (Frank, J., dissenting).
There is another reason why the judgment of the trial court is due to be affirmed. The discussion above is based on the policy exclusion precluding coverage for bodily injury "which is either expected or intended by an insured," but we also hold, based on the facts and circumstances presented here, that coverage would likewise be precluded under the objective standard of the second policy exclusion, which denies coverage for bodily injury or property damage "to any person or property which is the result of willful and malicious acts of an insured."
The Davises argue that such a holding of no coverage may militate against the compensation of the actual victims of such assaults. While the primary rationale for the minority view of McIntyre was compensating the victims of such abuse, we recognize that a vast majority of courts has correctly "determined that this benefit is outweighed by the effect of allowing sexual offenders to escape having to compensate minors for the harm that the courts have established is inherent in such offenses." Whitt, 707 F. Supp. at 1016. Additional support for our holding derives from "the desire to place moral liability with the same precision with which we would place economic liability." Fore, 785 F. Supp. at 955. As the Whitt court further stated:
707 F. Supp. at 1016.
Our holding also mandates that in cases of this kind the insurer has no duty to indemnify the insured and no duty to defend the insured. Although the law in Alabama holds that an insurer's duty to defend can be broader than its duty to pay, we find the two duties inseparable in this type of case. In Western National Assurance Co. v. Hecker, 43 Wash. App. 816, 719 P.2d 954, 958 (1986), the court held that the duty to defend, rather than being a separate issue whose resolution depends upon a determination of the potential for coverage under the policy, depends instead upon the determination of the duty to pay, that is, whether there is in fact coverage under the policy. The court in Horace Mann Ins. Co. v. Leeber, 180 W.Va. 375, 376 S.E.2d 581, 584 (1988), noted that "[t]he majority of jurisdictions deciding these questions hold that there is neither a duty to defend nor [a *466 duty] to pay under such circumstances." The Leeber court further stated, "[U]nder the majority view, a liability insurer would have no duty to defend a civil action against the insured based upon alleged sexual misconduct, because, as seen, there is, under such view, definitely, as a matter of law, no duty to pay." 180 W.Va. at 379, 376 S.E.2d at 585.
We likewise reject any contentions by Delores Davis that she should be afforded coverage because she was not accused of any intentional act, but only a breach of a duty to report the egregious conduct of her husband. As this Court wrote in Kinnon v. Universal Underwriters Ins. Co, 418 So. 2d 887, 888 (Ala. 1982):
In Allstate Ins. Co. v. Foster, 693 F. Supp. 886 (D.Nev.1988), the plaintiffs in the underlying damages action alleged that the insured's wife was negligent since she knew of her husband's sexual assaults and molestations and failed to warn, disclose, or otherwise protect the child while she visited the insured's home. In interpreting a policy provision similar to the one in this case, i.e., one excluding coverage for "bodily injury ... which may reasonably be expected to result from the intentional or criminal acts of an insured person," the Foster court held that the policy excluded coverage to the wife for liability arising from harm directly attributable to the intentional or criminal act of her husband. 693 F. Supp. at 889. The court held that because the policy excluded coverage for "harm resulting from the intentional or criminal `acts of an insured person,' the insurance policy excludes coverage to any other insureds," including the wife, "for liability arising from the harm which is directly attributable to the intentional or criminal act." Id.
In Allstate Ins. Co. v. Freeman, 432 Mich. 656, 443 N.W.2d 734 (1989), the court, in interpreting a similar policy exclusion, stated:
432 Mich. at 699, 443 N.W.2d at 754. See also Vanguard Ins. Co. v. McKinney, 184 Mich.App. 799, 459 N.W.2d 316 (1990); and Travelers Ins. Co. v. Blanchard, 431 So. 2d 913 (La.App.1983).
In this case, the relevant provisions exclude coverage for bodily injury or property damage "which is either expected or intended by an insured; or to any person or property which is the result of willful and malicious acts of an insured." (Emphasis added.) We hold that this policy provision excludes coverage for Delores Davis for harm directly attributable to the intentional conduct of her husband, Jerry Davis.
QUESTIONS ANSWERED.
HORNSBY, C.J., and ALMON, SHORES, ADAMS, HOUSTON, STEAGALL, KENNEDY and INGRAM, JJ., concur.
[1] See Boyd v. Great Central Ins. Co., 401 So. 2d 19 (Ala.1981); Smith v. North River Ins. Co., 360 So. 2d 313 (Ala.1978); and Hartford Fire Ins. Co. v. Blakeney, 340 So. 2d 754 (Ala.1976).
[2] See, e.g., White v. Maryland Cas. Co., 589 So. 2d 1294 (Ala.1991) (insured filed declaratory judgment action against his homeowner's insurance carrier, seeking an order requiring that the company defend him and pay any judgment that might be rendered against him in a wrongful death action arising from an intentional shooting); United States Fidelity & Guar. Co. v. Armstrong, 479 So. 2d 1164 (Ala. 1985) (liability insurer sought declaratory judgment determining question of insurance coverage for a sewage overflow caused by insureds engaged in construction of sewage system where sewage line was intentionally crushed); Allstate Ins. Co. v. Portis, 472 So. 2d 997 (Ala. 1985) (homeowner's insurer filed declaratory judgment action to determine applicability of `intentional acts' exception after wrongful death action was filed by family of neighbor fatally shot by the insured); Allstate Ins. Co. v. Shirah, 466 So. 2d 940 (Ala. 1985) (automobile insurer asserted that insured intentionally caused injuries to police officer who was in pursuit of insured); Watson v. Alabama Farm Bureau Mut. Cas. Ins. Co., 465 So. 2d 394 (Ala. 1985) (insured filed a declaratory judgment action against the insurer, seeking to have insurer defend him in a pending assault and battery case arising from a shooting incident).
[3] While Dyer did not expressly adopt the above-quoted language from Toal, in White v. Maryland Cas. Co., 589 So. 2d 1294 (Ala.1991), another shooting case applying the subjective intent standard of Dyer, the Court added that "[o]n the issue of subjective intent, this Court has held that intent can be inferred from the surrounding circumstances." 589 So. 2d at 1297.
[4] The states cited by the Whitt court as having adopted the majority rule are Arkansas, California, Colorado, Florida, Georgia, Iowa, Maryland, Massachusetts, Michigan, Minnesota, New Hampshire, Oklahoma, Washington, and West Virginia. The cases, listed at note 4 of Whitt, 707 F. Supp. at 1014-15, include the following: CNA Ins. Co. v. McGinnis, 282 Ark. 90, 666 S.W.2d 689 (1984); American States Ins. Co. v. Borbor, 826 F.2d 888 (9th Cir.1987); State Farm Fire & Cas. Co. v. Huie, 666 F. Supp. 1402 (N.D.Cal.1987), aff'd sub nom. State Farm Fire & Cas. Co. v. Bomke, 849 F.2d 1218 (9th Cir.1988); Fire Ins. Exchange v. Abbott, 204 Cal. App. 3d 1012, 251 Cal. Rptr. 620 (1988); Allstate Ins. Co. v. Kim W., 160 Cal. App. 3d 326, 206 Cal. Rptr. 609 (1984); Troelstrup v. District Court, 712 P.2d 1010 (Colo.1986); McCullough v. Central Florida YMCA, 523 So. 2d 1208 (Fla.Dist.Ct.App.1988); Landis v. Allstate Ins. Co., 546 So. 2d 1051 (Fla. 1989); Roe v. State Farm Fire & Cas. Co., 188 Ga.App. 368, 373 S.E.2d 23 (1988), aff'd, 259 Ga. 42, 376 S.E.2d 876 (1989); Vermont Mutual Ins. Co. v. Malcolm, 128 N.H. 521, 517 A.2d 800 (1986); Altena v. United Fire & Cas. Co., 422 N.W.2d 485 (Iowa 1988); Harpy v. Nationwide Mut. Fire Ins. Co., 76 Md.App. 474, 545 A.2d 718 (1988); Terrio v. McDonough, 16 Mass.App. 163, 450 N.E.2d 190, review denied, 390 Mass. 1102, 453 N.E.2d 1231 (1983); Auto-Owners Ins. Co. v. Gardipey, 173 Mich.App. 711, 434 N.W.2d 220 (1988); Linebaugh v. Berdish, 144 Mich.App. 750, 376 N.W.2d 400 (1985); Horace Mann Ins. Co. v. Independent School District No. 656, 355 N.W.2d 413 (Minn.1984); Estate of Lehmann v. Metzger, 355 N.W.2d 425 (Minn. 1984); Fireman's Fund Ins. Co. v. Hill, 314 N.W.2d 834 (Minn. 1982); Illinois Farmers Ins. Co. v. Judith G., 379 N.W.2d 638 (Minn.Ct.App.1986), review denied (Minn. 1986); Mutual Service Casualty Ins. Co. v. Puhl, 354 N.W.2d 900 (Minn.App. 1984), review denied (Minn. Feb. 6, 1985); Allstate Ins. Co. v. Thomas, 684 F. Supp. 1056 (W.D.Okla.1988); Rodriguez v. Williams, 107 Wash. 2d 381, 729 P.2d 627 (1986); Public Employees Mut. Ins. Co. v. Rash, 48 Wash. App. 701, 740 P.2d 370 (1987); Grange Ins. Association v. Authier, 45 Wash. App. 383, 725 P.2d 642 (1986), review denied, 107 Wash. 2d 1024 (1987); St. Michelle v. Robinson, 52 Wash. App. 309, 759 P.2d 467 (1988); and Horace Mann Ins. Co. v. Leeber, 180 W.Va. 375, 376 S.E.2d 581 (1988).
Courts in Alaska, Arizona, Delaware, Kansas, Illinois, Indiana, Louisiana, Maine, Nebraska, Nevada, New Jersey, New York, Oregon, Pennsylvania, South Dakota, and Wisconsin have also adopted the majority rule inferring intent to injure in sexual assaults of minors. Additional cases from jurisdictions that have adopted the majority rule include; Allstate Ins. Co. v. Roelfs, 698 F. Supp. 815 (D.Alaska 1987); Twin City Fire Ins. Co. v. Doe, 163 Ariz. 388, 788 P.2d 121 (Ariz.App.1989); Allstate Ins. Co. v. Gilbert, 852 F.2d 449 (9th Cir.1988) (applying California law); J.C. Penney Cas. Ins. Co. v. M.K., 52 Cal. 3d 1009, 278 Cal. Rptr. 64, 804 P.2d 689, cert. denied, ___ U.S. ___, 112 S. Ct. 280, 116 L. Ed. 2d 232 (1991); Allstate Ins. Co. v. Troelstrup, 789 P.2d 415 (Colo. 1990); People v. Garciadealba, 736 P.2d 1240 (Colo.App.1986); Motley v. Maddox, No. C.A. 90C-JL-82, 1992 WL 52206 (Del.Super., Feb. 19, 1992); Troy v. Allstate Ins. Co., 789 F. Supp. 1134 (D.Kan. 1992); Allstate Ins. Co. v. Jarvis, 195 Ga.App. 335, 393 S.E.2d 489 (1990); Scudder v. Hanover Ins. Co., 201 Ill.App.3d 921, 147 Ill.Dec. 386, 559 N.E.2d 559 (1990); Wiseman v. Leming, 574 N.E.2d 327 (Ind.App.1991); Doe v. Smith, 573 So. 2d 238 (La.App.1990), cert. denied, 573 So. 2d 1139 (La. 1991); Perreault v. Maine Bonding & Cas. Co., 568 A.2d 1100 (Me.1990); Worcester Ins. Co. v. Fells Acres Day School, Inc., 408 Mass. 393, 558 N.E.2d 958 (1990); New Hampshire Ins. Group v. Strecker, 244 Mont. 478, 798 P.2d 130 (1990); State Farm Fire & Cas. Co. v. van Gorder, 235 Neb. 355, 455 N.W.2d 543 (1990); State Farm Fire & Cas. Co. v. Smith, 907 F.2d 900 (9th Cir.1990) (applying Nevada law); Allstate Ins. Co. v. Foster, 693 F. Supp. 886 (D.Nev.1988); Atlantic Employers v. Tots & Toddlers, 239 N.J.Super. 276, 571 A.2d 300 (A.D.), cert. denied, 122 N.J. 147, 584 A.2d 218 (1990); Allstate Ins. Co. v. Mugavero, 79 N.Y.2d 153, 581 N.Y.S.2d 142, 589 N.E.2d 365 (1992); Mutual of Enumclaw v. Merrill, 102 Or.App. 408, 794 P.2d 818, review denied, 310 Or. 475, 799 P.2d 646 (1990); Foremost Ins. Co. v. Weetman, 726 F. Supp. 618 (W.D.Pa. 1989); American Family Mut. Ins. Co. v. Purdy, 483 N.W.2d 197 (S.D.1992), cert. denied, ___ U.S. ___, 113 S. Ct. 202, 121 L. Ed. 2d 144 (1992); Dotts v. Taressa J.A., 182 W.Va. 586, 390 S.E.2d 568 (1990); N.N. v. Moraine Mut. Ins. Co., 153 Wis.2d 84, 450 N.W.2d 445 (1990); and K.A.G. v. Stanford, 148 Wis.2d 158, 434 N.W.2d 790 (1988), review denied, 439 N.W.2d 142 (Wis. 1989).
[5] See J.C. Penney Cas. Ins. Co. v. M.K., 52 Cal. 3d 1009, 278 Cal. Rptr. 64, 804 P.2d 689, cert. denied, ___ U.S. ___, 112 S. Ct. 280, 116 L. Ed. 2d 232 (1991); Allstate Ins. Co. v. Troelstrup, 789 P.2d 415 (Colo.1990); Landis v. Allstate Ins. Co., 546 So. 2d 1051 (Fla. 1989); Vermont Mut. Ins. Co. v. Malcolm, 128 N.H. 521, 517 A.2d 800 (1986). | January 15, 1993 |
d0564095-b305-44c6-a159-751a3919bdec | Jones v. Case | 97 So. 2d 816 | N/A | Alabama | Alabama Supreme Court | 97 So. 2d 816 (1957)
Henry JONES
v.
Louvenia Jones CASE.
6 Div. 993.
Supreme Court of Alabama.
October 31, 1957.
*817 Arthur D. Shores, Birmingham, for appellant.
Lowe & Williams, Birmingham, for appellee.
LIVINGSTON, Chief Justice.
The appellee, Louvenia Jones Case, filed her bill of complaint in the Circuit Court of Jefferson County, Alabama, in Equity, against Henry Jones, the appellant, seeking a decree vesting the title to certain real property, decribed in the bill of complaint, in the complainant. There was a further prayer that a conveyance of the property from Louvenia Jones Case to Henry Jones, dated July 21, 1952, be held to be without consideration, fraudulent, and of no effect.
The trial court found, in effect that Louvenia Jones Case was the lawful wife of Mansfield Jones at the time of his death in 1940, and that he died intestate, and that the title to the property in question vested in Louvenia Jones Case as against respondent Henry Jones. The court further decreed that the quitclaim deed executed July 21, 1952, from Louvenia Jones (Louvenia Jones Case) to Henry Jones be, and is, annulled, cancelled, and held for naught. Admittedly, at the time of his death, said Mansfield Jones was the owner of the property in question.
Only one question is here presented for review. That question is stated in appellant's brief as follows:
Briefly, the evidence presented in the case tends to show the following:
That the complainant and Mansfield Jones were married in 1906. In 1917, Henry Jones, then a young child, who was a cousin of Mansfield Jones, came to live with Louvenia and Mansfield. Henry Jones was never adopted. In 1922, Louvenia left Mansfield, and in 1924, she moved to Cleveland, Ohio. Louvenia testified that she never obtained a divorce from Mansfield, and there was no positive evidence produced to the contrary. Louvenia further testified that in 1925 she "married" Isiac Hamlett in Cleveland, Ohio, but that this marriage terminated in a divorce in 1945. In 1946, Louvenia married her present husband, one Case.
In 1928, Mansfield Jones acquired the title to the property involved, and in 1934, he mortgaged said property to the Home Owners Loan Corporation for $1,840. The mortgage instrument recited that "Mansfield Jones and wife Louvenia Jones" were mortgagors, and both joined in the execution of said mortgage. There is testimony to the effect that Louvenia visited Birmingham at about 2-year intervals from the time of her separation from Mansfield until his death. Louvenia further testified that after Mansfield's death there was an arrangement made between her and Henry for him to remain in possession of the property as a tenant, his rental payments being the taxes, insurance, mortgage installments, and upkeep of the dwelling. This arrangement was denied by Henry Jones but the court below found such arrangement to be a fact.
In June 1952, there was an exchange of correspondence between Louvenia and Henry. Henry proposed to send to Louvenia *818 "* * * a deed to sign, so we can proceed to sell the property * * *." As a result of this request from Henry, the complainant went to Birmingham and executed a quitclaim deed in favor of Henry.
As was heretofore stated, the court below found the deed to have been fraudulently obtained and therefore cancelled it.
If the marriage of Louvenia to Mansfield terminated in a divorce prior to 1940, the decision of the court below must be reversed, for Henry would be entitled to the property in issue as between the two.
But in Alabama it is settled that "the presumption is that the prior marriage has been dissolved by divorce, and the burden to show that it has not rests upon the person seeking to impeach the last marriage, notwithstanding he is thereby required to prove a negative." Sloss-Sheffield Steel & Iron Co. v. Alexander, 241 Ala. 476, 3 So. 2d 46, 48, and authorities cited therein. And so, in the instant case the burden is upon Louvenia to show that she and Mansfield were never divorced.
But as was stated in Dorsey v. Dorsey, 259 Ala. 220, 66 So. 2d 135, 139:
The following was quoted in Bell v. Tennessee Coal, Iron & R. Co., 240 Ala. 422, 199 So. 813, 814:
The quantum and quality of evidence that is necessary to overcome the presumption of the dissolution of a prior marriage has, of course, no certain measures. But this court sustained the trial judge in the case of Freed v. Sallade, 245 Ala. 505, 17 So. 2d 868, where he refused to accept the uncorroborated testimony of the complainant that she had not obtained a legal divorce prior to her subsequent marriage. However, where the testimony of the person having the burden of proving there was no divorce prior to a subsequent marriage is corroborated by other evidence, their contention has been sustained. Sloss-Sheffield Steel & Iron Co. v. Watford, 245 Ala. 425, 17 So. 2d 166; Dorsey v. Dorsey, 259 Ala. 220, 66 So. 2d 135.
In the Watford case, supra, the testimony that there was no divorce was corroborated by the court records of every county in which the parties had lived.
In the Dorsey case, supra, the complainant showed that there had been no divorce in the three counties in which the parties had lived. The fact that there had been an attempt to get the other party to the marriage to testify as to whether there had been a divorce was also considered as corroborating evidence.
In the instant case, there was the testimony of the complainant that there had been no divorce. As further corroborating *819 evidence was the fact that Mansfield, some twelve years after their separation, had Louvenia join him in executing a mortgage on the property here involved. There also existed the fact that Henry Jones thought it necessary to have Louvenia execute a deed to the property in his favor.
Under the evidence presented in this cause, the trial court, sitting without a jury in equity, considered the presumption that the first marriage was dissolved by divorce, and found that this presumption had been overcome by the evidence and that Louvenia was the legal wife of Mansfield at the time of his death.
The finding of fact, and the decree of the Chancellor, where the case is heard orally, will not be here disturbed unless it is plainly and palpably wrong. Hyatt v. Compton, 262 Ala. 649, 80 So. 2d 650; Dorsey v. Dorsey, supra; Meadows v. Hulsey, 246 Ala. 261, 20 So. 2d 526.
After a careful examination of the record, we are unwilling to say that the decree of the trial court was plainly and palpably wrong and unjust.
Affirmed.
SIMPSON, GOODWYN and COLEMAN, JJ., concur. | October 31, 1957 |
eff5c959-d02b-4fba-b1ec-4cdc083be541 | Rota v. Combs | 99 So. 2d 692 | N/A | Alabama | Alabama Supreme Court | 99 So. 2d 692 (1957)
Beulah ROTA
v.
Fannie Lee COMBS.
3 Div. 798.
Supreme Court of Alabama.
December 19, 1957.
Rehearing Denied January 23, 1958.
Calvin M. Whitesell, Montgomery, for appellant.
Hill, Hill, Stovall & Carter, Montgomery, for appellee.
STAKELY, Justice.
Beulah Rota (appellant) brought this action for damages for personal injuries against Fannie Lee Combs (appellee). The action arose from an intersectional automobile collision. The complaint contained a count alleging simple negligence and a count alleging wantonness. The cause was submitted to the jury on Count One, the simple negligence count after the court had, by its charge, eliminated Count Two from the jury's consideration. The verdict and judgment were for the appellee. Appellant filed a motion for new trial which was overruled. This appeal is from that judgment.
Two automobiles collied on November 24, 1955, at the intersection of South Lawrence Street, a one way street going south, and Alabama Street, a one way street going east, both being public streets in the City of Montgomery, Alabama. Between the hour of 4:00 and 4:30 p. m., appellant was riding with her husband, who was driving his car, a 1955 BelAir Chevrolet. They were proceeding east on Alabama *693 Street. Appellee was proceeding south on South Lawrence Street, driving a 1951 Chevrolet. Appellant was injured as a result of the collision between the two vehicles. Appellant's husband, the driver of the car in which she was riding, had been drinking prior to the accident and was charged with reckless driving at the scene by the investigating police officers. The charge resulted in a conviction in police court a short time thereafter. There is a "Yield Right of Way" sign as to vehicles proceeding east on Alabama Street prior to reaching the intersection where the accident occurred. The "Yield" sign was facing and applicable to the vehicle in which the appellant was traveling in its approach to the intersection. Lawrence Street at this intersection has no traffic control instrumentality as to vehicles proceeding south immediately prior to reaching said intersection and appellee's automobile had the right of way. The speed limit at the point of the accident is 25 miles per hour. The front end of appellee's vehicle struck the appellant's vehicle in the center of the lefthand side. As a result of the impact, the car driven by the appellee was turned completely around and traveled about 23 feet from the point of impact to the place where it came to rest, facing in the direction from which it had come. There were no skid marks left by the appellee's car. The car of appellant's husband traveled a distance of 48 feet after the impact, in the same general direction that it was traveling prior to the collision, jumped over the curb of Alabama Street, knocked down one steel sign and a United States Mail Box, and came to rest pointing in the same general direction as it was traveling at the time of the impact.
Appellant assigns as error the charge of the court which amounted to giving the affirmative charge as to Count Two (wanton count) of the complaint. Appellant urges that under the scintilla rule there was sufficient evidence to warrant submission of the question of wantonness vel non to the jury. The testimony upon which the appellant relies to establish the question of wantonness vel non was rendered by the appellant herself. Appellant, although admitting she had never operated an automobile, testified that she observed the vehicle of the appellee when it was about 25 feet from the automobile in which plaintiff (appellant) was riding, and she stated, "I will have to say the speed of 60 or 65 miles an hour, or either it looked that way to mewhen it just flared up, like that."
This testimony is the only basis relied upon by the appellant to substantiate her charge of wantonness. All other testimony as to the speed of the appellee's automobile estimates the speed at 20 to 25 miles per hour, and it is so listed on the police accident report. Stripped of the above statement by the appellant concerning the speed of the appellee's auto, there is no evidence upon which to base a claim of wantonness. "We recognize, of course, that * * * the scintilla doctrine prevails in this state, but this does not at all conflict with the equally well-known rule that a conclusion as to liability which rests upon speculation pure and simple is not the proper basis for a verdict." Continental Casualty Co. v. Paul, 209 Ala. 166, 95 So. 814, 815, 30 A.L.R. 802. Also it has been well said that "`A witness may be as thoroughly discredited by the inherent improbabilities of his testimony as by the direct testimony of witnesses.' * * * And `evidence, even though uncontradicted, need not be accepted as proof of a fact, when it is contrary to all reasonable probabilities of the case.'" Williams v. Ellington, 233 Ala. 638, 172 So. 903, 906. See also Peters v. Southern Ry. Co., 135 Ala. 533, 33 So. 332. The physical facts surrounding the accident do not support the testimony of appellant concerning the speed of appellee's vehicle. The two vehicles are of approximately the same weight. Neither vehicle was turned over by the impact, but the appellee's was turned completely around, and came to rest only 23 *694 feet from the point of impact after the collision. Appellant's vehicle travelled some 48 feet in the same general direction as it was before the collision. To say that a vehicle travelling at the speed alleged by the appellant collided with a slow moving vehicle of similar size and weight, striking a solid blow to the mid-section of that vehicle with the above stated results is beyond good reason and common knowledge. A very similar collision occurred in King v. Brindley, 255 Ala. 425, 51 So. 2d 870, 875, in which case the court said:
In that case the testimony in question was uncontradicted, whereas in the present case such testimony is strongly contradicted by other testimony. On this point the court further elaborated as follows:
The court below did not err in giving an affirmative charge as to the wanton count in the complaint of the appellant.
We further find no error in the refusal of the court to set aside the verdict of the jury and grant a new trial. The evidence tends to support the verdict and findings of the jury and finding no error to reverse, the judgment of the circuit court is affirmed.
Affirmed.
LIVINGSTON, C. J., and LAWSON, MERRILL and COLEMAN, JJ., concur. | December 19, 1957 |
312ad2d3-a5be-444f-ab21-8239b5158f15 | Murphree v. Campbell | 97 So. 2d 892 | N/A | Alabama | Alabama Supreme Court | 97 So. 2d 892 (1957)
Ethel MURPHREE
v.
William Belton CAMPBELL.
8 Div. 897.
Supreme Court of Alabama.
October 31, 1957.
G. W. Nicholson, Birmingham, for appellant.
Marion F. Lusk, Guntersville, for appellee.
SIMPSON, Justice.
Plaintiff sued defendant in case for negligently running his automobile into the automobile in which plaintiff was riding as a passenger. Defendant filed pleas of recoupment, the general issue, and contributory negligence, the gravamen of the latter being that plaintiff negligently grabbed the steering wheel of the car in which she was riding, thereby proximately contributing to the accident. The case was tried before the judge without a jury. Judgment was for the defendant, and plaintiff brings this appeal.
The assignments of error challenge the ruling of the trial court in denying the plaintiff's motion for a new trial. The ground of the motion meriting treatment is that the judgment was against the great weight of the evidence. On this review we are remitted to the oft-stated principle that the findings of the trial court on conflicting evidence are given the equal presumption as a verdict of the jury, and unless those findings are shown to be palpably wrong, they will not be disturbed. 2-A Ala.Dig., Appeal & Error, p. 244, et seq. On a studious consideration of the facts disclosed by the record, we reach the conclusion *893 that there is no warrant for disturbing the findings below. We will make a brief reference to these facts.
The evidence for the plaintiff and that for the defendant were in direct conflict. The scene of the collision was a hill on a curving part of the road leading to Guntersville Dam. The car in which the plaintiff was riding was proceeding over this public road toward the dam. The defendant was traveling the same road in the opposite direction. There was an incline in the road at the scene, which curved to the right of the plaintiff and to the left of the defendant. The plaintiff's evidence tended to show that the automobile in which she was riding at a reasonable rate of speed, was on the appropriate side (right hand side) of the road and upon coming around the curve and up the hill the defendant's automobile turning this curve, was on the wrong side (inside) of the curve; and as a proximate result of this violation of the rule of the road, the collision occurred, resulting in her catalogued injuries. On the other hand, the tendency of the evidence for the defendant was that he was on his right side of the road as he approached the incline when he met the automobile in which the plaintiff was riding, and that just before the accident the latter automobile was on the wrong side (his side) of the road, traveling at an excessive rate of speed, and that the proximate cause of the collision was the grabbing of the steering wheel of the other car by the plaintiff, thereby causing the two automobiles to collide. This direct conflict in the evidence made a question of fact for the court to determine whether or not the defendant's negligence was the sole proximate cause of the collision, or whether the alleged contributory negligence of the plaintiff proximately contributed to the accident.
Appellant argues that the violation of a rule of the road by a party makes him guilty of negligence per se. This is correct. Newell Contracting Co. v. Berry, 223 Ala. 111, 134 So. 868; Claude Jones & Son v. Lair, 245 Ala. 441, 17 So. 2d 577; Cosby v. Flowers, 249 Ala. 227, 30 So. 2d 694.
But such negligent conduct may not be made the basis of a cause of action or defense unless it was a proximate cause of the accident. And when both parties are guilty of simple negligence, and each is a proximate contributing cause without more, neither can recover damages from the other. Winfrey v. Witherspoon's, Inc., 260 Ala. 371, 373, 71 So. 2d 37; Simpson v. Glenn, 264 Ala. 519, 88 So. 2d 326; Greer v. Marriott, 27 Ala.App. 108, 167 So. 597, certiorari denied 232 Ala. 194, 167 So. 599. It thus appears that the evidence presented a conflict with respect to the negligence of the defendant and the contributory negligence of the plaintiff, justifying the trial court to conclude that neither party was entitled to a judgment.
We find no error.
Affirmed.
LIVINGSTON, C. J., and GOODWYN and COLEMAN, JJ., concur. | October 31, 1957 |
6869cae7-0294-4263-8652-88a310f9aff8 | Jordan v. Jordan | 96 So. 2d 809 | N/A | Alabama | Alabama Supreme Court | 96 So. 2d 809 (1957)
Elmer A. JORDAN
v.
Viola Jackson JORDAN.
8 Div. 903.
Supreme Court of Alabama.
August 22, 1957.
Sue Stokes, Gadsden, for appellant.
Starnes & Starnes, Guntersville, for appellee.
GOODWYN, Justice.
On June 22, 1954, the circuit court of Marshall County, in equity, granted a divorce to Viola Jackson Jordan from Elmer A. Jordan. In the decree the court confirmed an agreement between the parties *810 concerning the care, custody and control of their two minor children, Elmer, Jr., and Gary. The agreement provided for the mother's custody during the school term and the father's custody during the school vacation months. The agreement also provided for the husband to pay to the wife the sum of $50 per month for the support and maintenance of the children.
On June 8, 1955, Mrs. Jordan filed a petition for modification of the original decree so as to give her full-time custody of the children and to require that payments for their support be made to the register. The petition also sought to have Mr. Jordan cited for contempt for failure to make the monthly payments as ordered in the original decree, it being averred that he was in arrears in the amount of $300. On June 28, 1955, the court granted the petitioner fulltime care, custody and control of the children with the right of visitation by the father so long as he remained in a sober condition and did not remove the children from the home or premises of the mother. The decree of modification also provided that the monthly payments be made on or before the 15th day of each month and that each payment "be made to the register of the court and not at any time become more than 60 days in arrears."
On August 30, 1955, Mrs. Jordan filed a second petition seeking further modification and clarification of the decree as modified on June 28, 1955, by striking therefrom the provision that the monthly payments "not at any time become more than 60 days in arrears." The petition also prayed that Mr. Jordan be adjudged in contempt for failing to make the monthly payments due in June, July and August, 1955, in the total sum of $150; and that he be taxed with the costs of the proceeding "including a reasonable attorney's fee to the complainant's attorney." On September 16, 1955, a decree was rendered striking the words "not at any time become more than 60 days in arrears" from the prior decree of modification. The trial court also found that Mr. Jordan had failed to make the payments as ordered in the decree of June 28, 1955, and was delinquent in the sum of $200. The decree also taxed him with the court costs, including the sum of $50 as a reasonable fee for the petitioner's solicitor. It was directed that the register issue a writ of arrest for Mr. Jordan, commanding the sheriff of any county to take him in custody and "that he be confined in the county jail of Marshall County, Alabama, until such time as he purges himself of contempt by paying said sums and the costs of this proceeding." Although not specifically shown by the record, we understand that Mr. Jordan purged himself of the contempt by paying the amounts due.
On January 17, 1956, Mrs. Jordan filed a third petition reciting that Elmer, Jr., was afflicted with hypospadias, a condition requiring surgery and hospitalization; that an operation was necessary for his proper development and adjustment; that the operation is overdue and should be performed at the earliest possible moment; that she was without means to pay the hospital, medical and surgical bills required for the operation; that the respondent was gainfully employed and had an income adequate to provide the necessary hospital, medical and surgical treatment. The prayer was that Mr. Jordan be ordered to pay such hospital and surgical bills. Under the petition it was sought to have him cited for contempt in failing to make the $50 payments due for the months of December, 1955, and January, 1956.
The trial court noted in its decree, rendered on February 9, 1956, that all support payments due as of the date of the decree had been paid since the filing of the petition and that the respondent was not at the time of the decree in contempt of court. It was further found by the court that Elmer, Jr., was in need of immediate surgery, "the exact cost of which is not known at this time". The decree ordered Mr. Jordan to pay to the register, on or before July 1, 1956, the sum of $250 and an additional sum of $250 on or before December 1, 1956, for the purpose of taking care of the *811 hospital and surgical bills. The decree further provided "that in the event said sum is insufficient to meet the reasonable and proper cost of said medical, surgical and hospital bills at the end of the calendar year 1956, the question can be reopened by proper petition filed, and in the event said sum exceeds said reasonable charges, the excess shall be, by order of the court, refunded to the said Elmer A. Jordan upon completion of said services."
On July 21, 1956, Mrs. Jordan filed a fourth petition to have Mr. Jordan cited for contempt for failure to make the support payments due in the months of May, June and July 1956, and the additional sum of $250 ordered to be paid on or before July 1, 1956, in connection with the surgical treatment of Elmer, Jr. The petition was set for hearing on August 10, 1956. At that time the cause was continued to September 14, 1956, "to give respondent a chance to purge himself of contempt proceeding." On September 14, 1956, the trial court found the respondent to be "in default under previous decrees of this court in the sum of $300.00 which he has willfully failed to pay" and adjudged him in contempt of court for failure to make said payments. The decree ordered that he be "committed to the custody of the sheriff of Marshall County, Alabama, to be by him held until all of said payments and all of the costs of this suit be paid into the hands of the register of this court, at which time and upon order of the register he will be released from custody." He was also taxed with the costs, "including the sum of $50.00 as a reasonable attorney's fee for complainant's solicitor." The decree further provided that it should be "held in abeyance for a period of ten days from this date provided said respondent make a good and valid appearance bond in the sum of $500.00 and make said payments or surrender himself for arrest."
On September 24, 1956, Mr. Jordan filed an "affidavit with appendices" reciting in substance that his failure to pay the sums ordered to be paid by him "is not due to any disrespect of the court and its decrees but is due solely and alone to his absolute inability to comply with the orders of the court." On September 24, 1956, the court modified its decree of September 14, 1956, "by extending the period of grace set out in paragraph 5 thereof for a total period of 90 days instead of 10 days."
On December 20, 1956, testimony was taken on the petition filed by Mr. Jordan on September 24, 1956. At the time of this hearing Mr. Jordan had failed to pay the sums as ordered. The court, at the conclusion of the hearing, had this to say: "I have worried along with this thing for over a year. Right now all I am going to say is it is just before Christmas and I am going to put off any decree until next year."
On February 18, 1957, the court rendered a decree adjudging the respondent guilty of willful contempt for his failure to pay the sums as ordered for the support and maintenance of his children and for the medical, surgical and hospital bills for Elmer, Jr. The decree further provided that he be "committed to the custody of the sheriff of Marshall County, Alabama, to be by him held until all of said payments and all of the costs of this court be paid into the hands of the register of this court at which time and upon order of the register he will be released from custody, and the register will issue all necessary writs to effect said results"; also, the respondent was taxed with the costs, "including the sum of $50.00 as a reasonable attorney's fee for complainant's solicitor of record."
It is from the decrees of February 9, September 14, and September 24, 1956, and February 18, 1957, that Jordan takes this appeal. Scott v. Scott, 265 Ala. 208, 210, 90 So. 2d 813; Smith v. Smith, 218 Ala. 701, 702, 120 So. 167. He also petitions for a writ of certiorari or other appropriate writ for review of said decrees in event it should be determined that appeal is not appropriate. In this connection it is to be noted that the trial court set *812 an "appearance bond on appeal at $1,500" which Jordan gave and by virtue of which he is not in the custody of the sheriff.
The appeal was taken on March 2, 1957. Hence, only those appealable decrees rendered within six months prior to that time are reviewable on this appeal. Code 1940, Tit. 7, § 788. The appeal from the decree of February 9, 1956, was not timely taken and is due to be dismissed. It was that decree which directed Jordan to make the two $250 payments to take care of the medical, surgical and hospital bills of Elmer, Jr. For the purposes of this review the decrees of September 14th and 24th may be disregarded since the matter there dealt with finally culminated in the decree of February 18, 1957, which adjudged Jordan guilty of contempt and ordered that a $50 solicitor's fee be taxed against him as a part of the costs. It is this last decree which presents the only questions before us, viz.: (1) The propriety of including in the costs, taxed against Jordan, the $50 fee for Mrs. Jordan's solicitor; and (2) the propriety of adjudging Jordan guilty of contempt and ordering him committed to the custody of the sheriff until such time as he purges himself by paying the sums as ordered.
It is our view that the appropriate method of reviewing the decree of February 18, 1957, is by certiorari (Jordan not being in confinement). Ex parte National Association for the Advancement of Colored People, 265 Ala. 356, 357, 91 So. 2d 220, 221; Wetzel v. Bessemer Bar Ass'n, 242 Ala. 164, 165, 5 So. 2d 722; Ex parte Dickens, 162 Ala. 272, 279, 50 So. 218.
It is apparent that the solicitor's fee allowed in the February 18, 1957, decree was incident to the petition to have Mr. Jordan cited for contempt and was not incident to the petition seeking modification of the allowances for maintenance and support. In this connection, we note in passing that the decree of February 9, 1956, which provided for the additional payments, made no allowance for a solicitor's fee.
We have held that "where the divorce decree provided for alimony and maintenance, such provision continues to be within the power of the court to modify on account of changed conditions and, since the court retains such right, there is incidental to it also the right to an attorney's fee under proper circumstances." Keith v. Paden, 255 Ala. 294, 298, 51 So. 2d 9, 12. On the other hand, we have held that "when the right to a decree fixing alimony [or maintenance] is exhausted so is the right to an attorney's fee." Sims v. Sims, 253 Ala. 307, 311, 45 So. 2d 25, 28, 15 A.L.R.2d 1246; McKinley v. McKinley, 241 Ala. 245, 246, 2 So. 2d 451; Rochelle v. Rochelle, 235 Ala. 526, 529, 179 So. 825. In other words, the allowance of a solicitor's fee is not appropriate in a proceeding looking to the enforcement of an award already made.
The position taken by petitioner is that his failure to make the payments has been due to lack of ability to do so and not to a willful disregard of the court's decree ordering the payments. Evans v. Evans, 264 Ala. 2, 7, 84 So. 2d 337, and cases there cited. Of course, his inability to pay was a question of fact which the trial court, from a consideration of testimony given ore tenus, resolved against him. We have carefully examined the evidence. Although the trial court might have found from the evidence that petitioner's position was well-taken, there is also sufficient basis in the evidence, we think, for the court's conclusion that the petitioner failed to establish that he was unable in good faith to make the prescribed payments. It is to be observed that all of the proceedings between these parties have been before the same judge. He is unquestionably better advantaged than we to determine from the evidence heard by him whether petitioner is able to make the payments as ordered.
The entire record being already here we have given it consideration as though it *813 were here in response to a writ of certiorari issued out of this court. When so considered, it follows, from what we have said, that the decree of February 18, 1957, is due to be reversed, insofar as it allows a solicitor's fee, and in all other respects it is due to be affirmed.
The appeal from the decree of February 9, 1956, is dismissed.
The decree of February 18, 1957, is reversed in part and affirmed in part.
LIVINGSTON, C. J., and LAWSON, SIMPSON, MERRILL and COLEMAN, JJ., concur. | August 22, 1957 |
4a1cea53-69b8-4c74-9742-b13bd1602557 | Pacific National Fire Insurance Company v. Watts | 97 So. 2d 797 | N/A | Alabama | Alabama Supreme Court | 97 So. 2d 797 (1957)
PACIFIC NATIONAL FIRE INSURANCE COMPANY
v.
Rufus WATTS et al.
5 Div. 673.
Supreme Court of Alabama.
August 22, 1957.
Rehearing Denied November 14, 1957.
*798 Lewis H. Hamner, Jr., Roanoke, for appellant.
H. M. Brittain, Wedowee, and D. R. Boyd, Roanoke, for appellees Watts and Parker.
MERRILL, Justice.
Appeal from a decree sustaining respondents' demurrers to the bill as amended and dismissing the bill. Complainant-appellant is Pacific National Fire Insurance Company and respondents are Rufus Watts, J. J. Smartt and E. B. Parker.
It is agreed by the parties that the respondents' demurrers to the original bill were sustained on the ground that the bill was without equity because no right of subrogation existed as to complainant. The bill was amended by adding paragraphs 11, 12, 13 and 14, and adding two alternatives to the prayer for relief.
We think the question to be decided remains basically the same as to the bill as amendeddoes the complainant, under the allegations and exhibits of the bill, show a right to be subrogated to the extent of the *799 $1,000 it paid under its policy of insurance on the dwelling on the property which was destroyed by fire?
The original bill alleged that Rufus Watts executed a mortgage to T. C. Ussery on 88 acres of land in Chambers County to secure payment of $1,800; that Watts procured insurance on the dwelling on the property in the amount of $1,000 the policy being issued by complainant; that the loss payable clause in the policy was to Ussery as his interest might appear; that Ussery's widow, with full authority, assigned the note and mortgage to J. Horace Brown and quitclaimed the property to him; that Brown was substituted for Ussery in the loss payable clause in the policy and that the premiums on the policy were paid until the house was destroyed by fire on October 29, 1954; that in January, 1954, Watts sold 44 acres of the tract, including the house, to Carrie and Earnest Fuller; that Watts thereby divested himself of all right, title, interest and equity in and to the dwelling which was insured by complainant (a conclusion of the pleader which is incorrect as a statement of law and challenged by demurrer); that the Fullers had no interest in the policy and no liability under the policy existed as to them; that after the fire, complainant paid to Brown $1,000, the amount of the policy, and was thereupon subrogated to all the rights of Brown under the mortgage from Watts to Ussery, which had been assigned to Brown, to the extent of $1,000; that on February 9, 1955, Brown sold, conveyed and assigned to complainant all his right, title and interest in and to said note and mortgage to the extent of $1,000, reserving to himself the right to collect the balance due from Watts under the note and mortgage; and that Watts had defaulted in the payment of the note and mortgage. It was also alleged that respondent Smartt was in possession of the 44 acres sold by Watts to the Fullers, and that respondent Parker was in possession of the remaining 44 acres. The prayer of the bill sought a foreclosure of the mortgage and a declaration that the claims of respondents Smartt and Parker "be declared subordinate to and null and void as to" the rights of the complainant. The exhibits to the bill were "A", the mortgage from Watts to Ussery, "B", the policy of insurance, "C", the transfer from Mrs. Ussery to Brown, and "D", the partial assignment of Brown to complainant.
Respondents Watts and Parker filed pleas in abatement on the ground that the lands were located in Chambers County but the suit was filed in Randolph County. These pleas were overruled on the basis that the suit was primarily one to foreclose a mortgage, and that the mortgagor Watts was a material defendant, and since he resided in Randolph County, the suit was properly brought in that County. Tit. 7, § 294, Code 1940.
As previously stated, the demurrers to the original bill were sustained and the complaint was amended. In the amending paragraphs it was alleged that subsequent to his assignment to complainant, Brown transferred the balance of the debt owed by Watts to him to Parker, and a copy of that instrument was made Exhibit "E"; that thereafter, the mortgagor Watts executed a warranty deed to Parker as to the entire 88 acres of land, reciting therein that the same was in lieu of the foreclosure of the mortgage and in payment of the balance due on the mortgage, and a copy of that deed was made Exhibit "F"; that later, in August, 1955, Parker conveyed the same 44 acres which Watts had sold to the Fullers to respondent Smartt.
Complainant amended its prayer in the alternative asking first, that an equitable trust in favor of complainant be impressed upon the 44 acres remaining in Parker's hands after his sale of the other 44 to Smartt and second, that complainant be permitted to redeem the entire 88 acres and that thereafter, the mortgage be foreclosed and the entire tract be sold to satisfy the indebtedness due complainant.
The three assignments of error complain of the action of the lower court in sustaining *800 the demurrers to the bill as amended and dismissing the bill.
The rules as to subrogation in circumstances like those presented here are set out in a case cited and relied upon by both parties, Tarrant Land Co. v. Palmetto Fire Ins. Co., 220 Ala. 428, 125 So. 807, 809, where this court said:
The bill alleges that Watts procured the issuance of the policy of insurance and the policy, Exhibit "B", shows on its face that "Rufus Watts and legal representatives" were insured and that the name of the insured was Rufus Watts. Further allegations and exhibits show that the $1,000 insurance paid by complainant went to the benefit of Watts in satisfaction pro tanto of the mortgage debt. Thus, under the rule of the Tarrant Land Co. case in the first quoted paragraph supra, complainant is not entitled to subrogation. Nor is its position changed by the allegation that Watts sold his interest to the Fullers. Any conveyance Watts might attempt to make was subject to his mortgage which was held by Brown. Brown was looking to Watts for payment, or in case of default, to the property. Watts was still liable to Brown as mortgagor. When the house burned, Watts was entitled to credit on his mortgage debt to the amount that the complainant paid to Brown, i.e. $1,000, and the exhibits indicate that Watts received such credit. The conveyance by Watts to the Fullers did not divest Watts of all his interest in the property thereby leaving him with no insurable interest in the dwelling as alleged in the bill. We note in passing that it is rather incongruous to justify the filing of the suit in Randolph County, the residence of the mortgagor Watts, the material defendant, and then to insist that he had parted with all interest in the land and the insurance policy prior to the loss of the dwelling house by fire.
Complainant is not aided by the subrogation clause in the insurance policy which reads, in part:
As between complainant and the mortgagee Brown, the complainant may claim that it is not liable to the mortgagor and take an assignment as it did, but such an assignment cannot alter the mortgagor's rights adversely. Certainly, Brown was not entitled to receive the $1,000 insurance and then recover the entire secured debt without giving Watts credit for the $1,000. If Brown could not be so unjustly enriched, then his assignee, complainant, has no greater right than Brown.
Furthermore, the assignment from Brown to complainant was limited and qualified. Complainant acquired no interest in the balance due; it received such interest as Brown had in the mortgage and the indebtedness secured thereby to the extent of $1,000, which sum was what complainant had agreed to pay Watts and Brown if the house on the property should be destroyed by fire. The insurance policy was in full effect with premiums paid; complainant paid the $1,000 to Brown as it was obligated to do because Brown's interest was more than $1,000. Watts received credit on his debt for $1,000, and it is difficult to see just what interest complainant received under the assignment from Brown insofar as Watts is concerned, since for aught that appears, the assignment from Brown to complainant was without any notice, actual or constructive, to Watts.
Complainant counters with the insistence that Watts had no insurable interest at the time of the fire. But we have held that one can have an insurable interest although he has no property in the thing insured, but any limited or qualified interest, equitable right or expectancy of advantage is sufficient to support an insurable interest. Or, to state it differently, whatever furnishes a reasonable expectation of pecuniary benefit from the existence of the subject of insurance is a valid insurable interest. North British & Mercantile Ins. Co. v. Sciandra, 256 Ala. 409, 54 So. 2d 764, 27 A.L.R.2d 1047; American Equitable Assur. Co. v. Powderly Coal & Lumber Co., 225 Ala. 208, 142 So. 37, and cases cited therein. Certainly, Watts' interest in the policy of insurance is positively described in the holdings of the two last cited cases. Irrespective of the state of Watts' title to the property, he had a reasonable expectation of pecuniary benefit from the existence of the subject of insurance because he was still liable on the note and mortgage. In 44 C.J.S. Insurance § 187 a, p. 884, it is expressed thusly:
We think the court correctly held that there was no right of subrogation as to complainant and that the bill as amended did not contain equity.
There is one allegation in the bill which, if considered alone, would give equity to the bill. We purposely omitted it in our statement of the allegations of the bill. This allegation is in paragraph 3 of the bill and is an alternative allegation to that one, also in paragraph 3, "that the said Rufus Watts procured the issuance of said policy of insurance aforesaid which is marked Exhibit "B" and made a part hereof." The allegation is that "T. C. Ussery procured at his own expense and for his own benefit, as mortgagee, a policy of fire insurance from your complainant in the amount of $1,000 * * * and paid the premiums *802 thereon * * *." The sole purpose of this allegation is to give equity to the bill under the second quoted paragraph from Tarrant Land Co. v. Palmetto Fire Ins. Co., supra.
The trial court took note of this allegation as do we and disregarded it. This action was correct.
Exhibits are parts of bills. Equity Rule 11, Code 1940, Tit. 7 Appendix. The verity of exhibits to a bill is taken as true on demurrer. Rochell v. Oates, 241 Ala. 372, 2 So. 2d 749. When the averments of a bill are contradictory of the exhibits thereto, recitals in the exhibits take precedence and control. Wright v. Saddler, 255 Ala. 101, 50 So. 2d 235; Lunsford v. Marx, 214 Ala. 37, 106 So. 336. A bill in the alternative must show equity in either alternative. Cox v. Parker, 212 Ala. 35, 101 So. 657; Hays v. McCarty, 239 Ala. 400, 195 So. 241.
The allegation that Ussery procured the insurance for his own benefit is repugnant to the allegation that Watts procured the policy, and the exhibits make it clear that Watts did procure the policy. Thus, the allegation that Ussery procured it for his own benefit is a conclusion of the pleader, contradicted by the other allegations of the bill, and cannot be held to give equity to the bill. Robinson v. Williams, 229 Ala. 692, 159 So. 239.
We hold that the bill as amended fails to show complainant's right of subrogation, and that the additional allegations of paragraphs 11-14 do not give equity to it; and it does not appear that an allegation, consistent with the exhibits, can be made to give it equity. The decree of the lower court is affirmed.
Affirmed.
LIVINGSTON, C. J., and LAWSON, SIMPSON, GOODWYN and COLEMAN, JJ., concur. | August 22, 1957 |
406d2dde-7219-43f6-81d9-a45ee2650274 | Nelson Realty Co. v. Darling Shop of Birmingham | 101 So. 2d 78 | N/A | Alabama | Alabama Supreme Court | 101 So. 2d 78 (1957)
NELSON REALTY CO., Inc., et al.
v.
DARLING SHOP OF BIRMINGHAM, Inc.
6 Div. 84.
Supreme Court of Alabama.
October 24, 1957.
Rehearing Denied March 6, 1958.
*81 Earl McBee and John S. Tucker, Jr., Birmingham, for appellants.
Cabaniss & Johnston, K. E. Cooper and Meade Whitaker, Birmingham, for appellees.
SIMPSON, Justice.
This is an appeal by Nelson Realty Co. from a decree of the lower court sustaining a demurrer to the substitute cross-bill of Nelson, the appellant.
The original bill was filed by Darling Shop of Birmingham, the appellee, seeking a declaratory judgment to clarify a lease existing between Darling and Nelson. Nelson, in turn, initially filed an answer and cross-bill which sought to defeat a renewal of the lease and to require Darling to vacate the premises. There were several amendments to the original pleadings and two previous appeals. For a better understanding of the case, see 255 Ala. 586, 52 So. 2d 211 and 262 Ala. 495, 79 So. 2d 793.
A substitute answer and cross-bill was filed on November 21, 1955, after the first appeal, and amended August 29, 1956, after the second appeal and the consent of Prudential Insurance Company (mortgagee of the property), who had been assigned the rents therefrom, had been obtained.
It is the contention of the appellant on this appeal that the lower court was in error in sustaining the demurrer to the cross-bill as amended for the following reasons: that there is a sufficient allegation which would warrant an accounting between the parties; that a sufficient ground for the rescission of the lease is stated viz.: fraud in the procurement of the lease contract; and that in the event that a rescission of the contract is not warranted, then he is entitled to a specific performance of those promises fraudulently made by Darling for the remodeling and merchandizing of the building. We limit discussion to these propositions.
The following facts are apparent from the pleadings: Nelson interposed the original *82 cross-bill grounded on the claim that Darling had not met the necessary conditions to effectuate a renewal of the existing lease between the parties. This ground was held insufficient by the lower court and by this court on the first appeal. 255 Ala. 586, 52 So. 2d 211. After amending the cross-bill (by the substitute cross-bill), it was again brought up on appeal and this court then held that it would be necessary for Nelson to obtain the consent of Prudential, to whom the proceeds of the lease had been assigned, before the cross-bill could be maintained. 262 Ala. 495, 79 So. 2d 793. After the case was remanded, Nelson obtained such consent from Prudential, amended his substitute cross-bill showing such consent, and now contends that he has the right to challenge the validity of the lease on the ground of fraud in its procurement.
The salient facts of the alleged fraud are: Nelson avers that while he was negotiating with Darling for the leasing of the property, as a material inducement for the giving of the lease by Nelson, Darling promised and agreed that they would remodel the building as soon as war shortages of building materials were relieved so as to increase the sales and therefore, increase the productivity of the premises. It is further alleged by Nelson that when the formal lease was executed, because of the shortages of materials, instead of binding Darling to this unconditional promise to remodel, the lease contained a provision that "the tenant may at any time make any and all repairs, alterations or improvements upon said premises as it may deem necessary * * *". Nelson avers that at the time the promise to remodel when materials could be available was made, although he (Nelson) relied on such promise and executed the lease, Darling had no intention of keeping it and that the fraud so committed in making such a promise to induce him to execute the lease entitles him to a recission thereof.
The trial court, in sustaining the demurrer, made no reference to any specific grounds on which the ruling was rested. Therefore, only those grounds going to the sufficiency of the bill as a whole will be considered. Rowe v. Rowe, 256 Ala. 491, 55 So. 2d 749; Shaddix v. Wilson, 261 Ala. 191, 73 So. 2d 751; Penton v. Brown-Crummer Inv. Co., 222 Ala. 155, 131 So. 14; Rikard v. O'Reilly, 232 Ala. 667, 169 So. 320.
Since a demurrer to a bill as a whole should be overruled if any one of the bill's aspects presents a case for equitable relief (8 Ala.Dig., Equity, and a bill is not defective even though it ask for alternative relief (Stamey v. Fortner, 230 Ala. 204, 160 So. 116) the sole consideration on this appeal is to determine if the substituted cross-bill of Nelson presents a case for equitable relief in any aspect.
No question of the consent of Prudential enters into the determination of this appeal. Prudential has given its consent to the maintenance of the suit so that obstruction to the claim of Nelson mentioned on the last appeal (262 Ala. 495, 79 So.2d 793) has been removed.
We are mindful of the oft stated rule that for an allegation of fraud to be sufficient, it must aver facts disclosing in what the fraud consists, so as to advise respondent what he is called upon to defend against. Williams v. Williams, 238 Ala. 637, 193 So. 167; Doswell v. Hughen, Ala., 94 So. 2d 377. General averments of fraud which are in effect conclusions of the pleader, will not suffice as against proper demurrer. Williams v. Williams, supra.
The principle of law here controlling and firmly settled in this jurisdiction is that a promise made with the intention in the mind of the promisor not to perform, may be a misrepresentation of a subsisting fact, and if material and relied upon as an inducement to the contract, is a fraud entitling the promisee to a rescission or cancellation. Williams v. Williams, supra.
*83 While a failure to fulfill a mere promise alone will not give rise to actionable fraud, yet if with an intent to deceive, a promise is made with no intention of fulfillment at the time such promise was made and relied upon, and injury to the defrauded party results therefrom, fraud may be predicated thereon. Cross v. Maxwell, 263 Ala. 509, 83 So. 2d 211 and authorities cited therein; Doswell v. Hughen, supra.
It is the contention of the appellee that such an antecedent verbal promise intentionally omitted from the written contract entered into between the parties is not subject to enforcement either directly or indirectly. In support of this contention, the appellee cites several cases, i.e., Betts v. Gunn, 31 Ala. 219; Folmar v. Lehman-Durr Co., 147 Ala. 472, 41 So. 750; Goulding Fertilizer Co. v. Blanchard, 178 Ala. 298, 59 So. 485; Ballentine v. Bradley, 236 Ala. 326, 182 So. 399; Harper v. Kansas City Life Ins. Co., 240 Ala. 472, 199 So. 699; Bankhead v. Jackson, 257 Ala. 131, 57 So. 2d 609; and Holmes v. Riley, 240 Ala. 96, 196 So. 888. However, the court in the consideration of the above cases was not concerned with fraud which entered into the inducement of the contract.
Nor does a written contract estop the parties from showing fraud in the inducement if seasonable action is taken. Stanard Tilton Milling Co. v. Mixon, 243 Ala. 309, 9 So. 2d 911; Alabama Machinery & Supply Co. v. Caffey, 213 Ala. 260(3), 104 So. 509; J. A. Fay & Egan Co. v. Independent Lumber Co., 178 Ala. 166, 59 So. 470. "The law does not countenance a contract against the consequences of fraud." Alabama Machinery & Supply Co. v. Caffey, supra, 213 Ala. 262, 104 So. 511. If the promises made were tainted with fraud, and there was a fraudulent intent in obtaining the lease, without intention of performance and pursuant to it, the promises were not fulfilled, the statute of frauds becomes immaterial. Doswell v. Hughen, supra. The action in such cases is based upon the fraud in the procurement of the contract, and not upon the contract itself. Pierce v. Wilson, 34 Ala. 596.
Estoppel is argued on the part of the appellee in bar of the claim of the appellant in that allegedly appellant did not act seasonably after discovery. However, to take advantage of estoppel, it must be availed of by special plea (Jones & Co. v. Peebles, 130 Ala. 269, 30 So. 564; Cloverland Apartments, Inc., v. Ansley, 265 Ala. 380, 91 So.2d 470) alleging facts upon which the estoppel is predicated. Jones & Co. v. Peebles, supra; Gulf Red Cedar Co. v. Crenshaw, 169 Ala. 606, 53 So. 812. An exception to this rule is where facts necessary or sufficient to establish the estoppel affirmatively appear from the face of the bill, in which case it may be taken advantage of by demurrers. J. M. Card Lumber Co. v. Ozement, 187 Ala. 237, 65 So. 792. Here, however, according to our interpretation, we do not think sufficient facts are apparent from the face of the cross-bill to show that this defense is available to defeat Nelson's claim.
The rule is that upon the discovery of the fraud, the party must act with promptness. An express affirmance of the contract by word or act after the discovery of the fraud defeats the right of rescission. Stafford v. Colonial Mortgage & Bond Co., 221 Ala. 636, 130 So. 383; Kyser v. Southern Building & Loan Ass'n, 224 Ala. 673, 141 So. 648. What is seasonable action depends upon the facts in each particular case. Stafford v. Colonial Mortgage & Bond Co., supra. There can be no estoppel without knowledge or means of knowledge of all material facts. American National Bank & Trust Co. v. Powell, 235 Ala. 236, 178 So. 21. The common sense of the rule is that a person cannot be estopped from asserting a fact of which he was ignorant, and which, when he became acquainted with the situation, commenced his remedial action with promptness. We interpret the cross-bill as governed by this last stated principle.
*84 The appellee contends that from the acts of accepting the rent and paying off one and part of another mortgage the appellant is estopped from seeking a cancellation of the lease on the ground of fraud. However, at an early stage of the proceedings the court ordered that the rent be paid without prejudice to the rights of the parties, thus maintaining the status quo during the pendency of the action.
In this connection, the appellee states in his brief that a statement of specific grounds of forfeiture of the right of renewal of a lease is a waiver of other grounds not stated. However, a person must have knowledge or means of knowledge before he is deemed to have waived his right. Authorities, supra.
Several specific instruments and acts of the appellant are urged by the appellee as establishing the fact that the appellant is estopped from asserting the alleged fraud. But, on this appeal, only those matters contained in pleadings can be considered. 2A Ala. Dig., Appeal & Error,
Immanent in a consideration of the foregoing principles are certain recognized rules respecting the use of parol evidence to show that the real contract was different from that signed by the parties. We will advert to some general authorities on the subject.
3 Thompson on Real Property, § 1194, p. 262, states the rule as follows:
McCormick on Evidence, § 221, p. 449, thus states the rule:
Dean Wigmore in his work on evidence states that parol evidence should be admissible to establish the fraud on the ground that "the vital additional element in fraud is the party's state of mind, which neither can be nor is intended to be embodied in the written document * * *." 9 Wigmore, Evidence, § 2439, p. 125. Wigmore limits his definition of fraud to the misrepresentation of a past or present fact which of course is sound law and obtains in our jurisprudence. And our court holds that a promise made with the intention in the mind of the promisor not to perform, may be a misrepresentation of a present fact, and if material and relied upon as an inducement to the contract, is a fraud. Williams v. Williams, 238 Ala. 637, 193 So. 167, and cases cited.
3 Corbin on Contracts, § 580, p. 257, states that parol evidence is admissible to prove fraud without regard to whether the contract is void or voidable. Also that parol evidence is admissible even though it contradicts the terms "of a complete integration in writing".
In a proceeding by a landlord to recover leased premises the Appellate Division of the New York Supreme Court held that parol evidence was admissible to show that a lease which provided that the premises would be used for professional purposes was, in fact, a subterfuge by which the premises were actually to be used and were *85 being used for residential purposes. In short, that court held parol evidence admissible to show an agreement other than that contained in the lease. 97 Fifth Ave. Corp. v. Schatzberg, 283 App.Div. 407, 128 N.Y.S.2d 264.
Several Alabama cases have dealt with the admission of parol evidence in establishing fraud in the procurement of contracts. The early case of Kennedy's Heirs & Executors v. Kennedy's Heirs, 2 Ala. 571, seems to somewhat parallel the controversy here. The pertinent facts there were: the testator transferred his property to his brother; later it was the contention of the children of the testator that even though the deed contained a recitation of valuable consideration, none was in fact paid; the heirs of the testator are attempting to reclaim the property from the heirs of the brother on the ground of fraud in the procurement of the deed. This court stated at page 588:
For other Alabama cases involving other types of transactions permitting parol evidence to show fraud, see Dixon v. Barclay, 22 Ala. 370; Nelson v. Wood, 62 Ala. 175; Pierce v. Wilson, supra; Brenard Mfg. Co. v. Jacobs & Padgett, 202 Ala. 7, 79 So. 305.
Using the foregoing authorities as our guide and others which, perhaps, could be cited, we think it would be entirely permissible for the appellant to show that what was incorporated into the contract was not the true agreement but was placed there through fraud of appellee which induced its execution.
Appellee argues the point that appellant does not come "with clean hands" because it was fraudulent conduct on the part of the appellant to represent to Prudential that the lease contained the entire agreement between the parties, when in fact, the alleged promises were outside of and not incorporated in the lease agreement. However, the only interest Prudential had in the agreement was as to the stipulated amount it was to receive annually on the payment of the loan to the appellant, secured by the mortgage held by it. As long as the lease contained a guaranty for the payment of this sum, ancillary agreements not affecting that payment were immaterial so far as Prudential was concerned. The only effect the promise could have had upon the relation of the parties would have been according to the allegations of the cross-bill, to increase the income the appellant would have received from the venture. It could have in no wise affected Prudential's rights, except the right to the rentals and Prudential has consented to the suit.
There was no duty as argued by the appellee for appellant to notify appellee and request performance of the alleged false promises before a rescission of the contract may be attempted. True, where there is a contract involving mutual continuing duties on the part of both parties, and one party has breached, but has not repudiated, the contract, it is the duty of the other before rescission to give notice and opportunity to live up to the contract, but this rule does not apply where fraud in the procurement of a contract is alleged. Stafford v. Colonial Mortgage & Bond Co., supra.
*86 The appellee attempts to defeat the claim of the cross-bill on the ground that the parties cannot be placed in status quo. The applicable rule was stated in Stanard Tilton Milling Co. v. Mixon, 243 Ala. 309, 311, 9 So. 2d 911, 913, as follows:
The appellee also claims that the filing of the amended substitute cross-bill was a different cause of action and did not therefore, relate back to the filing of the original bill, and since it was a new cause of action it would be barred by the one year statute of limitation relating to fraud. Without otherwise considering the merit of this contention it is enough to say that the one year statute of limitation applicable to suits based on fraud is not here controlling. This suit is in essence one to recover land and is governed by the ten year statute. Title 7, § 20, Code of 1940. Glass v. Cook, 257 Ala. 141, 57 So. 2d 505.
Appellee urges laches as a defense (South v. Pinion, 207 Ala. 122, 92 So. 420) but no ground of demurrer raises the point. Questions not raised by demurrer and not considered by the trial court will not be considered on appeal. Hays v. McCarty, 239 Ala. 400, 195 So. 241.
Some further observations seem necessary in view of argument of counsel. Aside from the consideration of fraud, the appellant contends the demurrer of the appellee was due to be overruled because an equitable ground for an accounting was sufficiently stated. His argument is that there exists a fiduciary relationship between a landlord and his tenant. The relationship of landlord and tenant in itself, is not confidential or of a fiduciary nature. 3 Thompson on Real Property, § 1060, p. 70. As was stated in 51 C.J.S. Landlord and Tenant § 2, p. 510: "The incidents of the relation of landlord and tenant, such as obligations and duties of the parties, rest on established principles of law and on the terms and conditions of the contract creating the relationship. The relation is one which exists between two independent contracting parties, and does not involve any idea of representation or agency. The relation, without more, is not confidential or fiduciary in character, although it may become such under peculiar and unusual facts and circumstances, or under provisions in the lease imposing special duties and obligations."
But equity may obtain jurisdiction where there is a complication of accounts, or it is shown that a discovery is necessary. Hall v. McKeller, 155 Ala. 508, 46 So. 460. Also, an accounting may always be had in a court of equity, where it is incident to some other relief. Kelly v. Wollner, 201 Ala. 445, 78 So. 823; Garontakis v. Sparks, 222 Ala. 421, 132 So. 896. A court of equity reserves to itself a large amount of discretion in regard to accounting and will take or refuse jurisdiction according to the circumstances of the particular case. Ex parte Deaton, 243 Ala. 154, 8 So. 2d 819. Therefore, since an accounting will be necessary to adjudicate the rights of the parties in this case, and it is here sought in connection with other equitable relief, equity may retain jurisdiction and determine this question, too.
In the alternative, the cross-complainant asks that the promises made by Darling be specifically enforced by the court. There are two types of relief which may be granted when a suit is based upon, fraud. One is a rescission or cancellation of the instrument which was the result of *87 the alleged fraudulent promise. The other remedy and the one plead alternatively by the appellant, is specific enforcement by which the fraudulent party is compelled to perform the very specific obligation which rests upon him, and the defrauded party obtains that which was promised him at the inception of the contract, but of which he was deprived because of fraud. 3 Pomeroy's Equity Jurisprudence, 5th Ed., § 910, p. 576. This alternative averment therefore contains equity. Whether or not specific performance should be ordered will address itself to the sound discretion of the trial court on final hearing after considering the evidence and the exigencies of the case.
Even though the three aspects of the appellant's cross-bill are interrelated, the cross-bill states sufficient facts to give it equity to the end that the parties may proceed to trial and have the matter adjudicated.
From the foregoing considerations it results as our view that the demurrer to the substitute cross-bill was incorrectly sustained.
Reversed and remanded.
LIVINGSTON, C. J., and GOODWYN and COLEMAN, JJ., concur.
SIMPSON, Justice.
The necessity of responding to the application for rehearing is doubted, since we treated every matter germane to this appeal on original deliverance. Nevertheless, in deference to the earnest argument of counsel, we will make a brief response.
It has already been pointed out that estoppel is out of consideration since, from the allegations of the substitute cross-bill, this defense must be availed of by special plea, and this appeal is from a decree only sustaining the demurrer going to the cross-bill as a whole.
Neither would it be proper to treat of those grounds of demurrer alleging laches, since such grounds were addressed to a certain aspect of the cross-bill, and as stated, the decree appealed from was one sustaining the demurrer to the cross-bill as a whole.
Hence, to discuss either of the foregoing mentioned defenses would at most be dictum, which the Court is not inclined to indulge in.
Finally, it is argued that the case of Steiner Bros. v. Slifkin, 237 Ala. 226, 186 So. 156, sustains the contention of the appellee that the fraud alleged and discussed in our original opinion is not pleadable in that it seeks to vary the terms of the written contract. That case is distinguishable from the instant one because, inter alia, the plea there held to be subject to demurrer was interposed in an action at law. The case at bar is in equity. The oft-cited case of Kennedy's Heirs and Executors v. Kennedy's Heirs, 2 Ala. 571, 592, points up some of the distinctions:
See also J. A. Fay & Egan Co. v. Independent Lumber Co., 178 Ala. 166, 59 So. 470; Randolph v. Randolph, 245 Ala. 689, 18 So. 2d 555; Fuller v. Scarborough, 239 Ala. 681, 196 So. 875; Seeberg v. Norville, 204 Ala. 20, 85 So. 505; and Morgan v. Gaiter, 202 Ala. 492, 80 So. 876.
Opinion extended and application overruled.
LIVINGSTON, C. J., and GOODWYN and COLEMAN, JJ., concur. | October 24, 1957 |
557be342-22f4-49d6-b810-c0fef084f8ab | James v. Todd | 103 So. 2d 19 | N/A | Alabama | Alabama Supreme Court | 103 So. 2d 19 (1957)
Buford JAMES et al.
v.
A. W. TODD, as Commissioner of Agriculture and Industries of the State of Alabama.
3 Div. 769.
Supreme Court of Alabama.
August 22, 1957.
Rehearing Denied June 5, 1958.
*21 Bowers, Dixon, Dunn & McDowell, Birmingham, and Sol E. Brinsfield, Jr., Montgomery, for appellants.
Joe T. Patterson, Atty. Gen., and W. E. McIntyre, Jr., Sp. Asst. Atty. Gen., for State of Mississippi, intervener.
John Patterson, Atty. Gen., Gordon Madison and Geo. O. Miller, Asst. Attys. Gen., for appellee.
Walter P. Gewin, Tuscaloosa, and Watkins C. Johnston, Montgomery, amici curiæ, in support of appellee.
MERRILL, Justice.
This is an appeal from a decree of the Circuit Court of Montgomery County, In Equity, holding constitutional Act No. 570, Acts of Alabama 1955, page 1239, listed as Tit. 22, §§ 231(6)-231(13), Pocket Part, Code of 1940.
The action was brought by one Tennessee and five Mississippi milk producers. It is a class action on behalf of other milk producers in those States who engage in the business of producing and selling milk to distributors who later sell and distribute milk and milk products in the State of Alabama. The bill of complaint asks for a declaratory judgment holding Act No. 570 unconstitutional and void. In addition, the bill prayed for a temporary restraining order pending decision and for a permanent injunction. A temporary restraining order was issued by Judge Jones on the date of the filing of the bill against the Commissioner of Agriculture and Industries, restraining him from enforcing the provisions of Act. No. 570. This restraining order remained in effect during the pendency of the action and until the rendering of the decision by the trial court.
*22 After the filing of the bill, the State of Mississippi was allowed to intervene as a party complainant.
The bill was amended several times and ultimately a hearing was had on the bill as amended and the respondent's answers. Considerable testimony was taken either ore tenus or by deposition on behalf of the complainants. The respondent offered no evidence. The decree of the trial court held Act. No. 570 to be constitutional and dissolved the temporary restraining order to be effective ten days after the date of the decree. Within that ten days, complainants applied for and obtained a reinstatement of the temporary restraining order from this court pending our decision in the cause.
The contentions raised by the assignments of error may be grouped as follows:
1. The Act is unconstitutional because it violates appellants' rights under the Fourteenth Amendment (the privileges or immunities, the due process and the equal protection clauses).
2. The Act is unconstitutional because it violates Section 2 of Article 4 of the Constitution of the United States, "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens of the several States.
3. The Act is unconstitutional because it violates the Commerce Clause of the Constitution of the United States Const. art. 1, § 8, cl. 3.
4. The rules and regulations promulgated by the Department of Agriculture and Industries under the law are unconstitutional.
5. The court erred in refusing to permit appellants to introduce testimony by members of the Legislature to show the intent and history of the legislation, the circumstances surrounding its adoption and the evil thereby sought to be remedied.
The question presented to us is whether or not Act. No. 570 is unconstitutional on its face. The only action taken by the respondent Todd, as Commissioner of Agriculture and Industries, under the Act was to promulgate the rules and regulations as provided in the Act. There has been no application or enforcement of the Act or of the rules and regulations because the Commissioner has been under injunction continuously and has been prevented from enforcing, applying or administering the Act.
Section 1 of Act No. 570 expressly states and declares its purpose:
Section 3 is, in part, as follows:
This is not a situation where a State statute must fall because Congress chose to exercise its paramount power to regulate commerce under that part of the Constitution of the United States which provides that the Congress shall have power to regulate commerce among the several States. Congress has not chosen to act in this field but, on the contrary, as stated in Milk Control Board of Pennsylvania v. Eisenberg Farm Products, 306 U.S. 346, 59 S. Ct. 528, 530, 83 L. Ed. 752, "* * * matters requiring diversity of treatment according to the special requirements of local conditions, the states remain free to act within their respective jurisdictions until Congress sees fit to act in the exercise of its overriding authority. One of the commonest forms of state action is the exercise of the police power directed to the control of local conditions and exerted in the interest of the welfare of the state's citizens." In the Eisenberg case, the Supreme Court of the United States recognized that the milk business is essentially local and, therefore, subject to the police power of the State. Early in the history of our country, Chief Justice Marshall said, speaking of inspection laws, that such laws are "a portion of that immense mass of legislation, which embraces everything within the territory of a State, not surrendered to the general government: all of which can be most advantageously exercised by the States themselves. Inspection laws, quarantine laws, health laws of every description, * * * are component parts of this mass." Gibbons v. Ogden, 9 Wheat. 1, 6 L. Ed. 23.
Under its police power, the State of Alabama is authorized to enact laws designed to protect the health of its citizens and more particularly where milk is concerned because of its nutritional importance to human beings and because of its susceptibility to contamination. Franklin v. State, 232 Ala. 637, 169 So. 295; Taylor v. State, 237 Ala. 178, 186 So. 463. The Legislature may even grant to a municipality the power to provide health regulations. Gilchrist Drug Co. v. City of Birmingham, 234 Ala. 204, 174 So. 609, 111 A.L.R. 103; Walker v. City of Birmingham, 216 Ala. 206, 112 So. 823. That adequate inspection laws are imperative is obvious in view of the fact that Alabama imports from Mississippi alone approximately fifty-two million pounds of milk annually.
Prior to 1955, there was no state agency with power to enforce health regulations pertaining to the handling, processing and production of milk within the State. The standards varied from county to county and the enforcement was at a local level. In the second extraordinary session of the 1955 Legislature, Act No. 65, Acts of Alabama 1955, p. 176, approved April 13, 1955, listed as Tit. 22, §§ 231(1)-231(5), Pocket Part, Code 1940, changed this status and provided for uniformity of enforcement. Under Act No. 65, no milk producer or distributor in Alabama or out of the State was permitted to do business in Alabama without first securing a joint permit from the state and county boards of health. Act No. 570 did not become effective until October 9, 1955.
It should be noted that the quoted part of Section 3 of Act No. 570 shows that the permits required under that Act are in addition to the permits required under Act No. 65, and all of the provisions of Act No. 65 remain in full force and effect.
Appellants urge that Act No. 570 is unconstitutional in many of the respects *24 indicated in the assignments of error because it applies only to milk produced outside Alabama, and does not apply to local and out-of-state milk as does Act No. 65.
Appellants rely on several cases which hold in effect that one State may not, under the guise of exerting its police power, discriminate against products of other States by requiring permits under inspection laws. These cases are distinguishable from the instant case in that they deal with the administration or enforcement of their respective statutes and not with the statute as viewed in the abstract or on its face. As previously noted, there has been no enforcement of Act No. 570 or of the rules and regulations promulgated thereunder. Examples of the cases cited by appellants are:
Dean Milk Co. v. City of Madison, 340 U.S. 349, 71 S. Ct. 295, 9 L. Ed. 329, where the appellant was denied a license to sell its milk products within Madison, Wis., solely because its pasteurization plants were more than five miles away.
Hood & Sons v. Du Mond, 336 U.S. 525, 69 S. Ct. 657, 93 L. Ed. 865, where the appellant was denied a license to operate a receiving depot where it took raw milk from farmers even though it met the requirements of the statute.
Baldwin v. G. A. F. Seelig, Inc., 294 U.S. 511, 55 S. Ct. 497, 79 L. Ed. 1032, 101 A. L.R. 55, where the appellant was denied a license as a milk dealer in New York City because it purchased milk produced in Vermont cheaper than the minimum price set for milk produced in New York State.
Miller v. Williams, D.C., 12 F. Supp. 236, where plaintiff, a manufacturer of ice cream in Philadelphia, was notified that his product could only be sold in Baltimore when there was a shortage of local ice cream since the contested regulation prohibited the sale of cream where it was produced from dairies more than fifty miles distant from Baltimore except in cases of emergency (a shortage of local cream).
Brimmer v. Rebman, 138 U.S. 78, 11 S. Ct. 213, 34 L. Ed. 862, where Rebman was convicted under a statute which forbade the selling of fresh meat in Virginia which had been slaughtered more than one hundred miles from the place it was offered for sale. The meat Rebman sold had been slaughtered in Illinois by his employer, Armour & Co.
State of Minnesota v. Barber, 136 U.S. 313, 10 S. Ct. 862, 34 L. Ed. 455, where Barber was convicted under a Minnesota statute for selling fresh meat in that state which had been slaughtered in Illinois, the statute having the effect of limiting sales of all fresh meat to that slaughtered in Minnesota.
Best & Co. v. Maxwell, 311 U.S. 454, 61 S. Ct. 334, 85 L.Ed 275, where the appellant paid under protest a tax required of one, not a regular retail merchant in the state, who displayed samples in temporary quarters.
Voight v. Wright, 141 U.S. 62, 11 S. Ct. 855, 35 L. Ed. 638, which was a suit to recover a license fee charged under a statute providing for inspection of flour shipped into Virginia when no inspection was required of flour manufactured in Virginia.
The reason for striking down the legislation in the foregoing cases was that the conditions imposed by the various statutes or ordinances made it practically impossible to import the goods into the State. Act No. 570 does not prevent out-of-state producers from shipping their milk into Alabama. The real requirement that they must meet is a reasonable onethat "such milk is produced and handled under sanitary conditions no less adequate in protection of public health" than milk produced in Alabama. Since Act No. 570 has never been put into operation, it cannot be said that there has been any improper application *25 of its provisions and requirements, except as to the rules and regulations promulgated under it. The Supreme Court of the United States has said with regard to cases of this nature that "the controlling test is found in the operation and effect of the statute as applied and enforced by the state." Gregg Dyeing Co. v. Query, 286 U.S. 472, 52 S. Ct. 631, 633, 76 L.Ed 1232. The rules and regulations are reasonable and we do not understand that appellants seriously contend that the rules and regulations are unconstitutional if the Act is valid.
Appellants insist that Act No. 65 provides for an adequate inspection by the inspectors of the state and county health departments, and that the inspection by the Department of Agriculture and Industries of out-of-state milk producers not only discriminates against them, but is a burden on interstate commerce.
The State Health Department has only five statewide inspectors, and it is their duty to inspect both Alabama and out-of-state producers and shipments under Act No. 65 and the rules and regulations under that Act. Each of Alabama's sixty-seven counties has a county health department and sixty-four counties have sanitarians or sanitary officers who check and inspect dairies in their respective counties. The three counties without sanitarians have little or no dairy industry. The work of the county sanitarians is checked by the five statewide inspectors. It is immediately apparent that milk produced in Alabama is inspected at both the local and the statewide level and the local inspectors are on the ground and their territorial limit is sufficiently small to make the inspection adequate. According to the evidence, there is no organization in the State of Tennessee to provide local inspection. It is undisputed that some out-of-state producers were stopped from shipping milk into Alabama after the passage of Act No. 65 and Act No. 570, based upon inspections of health department inspectors.
In view of the great quantity of milk imported into Alabama, we cannot agree that the furnishing of additional inspectors to inspect conditions under which out-of-state milk is produced is either discriminatory, arbitrary or so burdensome upon interstate commerce as to render the Act in question unconstitutional. Their sole objective should be to insure that out-of-state milk which is shipped into Alabama is produced under sanitary conditions no less adequate than that produced in Alabama. Every state police statute necessarily will affect interstate commerce in some degree, but such a statute does not run counter to the grant of congressional power merely because it incidentally or indirectly involves or burdens interstate commerce. Milk Control Board of Pennsylvania v. Eisenberg Farm Products, 306 U.S. 346, 59 S. Ct. 528, 83 L. Ed. 752; Mintz v. Baldwin, 289 U.S. 346, 53 S. Ct. 611, 77 L. Ed. 1245; Asbell v. State of Kansas, 209 U.S. 251, 28 S. Ct. 485, 52 L. Ed. 778; Reid v. State of Colorado, 187 U.S. 137, 23 S. Ct. 92, 47 L. Ed. 108.
The appellants seem fearful of what the Commissioner might do under Act No. 570. One of their main concerns centers around the provision in Section 6 of the Act which provides that permits shall be issued on a semi annual basis. Appellants insist that the permit should be on an annual basis. To more fully understand appellants' contention, it is necessary to give a brief background on the operation of the dairy businesses in question.
The supply of milk and its cost of production varies with the time of year. At the season of greatest production, the consumer demand is the lowest. In view of these facts, a system has been worked out which will insure that the distributor gets enough milk during the scarce season to supply the public demand, and in return that the producer, during the flush season or season of greatest milk production, will have a market for his milk and receive a fair price therefor. All the producer-complainants *26 are on a system called the "plant usage basis." This means that for each producer, there is established a quota (i. e., that amount of milk for which the producer will be paid the top price). This quota is established as the ratio of the amount of milk the producer sells to the distributor to the total amount of milk purchased by the distributor during the base or quota making periodSeptember through February, when the supply of milk is scarcest. This ratio is then applied for the next twelve months to the distributor's sales of fluid milk for human consumption (called Class I sales). For example, suppose the distributor purchases a total of 100,000 pounds of which producer A supplies 10,000 poundsA's quota is ten per cent. That means that for the next year, beginning March 1st, the producer receives the base price for ten per cent of the Class I sales made by the distributor to whom he sells his milk. Assume that Class I sales for any pay period (which is usually two weeks) are 100,000 pounds and producer A furnished 15,000 pounds. He receives the base price for 10,000 pounds and the surplus price for 5,000 pounds. Surplus milk is that used for the production of milk by-products, such as cheese, butter and ice cream. It is sufficient to say that a substantially less price is paid for this milk even though it may be the exact quality of milk which is used for drinking purposes. (For a similar explanation, see Attorney General Quarterly Reports, Volume 67, April-June, 1952, pages 47 and 48.) The theory behind this system of establishing quotas is to stabilize the economy of the milk business.
Appellants introduced testimony to the effect that it is not possible for a producer to stay in business as a producer of Grade A milk unless he is able to make his calculations on the basis of an annual quota. Conceding this, we fail to see the logic of appellants' arguments that since the permit under the Act is only of six months' duration that it will necessarily keep them from shipping milk into Alabama. The producer can still make his calculations on an annual basis and as long as the producer complies with the health regulations of Alabama, the Commissioner of Agriculture and Industries must continue to issue him a permit every six months. As to the initial permit, Section 7A of the Act provides that anyone holding a permit under the authority of Act No. 65 shall be entitled to receive one from the Commissioner, and the Commissioner shall have no authority to revoke such permit until an inspection of the premises has been made. The permit can only be revoked for violations of rules and regulations promulgated under the Act; the revocation must be in writing and any person deeming himself aggrieved by any action of the Commissioner under the Act, has a right to appeal to the Circuit Court of Montgomery County. The mere fact that the Commissioner might refuse to reissue a permit does not present this court with a justiciable question. In Highland Farms Dairy, Inc., v. Agnew, 300 U.S. 608, 57 S. Ct. 549, 553, 81 L. Ed. 835, a case involving the validity of a milk control board, it was said:
In Smith v. Cahoon, 283 U.S. 553, 51 S. Ct. 582, 585, 75 L. Ed. 1264, the Supreme Court declared:
The principle is otherwise stated"* * * We are not justified in declaring a statute unconstitutional merely because it offers an opportunity for abuses. * * *" State ex rel. Hannah v. Armijo, 38 N.M. 73, 28 P.2d 511, 516.
This court has, on many occasions, stated its position with regard to the interpretation of legislative enactments. We can only learn what the Legislature intended by what it has said, and have no right to stray into mazes of conjecture for an imaginary purpose in construing a statute, and where the language of a statute is unambiguous, the clearly expressed intent must be given effect, and there is no room for construction. State v. Bay Towing & Dredging Co., 264 Ala. 187, 85 So. 2d 890. Even when construction is necessary, our cases reaffirm the principle that where a statute is capable of two constructions, one which renders it valid and the other invalid, the construction which will uphold its validity must be adopted. Norton v. Lusk, 248 Ala. 110, 26 So. 2d 849, 4 Ala.Dig., Constitutional Law, 48. The principle is universal that legislation must be taken to be valid unless the contrary is made clearly to appear. Reid v. State of Colorado, 187 U.S. 137, 47 L. Ed. 108, 23 S. Ct. 92; State ex rel. Wilkinson v. Murphy, 237 Ala. 332, 186 So. 487, 489, 121 A.L.R. 283. The principle is stated in the latter case, by Justice Gardner, as follows:
Appellants have well stated the proposition in their brief as follows:
We think we have shown by the foregoing that the Act, on its face, is reasonable and that the intent and the effect of the Act, on its face, is not to prevent the importation of out-of-state milk in order to eliminate competition with local supplies.
In holding that Act No. 570 is not violative of appellants' constitutional rights, we wish to make it clear that while we do not agree with appellants' construction of a part of Act No. 570, we also warn that an attempted enforcement of the Act under such a construction would render such action under the Act unconstitutional. The pertinent part of appellants' brief states:
We cannot agree that Act No. 570 limits its permits to the actual shipment and transportation of milk, rather, we think the Act and the rules and regulations promulgated thereunder contemplate the issuance of a permit to any out-of-state producer whose milk is shipped or transported into Alabama.
The last grouping of the assignments of error relate to the action of the trial court in refusing to permit the introduction of testimony of four members of the Legislature concerning the consideration and passage of Act No. 570 by that body.
The questions to and the answers of the witnesses clearly show an attempt to have them express their conclusions as to the motive, purpose and intent of the Legislature in passing the Act, and to show that such were different from that expressed in Section 1 of the Act. In Morgan County v. Edmonson, 238 Ala. 522, 192 So. 274, 276, this court said:
See, also, May v. Head, 210 Ala. 112, 96 So. 869. The following from Wiseman v. Madison Cadillac Co., 191 Ark. 1021, 88 S.W.2d 1007, 1009, 103 A.L.R. 1208, is applicable:
See 2 Sutherland, Statutory Construction, § 5011, 3d Ed.; 82 C.J.S. Statutes § 354, p. 745.
The trial court correctly sustained the objections to the testimony of the members of the Legislature.
It follows that the decree of the lower court should be affirmed.
Affirmed.
LIVINGSTON, C. J., and SIMPSON and GOODWYN, JJ., concur. | August 22, 1957 |
d8f089d7-439d-40c6-87dc-8b85b844fa6d | Turner v. State | 96 So. 2d 303 | N/A | Alabama | Alabama Supreme Court | 96 So. 2d 303 (1957)
John TURNER
v.
STATE of Alabama.
5 Div. 642.
Supreme Court of Alabama.
June 20, 1957.
W. C. Hines, La Fayette, for appellant.
John Patterson, Atty. Gen., and Geo. D. Mentz, Asst. Atty. Gen., for the State.
PER CURIAM.
This is an appeal by defendant from a judgment of conviction of burglary in the first degree, and his punishment fixed at twenty-five years imprisonment in the penitentiary. The indictment was returned on the 8th day of September 1955. It contained two counts. One for burglary in the first degree, and the other undertook to charge grand larceny but was defective and eliminated on defendant's plea in abatement.
On September 13, 1955 defendant was duly arraigned and pleaded not guilty, having been represented by counsel. The court set the trial down for September 19, 1955, and ordered a special venire as required by law, and directed that a copy of the indictment be served on defendant as the law requires. The venire was drawn and on September 19, 1955 defendant and his counsel appeared and objected to trial on the ground that the copy of the indictment which had been served on defendant *304 contained an error and was not a true copy. The court thereupon reset the trial for September 22, 1955, and ordered a true copy of the indictment served on defendant. This was done accordingly and a correct copy served on defendant for one entire day prior to the trial. Section 63, Title 30, Code of 1940. On September 22, 1955 defendant objected to a trial because the court did not again arraign him after resetting the trial. This was unnecessary. Howard v. State, 165 Ala. 18, 50 So. 954; Davis v. State, 259 Ala. 212 (217), 66 So. 2d 714. The court properly overruled the objection.
The trial was then duly and regularly had with a jury of good and lawful men, resulting in a verdict of conviction of burglary in the first degree which fixed his punishment at twenty-five years service in the penitentiary. There was a judgment of conviction in due form except that it adjudged defendant guilty of robbery in the first degree. From that judgment defendant duly appealed to this court. Since that appeal was taken, the State, with this court's permission, filed a motion in the circuit court to amend the judgment nunc pro tunc so as to correct and make the judgment of conviction conform to the verdict of guilty of burglary instead of robbery. That motion was duly heard by the circuit court and was granted and the judgment corrected. All of that proceeding has been duly certified to this court. That was the proper procedure (Bailey v. State, 253 Ala. 553, 45 So. 2d 785; Lewis v. State, 10 Ala.App. 31, 64 So. 537), and the statutory requirements appear to have been observed. Sections 566, 567, Title 7, Code of 1940. In that respect there is no reversible error apparent.
The trial, as shown by the record, was regular in all respects and according to law. There was ample evidence of the commission of the crime by someone and it was sufficient for the jury to find that defendant was the guilty party.
At the close of the evidence for the State the defendant moved the court to exclude all of the state's evidence and discharge defendant, and then observed: "I will give you some grounds for it if you want them". There was apparently a discussion which is not set out in the record. The court then overruled the motion and defendant excepted. While the trial court will not be put in error for overruling such motion without setting out the grounds on which the motion is based (Carroll v. State, 36 Ala.App. 59, 52 So. 2d 171; Sullivan v. State, 38 Ala.App. 340, 83 So.2d 259), as we have stated, the evidence was sufficient to base a finding by the jury that the crime was committed by defendant. There was no error in overruling the motion. The defendant then proceeded to introduce testimony all in regular order.
The trial was conducted throughout in a most orderly manner, extending to defendant all his rights and privileges. Such objections to questions and evidence as defendant made were either sustained or were clearly of no avail and were properly overruled. The oral charge was clear and complete with no objection or exception to any feature of it.
There is in the record following the oral charge a heading: "Written charges requested by defendant before the jury retired and refused". Four charges are then set out and numbered one to four, inclusive. But the record does not show that the judge marked them "refused" and signed his name on them. This is required by section 273, Title 7, Code of 1940, to cause them to become a part of the record and subject to review. So that we cannot review these charges on this appeal. Berry v. State 231 Ala. 437, 165 So. 97. However, we find that if they had been duly acted on and marked by the judge they were refused without error.
We have read carefully the entire record and duly considered every ruling as required of us in such cases, though there is *305 no brief for appellant and of course no assignments of error. Section 389, Title 15, Code of 1940.
The judgment should be affirmed.
The foregoing opinion was prepared by FOSTER, Supernumerary Justice of this Court, while serving on it at the request of the Chief Justice under authority of Title 13, section 32, Code, and was adopted by the Court as its opinion.
Affirmed.
All the Justices concur, except STAKELY, J., not sitting. | June 20, 1957 |
ea2636ff-b28c-4bb9-9c06-a78f3f637586 | City of Montgomery v. Mott | 96 So. 2d 766 | N/A | Alabama | Alabama Supreme Court | 96 So. 2d 766 (1957)
CITY OF MONTGOMERY
v.
James C. MOTT et al.
3 Div. 804.
Supreme Court of Alabama.
August 22, 1957.
*767 Walter J. Knabe and Drayton N. Hamilton, Montgomery, for appellant.
Calvin M. Whitesell, Montgomery, for appellees.
LAWSON, Justice.
On appeal to the circuit court, the amount of the paving assessment on appellees' property as fixed by the Board of Commissioners of the City of Montgomery was materially reduced. After its motion for a new trial was overruled, the city appealed to this court.
There are twenty-five assignments of error, none of which are referred to by number in the brief filed here on behalf of the appellant. Appellees insist that their motion to dismiss should be granted because of the failure of appellant to file in this court a brief in compliance with Supreme Court Rule 9, Code 1940, Title 7, Appendix, 1955 Cumulative Pocket Part, which prescribes the form and contents of briefs filed in this court by appellants. The brief filed here on behalf of the City of Montgomery does not strictly conform to the aforementioned rule in all respects, yet we do not feel that the defects in the brief warrant a dismissal of the appeal. Simmons v. Cochran, 252 Ala. 461, 41 So. 2d 579. We have condoned noncompliance with the rule in question when the record is short and simple and when a strict compliance with the rule is not essential to an understanding of the assignments of error which are argued in appellant's brief. Kendall Alabama Co. v. City of Fort Payne, 262 Ala. 465, 79 So. 2d 801; Wood v. Wood, 263 Ala. 384, 82 So. 2d 556, and cases cited.
On the trial in the circuit court the City of Montgomery introduced in evidence a transcript of all of the proceedings of the city relating to the assessment against appellees' property and then rested its case. The introduction of that transcript constituted prima facie evidence of the correctness of the assessment. Section 549, Title 37, Code 1940; Hamrick v. Town of Albertville, 219 Ala. 465, 122 So. 448. The property owners introduced the testimony of four witnesses. The city introduced no further testimony.
The only question litigated on appeal to the circuit court was the increase in value, if any, of appellees' property by reason of the special benefits derived from the improvements, and whether or not the assessment exceeded such increased value.
*768 The burden of proof was upon the appellees to show that the assessment in the amount of $1,048.61 was excessive. Sloss-Sheffield Steel & Iron Co. v. City of Birmingham, 201 Ala. 542, 78 So. 896; Stovall v. City of Jasper, 218 Ala. 282, 118 So. 467.
The witnesses called by the appellees gave testimony to the effect that the improvements made by the city did not increase the value of appellees' property in any amount. The city offered no evidence to the contrary, being content to rely solely on the presumption of correctness raised by the introduction in evidence of the transcript of the proceedings before the Board of Commissioners. The jury found from the evidence that appellees' property had been improved in the sum of $200 by reason of the special benefits derived from the improvements made by the city and gave a verdict for the city in that amount. The judgment was in accord with that verdict.
A jury question was clearly presented and the trial court did not err in refusing to direct a verdict in favor of the city. The unnumbered written charge which the city treats in brief as being the general charge with hypothesis is not so framed. It requests a directed verdict without any reference to the evidence.
We cannot say that the trial court committed reversible error in overruling grounds of the city's motion for new trial which take the point that the verdict was contrary to the weight of the evidence. The question of enhancement vel non was one for the jury's determination and the verdict should not be disturbed unless palpably wrong. The decision of the trial court, refusing to grant a new trial on the ground that the verdict was contrary to the weight of the evidence, will not be reversed unless, after allowing all reasonable presumptions of its correctness, the preponderance of the evidence against the verdict is so decided as to clearly convince the court that it is wrong and unjust. City of Ozark v. Byrd, 225 Ala. 332, 143 So. 168, and cases cited.
The city's written charges 2, 3 and 4 were refused without error. The principle of law stated in those charges was fairly and substantially covered by given charge 1 requested by the city and by the court's oral charge. Section 273, Title 7, Code 1940; Mobile City Lines v. Alexander, 249 Ala. 107, 30 So. 2d 4; City of Bessemer v. Clowdus, 261 Ala. 388, 74 So. 2d 259; Walker v. Coley, 264 Ala. 492, 88 So. 2d 868.
The trial court did not commit reversible error in giving written charges 12 and 14 at the request of appellees. Those charges are substantially in the same language as charge 10 held to have been given without error in City of Tuscaloosa v. Hill, 14 Ala.App. 541, 69 So. 486, certiorari denied 194 Ala. 559, 69 So. 598. See Duke v. City of Anniston, 5 Ala.App. 348, 60 So. 447. If the appellant conceived that these charges had a tendency to mislead, explanatory charges should have been requested. City of Ozark v. Byrd, 225 Ala. 332, 143 So. 168.
We do not think the trial court should be held to have erred in permitting witness Collins to testify that all of the property owners involved in the paving on Patton Avenue interposed their objections and protests at a hearing held by the city on August 17, 1954, inasmuch as the transcript introduced by the city contains a statement to the effect that a majority of those owners appeared at that hearing and voiced their approval. The situation here is unlike that presented in City of Ozark v. Byrd, supra.
The judgment of the trial court is affirmed.
Affirmed.
LIVINGSTON, C. J., and SIMPSON, GOODWYN, MERRILL and COLEMAN, JJ., concur. | August 22, 1957 |
ca64a431-bc54-45ce-a874-947ae94d0066 | Bond's Jewelry Company v. City of Mobile | 97 So. 2d 582 | N/A | Alabama | Alabama Supreme Court | 97 So. 2d 582 (1957)
BOND'S JEWELRY COMPANY, Inc.
v.
CITY OF MOBILE.
1 Div. 618.
Supreme Court of Alabama.
October 24, 1957.
*583 Chris C. Delaney, Mobile, for appellant.
Vincent F. Kilborn and Fred Collins, Mobile, for appellee.
LIVINGSTON, Chief Justice.
This is a declaratory judgment action to test the constitutionality of Section 766, as amended, of Article 2 of Chapter 73 of the Code of Ordinances of the City of Mobile of 1947.
The ordinance in question, in substance, prohibits the sale or disposition at auction within the City of Mobile any gold, silver, plated ware, precious stones, watches, clocks, jewelry, bric-a-brac, china or glassware during the months of November and December.
The bill avers:
Section 166 of Title 7, Code of Alabama 1940, provides as follows:
At the threshold, we are met with the fact that the record before us fails to disclose a compliance with the provisions of Section 166, Title 7, supra.
Under the holding of this court in Wheeler v. Bullington, 264 Ala. 264, 87 So. 2d 27, 29, the allegations of the bill in the instant case require service of "a copy of the proceeding" on the Attorney General.
In Wheeler v. Bullington, supra, it was held:
*584 It is clear, therefore, that the trial court never acquired jurisdiction to render the decree appealed from, and said decree is void. The absence of jurisdiction is apparent on the face of the record.
A void decree will not support an appeal; this court can acquire no jurisdiction on such an appeal even by consent of the parties; it must take notice of its own want of jurisdiction apparent on the record. Craig v. Root, 247 Ala. 479, 484, 25 So. 2d 147, 152; 2 Ala.Dig., Appeal and Error, 23, and authorities there cited.
The decree of the lower court being void on its face, this court is without jurisdiction to entertain this appeal, and the same must be dismissed.
Appeal dismissed.
LAWSON, MERRILL and COLEMAN, JJ., concur. | October 24, 1957 |
20eca50c-b367-467f-beb7-42cccbe1ee53 | Mulkin v. McDONOUGH CONSTRUCTION COMPANY OF GA. | 95 So. 2d 921 | N/A | Alabama | Alabama Supreme Court | 95 So. 2d 921 (1957)
Hilda MULKIN
v.
McDONOUGH CONSTRUCTION COMPANY OF GEORGIA.
6 Div. 67.
Supreme Court of Alabama.
May 9, 1957.
Rehearing Denied June 20, 1957.
J. Edmund Odum and John T. Batten, Birmingham, for appellant.
Huie, Fernambucq & Stewart, Birmingham, for appellee.
MERRILL, Justice.
Appellant sued appellee for alleged injuries to her combination residence and store building, known as the Pittsburg Grocery, at Robinwood Station in Jefferson County. The complaint at last amended contained six counts, three charging simple negligence, two wantonness and one trespass. The alleged injuries were claimed to have resulted from blasting operations which appellee was conducting while excavating a ditch for a gas main in the street near the property of appellant.
The cause was submitted to the jury on all six counts and verdict was for the defendant. Appellant's motion for a new trial was overruled, and she appealed.
The argued assignments of error are listed in brief of appellant. The first two read:
These are not adequate assignments of error; they allege no error on the part of the trial court. Only adverse rulings of the trial court are subject to an assignment of error and reviewable on appeal. Clark v. Hudson, Ala., 93 So. 2d 138; King v. Jackson, 264 Ala. 339, 87 So. 2d 623; Central of Georgia R. Co. v. McDaniel, 262 Ala. 227, 78 So. 2d 290; Life & Casualty Insurance Co. of Tennessee v. Womack, 228 Ala. 70, 151 So. 880. However, the last assignment of error is a proper one. It states that the court erred in overruling appellant's motion for a new trial. This assignment of error brings up all questions of law and fact sufficiently set forth in the motion and argued on appeal. Roan v. McCaleb, 264 Ala. 31, 84 So. 2d 358. The motion for a new trial contained grounds identical to the attempted assignments of error, numbered 1 and 2, supra, so we consider these grounds under the last assignment of error.
Appellant's store occupied the first floor of the building and the living quarters were on the second floor. The construction was of concrete blocks on a cement foundation. There is no question but that there was a wide crack in the wall of the building and some large plaster cracks inside; there were places where the sheet rock had torn loose and leaks in the roof where the crack in the wall had appeared at the junction with the flashing. Appellant adduced evidence that these defects were the result of two dynamite blasts set off by defendant while excavating for the gas line. Appellee's evidence was to the effect that the injuries were not caused by the blasting, but by the subsidence or settling of one corner of the building, and that the cracks in the wall existed prior to the blasting.
This decided conflict in the evidence could have been decided either way. The jury decided the issue in favor of the appellee. The verdict was not contrary to the evidence.
Appellant argues that the verdict was contrary to law in connection with the trespass count. Appellant insists that the jury verdict was contrary to the following part of the court's oral instructions, which, it is conceded, correctly states the law:
Appellant's evidence was to the effect that stones and debris were thrown on her building and property as a result of the blasting in the street, and that a blasting mat was not used when one of the blasts was set off. But appellee adduced evidence from which the jury could reasonably infer that no stones or debris were thrown on appellee's property and that the blasting mat was used on all occasions of blasting.
The jury, confronted with this conflict, chose to believe appellee's witnesses. This was the jury's prerogative and the exercise of it was not contrary to law. Conflicting *923 statements are for the jury's determination, Pound v. Gaulding, 237 Ala. 387, 187 So. 468, and the credibility of testimony is for the jury. Liberty National Life Insurance Co. v. House, 242 Ala. 322, 6 So. 2d 412.
Where there is evidence on both sides, or some evidence supports the verdict, it should not be set aside because it may not correspond with the opinion of the court as to the weight of the testimony or because it is against the mere preponderance of the evidence. Gulf, M. & O. R. Co. v. Sims, 260 Ala. 258, 69 So. 2d 449; Smith v. Smith, 254 Ala. 404, 48 So. 2d 546; Bell v. Nichols, 245 Ala. 274, 16 So. 2d 799.
Also, we have said that where there is evidence, which, if believed, justified the verdict, the motion for a new trial is properly overruled. Atlantic Coast Line R. Co. v. Dunivant, Ala., 91 So. 2d 670.
The motion for a new trial was properly overruled. Authorities supra.
Affirmed.
LIVINGSTON, C. J., and LAWSON and STAKELY, JJ., concur. | May 9, 1957 |
9893178f-e795-46a9-8516-8906889f4cb3 | Brugh v. White | 103 So. 2d 800 | N/A | Alabama | Alabama Supreme Court | 103 So. 2d 800 (1957)
Bessie Dandridge BRUGH et al.
v.
Olive W. WHITE et al.
2 Div. 344.
Supreme Court of Alabama.
June 27, 1957.
Rehearing Denied June 19, 1958.
*801 Jones, McEachin & Ormond, Tuscaloosa, for appellants.
Jas. S. Coleman, Jr., Eutaw, and Ira D. Pruitt, Livingston, for appellees.
LIVINGSTON, Chief Justice.
On October 16, 1952, the City of Eutaw filed in the Probate Court of Greene County, Alabama, its petition of condemnation of certain real property situated in the City of Eutaw, in Greene County, Alabama, for the purpose of establishing a public park on said land.
On December 30, 1952, the Probate Court of Greene County entered a decree of condemnation of said real property and fixed the amount of damages and compensation for the owners of the said real estate at the sum of $4,000. Said cause was appealed to the Circuit Court of Greene County, and on April 11, 1953, the Circuit Court entered an order of condemnation of said real estate, fixing the amount of damages and compensation for the owners of the said real estate at the sum of $5,500 by which judgment the City of Eutaw acquired title to the real estate in question. After payment of court costs, the net balance due the former owners of the land so condemned was $5,457.50, this net fund being in the hands of the circuit clerk for distribution among the owners thereof, who were formerly the owners of the condemned land.
The land condemned by the City of Eutaw was formerly owned by Ella W. Cameron, deceased, who died in 1941 leaving a last will and testament by which she devised the real estate in question as follows:
This will was duly probated on the 15th day of July, 1941.
The appellants, life tenants of the proceeds of condemnation of the real estate condemned by the City of Eutaw, filed a sworn application in the Circuit Court of Greene County, Alabama, which as last amended, offered to have the value of their interests considered and adjudged together and prayed that the value of both of their life estates be determined and paid to them as provided by Sec. 64(1) of Title 47, Cum. Pocket Part of the 1940 Code. The appellees' answer to the application, as last amended, denied that the appellants were entitled to have the value of their life interests in the fund ascertained and distributed as set forth in the appellants' application, and prayed that the appellants be granted only the use of the fund for life and thereafter that the entire fund be paid and distributed to the appellees who are living at that time. The appellants, separately and severally, demurred to the answer of the appellees.
On August 24, 1954, the cause and the appellants' application as last amended were argued and heard in the Circuit Court of Greene County, and on September 18, 1954, the court rendered its final decree and judgment in this matter. The court held that Sec. 64(1), Title 47, Cum. Pocket Part of the 1940 Code, which was approved on July 9, 1945, did not apply to the situation involved in this case; that said statute is unconstitutional in so far as it attempts to provide a method of distribution of the money involved in this proceeding; that the rights of the parties became fixed before the passage of said statute, and the passage of said statute did not change the status of any of the parties hereto in relation to the property involved herein; and that the surviving remaindermen mentioned in said will had a substantive or vested right in the condemnation award subject only to the right of the life tenants to the income thereof until the death of the last surviving life tenant. Thereupon the appellants appealed and assigned as error this ruling.
First, are the remainder interests created by the will of Ella W. Cameron, deceased, vested or contingent? The words creating the various interests are as follows:
In Kumpe v. Coons, 63 Ala. 448, at page 452, there was a devise of lands to a married woman for life "and after her death to her children then living," Justice Brickell stated:
Kent's definition was again relied on in Gindrat v. Western Railway of Alabama, 96 Ala. 162, 11 So. 372, 19 L.R.A. 839, where the words creating the remainder interest were: "said premises shall still be held in trust for her three children, to wit, Abraham Gindrat, Mary Elizabeth *803 Winter, and William B. Gindrat, for and during the term of their natural lives, and at their death the same shall vest in the heirs at law or children of them, * * * that may be living at the time of their deaths." Justice McClellan stated, 96 Ala. at page 170, 11 So. at page 375:
In Smaw v. Young, 109 Ala. 528, 20 So. 370, the court, speaking through Justice McClellan, acknowledged that in Kumpe v. Coons, supra, and Gindrat v. Western Railway, supra, they had been misled by Chancellor Kent, in that the definition of a vested remainder relied on in those cases originated in the Revised Statutes of New York and was not a correct statement of the common law. It was stated, 109 Ala. at page 542, 20 So. at page 376:
The majority of the court, though realizing that Kent's definition could not be sustained on principle, were unwilling to overrule the Kumpe and Gindrat cases on the ground that they had "established a rule of property in the state which should not now be overturned."
A legislative definition of vested and contingent remainders was incorporated in the Code of 1907, § 3401 (now Title 47, § 140, Code of 1940):
In Lyons v. Bradley, 168 Ala. 505, 53 So. 244, 247, Justice Sayre stated:
For the proposition that the remainder interest of the appellees vested at the death of the testator, the appellees cite the cases of Thorington v. Thorington, 111 Ala. 237, 20 So. 407, 36 L.R.A. 385; Acree v. Dabney, 133 Ala. 437, 32 So. 127; Duncan v. De Yampert, 182 Ala. 528, 62 So. 673; and Braley v. Spragins, 221 Ala. 150, 128 So. 149. Thorington v. Thorington, supra, and Acree v. Dabney, supra, were decided prior to 1907 following the cases adopting Chancellor Kent's definition, and in that regard are no longer the law in this state. In Duncan v. De Yampert, supra [182 Ala. 528, 62 So. 674], the words creating the remainder interest were "but at his death to be equally divided between the heirs of his body, but should he die without leaving a child or *804 children, in that event he shall have the right to dispose of the lands herein devised to him and the heirs of his body in any manner he may see fit." The court held that this created a vested remainder in the children of the life tenant at the death of the testator. Justice Sayre stated, 182 Ala. at page 537, 62 So. at page 676:
This case in no way upholds the appellees' contention that the remainder interest in the present case vested at the death of the testator. Moreover, Duncan v. De Yampert, supra, was governed by the law as it existed prior to the adoption of what is now Sec. 140, Title 47, supra. Mudd v. Lanier, 247 Ala. 363, 24 So. 2d 550. Likewise, the case of Braley v. Spragins, supra, does not support the appellees' contention. In that case, there was a devise to the testator's sisters for their lives, and upon the death of either to the survivor, and upon the death of both, the testator's niece was to receive all the property that the sisters had not disposed of during their lifetime. The court held that the remainder interest vested in the niece upon the death of the testator, for there was no condition precedent to its vesting, but the mere possibility that it could be defeated by a subsequent act.
The law favors the early vesting of estates, and unless the intent to postpone the vesting of an estate is clear from the face of the will, this court will construe a remainder as vested rather than contingent. George v. Widemire, 242 Ala. 579, 7 So. 2d 269; Wright v. City of Tuscaloosa, 236 Ala. 374, 182 So. 72; McGlathery v. Meeks, 219 Ala. 89, 121 So. 67.
Professor Gray, in the 4th Edition of the Rule Against Perpetuities, in § 108, states:
See, also, Crawford v. Carlisle, 206 Ala. 379, 89 So. 565.
In George v. Widemire, supra [242 Ala. 579, 7 So. 2d 274], this court held that a devise "To my four children or their heirs any * * * property left from my estate at the death of my wife * * * and at her death make a complete settlement with my other children or their heirs," showed a clear intent to create a contingent remainder. If was stated, 242 Ala. at page 587, 7 So. 2d at page 275:
In Wright v. City of Tuscaloosa, supra, this court held that a devise to the "lineal descendants" of the life tenant showed a clear intent that the children of the life tenant have a contingent remainder during the *805 life estate, for until the death of the life tenant his lineal descendants could not be ascertained. A devise to persons "then living" has been held to show a clear intent to create a contingent remainder. See 1 Simes & Smith, Future Interests (2d Ed. 1956), § 153, and cases cited on page 175 in footnote 42. A devise to persons "who may be living, or surviving, at the time" has been held to show a clear intent to create a contingent remainder. See L.R.A., 1917D, 601, and cases cited on page 605 in footnote 16.
In the present case, the appellees have a remainder interest contingent upon their surviving the appellants.
Owners of property taken by the power of eminent domain must be justly compensated. Alabama Constitution 1901, Sections 23 and 235. Life tenants and remaindermen, whether the remainder interest is contingent or vested, have interests which entitle them to compensation. Denson v. Alabama Polytechnic Institute, 220 Ala. 433, 126 So. 133; Department of Public Works and Buildings v. Porter, 327 Ill. 28, 158 N.E. 366; Callison v. Wabash Ry. Co., 219 Mo.App. 271, 275 S.W. 965; Miller v. City of Asheville, 112 N.C. 759, 16 S.E. 762, 763; Charleston & W. C. Ry. Co. v. Reynolds, 69 S.C. 481, 48 S.E. 476; 2 Nichols, Eminent Domain, § 5.22 (3d Ed. 1950); 2 A.L.R. 786, 792; Corrigan v. City of Chicago, 144 Ill. 537, 33 N.E. 746, 21 L.R.A. 212, 219.
Unquestionably it is no defense to condemnation that the lands sought to be condemned are owned by two or more, or that their interests are not the same kind of interest or estate. It is also undeniable that the funds derived from condemnation stand in lieu of the lands condemned and must be fairly apportioned so as to care for and protect all such interests. It is not contemplated that such funds are to remain static or undisposed of in the hands of the court.
In 1 Orgel, Valuation under Eminent Domain (2d Ed. 1953), § 118, p. 510, it is said:
Sec. 64(1), Title 47, Cum. Pocket Part, Code of Alabama 1940, gives a life tenant or a remainderman a right to demand that the condemnation award be apportioned in a particular manner. It provides:
This statute is mandatory.
The circuit court in which the condemnation was effected has jurisdiction and power to distribute the fund paid into court to the parties entitled thereto, Sec. 26, Title 19, Code of 1940, and in doing so it is required by Sec. 64(1), Title 47, Cum. Pocket Part, Code of 1940, on the sworn application of any person owning a life interest (or any remainderman or reversioner), to ascertain the present value of such life estate, and to pay to the owner of the life interest in cash the value of such interest, the remainder to be paid to the reversioners or remaindermen. This is by virtue of the foregoing act approved July 9, 1945 (Act No. 446, Gen. Acts 1945, p. 684). That act provides machinery for a determination of the issues involved, and also provides for an appeal to this court from the final judgment. Prior to that statute, there was no provision of law for commuting the life interest of one of the parties and paying the present value of it in cash. Without a statute to authorizing, this could not be done except by consent of all parties interested. Chapman v. York, 212 Ala. 540, 103 So. 567; Kelly v. Deegan, 111 Ala. 152, 20 So. 378; Etheredge v. Etheredge, 219 Ala. 660(10), 123 So. 48; Beavers v. Smith, 11 Ala. 20, at page 30; Compton v. Cook, 259 Ala. 256(12), 66 So. 2d 176, 102 A.L.R. 973.
It is said in Kelly v. Deegan, supra, and quoted in Chapman v. York, supra [212 Ala. 540, 103 So. 569]: "`The donor intended that on the expiration of the life estate, the entire fee, and no lesser interest should pass to the remainderman, and this intention it is the duty of the courts to preserve and effectuate and not to defeat.'"
We think that a statute enacted subsequent to an event which changes the property rights of the owners would serve to violate this principle protected by due process. But a condemnation proceeding does not change property rights as such; it merely changes lands to money.
In determining whether a statute giving a condemnor the right of entry pending an appeal from a preliminary assessment of damage is constitutional, this court, in Opinion of the Justices, 259 Ala. 524, 67 So. 2d 417, 420, said:
In the instant case, the will of the testator provided for life estates and remainders. They must so remain except by mutual agreement. But the Act of 1945, supra, we think, does not serve to change the property rights of the various parties, nor their tenure, for reasons which we shall now undertake to explain. The act was passed prior to the condemnation proceeding which converted land into money, but after the death of the testator and the probate of her will. The relation of the parties to the money should be the same as it was to the land before the condemnation. It must not be changed either by legislation (Act of 1945, supra), nor by the court in administering that act. We think it can be administered so as to preserve their respective property rights.
The first step to be pursued at the instance of Mrs. Brugh, whose life estate vested on the death of the testator, is to fix the present value in cash of that life estate. That is not a difficult step. First, ascertain her probable life expectancy; then the present value of the use of money, including its prospective value during her life expectancy; then on those figures compute the present value of Mrs. Brugh's life interest. The result is the amount to be paid to Mrs. Brugh in complete ownership. The statute, supra, provides that the balance shall be paid to the remaindermen or reversioners. That means as their interest and rights appear.
"Any number of estates, each less than the fee, may precede the remainder, in which case each estate in the series will be a remainder to all which precede it and a particular estate to all which follow." 21 C.J. Estates § 143, p. 990; 31 C.J.S. Estates § 78; 33 Am.Jur. p. 516.
Clearly, Mrs. Bethany is a contingent remainderman, dependent upon whether she outlives Mrs. Brugh. Assume first that she outlives Mrs. Brugh, and therefore her interest thereby became vested, effective during her life. During the life of Mrs. Brugh and after payment to her of her share, there is then no remainderman whose interest has vested. So that, the balance of the fund, after paying Mrs. Brugh, should be invested so as to produce during the life expectancy of Mrs. Brugh an amount approximately equal to the cash value of her life interest. Those two figures should be so fixed that one will approximately equal the other. In that way, when Mrs. Brugh dies, the invested fund will be equal to what it was to start with. Mrs. Bethany will then be entitled to the use of the fund for her life if she is still living. At the death of Mrs. Bruth, Mrs. Bethany could apply to the court to fix the then present value of her life interest in the fund as was before done for Mrs. Brugh. When it is paid to Mrs. Bethany, there will be a balance remaining. The Act of 1945, supra, provides that this balance is then payable to the remaindermen, but the remaindermen are uncertain until the death of Mrs. Bethany. None of them will take unless they are living at the time of the death of Mrs. Bethany. The balance of the fund should produce income equal, at the death of Mrs. Bethany, to the amount paid her for her interest. So that, when the remaindermen are ascertainable (at the death of Mrs. Bethany), the fund should be the same as it was when it started. It will be approximately that if the steps here outlined are strictly observed.
*808 If Mrs. Bethany dies before Mrs. Brugh, the share of the remaindermen will be payable to them at that time because their share will vest at the death of Mrs. Bethany. Until then, the fund will (or should) produce an amount sufficient to adjust all interests according to their respective rights.
The foregoing proceeding, accurately followed, will result in every interested person getting the share provided for him or her by the will in respect to the tract involved.
The fund here in question came into the custody of the court in a proceeding within its jurisdiction, and the circuit court possesses plenary power to order the distribution of the fund between the parties according to their respective interest. Sec. 26, Title 19, supra. City of Birmingham v. Hudson, 222 Ala. 332, 132 So. 1. Some of the interests are contingent, as we have shown. The circuit court has plenary power to invest the funds of such interest to abide the time for their distribution. This it may do through trustees, or otherwise, having due regard for their safety and ultimate distribution, in order to preserve and effectuate the intention of the donor.
For the foregoing reasons, we think the lower court erred in holding that Sec. 64(1) of Title 47, Code of 1940, did not apply in the situation involved in this case; that the statute was unconstitutional in so far as it attempts to provide a method of distribution in this case; that the rights of the parties became fixed before the passage of the statute, and that the appellees had a substantive or vested right in the condemnation award subject only to the right of the life tenants to the income thereof until the death of the last surviving life tenant. Therefore, the ruling of the lower court must be reversed and the cause remanded with instructions for the trial court to make distribution as indicated in the opinion.
Reversed and remanded with instructions.
SIMPSON and STAKELY, JJ., concur.
GOODWYN, J., concurs in the result.
LAWSON and MERRILL, JJ., dissent as indicated.
COLEMAN, J., having been of counsel on the trial of the cause, in the court below, did not participate.
LAWSON, Justice (dissenting).
I feel constrained to dissent. The opinion of the court neither distinguishes nor overrules our cases which hold in effect that the provisions of Sections 75-87, Title 58, Code of 1940 (The Principal and Income Act), have no application where the life estate came into being before the enactment of those provisions. See Toolen v. Amos, 259 Ala. 346, 67 So. 2d 8; Dillard v. Gill, 254 Ala. 5, 47 So. 2d 203. Also see First National Bank of Mobile v. Wefel, 252 Ala. 212, 40 So. 2d 434, and First National Bank of Birmingham v. Jaffe, 239 Ala. 567, 196 So. 103. Some of the cases just cited above are called to our attention in brief of appellees, and I think it clear that the trial court relied on the reasoning of those cases in reaching the conclusion which it did in this case. Inasmuch as I have not had an opportunity since this opinion was considered in conference to make a thorough analysis and comparison of those cases with the instant case and the opinion of the court makes no reference to the holdings of those cases, I feel that I should record my dissent at this time. I might add, however, that there are other matters in the court's opinion which I think might well be reconsidered. For instance, the only reason given for the conclusion that Mrs. Bethany is a contingent remainderman is expressed in this sentence: "Clearly, Mrs. Bethany is a contingent remainderman, dependent upon whether she outlives Mrs. Brugh." It seems to me that this sentence, standing alone, indicates that the court is now of the opinion that all remaindermen are contingent inasmuch as *809 their right of enjoyment is dependent upon their outliving a life tenant. I do not understand that to be the law. It may be that the majority does not intend to so hold, but certain it is that no reason is given in the opinion other than that as to why Mrs. Bethany is held to be a contingent remainderman.
MERRILL, Justice (dissenting).
The testatrix died in 1941. At that time, Mrs. Brugh, Mrs. Bethany and the nieces and nephews were living and "in esse." The law in effect at that time provided that the life tenants should have the income from the property, but the remaindermen, on the termination of the life estates, were and are entitled, under the will, to the undiminished body of the estate. To change this by giving effect to a statute which did not become effective until July 9, 1945, to me smacks of ex post facto, but since that term is generally used in connection with criminal law, it may be better said that certainly the act, as applied by the majority, is retrospective in application. I, therefore, dissent. | June 27, 1957 |
0332879c-7fd0-410e-a85f-3282a3176b68 | West Town Plaza Associates, Ltd. v. Wal-Mart Stores, Inc. | 619 So. 2d 1290 | 1910508 | Alabama | Alabama Supreme Court | 619 So. 2d 1290 (1993)
WEST TOWN PLAZA ASSOCIATES, LTD., et al.
v.
WAL-MART STORES, INC.
1910508.
Supreme Court of Alabama.
January 15, 1993.
Rehearing Denied April 9, 1993.
*1291 Jesse P. Evans III and Rachel J. Moore of Najjar Denaburg, P.C., Birmingham, for appellants.
Steven A. Benefield and Deborah Alley Smith of Rives & Peterson, Birmingham, for appellee.
ALMON, Justice.
This is an appeal from injunctive relief granted to Wal-Mart Stores, Inc., requiring West Town Plaza Associates, Ltd.,[1] to remove a building constructed in the parking lot of the West Town Plaza Shopping Center. *1292 West Town Plaza raises three issues: (1) Whether Wal-Mart, as sublessee, has standing to enforce against the assignee of the lessor an easement granted under the original lease and subsequently incorporated by reference into the sublease agreement; (2) Whether the trial court erred when it construed the lease and sublease agreements to grant Wal-Mart an easement for automobile parking in the parking lot, rather than a right to a minimum number of parking spaces; and (3) Whether the trial court plainly and palpably erred in ordering the removal of a structure located in a parking lot over which Wal-Mart held an easement.
West Town Plaza Associates is the owner of a shopping center in which Wal-Mart, as a sublessee, is a tenant. The original owner and builder of the shopping center executed a lease to F.W. Woolworth Company for space to operate a retail department store (the "Overlease"). Woolworth later subleased the building to Wal-Mart (by a document we will call the "Sublease"). The original owners of the shopping center then transferred their reversionary interest to West Town Plaza, and Woolworth assigned its interest as sublessor to Pine Properties, Inc.
The Overlease between the original owners and Woolworth granted to the lessee Woolworth an easement for automobile parking in the parking lot of the shopping center. Article 2 of the Overlease defined the leased premises as follows:
Articles 27 and 28 of the Overlease contain the language whose meaning the litigants now dispute. In Article 27 the original landlord agreed to complete construction of, among other things, "Common Facilities":
(Emphasis added.)
Article 28 specifically grants to the tenant a common or non-exclusive easement to use all "aforementioned Common Facilities, *1293 including but not limiting the same to ... the use for automobile parking, of the areas designated as Parking Area":
Each of these provisions and various others in the Overlease refer to the "Schedule `A'" drawing to define terms. This drawing describes, by metes and bounds, the locations of the "Building Area," the demised premises under the Overlease, and the sites of various future buildings. The drawing also describes the general location of the shopping center's parking lot, which is designated as "Parking Area min. 950 spaces."
The sublease executed by Woolworth and Wal-Mart incorporated by reference Article 28 of the lease, but excluded, inter alia, Article 27.
In July 1991, West Town Plaza, the assignee of the original lessor, notified Wal-Mart, the sublessee, that it planned to construct a Blockbuster video store near one of the two entrances to the shopping center's parking lot. While the record suggests some communication between the parties regarding construction of the Blockbuster building, West Town Plaza did not seek Wal-Mart's consent. As part of its proposed site plan for the Blockbuster building, West Town Plaza promised to increase the number of parking spaces from 774 to 900 by restriping them. On July 19, 1991, the City of Bessemer issued West Town Plaza a building permit. On July 22, 1991, Wal-Mart appealed to the City of Bessemer Board of Adjustment from the issuance of building permit. On August 2, 1991, pending Wal-Mart's appeal, West Town Plaza began excavation of the site. In response, Wal-Mart applied for a preliminary injunction on August 6, 1991, alleging that West Town Plaza's construction of the building in the parking lot obstructed its easement under the lease agreements. Wal-Mart sought to enjoin construction of the building and to order West Town Plaza to restore the area of the parking lot to its original condition. It was estimated that the Blockbuster building occupied between 30 and 34 parking spaces. The parties stipulated that the building was being constructed in an area of the shopping center's parking lot that had been used for automobile parking. It is undisputed that the building under construction was situated in the area labelled "Parking Area" on the Schedule A diagram. From the record and briefs on appeal, it also appears that by the time the trial court entered its judgment on October 16, 1991, West Town Plaza had substantially completed construction of the Blockbuster building.
After conducting an expedited hearing to consider both preliminary and permanent injunctive relief pursuant to Rule 65(a)(2), Ala.R.Civ.P., the trial judge issued an opinion and entered a judgment for Wal-Mart, holding that West Town Plaza's construction of the building obstructed Wal-Mart's nonexclusive easement over the parking area. The trial court construed the Overlease and the Sublease to grant Wal-Mart an easement over a certain area of property, rather than a right to use a stipulated number of parking spaces, as West Town Plaza had argued. Relying on this Court's opinion in Magna, Inc. v. Catranis, 512 So. 2d 912 (Ala.1987), the trial court rejected West Town Plaza's offer to restripe the parking lot as a remedial alternative to removal of the Blockbuster building:
The trial court permanently enjoined West Town Plaza from obstructing Wal-Mart's easement in the "Parking Area" for automobile parking and ordered West Town Plaza to remove the completed Blockbuster building.
West Town Plaza's first argument is that, as a sublessee, Wal-Mart has no standing to enforce against it any provision of the lease or sublease because, it says, no privity of contract or estate exists between the two parties. In the absence of such privity, West Town Plaza contends, Wal-Mart has a right of action under the sublease only against Pine Properties, Inc., the assignee of the sublessor, Woolworth. Wal-Mart argues that an easement is an interest in property and is enforceable against the whole world and that no privity of any type is necessary to enforce or protect its easement under the lease agreements. After careful review of the record, we find that West Town Plaza did not raise this issue with the trial court and therefore has not properly preserved this issue for review. This Court will not reverse the trial court's judgment on a ground raised for the first time on appeal. Smith v. Equifax Services, Inc., 537 So. 2d 463 (Ala. 1988); Costarides v. Miller, 374 So. 2d 1335 (Ala.1979).
West Town Plaza's second argument is that the trial court misconstrued the Overlease and Sublease agreements to grant a common easement over an area of property, i.e., the shopping center's parking lot, rather than a right to a "minimum number of spaces within a non-specific area." West Town Plaza asserts that the provisions of the Overlease define the easement granted under Article 28 of the Sublease. West Town Plaza argues that the term "Parking Area or Areas" under Article 28 of the Overlease is defined, by its reference to Article 27, as a minimum number of parking spaces in a general location indicated on the Schedule A drawing. According to West Town Plaza, the terms "Common Facilities" and "Parking Area or Areas" are capitalized for the first time in Article 27; therefore, it says, their use later in Article 28 should be given the meaning placed on them in Article 27. Because Article 27 defines "Parking Area or Areas" with reference to a minimum number of parking spaces in a generally described area, West Town Plaza argues that Article 28 grants only a nonexclusive right to a minimum number of parking spaces, not a right of use over an area of property.
The general rule is that this Court will "construe [a] lease according to the parties' intention as gathered from the whole instrument, and, if the language is not clear, the circumstances attending its execution and the subsequent acts of the parties." Irwin v. Baggett, 231 Ala. 324, 326, 164 So. 745, 746 (1935). "It is well settled that a court in seeking to ascertain the intention of the parties in construing a contract, will consider the contract as a whole, although the immediate object of the inquiry is the meaning of a particular clause. Further, a contract must be construed as a whole and, whenever possible, effect must be given to all its parts." Land Title Co. of Alabama v. State ex rel. Porter, 292 Ala. 691, 698, 299 So. 2d 289, 295 (1974) (citations omitted). "Furthermore in the absence of ambiguity the court cannot interpret the contract but must take it as it is written." Darling Shop of Birmingham, Inc. v. Nelson Realty Co., 255 Ala. 586, 591, 52 So. 2d 211, 215 (1951); see also Byrd Companies, Inc. v. Birmingham Trust Nat'l Bank, 482 So. 2d 247, 251 (Ala.1985).
*1295 We hold that Article 28 of the Overlease, incorporated into the Sublease, is unambiguous and grants an easement over the parking area generally described in the Schedule A drawing. See C.T. Foster, Annot., Construction and Operation of Parking-Space Provision in Shopping-Center Lease, 56 A.L.R.3d 596 (1974). Contrary to West Town Plaza's argument, the language of Article 28 is definitional with respect to the extent and location of the easement it grants. Although Article 28 grants an easement in "aforementioned Common Facilities," and thereby implicitly makes reference to Article 27, it then proceeds to define the term "Common Facilities," in part, as "including but not limiting the same to the use of all the Streets, Service Drives and Sidewalks for ingress and egress to and from the demised premises and the public streets or highways shown on the aforesaid drawing, and the use for automobile parking, of the areas designated as Parking Area." While the capitalized term "Common Facilities" implicitly refers to Article 27, where it appears for the first time in the Overlease, Article 28 explicitly refers to the Schedule A drawing to define "Common Facilities," not to Article 27. The conclusion that the Schedule A drawing, and not Article 27, operates to define the extent of the easement is supported further by the fact that Articles 2, 27, and 28 all refer to the Schedule A drawing to define rights and obligations granted under those articles.
The plain language of Article 27 does not indicate that it serves any definitional function for Article 28. While Article 27 and Article 28 both concern "Common Facilities," they create completely different rights and obligations with regard to them. Entitled "Conditions of Delivery," Article 27 describes the lessor's obligation to complete construction of, inter alia, "Common Facilities." Thus, the language "Parking Area or Areas to accommodate not less than 900 spaces" defines the lessor's obligation to finish construction of the shopping center's parking lot. Nothing in Article 27 shows that this provision also defines the easement conveyed by the lessor under Article 28. That Article 27 only defines the lessor's obligation to the lessee under the Overlease to finish building the parking lot and does not serve to define the property rights granted under Article 28 is also demonstrated by the explicit exclusion of Article 27 from the Sublease.
The plain meaning of key terms in Article 28 also indicates that the Overlease grants an easement over an area of real property, not just a right to a minimum number of parking spaces. Article 28 conveys an "easement" over "areas designated as Parking Area." The term "easement" connotes an incorporeal right "imposed upon corporeal property." Louis Pizitz Dry Goods Co. v. Penney, 241 Ala. 602, 605, 4 So. 2d 167, 169 (1941). "An easement, although an incorporeal right,... is yet properly denominated an interest in land, ... and the expression `estate or interest in lands' is broad enough to include such rights; for an easement must be an interest in or over the soil." Oates v. Town of Headland, 154 Ala. 503, 505, 45 So. 910, 911 (1908) (quoting 14 Cyc. 1139, nn. 6 and 7). The language of Article 28 does not suggest that the parties, sophisticated and well-advised businessmen, intended any meaning other than the ordinary legal one. The word "areas" also indicates a definite, physical space, whose location is defined by reference to the Schedule A drawing showing its general location.
In its third argument, West Town Plaza contends that the trial court committed plain and palpable error in ordering removal of the Blockbuster building. West Town Plaza asserts that Wal-Mart will suffer no irreparable injury if the building remains, because, under the site plan, West Town Plaza has promised to increase the number of parking spaces in the shopping center from 774 to 900 by restriping them. West Town Plaza contends also that the Blockbuster video store will actually benefit Wal-Mart by attracting more customers to the shopping center.
West Town Plaza also argues that the trial court abused its discretion in failing to consider the relative hardship to West Town Plaza in ordering it tear down a *1296 completed building. Citing Alabama Power Co. v. Drummond, 559 So. 2d 158 (Ala. 1990), West Town Plaza urges this Court to apply the "comparative injury doctrine" and consider the financial hardship and the economic waste that would result from ordering removal of the Blockbuster building. West Town Plaza asks the Court to allow it to keep the Blockbuster building and provide alternative parking for Wal-Mart.
Citing Magna, Inc. v. Catranis, 512 So. 2d 912 (Ala.1987), Alabama Power Co. v. Ray, 260 Ala. 506, 71 So. 2d 91 (1954), and Sellers v. Valenzuela, 249 Ala. 627, 32 So. 2d 517 (1947), Wal-Mart asserts that, as a matter of law, West Town Plaza's continuous and permanent obstruction of its easement constitutes an irreparable injury for which money damages are inadequate. In addition, Wal-Mart argues that the trial court did not err in failing to apply the "comparative injury doctrine" because, Wal-Mart argues, its application to a permanent obstruction of an easement is inappropriate and because West Town Plaza intentionally and knowingly violated the easement and hurried to complete construction of the Blockbuster building in order to make its existence a fait accompli.
The issuance of injunctive relief pursuant to Rule 65, Ala.R.Civ.P., is within the sound discretion of the trial court. Holland v. City of Alabaster, 572 So. 2d 431 (Ala.1990); Alabama Power Co. v. Drummond, 559 So. 2d 158, 161 (Ala.1990); Hood v. Neil, 502 So. 2d 749 (Ala.1987). To support a reversal, West Town Plaza has the burden to show that the trial court abused its discretion, i.e., that it plainly and palpably erred when it granted Wal-Mart injunctive relief. Hood, 502 So. 2d at 750; see also Drummond, 559 So. 2d at 161; Reed v. City of Montgomery, 341 So. 2d 926 (Ala.1976). The trial court's exercise of its discretion is subject to reversal when it violates some principle of equity or is based on a misapprehension of the controlling law. Public Systems, Inc. v. Towry, 587 So. 2d 969, 971 (Ala.1991); Martin v. First Federal Sav. & Loan Ass'n of Andalusia, 559 So. 2d 1075, 1079 (Ala.1990); Powell v. Phenix Federal Savings & Loan Assoc., 434 So. 2d 247, 251 (Ala.1983).
"The owner of the servient estate must abstain from acts interfering with the proper enjoyment of the easement by the owner of the dominant estate, and a court of equity has jurisdiction to enjoin the obstruction of private easements and to require the removal of such obstructions." Brown v. Alabama Power Co., 275 Ala. 467, 470, 156 So. 2d 153 (1963) (citations omitted); see also Potts v. Water Works Bd., City of Aliceville, 267 Ala. 46, 100 So. 2d 16 (1958); Alabama Power Co. v. Ray, 260 Ala. 506, 71 So. 2d 91 (1954).
The Overlease and the Sublease granted Wal-Mart an easement in land, a property right, not merely a right to a number of parking spaces. The Blockbuster building was estimated to occupy an area equal to approximately 30 to 34 parking spaces. West Town Plaza's construction of the Blockbuster building permanently deprived Wal-Mart of part of its easement granted under the lease agreements. Such an obstruction of Wal-Mart's easement is clearly an injury or harm for which money damages are inadequate and for which the trial court has jurisdiction, in its sound discretion, to enjoin and order removed. See Pacemaker Food Stores, Inc. v. Seventh Mont Corp., 117 Ill.App.3d 636, 72 Ill.Dec. 931, 453 N.E.2d 806 (1983); Mutual of Omaha Life Insurance Co. v. Executive Plaza, Inc., 99 Ill.App.3d 190, 54 Ill.Dec. 638, 425 N.E.2d 503 (1981); Walgreen Co. v. American Nat'l Bank & Trust Co. of Chicago, 4 Ill.App.3d 549, 281 N.E.2d 462 (1972).
West Town Plaza's last contention is that the trial court abused its discretion in failing to apply the "comparative injury doctrine." While the trial court indicated that it had considered the remedial alternative, proposed by West Town Plaza, of restriping the parking lot, neither the record nor the trial court's long opinion indicates that the trial court applied this doctrine or specifically balanced the relative burdens and benefits of the parties. Considering the length and thoroughness of the trial court's opinion, the absence of any discussion of the comparative injury doctrine *1297 leads us to conclude that the court did not consider that doctrine as such.
This Court has long recognized the applicability of the comparative injury doctrine, principally in cases involving actions alleging private nuisance or continuing trespass. E.g. Daniels v. Chapuis, 344 So. 2d 500, 503 (Ala.1977); Pritchett v. Wade, 261 Ala. 156, 162, 73 So. 2d 533, 538 (1954); Martin Bldg. Co. v. Imperial Laundry Co., 220 Ala. 90, 92, 124 So. 82, 84 (1929). In Daniels v. Chapuis, at 503, this Court formally adopted the doctrine as set forth in 42 Am.Jur.2d Injunctions, § 56 at 799 (1969):
See also Restatement (Second) of Torts § 941 (1977). The Court in Daniels noted that the "comparative injury doctrine" was "but a species of the balancing of the equities principle," 344 So. 2d at 503, which has been routinely applied in a variety of contexts in cases involving applications for temporary and preliminary injunctions, e.g., Martin v. First Federal Sav. & Loan Ass'n of Andalusia, 559 So. 2d 1075 (Ala. 1990); Triple J Cattle, Inc. v. Chambers, 551 So. 2d 280 (Ala.1989).
In Alabama Power Co. v. Drummond, 559 So. 2d 158 (Ala.1990), this Court held that a trial court did not abuse its discretion when it declined to order the removal of a structure permanently obstructing a flood easement. In Drummond, the defendant built an addition to her house that encroached upon Alabama Power Company's flood easement. Balancing the relative equities of the parties, the trial court found that although the defendant was aware of the flood easement, the encroachment was unintentional and "infinitesimal" and that removal of a part of the addition would substantially impair the value of the whole. In lieu of ordering the structure removed, the trial court ordered the defendant to substitute a compensating amount of flood-easement area by recontouring the land. Upholding the trial court's judgment, this Court stated:
Drummond, 559 So. 2d at 162 (citing H. Joyce, Joyce on Injunctions § 20, at 41 (1909)); see also Alonzo v. Sanford, 465 So. 2d 1131, 1135 (Ala.Civ.App.1984).
The decision whether to apply the comparative injury doctrine in appropriate cases is within the sound discretion of the trial court and is subject to reversal only for plain and palpable error or manifest injustice. In the particular circumstances of this case, the trial court did not abuse its discretion in not applying the comparative injury doctrine but ordering the removal of the completed Blockbuster building. Unlike the obstruction in Drummond, the obstruction of Wal-Mart's easement was not "infinitesimal"; the Blockbuster building occupied an area equal to approximately 30 to 34 parking spaces. Moreover, the building was constructed beside the entrance to the shopping center and in front of Wal-Mart's building. Also, while the trial court did not in its opinion apply the comparative injury analysis, it did properly consider West Town Plaza's remedial alternative to removing the Blockbuster building, i.e., restriping the parking lot. Thus, while apparently not considering the comparative injury doctrine expressly, the trial court did engage in a balancing of the equities.
In considering the particular facts and the relative equities in this case and those in the Drummond case, we hold that Wal-Mart's interest in maintaining a certain *1298 amount of space in a specific location, exclusively for the purpose of parking, is distinguishable from Alabama Power's interest in maintaining its flood easement. While both Wal-Mart and Alabama Power have the right to use every square foot of the land over which their respective easements extend, the factual circumstances and equitable considerations in each case are different. In Drummond, the court declined to order removal of the encroaching structure because the purpose of the flood easement was equally well served by recontouring the land in another location to compensate for the loss caused by the encroachment. The specific land encroached upon was not indispensable to the purpose of the easement. Thus, in light of the cost of removing the encroachment and given the "infinitesimal" extent of the obstruction, it was equitable not to order part of the structure removed. Such an approach in Wal-Mart's case, e.g., restriping, however, would be inequitable, because here the specific land encroached upon by the Blockbuster building is uniquely essential to the purpose of the parking easement in the lot: accommodating customers, making access to its store convenient, and maintaining visibility from public throughfares. Thus, the particular circumstances and equities of Drummond make it distinguishable from this case and highlight the appropriateness of ordering the removal of the Blockbuster building.
While the record does not directly show and the trial court did not expressly find that West Town Plaza intentionally obstructed Wal-Mart's easement, the record does indicate that West Town Plaza became aware of Wal-Mart's opposition to the building before construction began. Notwithstanding Wal-Mart's prompt appeal of West Town Plaza's building permit and its equally prompt filing of an application for preliminary and permanent injunction when faced with continued construction, West Town Plaza proceeded to complete the building. In the trial court and on appeal, West Town Plaza has argued that it acted on a good faith belief that under the lease agreements Wal-Mart's consent to the construction was unnecessary. However, under the circumstances, it would seem inequitable and unjust to reverse the trial court's judgment for failing to expressly balance the burden of removing a completed building with the value of 30 to 34 parking spaces, when West Town Plaza seems to have rushed to finish its construction notwithstanding the existence of a dispute over the parties' rights under the leases and notwithstanding Wal-Mart's determined opposition.
Because the Blockbuster building erected by West Town Plaza permanently obstructs an easement for parking granted in favor of Wal-Mart under the Overlease and the Sublease agreements and because the trial court did not plainly and palpably err in ordering the removal of the building, we affirm.[*]
AFFIRMED.
HORNSBY, C.J., and MADDOX, SHORES, ADAMS, STEAGALL and KENNEDY, JJ., concur.
HOUSTON, J., concurs in the result.
HOUSTON, Justice, concurring in the result.
I concur in the result based on my dissent in Alabama Power Co. v. Drummond, 559 So. 2d 158, 162-63 (Ala.1990).
[1] Two other defendants, Pine Properties, Inc., and Blockbuster, Inc., are included in the judgment and the notice of appeal, but West Town Plaza is the party principally prosecuting this appeal.
[*] The Justices who did not sit at oral argument have listened to the tape recording. | January 15, 1993 |
37863d00-5141-4e5b-85f5-318a2e6d331b | Hinton & Sons v. Strahan | 96 So. 2d 426 | N/A | Alabama | Alabama Supreme Court | 96 So. 2d 426 (1957)
HINTON & SONS
v.
James Clyde STRAHAN.
6 Div. 89.
Supreme Court of Alabama.
June 27, 1957.
*427 LeMaistre, Clement & Gewin, Perry Hubbard and H. Vann Waldrop, Tuscaloosa, for appellant.
deGraffenried, deGraffenried & deGraffenried, Tuscaloosa, for appellee.
MERRILL, Justice.
Appellant, a partnership operating a dairy, appeals from a judgment against it in the sum of $12,500. The complaint that went to the jury consisted of one count which declared upon an alleged breach of the common law duty to furnish appellee, their employee, with a reasonably safe place in which to work. The count, after alleging that plaintiff was employed by the defendant, avers that plaintiff was manually milking one of appellant's cows in one of the stalls located in appellant's barn, and that appellant negligently failed to provide plaintiff with a reasonably safe place to do and perform the work for which he was employed, and that the cow plaintiff was milking ran upon plaintiff and knocked him into a cement gutter in said barn and, that as a proximate consequence of appellant's said negligence, plaintiff received many injuries.
The appellant pleaded the general issue in short by consent, and this included the pleas of assumption of risk and contributory negligence.
Assignments of error 2 and 3 assert error in the court's refusal to give the general affirmative charge without hypothesis (2), and the same charge with hypothesis (3). Appellant contends it was entitled to these charges under the assumption of risk doctrine, because it is urged that plaintiff's injuries resulted from either an ordinary or extraordinary risk of his employment, and that he continued in the employment with full knowledge of the conditions causing his injury and with an appreciation of the danger therefrom.
The tendencies of the evidence most favorable to the plaintiff were that the cows were ordinarily milked by milking machines; but the one he was milking had recently freshened, and, upon instructions of one of his employers, George Hinton, Jr., the cow was being milked by hand. Plaintiff *428 was sitting on a paint can, and the cow had a chain around her neck which was hooked to a chain which was fastened to a bolt in the wall of the barn. Plaintiff testified that he was furnished one helper and one milking stool, and that the helper was using the milking stool at the time of the injury. Witnesses for both plaintiff and defendant testified that at the time of the injury, prudent dairy operators in Tuscaloosa County with similar dairies provided wood or metal head stanchions for their cows which opened up, let the cow's head in and closed on her neck while she was being milked, and that these stanchions were better and safer than chains for securing a cow. On cross-examination of one of appellant's witnesses, it was adduced that it was dangerous to sit on a bucket to milk a cow, and that prudent dairy operators provided their employees with stools to sit on while milking. There was no evidence that plaintiff was familiar with the standards met by prudent dairy operators in Tuscaloosa County. His experience in dairy work was confined to this dairy where he had worked for over fifteen months prior to his injury.
We think the plea of assumption of risk on the part of appellee was properly submitted to the jury by the trial court who gave a full charge on the plea.
Likewise, we do not think the court should have granted the motion for a new trial on the ground that the verdict of the jury was contrary to the great weight and preponderance of the evidence.
Assignment of error No. 6 complains that the court erred in overruling defendant's demurrer to the complaint. The argued grounds of demurrer were that there were no facts alleged showing a causal connection between defendant's alleged negligence and plaintiff's alleged injuries. Under our system of pleading, the averment that the master negligently failed to furnish or provide a reasonably safe place to work is sufficient, and the most general allegation of default therein is permissible. Birmingham Ry., Light & Power Co. v. Buff, 201 Ala. 94, 77 So. 388; Ragland Brick Co. v. Bell, 197 Ala. 14, 72 So. 380; Citizens' Light, Heat & Power Co. v. Lee, 182 Ala. 561, 62 So. 199; Smith v. Watkins & Donelson, 172 Ala. 502, 55 So. 611; Gray Eagle Coal Co. v. Lewis, 161 Ala. 415, 49 So. 859.
Assignments of error 4 and 5 predicate error upon the court's refusal to give charges 24 and 25, the effect of these charges being that the failure of defendant to furnish milking stools could not be a basis for recovery. It is sufficient to say that the charges were properly refused as being misleading or argumentative, in that each unduly singles out and emphasizes particular facts.
Assignment of error 1 is that the trial court erred in overruling appellant's motion for a new trial. We have already considered the grounds that the verdict was contrary to the weight and preponderance of the evidence.
It is next urged that appellee's counsel made references in argument that none of the four partners had taken the stand as witnesses to deny their liability to the plaintiff. Appellant objected to these references but the objections were overruled. In this action, the trial court did not commit reversible error. In Morris v. McClellan, 154 Ala. 639, 45 So. 641, 645, the court, speaking through Dowdell, J., said:
To like effect, see Martin v. Davis, 224 Ala. 648, 141 So. 667; Wheeler Motor Co. v. Stringer, 222 Ala. 494, 133 So. 10. The issue in the instant case was whether defendant had furnished a safe place for plaintiff to work, and no member of the *429 defendant partnership became a witness, and it appears that at least one of the partners, George Hinton, Jr., was present in court during the trial.
This general rule as to comment in argument on the failure of a party to testify has certain common sense qualifications. They are listed in 31 C.J.S. Evidence § 156 d, page 862. They include where the testimony of the party is unnecessary, where he has no personal knowledge of the facts in issue, where such facts have been otherwise fully established by depositions, interrogatories or by testimony at a former proceeding, where he is unavoidably absent from the trial, where his mind is impaired or where he is incompetent as a witness. This court has recognized some of these qualifications. In McGar v. Adams, 65 Ala. 106, this court held that a party's failure to testify merely to support uncontradicted evidence, favorable to him, which his adversary introduces, did not give rise to the presumption of the imputation of withholding evidence. In other words, it was unnecessary for the party to testify.
In Pollak v. Davidson, 87 Ala. 551, 6 So. 312, it was held that no unfavorable presumption should have been indulged against the defendant when the testimony showed he had no knowledge of the facts and was in New York at the time of the trial.
Appellant cites the cases of Alabama Power Co. v. Allen, 218 Ala. 416, 118 So. 662, and City of Bessemer v. Clowdus, 261 Ala. 388, 74 So. 2d 259, in support of the proposition that "a party's failure to take the witness stand is not subject to comment unless it is first shown that the party is present in court and fails to divulge facts that are peculiarly within his knowledge and unknown so fully to any other witness."
In Alabama Power Co. v. Allen, supra [218 Ala. 416, 118 So. 664], it was said:
The sections cited from Wigmore repeatedly stress the fact that the same rule should apply to parties as to other witnesses. The section cited from Jones deals exclusively with calling witnesses other than a party. The citation from Corpus Juris does not support the qualification quoted from the opinion concerning matters "peculiarly within his knowledge." That phrase is used in the cited authorities with reference to a party's witnesses and not to the party himself.
But it is clear that a different rule obtains in Alabama. This distinction is made in Martin v. Davis, 224 Ala. 648, 141 So. 667, written by Chief Justice Anderson, the author of the opinion in Alabama Power Co. v. Allen, supra, which case was cited in appellant's brief. That case was followed in City of Bessemer v. Clowdus, 261 Ala. 388, 74 So. 2d 259, 265, where, after stating the general rule, the court said: "That general rule is often qualified in its statement so as to apply when the facts are peculiarly within the knowledge of the witness. Alabama Power Co. v. Allen, 218 Ala. 416, 118 So. 662." The court correctly held in Alabama Power Co. v. Allen, supra, that the appellee "had no better, if as good an opportunity" as the appellant to know one of the principal facts in issue and that the objection to argument of appellant's counsel, commenting on appellee's failure to take the stand was properly sustained. In City of Bessemer v. Clowdus, supra, the court correctly held that the remark of counsel for plaintiff: "Now, gentlemen of the jury, the city has *430 offered no explanation as to why they allowed this condition," was not subject to objection, it being a true statement and borne out by the record.
We explain the quoted statements from these two cases as follows: When the fact or facts are peculiarly within a party's knowledge, and he fails or refuses to testify, when present at the trial, such failure or refusal is always subject to comment by the opposite party in a civil action; but the fact that matters in issue are not peculiarly within the party's knowledge is not of itself a sufficient ground to bar the adversary from commenting on his failure or refusal to testify.
Appellant also urges that the motion for a new trial should have been granted because of the injection of the existence of liability insurance on behalf of appellant. Counsel for appellee did make direct references to liability insurance, both in cross-examination of a witness and in argument. In the ordinary course of a trial, these remarks would have been highly prejudicial and would have been proper grounds for granting a motion for a new trial or a reversal on appeal under the rules enunciated in Thorne v. Parrish, 265 Ala. 193, 90 So. 2d 781, and Colquett v. Williams, 264 Ala. 214, 86 So. 2d 381. But this trial did not take the ordinary course and it is necessary to state the factual background on this question.
At the outset of the trial, the jury panel was qualified as to membership in the Farm Bureau or as to any connection with the Alabama Farm Bureau Mutual Casualty Insurance Company. Appellant called Frank M. Stewart as its second witness. Mr. Stewart testified that he had been closely associated with dairies since 1914; that he studied agriculture and was graduated from Auburn in 1923; that since graduation, he had been engaged in the production of fluid milk; that he presently operated a dairy; that he had studied the feeding and milking of cows; that he had been employed by the Alabama Milk Control Board for nine years; that he was elected and served as Commissioner of Agriculture and Industries for the 1951-55 term; and that he was presently employed by the Alabama Farm Bureau Federation. After this introduction, the effect of his testimony on direct examination was that the defendant had furnished a safe place for appellee to work.
On cross-examination, Mr. Stewart testified, over appellant's objections, that Walter Randolph was President of the Alabama Farm Bureau Federation; that Randolph was his "boss;" that Randolph was also President of Alabama Farm Bureau Mutual Casualty Insurance Company, an affiliate of the Farm Bureau; that to secure insurance with that Company, one must be a member of the Farm Bureau; that the Farm Bureau and its Insurance Company offices in Tuscaloosa were in the same place, and that Mr. Stewart had been in that office the morning of the day he testified.
When Mr. Stewart was excused as a witness, and out of the presence and hearing of the jury, appellant made a motion to exclude all the testimony of Stewart relating to the Insurance Company. The trial court said:
Appellant then made a motion for a mistrial. Counsel for appellee stated that the only reason for propounding the questions to the witness, Stewart, was "to show his interest and bias in the case and for no other purpose whatsoever." The court overruled the motion and appellant excepted.
In arguing the case to the jury, counsel for appellee said:
There was no objection to this argument at the time it was made. On motion for a new trial, appellee adduced evidence that Frank M. Stewart had been a member of the Board of Directors of Alabama Farm Bureau Mutual Casualty Insurance Company.
Attorneys have the right to try their cases as they see fit so long as they stay within the applicable statutes and rules. Counsel for appellant evidently took a calculated risk. Certainly, Mr. Stewart was a leading expert on the dairy business in Alabama, and his qualifications recommended his testimony to the jury. However, it is always permissible to cross-examine a witness to ascertain his interest, bias, prejudice or partiality concerning the matters about which he is testifying. Alabama Power Co. v. Gladden, 237 Ala. 527, 187 So. 711; 19 Ala.Dig., Witnesses. It has been specifically held that the connection of a witness with a company carrying liability insurance may be shown as tending to show bias on the part of the witness, Pittman v. Calhoun, 231 Ala. 460, 165 So. 391; Hunt v. Ward, 262 Ala. 379, 79 So. 2d 20, and commenting on the fact in argument does not constitute reversible error. J. H. Burton & Sons Co. v. May, 212 Ala. 435, 103 So. 46. See Annotation 4 A.L.R.2d 775, § 5. The case of Aguilera v. Reynolds Well Service, Tex.Civ.App.1950, 234 S.W.2d 282, 285, is concerned only with the question of the injection of insurance in the cross-examination of a witness, and the court concluded with this statement, citing cases from many jurisdictions including Alabama:
It was not error for counsel for appellee to show and comment on Mr. Stewart's connection with and employment by the President of the Insurance Company. Appellant had called him as a witness and appellee was entitled to show any interest he might allegedly have in the case. We point out that appellant was entitled to have the court limit the evidence to the possible interest or bias of the witness had such a *432 request been made. As already noted, appellee informed the court that the questions were propounded to the witness for that purpose only.
Appellant evidently concedes this to be the law but argues that appellee did not introduce the policy of insurance showing coverage as was done in Moore-Handley Hardware Co. v. Williams, 238 Ala. 189, 189 So. 757. We did not need to decide that question. In the case of Pittman v. Calhoun, 231 Ala. 460, 165 So. 391, 393, the court said:
We have examined the original record in that case, and the name of the particular insurance company nowhere appears except on the appeal bond. There is nothing to indicate that there actually was any insurance coverage by any particular insurance company. We must assume that the information that "Deal's company had liability insurance on the car which struck the plaintiff" was contained in brief of appellant because such information is not contained in the bill of exceptions. On that authority, we hold that it was not necessary for appellee to have introduced the insurance policy to entitle his counsel to make the comments complained of in the instant case.
Appellee filed a motion to strike that portion of the transcript which, taken on the motion for a new trial, shows the verbatim arguments of counsel for appellee to the jury. Appellee contends that the arguments are hearsay because they were taken by the court reporter in a private capacity and not in his official capacity. (He was employed by appellant to take and transcribe the argument of counsel for appellee to the jury.) The reporter testified that he did write and transcribe the arguments and thus properly authenticated them. There is no merit in the motion, nor in the argument that the reporter should have been required by the court to furnish appellee with a copy of arguments of counsel for appellant without his having previously arranged for such.
The judgment of the lower court is due to be affirmed.
Affirmed.
All the Justices concur. | June 27, 1957 |
499f99cb-9ef1-46f5-8d46-878cc79601f4 | SOUTHERN RAILWAY COMPANY v. Hall | 100 So. 2d 722 | N/A | Alabama | Alabama Supreme Court | 100 So. 2d 722 (1957)
SOUTHERN RAILWAY COMPANY
v.
J. T. HALL.
6 Div. 935.
Supreme Court of Alabama.
October 31, 1957.
Rehearing Denied March 6, 1958.
*723 Bankhead & Petree, Jasper, for appellant.
Weaver & Snoddy, Haleyville, for appellee.
GOODWYN, Justice.
Appellee, J. T. Hall, brought a proceeding in the probate court of Winston County against appellant, Southern Railway Company, to acquire, pursuant to Code 1940, Tit. 19, §§ 56-58, a way of necessity from his lands across the railway company's right of way and tracks to Alabama Highway No. 195. From a judgment in favor of appellee the appellant appealed to the circuit court (Code 1940, Tit. 19, § 17) where the case was heard without the intervention of a jury on evidence given ore tenus. The present appeal is from the judgment there rendered in favor of appellee and from the judgment overruling appellant's motion for a new trial (Code 1940, Tit. 19, § 23; Alabama Power Co. v. Henson, 237 Ala. 561, 564, 187 So. 718).
Hall is the owner of a tract of land consisting of about 185 acres located along the west right of way line of the railway company, and not within the corporate limits of any municipality. Alabama Highway No. 195 runs along the east right of way line of the railway company opposite Hall's land. The right of way sought by Hall is a strip 15 feet wide (the limit set by § 56, Tit. 19) (increased to 30 feet by Act No. 537, approved Sept. 18, 1957) and 100 feet long running from his land to Highway No. 195, and located about midway between the north and south lines of his tract of land. There appears to be no question that no public road or highway is adjacent or contiguous to any part of his land along its west and south boundaries. The evidence discloses that there is a public crossing over the railway company's right of way from the land of one Sport Armstrong (which adjoins Hall's land on the north) to Highway No. 195, but that crossing is located about one-half mile north of the northeast corner of Hall's tract. There is no indication that said crossing is adjacent or contiguous to Hall's land nor that Hall, either individually or as a member of the public, has any right of way over Armstrong's land running from Hall's land to said crossing. There is evidence of a crossing over the railway company's right of way from Highway No. 195 to Hall's land, known as the "clay pit crossing," which is located to the south of the crossing sought by Hall. It is the existence of this crossing which is the determinative factor in this case.
Hall testified that he had used the "clay pit" crossing but contends that such use was by sufferance of the railway company, which has the right to close it at any time. On the other hand, the railway company, throughout the proceedings, has taken the position that Hall already has access to the highway from his lands by way of the "clay pit" crossing and should not be allowed to burden the company's right of way with an additional crossing, simply for the purpose of providing Hall with a more convenient means of access. It is apparent from the pleadings and evidence that the railway company has not only recognized Hall's right to use the "clay pit" crossing but actually contends that it is a public crossing, in use as such for some 30 years or more. In other words, the only party questioning Hall's right to use it is Hall himself. What was said in Davenport v. Cash, 261 Ala. 380, 382, 383, 74 So. 2d 470, 471, is of particular significance here, viz.:
"* * * In the case of Carter v. Barkley, 1908, 137 Iowa 510, 115 N.W. 21, 22, the court said:
"`It is undoubtedly true that, if the plaintiffs had either a public or a private way to their land, they could not maintain this proceeding; but the statute evidently does not contemplate that the owner who claims to have no way to his land shall be compelled, before inviting the aid of the statute, to try one or more lawsuits for the purpose of *724 finding out whether he has a way or not. The statute, in our judgment, should be construed to mean that, unless a party has a way, either public or private, which is unobstructed and unquestioned, he may institute proceedings under the statute.'
"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.
"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) [and the "clay pit" crossing traverses only the property of the railway company]. 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."
The Davenport case holds, in effect, that a right of way cannot be acquired under §§ 56-58, Tit. 19, supra, if the petitioner has sufficient access from his land to a public road or highway by means of either a private or public right of way; also, that if a sufficient way across defendant's land is in use by petitioner and his right to use such way is not questioned, but is recognized, by the defendant, the petitioner cannot acquire, under said statutory provisions, another right of way across defendant's land.
The obvious purpose of the statute is to provide a means whereby a landowner, enclosed on all sides by lands of others and unable to get to his land from a public road or highway, can get relief by condemning a right of way to it across intervening land. However, if such landowner already has a reasonably adequate way to and from his land, there is no field of operation for the statute. On the other hand, if there is no reasonably adequate means of access he may acquire, as provided in the statute, "a convenient right of way not exceeding in width fifteen feet over the lands intervening and lying between such tract or body of land and the public road nearest or most convenient thereto." But the fact that a presently existing means of access is not as desirable to the landowner as another route would be is not the test. If an existing access is reasonably adequate for the purpose of giving the landowner an outlet to a public road or highway, there is no basis under the statute for condemning another outlet across the intervening land. One owner of a tract of land may consider *725 an access road best for his purposes and a later owner of the same land, for his purposes, might consider another route more desirable and convenient. Thus, it can be seen that if the convenience of the owner were the test, the land of an intervening owner might well be burdened with several rights of way across it, the number varying in proportion to the different uses to which the several successive owners might put the land. We do not think the purpose of the statute was to do more than to assure that land which is not adjacent or contiguous to a public road or highway can be reached from such a road or highway. In other words, the burden is on the petitioner for a right of way to show that he has no reasonably adequate outlet. We do not think the evidence shows that appellee's use of the "clay pit" crossing is attended with any difficulty except that it connects with his land near its southern portion and not near its center where he proposes to erect his home. No doubt it would be a convenience for appellee to have an outlet nearer the location of his proposed home. But we do not think the statute authorizes the taking of lands of another as a mere matter of convenience. In this connection, we quote the following from State ex rel. Carlson v. Superior Court, 107 Wash. 228, 181 P. 689, 691:
"So it may be said that, notwithstanding a statute gives a landlocked owner the right to condemn a way of necessity over the lands of a stranger, it is not a favored statute, and the taking will not be tolerated unless the necessity is paramount in the sense that there is no other way out or that the cost is prohibitive, for it must be borne in mind that, after all, this is a condemnation proceeding. We are taking the property of one man and giving it to another. * * *"
From Roberts v. Prassenos, 219 Miss. 486, 69 So. 2d 215, 216, 217, is the following:
"* * * The statute does not contemplate granting one citizen or corporation a right of way through the property of another citizen or corporation as a matter of mere convenience or as a mere matter of saving expense. There must be real necessity before private property can be invaded by a citizen for private purposes, if that can be done at all. The right to the control and use of one's property is a sacred right, not to be lightly invaded or disturbed. When property may be taken from a citizen for any purpose by law, the method for so doing must be strictly pursued, and the party seeking to take the property of another must come squarely within the statute."
We are at the conclusion that the judgment is due to be reversed and the cause remanded.
Reversed and remanded.
LIVINGSTON, C. J., and SIMPSON and COLEMAN, JJ., concur. | October 31, 1957 |
f32570f3-191d-4906-a4cc-fbbed0c075d0 | Ex Parte Sizemore | 611 So. 2d 1069 | 1911015 | Alabama | Alabama Supreme Court | 611 So. 2d 1069 (1993)
Ex parte James M. SIZEMORE, Jr., as Commissioner, Alabama Department of Revenue.
(Re James M. SIZEMORE, Jr., as Commissioner, Alabama Department of Revenue v. Edmon L. RINEHART, et al., Individually and as Representatives of the Class).
1911015.
Supreme Court of Alabama.
January 8, 1993.
*1070 Ron Bowden, Chief Counsel, and Mark D. Griffin, Asst. Counsel, Dept. of Revenue and Asst. Attys. Gen., for petitioner.
Mark D. Wilkerson of Parker, Brantley & Wilkerson, P.C., James R. Seale of Robison & Belser, P.C., Montgomery, William J. Baxley, Joel E. Dillard and Charles Dauphin of Baxley, Dillard & Dauphin, Birmingham, Jerrilee P. Sutherlin, Huntsville, Robert M. Hill, Jr. of Hill, Young & Boone, Florence, James P. Smith, Huntsville, J. Doyle Fuller, C. Knox McLaney III, Montgomery, Mark Ezell, Butler, John W. Sharbrough, Mobile, and Thomas T. Gallion III and William M. Slaughter of Haskell, Slaughter, Young & Johnston, P.C., Birmingham, for respondents.
ALMON, Justice.
WRIT QUASHED AS IMPROVIDENTLY GRANTED.
HORNSBY, C.J., and MADDOX, SHORES,[*] ADAMS, STEAGALL, KENNEDY and INGRAM, JJ., concur.
HOUSTON, J., dissents.
HOUSTON, Justice (dissenting).
Because this case presents a question of first impression that potentially involves the payment of approximately $20,000,000 from the Special Education Trust Fund of the State of Alabama, the important issues that have been raised in this petition should be addressed by the highest Court in this state.
The people of Alabama, in the Constitution of Alabama of 1901, declared: "That the State of Alabama shall never be made a defendant in any court of law or equity." Section 14 (emphasis added). This Court has held that § 14 prevents not only an action against the state, but also an action against its officers and agents in their official capacities, when a result favorable to the plaintiff would directly affect a property right of the state. DeStafney v. University of Alabama, 413 So. 2d 391 (Ala. 1981); Aland v. Graham, 287 Ala. 226, 250 So. 2d 677 (1971); Southall v. Stricos Corp., 275 Ala. 156, 153 So. 2d 234 (1963). In Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 65 S. Ct. 347, 89 L. Ed. 389 (1945), the United States Supreme Court held: "[W]hen the action is in essence one for the recovery of money from the state, the state is the real, substantial party in interest and is entitled to invoke its sovereign immunity from suit even though individual officials are nominal defendants."
Based upon the understandable, intelligible, lucid, comprehensible, discernible, plain, obvious, unambiguous, unequivocal, explicit, definite, unmistakable, indisputable, unquestionable, and incontrovertible wording of § 14 of the Constitution, as consistently interpreted by this Court, I must conclude that this is an action against the state, seeking as a remedy funds from the state treasury.
The state timely raised the defense of sovereign immunity under § 14 by a motion to dismiss. The Court of Civil Appeals did not address this constitutional issue. It merely relied on Thorn v. Jefferson County, 375 So. 2d 780 (Ala.1979). Thorn involved an action against a county seeking a refund of ad valorem taxes. A county has no sovereign immunity. Neither Thorn, nor the case that it relied on, Graves v. McDonough, 264 Ala. 407, 88 So. 2d 371 (1956), is authority for allowing a class action against the state. In Graves, Chief Justice Livingston, writing for the Court, specifically noted that the attorney general was "not insisting that this is a suit against the state in violation of Section 14 of the Constitution." 264 Ala. at 409, 88 So. 2d at 373. In the case at issue, the state is insisting that this action is barred by § 14.
This Court can no more permit an action against the state, or an official of the state, when a result favorable to the plaintiff would affect a property right of the state, than we can deny parties to litigation a trial by jury, if they had the right to trial by jury at common law. The people, by *1071 their Constitution, have denied us that right.
There can be no question that a refund of approximately $20,000,000 from the state treasury would affect a property right of the state. Therefore, in this case, the State of Alabama was made a defendant in violation of § 14 of the Alabama Constitution, and its motion to dismiss should have been promptly granted, unless this constitutional provision (§ 14) violates the United States Constitution.
In determining whether § 14 violates the United States Constitution, what is our standard of review? Justice Almon wrote for a unanimous Court in White v. Reynolds Metals Co., 558 So. 2d 373, 375 (Ala. 1989), cert. denied, Reynolds Metals Co. v. Sizemore, 496 U.S. 912, 110 S. Ct. 2602, 110 L. Ed. 2d 282 (1990):
(Emphasis added.)
In my opinion, the Court of Civil Appeals, 611 So. 2d 1064 (1992), and the majority of this Court as well, by quashing the writ, have ignored the duty to support the Alabama Constitution, if that can be done without violating the United States Constitution.
The Court of Civil Appeals relied on James B. Beam Distilling Co. v. Georgia, ___ U.S. ___, 111 S. Ct. 2439, 115 L. Ed. 2d 481 (1991) (hereinafter Beam v. Georgia), and Davis v. Michigan Department of Treasury, 489 U.S. 803, 109 S. Ct. 1500, 103 L. Ed. 2d 891 (1989), in holding that the state was required to provide refunds to the affected taxpayers in this case. After carefully examining these two cases, however, I find it clear that this reliance was misplaced. In Davis v. Michigan, Davis pursued the administrative remedies that were available to him to obtain a refund of taxes; and the State of Michigan conceded the refund issue: "The State having conceded that a refund is appropriate in these circumstances, ... to the extent appellant has paid taxes pursuant to this invalid tax scheme, he is entitled to a refund." 489 U.S. at 817, 109 S.Ct., at 1508-09. In the petition before this Court, the state vehemently denies that it should be required to provide refunds in this class action. In Beam v. Georgia,[1] the United States Supreme Court issued four opinions in which six Justices agreed that the ruling in Bacchus Imports, Ltd. v. Dias, 468 U.S. 263, 104 S. Ct. 3049, 82 L. Ed. 2d 200 (1984), should apply retroactively to claims arising on facts antedating that decision. Three Justices held that retroactive application of Bacchus was not appropriate. However, the opinions of the majority in Beam v. Georgia did not decide the issue of which remedies were to be applied under the new rule. In the opinion written by Justice Souter, the following statements appear:
___ U.S. at ___, 111 S. Ct. at 2443.
___ U.S. at ___, 111 S.Ct., at 2448. (Emphasis added.)
In Melof v. Hunt, 718 F. Supp. 877 (M.D.Ala.1989), a case involving all of the defendants in this case and at least three of the remaining plaintiffs in this case, it was judicially determined (1) that the relief sought, as in the present case, was against the state; (2) that Ala.Code 1975, § 40-1-11, repealed by "The Alabama Taxpayers' Bill of Rights and Uniform Revenue Procedures Act," Ala.Acts 1992, No. 92-186, § 80, effective October 1, 1992 (conferring a right to recover taxes paid under protest); Ala.Code 1975, § 40-18-40, rewritten by amendment, Act 92-186, § 53, effective October 1, 1992, and § 40-2-22, repealed by Act 92-186, § 80 (conferring a right of appeal subsequent to final assessment of tax); and Ala.Code 1975, § 40-18-43, repealed by Act 92-186, § 80 (conferring a right to recover taxes paid by mistake or error) provided taxpayers with state remedies that were "plain, speedy, and efficient" means by which they could raise constitutional challenges to income tax assessments; and (3) that the inability of the plaintiffs to avail themselves of a class action mechanism was insufficient to render the "protest statute," the statutory provisions conferring a right of appeal subsequent to a final assessment, or the "mistake or error statute," procedurally inadequate for challenging income taxation. This judgment was not appealed; therefore, had the doctrine of res judicata been raised as a defense in this case, the federal court judgment would have barred relitigation of these issues in state court. Imperial Crown Marketing Corp. v. Wright, 560 So. 2d 1025 (Ala.1989); Higgins v. Henderson, 551 So. 2d 1050 (Ala.1989). Although res judicata was not raised as a defense, Judge Thompson's legal conclusions are applicable to the issues before this Court.
With respect to his finding that the statutory remedies that were available to Alabama taxpayers were adequate to comply with the United States Constitution, Judge Thompson, in his well-reasoned and well-written opinion, wrote:
Melof v. Hunt, 718 F. Supp. at 880. (Citation omitted.) Judge Thompson then discussed the three remedies that were available to taxpayers in Alabama: the "protest statute," Ala.Code 1975, § 40-1-11, repealed; the statutes conferring the right of appeal subsequent to a final tax assessment, Ala.Code 1975, § 40-18-40, rewritten, and § 40-2-22, repealed; and the "mistake or error statute," Ala.Code 1975, § 40-18-43, repealed; and determined that each of these three remedies was a plain, speedy, and efficient remedy. Melof v. Hunt, 718 F. Supp. at 880-84. I agree with Judge Thompson's legal reasoning, and I adopt that portion of his opinion as part of this dissent.
There is no evidence in this case that any of the plaintiffs elected to pursue the remedy that was afforded by § 40-1-11. There is evidence (contained in the deposition of Commissioner Sizemore) that if a taxpayer had not included federal retirement income as part of his or her taxable Alabama income, the state had not pursued, and would not pursue, its rights under the final assessment section of the Alabama Code to try to tax that federal retirement income. There is also evidence in the form of affidavits that three taxpayers did file something with the Department of Revenue after this action had been filed and that they were told by the Department that no action could be taken until this action had been concluded.
There was nothing to keep the plaintiffs in this action from seeking one of the three statutory remedies that were available to them prior to October 1, 1992. That, in my opinion, they had to do. If any of the taxpayers paid the tax under protest, they had the rights provided in § 40-1-11. If the uncontroverted evidence in the record is wrong and some taxpayers omitted including federal retirement income for tax purposes and the state made a final assessment including that income, then these taxpayers had a right of appeal pursuant to §§ 40-18-40 and 40-2-22. If some taxpayers did not pay under protest, or appeal from a subsequent final assessment that included federal retirement income, but nonetheless paid tax on federal retirement income, then those taxpayers could have elected to proceed under the "mistake or error statute," § 40-18-43. The taxpayers are entitled to no more retrospective or prospective relief than they could have obtained under §§ 40-1-11, 40-18-40, 40-2-22, and 40-18-43, or can hereafter obtain under Ala.Acts 1992, No. 92-186, which, as previously noted, became effective on October 1, 1992. The stated purpose of the new act is to clarify and standardize the procedure in Alabama for administering the revenue laws. The basic remedies that were available to taxpayers under the old law are still available to them under the new law. Although the remedy provided by the new act, § 6(c) (conferring the right of recovery of taxes erroneously paid), is still available to the taxpayers, the new act requires that an application for a refund of taxes be filed with the Department of Revenue within three years from the date a return was filed or within two years from the date of the payment of the tax, whichever is later. Consequently, because the legislature in 1990 changed the law taxing federal retirement income to bring Alabama's income tax law into compliance with the ruling in Davis v. Michigan Department of Treasury, supra, the affected *1074 taxpayers who have not filed an application for a refund of Alabama income tax paid on federal retirement benefits will not be able to obtain a refund for taxes paid in each of the years alleged in the complaint. This, however, has no bearing on the constitutionality of the claims against the state in this case. Beam v. Georgia, supra. Those taxpayers who did file applications for refunds under the "mistake or error statute" have a right to obtain those refunds.
The State of Alabama has provided "plain, speedy, and efficient" remedies for taxpayers who have paid, or were otherwise obligated to pay, an Alabama income tax that has been held to be unconstitutional under the United States Constitution. Section 14 of the Alabama Constitution is not unconstitutional under the Supremacy Clause of the United States Constitution, because of these plain, speedy, and efficient remedies. Therefore, in accordance with White v. Reynolds Metals Co., supra, it is this Court's duty to support § 14 of the Alabama Constitution.
On March 28, 1989, the United States Supreme Court announced its decision in Davis v. Michigan Department of Treasury, supra. The cases that were consolidated into the action that is now before this Court were filed on April 12, 14, and 17, 1989 (15 to 20 days after the Davis decision was announced). In each of these cases, the plaintiff or plaintiffs sought class certification. On April 19, 1989, the trial court certified Melof v. Hunt as a class action (containing one class and four sub-classes), without notice to the defendants and before the defendants had filed any defensive pleadings. An order granting conditional class certification in Rinehart v. Sizemore was granted on April 21, 1989, on two days' notice to Sizemore, before any defensive pleadings were due to be filed or were filed. Motions were filed to decertify these class actions. After examining over 1,000 pages of the record in this case, including that portion of the record that was filed in this Court on December 10, 1992, I believe that these motions should have been granted under the authority of Ex parte Blue Cross & Blue Shield of Alabama, 582 So. 2d 469 (Ala.1991), and Rowan v. First Bank of Boaz, 476 So. 2d 44 (Ala.1985). However, because of the more fundamental and compelling constitutional basis for my dissent in this case, which I have previously discussed, I find it unnecessary to elaborate further on the class certification issue. The mere fact that the state did not provide a class action procedure to challenge this income tax on federal retirement benefits does not make the state tax procedures constitutionally inadequate. Waldron v. Collins, 788 F.2d 736 (11th Cir.), cert. denied, 479 U.S. 884, 107 S. Ct. 274, 93 L. Ed. 2d 250 (1986), cited as authority by Judge Thompson in Melof v. Hunt, 718 F. Supp. at 884-85.
For the foregoing reasons, I would not quash the writ as improvidently granted. Instead, I would reverse the judgment of the Court of Civil Appeals affirming the judgment against the state, and I would remand this case for proceedings consistent with this dissent. My decision in this case is not dictated by the large amount of money involved or by the fact that that money must be paid from the Special Education Trust Fund, which provides funds for what I personally consider to be an inadequately funded educational system. Rather, my decision in this case is dictated by a process of legal reasoning consistent with my understanding of this Court's duty as recognized in White v. Reynolds Metals Co., supra.
[*] Although Justice Shores did not sit at oral argument, she has studied the record and listened to the tapes of oral argument.
[1] Justice Souter announced the judgment of the Court and rendered an opinion in which Justice Stevens joined. Justice White filed an opinion concurring in the judgment. Justice Blackmun filed an opinion concurring in the judgment; Justice Marshall and Justice Scalia joined that opinion. Justice Scalia filed an opinion concurring in the judgment; Justice Marshall and Justice Blackmun joined that opinion. Justice O'Connor filed a dissenting opinion, in which Chief Justice Rehnquist and Justice Kennedy joined. | January 8, 1993 |
cf1505bf-3873-40db-9c3e-092d7ca30303 | Mintz v. Millican | 97 So. 2d 769 | N/A | Alabama | Alabama Supreme Court | 97 So. 2d 769 (1957)
Era L. MINTZ
v.
Lola Mae Cox MILLICAN et al.
7 Div. 272.
Supreme Court of Alabama.
October 24, 1957.
*770 Ross Blackmon, Anniston, for appellant.
Merrill, Merrill, Vardaman & Matthews, Anniston, for appellees.
GOODWYN, Justice.
This is a statutory action in the nature of an action in ejectment (Code 1940, Tit. 7, § 938; Tit. 7, § 223, Form 32) brought by appellant, Era L. Mintz, in the circuit court of Calhoun County against appellee, Lola Mae Cox Millican, in which defendant Millican filed her suggestion in writing that the suit arises over a disputed boundary line (Code 1940, Tit. 7, § 942). The land involved is a strip 179 feet by 1,320 feet along the North line of the SE ¼ of the SE ¼ of Section 22, Township 13, Range 7 East, in Calhoun County.
This is the fifth time this case has been before this court. The prior appeals are reported as follows: Mintz v. Millican, 248 Ala. 683, 29 So.2d 230: Millican v. Mintz, 251 Ala. 358, 37 So. 2d 425; Millican v. Mintz, 255 Ala. 569, 52 So. 2d 207; Millican v. Mintz, 260 Ala. 22, 68 So.2d *771 702. We see no necessity of detailing here the points dealt with on the other appeals.
The jury returned a verdict in favor of defendant Millican. The plaintiff's motion for a new trial being overruled, he brought this appeal.
There are 34 assignments of error, many of which are either expressly waived or not insisted upon. Our decision will be limited to those properly presented for review.
The record, on first consideration, presents a seemingly unending complex pleading situation. However, after considerable time spent in reading and rereading it, we are at the conclusion that the two principal issues presented for review on this appeal are as follows: (1) Whether the plaintiff (Mintz) has acquired title to the strip of land by adverse possession, and (2) whether he is entitled to the strip under the 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." Isaacks v. Clayton, 254 Ala. 450, 451, 48 So. 2d 536, 537.
Plaintiff's complaint, as it went to the jury, consisted of amended Count A, seeking recovery of the following lands:
The defendant, in suggesting that the suit arises over a disputed boundary line, describes the location of the true line as follows:
It is to be noted that defendant's description of the true line includes portions not now before us. We are concerned only with the boundary line between the NE ¼ of the SE ¼ and the SE ¼ of the SE ¼, Section 22.
For a better understanding of the situation we reproduce, in the rough, the following portion of the Lee map:
The plaintiff filed ten separate replications to the defendant's suggestion of a boundary line dispute. Only numbers 1, 5, 6, 7 and amended No. 8 are before us.
In Replication No. 1 the plaintiff took issue with the defendant "as to the truth of the averments contained in his written suggestion concerning the location of the disputed boundary line".
In Replication No. 5 plaintiff avers that "he has been in possession of the strip of land described in Count A of his amended complaint for a consecutive and continuous period of more than ten years next preceding the filing of this suit of ejectment" *773 and that "his possession thereof during said period has been hostile under a bona fide claim of ownership, actual, open, notorious, exclusive, and continuous for said period of ten years under claim of right next preceding the filing of his suit in ejectment against the defendant in this cause."
In Replication No. 6 he avers that he and his predecessors in title have been in continuous adverse possession of the strip of land sued for as described in Count A for a period of 20 years next preceding the filing of the suit in this cause.
In Replication No. 7 it is alleged that plaintiff's predecessors in title had been in adverse possession of the strip of land "for a period of from 30 to 60 years next preceding the filing of his suit * * * in this cause."
Amended Replication No. 8 is as follows:
We have given most careful consideration to the evidence and are persuaded that the two questions, set out above, presented issues of fact for the jury's determination. While there was evidence from which the jury might have concluded the issues in favor of plaintiff, there was also evidence supporting the jury's finding in favor of the defendant. "When there is no evidence to support the verdict, it is clearly the duty of the court to grant a new trial; * * *. But, when there is evidence on both sides, or some evidence to support the verdict, it should not be set aside, because it may not correspond with the opinion of the court, as to the weight of the testimony, or because it is against the mere preponderance of the evidence. * * * (T)he decision of the trial court, refusing to grant a new trial on the ground of the insufficiency of the evidence, or that the verdict is contrary to the evidence, will not *774 be reversed, unless, after allowing all reasonable presumptions of its correctness, the preponderance of the evidence against the verdict is so decided as to clearly convince the court that it is wrong and unjust." Cobb v. Malone & Collins, 92 Ala. 630, 635, 9 So. 738, 740. As said in Smith v. Smith, 254 Ala. 404, 408, 48 So. 2d 546, 548:
We cannot say that the trial court erred in overruling the motion for new trial on the grounds that the verdict was contrary to the preponderance and great weight of the evidence.
The other assignments of error insisted upon relate to the giving of several requested charges for the defendant and to rulings on the admission of evidence.
The giving of charge 2, requested by defendant, was not error. The identical charge was approved in Veitch v. Hard, 200 Ala. 77, 79, 75 So. 405.
It was not reversible error to give defendant's requested charge 7. Whether the possession to a given location is adverse is one of intention. Barbaree v. Flowers, 239 Ala. 510, 512, 196 So. 111; Branyon v. Kirk, 238 Ala. 321, 325, 191 So. 345; Gibson v. Gaines, 198 Ala. 583, 585-586, 73 So. 929; McLester Building Co. v. Upchurch, 180 Ala. 23, 25-26, 60 So. 173.
The giving of defendant's charge 11 was not error. In Spradling v. May, 259 Ala. 10, 15, 65 So. 2d 494, 498, it was said:
It is contended that error was committed in overruling plaintiff's objection to the following question directed to witness Welch (defendant's predecessor in title) on cross-examination, viz.: "Now, how many forties did you have there that joined Mr. Mintz?" The deed containing a description of the land owned by the witness had already been introduced by the plaintiff on direct examination. We do not see any error in allowing a cross-examination of the witness on evidence already introduced by the plaintiff.
Assignments of error 26 and 27 relate to the overruling of plaintiff's objections to questions directed to two of his witnesses on cross-examination. Since the questions were not answered no error could have resulted from the court's ruling.
Appellant's next assignment of error relates to the following testimony (on cross-examination of one of appellant's witnesses):
A reading of the testimony, both before and after the question, shows that the *775 purpose of the question was to draw from the witness the fact that both the witness and his father had at one time owned land on either side of the alleged Bailey McClellan line. Therefore, the question was not objectionable since obviously it was asked to test the witness' knowledge of the McClellan line and to shed light on whether and when a survey had been made of the line between the two forties with which we are here concerned.
Appellant claims as error the action of the court in allowing appellee to question appellant as to whether he had assessed for taxation the strip of land sued for. While it is true that in a case involving a question as to boundaries between coterminous owners the statute (Code 1940, Tit. 7, § 828) prescribing the requisites to confer or defeat title to land by adverse possession (one of the alternate requisites being the annual listing of the land for taxation for ten years) is inapplicable (§ 828, Tit. 7, supra; Guy v. Lancaster, 250 Ala. 226, 228, 34 So.2d 10), we do not think reversible error was committed in overruling appellant's objection. Aside from any other consideration, the trial court charged the jury, in effect, that the question of assessing property and paying taxes thereon is not involved in a case of this kind.
Appellant argues that it was error to sustain an objection to the following question:
The court did not err in sustaining the objection to this question. The question, as phrased, was obviously too broad since it was not limited to the knowledge of the witness.
Appellant argues that the court committed error in allowing the surveyor to testify that he sent word to appellant that a survey was about to begin. We fail to see how this can be error to reverse, especially in view of appellant's testimony admitting that he received word that a survey was about to be run.
Appellant claims that the trial court erred in allowing appellee to introduce a map of the survey as run by Mr. Lee. The reason for such objection is that the map bears a dotted line referred to on the map as the "Morton Line." It is argued that failure to expunge this line from the map was reversible error. We cannot agree. In the first place, the line referred to as the "Morton Line" is located at the same place as the line referred to as the "Bailey McClellan line"; that is, appellant claims that the true line between the two forties is located 179 feet south of the Lee line. The dotted line (Morton line) shown on the map of the Lee survey is represented to be 179 feet below the Lee line, the exact place to which appellant is claiming. Therefore, we fail to see how it could be error for appellee to show on paper what appellant had been attempting to show by his own witnesses.
There being no error to reverse, the judgment appealed from is due to be affirmed.
Affirmed.
LIVINGSTON, C. J., and SIMPSON and COLEMAN, JJ., concur. | October 24, 1957 |
5b6e63df-ad4c-4a6d-86af-d2867448a641 | Ex Parte Little | 95 So. 2d 269 | N/A | Alabama | Alabama Supreme Court | 95 So. 2d 269 (1957)
Ex parte Earl LITTLE et al.
8 Div. 899.
Supreme Court of Alabama.
May 9, 1957.
*270 Guin & Guin, Russellville, for petitioners.
Thos. C. Pettus, Moulton, and Russell W. Lynne, Decatur, for respondent.
LAWSON, Justice.
This is an original petition filed in this court for writ of mandamus to be directed to the Honorable S. A. Lynne as Judge of the Circuit Court of Lawrence County, in Equity.
The case made by the petition and the exhibits thereto is substantially as follows:
On March 6, 1950, Arthur McCollum and others filed their bill in the circuit court of Lawrence County, in equity, against Fannie Little, wherein it was alleged that the complainants and the respondent were all of the heirs at law of one Joe McCollum who died intestate on or about January 4, 1950. The bill prayed that a deed from Joe McCollum to the respondent, Fannie Little, bearing date of February 5, 1947, be cancelled and held for naught on the ground that the said Joe McCollum was a non compos mentis on February 5, 1947. The bill further prayed that the lands described in the deed be sold for division of proceeds among the complainants and the respondent as the only heirs at law of the said Joe McCollum, deceased.
The respondent answered the bill and later made her amended answer a cross bill. The respondent, Fannie Little, died intestate on or about December 18, 1954, after a considerable amount of testimony which had been taken orally before the trial court had been transcribed and filed *271 by the official court reporter, but before a final decree was rendered and apparently prior to the completion of the taking of testimony.
On June 14, 1956, the complainants filed in the circuit court of Lawrence County, in equity, a pleading, the caption and opening paragraph of which, in pertinent parts, read as follows:
In most other respects the pleading last referred to above is in the form of an original bill filed against the heirs at law of the said Fannie Little, deceased, wherein the same relief is sought as was prayed for in the bill against Fannie Little filed on March 6, 1950.
On or about September 22, 1956, Earl Little and James Little, two of the so-called substituted defendants, appeared specially in the cause styled Arthur McCollum, et als., v. Fannie Little, and filed a motion to dismiss and abate that cause on the ground: "That the defendant named in the original bill, Fannie Little, died intestate on or about December 18, 1954, that no motion to revive the cause was filed in this court within 12 months from the date of her death, that no order of revival was made by this honorable court within said period of 12 months following her death, and that in fact no order of revival has been made to this date, and that any revival of said action is therefore barred by limitations pursuant to the provisions of Code of 1940, Title 7, Section 153(1)."
The above-mentioned motion to dismiss and abate the cause styled Arthur McCollum, et als., vs. Fannie Little, was overruled and denied on October 25, 1956.
Thereafter, on or about November 5, 1956, Earl Little and James Little, again appeared specially and filed pleas in abatement in the cause styled Arthur McCollum, et als., v. Fannie Little.
The averments of the pleas in abatement were substantially the same as those of the motion to dismiss and abate and hence need not be repeated. In a decree rendered on December 18, 1956, the trial court held the pleas in abatement insufficient. This decree followed a motion filed by Earl and James Little to have the cause set down for hearing to test the sufficiency of the pleas in abatement. Equity Rule 16, Code 1940, Tit. 7 Appendix.
The petition for mandamus was filed in this court on January 28, 1957. On February 4, 1957, an order was entered as follows: "Rule nisi granted as prayed returnable to the call of the 2nd Div." There was immediately issued out of this court an order commanding the respondent judge to make and enter an order setting aside and vacating his order or decree denying and overruling petitioner's motion to dismiss and his order or decree holding petitioner's plea in abatement insufficient and to enter an order and decree dismissing that certain cause styled Arthur McCollum et als., Complainants, vs. Fannie Little, Defendant, or to show cause before this court why the peremptory writ of mandamus should not issue.
Thereafter on March 20, 1957, Judge Lynne filed in this court his demurrer to the petition for mandamus and his answer or return to the alternative writ. The *272 cause was submitted here without argument, on briefs, on March 22, 1957.
It is settled that the sufficiency of a petition for writ of mandamus may be tested by appropriate demurrer. Ex parte Carroll, 263 Ala. 212, 82 So. 2d 190; Ex parte Alphonse, 261 Ala. 177, 73 So. 2d 727; Ex parte Jackson, 212 Ala. 496, 103 So. 558; Ex parte Hennies, 33 Ala.App. 229, 34 So. 2d 17.
Grounds 1 and 2 of the demurrer filed here on behalf of Judge Lynne are respectively as follows:
No appeal can be taken from a decree overruling or sustaining the sufficiency of a plea. §§ 754, 755, Title 7, Code 1940; Dorrough v. McKee, 264 Ala. 663, 666, 89 So. 2d 77, 79, and cases cited. Nor will an appeal lie from an order or decree overruling a motion to dismiss. Mabry v. Dickens, 31 Ala. 243.
Such rulings are subject to review on appeal from a final decree and hence we do not ordinarily entertain a petition or motion for mandamus to review. Dorrough v. McKee, supra. See Ex parte Carroll, supra. In Dorrough v. McKee, supra, we entertained the petition for mandamus to review the ruling of the trial court upholding the sufficiency of a plea in abatement because there was no relief by appeal since the decree dismissing the complainant's bill was not in such form as to support an appeal.
There are exceptions to the general rule to the effect that we will not review such interlocutory decrees by mandamus, some of which are referred to in Brittain v. Jenkins, 263 Ala. 683, 83 So. 2d 432. In the instant case it does not appear that the matter complained of comes within any of the established exceptions to the general rule. It is not necessary to a decision of this case that we attempt to reconcile seeming inconsistencies arising out of the prior exercise of the court's discretion or that we seek to arrive at a more definitive standard concerning the circumstances under which an exception may be made to the general rule. Cf. Thomas v. State, 241 Ala. 381, 2 So. 2d 772. It is sufficient to adhere to our holding in Ex parte Brooks, 264 Ala. 674, 89 So. 2d 100, to the effect that expense and inconvenience do not work an exception to the general rule. As heretofore shown, the petitioners by answering the so-called amended bill will not waive their right to assign as error on appeal from a final decree the action of the trial court in regard to the so-called motion to dismiss and in regard to the pleas in abatement. Dorrough v. McKee, supra.
We conclude that the demurrer to the petition for mandamus is well taken and should be sustained; that the alternative writ issued by this court on February 4, 1957, should be withdrawn and held for naught; and that the prayer for the peremptory writ should be denied.
Although we are of the opinion that mandamus should not issue in this case, we feel that it would be well to express our views concerning the time within which an order of substitution must be made in equity cases.
We have interpreted Equity Rule 35 and the provisions of Act No. 708, approved October 9, 1947, General Acts 1947, p. 543 (1955 Cum. Pocket Part, Vol. 2, Code 1940, p. 34, where the compiler and publisher of the Pocket Part refers to the provisions of the 1947 Act as § 153[1], Title 7), as mandatory to require the order of substitution to be made within twelve months after the death of a party unless the party sought to be substituted makes such order unnecessary. Webster v. Talley, *273 251 Ala. 336, 37 So. 2d 190; Osbourn v. LoBue, 256 Ala. 121, 53 So. 2d 610; Vaughan v. Vaughan, 258 Ala. 336, 62 So. 2d 466. So, assuming solely for the purpose of discussion that the 1947 Act, supra, is unconstitutional as argued, the order of substitution would have to be made within twelve months under Equity Rule 35, unless there has been a waiver.
There are some apparent inconsistencies in our cases as to whether the 1947 Act, supra, was intended and has the effect of superseding the provisions of Equity Rule 35. The writer is not inclined to the view that the said act was intended to supersede the rule, being of the opinion that the two were intended to be considered together, the rule dealing with revival and the act dealing primarily with the survival of causes of action. The writer entertains the opinion that the 1947 Act, supra, was adopted to meet the decision of this court in Land v. Cooper, 244 Ala. 141, 12 So. 2d 410; Id., 247 Ala. 397, 24 So. 2d 436, and similar holdings. However, the other participating Justices see no occasion to try to reconcile the apparent inconsistencies in this opinion. Compare Sawyer v. Nettles, 263 Ala. 220, 82 So. 2d 220, and Glass v. Cook, 257 Ala. 141, 57 So. 2d 505, with Webster v. Talley, supra; Osbourn v. LoBue, supra; Mutual Service Funeral Homes v. Fehler, 257 Ala. 354, 58 So. 2d 770; Vaughan v. Vaughan, supra. However, we would like to observe that in Vaughan v. Vaughan, supra, we incorrectly referred to the 1947 Act, supra, as being amendatory of § 153, Title 7, Code 1940, which is not the case.
We realize that we have made observations that are unnecessary to the disposition of this proceeding. However, because the record discloses that the learned trial judge entertains views which are at variance with our own, we have felt constrained to observe that in our opinion an order of substitution must be entered within twelve months after the death of a party unless there has been a waiver.
Demurrer to petition for mandamus sustained; the alternative writ is withdrawn and the peremptory writ is denied.
LIVINGSTON, C. J., and STAKELY and MERRILL, JJ., concur. | May 9, 1957 |
f0d0cf3a-a70d-4fbe-8fae-d2ab9ab9facd | Ison Finance Co. v. Glasgow | 96 So. 2d 737 | N/A | Alabama | Alabama Supreme Court | 96 So. 2d 737 (1957)
ISON FINANCE CO., d/b/a Alabama Industrial Finance Co.
v.
Hugh C. GLASGOW.
6 Div. 86.
Supreme Court of Alabama.
August 22, 1957.
*738 Levine & Fulford, Birmingham, and Ling & Bains, Bessemer, for appellant.
Carl Ross, Bessemer, and A. H. Nichols, Ensley, for appellee.
PER CURIAM.
This is an action of statutory detinue for the recovery of an automobile. There were verdict and judgment for plaintiff which the court set aside on motion of defendant. Plaintiff has appealed under authority of section 764, Title 7, Code, as amended.
Plaintiff claims title as transferee of an instrument in writing, executed by defendant, containing a promise for the payment of $1,600 as the balance of the purchase price of the automobile sued for, said payment being in installments of $75 a month for fourteen months, and $1,005.10 to be paid at the time of maturity of the last $75 installment. The Wood Chevrolet Company sold the automobile to the defendant. The seller and defendant executed the contract in question, and the seller assigned it without recourse to plaintiff. The fourteen installments of $75 each were paid to plaintiff by defendant, but always payment was delayed and plaintiff usually had an outside man to call on defendant with reference to the collection, thereby incurring and necessitating the payment of a collection charge as provided by the contract. The note of $1,005.10 (which is referred to as the "balloon note") was not paid on November 12, 1955, when it fell due. The contract (section 4) provides that if the purchaser defaults as stipulated, the seller may take immediate possession of the automobile without demand and resell it at public or private sale without demand for performance, with or without notice, with power of the seller to bid at any public sale. The expense for retaking, repairing and selling the same to be deducted from the price paid, and the balance to be applied to the amount due, with any surplus to be paid over to the purchaser in the transaction, and with the obligation of the purchaser to pay any balance of the debt, if any, after crediting the same on the debt.
The instrument in question is the form used by General Motors Acceptance Corporation in financing the transaction. We may add that, as indicated by other cases before this Court, it is in substance the form commonly used to finance such transactions. Such an instrument has been defined by this Court as a mortgage although the first part of it is in the form of a conditional sale. American Discount Co. v. Beck, 263 Ala. 470, 83 So. 2d 232; Bern v. Rosen, 259 Ala. 292, 66 So. 2d 711.
As a mortgage, the instrument must be in writing and subscribed by the mortgagor. Section 2, Title 20, Code. That means in *739 substance that to that extent it is governed by principles similar to the statute of frauds.
The motion for a new trial contains six grounds. They may be divided into two parts, (1) that the verdict of the jury is contrary to the great preponderance of the evidence (variously expressed), and (2) that it is contrary to the law. Such general grounds present only the first as sufficient upon which the court is authorized to act. It does not reach questions of law. Cobb v. Malone, 92 Ala. 630, 9 So. 738; Suits v. Glover, 260 Ala. 449, 71 So. 2d 49, 43 A.L. R.2d 465; Roan v. McCaleb, 264 Ala. 31, 84 So. 2d 358.
The matter argued by appellee to support the action of the court in granting the motion for a new trial must be considered in the light of its legality, and should be treated at the outset. It is in substance that plaintiff agreed to refinance in a certain way the "balloon note" when it became due.
The transaction had the form of a contract between the seller and defendant, transferred to plaintiff without recourse. But before the purchase was made plaintiff and defendant agreed that plaintiff would finance the deferred portion of the purchase price. So that plaintiff was in substance a lender of the money to defendant, secured by a transfer of the contract and notes, and was the real party in interest. He stands in relation to defendant as a party to the contract which was in writing.
The court conducted the trial on the theory that a contract may be partly written and partly verbal at the time of its execution provided the oral part does not purport to change the terms of the written part; but that all discussion and negotiation are merged into the contract if it is reduced to writing: also that an unperformed contract (executory), though in writing, may be amended or changed by a subsequent oral agreement if founded on a valuable consideration (and it may be added, if it is not within the statute of frauds).
There is not much trouble, we think, with the broad statement of those principles which the court adopted. But much care must be taken in their application. There are also some further elements material for present purposes.
In order for a valid contract to be in part written and in part oral, the oral part must be independent and collateral to the written contract and not vary its written terms. Thompson Foundry & Machine Co. v. Glass, 136 Ala. 648(2), 22 So. 811; Morningstar v. Querens, 142 Ala. 186, 37 So. 825. Applying that principle in Stallings v. Savage, 206 Ala. 486, 90 So. 904, where the written contract for the purchase of an automobile contained a provision that it constituted the entire contract, it was held that the purchaser could not prove that the seller verbally agreed at the time of executing the contract to equip and repair the car. Paragraph 6 of the instant contract contains a similar clause.
Parol evidence that a date of maturity as unequivocally expressed in a note is not its true maturity, may not be admitted as that contradicts the terms of the note. Moore v. Williamson, 213 Ala. 274(5), 104 So. 645, 42 A.L.R. 981.
In the case of Ford v. Southern Motor Co., 208 Ala. 170, 93 So. 902, this Court approved an extract from 22 Corpus Juris 1095 (which is drafted in 32 C.J.S. Evidence § 1003, p. 988, note 76), as follows:
To the same effect are the cases of Doss v. Peterson, 82 Ala. 253, 2 So. 644, and Gliddens v. Harrison, 59 Ala. 481.
*740 Therefore, it is not permissible to prove that the plaintiff, who was a party to the contract, agreed at or before its execution to "refinance" the "balloon note" by an extension of its due date or a renewal of it.
Although an instrument is not required to be in writing, an agreement subsequently made whereby one of the parties obligates himself in respect thereto must be supported by a consideration. Stallings v. Savage, supra; Moore v. Williamson, supra. A subsequent agreement may be made to extend the time of the payment of a note, but it must be based upon a valuable consideration. Cox v. Mobile & G. R. Co., 37 Ala. 320; David v. Malone, 48 Ala. 428; Scott v. Scruggs, 95 Ala. 383, 11 So. 215; Ray v. Summerlin, 211 Ala. 334, 100 So. 482; Malcomb v. Robinson, 230 Ala. 474, 161 So. 510.
The evidence offered here, and introduced over the objection of plaintiff, as to what occurred at or before the execution of the contract, was intended to vary the terms of the written agreement as to the date of payment of the "balloon note", thereby undertaking to show that when plaintiff brought this suit it had no right to the possession of the property because there was no default. But that evidence was as to what was said at or before the time of the execution of the contract and contradicts its terms. What occurred later as to refinancing the "balloon note", although it was in the letter of November 4, 1955, is not a definite offer and contains no details of the contemplated refinancing. Moreover, its offer was not accepted by defendant, and the next day thereafter plaintiff wrote to defendant withdrawing such offer. But if the evidence was otherwise sufficient there was no consideration for a subsequent agreement to extend or refinance the "balloon note".
It is next insisted by appellee that the custom in the trade to refinance the "balloon note" is equal to an agreement read into the transaction that it will be done. In other words, such custom amounts to a promise made and recited in the contract that a default in the payment of that note is not such a default as to justify a recovery of the property, although under the terms of the contract it may be done. This contention loses sight of the rule that a custom cannot be operative if it is opposed to the express language of the contract. It may serve to clarify an ambiguity in a contract but cannot vary it. Kiley v. Pacific Mutual Life Ins. Co., 237 Ala. 253(4), 186 So. 559; Stephenson Brick Co. v. Bessemer Engineering & Construction Co., 224 Ala. 494(2), 140 So. 573; Benton Mercantile Co. v. Owensboro Wagon Co., 207 Ala. 49, 91 So. 784; Grand Bay Land Co. v. Simpson, 205 Ala. 347(5), 87 So. 186; Loval v. Wolf, 179 Ala. 505(12), 60 So. 298; Western Railway of Alabama v. Hart, 160 Ala. 599(11-12), 49 So. 371; 25 C.J.S. Customs and Usages § 30, p. 118; 7-A Alabama Digest, Customs and Usages. page 16. The contract here in question is clear and unambiguous and states in effect that it expresses the entire contract. The custom or use relied on is contradictory of the contract and does not serve to clarify an ambiguity.
Appellee also insists that the judgment was properly set aside because it did not ascertain the amount of the mortgage debt as authorized by section 929, Title 7, Code.
The plea was the general issue in short by consent with leave to give in evidence any matter which would be admissible in defense as if well pleaded. The case of Burgin v. Stewart, 216 Ala. 663, 114 So. 182, seems to recognize the fact that such pleading is sufficient to invoke the benefit of that statute (section 929). But the record in this case shows no effort to do so. The judge did not mention it in his general charge. There *741 was no special charge requested seeking such finding. The motion for a new trial does not refer to it. It is not therefore sufficient to justify the ruling of the court on the motion.
It results that the judgment of the lower court should be reversed and one should be here rendered denying the motion for a new trial.
The foregoing opinion was prepared by FOSTER, Supernumerary Justice of this Court, while serving on it at the request of the Chief Justice under authority of Title 13, section 32, Code, and was adopted by the Court as its opinion.
Reversed and rendered.
All the Justices concur, except STAKELY, J., not sitting. | August 22, 1957 |
af24d269-f7ac-46e1-861c-48e8c7da8c38 | Ingalls v. Hare | 96 So. 2d 266 | N/A | Alabama | Alabama Supreme Court | 96 So. 2d 266 (1957)
Robert I. INGALLS, Jr., as Cotrustee and Guardian, et al.
v.
Francis H. HARE et al. (two cases).
6 Div. 648-649.
Supreme Court of Alabama.
June 20, 1957.
*268 Jas. P. Bradford and Clifford Reeves (guardian ad litem), Birmingham, for appellants.
Lange, Simpson, Robinson & Somerville, Birmingham, pro se, appellee and cross-appellant.
Waites & Tucker, Birmingham, pro se, appellee and cross-appellant.
Cabaniss & Johnston, Birmingham, pro se, appellee.
Francis H. Hare, pro se and Wilkinson & Skinner, Birmingham, for appellee and cross-appellant Hare.
LAWSON, Justice.
In several cases previously decided by this court, we have been called upon to review decrees of the circuit court of Jefferson County, in equity, which have dealt with the so-called Ingalls Trusts, which for convenience have been designated as Trusts A, B, C, D, E, F, and G.
On November 13, 1950, the circuit court of Jefferson County, in equity, in a cause bearing Circuit Court No. 78710, rendered a decree which in pertinent part reads as follows:
That decree was rendered in a cause where the complainants in the amended bill were: (1) Elesabeth Ridgley Ingalls and Barbara Gregg Ingalls, minors, who sued by their guardian, Robert I. Ingalls, Jr.; (2) Robert I. Ingalls, Jr., as trustee for the use and benefit of Elesabeth Ridgley Ingalls and Barbara Gregg Ingalls. The respondents to the amended bill were Robert I. Ingalls, Sr., Mrs. Ellen Gregg Ingalls, the First National Bank of Birmingham, and M. F. Pixton. Robert I. Ingalls, Jr., referred to in the decree of November 13, 1950, from which we quoted above, as the "complainant," is the father of Elesabeth *269 Ridgley Ingalls and Barbara Gregg Ingalls, who for present purposes may be said to be the sole beneficiaries of Trusts "B to G."
Robert I. Ingalls, Jr., was a cotrustee of each of those trusts except Trust D, of which he was the settlor. The cotrustees of Trust D were Robert I. Ingalls, Sr., and the First National Bank of Birmingham. The cotrustees of Robert I. Ingalls, Jr., in the other trusts involved in Case No. 78710 at the time the suit was filed were as follows: Trust B, The First National Bank of Birmingham; Trust C, his father, Robert I. Ingalls, Sr.; Trust E, his mother, Ellen Gregg Ingalls, and the First National Bank of Birmingham; Trust F, his mother, Ellen Gregg Ingalls, and M. F. Pixton; Trust G, his father, Robert I. Ingalls, Sr., and M. F. Pixton.
The purpose of the amended bill filed in the cause bearing Circuit Court No. 78710 was to have the respondents to that bill removed as trustees of the several trusts involved. There was no pleading filed seeking the removal of Robert I. Ingalls, Jr., as trustee of any of the trusts. Nevertheless he was included in the decree of removal on the theory that he had submitted himself to the jurisdiction of the court and that the evidence showed the need of new trustees to administer the trusts promptly, impartially, capably and fairly, without hindrance from self-interest.
The respondents in the cause bearing Circuit Court No. 78710 appealed to this court from the decree of November 13, 1950, rendered in that cause. Robert I. Ingalls, Jr., did not take a cross appeal or make cross assignments of error.
In the court below and in this court the firm of Lange, Simpson, Robinson and Somerville, of Birmingham, represented Robert I. Ingalls, Sr., and his wife, Ellen Gregg Ingalls. The firm of Cabaniss and Johnston, of Birmingham, represented the First National Bank of Birmingham, and the firm of Waites and Tucker, of Birmingham, represented M. F. Pixton. Hon. Francis H. Hare and Hon. Charles W. Greer, of Birmingham represented the "complainant" below.
When the cause reached this court it was designated as 6 Div. 194. After submission here the death of the appellant Robert I. Ingalls, Sr., removed him as a trustee. On June 26, 1952, this court in an opinion reported in Ingalls v. Ingalls, 257 Ala. 521, 59 So. 2d 898, reversed the decree of November 13, 1950, removing Mrs. Ellen Gregg Ingalls, M. F. Pixton, the First National Bank of Birmingham, and Robert I. Ingalls, Jr., as trustees of the several trusts. The cause was remanded.
On the same day that the original bill in 78710 (6 Div. 194) was filed in the circuit court of Jefferson County, in equity, a bill was filed in that court by Robert I. Ingalls, Jr., as a trustee and beneficiary of Trust A against the First National Bank of Birmingham and against his mother, Ellen Gregg Ingalls, in her individual capacity and in her capacity as a trustee of Trust A, seeking the removal of the First National Bank of Birmingham as a trustee of Trust A. That cause, which was given Circuit Court No. 78707, was consolidated by the trial court with the cause bearing Circuit Court No. 78710 for trial. §§ 221 and 259, Title 7, Code 1940. Both cases were submitted for final decree in July, 1950, and separate decrees were rendered on November 13, 1950. The decree rendered and entered in 78707, supra, removed all of the trustees of Trust A, including Robert I. Ingalls, Jr., although no pleading had been directed to the end that he or Mrs. Ellen Gregg Ingalls be removed.
The First National Bank of Birmingham and Mrs. Ellen Gregg Ingalls prosecuted an appeal to this court from the decree rendered in 78707, supra. Robert I. Ingalls, Jr., did not appeal or make cross assignment of error. Upon submission here that appeal was given our number 6 Div. 193. We disposed of that appeal on June 26, 1952, the same day on which we decided 6 *270 Div. 194. The opinion of this court in 6 Div. 193 concluded in this language:
The parties in 78707 (6 Div. 193) were represented by the same counsel in the court below and in this court as appeared for them in 78710 (6 Div. 194).
After reversal by this court both suits were dismissed by the complainants, but the trial court retained jurisdiction for the purpose of considering the question of the allowance of attorneys' fees out of the trust estates and a guardian ad litem was appointed to represent the minor beneficiaries of the trusts involved.
After a hearing wherein testimony was taken ore tenus, the trial court rendered a decree, made applicable to both cases, which reads as follows:
"Decree Fixing Attorneys' Fees
"First: To cash on hand.
"Second: To so-called invested income.
*272 "Third: The corpus of each of said trusts.
"Done and Ordered this the 15th day of July, 1953.
"Filed in office July 15, 1953."
From that decree which was entered in No. 78707, as well as in No. 78710, appeals were taken to this court in each case by the guardian ad litem and by the trustees. Hon. Francis H. Hare has filed a cross appeal in each case. The firms Lange, Simpson, Robinson & Somerville and Waites & Tucker have separately made cross assignments of error in each case. Rule 3, Revised Rules of Practice in the Supreme Court, 1955 Cum. Pocket Part, p. 221, Vol. 2, Code 1940, Tit. 7 Appendix; 261 Ala. XXI. The appeals were submitted here on separate records, but upon submission an order of consolidation was entered. The appeals from the decree entered in the cause bearing circiut court No. 78707 is our 6 Div. 648, while the appeals taken from the decree entered in 78710 is our 6 Div. 649.
The first question which we will consider is whether the trial court erred in ordering that attorneys' fees in any amount be paid out of any of the trusts to the attorneys who represented the respondents in the removal suits.
In Cornett v. West, 102 Wash. 254, 173 P. 44, a suit by a trustee to bring about the removal of his cotrustee, the Washington court, after observing that the contest was one mainly personal to the trustees, held each party should bear his own costs and disbursements, including attorneys' fees. To like effect are the holdings in Ingram v. Kirkpatrick, 43 N.C. 62, and in Henley v. Philips, 2 Atk. 48.
It has been generally recognized that the Ingalls removal suits stemmed from the controversy between Mr. Ingalls, Sr., and Mr. Ingalls, Jr., over the control of Ingalls Iron Works Company. See Ingalls v. Ingalls, 257 Ala. 521, 59 So. 2d 898; First Nat. Bank of Birmingham v. Ingalls, 257 Ala. 536, 59 So. 2d 914. That controversy was a bitter and continuing one. As Mr. Ingalls, Jr., pursued his efforts to gain control of the company through the use of the company stock held by the several trusts, he was met with opposition not only by his father but by the other trustees. So it must be admitted that by the time the removal suits were instituted there was very little harmony, if any, between Mr. Ingalls, Jr., and any of the other trustees. But we are convinced, after a reading of the voluminous records before us in these cases, and a rereading of many of the hundreds of pages contained in the transcripts filed here in the removal cases, that in defending the removal suits the trustees, Mrs. Ingalls, Mr. Pixton, and the First National Bank of Birmingham, acted not for selfish gain, not for reasons personal to themselves, but because they believed that it was unquestionably to the best interests of the trust estates that the management of Ingalls Iron Works Company not fall into inexperienced hands, as well it might have done if Mr. Ingalls, Jr., had been successful in his efforts at that time to obtain cotrustees who would align themselves with him against his father, who established the company, selected its key personnel, and had been in fact its guiding genius. The success and financial stability of Ingalls Iron Works Company was, of course, a matter of proper *273 concern for the trustees inasmuch as the stock of that company composed practically all of the corpus of the several trusts.
We are convinced that the controversy was not "one mainly personal to the trustees" as was held to be the situation in Cornett v. West, supra, and the other cases cited above.
The respondent trustees were charged with fiduciary misconduct in the removal suits and the trial court, as shown above, removed them along with Mr. Ingalls, Jr. But this court reversed that action as to Mrs. Ingalls, Sr., Mr. Pixton and the First National Bank of Birmingham, as it did in the case of Mr. Ingalls, Jr. The respondent trustees named above were ably and successfully defended by their respective counsel. Mr. Ingalls, Sr., died shortly after the removal cases were submitted to this court, hence the trial court's action as to him was not reviewed.
In these cases, the trustees were, in our opinion, justified in employing separate counsel to maintain their defense. None of the respondents were trustees of all of the trusts involved and they were charged with different acts of fiduciary misconduct.
We are clear to the conclusion that the successful defense of the several trustees who were before this court in the removal cases redounded to the benefit of the trusts involved and that such defense was made in good faith. Hence, we hold that the trial court did not err in ordering that counsel who represented these trustees be compensated for their services out of the trusts. Section 63, Title 46, Code 1940; Dent v. Foy, 214 Ala. 243, 107 So. 210; Wilkinson v. McCall, 247 Ala. 225, 23 So. 2d 577; Coker v. Coker, 208 Ala. 239, 94 So. 308; Penney v. Pritchard & McCall, 255 Ala. 13, 49 So. 2d 782, 22 A.L.R.2d 1430; King v. Keith, 257 Ala. 463, 60 So. 2d 47; King v. Smith, 247 Ala. 1, 22 So. 2d 336; Gordon v. Guernsey, 316 Mass. 106, 55 N.E.2d 27; Zaring v. Zaring, 219 Ind. 514, 39 N.E.2d 734; In re Daly's Estate, 203 Misc. 851, 120 N.Y.S.2d 896; Matter of Bishop's Will, 277 App.Div. 108, 98 N.Y.S.2d 69.
Each and all of the trusts involved in the removal suits received benefits from the services rendered by the attorneys who represented the respondent trustees, hence we feel that the trial court was justified in requiring each of the trusts involved to bear a part of the costs of such representation. See Olson v. Foster, 42 Cal. App. 2d 493, 109 P.2d 388. The beneficiaries (the then minor children) were the same in all of the trusts, except in Trust A, and in that trust they were contingent beneficiaries. The current beneficiaries of Trust A were and are the children's father and grandmother, who were parties to these suits as cotrustees.
Since all attorneys' fees and costs would come out of the same pocket, no matter what trust paid them, the trial court undoubtedly considered that the most practical way of taxing the fees would be proportionately against each trust. The trusts were so interwoven in these cases that each attorney was compelled to read or study every legal proceeding with respect to each and every trust. The trial court knew that there was no separability of attorneys' services as between the trusts involved in the removal suits.
We come now to a consideration of the contentions made in regard to the size of the fee, $60,000, awarded the firm of Lange, Simpson, Robinson & Somerville. In briefs filed here by the guardian ad litem and by the trustees it is asserted that the amount of the fee is excessive. On the other hand, that firm in support of its cross assignments of error strenuously and earnestly argues that the amount of the attorney's fee awarded to it is entirely inadequate.
In estimating the value of legal services, the following are among the elements material for consideration: time, labor, skill, experience, professional reputation, weight of responsibility, nature and value of services involved, and the results *274 accomplished by the rendition of the services. Frazer v. First Nat. Bank of Mobile, 235 Ala. 252, 178 So. 441; King v. Keith, 257 Ala. 463, 60 So. 2d 47. The trial court, in connection with a consideration of the opinion evidence proffered by qualified experts, may call to his aid his own estimate of the value of such legal services after considering the aforementioned elements and, generally speaking, the allowance rests within the sound judicial discretion of the trial court. Dent v. Foy, 214 Ala. 243, 107 So. 210.
However, this court has the right, as did the trial court, to look to the whole record on the question of the value of attorneys' services, and may treat opinions of witnesses as advisory and may render such decree fixing attorneys' fees as it deems right and proper under all the circumstances. King v. Keith, supra; Frazer v. First Nat. Bank of Mobile, supra. But we make such review with the presumption in favor of the ruling of the court below and will not set aside its decree unless we are convinced that that court abused the discretion wisely vested in it. King v. Keith, supra.
In the light of the guiding principles, after a considerate and painstaking study of the records before us, including those brought here on the appeals from the removal decrees, we have become convinced that the trial court did not abuse his discretion in the allowance made to the firm of Lange, Simpson, Robinson & Somerville. His intimate knowledge of the case and all of its facets especially advantaged him to make up a correct decision as to the amount to be allowed and for us to disturb it would, in our opinion, be without warrant. King v. Keith, supra.
The trial court did erroneously include Trust B as one of the trusts involved in the removal suits. The second paragraph of the decree contains the statement that in cause number 78710 Ingalls Trusts B, C, D, E, F and G were involved. In the eighth paragraph of the decree it is said that Trust B is one of the trusts involved "in said suits." Then follows a tabulation of the trusts and the value of Ingalls stock held in each, including Trust B with a stock valuation of $1,250,000. The court then adjudges, orders and decrees: "* * * that the several attorneys' fees in these causes to be paid from the Trusts here involved, `A', `B', `C', `D', `E', `F', and `G', are as follows:" (Emphasis supplied.)
Obviously, the trial court overlooked the fact that Trust B had by amendment to the original bill been eliminated from consideration in case No. 78710, the only case in which it was originally involved. The only way that Trust B was involved was that Mr. Ingalls, Jr., who was a cotrustee of that trust, was removed although there was no prayer to that end.
The guardian ad litem and counsel for the trustees here argue that the trial court based its award of fees on values involved in the litigation and the inclusion of Trust B added $1,250,000 of value to the trust estates assertedly involved in the litigation and, hence, it is argued the court made the fees larger because of that erroneous inclusion.
We are not willing to say that the court fixed the fees on the basis of any percentage of value. It is logical to presume that, instead of fixing the fees on the basis of the percentage of total value, such total value was recited in the decree in order (a) to show the importance of the litigation and (b) to furnish the basis for the proportion of the fees which each trust was ordered to bear.
For instance, the last paragraph of the decree ordered that the trustees should pay the fee awards out of the several trusts in the proportion that the value of each trust bore to the aggregate value of all the trusts. The court was, as heretofore indicated, evidently under the erroneous impression that a trustee of Trust B was still a respondent in the removal suit (78710) and *275 hence listed the value of the stock in Trust B in order to fix the proportion of the fees awarded to the attorneys representing the respondent trustees which Trust B should bear.
We are of the opinion that the erroneous recitals in the decree to the effect that a trustee of Trust B was involved should not be considered as requiring a reduction in the amount of the fees awarded.
In any event, we are fully convinced, after a careful study of the records before us, that the total value of $6,750,000 attributed by Judge Creel to the trusts which he thought to be involved in these removal suits is not in excess of the value of those trusts which were actually involved.
We would like to observe at this point that we do not construe the decree rendered by the trial court as indicating that the amount of the fees allowed the firms representing the respondent trustees was based in any manner on services rendered by those attorneys in the so-called stock option litigation.
There is one other matter to which we should refer concerning the amount of the fee awarded to the firm of Lange, Simpson, Robinson & Somerville. The trial court made reference in the decree here under review to case No. 80667. That was another Ingalls case (the construction suit) which the same trial judge had previously decided. That suit involved these same trusts, and also Trust B, and involved most of the same lawyers. The trial court fixed the attorneys' fees in that case and they were accepted.
Nothing involved in case No. 80667 was pertinent evidence in the two cases here under consideration. There was no occasion for introducing any part of the record made in that suit in evidence in these cases. No attempt was made to do so, nor was any part of the record in case No. 80667 noted in the notes of submission in these cases.
The appellants argue that it was reversible error for the trial court to refer in the decree with which we are presently concerned to case No. 80667 and to take judicial notice of that case.
It is quite true, that with exceptions not here relevant, a trial court cannot properly take judicial notice of another suit in his court for the purpose of supplying any evidence pertinent to the suit then being heard or submitted. For instance, if the trust instruments through inadvertence had not been put in evidence in cases 78707 and 78710, the trial court could not properly have supplied the omission by taking judicial knowledge of those trust instruments as introduced in case 80667.
But that is not the case here. The trial court in his reference to case No. 80667 was not supplying any evidentiary fact whatever in these cases. He was merely calling up his experience and knowledge gained from another case. A trial judge must not close his mind to previous experiences and refuse to fall back on his general knowledge of things and mark off all analogies in forming his judgment in matters of this kind. Yet, that is all that the trial judge did in this case in connection with case No. 80667. He used his own experience and knowledge gained in another case to aid him in forming his judgment in this case. We think that was entirely proper. See Dent v. Foy, 214 Ala. 243, 107 So. 210.
We are clear as to the conclusion that the reference by the trial judge in the decree here under review to case No. 80667 should not in anywise affect the amount of the fees awarded or result in reversals.
We will next consider the size of the fee awarded the firm of Waites & Tucker. The appellants, the guardian ad litem and the trustees, contend that the amount awarded is grossly excessive. In support of their cross assignments of error *276 Waites & Tucker assert that they have been grossly underpaid and they set out in their brief a summary showing the considerable extent of their labors in defending Mr. Pixton against the charge of fiduciary misconduct. Much of what we have said above in regard to the fee awarded the firm of Lange, Simpson, Robinson & Somerville has application to the Waites & Tucker fee. No one could possibly be in a better position to evaluate the services rendered by the lawyers in these cases than the late Judge Creel, who rendered the decree here under review. He was thoroughly familiar with all of the Ingalls litigation and was conversant with the services rendered by the several lawyers involved. We can see nothing in the records before us which would justify our reaching a different conclusion in regard to the amount of the fee awarded to Waites & Tucker.
The guardian ad litem and the trustees who have appealed to this court also complain of the amount of the fee awarded the firm of Cabaniss & Johnston, which firm has not made any cross assignments of error. We feel that it would but encumber this opinion to treat at length with the contentions of the appellants concerning the Cabaniss & Johnston fee. We say again that we cannot hold that Judge Creel abused the discretion vested in him in fixing the amount of the fees to which the lawyers were entitled who represented the respondent trustees.
Hon. Francis Hare, who represented Mr. Ingalls, Jr., in the removal suits was awarded the sum of $15,000 as counsel fees to be paid from the several trusts. It is clear from a reading of the decree here under review that the trial court concluded that Mr. Hare should be paid that sum for the services rendered by him in connection with the stock option litigation. We think it clear that the trial court concluded that Mr. Hare was not entitled to any fees payable from the trust estates for the services rendered in the removal suits.
The guardian ad litem and the trustees who have appealed to this court contend that Mr. Hare was entitled to no fee payable from the trust estates. On the other hand, Mr. Hare vigorously contends that the services rendered by him in the removal suits preserved and protected the several trust estates and therefore he is entitled to be paid a reasonable fee for his services in that litigation.
The petition filed by Mr. Hare wherein he sought to have attorney's fees allowed to him did not expressly invoke the provisions of § 63, Title 46, Code 1940. The guardian ad litem and counsel for the appellant trustees contend that because of this omission the trial court was not justified in awarding Mr. Hare any fees to be taxed as costs in these cases. Reliance is had upon the holding of this court in the case of McGraw v. Tillery, 178 Ala. 253, 59 So. 567. That case dealt with the sufficiency of a petition as against apt demurrer. We have no question of pleading involved here and it appears from the records before us that all parties considered that the petition as filed by Mr. Hare was directed to the end that fees be awarded to him and taxed as costs under the provisions of § 63, Title 46, Code 1940. The case was tried on that theory and we are convinced that the rights of Mr. Hare to counsel fees, payable out of the trust estates, if any, should not be denied him because his petition did not specifically make reference to the provisions of § 63, Title 46, Code 1940.
As we have heretofore shown, the complainants in case No. 78710 were the two minor beneficiaries of all of the trusts except Trust A, who sued by their guardian, Robert I. Ingalls, Jr., and Robert I. Ingalls, Jr., as trustee for the use and benefit of the beneficiaries, his two then minor daughters. The complainant in case No. 78707 was Robert I. Ingalls, Jr., as a trustee and beneficiary of Trust A. A reading of the voluminous records in these cases leads us *277 to the inevitable conclusion that Mr. Hare was employed by Mr. Ingalls, Jr., not for the purpose of representing his minor daughters and protecting and preserving the trust estates, but for the sole purpose of effectuating a change of trustees in the several trusts involved to the end that he, Mr. Ingalls, Jr., might be able to have the stock held by those several trusts voted to return him to the presidency of Ingalls Iron Works, irrespective of what effect such a move would have on the corpus of the trusts.
Mr. Hare represented Mr. Ingalls, Jr., with his usual skill. He devoted much of his time and effort during the years when this litigation was pending to the prosecution of these suits. He has been paid by Mr. Ingalls, Jr., a considerable sum for those services. We make mention of that fact, not that it has any bearing on the right of Mr. Hare to be compensated out of the trust estates, but simply to show that the sum of $15,000 which was allowed Mr. Hare in the decree here under review and to which he refers as a "tip," is not all of the compensation by any means which he has received for his services in these cases.
We do not feel that we can hold that Mr. Hare was entitled to any fee for services rendered the complainants in these removal suits payable from the several trust estates. On the other hand, we are not disposed to disagree with the conclusion reached by Judge Creel to the effect that the services rendered by Mr. Hare in connection with the stock option cases were of such a nature as to justify a fee of $15,000 payable from the trust estates.
What we have said above concerning Mr. Hare's right to be paid the sum of $15,000 out of the trust estates for services rendered in connection with the stock option cases is likewise applicable to the case of Mr. Charles Greer, who was also awarded the sum of $15,000 payable from the trust estates for similar services. Mr. Greer has not appealed or made any cross assignments of error.
There is no question here as to the right to or the amount of the fee awarded to the guardian ad litem by the trial court for his excellent defense of the claims for attorneys' fees filed by the several lawyers in these cases.
The decree of the trial court is affirmed in all respects except that none of the costs, including the attorneys' fees, are to be taxed against Trust B. The total fees awarded by the trial court (less any amounts already paid), together with one-half of the court costs in these cases are to be taxed against Trusts A, C, D, E, F, and G, and shall be paid by the trustees of said trusts within 30 days from the date the decree of this court reaches the register of the circuit court of Jefferson County, in equity, in such proportions as the value of the corpus of each of said trusts, as fixed in the decree of the trial court, bears to the value of the aggregate corpus of all of the trusts actually involved in the removal suits.
As so modified, the decree of the trial court entered in case No. 78707 (6 Div. 648) is affirmed.
As so modified, the decree of the trial court entered in case No. 78710 (6 Div. 649) is affirmed.
Modified and affirmed.
All the Justices concur. | June 20, 1957 |
cd4de804-a139-4df9-8e61-41c1545967ef | Gentry v. Gilmore | 613 So. 2d 1241 | 1910254 | Alabama | Alabama Supreme Court | 613 So. 2d 1241 (1993)
Melvin GENTRY and Kathleen Gentry
v.
Dr. Keith GILMORE.
1910254.
Supreme Court of Alabama.
January 29, 1993.
Rehearing Denied March 5, 1993.
*1242 Shay Samples and Ronald R. Crook of Hogan, Smith, Alspaugh, Samples & Pratt, P.C., Birmingham, for appellants.
Michael K. Beard and W. Hill Sewell of Starnes & Atchison, Birmingham, for appellee.
PER CURIAM.
This case involves the alleged wrongful death of a 13-week fetus. The first legal question presented is whether the trial court erred in refusing to instruct the jury, in substance, that the father could sue for the wrongful death of the fetus and that the viability of the fetus at the time of the injury was irrelevant.[1] Because we conclude that the Wrongful Death Act does not provide a cause of action for the death of a nonviable fetus, we hold that the trial court did not err in refusing to instruct the jury as requested. The second question is whether the trial court abused its discretion in not allowing the plaintiffs to present certain testimony of an expert witness. We hold that it did not. Therefore, we affirm the judgment based on a jury verdict in favor of the defendant physician. Our holding is consistent with our decision in Lollar v. Tankersley, 613 So. 2d 1249 (Ala.1993), which involved substantially the same question.
Melvin and Kathleen Gentry, husband and wife, sued Keith Gilmore, M.D., after he performed a dilatation and curettage (D & C) on Mrs. Gentry. Mr. Gentry sought damages for the wrongful death of a 13-week fetus, and Mrs. Gentry sought damages for her pain and discomfort, mental anguish, and emotional distress. The Gentrys appeal from a judgment based on a jury verdict in Dr. Gilmore's favor on both counts.
Dr. Gilmore first examined Mrs. Gentry on August 5, 1983, when she was admitted *1243 to East End Hospital in Birmingham complaining of flooding blood, passing clots, and cramping. Dr. Gilmore performed the D & C on August 6. An ultrasound test on August 8 revealed an apparently normal 11-week fetus. Mrs. Gentry miscarried on August 24. It is undisputed that, at the time of the miscarriage, the 13-week fetus was not viable, that is, it was not capable of living outside the womb.
Dr. Neil Wolfson, an obstetrician and gynecologist, testified at trial that Mrs. Gentry exhibited the classical signs of pregnancy at the time of her admission (tiredness, nausea, cramps, spotting); that her urine test was positive for pregnancy; and that a pelvic examination would have revealed that she was pregnant. Dr. Wolfson further testified that Dr. Gilmore should have ordered an ultrasound test before performing the D & C; that if he had done so, he would not have performed the D & C, which, Dr. Wolfson testified, in all medical probability contributed to the miscarriage; and that the ultrasound test would have revealed that Mrs. Gentry was experiencing only a threatened abortion, a pregnancy with bleeding, which is treated with medication and bed rest.
Dr. Gilmore testified that he did not perform an ultrasound test before he performed the D & C because he had diagnosed an inevitable abortion, meaning that the fetus would have died even had he not performed the D & C. He maintained that an ultrasound test was unnecessary.[2] He based his diagnosis of an inevitable abortion on the fact that Mrs. Gentry was bleeding and that her cervix was dilated, which indicated that the fetus was not living.
The Gentrys presented Dr. Robert Eichelberger, the radiologist who interpreted the ultrasound test on August 8 after the D & C, to rebut Dr. Gilmore's testimony regarding the availability of an ultrasound test during the weekend of August 6-7 and his testimony that Mrs. Gentry was suffering an inevitable abortion when he performed the D & C. The trial court did not allow the testimony.
The Gentrys argue that the question of the fetus's viability at the time of death is irrelevant to recovery, and that the refusal of their proposed instructions regarding the right to maintain an action for the wrongful death of a fetus was reversible error. The issue presented, therefore, is whether the trial court's refusal to instruct the jury as requested was reversible error.
The Alabama Wrongful Death Act permits the father, or in some cases, the mother or personal representative, to bring an action for the wrongful "death of a minor child." Ala.Code 1975, § 6-5-391. (Emphasis added.) The right thus conferred by the statute provides a remedy in certain factual situations in which the injury causing the death is inflicted before the child is born.
This Court, in Huskey v. Smith, 289 Ala. 52, 265 So. 2d 596 (1972), considered whether a cause of action existed if the injury causing the death occurred before the child was born. In that case, this Court, following precedents from other jurisdictions, overruled Stanford v. St. Louis-San Francisco Ry., 214 Ala. 611, 108 So. 566 (1926), and allowed an action for the death of a child who was born alive but who died of injuries allegedly suffered while still in his mother's womb, but while viable. Huskey, 289 Ala. at 55-56, 265 So. 2d at 598. Similarly, this Court has also recognized a cause of action when a child is born alive but dies of injuries suffered before becoming viable. See Wolfe v. Isbell, 291 Ala. 327, 333-34, 280 So. 2d 758, 764 (1973). In Eich v. Town of Gulf Shores, 293 Ala. 95, 97, 300 So. 2d 354, 355 (1974), this Court answered the question whether the child must be born alive, in holding that Alabama recognizes a cause of action for the *1244 wrongful death of a stillborn fetus that died of injuries suffered while viable.
In Huskey, Wolfe, and Eich, the deaths admittedly occurred after the fetus had attained viability. This case involves an alleged injury to a nonviable fetus and the death of that fetus before the fetus became viable. We follow the reasoning of a majority of jurisdictions and hold that our statute provides no cause of action for the wrongful death of a nonviable fetus. In so holding, we point out that, with the exception of Georgia, the Gentrys' position apparently is not the law in any American jurisdiction where there is no clear legislative direction to include a nonviable fetus within the class of those covered by the wrongful death acts. See Miccolis v. AMICA Mutual Insurance Co., 587 A.2d 67, 71 (R.I.1991); Gary A. Meadows, Comment, Wrongful Death and the Lost Society of the Unborn, 13 J.Legal Med. 99, 107 (1992); and Sheldon R. Shapiro, Annotation, Right to Maintain Action or to Recover Damages for Death of Unborn Child, 84 A.L.R.3d 411, 453-54, § 5[a] (1978 & Supp. 1992). The Georgia courts do not require viability at the time of death, but the fetus nevertheless must be "quick," i.e., able to move in the mother's womb. Porter v. Lassiter, 91 Ga.App. 712, 87 S.E.2d 100, 103 (1955).
During the 20 years since Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973), the viability distinction has gained significance. In its most recent decision in the Roe line of cases, the United States Supreme Court drew the line at viability for purposes of determining when a woman has a right to choose an abortion. Planned Parenthood v. Casey, ___ U.S. ___, ___, 112 S. Ct. 2791, 2816, 120 L. Ed. 2d 674, 710 (1992).
Based on the foregoing, we hold that the term "minor child" in § 6-5-391 does not include a fetus that dies before becoming able to live outside the mother's womb. Therefore, the trial court did not err in refusing to instruct the jury as requested by the Gentrys. Blair v. St. Margaret's Hospital, 285 Ala. 636, 640, 235 So. 2d 668, 671 (1970).
We now address whether the trial court should have permitted Dr. Eichelberger to testify in rebuttal that an ultrasound test would have been available at East End Hospital during the weekend; that the fetus was alive at the time of the ultrasound test; and that Mrs. Gentry was not suffering an inevitable abortion at the time of the D & C. Because we hold that a wrongful death action is unavailable in this case, we address this issue only insofar as Mrs. Gentry's claims are concerned.
A plaintiff has a right to introduce rebuttal evidence, Charles W. Gamble, McElroy's Alabama Evidence § 433.01 (4th ed. 1991), but the trial court has wide discretion in deciding whether to admit the testimony if it does not strictly rebut other evidence. Cahaba Valley Development Corp. v. Nuding, 512 So. 2d 46, 49 (Ala. 1987). The trial court also has discretion to admit or to exclude cumulative evidence. See, e.g., Alabama Power Co. v. Wallace, 548 So. 2d 1372, 1376 (Ala.1989); Gamble, supra, at § 10.07.
Because Dr. Gilmore admitted at trial that an ultrasound test would have been available over the weekend, Dr. Eichelberger's testimony in this respect technically would not have been in rebuttal, and would, in part, have been cumulative. Regarding whether the ultrasound test indicated any abnormality with Mrs. Gentry or with the fetus, Dr. Wolfson had already given testimony consistent with that to be given through Dr. Eichelberger. Also, in response to the trial court's question outside the presence of the jury, Dr. Eichelberger admitted that the ultrasound test would not have conclusively indicated whether an abortion was in progress. Considering these factors, the trial court did not abuse its discretion in refusing to permit the testimony in this particular case.
Based on the foregoing, we affirm the judgment of the trial court based on the *1245 jury verdict in Dr. Gilmore's favor on the claims of both Mr. and Mrs. Gentry.
AFFIRMED.
HORNSBY, C.J., and SHORES, ADAMS, STEAGALL and INGRAM, JJ., concur.
ALMON and HOUSTON, JJ., concur in the result.
MADDOX, J., dissents.
HOUSTON, Justice (concurring in the result).
I concur with Justice Merrill's dissent (concurred in by Justices Coleman, Harwood, and McCall) in Eich v. Town of Gulf Shores, 293 Ala. 95, 100-01, 300 So. 2d 354, 358-59 (1974). Therefore, I would vote to overrule Eich v. Town of Gulf Shores and would hold that if the child is not born alive then there is no liability for causing the wrongful death of that child. This is consistent with the criminal law. To convict a person of homicide, the victim must be "a human being who had been born alive at the time of the homicidal act." Ala.Code 1975, § 13A-6-1(2). This, I believe, is consistent with the common law. See § 13A-6-1 commentary. There should not be different standards in wrongful death and homicide statutes, given that the avowed public purpose of the wrongful death statute is to prevent homicide and to punish the culpable party and not to compensate for the loss. This does not mean that the mother could not be compensated for the injury she receives.
MADDOX, Justice (dissenting).
My colleagues conclude that the words "minor child" in Alabama's Wrongful Death Act, Ala. Code 1975, § 6-5-391, are not broad enough to include a nonviable fetus. Admittedly, a majority of jurisdictions requires, in the absence of specific legislative direction, that the fetus have attained viability before the death occurs in order for a cause of action for wrongful death to be permitted.
I must respectfully disagree with that legal conclusion, because I believe that construing the words "minor child" to include a nonviable fetus would: (1) promote the purpose of the wrongful death statute, which is to prevent the wrongful termination of life, even potential life; (2) facilitate the legislature's intent to protect nonviable fetal life, as expressed in other statutes concerning abortion and fetal deaths; and (3) be logically consistent with prior decisions of this Court that have, in my opinion, rejected what I believe are artificial distinctions based on viability and live birth as conditions for recovery.
In short, I believe that the public policy of the State, as expressed in various legislative enactments, is to protect the potentiality of life. I further believe that when the interests of the mother and father in preserving the life of an unborn child are congruent with the interest of the State, as expressed in its legislation, the legislature intended to protect the potentiality of human life, and I believe that the legislature intended that the term "minor child" in the Wrongful Death Act include a nonviable fetus. My interpretation of Alabama's statute would allow for the recovery of "such damages as the jury may assess," § 6-5-391, in all cases where the interest of the mother and father of the nonviable fetus were congruent with that of the State. It would not cover, of course, the death of a nonviable fetus in instances where the death of the nonviable fetus resulted from the mother's exercise of her constitutional rights, as those rights have been interpreted by the United States Supreme Court.
The underlying purpose of Alabama's Wrongful Death Act is "to protect human life; to prevent homicides by wrongful act, omission or negligence of persons and corporations, their agents and servants; and to stimulate diligence in the protection of the natural right to live, without respect to the personal condition or disability of the person so protected." Breed v. Atlanta B. & C.R. Co., 241 Ala. 640, 642, 4 So. 2d 315, 316 (1941) (emphasis added). The right to maintain an action for wrongful death, for adults or minors, did not exist at common law; consequently, at common law, it was cheaper to kill a person than to injure him. W. Page Keeton, et al., *1246 Prosser and Keeton on the Law of Torts § 127, at 945 (5th ed. 1984). Because of this common-law rule, legislatures enacted wrongful death statutes to correct what was considered to be an intolerable result. Id.
My colleagues, in distinguishing between viability and nonviability of the fetus as a condition for the application of Alabama's Wrongful Death Act, necessarily resurrect the same distinctions that led to the adoption of wrongful death statutes in the first place. Furthermore, in holding that the legislature did not intend to protect the potential of human life in cases where the fetus is determined to be nonviable because a nonviable fetus is not a "minor child" within the meaning of § 6-5-391, my colleagues fail to promote the very purpose of Alabama's Wrongful Death Act, that is, the protection of life, including that of a nonviable fetus, by authorizing the recovery of such damages as the jury may assess.[3] Because I believe that the beneficent purpose of the Wrongful Death Act is to protect human life and believe that the legislature intended to cover the potentiality of human life, I would attribute to the legislature an intent to give the words "minor child" a broad definition in situations involving fetal injury resulting in death, and I would further hold that the question of viability of the fetus at the time of death is irrelevant and immaterial, as the Gentrys argue on this appeal.
In construing the word "person" in a precursor to another section of the Wrongful Death Act, Ala. Code 1975, § 6-5-410, this Court noted:
South & North Alabama R.R. v. Sullivan, 59 Ala. 272, 279 (1877).
It appears to me that the same can be said for the words "minor child," because Alabama's statute focuses on the defendant's conduct, not upon whether the deceased could or could not have maintained an action. Cf. Breed v. Atlanta, B. & C.R. Co., 241 Ala. 640, 4 So. 2d 315 (1941) (wrongful death action permitted, even though a prisoner had lost his own personal right to sue).
To deny a cause of action rewards tort-feasors who inflict fatal injuries upon nonviable fetuses, by allowing them to escape liability based upon what I think is an artificial distinction that focuses more on the status of the life that has been wrongfully terminated than upon the wrongful conduct that caused the death. Such a holding produces an anomalous result. Under the holding of the Court, if a tort-feasor inflicts injuries upon a nonviable fetus that are not fatal, the tort-feasor can be held liable for those injuries, see, e.g., Eich v. Town of Gulf Shores, 293 Ala. 95, 97, 300 So. 2d 354, 355 (1974); Wolfe v. Isbell, 291 Ala. 327, 330, 280 So. 2d 758, 761 (1973), but if the injuries and the death occurred before the fetus was viable, no action exists. I believe that interpretation to be incorrect. It produces just the type of unjust result that wrongful death statutes were enacted to prevent.
My colleagues' holding that the legislature never intended that the term "minor child" include a nonviable fetus is based, at least in part, on the holdings in the landmark cases of Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973), and Planned Parenthood v. Casey, ___ U.S. ___, 112 S. Ct. 2791, 120 L. Ed. 2d 674 (1992). In Roe, the United States Supreme Court did address the question of when the State's interest in protecting fetal life must yield to a woman's right to abort the fetus. Roe and other decisions of the United States Supreme Court have focused on the right of a mother to terminate a pregnancy, even though the policy of the State was to protect all life. Those cases do not involve the question whether the State can *1247 protect the potentiality of human life when the mother is not seeking to claim a constitutional right of privacy, but, on the contrary, is seeking to recover damages for the alleged wrongful termination of potential human life. In Roe, the Court, while recognizing the constitutional right of a woman to terminate a pregnancy in certain circumstances, nevertheless also recognized that the State has an "important and legitimate interest in protecting the potentiality of human life," Roe, 410 U.S. at 162-63, 93 S. Ct. at 731, 35 L. Ed. 2d at 182, which must be balanced against a woman's right of privacy, including the limited right to choose an abortion, Roe, 410 U.S. at 153, 93 S. Ct. at 727, 35 L. Ed. 2d at 177, at least until the point of viability. See Casey, ___ U.S. ___, ___, 112 S. Ct. 2791, 2816-17, 120 L. Ed. 2d 674, 710 (1992).
My colleagues seem to believe that Roe somehow would prevent recovery here. I do not think so. Roe and its progeny address the potential conflicts between a woman's right to an abortion and the State's interest in the woman's health and the fetus's life. Roe is not implicated when, as in this case, both the State and the mother have congruent interests in preserving life and punishing its wrongful destruction. I conclude that the legislature has a right to protect nonviable fetal life when its interest is congruent with that of the mother, and I will list the reasons why I reach this conclusion.
The legislature has not clearly defined "minor child," but neither has the legislature amended the statute after this Court's decisions in Huskey, Wolfe, and Eich. The legislature has, however, on several occasions, expressed its intent to protect fetal life without regard to viability. For example, this Court noted in Eich that former Ala. Code 1940, Tit. 22, § 24 (Recomp.1958), much like Ala. Code 1975, § 22-9A-13(a), required registration of death certificates for fetal deaths occurring at or beyond 20 weeks, although, as Dr. Wolfson testified in this case, the fetus would not be viable at 20 weeks of age. The statute "is expressive of a public interest in fetal deaths." Eich, 293 Ala. at 100, 300 So. 2d at 358.
Even more significant is the fact that the Alabama legislature, when it adopted the 1975 Code, brought forward a statute, which had been a part of the Alabama codes since 1852, making it a misdemeanor for a person to willfully induce or attempt to induce any abortion, miscarriage, or premature delivery of a woman, unless to preserve her life or health. Ala. Code 1975, § 13-8-4; now, Ala. Code 1975, § 13A-13-7. By not providing for any distinction based on fetal age or development, the Legislature changed the common law offense, which was restricted to cases in which the child was "quick." Smith v. Gaffard, 31 Ala. 45, 51 (1857). In this way, the legislature has, for more than 140 years, expressed its interest in protecting all fetal life; consequently, I think that my colleagues have failed to appreciate the fact that the public policy of this State has been to protect the potentiality of human life, and that this policy should be enforced as long as it does not conflict with what the United States Supreme Court has determined to be the privacy rights of the mother. The strength of the legislature's resolve is illustrated by the fact that this misdemeanor statute was readopted after the United States Supreme Court had effectively declared such statutes unconstitutional in Roe v. Wade.[4]
As further proof of the public policy of this State, I note that in 1987 the legislature adopted Alabama's Parental Consent Act, Ala. Code 1975, §§ 26-21-1 through 26-21-8, which in most cases requires that, before performing an abortion upon an unemancipated minor, a person must obtain either a parent's written consent or a judicial waiver. See § 26-21-3(a). I recognize that these statutes, when balanced against a woman's right to abort a fetus, may be declared unconstitutional, but it is quite *1248 apparent to me that Alabama, at present, seeks to protect fetal life, and I do not see how Roe or its progeny are implicated when the mother's choice is not in conflict with the State's policy, but, in fact, is congruent therewith.
I also disagree with my colleagues' analysis of Wolfe and Eich. I read the essential holdings of Wolfe and Eich to be that viability at the time of injury and live birth are irrelevant to recovery; consequently, I believe those holdings support my conclusion that Mr. Gentry was entitled to have the jury instructed specifically as he requested.[5]
In Wolfe, this Court discussed the significance of viability, extensively reviewing decisions of other courts and noting that the more recent authorities did not require viability at the time of injury. Wolfe rejected such a distinction, partly because, it said, "the fetus is just as much an independent being prior to viability as it is afterwards, and ... from the moment of conception, the fetus or embryo is not a part of the mother, but rather has a separate existence within the body of the mother." Wolfe, 291 Ala. at 330-31, 280 So. 2d at 761. Although I did not participate in the decision in Wolfe, I agree with the rationale the Court used in that decision.
I recognize that, for various reasons, most jurisdictions do not yet consider a nonviable fetus to be protected by wrongful death statutes. However, in my own research I discovered that the overwhelming majority of commentators has criticized distinctions based on viability of the fetus, for a number of reasons: A child is an entity, a "person," from the moment of conception, 1 Stuart M. Speiser, et al., Recovery for Wrongful Death and Injury § 4.37, at 204 (3rd ed. 1992); the first trimester is the developmental period in which the fetus is most susceptible to environmental influences, David A. Gordon, The Unborn Plaintiff, 63 Mich.L.Rev. 579, 589 (1965); viability is not determinative or relevant to the question of the tort-feasor's ability to escape liability, David Kader, The Law of Tortious Prenatal Death Since Roe v. Wade, 45 Mo.L.Rev. 639, 659-60 (1980); tort-feasors should not be better off if the fetus dies from injuries sustained before viability than they would be if the fetus lives, Frank J. Hartye, Comment, Tort Recovery for the Unborn Child, 15 J.Fam.L. 276, 297 (1976-77); "[p]otential life is no less potential during the first weeks of pregnancy than in the last weeks, and a fetus is entitled to develop without outside interference," Michael P. McCready, Comment, Recovery for the Wrongful Death of a Fetus, 25 U.Rich. L.Rev. 391, 405 (1991); viability distinctions impede the goals of the wrongful death statutes, Gary A. Meadows, Comment, Wrongful Death and the Lost Society of the Unborn, 13 J.Legal Med. 99, 114 (1992); viability should not be the point at which the unborn gain legal protection, because "viability is dependent upon a number of factors, including the weight and race of a fetus, maternal age and health, nutritional deficiencies and psychological elements," Patricia A. Meyers, Comment, Wrongful Death and the Unborn Child: A Look at the Viability Standard, 29 S.D.L.Rev. 86, 96-97 (1983); "the actual medical determination of the point at which a fetus attains viability is uncertain," Karen Rene Osborne, Comment, TortsThe Right of Recovery for the Tortious Death of the Unborn, 27 How.L.J. 1649, 1661 (1984); a viability standard results in an injustice, because a negligently injured, nonviable fetus probably would have survived but for the wrongful act, Janet I. Stich, Comment, Recovery for the Wrongful Death of a Viable Fetus: Werling v. Sandy, 19 Akron L.Rev. 127, 138 (1985); "viability is as arbitrary a standard in wrongful death cases as was birth," Sheryl Anne Symonds, Comment, Wrongful Death of the Fetus: Viability Is Not a Viable Distinction, 8 U.Pug. Sound L.Rev. 103, 115 (1984); and viability is "[w]ithout a compelling evidential or medical justification" and is "an artificial barrier to wrongful death recovery," *1249 Richard E. Wood, Comment, Wrongful Death and the Stillborn Fetus: A Common Law Solution to a Statutory Dilemma, 43 U.Pitt.L.Rev. 809, 835 (1982).
In Eich, which involved injury to a viable fetus, this Court also rejected live birth as a condition for recovery, because, based on the recognition of the cause of action under Huskey and Wolfe fact situations:
Eich, 293 Ala. at 97, 300 So. 2d at 355 (footnote omitted). Thus, under principles established in Wolfe and Eich, neither viability at the time of injury, nor live birth, is a prerequisite to recovery for the wrongful death of a fetus.
These same principles are no less compelling when both the injury and the death occurred before viability. As the above-cited commentators and others have noted, viability is an arbitrary, artificial, and varying standard that is illogical when considered against this Court's recognition in Wolfe of the biological separateness of mother and child from the moment of conception.
Based on the foregoing, I believe that the trial court should have instructed the jury on the applicable law, as stated in the proposed instructions[6] numbers 1, 3, 4, 5, and 6, and that its refusal to do so was prejudicial. I must respectfully dissent.
[1] The Gentrys cited Eich v. Town of Gulf Shores, 293 Ala. 95, 300 So. 2d 354 (1974), as authority for these proposed instructions, which the trial court refused:
"PLAINTIFFS' REQUESTED JURY CHARGE NO. 1
"The law in Alabama provides for the authority for the father to bring an action for the wrongful death of an unborn fetus. It is not necessary that the fetus be born alive in order to be able to recover. The viability of the fetus at the time of the alleged injury is not necessary and not relevant or material. Viability refers to the ability of the fetus to survive outside the mother's womb on its own. Thus, in order to be legally entitled to recover in a wrongful death action for the wrongful death of an unborn fetus, the plaintiff must prove to your reasonable satisfaction the following: (1) That the fetus was alive at the time of the alleged negligence, or breach of the standard of care; (2) That the death of the fetus was proximately caused by the alleged negligence of the defendant. Proximate cause of an injury is that cause which in the natural and probable sequence of events, and without the intervention of any new or independent cause, produces the injury and without which such injury would not have occurred."
"PLAINTIFFS' REQUESTED JURY CHARGE NO. 2
"A live fetus is a `person' under the terms and within the meaning of the Alabama Wrongful Death Statute."
"PLAINTIFFS' REQUESTED JURY CHARGE NO. 3
"The law in Alabama provides the authority for the father to bring an action for the wrongful death of an unborn fetus."
"PLAINTIFFS' REQUESTED JURY CHARGE NO. 4
"Under Alabama law, it is not necessary that the fetus be born alive in order to be able to recover."
"PLAINTIFFS' REQUESTED JURY CHARGE NO. 5
"The viability of the fetus at the time of the alleged injury is not necessary and not relevant or material. Viability refers to the ability of the fetus to survive outside the mother's womb on its own."
"PLAINTIFFS' REQUESTED JURY CHARGE NO. 6
"In order to be legally entitled to recover in a wrongful death action for the death of an unborn fetus, the plaintiff must prove to your reasonable satisfaction the following: (1) That the fetus was alive at the time of the alleged negligence, that is, the breach of the standard of care; [and] (2) That the death of the fetus was proximately caused by the alleged negligence, or breach of the standard of care, of the defendant."
C.R. 150-55.
[2] There was conflict in Dr. Gilmore's testimony by deposition and his testimony at trial concerning the availability of an ultrasound test during the weekend. At his deposition, he had stated that the test was not available, but at trial he testified that the test was available but that he did not think that it was necessary.
[3] Damages recoverable in a wrongful death action are "to punish the defendant and to deter others from like conduct." Nettles v. Bishop, 289 Ala. 100, 103, 266 So. 2d 260, 262 (1972).
[4] I realize that when a mother's privacy rights are balanced against this State interest during the period in which the fetus is not yet viable, the State interest must fail, but this case does not involve conflicting interests, because the interest of the State and the interest of the mother are congruent.
[5] I cannot speculate whether the jury would have reached the same result if they been so instructed, but I do not think that the oral instruction of the trial court was specific enough to satisfy the court's duty to instruct the jury on the law applicable to the case.
[6] Proposed instruction 2 uses the word "person," not "minor child," and therefore may not be relevant. | January 29, 1993 |
bc3d08d2-f624-4742-8914-a87672b0d0fd | Shiflett v. State | 93 So. 2d 526 | N/A | Alabama | Alabama Supreme Court | 93 So. 2d 526 (1957)
Harold SHIFLETT
v.
STATE of Alabama.
7 Div. 357.
Supreme Court of Alabama.
March 14, 1957.
*527 Love & Hines, Talladega, for petitioner.
John Patterson, Atty. Gen., and Wm. C. Younger, Asst. Atty. Gen., opposed.
LAWSON, Justice.
This cause is before us on petition for writ of certiorari to review and revise the opinion and judgment of the Court of Appeals in the case of Shiflett v. State of Alabama, 93 So. 2d 523.
The petition and the briefs filed in support thereof challenge only two of the holdings of the Court of Appeals. The first of these relates to the holding that the trial court did not err in refusing to permit the defendant to prove the statement claimed to have been made by his wife from three to five minutes after regaining consciousness. We are in full accord with the conclusion reached by the Court of Appeals on this ruling when viewed in the light of the circumstances set out in the opinion. We do not search the record to determine the facts but accept those set out in the opinion of the Court of Appeals. Bradley v. State, 215 Ala. 140, 110 So. 162.
The second question presented concerns the holding of the Court of Appeals that the trial court did not err to a reversal in permitting the State to introduce into evidence a rifle owned by the defendant and which was not used by him in the shooting. Under the facts as related by the Court of Appeals, we are of the opinion the rifle in question has some probative weight and that it was admitted in evidence without error. See 22 C.J.S., Criminal Law, § 712(c).
As to the last ruling, the Court of Appeals also seems to have applied the doctrine of error without injury. We do not review the Court of Appeals on application of the doctrine of error without injury unless facts are fully stated in the opinion of that court. Shouse v. State, 258 Ala. 499, 63 So. 2d 728. If it can be said that the full statement of fact made by this court on the first appeal, Shiflett v. State, 262 Ala. 337, 78 So. 2d 805, has been brought into the opinion here under review by reference, then we affirm the holding of the Court of Appeals to the effect that the introduction in evidence of the rifle in question did not probably injuriously affect the substantial rights of Shiflett.
Consideration by this court on certiorari is limited to those holdings of the Court of Appeals which are asserted here as being erroneous. Williams v. State, 257 Ala. 337, 58 So. 2d 653; Davenport-Harris Funeral Home v. Chandler, 264 Ala. 623, 88 So. 2d 878.
Writ denied.
LIVINGSTON, C. J., and STAKELY and MERRILL, JJ., concur. | March 14, 1957 |
0c66fcb3-526f-40a4-9ef9-8749de369731 | Ex Parte Anniston Personal Loans | 96 So. 2d 627 | N/A | Alabama | Alabama Supreme Court | 96 So. 2d 627 (1957)
Ex parte ANNISTON PERSONAL LOANS, Incorporated, and Anniston Personal Loans, Incorporated, d/b/a Home Finance Company.
3 Div. 742.
Supreme Court of Alabama.
July 26, 1957.
D. Eugene Loe, Hill, Hill, Whiting & Harris, and Hill, Robison & Belser, Montgomery, Winton G. Wilson, Palmer Keith, Birmingham, and Wallace L. Johnson, Mobile, for petitioners.
John Patterson, Atty. Gen., and Robt. P. Bradley and J. Noel Baker, Asst. Attys. Gen., for respondent.
GOODWYN, Justice.
On July 13, 1955, the State of Alabama on the relation of John Patterson, as Attorney General, filed a bill of complaint in the circuit court of Montgomery County, in equity, against Anniston Personal Loans, Inc., an Alabama corporation, Anniston Personal Loans, Inc., doing business as Home Finance Company in Montgomery, and L. G. Allenstein, an individual (alleged in the bill to be the president and chief *628 executive officer of Anniston Personal Loans, Inc.), seeking both a temporary and a permanent injunction against said respondents restraining them from making or entering into any loan contract or agreement whereby the rate of interest exceeds the statutory rate. The theory of the bill is that the respondents have been, and are now, "deliberately, persistently, continuously and intentionally" charging usurious rates of interest in violation of § 60, Tit. 9, Code 1940, and that such conduct constitutes "a public nuisance to the citizens of the State of Alabama and will continue to be a public nuisance unless the practices of the respondents be effectually restrained."
At the same time the bill for injunction was filed there was also filed by the attorney-general what is entitled a "Petition for Summary Production of Documents". This petition sets out the bill for injunction as an exhibit and alleges that respondents "in the normal and regular course of their business keep records of each loan transaction which * * * will show the amount of money advanced to each borrower, the amount which the borrower was or is required to repay and the time of repayment"; that "these books and records constitute pertinent and material evidence in the prosecution" of the injunction suit, and that "unless the court enters an order requiring the instanter production of the books and records maintained by respondents, such books and records being in the care, custody and control of Harold A. Barnett, 246 Bibb Street, Montgomery, Montgomery County, Alabama, there is a grave probability that said books and records will be lost or destroyed, secreted, placed in the custody of others, or transferred beyond the jurisdiction of the court."
The prayer of the petition is for an order "directing the respondents and each of them and the said Harold A. Barnett to surrender instanter and forthwith to the Register of the Circuit Court of Montgomery County, Alabama, in Equity the books and records of the respondents which show each loan contract or agreement entered into by the respondents for a period of one year next preceding the date of service of the order and such records of the respondents as show the amount of money advanced to each borrower during said period; the amount which the borrower was or is required to repay and the time of repayment and all records of final entry used by the respondents in the operation of their said business, together with copies of all receipts issued to each borrower in connection with the loan made and that * * * the above described books and records be made available to the petitioner for a period of time sufficient to enable petitioner to make copies of said books and records."
Thereupon, on the same day, without notice to respondents (petitioners here), the respondent here, Honorable Walter B. Jones, Judge of the Circuit Court of Montgomery County, sitting in Equity, issued the following order:
On July 18, 1955, petitioners filed a motion to quash, set aside and vacate the foregoing order, assigning some thirty grounds. On August 1, 1955, this motion was denied.
On August 2, 1955, petitioners filed here an original petition for the writ of mandamus or other appropriate remedial writ to be directed to the Honorable Walter B. Jones, as Presiding Judge of the Circuit Court of Montgomery County, requiring him to set aside and vacate said order entered by him on July 13, 1955. On August 3, 1955, we issued a rule nisi to Judge Jones. On November 1, 1955, he answered the rule nisi, to which answer the petitioners filed a replication. It was on these pleadings that the cause was submitted on May 8, 1956, after oral argument.
It is made clear by respondent's answer and brief that total reliance is placed on § 489, Tit. 7, Code 1940, and the inherent power of a court of equity as authority for issuance of the contested order. It is our view that the order cannot be sustained on either theory.
Section 489, supra, provides as follows:
Although the order in this case provides for the instanter "surrender" of the books and documents to the register for the sole purpose of permitting the attorney-general to make copies of them, without any limit as to time, we are treating the order as though it were one for production of papers for inspection of a party in advance of trial. In so doing we get to the heart of the controversy.
There appears to be no dispute that the provisions of § 489, other than the last clause, contemplate the issuance of subpoenas duces tecum only to persons not *630 parties to a cause. The questions presented, then, narrow to these:
Our view is that both questions must be answered in the negative.
This court has held that § 489 looks to the production of books and documents for use as evidence on the trial of a cause. Ex parte Hart, 240 Ala. 642, 646, 200 So. 783; Ex parte Rowell, 248 Ala. 80, 83, 26 So. 2d 554. And this, in our opinion, excludes the notion that it also embraces discovery as one of its purposes.
In Ex parte Hart [240 Ala. 642, 200 So. 786] it is said that § 489 (§ 7776 of the Code of 1923) and the next following section, § 490, Tit. 7 (§ 7777, Code of 1923), "are largely, if not wholly, procedural, designed in a proper case, to have the documents in court when the cause comes up for trial." From Ex parte Rowell [248 Ala. 80, 26 So. 2d 557] is the following: "In Ex parte Darring, 242 Ala. 621, 7 So. 2d 564, this Court observed that section 426, supra [of Title 7, Code 1940, providing for an order by the court or a judge thereof compelling either party to produce, at or before trial, any book, paper, or document in his possession or power, upon application of either party, upon reasonable notice to the adverse party or his attorney] [We here note that respondent in answering the rule misi expressly states that § 426 is
In Ex parte Hart it is said that the last clause of § 489 is "in recognition of the inherent power of the court as at common law." Respondent says that this means the trial court has the inherent power to require, without notice, the production of documents for inspection or copying by the adverse party prior to trial. We see no reasonable basis for construing the authority there given to a judge (that is, to "require the summary production of any book or document by subpoena duces tecum, where the witness is able to produce it, and where the ends of justice require such summary production") as authorizing him to order production of documents by a party or by a person who is not a party for inspection by a party in advance of trial. Clearly, it seems to us, the last clause, just as the other provisions of § 489, looks to production of documents at the trial and not to discovery. Ex parte Hart, supra; Ex parte Rowell, supra. We see nothing in § 489 indicating an intention to provide an additional means of discovery. That section has a definite placeit meets a specific needin the overall scheme for taking testimony. Its purpose is to provide for the production at the trial of documents in possession of a witness for use *631 as evidence in the trial. It does not contemplate the production of documents in advance of trial.
It seems to us that the quoted statement from Ex parte Hart concerning the "inherent power of the court as at common law" has reference to the authority of a trial court to require the summary production by a witness actually in court of any book or document which the witness is able to produce, and where the ends of justice require such summary production, without having a subpoena duces tecum issued by the clerk or register and served as otherwise provided in § 489. In this connection, see Winslow v. State, 92 Ala. 78, 81-82, 9 So. 728; Littleton v. Clayton, 77 Ala. 571, 574-575; 32 C.J.S. Evidence § 761, p. 677; Jones' Commentaries on Evidence, 2d Ed., Vol. 5, § 2307, p. 4507; Wigmore on Evidence, 3d Ed., Vol. 8, § 2200, p. 116; Robertson v. Commonwealth of Virginia, 181 Va. 520, 25 S.E.2d 352, 146 A.L.R. 967; People v. Miller, 257 N.Y. 54, 177 N.E. 306; Kincaide v. Cavanaugh, 198 Mass. 34, 84 N.E. 307; Hunton v. Hertz & Hosbach Co., 118 Mich. 475, 76 N.W. 1041.
Consideration of the history of § 489 does not detract from the holding that the last clause in the section, just as the other provisions, looks to the production of documents at the trial.
Section 489 first appeared as § 4060 of the Alabama Code of 1907. It has been included in subsequent Codes (1923 and 1940) without change. It was placed in the proposed 1907 Code by the Code Commissioner. In the "Report of James J. Mayfield, Code Commissioner of Alabama, 1907", p. 104, as printed pursuant to Act No. 37, approved Feb. 15, 1907, Gen. Acts 1907, p. 110, it is stated that much of the new matter in the proposed Code, as prepared by the Commissioner, was taken from the Georgia Code. The Georgia law as it then existed is substantially the same as it is at present. Code of Georgia Ann., Tit. 28, Book 13A, § 38-901 provides as follows:
A comparison of the two laws discloses that the only material difference in them is that the Alabama law omits the provision requiring service of a subpoena a certain number of days before it is made returnable. With the inclusion of such provision in the Georgia law it is obvious that one of the reasons for there inserting the last clause was to authorize "the judge" to require the "summary production" of books *632 and documents "where the witness is able to produce [them] and where the ends of justice require such summary production." In other words, on such showing the "judge", in contrast to the "clerk", may require production immediately, without giving to the witness a number of days to respond. We do not think this omission in the Alabama law changes the meaning of the last clause. We see nothing in that clause indicating a legislative intent to authorize the "judge" to require a "summary" production for a purpose different from that otherwise provided in § 489the production of books and records at the trial. It seems to us that the obvious purpose of the last clause is to make it clear that the right of a judge trying a case to require a witness in court, on a proper showing, to produce documents, was not being proscribed by the provision for issuance of subpoenas by the "clerk or register".
The contested order very clearly does not look to production at trial of the cause, for it does not order the documents to be there presented for use as evidence. By its very terms it is directed solely to discovery. The objective of the order is accomplished when the attorney-general has made copies.
In Ex parte Monroe County Bank, 254 Ala. 515, 518, 49 So. 2d 161, 163, 23 A.L.R. 2d 856, it is stated as follows:
"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 virtue of any statute but it is a well recognized equitable procedure for discovery. 27 C.J.S., 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.
There is no question that, as to parties, a court of equity has the inherent power to compel the discovery and production of papers. This long was accomplished by a bill for discovery, filed for the discovery of facts within the knowledge of an adverse party or papers in his custody or power. 17 Am.Jur., Discovery and Inspection, § 36, p. 25; Storey, Eq.Jur., 13th Ed., §§ 1480-1504; Pomeroy, Eq.Jur., 5th Ed., §§ 190-209; Wigmore on Evidence, 3rd Ed., §§ 2218-2219; Conrad, Modern Trial Evidence, Vol. 2, § 902, pp. 117-118. Discovery procedures are now generally provided by statutes or rules of court (see Equity Rules 39 through 56, Code 1940, Tit. 7, Appendix), which have been held, however, to be cumulative and not to take away, or in any manner affect, the established jurisdiction of courts of equity in matters of discovery. Johnston v. Johnston, 256 Ala. 485, 490, 55 So. 2d 838; Carmichael v. Pond, 190 Ala. 494, 498, 67 So. 384; Rosenau v. Powell, 173 Ala. 123, 125, 55 So. 789; Shackelford v. Bankhead, 72 Ala. 476(5), 479; Handley v. Heflin, 84 Ala. 600, 602-603, 4 So. 725. But we are unable to see how it can be said that the *633 instant proceeding comes within the framework of a bill for discovery.
Even if the proceeding should be considered as one for discovery under the inherent power of a court of equity, it would not be appropriate against Barnett, who is not a party to the cause in aid of which discovery is sought. In the absence of a statute or rule so authorizing, discovery does not lie against one who is not a party. 17 Am.Jur., Discovery and Inspection, §§ 36, 37, pp. 25, 26; 27 C.J.S. Discovery § 28, p. 42; Jones on Evidence, 4th Ed., Vol. 2, Chap. XIX, § 709, p. 1267; Wigmore on Evidence, 3rd Ed., §§ 1858(6), 1856D. On this point we quote the following from 17 Am.Jur., supra:
The rule is thus stated in Elder v. Carter, 25 Q.B.Div. 194, 198:
In view of what has already been said, there is no need to discuss whether the order is objectionable in that it requires a "surrender" instead of a production of documents; that it would require respondents to cease operation of their business; that the "surrender" is not carried out under the direction of the court; that there is no time limit set on the attorney-general's action; that respondents are given no access to their books during the time they are held by the register; that there is an unconstitutional search and seizure; or that the order is too broadly framed as to the documents and records called for.
Since it appears, for the reasons stated, that respondent was without authority, statutory or inherent, to issue the contested order, a peremptory writ of mandamus as prayed for is due to be awarded. So ordered.
Peremptory writ of mandamus awarded.
LIVINGSTON, C. J., and SIMPSON, MERRILL and COLEMAN, JJ., concur. | July 26, 1957 |
fcecaad2-9622-4743-b680-5fc909e29ec5 | Liberty National Life Insurance Company v. Weldon | 100 So. 2d 696 | N/A | Alabama | Alabama Supreme Court | 100 So. 2d 696 (1957)
LIBERTY NATIONAL LIFE INSURANCE COMPANY et al.
v.
Gaston WELDON.
5 Div. 605.
Supreme Court of Alabama.
November 14, 1957.
Rehearing Denied March 6, 1958.
*699 Spain, Gillon & Young, Ralph B. Tate and Frank M. Young, Birmingham, and Reneau & Reneau, Wetumpka, for Liberty Nat. Life. Ins. Co.
Walter M. Robinson, Jr., Nashville, Tenn., Jas. A. Simpson, Chas. B. Robinson and Lange, Simpson, Robinson & Somerville, Birmingham, and Robt. S. Milner and Holley, Milner & Holley, Wetumpka, for National Life & Acc. Ins. Co.
T. B. Hill, Jr., Montgomery, W. H. Sadler, Jr., Birmingham, and Edwin Sanford,
*700 Wetumpka, for Southern Life & Health Ins. Co.
Godbold & Hobbs and Truman Hobbs, Montgomery, for appellee.
LAWSON, Justice.
This is a suit by Gaston Weldon, who sues as the father of Shirley Dianne Weldon, deceased, his minor daughter, under § 119, Title 7, Code 1940, the so-called homicide statute, against Liberty National Life Insurance Company, a corporation; National Life & Accident Insurance Company, a corporation; and Southern Life & Health Insurance Company, a corporation.
We will sometimes hereafter refer to Gaston Weldon as the plaintiff, to his deceased child as Shirley, and to the defendant insurance companies as Liberty National, National Life and Southern Life.
Shirley died on May 1, 1952, when she was approximately two and one-half years of age. Prior to her death each of the defendant insurance companies had issued a policy wherein Shirley's life was insured. The policy of Liberty National in the amount of $500 was issued on December 1, 1951. National Life's policy in the amount of $1,000 was issued on or about April 23, 1952. The policy of Southern Life in the amount of $5,000 was issued in the latter part of March, 1952. Each of those policies was issued on an application of Mrs. Earle Dennison, who was an aunt-in-law of Shirley, that is, she was the widow of a brother of Shirley's mother. Each of the policies provided that the death benefits be paid to Mrs. Dennison. The Southern Life policy did contain a provision to the effect that Shirley's mother was a contingent beneficiary. The Liberty National policy was delivered to Mrs. Dennison on or about the day of its issue. The policy issued by National Life had not been delivered to Mrs. Dennison at the time of Shirley's death. At that time it was in the possession of the local agent to whom it had been sent by the home office in Nashville, Tennessee. The policy of Southern Life was delivered to Mrs. Dennison during the latter part of March, 1952.
The theory on which plaintiff seeks to recover damages from the defendants is that Mrs. Dennison had no insurable interest in Shirley's life and that the defendants knew or should have known that fact; and, that by reason of the wrongful and negligent issuance of the "illegal" policies of insurance Mrs. Dennison murdered Shirley with the hope of collecting the insurance proceeds.
The case was submitted to the jury on plaintiff's amended complaint which consisted of six counts, in each of which damages were claimed in the amount of $100,000. Counts 1 and 2 charge the defendants with wrongful acts in issuing policies of insurance in which the applicant-beneficiary had no insurable interest in the life of the insured, with Count 1 charging knowledge of the want of insurable interest on the part of the defendants, and Count 2 alleging knowledge or that by the exercise of reasonable diligence the defendants should have known that there was a lack of insurable interest. Counts 3 to 6 inclusive are grounded on negligent acts on the part of the defendants, with Counts 3 and 6 alleging that the acts of the defendants placed the insured child in a zone of danger, with unreasonable risk of harm to her and that the defendants in issuing the alleged illegal contracts of insurance knew, or by the exercise of reasonable diligence should have known, that the beneficiary, Mrs. Dennison, had no insurable interest in the life of the insured. Count 4 alleges a negligent act. Count 5 alleges a negligent act and pleads facts going to show a lack of insurable interest in Mrs. Dennison, the beneficiary. Each of the counts contains an averment to the effect that the wrongful or negligent acts of the defendant insurance companies concurred or united in proximately contributing to or causing the death of plaintiff's minor child.
To the complaint as last amended and to each of its counts the defendants separately demurred. The demurrers were overruled. The defendants' motions for change *701 of venue were denied. The defendants separately plead the general issue in short by consent in the usual form. There were verdict and judgment for the plaintiff in the amount of $75,000. The motions for new trial filed by each of the defendant insurance companies having been overruled, each of them has appealed to this court.
We have given to the thousand-page record in this case and to the extensive briefs of counsel for the parties the laborious examination which a case of first impression deserves. We proceed to state, as briefly as we can, the conclusions we have attained in regard to the several assignments of error which are insisted upon in the brief filed here on behalf of the appellants. We will consider first those assignments of error which are relied upon by all of the appellants, the defendants below.
Assignment of Error No. 1 of each appellant is: "1. The Court erred in overruling this defendant's demurrer to the complaint as last amended." This assignment is not too general. Vinson v. Vinson, 256 Ala. 259, 54 So. 2d 509. It is not necessary to make a separate assignment of error as to each ground of demurrer relied upon. Brewer v. Brewer, 259 Ala. 149, 66 So. 2d 450, and cases there cited. But under such assignments we generally treat only those grounds of the demurrer insisted upon in brief of appellant as having been well taken. Groover v. Darden, 259 Ala. 607, 68 So. 2d 28, and cases cited; Southern Ry. Co. v. Sanford, 262 Ala. 5, 76 So. 2d 164. No ground of any of the demurrers is referred to by number in the brief of appellants nor is any ground quoted or paraphrased. The argument made by appellants in support of their Assignment of Error No. 1 indicates that they contend that ground 33 of the demurrer filed by each of them was well taken and hence the trial court erred in not sustaining their demurrers. A demurrer, of course, is a single entity and if any ground is good the demurrer should be sustained. Opelika Montgomery Fair Co. v. Wright, 255 Ala. 499, 52 So. 2d 412. Ground 33 of the demurrer filed separately by each defendant reads: "For that it affirmatively appears that said policies of insurance on the life of the said Shirley Dianne Weldon were void and worthless and hence could in fact constitute no inducement to kill said child."
Each of the counts in the complaint as last amended contained language substantially as follows: "* * * that said policies of insurance issued by the defendant insurance companies were illegal contracts for the reason that they tended to induce the beneficiary to bring about the death of the insured, the said Shirley Dianne Weldon, and said contracts did in fact so induce said beneficiary who thereafter in the hope of collecting the fruits of such wrongful contracts killed said minor child on, to-wit," etc.
If we understand the argument of appellants, it is that Mrs. Dennison is presumed to have known the law, that is, that the contracts of insurance were illegal and void, and hence those contracts could not have served as an inducement to kill.
In support of their argument appellants rely upon Gooch v. State, 249 Ala. 477, 31 So. 2d 776, 174 A.L.R. 1297, a criminal case concerned with the elements necessary to constitute the crime of forgery wherein we held, in part: "So, a check given on Sunday, unless for one of the purposes permitted by law as set forth in the Sunday statute [§ 21, Title 9, Code 1940], would be void and not the subject of forgery." 249 Ala. 479, 31 So. 2d 779.
We do not think the holding in the Gooch Case is in any way controlling here. We cannot lift out of context the criminal law rationale of that case and apply it to this case, where the averments of the complaint are clearly to the effect that Mrs. Dennison killed because she thought the policies were valid and that she would be paid the death benefits. In Dennison v. State, 259 Ala. 424, 66 So. 2d 552, 554, we affirmed the conviction of Mrs. Dennison of murder in the first degree. In the opinion there written, after referring to two of the insurance policies here involved, *702 we said: "If, therefore, it were necessary to search for a motive we would find it here." See Black v. State, 137 Tex.Cr.R. 173, 128 S.W.2d 406.
The appellants, defendants below, in support of their argument that ground 33 of their demurrers was well taken, cite and quote from the case of Peckham v. Grindlay, 1885, 17 Abb.N.C., N.Y., 18 wherein it was held that a complaint by a brother to cancel an insurance policy wherein his sister was named as beneficiary was demurrable. The demurrer admitted the averments of the complaint to the effect that the sister had no insurable interest in her brother's life. But the New York court held that the complaint did not state a case for cancellation for two reasons. First, the plaintiff was estopped. The policy had been issued and accepted with his consent and premiums paid thereon for over twenty-three years. Second, the complaint contained no averments to the effect that plaintiff was in danger at the hands of his sister. Plaintiff's counsel took the position that the policy was void. The New York court observed that if void there was no occasion for a judgment directing the surrender and cancellation of the policy.
The complaint in the instant case shows no basis for the application of the doctrine of estoppel but it does show that the insured's life was in danger at the hands of the beneficiary. We are of the opinion that the averments of the bill in the Peckham Case, supra, present an entirely different situation from that presently before us and that the holding in that case is not here in point.
Ground 33, supra, is the only ground of the demurrer which is adequately argued in brief filed here on behalf of the appellants. The last paragraph of the argument in support of Assignment of Error No. 1 reads: "In addition to the foregoing, appellants are of the opinion that their several demurrers to the complaint as last amended should have been sustained for the additional reasons assigned elsewhere in this brief in support of assignment of error No. 24. They adopt said argument herein elsewhere assigned in support of assignment of error No. 24 as additional argument in support of this assignment of error." Assignment of Error No. 24 relates to the refusal of the general affirmative charge requested by the defendants and the argument made in support of that assignment is directed to alleged failure of proof, not of allegation. No ground of demurrer is referred to in that argument and we do not feel called upon to analyze that argument in an attempt to find some part or parts of it which might be said to show that one or more of the innumerable grounds of the demurrers were well taken.
There being no merit in the ground of the demurrers which we understand the appellants to have argued in brief filed here, we hold that error in overruling the demurrers is not made to appear.
Assignment of Error No. 8 of each appellant challenges the action of the trial court in overruling their motions for change of venue. In support of those motions, wherein they averred in effect that they could not get a fair and impartial trial in Elmore County, the defendants relied in the main on a newspaper story concerning this suit which appeared in the October 22, 1953, issue of the Wetumpka Herald, a newspaper widely circulated in Elmore County. The newspaper story pointed out the theory on which the plaintiff sought to recover damages from the defendants, the amount of damages claimed, the ruling of the trial court on the demurrers, the date the case was set for trial, and the fact that it involved questions of considerable interest to the legal profession and to the insurance business. The story also called attention to the fact, already known by most people in Alabama, that Mrs. Dennison had been electrocuted for the murder of Shirley and that she was the first white woman to be electrocuted for crime in Alabama. The newspaper account was concluded with these words in parentheses: "Not the $64,000 question but the $100,000 question."
*703 The matter of granting change of venue is addressed to the sound discretion of the trial court. Littlefield v. State, 36 Ala.App. 507, 63 So. 2d 565, certiorari denied, 258 Ala. 532, 63 So. 2d 573; Ex parte Morrow, 259 Ala. 250, 66 So. 2d 130. Newspaper publicity does not necessarily constitute grounds for a change of venue. Littlefield v. State, supra. We see nothing in the newspaper account which would justify us in holding that the trial court abused its discretion in denying the motions for change of venue. Nor could we put the trial court in error on the mere statement of counsel for the defendants below that the defendants could not get a fair trial in Elmore County because the people of that county were aroused over the fact that Mrs. Dennison had murdered Shirley.
We hold that no error resulted from the trial court's rulings on the motions for a change of venue, even if properly presented, which is not questioned by appellee, but see Kansas City, M. & B. R. Co. v. Sanders, 98 Ala. 293, 13 So. 57.
Assignment of Error 24 of each appellant reads: "24. The Court erred in failing and refusing to give to the jury, at the request of this defendant, the following written charge: `15. I charge you that if you believe the evidence in this case you cannot find for the plaintiff.'" In considering this assignment we review the evidence in the light most favorable to the plaintiff, for when an affirmative instruction is refused and the party who requested the charge appeals, the entire evidence is viewed in the light most favorable to the opposite party and where reasonable inferences may be drawn adverse to the party who requested the charge, the action of trial court in refusing the charge must be affirmed. Aircraft Sales & Service v. Gantt, 255 Ala. 508, 52 So. 2d 388; Hasty v. Hasty, 260 Ala. 90, 69 So. 2d 282; Adams v. Queen Insurance Co. of America, 264 Ala. 572, 88 So. 2d 331.
The evidence in this case shows beyond peradventure that Shirley was murdered by Mrs. Dennison. We will briefly summarize the facts which tend to support that statement. In the early afternoon of May 1, 1952, Mrs. Dennison drove to plaintiff's home, in rural Elmore County, where she found the plaintiff, his wife and their two children, Orville and Shirley. Shortly after Mrs. Dennison's arrival the plaintiff and his son left the home to attend to some duties around the farm. At the time of their return home Mrs. Dennison was engaged in serving some soft drinks which she had purchased at a nearby store. Mrs. Dennison divided an orange drink between Orville and Shirley. Shirley's drink was poured into a little cup that Mrs. Dennison provided. Shortly after she consumed her drink Shirley became very nauseated. After the nausea subsided Mrs. Dennison left the room but returned in a short time shaking a partially filled bottle of Coca-Cola, from which she gave Shirley a drink. Shirley again became violently nauseated and that condition continued until she became almost unconscious. At the mother's insistence Shirley was taken to Wetumpka in search of a doctor. She was admitted to a hospital in Wetumpka shortly after her arrival there. She died within a comparatively short time after she was admitted to the hospital.
Dr. Rehling, the Director of the Department of Toxicology of this state, testified that an autopsy which he performed revealed arsenic in fatal quantities in Shirley's body and expressed the opinion that the child died as the result of arsenic taken through her mouth. He testified that he found traces of arsenic on articles of clothing worn by Shirley and by Mrs. Dennison at the time the drinks were served and he further testified that he found traces of arsenic in the cup from which Shirley drank. The appellants do not contend here that the evidence was not altogether ample to support a jury finding that Mrs. Dennison murdered the little girl.
The evidence is also clear to the effect that Mrs. Dennison murdered the child in order to collect insurance benefits payable *704 to her upon the child's death. We will not undertake to set out all of the evidence which tends to support that statement, for the defendants do not contend that such was not the case. We simply call attention to one incident which we think clearly shows why Mrs. Dennison poisoned the child. Mrs. Dennison was a nurse in the hospital to which Shirley was admitted and she was directed by the doctor in charge of Shirley to administer aid to the patient. By late afternoon when it was apparent that Shirley was dying, Mrs. Dennison left the hospital and drove approximately twelve miles to the home of an insurance agent to pay the premium on the Liberty National policy which was about to lapse.
So it is clear that the harm which came to plaintiff's little girl was not caused by the direct act of any of the defendants, but by the intervening act of Mrs. Dennison, who has paid with her life for her horrible crime.
But as before indicated, the plaintiff says, in effect, that such harm would not have come to his little girl if the defendants had not wrongfully or negligently issued to Mrs. Dennison the alleged illegal policies covering Shirley's life.
The plaintiff has proceeded against these defendants on the theory that Mrs. Dennison did not have an insurable interest in the life of Shirley and hence the policies involved were illegal and void as against public policy; that the defendants were negligent in the issuance of the policies in that they knew there was no such interest or failed to exercise reasonable diligence to ascertain that fact before issuing the policies, although there was a duty upon them to do so; and that the failure to perform that duty was in fact the proximate cause of the child's death.
The evidence was sufficient to show a lack of insurable interest. In the brief filed here on behalf of appellants reference is made to the case of National Life & Accident Ins. Co. v. Davis, 179 Ark. 621, 17 S.W.2d 312, which holds, in effect, that the relationship of aunt and niece, standing alone, is sufficient to provide an insurable interest. But such is not the law of this state. We have held to the contrary. Commonwealth Life Ins. Co. v. George, 248 Ala. 649, 28 So. 2d 910, 170 A.L.R. 1032, and authorities cited. Our holding is in accord with that of most of the courts in this country. See Cooley's Briefs on Insurance (Second Ed.), Vol. 1, p. 385. Moreover, Mrs. Dennison was not an aunt of Shirley but an aunt-in-law and the courts seem to be in accord in holding that an in-law relationship in and of itself does not sustain an insurable interest. National Life & Accident Ins. Co. v. Middlebrooks, 27 Ala.App. 247, 170 So. 84; National Life & Accident Ins. Co. v. Ball, 157 Miss. 163, 127 So. 268; Cooley's Briefs on Insurance (Second Ed.), Vol. 1, pp. 386, 387.
Most certainly the evidence in this case does not show as a matter of law that Mrs. Dennison had an insurable interest in Shirley because she had a reasonable expectation of possible profit or advantage to her from the continued life of Shirley. Helmetag's Adm'r v. Miller, 76 Ala. 183; Commonwealth Life Ins. Co. v. George, supra. Mrs. Dennison did not provide a home for Shirley. They lived in different towns several miles apart. Shirley lived in the home of her parents with her brother and sister and received her entire support from her parents. She saw Mrs. Dennison only when the latter made her infrequent visits to the home of Shirley's parents. Shirley had spent only one night under a roof with Mrs. Dennison and that was on an occasion when her entire family spent the night in the Dennison home and that visit was made while Mr. Dennison, the brother of Shirley's mother, was living. Mrs. Dennison had given Shirley a few presents but they were of very little value
Since the jury was authorized under the evidence to find that Mrs. Dennison had no insurable interest in the life of Shirley, a finding that the policies of *705 insurance were illegal and void as repugnant to public policy naturally followed.
In 1884 in the case of Helmetag's Adm'r v. Miller, supra, Mr. Justice Somerville, writing for the court, said in part as follows:
"No principle of the law of life-insurance is at this day better settled, than the doctrine, that a policy taken out by one person upon the life of another, in which he has no insurable interest, is illegal and void, as repugnant to public policy. 3 Kent's Com. (11th Ed.) 462-63. Such contracts are aptly termed `wager policies,' and are entitled to no higher dignity, in the eye of the law, than gambling speculations, or idle bets as to the probable duration of human life. There is no limit as to the insurable interest which a man may have in his own life; but there are forcible reasons why a mere stranger should not be permitted to speculate upon the life of one whose continued existence would bring to him no expectation of possible profit or advantage. All wagers, at common law, were not illegal, but only such as were contrary to good morals or sound policy. Chitty, Contr. 468. The statutes of this State make all contracts by way of gaming or wagering void. Code, 1876, § 2131; Hawley v. Bibb, 69 Ala. 52. However this may be, wager policies, or such as are procured by a person who has no interest in the subject of insurance, are undoubtedly most pernicious in their tendencies, because in the nature of premiums upon the clandestine taking of human life. * * *
"* * * The reason of the law which vitiates wager policies is the pecuniary interest which the holder has in procuring the death of the subject of insurance, thus opening a wide door by which a constant temptation is created to commit for profit the most atrocious of crimes. * * *" (Emphasis supplied.) 76 Ala. 186-187.
The holding in the Helmetag case, supra, has been consistently followed by this court. National Life & Accident Ins. Co. of Nashville, Tenn. v. Alexander, 226 Ala. 325, 147 So. 173, and cases cited; Commonwealth Life Ins. Co. v. George, supra. That holding is in accord with that of a vast majority of the courts of other jurisdictions. See Cooley's Briefs on Insurance (Second Ed.), Vol. 1, p. 330; Richards on Insurance (Fifth Ed.), Vol. 1, § 92, p. 381; 44 C.J.S. Insurance § 200; 29 Am. Jur., § 318.
From the evidence presented the jury was well justified in finding that none of the defendants before issuing the policies of insurance made reasonable effort to ascertain whether Mrs. Dennison did in fact have an insurable interest in Shirley's life.
Mrs. Dennison apparently stated to the agents of each of the defendant insurance companies that she was Shirley's aunt because that relationship is shown on each application. But as we have shown, that relationship standing alone was not sufficient to sustain an insurable interest and, in fact, Mrs. Dennison was only an aunt-in-law.
We will state as briefly as possible the evidence as it relates to the issuance of the insurance policies, which statement, of course, is based on the evidence most favorable to the plaintiff below, the appellee here.
As heretofore shown, the first of the three policies issued on the life of Shirley with which we are presently concerned was that issued by Liberty National. The application was taken by J. M. Stoudemire, who was Liberty National's superintendent in Elmore County. Stoudemire was a lifelong friend of the plaintiff and saw him almost daily, but he never told plaintiff or Mrs. Weldon that the policy had been issued and that policy was in force about five months before Shirley was killed. Cecil Bailey, an agent of Liberty National, delivered the policy to Mrs. Dennison and collected the premiums from her. Bailey admitted *706 that when he delivered the policy to Mrs. Dennison he knew that Shirley was not living with Mrs. Dennison and understood at that time that the child was living with her parents. Bailey read from Liberty National's instruction book as to who are "acceptable beneficiaries" and admitted that nowhere therein was it provided that an aunt or an aunt-in-law was an acceptable beneficiary. The instruction book did not include an aunt or aunt-in-law as an acceptable beneficiary but Bailey testified that Liberty did write policies where aunts are beneficiaries if the insured "was living with the aunt and they were in the same house and good reputable people." Bailey stated that he just did not know if the Liberty National policy was in violation of his company's rules. Mrs. Dennison later sought to obtain a $5,000 policy on Shirley's life from Liberty National but she was informed by Bailey that such a policy could not be written. Included in Liberty National's book of instructions to its agents was this rule: "Applications on persons under ten years of age must be signed by the parent or guardian in his or her own name and not in the name of the life proposed." Bailey stated, however, that he did not know whether his company required parental consent where a policy was written on a child. Neither parent signed the application for insurance or knew that one had been made by Mrs. Dennison until after the death of their child. As far as we can determine, Liberty National made no effort to determine whether Mrs. Dennison had an insurable interest in Shirley's life. In fact, in answer to interrogatories Liberty National took the position that its agents were not given any instructions concerning any requirement as to insurable interest in the type of policy issued to Mrs. Dennison, contending no such interest was necessary in that type of policy. The latter contention will be dealt with later on in this opinion.
The application for the Southern Life policy was obtained from Mrs. Dennison on January 24, 1952, by Eugene Keener, who had been an agent for that company for fourteen years. Keener met Mrs. Dennison on the day the application was taken at the hospital in Wetumpka where she worked. He had never seen her before, but accepted her application for a $5,000 policy on Shirley's life and accepted from Mrs. Dennison the sum of $8.20 as payment of her first premium. At that time Keener had never seen Shirley or her parents, but later on the same day he drove to the Weldon home in compliance with a rule of his company that he certify to the company that he "has seen the child." When Keener arrived at the Weldon home he saw Shirley and Mrs. Weldon. He told Mrs. Weldon that Mrs. Dennison wanted to take out an educational policy on Shirley. Upon being told by Mrs. Weldon that he would have to see Mr. Weldon about the policy, Keener replied that the policy could not be written until Shirley had been examined by the family doctor. No such examination was ever made and Shirley's parents did not know until after her death that the policy had in fact been issued in March of 1952. Keener forwarded Mrs. Dennison's application to the district office where it was received on January 28, 1952. According to Keener's testimony, only one further act remained to be done and that was for Mrs. Dennison to get a medical certificate stating that Shirley had been examined by a doctor who found her in good health. Keener went to Mrs. Dennison and inquired about the delay. Nearly two months after the application was taken Mrs. Dennison obtained a medical certificate. The certificate was not executed by the family doctor, or even by a doctor connected with the hospital where Mrs. Dennison worked as a nurse. It was executed by a doctor who did not live or work in Wetumpka or in the community where the Weldon family lived. Mrs. Dennison drove to the doctor's office in another town and by false statements and because of prior friendship, although she had not seen him in eight years, persuaded him to sign a medical certificate stating that he had examined the child when, in fact, he had never seen *707 her. Keener knew that Shirley was living with her parents but apparently was not at all concerned about the matter of insurable interest or lack of it. He stated that he had never been given any instructions by his company concerning that subject. When Keener took the application for the policy he told Mrs. Dennison of his company's rule to the effect that before a policy could be written on one child in the family there must be at least the same amount of insurance on every other member of the family. Mrs. Dennison apparently satisfied Keener as to this point by merely telling him that Shirley was the only member of her family whose life was not insured for $5,000 or words to that effect. Keener apparently was not interested in pursuing the matter further, although as shown above he made a visit to the very humble home in which the Weldons lived. The Southern Life policy is labeled "Juvenile Endowment Policy" although it did not mature until the year 2035, at which time the juvenile would have been more than eighty-five years of age.
The application for the National Life policy was taken in late March or early April by S. M. Oxford, an agent of that company, who had never talked to Mrs. Dennison prior to the day on which the application was obtained. At the time he took the application Oxford knew that Mrs. Dennison, while working in Wetumpka, lived in Holtville and that Shirley lived with her parents in Claud, a community situate several miles from Holtville and Wetumpka. Mrs. Dennison told Oxford that she had no dependants but made no representation that she supported Shirley. In answer to a question as to what insurable interest he found, he replied: "Well, the fact that she wanted an educational policy for her niece and the fact that her parents couldn't afford to pay for it. * * * Well, that coupled with the fact that she said she was always doing something for the child and buying it shoes and things. She just seemed interested in the child and she commented on it highly." Oxford went to the Weldon home a few days after he received the application. The evidence is in direct conflict as to what occurred on that occasion but when viewed in the light most favorable to the plaintiff it shows that Mr. Weldon, the plaintiff, told Oxford he did not want anybody taking out insurance on his children and that if he needed any insurance he would contact Oxford. The evidence for the plaintiff is to the effect that neither he nor his wife had any knowledge of the fact that the policy had been issued.
We repeat what we said above to the effect that the jury could well find from the evidence presented that none of the insurance companies were concerned about the matter of insurable interest and did not undertake to exercise reasonable care not to issue a policy to a beneficiary without insurable interest.
The conclusions which we have reached above, namely, that the evidence was sufficient to show that Shirley was murdered and the policies were void because of lack of insurable interest and were, in effect, negligently issued do not, of course, determine the liability of the defendants. For all negligence is not actionable. To be actionable it must be the breach of a duty which the defendant owed the plaintiff as an individual or one of a class (Stowers v. Dwight Mfg. Co., 202 Ala. 252, 80 So. 90) and the plaintiff must not only show causal connection between the negligent breach of the duty but that such negligence was the proximate cause of the injury. Alabama Power Co. v. Bass, 218 Ala. 586, 119 So. 625, 63 A.L.R. 1.
The defendants below, the appellants here, assert with considerable emphasis in briefs filed in this court that there was no duty on them to determine whether Mrs. Dennison at the time the policies were issued had an insurable interest in the life of the plaintiff's minor daughter. Of course, if there was no such duty the defendants *708 were entitled to the general affirmative charge with hypothesis, as requested.
Does a life insurance company have the duty to use reasonable care not to issue a policy of life insurance in favor of a beneficiary who has no interest in the continuation of the life of the insured?
No case has come to our attention where this specific question has been considered by any court. But we are of the opinion that such a duty exists, for there is a duty upon all to exercise reasonable care not to injure another. Weston v. National Manufacturers & Stores Corp., 253 Ala. 503, 45 So. 2d 459; Railway Express Co. v. Real, 253 Ala. 489, 45 So. 2d 306; Southeastern Greyhound Lines v. Callahan, 244 Ala. 449, 13 So. 2d 660; Whiddon v. Malone, 220 Ala. 220, 124 So. 516; Southern Ry. Co. v. Arnold, 162 Ala. 570, 50 So. 293; Merchants' Bank v. Sherman, 215 Ala. 370, 110 So. 805.
The position of the defendants seems to be that if murder results the insurance companies are, of course, sorry that the insured met with such a fate, but they have no liability if there is no insurable interest although they can treat such policies as completely void. If an early death from natural causes makes the policy unprofitable, the defendants can and do refuse to pay the beneficiary for the reason that such policies are void. In other words, the defendants seem to be of the opinion that the insurable interest rule is to protect insurance companies. We do not agree. The rule is designed to protect human life. Policies in violation of the insurable interest rule are not dangerous because they are illegal; they are illegal because they are dangerous.
As we have shown, it has long been recognized by this court and practically all courts in this country that an insured is placed in a position of extreme danger where a policy of insurance is issued on his life in favor of a beneficiary who has no insurable interest. There is no legal justification for the creation of such a risk to an insured and there is no social gain in the writing of a void policy of insurance. Where this court has found that such policies are unreasonably dangerous to the insured because of the risk of murder and for this reason has declared such policies void, it would be an anomaly to hold that insurance companies have no duty to use reasonable care not to create a situation which may prove to be a stimulus for murder.
The defendants say in their brief: "The adoption of the theory contended for on behalf of the plaintiff would place upon an insurance company an impossible burden." Yet in all three insurance policies involved in this case there is the statement that at one time or another the insurance company may require proof of insurable interest. Why is it any more of an "impossible burden" to require an insurance company to exercise reasonable care to determine whether the beneficiary has an insurable interest in the insured before it issues the policy of insurance than after the insured is dead? If the effort to determine the question of insurable interest is asserted before the issuance of the policy it may prevent the creation of the risk of murder. The purpose of such an inquiry made after death is to effectuate a saving to the insurance company of the payment of the amount of the insurance carried.
The fact that this precise question does not seem to have been brought before the courts on previous occasions cannot deter us from declaring that the duty which is upon all persons to exercise reasonable care not to injure another requires of life insurance companies the exercise of reasonable care not to issue policies of life insurance in favor of a beneficiary who has no interest in the continuation of the life of the insured, a policy which is void as against public policy because it opens "a wide door by which a constant temptation is created to commit for profit the most atrocious of crimes." Helmetag's Adm'r v. Miller, supra.
*709 We come now to the contention of the appellants that they were entitled to the affirmative instruction presently under consideration for the reason that the plaintiff failed to meet the burden which was upon him to present some evidence tending to show that the defendants' acts were the proximate cause of Shirley's death. In their brief the defendants say that the evidence shows that "in the instant case, the separate, independent, superseding, wilful, malicious, crime of murder became `the responsible cause' of the death of Shirley Dianne Weldon."
Persons who perpetrate torts are, as a rule, responsible and only responsible for the proximate consequences of the wrongs they commit. In other words, unless the tort be the proximate cause of the injury complained of, there is no legal accountability. Our court has repeatedly dealt with and defined "proximate cause." Quite a number of definitions are quoted in Western Railway of Alabama v. Mutch, 97 Ala. 194, 11 So. 894, 21 L.R.A. 316; Mobile & Ohio R. Co. v. Christian Moerlein Brewing Co., 146 Ala. 404, 41 So. 17; Garrett v. Louisville & N. R. Co., 196 Ala. 52, 71 So. 685; and in Dye-Washburn Hotel Co. v. Aldridge, 207 Ala. 471, 93 So. 512. But there is very little use of reviewing our many cases where the question of proximate cause is involved. There are differences in almost every case, and ofttimes the case turns on a slight difference of facts. The general principles of law in relation thereto have been frequently stated and are not so difficult as is their application to the particular circumstances of each individual case.
Here we have an intervening cause, the criminal act of Mrs. Dennison. The many decisions of this court dealing with negligence as the proximate cause, when some agency has intervened and has been the immediate cause of the injury, hold the party guilty of negligence in the first instance is not responsible, unless at the time of the original negligence the act of the agency could have been reasonably foreseen. If the act of the intervening agency could have been reasonably foreseen the causal chain is not broken. But if the injury results from an independent, intervening, efficient cause, not reasonably to be anticipated, to wit, the act of a third person, the negligence shown, if any, is not the proximate cause of the injury. Clendenon v. Yarbrough, 233 Ala. 269, 171 So. 277; Louisville & N. R. Co. v. Maddox, 236 Ala. 594, 183 So. 849, 118 A.L.R. 1318; Louisville & N. R. Co. v. Courson, 234 Ala. 273, 174 So. 474, and cases cited; Mahone v. Birmingham Electric Co., 261 Ala. 132, 73 So. 2d 378. That is the rule laid down by this and other courts with some slight variance in the language by which the thought is expressed, such as that the intervening event must be the "natural and reasonable" or "ordinary and natural" result of the initial negligence.
Appellants assert that a person is not liable for the intervening willful, criminal act of another. The case of Garrett v. Louisville & N. R. Co., supra, is cited and the opinion in that case does contain this language:
"After a full discussion of this subject, Mr. Freeman, in noting some differences in the cases where the subsequent act of the third person is merely negligent, concludes:
"`But the courts, at least in this country, refuse to hold a tort-feasor liable for the results of a subsequent act which is willfully wrong, unless that act was actually intended by him.' Gibson v. Delaware, etc., Canal Co., 65 Vt. 213, 26 A. 70, 36 Am.St.Rep. 802, note, 807, 842, 843, citing the authorities." 196 Ala. 54, 71 So. 686.
But the decision in the Garrett case went off on the fact that the "willful independent" act of the third person was "neither intended nor anticipated by the defendant." We do not consider the Garrett case, supra, as being authority for the proposition asserted by the defendants.
*710 The defendants put much emphasis on language used by the elder Mayfield in his opinion in Birmingham Ry., Light & Power Co. v. Ely, 183 Ala. 382, 62 So. 816, which they say "is the law of Alabama." They are mistaken. It is not the law of Alabama. The court did not agree with Judge Mayfield's holding that Count 1 in that case was subject to the demurrer interposed and the language upon which defendants rely was that used by Judge Mayfield in his effort to support his position. See Roach v. Wright, 195 Ala. 333, 335, 70 So. 271, 272, where Mr. Justice Anderson, writing for the court, said:
"* * * It is sufficient to say that count 1 was not subject to any of the grounds of demurrer, and the sufficiency of same is supported by the case, cited by counsel for appellant. Birmingham R., L. & P. Co. v. Ely, 183 Ala. 382, 62 So. 816. It is true the opinion in said case condemns count 1 there considered, but it must be noted that the opinion was not concurred in by the court, as a majority held that said count was sufficient."
We have been cited to a number of cases from other jurisdictions by counsel representing the parties to this litigation which treat the matter of intervening criminal acts of third persons. It is, of course, quite impossible to review all of them in detail within the limits of an ordinary opinion. But our reading of the cases, not only those cited by the plaintiff, but many of those cited by the defendants, show the majority rule to be that stated in the Restatement of the Law of Torts by the American Law Institute, § 448, as follows:
"The act of a third person in committing an intentional tort or crime is a superseding cause of harm to another resulting therefrom, although the actor's negligent conduct created a situation which afforded an opportunity to the third person to commit such a tort or crime, unless the actor at the time of his negligent conduct should have realized the likelihood that such a situation might be created thereby and that a third person might avail himself of the opportunity to commit such a tort or crime.
"Comment:
"a. The rule stated in this Section applies when the actor's conduct creates a situation which is utilized by a third person to intentionally inflict harm upon another or provides a temptation thereto to which the third person yields, the actor having no reason to expect that the third person would so act. Under the rule stated in this Section, the actor is not responsible for the harm thus inflicted merely because the situation which his negligence has created has afforded an opportunity or temptation for its infliction.
"b. When special grounds for anticipating criminal action by third person. There are certain situations which are commonly recognized as affording temptations to which a recognizable percentage of humanity is likely to yield. So too, there are situations which create temptations to which no considerable percentage of ordinary mankind is likely to yield but which, if created at a place where persons of peculiarly vicious type are likely to be, should be realized as likely to lead to the commission of fairly definite types of crime. If the situation, which the actor should realize that his negligent conduct might create, is of either of these two sorts, an intentionally criminal or tortious act of the third person is not a superseding cause which relieves the actor from liability."
The following authorities appear to hold that whether or not an intervening act is criminal in nature is a fact to be considered in determining whether such act was reasonably foreseeable. But intervening criminal acts may be found to be foreseeable and, if so found, actionable negligence may *711 be predicated thereon. McLeod v. Grant County School District No. 128, 42 Wash. 2d 316, 255 P.2d 360; Whitehead v. Stringer, 106 Wash. 501, 180 P. 486, 5 A.L.R. 358; Hines v. Garrett, 131 Va. 125, 108 S.E. 690; Southwestern Bell Telephone Co. v. Adams, 199 Ark. 254, 133 S.W.2d 867; Lillie v. Thompson, 332 U.S. 459, 68 S. Ct. 140, 92 L. Ed. 73; Brauer v. New York Central & H. R. Co., 91 N.J.L. 190, 103 A. 166, 1 A.L.R. 734; Mallory v. O'Neil, Fla., 69 So. 2d 313; Jesse French Piano & Organ Co. v. Phelps, 47 Tex.Civ.App. 385, 105 S.W. 225; Williams v. Grier, 196 Ga. 327, 26 S.E.2d 698, 705; Henderson v. Dade Coal Co., 100 Ga. 568, 28 S.E. 251, 40 L.R.A. 95; Nichols v. City of Phoenix, 68 Ariz. 124, 202 P.2d 201; Levin v. Eleto Realty Corp., 157 Misc. 180, 283 N.Y.S. 105; Seith v. Commonwealth Electric Co., 241 Ill. 252, 89 N.E. 425, 24 L.R.A., N.S., 978; Livingston v. Seaboard Air Line R. Co., D.C. 106 F. Supp. 886; Aune v. Oregon Trunk Ry., 151 Or. 622, 51 P.2d 663; Strong v. Granite Furniture Co., 77 Utah 292, 294 P. 303, 78 A.L.R. 465; Davis v. Schroeder, 8 Cir., 291 F. 47; Scheffer v. Washington City, V. M. & G. S. R. Co., 105 U.S. 249, 26 L. Ed. 1070.
We cannot agree with the defendants in their assertion that we should hold as a matter of law that the murder of the young girl was not reasonably foreseeable. They created a situation of a kind which this court and others have consistently said affords temptation to a recognizable percentage of humanity to commit murder. We quote again from the case of Helmetag's Adm'r v. Miller, 76 Ala. 183: "The reason of the law which vitiates wager policies is the pecuniary interest which the holder has in procuring the death of the subject of insurance, thus opening a wide door by which a constant temptation is created to commit for profit the most atrocious of crimes." (Emphasis supplied.)
The question of proximate cause was properly left for the jury's determination.
As we have heretofore observed, each of the counts in the complaint contains an averment to the effect that the wrongful or negligent acts of the three insurance companies concurred or united in proximately contributing to or causing the death of plaintiff's minor child. Defendants say there was a failure of proof in that regard and hence assert that the trial court erred in refusing to give the affirmative instruction presently under consideration. The proof which appellants say is absent and which they contend is essential was that going to show "that any defendant company knew what the other defendant companies were doing in this connection."
Such proof was not essential under this complaint. It has been settled in this state for a long time that if damage has resulted from concurrent, wrongful acts of two or more tort-feasors they may be sued jointly or severally and the act of each may be counted on as the proximate cause of the injury. Hall v. Seaboard Air Line R. Co., 211 Ala. 602, 100 So. 890; Watt v. Combs, 244 Ala. 31, 12 So. 2d 189, 145 A.L. R. 667; Caudle v. Birmingham Electric Co., 247 Ala. 34, 22 So. 2d 417; Campbell v. Jackson, 257 Ala. 618, 60 So. 2d 252; Downes v. Norrell, 261 Ala. 430, 74 So. 2d 593. Equally well settled by the cases just cited and others is the rule that it is not necessary that a plaintiff aver or prove facts showing a common design, a concert of action, or knowledge by one plaintiff of the acts of the other tort-feasors. Where the plaintiff has sued the defendants jointly, there being no question of respondeat superior, "a recovery may be had as to all, or any number less than all, according to the proof." Hubbard v. Thrasher, 26 Ala.App. 252, 157 So. 680, 682; Southern Ry. Co. v. Arnold, 162 Ala. 570, 50 So. 293; Title 7, § 139, Code 1940.
We believe that there was presented a question for the determination of the jury as to the liability of the defendants. Accordingly we hold that the trial court did not err in refusing the affirmative charge with hypothesis as requested by the defendants.
*712 Assignment of Error No. 54 of each appellant is to the effect that the trial court erred in overruling defense objections to the introduction in evidence of a little dress or sun suit which Shirley wore at the time she drank the drinks given her by Mrs. Dennison. We cannot agree. A material allegation of each of the counts of plaintiff's complaint was that Mrs. Dennison murdered Shirley. That was one of the issues in the case and the burden of proof was on the plaintiff to show that Mrs. Dennison murdered the little girl. The autopsy showed that Shirley died of arsenic poisoning and there was evidence of the State Toxicologist going to show that the dress or sun suit which was admitted in evidence had become contaminated from her regurgitation and contained a considerable quantity of arsenic poisoning.
The pertinent rule is that articles or objects which relate to or tend to elucidate or explain the issues or form a part of the transaction are admissible in evidence when duly identified and shown to be in substantially the same condition as at the time of the occurrence. The preliminary proof identifying and describing the dress or sun suit complied with the rule and that article was admitted in evidence without error. Dennison v. State, 259 Ala. 424, 66 So. 2d 552, and cases cited; Northern Alabama Ry. Co. v. Mansell, 138 Ala. 548, 36 So. 459; Burdett v. Hipp, 252 Ala. 37, 39 So. 2d 389.
Assignment of Error No. 59 of each appellant reads: "The Court erred in overruling this defendant's motion for a mistrial based upon the improper statements of counsel for the plaintiff made in the presence of the jury." (R. 721-729.) This court has held in several cases that assignments of error couched in such general language will not be considered. Hall v. Pearce, 209 Ala. 397, 96 So. 608; Jackson Lumber Co. v. Butler, 244 Ala. 348, 13 So. 2d 294; Almon v. Commission of Education of Cullman County, 265 Ala. 489, 92 So. 2d 35, and cases there cited. Assignment of Error No. 59 does not spell out the improper statements of which defendants complain and an examination of pages 721-729 of the record, which pages are referred to in the assignment of error, shows that all that is recorded on those pages took place out of the presence of the jury and at a time when the defendants' witness Eugene A. Keener was on the witness stand. The argument made by counsel for the appellants in support of Assignment of Error No. 59 in no way relates to anything that occurred during the examination of the witness Keener. Apparently that argument is in connection with the action of the trial court in refusing to declare a mistrial because of the unsuccessful effort of counsel for the plaintiff below, the appellee here, to introduce into evidence a brief filed by Southern Life in a Texas Court wherein Southern Life set out the insurable interest rule in defense of a suit against it on an insurance policy. (R. pp. 510-574.) No ruling of the trial court in that connection is assigned as error.
We hold that Assignment of Error No. 59 does not present cause for reversal.
Assignment of Error No. 62 of each appellant reads: "The Court erred in entering an order on the 20th day of August, 1954, overruling this defendant's motion for a new trial." A general assignment of error on appeal grounded on the refusal of the trial court to grant a motion for a new trial is sufficient to invite a review of that ruling as to any ground well stated in the motion and properly argued by appellant. Grimes v. Jackson, 263 Ala. 22, 82 So. 2d 315.
The only grounds of the motions for new trial which appellants argue in support of Assignment of Error No. 62 are those which take the point that the verdict is grossly excessive.
Section 119, Title 7, Code 1940, the statute under which this action was brought, provides that for the wrongful death of a minor child the persons there *713 entitled to sue, if entitled to a verdict, "shall recover such damages as the jury may assess." The damages are entirely punitive, imposed for the preservation of human life. Louisville & N. R. Co. v. Bogue, 177 Ala. 349, 58 So. 392. As the wording of the statute indicates, the amount of damages rests largely in the discretion of the jury. However, this discretion is not an unbridled or arbitrary one, but "a legal, sound and honest discretion." Mobile Light & R. Co. v. Nicholas, 232 Ala. 213, 167 So. 298, 305. In arriving at the amount of damages which should be assessed, the jury should give due regard to the enormity or not of the wrong and to the necessity of preventing similar wrongs. The punishment by way of damages is intended not alone to punish the wrongdoer, but as a deterrent to others similarly minded. Mobile Light & R. Co. v. Nicholas, supra; Louisville & N. R. Co. v. Bailey, 245 Ala. 178, 16 So. 2d 167; Shirley v. Shirley, 261 Ala. 100, 73 So. 2d 77.
The verdict rendered in this case is large, perhaps the largest to come before this court in a case brought under the so-called homicide statute, §§ 119 and 123, Title 7, Code 1940. But the trial court refused to disturb the amount of the verdict and we have held that when such is the case we will not order a reduction unless the verdict is so excessive as to indicate passion, prejudice, corruption or mistake. Montgomery City Lines, Inc., v. Davis, 261 Ala. 491, 74 So. 2d 923; Louisville & N. R. Co. v. Tucker, 262 Ala. 570, 80 So. 2d 288; National Biscuit Co. v. Wilson, 256 Ala. 241, 54 So. 2d 492; City of Mobile v. Reeves, 249 Ala. 488, 31 So. 2d 688. We are unwilling to say that the amount of damages awarded by way of punishment of these three appellants for wrongfully and negligently issuing illegal policies of insurance, the issuance of which the evidence clearly shows led to the murder of plaintiff's young daughter, is so excessive as to indicate passion, prejudice, corruption or mistake, and as we have heretofore shown, the jury in fixing the amount of the verdict was charged with the duty of giving consideration to the necessity of preventing the same wrongs by others similarly minded.
We hold that the trial court did not err in overruling those grounds of the motion for new trial which are argued here as having been well taken.
We come now to a consideration of those assignments of error argued in the brief of appellants which do not apply to all of them.
Liberty National's Assignment of Error No. 66 P is based on the refusal of the trial court to give its written requested charge L36, which reads: "I charge you that if you believe the evidence in this case you cannot find for the plaintiff against the defendant, Liberty National Life Insurance Company."
In support of its contention that the trial court erred in refusing to give the above-quoted affirmative instruction, Liberty National asserts that the policy it issued to Mrs. Dennison covering the life of Shirley is an industrial policy which requires no insurable interest on the part of the beneficiary in the life of the insured, hence, the issuance of the policy could not have constituted a wrongful or negligent act as claimed by the appellee, the plaintiff below.
In State ex rel. Highsmith v. Brown Service Funeral Co., 236 Ala. 249, 252, 182 So. 18, 20, this court observed: "True, industrial insurance is a form of life insurance, but it is distinctive in character and is classed in the Code with mutual aid and benefit insurance, though it has features distinctive from them as well as from ordinary and other old line insurance." But the distinctions were not pointed out in that case and in so far as we are advised neither this court nor the legislature has undertaken to define industrial insurance, although Art. 1, Chapter 10, of Title 28, Code 1940, deals with "Mutual Aid, Benefit or Industrial Companies or Associations."
The courts of some other states have said that in a general sense, "industrial insurance" *714 means policies issued in small amounts in consideration of weekly payments, as distinguished from ordinary insurance, which is usually in large amounts and maintained by annual, semi-annual or guarterly premiums. Russell v. Prudential Ins. Co. of America, 176 N.Y. 178, 68 N.E. 252; Life & Casualty Ins. Co. v. King, 137 Tenn. 685, 195 S.W. 585; Prudential Ins. Co. of America v. Howell, 144 Okl. 166, 289 P. 734; Prudential Ins. Co. of America v. Hill, 174 Okl. 33, 49 P.2d 1067; Krumphorn v. John Hancock Mut. Life Ins. Co., 272 Ky. 719, 114 S.W.2d 1125; Old Surety Life Ins. Co. of Alva, Okl. v. Morrow, 195 Okl. 422, 158 P.2d 715; Gontrum v. Union Liberty Life Ins. Co., 177 Md. 624, 11 A.2d 625, 627.
The case last cited is one of the two cases cited by Liberty National in support of this assignment of error. In that case industrial insurance is described thusly: "It is a form of insurance written for a small limited amount payable at death, in consideration of a premium collected at short, fixed intervals, and is not unlike burial insurance, or death benefits, since its benefits ordinarily accrue to the insured rather than to another." In Fulcher v. Parker, 169 Va. 479, 194 S.E. 714, the other case cited by Liberty National in connection with the matter presently under consideration, it was said in part as follows: "Industrial insurance is designed to meet the immediate need of those usually in indigent circumstances, and to cover expenses of one's last illness, burial, etc."
Liberty National's policy presenty under consideration is labeled "Special Monthly Endowment Insurance" on the cover and is described as "Endowment Insurance" on the front page, but it is in a comparatively small amount, $500, and the premiums were payable monthly.
However, the policy would have matured on the anniversary following insured's seventeenth birthday, and at such time the proceeds were payable to the insured, unless prior payment had been made by the death of the insured. This manner of payment certainly was not the creation of a funeral and burial fund. Several options were provided for any proceeds going to the beneficiary by reason of the death of the insured. Option No. 1 is cash, Option No. 2 is installment payments of $10 per week, which is in our opinion wholly inconsistent with the general objective of "industrial insurance" as stated in the cases referred to above. In view of these distinctions we are unwilling to say that Liberty National's policy was one of "industrial insurance."
But even if we be in error in our conclusion that the policy here under consideration is not one of "industrial insurance," we are clearly of the opinion that it is not that kind of policy which the courts of some states have held to require no insurable interest on the part of the beneficiary in the life of the insured.
It is not every small policy which provides for premium payments to be collected at short, fixed intervals that some courts have excepted from the general rule that requires the beneficiary to have an insurable interest in the life of the insured. That exception applies only when the policy has a facilitating clause whereby the company is allowed to pay the amount due under the policy to the beneficiary or to the one who may appear to the company to be equitably entitled thereto. In the case of Fulcher v. Parker, supra, relied upon by Liberty National, two of the policies involved did not name a beneficiary and the other contained a facilitating clause of the kind outlined above. That the exception is so limited is demonstrated by that part of the opinion of the Court of Appeals of Kentucky in Newton v. Hicks' Adm'r, 282 Ky. 226, 138 S.W.2d 329, hereafter quoted:
"* * * Where an industrial policy contains a facilitating clause allowing the company to pay the amount due under the policy to the beneficiary, or to the one who may appear to the company to be equitably entitled thereto, the Nelson case [Metropolitan Life *715 Ins. Co. v. Nelson, 170 Ky. 674, 186 S.W. 520, L.R.A.1916F, 457] draws a distinction between ordinary life and industrial insurance, and excepts the latter from the general rule that one without an insurable interest in the life of another may not collect the policy; and such distinction was followed in the recent case of Krumphorn v. John Hancock Mut. Life Ins. Co., 272 Ky. 719, 114 S.W.2d 1125. The Krumphorn and Nelson cases define industrial insurance as small policies with weekly premiums, the purpose of which is not to augment insured's estate or to care for his dependents, but to provide for insured's last illness and a decent burial. While the Nelson case allows one having no insurable interest in the life of another to recover on an industrial policy containing a facilitating clause, yet it expressly says, there is no abrogation of the general rule that one without an insurable interest in the life of another cannot carry an insurance policy on such person, and the exception applies only to industrial insurance containing a facilitating clause where `the size of the policy is not beyond a sum reasonably certain to accomplish the purpose intended (to provide for last illness and burial), and good faith is shown by all parties concerned.' * * *" (Emphasis supplied.) 138 S.W.2d 331.
There is a clause in the policy issued by Liberty National and involved in the instant case which reads as follows:
"Beneficiary.By written notice to the Company the Insured may from time to time name a new beneficiary, subject to evidence of insurable interest satisfactory to the Company, but no such change shall be effective until endorsed on this policy by the Company.
"If the beneficiary die before the Insured the Estate of the Insured shall then automatically become the Beneficiary thereof. If the beneficiary fail to file claim with the Company within sixty days after the death of the Insured, then the Company may make payment to any relative by blood or marriage, or to any person appearing to the Company to be equitably entitled to such payment because of having incurred expense for the maintenance, medical attention or burial of the Insured. If the Beneficiary is a minor, or is otherwise not legally qualified to give a valid release at the time of payment hereof the Company may make payment to any person who furnishes evidence satisfactory to the Company that such person is responsible for, or is actually contributing to the support of the Beneficiary." (Emphasis supplied.)
Under the provisions quoted above, the insured could not change the beneficiary within written notice to the company and then only upon "evidence of insurable interest satisfactory to the Company." That part of the quoted clause which we have italicized does provide that "the Company may make payment to any relative by blood or marriage, or to any person appearing to the Company to be equitably entitled to such payment because of having incurred expense for the maintenance, medical attention or burial of the Insured," but that right exists only in the event "the Beneficiary fail to file a claim with the Company within sixty days after the death of the Insured." The right of the beneficiary within the sixty-day period following the death of the insured to demand payment of the proceeds of the policy refutes the contention of Liberty National that the clause here under consideration has the same effect as the true facility of payment clauses contained in some of the policies involved in the Virginia and Kentucky cases to which we have alluded.
There is yet another reason why we cannot agree with the assertion of Liberty National to the effect that its policy required no insurable interest. Regardless of *716 the type of insurance or what it may be called, Liberty National purported to issue a contract of insurance and § 2, Title 28, Code 1940, provides: "A contract of insurance is an agreement, express or implied, by which one party, for a consideration, promises to pay money, or its equivalent, or to do some act of value to the assured, upon the destruction or injury of something in which the other party has an insurable interest." We find no legislative enactment or judicial decision limiting the language of the provisions just quoted. Section 273, Title 28, Code 1940, in our opinion does not have that effect.
In view of the foregoing, we hold that there is no merit in Liberty National's Assignment of Error No. 66 P.
Southern Life's Assignment of Error No. 66 K challenges the action of the trial court in refusing to give its requested written charge S19, which reads: "The court charges the jury that, if you believe the evidence in this case, you cannot find a verdict in favor of the plaintiff and against the Southern Life & Health Insurance Company under Count 1 of the complaint as amended."
Southern Life did not issue its policy until after it had received a medical certificate signed by a licensed physician of this state. This certificate was to the effect that the doctor whose name was signed thereto had examined Shirley and had found her and her parents to be in good health; that the living conditions and moral character of the parents or guardian were not such as would effect the risk; that the examination was conducted in the child's home; and, that he "advised the risk without qualification." This certificate is completely false. The doctor had not examined the child nor had he ever visted in her home. He was unfamiliar with her surroundings. However, he apparently had confidence in Mrs. Dennison and at her request signed a blank medical certificate which Mrs. Dennison apparently completed later and which she then sent to Southern Life.
But the fraud of Mrs. Dennison and the negligence or fraud of the doctor is in our opinion utterly immaterial as a defense to the charge that Southern Life wrongfully issued the policy in that it failed to discharge the duty upon it to take reasonable steps to determine that Mrs. Dennison had an insurable interest in the insured. There is nothing in the certificate which even remotely bears on the question of insurable interest and neither the child nor her parants had anything to do with the execution of that false certificate.
We hold that there is no merit in the argument made by Southern Life in support of its Assignment of Error No. 66 K.
National Life's Assignment of Error No. 66 A questions the action of the trial court in refusing to give its written requested charge 1 N, which reads: "The Court charges you that if you believe the evidence in this case you cannot find for the plaintiff and against the defendant the National Life and Accident Insurance Company."
The argument made by National Life in support of its contention that the trial court erred in refusing to give the above-quoted affirmative instruction is to the effect that there is an entire absence of evidence going to show that the National Life policy could have been an inducement for Mrs. Dennison to murder Shirley inasmuch as she had no knowledge of the fact that the policy had been issued.
The application for the National Life policy signed by Mrs. Dennison bears date of April 7, 1952, but the evidence shows that she actually signed it several days prior thereto. It was on that day that Mrs. Dennison paid the first month's premium which had to accompany the application, so apparently it was that date which *717 the agent of National Life inserted in the application. At the time Mrs. Dennison paid the first month's premium, which is also referred to as a "deposit," she was given a receipt signed by National Life's duly authorized agent which in pertinent part reads:
"* * * Such deposit will be returned (a) if application is declined or (b) if a policy is issued other than as applied for and Applicant declines to accept it. 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 such 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 insurance and at the rate of Premiums as so applied for, then, without affecting the Insurance Date and anniversaries thereof as set forth in the policy, 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.
"* * * If the application for the policy applied for is declined or postponed by the Company, the amount deposited must be returned to Applicant who will receipt for it below."
The application was accepted by National Life on or about April 23, 1952. The policy issued thereon bears date of April 25, 1952. The policy was mailed to National Life's agent in Wetumpka, Alabama, on or about April 29, 1952. The agent had not delivered the policy to Mrs. Dennison at the time of Shirley's death. He had the policy in his pocket at that time. According to the agent's testimony, he had not notified Mrs. Dennison of the fact that her application had been accepted or that the policy had been issued and mailed to him. His testimony was to the effect that he had not had any conversations whatsoever with Mrs. Dennison subsequent to the date on which she paid the "deposit," April 7, 1952.
Aside from the lack of insurable interest, it seems clear that under the evidence set out above the National Life policy was "in force" at the time of Shirley's death, inasmuch as Mrs. Dennison had accompanied her application with a "deposit" which was "equal to the full first premium on the policy applied for" and the application had been approved by the home office of that company several days prior to the child's death. Under the terms of the "receipt" those circumstances were sufficient to cause the policy to be "in force" at the time of Shirley's death, assuming the beneficiary had an insurable interest. In other words, it would appear that if the question of insurable interest was not involved, National Life could not have successfully defended against a claim under the policy, if Shirley had died a natural death on May 1, 1952, on the ground that National's agent had neither delivered the policy to Mrs. Dennison nor notified her that it had been issued prior to the child's death.
Under the averments of this complaint, plaintiff was not entitled to recover against National Life simply on proof that the policy had been "in force" if Mrs. Dennison had had an insurable interest in Shirley's life. National Life was entitled to an affirmative instruction in its favor unless the evidence is sufficient to support a reasonable inference that Mrs. Dennison knew that the policy had been issued, inasmuch as the complaint charges that the issuance of the National Life policy acted as an inducement to Mrs. Dennison to murder Shirley.
There is no direct evidence going to show that Mrs. Dennison had knowledge of the fact that the National Life policy had been issued at the time she killed the child. But the rule is well established that in reviewing the action of the trial court in refusing the affirmative instruction requested by defendant, we review the tendencies *718 of the evidence in the light most favorable to plaintiff and we must allow such reasonable inferences as the jury was free to draw, not inferences which we may think the more probable. Carraway Methodist Hospital v. Pitts, 256 Ala. 665, 57 So. 2d 96; Tyler v. Drennen, 255 Ala. 377, 51 So. 2d 516; Smith v. Lawson, 264 Ala. 389, 88 So. 2d 322. If from the proven facts and circumstances a reasonable inference may be drawn to substantiate the claimed culpability of National Life, then its affirmative instruction was properly refused. Birmingham Electric Co. v. McQueen, 253 Ala. 395, 44 So. 2d 598; Sullivan v. Alabama Power Co., 246 Ala. 262, 20 So. 2d 224; Aircraft Sales & Service Co. v. Gantt, 255 Ala. 508, 52 So. 2d 388.
We think the fact that Mrs. Dennison did not act until after the National Life policy reached Wetumpka is sufficient to support a finding by the jury, under all of the circumstances of this case, that Mrs. Dennison had learned in some way that the policy had in fact been issued. The evidence tends to show that Mrs. Dennison's plot to end the life of Shirley as a means of securing money began as early as December 1, 1951, when Liberty National's policy was issued and delivered to her. The evidence further tends to show that the policy of Southern Life had been delivered to Mrs. Dennison prior to the time she made application to National Life, so at that time she had insurance on the child's life in the amount of $5,500. However, she did not act until after the National Life policy had been received by that company's representative in the city where she worked and where her application had been taken. As stated above, we think these circumstances sufficient to present a question for jury decision as to whether the issuance of the National Life policy acted to induce Mrs. Dennison to murder plaintiff's minor daughter.
We hold that National Life's Assignment of Error No. 66A does not present cause for reversal.
Knowledge may be established by circumstantial evidence even in the face of professions of ignorance. Kuchlik v. Feuer, 239 App.Div. 338, 267 N.Y.S. 256, affirmed 264 N.Y. 542, 191 N.E. 555; Woloszynowski v. New York Central R., 254 N.Y. 206, 172 N.E. 471.
The judgment of the circuit court is affirmed.
Affirmed.
LIVINGSTON, C. J., and SIMPSON, GOODWYN and MERRILL, JJ., concur.
COLEMAN, J., dissents as indicated.
COLEMAN, Justice (dissenting).
I agree with the opinion of the majority except the holding that National Life was not entitled to the affirmative charge.
The opinion states that "National Life was entitled to an affirmative instruction in its favor unless the evidence is sufficient to support a reasonable inference that Mrs. Dennison knew that the policy had been issued * * *" and "There is no direct evidence going to show that Mrs. Dennison had knowledge of the fact that the National Life policy had been issued at the time she killed the child."
A conclusion that Mrs. Dennison had such knowledge must, therefore, rest on a reasonable inference from the matters as to which there was evidence. The majority appear to reason that since she could have had knowledge, the jury is permitted to conclude that she did have knowledge.
As it appears to me, such knowledge on the part of Mrs. Dennison, under all the circumstances of the case, does not follow as a reasonable conclusion from the fact that she did not act until after the policy reached Wetumpka. Such a conclusion, as I see it, rests on speculation or conjecture rather than reasonable inference.
Therefore, in the particular noted, I respectfully dissent. | November 14, 1957 |
77c53439-aaae-406f-9307-c1db97c4a750 | Chemstrand Corp. v. Maryland Casualty Company | 98 So. 2d 1 | N/A | Alabama | Alabama Supreme Court | 98 So. 2d 1 (1957)
The CHEMSTRAND CORP., and J. B. Steen, Jr.
v.
The MARYLAND CASUALTY COMPANY.
8 Div. 815.
Supreme Court of Alabama.
May 9, 1957.
Rehearing Denied November 21, 1957.
*2 Peach, Caddell & Shanks, Decatur, for appellants.
Eyster & Eyster, Decatur, for appellee.
LIVINGSTON, Chief Justice.
Pursuant to an agreement with its employees whereby it undertook to pay the cost of their movement, including the cost of moving household goods and the insurance premium thereon, the Chemstrand Corporation, appellant, acting through its assistant treasurer, A. W. Lucas, procured a blanket transportation policy from the Maryland Casualty Company, appellee. This policy went into effect September 1, 1953.
In October 1953, J. B. Steen, Jr., appellant, and William C. Blackwood, employees of Chemstrand, arranged to have their household goods moved by Burnham's Van Service, from Martinsville, Virginia, to *3 Pensacola, Florida. Burnham's Van Service was a public carrier of household goods, operating under ICC Certificate No. 682. Blackwood's goods were loaded first in a 28-foot van, and then Steen's. There was insufficient space inside the trailer for all of Steen's goods, so the rear doors of the trailer were closed, and the remainder of the load consisting of mattresses and box springs and nine compressed cardboard barrels filled with Steen's household goods, and two empty barrels and some empty cartons belonging to Burnham were placed on the tail gate of the van, covered with a tarpaulin and secured to the van with ropes. While en route, at a point some twelve miles north of Monticello, Georgia, on Georgia State Highway No. 11, the iron ring on the right-hand side of the tail gate of the van broke, and the load which was being transported on the tail gate tilted from the van. The driver, one J. K. Fountain, did not notice the loss until he was some two miles west of Monticello. When he returned to the scene of the accident, he found some wrapping paper and the two empty barrels, but the goods, except for a single glass, had been taken from the point where they had fallen from the van. Fountain was able to recover a portion of the goods.
Burnham's Van Service was a self insurer of its losses of thirty cents per pound of released value on each shipment. When notified of the loss, Otis Burnham, a partner in Burnham's Van Service, and its Assistant General Manager settled with Steen for $360, of which $309 was for the loss of goods.
The appellee denied that the loss resulted from an insured risk. This cause was commenced in the Circuit Court of Morgan County, Alabama, to recover the actual cash value of the lost goods less the amount recovered from Burnham. Counts 1 and 2 of the complaint predicate liability upon the policy of insurance being an "all risk" policy. Count 3 predicates liability upon the loss being the result of an "overturning of vehicle," and Count 5 upon the loss being the result of "theft of the entire shipping package."
The trial court, at the request of the defendant, gave to the jury the following written charge:
The appellants assign as error the trial court's giving of the foregoing charge, and the refusal of a like charge to the appellant. Appellants also assign as error the sustaining of appellee's objections to questions propounded by the appellants on cross-examination of the witness, M. R. Rankin.
There was no error in the trial court's refusal to give the affirmative charge for the appellants.
The purpose of this policy of insurance which the appellant obtained from the appellee was to insure against damage, while in transit, the household goods and personal effects of Chemstrand's employees. The "overturning of vehicle" was one of the risks insured against, and as stated above, was made the basis of Count 3 of the complaint. For there to be an "overturning of vehicle," the vehicle must lose its equilibrium. Jack v. Standard Marine Ins. Co., 33 Wash. 2d 265, 205 P.2d 351, 8 A.L.R.2d 1426, Annotation, 8 A.L.R.2d 1433, 1436. It is immaterial whether there was a partial or a complete overturn of the vehicle. So long as the articles being transported were damaged as a result of the vehicle losing its equilibrium, this was damage caused by an insured risk. Carl Ingalls, Inc., v. Hartford Fire Ins. Co., 137 Cal. App. 741, 31 P.2d 414; Moore v. Western Assurance Co., 186 S.C. 260, 195 S.E. 558. There may be an overturn to the front or to the rear, as well as to either side. Mercury Ins. Co. v. Varner, Tex.Civ.App., 231 S.W.2d 519. A tail gate is not in and of itself a vehicle, but a part of a vehicle. In the present cause, there was no evidence showing that the vehicle (the van) lost its *4 equilibrium, and this accident was not covered by this clause of the policy. In Orlando v. Manhattan Fire & Marine Ins. Co., 266 App.Div. 319, 320, 321, 42 N.Y.S.2d 228, 229 (appeal granted and reargument denied 266 App.Div. 955, 44 N.Y.S.2d 676, affirmed 293 N.Y. 907, 60 N.E.2d 34), it was stated:
"It is our view that there was no overturning of the conveyance (the trailer) merely because the flap or added width to the platform broke off on one side, even assuming that the flap was part of the platform and the material of which this flap was constructed did overturn as it fell to the ground. The equilibrium of the conveyance (the trailer) was not disturbed in any way so that it could not be said to have overturned, the accident being due solely to the collapse or breakdown of the flap on the edge of the trailer."
The trial court erred in giving Charge 1, set out above, for the defendant.
One coverage of the suit policy was:
Count 5 of the complaint is founded on this provision of the policy of insurance.
It has been broadly stated that "theft" as used in an insurance policy is synonymous with "larceny." Illinois Automobile Ins. Exchange v. Southern Motor Sales Co., 207 Ala. 265, 92 So. 429, 24 A.L.R. 734. Larceny may be committed on a public highway. Griggs v. State, 58 Ala. 425. For an act to constitute "theft" or "larceny," the taking must be made with the felonious intent on the part of the taker to deprive the owner of the property. Home Ins. Co. of New York v. Trammell, 230 Ala. 278, 160 So. 897; Bankers Fire & Marine Ins. Co. v. Terry, 35 Ala.App. 233, 45 So. 2d 324. In determining whether the acquisition of found goods constitutes larceny, it is important to ascertain whether the finder knew, or had means of knowing, or endeavored to discover the owner; whether he concealed or made known his acquisition; and how he conducted himself with the goods in general. Griggs v. State, supra. Whether or not the requisite intent existed is a question of fact for the jury, and the burden is on the insured to establish the existence of the taker's criminal intent, not beyond a reasonable doubt, but only by a preponderance of the evidence. Home Ins. Co. v. Trammell, 27 Ala.App. 476, 174 So. 536; Gibson v. St. Paul F. & M. Ins. Co., 117 W.Va. 156, 184 S.E. 562, Annotation, 48 A.L.R.2d 8, 50, 51.
There was sufficient evidence to go to the jury on the question of whether there had been a theft of the goods in question. The evidence shows that the load that fell from the tail gate of the van consisted of nine barrels filled with household goods, mattress, box springs, two empty barrels, brooms, dollies and packing material. That after discovering the loss and while retracing his route, said J. K. Fountain first stopped *5 and talked to the driver of a flatbed truck; that after this, he stopped an Oldsmobile by blocking the road with his van, and found a portion of the load in this automobile; that he was later able to recover this part of the load by going to the home of the driver; that upon reaching the scene of the accident approximately an hour after the load had tilted from the tail gate, he found paper similar to the kind used in wrapping the articles that were packed in the barrels and the two empty barrels; that the only other articles that he found were one glass at the scene of the accident which broke when the van he was driving ran over it, and a dish which a lady had who lived across the highway from the scene of the accident; that he reported the loss to the Georgia Highway Patrol and to the police and sheriffs at surrounding towns; that he remained in the vicinity for two days and contacted some fifty people in an attempt to recover the goods; that the van had signs thereon displaying its ownership and the nature of its business; that said Fountain notified his employer at Columbus, Georgia, who within a week or ten days' time notified the Federal Bureau of Investigation and the Georgia Bureau of Investigation; that the remainder of the goods were never recovered.
Pilferage, as used in insurance policies such as the one in question in this cause, is the abstraction of a part of the contents of a shipping package. Goldman v. Insurance Co. of North America, 194 App.Div. 266, 185 N.Y.S. 210; Tamarin v. Ins. Co. of North America, 68 Pa.Super. 614. The undisputed evidence shows that this exception from liability ("but does not include pilferage") does not apply in this cause, since the entire shipping packages, not just a part of the contents thereof, were taken.
The removal of the goods from the highway was the proximate cause of their loss. Recovery is allowed where an insured risk is the last step in the chain of causation set in motion by an uninsured peril. St. Paul Fire & Marine Ins. Co. v. American Compounding Co., 211 Ala. 593, 100 So. 904, 35 A.L.R. 1018; Howard Fire Ins. Co. v. Norwich & New York Transportation Co., 12 Wall. 194, 20 L. Ed. 378; 5 Appleman, Insurance Law and Practice, § 3083, p. 220; 29 Am.Jur. 689. Therefore, it is immaterial whether or not the breaking of the ring holding the tail gate was an insured risk. Though it placed the goods in a position of peril, the loss of the goods was occasioned by their removal from the place of the accident; and whether or not this removal was "theft" is a question of fact for the jury. The trial court was in error in not submitting Count 5 to the jury.
A provision in the policy provides:
It is evident from the policy as a whole that this provision was not inserted in the policy to except from liability an incident such as occurred in this cause, but rather to designate the methods by which the insured goods could be transported. This is strengthened by the insertion of the last clause under this provision in this policy:
The appellants further argue that there was sufficient evidence for this cause to go to the jury under Counts 1 and 2. These two counts are almost identical, and allege that the policy is an all-risk policy, and depend for their success on there being an ambiguity in the policy. The policy of insurance in this cause consists of three component parts: (1) Transportation Policy, Form 40005, (2) Transportation Form *6 40010, and (3) Inland Marine Endorsement, IM 2020. Form 40005 is not pertinent in this cause. Transportation Form 40010 provides, in part, as follows:
The Inland Marine Endorsement, IM 2020, which is typewritten, provides:
The appellants contend that there is an irreconcilable conflict between the above provisions which create an ambiguity open to explanation by parol testimony. We cannot agree that these provisions make the policy ambiguous. Provisions in policies of insurance which clearly disclose the parties' real intent are not to be given a strained construction to raise doubts where none reasonably exist. McDowell v. United States Fidelity & Guaranty Co., 260 Ala. 412, 71 So. 2d 64; Aetna Casualty & Surety Co. v. Chapman, 240 Ala. 599, 200 So. 425. And if the contract of insurance in its terms is plain, certain, and free from ambiguity, there is no room for construction, and it is the duty of the court to enforce it as written. Loveman, Joseph & Loeb v. New Amsterdam Casualty Co., 233 Ala. 518, 173 So. 7. Therefore, it is not necessary to consider the remaining assignments of error relating to the sustaining of appellee's objections to questions propounded by the appellants on cross-examination of the witness, M. R. Rankin. The testimony sought to be elicited from this witness concerned the parties' intention in regard to the risks covered by this policy.
The judgment of the lower court is reversed and the cause remanded.
Reversed and remanded.
LAWSON, STAKELY and MERRILL, JJ., concur. | May 9, 1957 |
7a5363fe-e62b-45e1-829b-363bcde6873e | Beddow v. State | 96 So. 2d 178 | N/A | Alabama | Alabama Supreme Court | 96 So. 2d 178 (1957)
Paul M. BEDDOW
v.
STATE.
6 Div. 136.
Supreme Court of Alabama.
April 25, 1957.
Rehearing Denied June 27, 1957.
J. Edmund Odum, Birmingham, for petitioner.
John Patterson, Atty. Gen., and Edmon L. Rinehart, Asst. Atty. Gen., opposed.
SIMPSON, Justice.
Petition of Paul M. Beddow for certiorari to the Court of Appeals to review and revise the judgment and decision of that Court in Beddow v. State, 96 So. 2d 175.
Writ denied.
LIVINGSTON, C. J., and GOODWYN and COLEMAN, JJ., concur. | April 25, 1957 |
bc487675-dff3-424a-911d-1acd3590ffa6 | Ballenger v. Liberty National Life Insurance Co. | 96 So. 2d 728 | N/A | Alabama | Alabama Supreme Court | 96 So. 2d 728 (1957)
G. E. BALLENGER
v.
LIBERTY NATIONAL LIFE INSURANCE COMPANY.
6 Div. 73.
Supreme Court of Alabama.
June 20, 1957.
Rehearing Denied August 22, 1957.
*729 Francis Hare and Sirote, Permutt, Friend & Friedman, Birmingham, for appellant.
Frank E. Spain, Ira L. Burleson, Ralph B. Tate and Spain, Gillon & Young, Birmingham, for appellee.
SIMPSON, Justice.
G. E. Ballenger, on February 4, 1955, sued Liberty National Life Insurance Company for the conversion by it of certain shares of stock allegedly owned by the plaintiff, claiming $250,000 as damages. The complaint alleged that plaintiff was one of the *730 incorporators of J. N. Brown Burial Benefit Association, Inc. (incorporated in 1925 or 1926) owning one share of stock, which company through successive name changes and transfers, became Brown Service Insurance Company, Inc., which latter named company merged with Liberty National Life Insurance Company in 1944. The complaint alleged that in 1954 plaintiff made a demand upon the defendant as the consolidated corporation for the issuance to him of a certificate evidencing his ownership of the share of stock in the defendant organization resulting from increased value of the corporation, stock splits, and the merger of the said corporations. The complaint also alleged that in January, 1955, plaintiff made a demand upon the defendant for the payment to him of any dividends which had accumulated to his credit, and that the defendant refused to comply with these demands. Hence this suit.
This, of course, is an action at law on a purely legal claim and the defendant as its initial pleading interposed demurrers to the complaint.
Thereafter, the defendant filed a motion to transfer the cause to the equity side of the docket pursuant to the provisions of § 153, Title 13, Code of 1940, alleging that it had equitable defenses to the action which could not be disposed of on the law side of the court and which would dispose of the case if transferred to equity. The court granted the motion. The defendant then filed its bill in equity alleging certain defenses to the action including the defense of laches. The plaintiff (respondent in equity) demurred to the bill of complaint alleging, among other things, that it contained no equity, that there was an adequate defense at law, and that no equitable defenses were properly interposed. The trial court overruled this demurrer and the plaintiff brings this appeal.
The bill in equity claimed that it had several defenses which could not be interposed at law which would dispose of the case. The pleadings indicate that the several defenses to be interposed by the defendant are the general issue, the statute of limitations of 1, 3, 6 and 10 years, prescription, negligence in failing to assert his claim and demand a certificate until the rights of third parties intervened, equitable estoppel and laches.
It is the contention of the plaintiff-appellant (respondent in equity) that all of these defenses except laches could have been properly pleaded in the action at law, and that laches is no proper defense to such a claim, viz.: That the bill of complaint was not sufficient to give the equity court jurisdiction to consider the defense of laches. We agree with the contention of the appellant.
It needs but little comment or citation of authority to demonstrate that all of the defenses (not now considering laches) could have been interposed to the action at law. The plea of the general issue to an action of trover puts in issue every matter, except release, which might show the plaintiff never had a cause of action or that he ought not to recover. Kelley v. Cassels, 226 Ala. 410, 147 So. 597; First National Bank of Gadsden v. Burnett, 213 Ala. 89, 104 So. 17; Bryant v. De Kalb Warehouse Company, 260 Ala. 443, 71 So. 2d 51.
Prescription may be properly pleaded to an action at law as well as in equity. Oxford v. Estes, 229 Ala. 606(6), 158 So. 534.
And the defendant may also take full advantage of the statutes of limitation in law as well as in equity. § 31, Title 7, Code of 1940; § 18, Title 7, Code of 1940.
Equitable estoppel may also be pleaded at law to this purely legal claim. As was observed in State ex rel. Martin v. City of Gadsden, 216 Ala. 243, 247, 113 So. 6, 9:
See also Watt v. Lee, 238 Ala. 451, 191 So. 628; Kelley v. Cassels, supra; Bigelow on Estoppel, 5th Ed. 557; 15 Words and Phrases, Equitable Estoppel p. 59, Estoppel in Pais, p. 738.
Appellee cites Garrett v. Moody, 234 Ala. 113, 173 So. 504, to sustain his contention that estoppel in pais can only be pleaded in equity. There the court was merely considering the principle of estoppel and the rescission of a transaction by which mortgages were surrendered because of failure of consideration, matters of which equity of course can take cognizance (syl. 2). The propriety vel non of the order of transfer from law to equity was not considered on that appeal. (syl. 1, p. 114 and 505 respectively).
Clearly, therefore, the bill was without equity unless the defendant at law is permitted to have the cause transferred to equity under the statute in order that it may plead laches. On a careful study of the governing authorities, we have concluded that the bill was without equity on this ground also.
Laches is an equitable principle and is a defense only to suits in equity. City of Anniston v. Dempsey, 253 Ala. 597, 45 So. 2d 773; Hamilton v. Watson, 215 Ala. 550, 112 So. 115; Courson v. Tollison, 226 Ala. 530, 147 So. 635; Oxford v. Estes, 229 Ala. 606, 158 So. 534; Meeks v. Meeks, 245 Ala. 559, 18 So. 2d 260; or to those proceedings at law which are controlled by equitable principles such as mandamus. City of Anniston v. Dempsey, supra. It is a creature of equity and is not controlled by statute. Moss v. Davitt, 255 Ala. 513, 52 So. 2d 515.
There is competent authority elsewhere based on unassailable rationale holding that where the issue involved is a legal one and does not lie within the breast or conscience of the chancellor the statute of limitation is the applicable rule and the defense of laches may not properly be interposed. Gover's Adm'r v. Dunagan, 299 Ky. 38, 184 S.W.2d 225; Crawford's Adm'r v. Ross, 299 Ky. 664, 186 S.W.2d 797. In the Gover's Adm'r v. Dunagan Case, the administratix sued to recover under a claim evidenced by a written promissory note. The basis of the suit was a new promise to pay the note made fifteen years after the notes had become due. The answer plead payment and a fifteen year statute of limitation and by amendment the answer further plead laches. The suit was originally begun in equity and a demurrer was sustained to the plea of laches and the case transferred to law to determine the validity of the debt. The appellant assigned as error, among other things, the sustaining of the demurrer to the plea of laches. The appellee contended that since laches was of strictly equitable cognizance the demurrer was properly sustained. The court held that where the issue involved is a legal one and does not lie peculiarly within the cognizance of equity, statutes of limitation rather than laches apply. We quote from that case [299 Ky. 38, 184 S.W.2d 226]:
In the later case of Crawford's Adm'r v. Ross, supra, the Kentucky Court in reaffirming the holding in Gover's case, extended the rule to govern the defense of laches pleaded in equity. There the action was on an oral contract entered into in the year 1925. Suit was instituted in 1939, and was pending until 1942, when it was revived against the administrator of the original defendant. The action was initiated at law but was subsequently transferred to equity. Laches was pleaded as a defense to the action. The court, adopting the holding in Gover's case, further held that while laches may be pleaded in respect to issues of which courts of equity have exclusive jurisdiction, where the issues involved are strictly legal or where courts of law and courts of equity have concurrent jurisdiction, as where "a legal right gets into equity," laches of a party constitute no defense and the plea in respect to lapse of time is controlled by the appropriate statute of limitation. In essence, the holding was that the case presented merely a legal right which got into equity and that laches was unavailable as a defense but the statute of limitations controlled. Thus the court rationalized [299 Ky. 664, 186 S.W.2d 800]:
The principle enunciated by the Kentucky Court impresses us as being thoroughly sound. Therefore, the issue now under consideration is, we think, ruled by the stated principle. A claim for conversion is a legal one cognizable at law, with the result that the defense of laches may not be applied, even though the claim "got into equity" under the removal statute. If the contrary view should be upheld, untoward illogical consequences would obtain. It would be purposeless to multiply the many ridiculous illustrations, but it is conceivable that under such a view most all actions at law could be moved into equity so the defendant could plead laches and thereby subvert the right of trial by jury and operation of the applicable statute of limitation.
While our court has not written to the exact point, the trend of our decisions would lead to the same conclusion attained by the Kentucky Court. As was stated in Taunton v. Trammell, 254 Ala. 252, 48 So. 2d 190, 192, quoting from Adams v. Birmingham Realty Co., 154 Ala. 457, 45 So. 891, 892:
By analogy, this latter case and other Alabama cases, which, while not directly holding that laches is no defense to a legal cause of action, have indicated that laches is only a bar to an effort to enforce a stale equitable demand. "* * * if the case, * * * is open to objection by reason of the laches of the complainant, the court will, upon that ground, be passive, and refuse relief." Sweeney v. Sweeney, 210 Ala. 593, 594, 98 So. 883, 884. "Laches is not like limitations, a mere matter of time, but principally a question of inequity of permitting a claim to be enforced, and, when this inequity exists, a court will refuse relief, * * *. Laches alone is sufficient to bar equitable relief, * * *." Gayle v. Pennington, 185 Ala. 53, 68, 64 So. 572, 577. "Laches, * * * does not, like limitation, grow out of the mere passage of time, but it is founded upon the inequity of permitting the claim to be enforced * * *." Hauser v. Foley & Co., 190 Ala. 437, 441, 67 So. 252, 253. (Emphasis supplied)
It must necessarily follow that since courts of equity have used this doctrine of equity to refuse to grant relief to parties guilty of laches, and further since courts of equity have refused to take jurisdiction of a legal demand because of laches, a party cannot ask equity to take jurisdiction of a controversy and then assert an inconsistent theory which would deprive the court of jurisdiction. Hamilton v. Watson, supra. This is what appellee seeks to do.
It is true, as stated in our cases, that trover in some respects is an equitable action. Shriner v. Meyer, 171 Ala. 112, 55 So. 156. But that does not mean that it is of equitable cognizance within the meaning of the term applied to the defense of laches. In actions of trover it is sometimes competent to investigate and determine the equity of the case. The equitable aspect of an action of trover usually arose out of the determination of damages, in early mortgage cases. It was and still is necessary for courts of law, in order to grant just relief, to consider the action in *734 the light of an accounting, to determine the actual amount of damages suffered by a party, rather than award him, as the action at law would indicate, the value of the property at the time of the conversion. Thus the oft used loose statement that trover is an equitable action. This equitable nature of trover was explained in the early case of McGowen v. Young, 2 Stew. & P. 160, beginning at page 170, as follows:
Therefore, for want of a better phrase, the courts have resorted to calling the ascertainment of damages, by showing mitigating circumstances, the equity of the action of trover. Williams v. Crum, 27 Ala. 468.
So, to recapitulateNot only do principles of law operate to prevent the transferring of a cause to equity to plead the defense of laches when there is an appropriate statute of limitation applicable, but the rule of reason as well. If it were held by this court that a party, under the removal statute, supra, could cause a case to be transferred to equity on the basis of the doctrine of laches, then courts of law would have little, if any, authority to settle those controversies which are inherently theirs. If this rule were adopted, a party, disregarding any legal defense specified by the laws of this state, pleading that he had no adequate defense at law, but that if he were allowed to go into equity under the transfer statute he could obtain relief by putting forth a good defense of laches, could carry any case into equity and there litigate the matter in disregard of the statute of limitation and without the right of the opponent to a jury trial. This would be a practical divestiture of courts of law of all controversies of a legal nature and vest in courts of equity jurisdiction to try those cases which should be tried at law.
*735 Since the bill of complaint of the appellee contains no equity, the trial court was in error in overruling the demurrer of the appellant. 2 Ala.Dig., Equity. Therefore, the decree of the lower court is reversed and the cause remanded with direction to retransfer the cause to the law side of the docket.
Reversed and Remanded with directions.
All the Justices concur.
In view of the seeming earnestness of able counsel for appellee and the novelty of the question treated, we will respond to the application for rehearing.
The essence of our holding is: "A claim for conversion is a legal one cognizable at law, with the result that the defense of laches may not be applied". Several out of state cases are cited in the rehearing brief which are thought to be contrary to this conclusion. A brief analysis of these cases will disclose that they are in no way controlling upon the question considered under the Alabama transfer statute.
The case of Pottsville Bank v. Minersville Water Co., 211 Pa. 566, 61 A. 119, 123, is not in point because Pennsylvania had no system of equitable jurisprudence. The court there observed: "* * * In our State, the doctrine is firmly established that equity is administered through common-law forums * * *".
The Gold Mining case, Valley View Consol. Gold Mining Co. v. Whitehead, 66 Colo. 237, 180 P. 737, 739 next cited by appellee, was instituted in a court of equity in which the plaintiff sought to have an equitable title converted into a legal title, and the court stated: "Having thus treated the cause as one of equitable cognizance, the plaintiff cannot now change her ground and deny the right of Defendant to the benefit of an equitable defense."
The Federal cases cited in the rehearing brief are likewise inapplicable. Indeed, the decision by the United States Supreme Court in Wehrman v. Conklin, 155 U.S. 314, 15 S. Ct. 129, 133, 39 L. Ed. 167, seems to support the theory advanced in our original opinion. There the action was in a court of equity to quiet title to real estate and enjoin an action at law in ejectment. As we read the opinion it definitely does not hold that the court allowed laches to be a defense to an action of ejectment. The court stated:
Wall v. Harris, 90 Miss. 671, 44 So. 36, is next cited by appellee to support his contention that laches is an available defense to an action of ejectment. There the mortgagee of lands became the purchaser at an irregular foreclosure sale, crediting the amount of his bid on the note evidencing the indebtedness and continued in the peaceful possession for eight years. After the statute of limitation barred the note, the mortgagor instituted an action of ejectment to invalidate the sale. Thereupon the mortgagee instituted an action in a court of equity conceding the sale to have been irregular, but claiming that he, as a mortgagee in possession, was entitled to hold the land until the indebtedness was paid. The court very properly enjoined the further prosecution of the ejectment suit, ordered an accounting between the parties, and directed payment of any balance that may be due on the note and decreed that upon failure so to do, the land should be sold for the payment of the mortgage debt. The Supreme Court of Mississippi held:
We cannot construe this case as supporting the appellee's claim that the defense of laches may be interposed to an action of ejectment.
Baker v. Langley, 247 Mass. 127, 141 N.E. 671, 672, was an action to recover bank deposits of a deceased seaman in settlement of an account for board and lodging. The plaintiff also sought delivery of the bank book and the court stated: "Having acquired jurisdiction for one purpose (the court) will retain it for any purpose within the scope of the bill". The court also pointed out:
"The estate of the intestate should not be put to the same expense, nor its settlement delayed, nor the ends of justice defeated by the further prosecution of the case at law in which no substantial living cause of action exists." (Italics ours).
Appellee also cites Ford v. Huff, 5 Cir., 296 F. 652, holding that laches is a defense to an action at law for damages for patent infringement. However, this and other Federal cases were decided under the now obsolete provisions of Section 274b of the Federal Judicial Code, under which the distinction between legal and equitable actions, was substantially abolished, and under which an action at law was subject to the defense of laches, as if the action had been instituted in a court of equity. Procedure under that old section required the trial of equitable issues as in a court of equity, but preserved the right of trial by jury on the legal issues, all in the same action. Banker v. Ford Motor Co., D.C., 3 F. Supp. 737. These Federal cases and others not necessary to discuss, as well as cases from other State Supreme Courts, present no analogy to our removal statute, which in no way abolishes the distinction between the legal and equitable causes of action.
We are firm in our opinion that the conclusion reached on original deliverance is sound.
Application for rehearing overruled.
All the Justices concur except STAKELY, J., not sitting. | June 20, 1957 |
b31addae-0e2a-4b0c-9b5c-a3344c743e98 | Street v. State | 96 So. 2d 686 | N/A | Alabama | Alabama Supreme Court | 96 So. 2d 686 (1957)
George Perry STREET
v.
STATE of Alabama.
8 Div. 898.
Supreme Court of Alabama.
June 27, 1957.
Howell T. Heflin, Tuscumbia, for petitioner.
John Patterson, Atty. Gen., and Robt. P. Bradley, Asst. Atty. Gen., opposed.
GOODWYN, Justice.
We granted certiorari to review the decision of the Court of Appeals in Street v. State, 96 So. 2d 680. The writ was granted to review that portion of the Court of Appeals' opinion holding that the remarks of the solicitor in his argument to the jury were not comments upon defendant's failure to testify, in violation of § 305, Tit. 15, Code 1940, as amended by Act No. 124, appvd. June 23, 1949, Acts 1949, p. 150. We quote the following from the opinion of the Court of Appeals, viz.:
It is apparent that the solicitor, in making the statements, was referring to a written statement or confession signed by appellant which had been introduced in evidence.
The position taken by petitioner is that the State's evidence with respect to the statement or confession could have been denied only by the defendant; that the remarks of the solicitor could have only referred to the defendant; and that, therefore, the remarks were clearly a reference to the failure of the defendant to testify.
*687 In Broadway v. State, 257 Ala. 414, 60 So. 2d 701, 702, the solicitor made the following statement:
In commenting on the propriety of this remark, this court said:
It is difficult to see how the solicitor's remarks could reasonably be interpreted other than as referring to the failure of defendant himself to take the stand and deny the confession. It is certainly not the usual thing for witnesses to a written confession to be produced by the defendant to disprove its execution. In the instant case the confession was witnessed by the sheriff and two police officers. These and the defendant are the only persons who might reasonably be expected to be called as witnesses to prove or disprove its execution. The sheriff did not testify but the two police officers testified to the execution of the confession. To say that the remarks were intended to reflect only on the failure of defendant to produce the sheriff as a witness to deny the execution is beyond our reach. In this case the only person who could be expected to deny the confession was the defendant. Being so, his failure to deny clearly means his failure to testify. It seems to us that this interpretation of the remarks is one naturally flowing from them under the circumstances. And we do not think we would be justified in assuming that the jury did not give to the remarks the same interpretation.
We are constrained to hold, in the light of the circumstances, that the remarks of the solicitor were violative of § 305, Tit. 15, as amended, supra, and that the judgment of the Court of Appeals is due to be reversed and the cause remanded to that court.
Judgment of Court of Appeals reversed and the cause remanded to that court.
All the Justices concur except STAKELY, J., not sitting. | June 27, 1957 |
b56e8a70-8836-4a62-b574-e0cc0138ac04 | Great Atlantic and Pacific Tea Co. v. Weems | 96 So. 2d 741 | N/A | Alabama | Alabama Supreme Court | 96 So. 2d 741 (1957)
The GREAT ATLANTIC and PACIFIC TEA COMPANY
v.
Gertrude WEEMS.
The GREAT ATLANTIC and PACIFIC TEA COMPANY
v.
Marvin WEEMS.
6 Div. 903, 903-A.
Supreme Court of Alabama.
June 27, 1957.
Rehearing Denied August 22, 1957.
*742 Drennen, Loeb & Drennen, Birmingham, for appellant.
Taylor, Higgins, Windham & Perdue, Birmingham, for appellees.
GOODWYN, Justice.
Gertrude Weems, plaintiff below and appellee in 6 Div. 903, brought suit in the circuit court of Jefferson County against The Great Atlantic and Pacific Tea Company, appellant, and Carl Burton, the store manager for said company, to recover damages for personal injuries allegedly suffered by said plaintiff when she slipped and fell to the floor of appellant's grocery store located in the city of Jasper, Walker County, Alabama. Appellant's negligence was alleged to be its failure "to maintain said store at the place where plaintiff slipped and fell in a reasonably safe condition for the use of customers in said store." It appears from the evidence offered by plaintiff that her injuries resulted from slipping on lettuce leaves which were on the floor of the store just outside of one of the checkingout aisles towards the front entrance to the store.
In 6 Div. 903-A, Marvin Weems, appellee, as the husband of Gertrude Weems, brought suit against the same defendants in the same court to recover damages for loss of services of his wife and expenditures made by him in connection with her said injuries; it being alleged that he "was put to great trouble, annoyance, inconvenience, loss of time and great expense in and about his efforts to heal and cure the said wounds and injuries of his said wife", with the further allegation that "all of the said injuries and damages to his said wife, with resultant damage to plaintiff were caused as a proximate result of the negligence of the defendants in this: Defendants negligently failed to maintain said store at the place where plaintiff's said wife slipped and fell in a reasonably safe condition for the use of customers in said store."
Both cases were tried together in the circuit court. Separate verdicts were rendered by the jury against The Great Atlantic and Pacific Tea Company in favor of Gertrude Weems for $1,500 and in favor of Marvin Weems for $500. Verdicts were rendered in favor of the defendant Carl Burton. These appeals are from the judgments rendered on the verdicts in favor of the Weems'. By agreement of the parties both cases were submitted here on one record.
*743 Although questions are raised with respect to rulings of the trial court on objections to evidence, argument of counsel, the refusal to give certain requested written charges, and the excessiveness of the verdicts, the principal question presented is whether the evidence sufficiently shows a failure of appellant to maintain its store in a reasonably safe condition for the use of its customers. It is appellant's insistence that there is no evidence to support a finding that the lettuce leaves on which Mrs. Weems claims to have slipped had been on the floor of the store a sufficient length of time to put appellant on notice of that condition and that without such evidence there can be no recovery. Although appellant's witnesses denied the existence of the condition of the floor as charged by Mrs. Weems there is ample testimony given by witnesses for appellees showing that at the time Mrs. Weems fell there was at least one "old, dirty, mashed lettuce leaf" on the floor. On the issue of the presence of the lettuce on the floor the evidence is in direct conflict. In this situation the question was one for the jury. And it is to be noted that the trial judge denied the motion for a new trial, thus refusing to disturb the verdict of the jury. It seems to us that what was said in Great Atlantic & Pacific Tea Company v. Popkins, 260 Ala. 97, 99, 69 So. 2d 274, 276, is of controlling influence here, to-wit:
We take note of the argument made on behalf of appellant that a different duty should be declared to be owed by the operator of a so-called "self-service store" from that owed by the operator of a store where the sales are handled by employees of the operator. We see no occasion to discuss that argument in this case for the reason that the evidence cleary establishes that the lettuce leaves on which Mrs. Weems claims to have slipped were not on the floor in that part of the store where customers would serve themselves. As already noted the evidence places the lettuce leaves between the checking counters and the front entrance to the store.
*744 Although the evidence does not show that Mrs. Weems suffered any permanent injury we find no basis for saying that the verdict in her favor was excessive. The assessment of damages in any case necessarily must be left, in the first instance, largely to the discretion of the jury and, on motion for new trial, to the discretion of the trial judge. In these cases the trial judge refused to disturb the verdicts. As said in Montgomery City Lines v. Davis, 261 Ala. 491, 494, 495, 74 So. 2d 923, 925:
We are unable to say that the amounts of the verdicts in these cases are "so excessive * * * as to indicate passion, prejudice, corruption or mistake" on the part of the jury.
Several of the assignments of error relate to rulings on questions (including refusal to give a requested written charge) dealing with the bringing of the suits in Jefferson County instead of Walker County, where the injuries were sustained. It is not questioned that the circuit court of Jefferson County had jurisdiction. Section 232, Constitution 1901, provides, in substance, that a foreign corporation may be sued in any county in which it was doing business by agent at the time the suit was filed. Code 1940, Tit. 7, § 60, is to the same effect. Since the suits were properly brought in Jefferson County we see no merit in these assignments of error.
A further insistence is that error was committed in refusing to give three requested written charges relating to the failure of Marvin Weems to testify. The three refused charges are as follows:
As to Charge 2, it is to be noted that it is without hypothesis on a belief of the evidence. We have held that neither the giving nor the refusal of such charge will, as a rule, work a reversal. Walls v. Decatur Fertilizer Co., 215 Ala. 426, 428, 111 So. 214; Birmingham Belt R. Co. v. Nelson, *745 216 Ala. 149, 151, 112 So. 422; Birmingham Baptist Hospital v. Branton, 218 Ala. 464, 468, 118 So. 741; Hammond Motor Co. v. Acker, 219 Ala. 291, 292, 122 So. 173; Shelby County v. Hatfield, 264 Ala. 488, 490, 88 So. 2d 842.
Charge 4, in effect, is an affirmative charge for the defendant. That is to say, any inference or presumption to be indulged against Weems would, by this charge, deny to the jury the right to consider any other evidence. There was no error in refusing this charge.
Charge 5 was properly refused. The nature of the presumption, whether conclusive or rebuttable, is not stated and for this reason alone the charge is uncertain and misleading.
We have not attempted to discuss the principles applicable when a party to a civil suit fails to testify. For a discussion of principles governing the right to comment on the failure or refusal of a party to testify, see Hinton & Sons v. Strahan, Ala., 96 So. 2d 426.
Among the 32 assignments of error are several relating to the trial court's refusal to give other requested written charges. We have examined and carefully considered each of these charges and do not find error in their refusal.
The judgment in each case (6 Div. 903 and 6 Div. 903-A) is due to be affirmed.
Affirmed.
All the Justices concur.
GOODWYN, Justice.
The opinion refers to the presence of lettuce "leaves," which appellant says is not correct; that the evidence conclusively shows there was only one lettuce leaf. Although some of the witnesses testified to the presence of a single leaf, there was evidence (testimony of Fred Lockhart) that there were lettuce "leaves" at the place where Mrs. Weems fell. But whether there was one leaf or more is not the controlling factor. We reaffirm our conclusion that the evidence presented a question for the jury. Great Atlantic & Pacific Tea Co. v. Popkins, 260 Ala. 97, 99, 69 So. 2d 274, supra.
It is further insisted that we should have decided whether the operator of a so-called "self-service store" owes to its customers a duty different from that owed by the operator of a store where sales are handled by the operator's employees. Although we still feel that there is no occasion to discuss this question for the reason stated on original deliverance, in deference to the insistence of counsel we make the observation that the basis of liability of a store owner to his customers (invitees) is his failure to exercise reasonable care to keep his premises in a reasonably safe condition. Ten Ball Novelty & Mfg. Co. v. Allen, 255 Ala. 418, 420, 51 So. 2d 690; F. W. Woolworth Co. v. Ney, 239 Ala. 233, 234-235, 194 So. 667. And we see no good reason why this rule should not apply when the store is one commonly referred to as a "self-service store" as well as one where there are employees who wait on the customers and assist them in making their purchases. Of course, whether "reasonable care" is exercised to keep the premises "in a reasonably safe condition" depends upon the particular facts and circumstances in each case.
Application for rehearing denied.
LIVINGSTON, C. J., and LAWSON, SIMPSON and COLEMAN, JJ., concur. | June 27, 1957 |
1f2f9a23-e1b4-4f5f-aebe-23263b46342b | Cole v. Louisville & Nashville Railroad Company | 100 So. 2d 684 | N/A | Alabama | Alabama Supreme Court | 100 So. 2d 684 (1957)
Catherine M. COLE
v.
LOUISVILLE & NASHVILLE RAILROAD COMPANY.
6 Div. 162.
Supreme Court of Alabama.
October 31, 1957.
Rehearing Denied March 6, 1958.
*686 M. B. Grace, Birimingham, for appellant.
Gibson & Gibson, Birmingham, for appellee.
SIMPSON, Justice.
Catherine M. Cole brought suit against the Louisville & Nashville Railroad Co. for alleged negligence in failing to give her notice of the arrival of the train at her destination in Mobile. From an adverse judgment she brings this appeal
The evidence for the plaintiff showed: She purchased a ticket from defendant railroad in Birmingham. Her destination was Mobile. When she boarded the train at Birmingham, she told the conductor that she had been ill and had not been to Mobile in twenty-one years. The conductor promised her that if she was asleep he would arouse her when she arrived in Mobile. Likewise a porter, who was with the conductor, promised to get the appellant off the train when it arrived in Mobile. At the time the train arrived in Mobile, the appellant was asleep and she was carried on to Pascagoula, Mississippi. At Pascagoula she was put off the train and given return passage to Mobile. After waiting for a while in Pascagoula the appellant took her luggage which was two heavy bags, and went to the bus depot and returned to Mobile. The appellant claims she was made sick because of the inconvenience and worry and that her heart was adversely affected.
The appellee presented evidence going to show that no agreement was made with the conductor or the porter; that all unusual events, such as claimed by the appellant, were recorded in the train log, and no reference to appellant was made therein; and that prior to the arrival of the train in Mobile, sufficient notice of arrival was given to all passengers.
The appellant argues for error in the refusal of the trial judge to give certain requested written charges; the error of the trial judge in admitting certain pleadings in evidence; certain rulings on evidence; and that the verdict was against the great preponderance of the evidence.
The rule of liability applicable to this case is stated in Central of Georgia Railway Co. v. Smith, 217 Ala. 501, 503 et seq., 117 So. 74, 76, 58 A.L.R. 1058, to wit:
"The carrier's duty, as a general rule, is fully discharged when it carries the passenger safely to the contract destination on time, and, after giving reasonable notice that it has reached such destination, stops at the fixed place for passengers to disembark and remains standing a sufficient length of time for them to safely alight. * * *
"The general consensus of judicial opinion seems to be that, if the carrier announces the arrival of the train at each station or fixed place provided for passengers to leave the train, in a distinct and audible manner in each car, so that it may be heard by all passengers alert to the duty imposed upon them, and stops a sufficient length of time to allow passengers exercising reasonable care for their own safety *687 to get off, without danger or injury to their person, this meets its full duty in respect to giving reasonable notice. * * *
"And while, as a general rule, the carrier is under no duty to give a passenger personal notice that their particular station has been reached, and a promise by the conductor of the train to notify a passenger personally of the arrival of the train is not binding on the carrier, yet exceptional circumstances in respect to the age, sex, or physical infirmity of the passenger, and notice of such condition brought home to the agent in charge of the carrier's vehicle, may impose this duty and bring it within the scope of the carrier's duty. * * *
"In these circumstances it was a duty resting upon the carrier, `to use all such reasonable precautions' suggested to `human judgment and foresight * * * to make his passenger's journey safe and comfortable.' * * * The discharge of this duty, in a large measure, had been committed by the carrier to its train conductor, not a mere servant or agent, but a vice principal and pro hac vice, its alter ego. * * *
"Therefore, if the conductor in this case undertook, by making a promise to give the passenger personal notice of the arrival of the train, to meet the exigencies of the situation as presented to him, in discharge of the duty resting upon the defendant to conserve the comfort and convenience of the passenger, we see no reason to hold that he was not acting within the scope of his authority. And if the passenger relied on such promise and was thereby lulled into relaxing her alertness to take notice of the usual call of stations to her injury, we can discover no reason why the carrier should not be held liable for such damages as proximately flowed from the failure of the conductor to give the passenger notice according to such promise. We therefore hold that the facts of this case, viewed in the light most favorable to the plaintiff, bring it within the exception to the general rule heretofore stated, necessitating a submission of the case to the jury."
It is the contention of the appellant that the court did not correctly state the applicable law in his oral charge and that the requested written charges should have been given, not only to clarify the oral charge, but also because the pertinent rule was better stated in the requested written charges. The contention cannot be sustained. The court's general oral charge covered substantially the applicable rules embraced in the charges which were refused. Code of 1940, Title 7, § 273.
Next, it is argued by the appellant that the trial court erred in admitting in evidence the original complaint. McElroy's "Law of Evidence of Alabama", §§ 181-186, p. 64, states the rule governing such admission:
"As a general proposition, pleadings that have been filed in behalf of a party in another cause or in the present cause, are admissible against him as admissions in the present cause if * * it be first shown that they were drawn under his direction or with his assent ([Birmingham Elec. Co. v. Wood] 222 Ala. 103, 130 So. 786; [State v. Atlantic Coast Line R. Co.], 202 Ala. 558, 81 So. 60; [Graves v. Cruse-Crawford Mfg. Co.], 203 Ala. 202, 82 So. 452)."
Consonant with this principle appellee proved that the pleadings were drawn from facts given by the appellant. There was therefore no error in allowing the complaint in evidence.
On cross-examination plaintiff was asked, "Did you tell the claim agent in that conversation that you told the conductor that you had been sick?", to which she answered, `No, I did not mention it to him, because you know * * *". The *688 court properly sustained defendant's objection to her volunteering any more information than the question called for. Such matters on cross-examination are within the discretion of the trial court. 19 Ala.Dig. Witnesses, 267, p. 729. See also Lowman v. State, 161 Ala. 47, 50 So. 43; McElroy, Law of Evidence in Ala., § 121, p. 40; Seaboard Air Line Railway Co. v. Mobley, 194 Ala. 211, 69 So. 614.
It is also argued by the appellant that it was error for the trial court to exclude the affirmative answer of the appellant to the question, "And now, is he [meaning the conductor] the one that promised to see that you got off the train?" This fact had already been shown. It is harmless error for the trial court to exclude evidence where such evidence was admitted at another time and in another form. Brown & Flowers v. Central of Ga. Railway Co., 185 Ala. 659, 64 So. 581; 2A Ala. Dig., Appeal & Error, 1058(1), p. 509.
Finally, the appellant argues that the verdict was against the great preponderance of the evidence. In this we cannot agree. The evidence was clearly conflicting. The case went to the jury on this evidence under proper instruction from the court. Central of Ga. Railway Co. v. Smith, supra; Louisville & Nashville R. R. Co. v. Seale, 160 Ala. 584, 49 So. 323. We cannot say that the verdict was so decidedly against the evidence as to make it wrong and unjust. Cobb v. Malone & Collins, 92 Ala. 630, 9 So. 738; Sorrell v. Lindsey, 247 Ala. 630, 25 So. 2d 725; Johnson v. King, 260 Ala. 497, 71 So. 2d 60; Tucker v. Thompson, 263 Ala. 516, 83 So. 2d 238; Shelby County v. Oldham, 264 Ala. 626, 89 So. 2d 106.
The appellant has failed to show any prejudicial error.
Affirmed.
LIVINGSTON, C. J., and GOODWYN and COLEMAN, JJ., concur. | October 31, 1957 |
f15fabb3-d686-44fa-b3dd-34adb4abd343 | WT Smith Lumber Company v. Cobb | 94 So. 2d 763 | N/A | Alabama | Alabama Supreme Court | 94 So. 2d 763 (1957)
W. T. SMITH LUMBER COMPANY
v.
Ralph COBB.
3 Div. 787.
Supreme Court of Alabama.
April 25, 1957.
*764 Edwin C. Page, Jr., Evergreen, for appellant.
Ralph L. Jones, Monroeville, for appellee.
SIMPSON, Justice.
Complainant brought this suit pursuant to the provisions of § 3, Title 47, Code of 1940, to determine the boundary line between itself and respondent, coterminous landowners. The trial court established as the true line that claimed by the respondent, and complainant appeals.
It is first contended by complainant, appellant, that the trial court erred in refusing, on its motion, to order a survey of the lines as provided by § 10, Title 47, Code of 1940. Complainant offered to deposit with the register the money necessary to defray the expenses of the survey. The argument is untenable. The statute provides that a survey may be ordered when "it appears that such survey is pertinent * * * or is essential to the proper entering of a decree * * *."
It is not mandatory but merely directory that the court order a survey. Redden v. Otwell, 252 Ala. 653, 42 So. 2d 454; Stansell v. Tharp, 245 Ala. 270,16 So. 2d 857. In the instant case the court was singularly correct in not ordering a survey inasmuch as the court concluded in favor of a well marked line claimed by the respondent as the true line on the theory of adverse possession. No good purpose, therefore, would have been served by establishing boundary lines in accordance with the government survey or muniments of title.
*765 The other and main insistence of the appellant is that the evidence was insufficient to establish in the respondent title to the disputed area by adverse possession. The case was submitted to the trial court on depositions so it will be considered de novo by this court. 2A Ala.Dig., Appeal and Error, e., p. 248 et seq.
On a considerate study of the record in the light of the cases governing, we have concluded that the decree below was well founded. Following is a brief recital of the evidence as disclosed by the record: The respondent owned the W. ½ of the NW ¼ of Section 1, Township 8 North, Range 10 East. The complainant owned the E. ½ of the NW ¼ of said Section and the South ½ of the SW ¼ of Section 36, Township 9 North, Range 10 West. The lines in dispute were those on the East and North of the respondent and on the West and South of the complainant. Otherwise stated, the lumber company, appellant, owned the land immediately North and East of the 80 acres owned by the appellee. The disputed lines separated these coterminous tracts. The respondent, Cobb, acquired title to his land from his mother and father by warranty deed dated January 3, 1939. This deed which was filed for record January 7, 1939, conveyed about 400 acres of which the above described 80 acres was a part. Within about 15 days after the date of said deed, the respondent employed a competent and licensed surveyor to survey and mark his lines. This surveying was accomplished within a day or so. The survey lines were clearly marked with three hacks on the trees and these line marks were plainly evident when the testimony in the case was taken about 15 years thereafter. Respondent, intending to use some of this land as a pasture, began fencing it immediately after the survey. He constructed a substantial fence on the line of the survey using mulberry, chestnut and oak posts. Along the North line of the 80 acres four strands of barbed wire were used, and this continued down on the East side of the survey line until about 150 or 200 yards before reaching the SE corner of the 80 when these wires were joined by a net wire fence extending down to the SE corner. This fence covered the entire boundary line in dispute and was erected and maintained by the respondent as a boundary line fence. One McNeil, a witness for complainant who was at the time and had been for a long period prior thereto, a woods rider or land agent for the complainant, testified that he found this surveyed line between the time the surveyor ran it and the time the fence was built; that he knew Mr. Cobb put the fence along the line of the blazes, and that it was his opinion at the time the fence was built that Mr. Cobb erected it as a boundary line fence. This fence was completed prior to February 25, 1939. Immediately after the erection of the fence, respondent began pasturing the land. Some cows he owned individually and some jointly with one Hardee. During the 8 or 9 years while the pasturing of these lands continued, he visited them about 2 or 3 times weekly. Although respondent took his cattle out of the pasture in 1944, his brother and Hardee continued to run cattle in the pasture as tenants of respondent until 1950, when he sold the timber on the land and it was cut and it became then necessary to move the cattle due to the timbering operations. In 1940 a storm blew down some trees on the property and he either logged the storm timber himself or had others to come in and help him do so. Some of this storm timber fell on the fence and tore it down, and the respondent immediately repaired it. In about 1948 or 1949 respondent sold the timber on the property to McGowin Lumber Company, at which time he showed the purchaser the lines up to the fence as the boundary of his property. The lumber company put sawmills on the land, put roads through it, and cut up to the fence. All of this was very obvious possession of the land up to the fence under the respondent's claim. For about 5 years after the respondent *766 purchased this property he farmed about 18 acres of the tract, which, of course, was also some evidence of his possession of the property. This character of possession was maintained by the respondent continuously from his purchase of the property in 1939 until the suit in this case was filed in 1950. The complainant sought to show by several surveyors that the respondent's fence was not on the true boundary line but enclosed a portion of its land on both the South and West side. These witnesses, however, testified that they had run out the disputed line and that it was a difficult boundary to establish, and that boundary lines in this area were uncertain. The land along the disputed area was woodland with some undergrowth. The property was suitable for pasture and timbering rather than cultivation. The respondent testified that he erected this fence as a boundary line fence and at one point ran the fence along the East boundary of an old public road so as to leave it open to the public even though it was in the boundary of his survey.
The law governing the case is well understood. When one of two adjoining landowners erects a fence as the dividing line and holds actual and exclusive possession to it as such, his possession is adverse and if continued for ten years ripens into title. Isaacks v. Clayton, 254 Ala. 450, 48 So. 2d 536; Monteith v. Chapman, 260 Ala. 206, 69 So. 2d 866; Guy v. Lancaster, 250 Ala. 226, 34 So. 2d 10; Smith v. Cook, 220 Ala. 338, 124 So. 898.
Openness, notoriety and exclusiveness are shown by acts which at the time, considering the state of the land comport with ownership, viz., such acts as would ordinarily be exercised by an owner in appropriating the land to his own use and to the exclusion of others. Monteith v. Chapman, supra; Kidd v. Browne, 200 Ala. 299, 76 So. 65.
And all acts of a possessory nature committed by the adverse claimant are to be considered collectively rather than independently in determining the sufficiency of his possession. Chastang v. Chastang, 141 Ala. 451, 37 So. 799; 2 C.J.S. Adverse Possession § 29.
We entertain the view that, considering the nature and character of the land, the possessory acts of the appellee detailed above and the absence of any acts of possession or claim of ownership by the appellant until after the expiration of the ten year period, sufficiently met the test of the authorities.
We hold, therefore, that the trial court ruled correctly in establishing the line claimed by the appellee as the boundary line between the parties.
True, the original government survey lines are permanent markings and may not be changed, but by adverse possession or valid agreement a boundary line between two tracts may be established so that the government survey will no longer control. Godsey v. Anglin, 261 Ala. 19, 73 So. 2d 92, and cases cited.
It would be impracticable and serve no useful purpose to attempt to differentiate this case from those relied upon by the appellant. Each case must be ruled by its own particular facts. We might observe, however, that the cases cited by appellant are different factually in some material respects from the one at bar, such as a lack of showing of an intent to claim adverse possession or merely desultory acts of possession, or a difference in character of topography of the land involved, etc.
Affirmed.
LIVINGSTON, C. J., and GOODWYN and COLEMAN, JJ., concur. | April 25, 1957 |
31153a91-acb5-4d77-9e47-5a3995aeb3a0 | Bolin v. State | 96 So. 2d 582 | N/A | Alabama | Alabama Supreme Court | 96 So. 2d 582 (1957)
Henry H. BOLIN
v.
STATE of Alabama.
6 Div. 288.
Supreme Court of Alabama.
June 20, 1957.
*584 Cooper, Mitch & Black, Birmingham, for appellant.
John Patterson, Atty. Gen., and Robt. P. Bradley and Wm. C. Younger, Asst. Attys. Gen., for the State.
SIMPSON, Justice.
Response to question certified by the Court of Appeals.
The appellant was tried and convicted under Count 2 of an indictment charging that he "did have in his possession for the purpose of making, producing or manufacturing a stink bomb, or a substitute or device therefor, to-wit, three fourths of a liquid ounce of ethyl mercaptan, one of the ingredients necessary or commonly used in making, producing or manufacturing such stink bomb or substitute or device therefor, against the peace and dignity of the State of Alabama."
This indictment was drawn under § 369, Title 14, Code of 1940, which is as follows:
The part of the section pertinent for consideration here is that which prohibits "any person or persons to have in their possession for the purpose of making * * * any stink bomb, * * * any of the ingredients necessary or commonly used in making * * * such stink bomb * *."
It is contended by the appellant that said section is vague and uncertain and that the true meaning of the statute is not apparent from its face, and that said section is violative of Article 1, § 6, Constitution of Alabama, and Amendment 14 of the United States Constitution.
The Court of Appeals was of the opinion that said section is unconstitutional in that it makes the mental attitude of the actor the sine qua non of the offense, and further that the statute uses words of no "ascertainable" meaning. Hence the inquiry to this Court. Title 13, § 98, Code of 1940.
We think the view held by the Court of Appeals to be correct.
If the provision can be sustained as constitutional it must be under the police power of the state which authorizes the imposition *585 of reasonable regulations in the interest of public health, public morals, public safety or the general welfare. Looking to one of the earliest authorities, Blackstone defines this power to be "the due regulation and domestic order of the kingdom: whereby the individuals of the State, like members of a well governed family, are bound to conform their general behavior to the rules of propriety, good neighborhood, and good manners; and to be decent, industrious and inoffensive in their respective stations." 4 Blackstone Commentaries 162.
Mr. Justice Holmes, speaking for the Supreme Court of the United States in Noble State Bank v. Haskell, 219 U.S. 104, 111, 31 S. Ct. 186, 188, 55 L. Ed. 112, 32 L.R.A., N.S., 1662, Ann.Cas.1912A, 487, observed:
Consonant with this general theory it has been held that the police power of the state is validly exercised when legislation is enacted to suppress the evils of intemperance and to regulate or outlaw the carrying on of other activities regarded by the general opinion as great public evils. But if a provision of a statute is arbitrary or has no reasonable relation to the object sought to be accomplished by an otherwise valid enactment, the courts will strike it down as an unwarranted exercise by the legislature of the states' police power. Southern Express Co. v. Whittle, 194 Ala. 406, 69 So. 652, L.R.A.1916C, 278.
Otherwise expressed the police power may not be employed to prevent evils of a remote or highly problematical character. Nor may its exercise be justified when the restraint imposed upon the exercise of a private right is disproportionate to the amount of evil that will be corrected. However, the fact that, as a matter of practical operation, innocent parties or property will necessarily be affected to some slight extent, will not render the legislation unconstitutional. Furthermore, acts innocent in themselves may be ordered or prohibited if this be practically necessary in order to secure an efficient enforcement of a valid police order. Willoughby on the Constitution of the United States, 2d Ed., Vol. 3, § 1180, p. 1778.
It is also settled law that "In enacting a criminal statute, there is an obligation on the State to so frame it that those who are to administer it and those to whom it is to be administered may know what standard of conduct is intended to be required and legislation may run afoul of the due process clause because of a failure to set up any sufficient guidance to those who would be law-abiding, or to advise a defendant of the nature and cause of an accusation he is called on to answer, or to guide the courts in the law's enforcement." Kahalley v. State, 254 Ala. 482, 483, 48 So. 2d 794, 795; Seals v. State, 239 Ala. 5, 194 So. 682; Standard Oil Co. v. State, 178 Ala. 400, 59 So. 667; Carter v. State, 243 Ala. 575, 11 So. 2d 764.
And a person is not required to speculate as to the meaning of a statute *586 at the peril of his freedom. Lanzetta v. State of New Jersey, 306 U.S. 451, 59 S. Ct. 618, 83 L. Ed. 888. The intent of the legislature must appear from the face of the statute. Standard Oil Co. v. State, supra.
Guided by these approved canons of constitutional construction, we think it clear that the quoted provision of said § 369 cannot be upheld. It arbitrarily pronounces as unlawful all possession, whether innocent or criminal, of any ingredient, etc., for the purpose of making stink or tear gas bombs. No standards of conduct are set up to guide the innocent or warn the criminal, or to advise a defendant of the nature and cause of the accusation or to guide the courts in administering that provision of the statute. Certainly such a sweeping prohibition has no reasonable relation to the object intended, namely, the throwing or depositing of such bombs so as to offend innocent persons. The record discloses, and we know, that these various ingredients are and may be used for many industrial, agricultural and other beneficent purposes, but the sweeping provisions of the statute make criminal all such possession. This under the authorities, supra, makes it violative of the constitutional provisions, supra.
While § 370 of Title 14 excludes certain persons, i. e., "regular licensed druggist or chemist or except a person who has the same in possession for medicinal or domestic purposes," from the application of § 369, this exclusion is not far reaching enough. Except for the exclusions enumerated, it marks no lines between lawfulness and criminality but rather condemns all acts alike of the kind specified and prohibited. Kahalley v. State, supra; Eidge v. City of Bessemer, 164 Ala. 599, 51 So. 246, 26 L.R. A.,N.S., 394; Connor v. City of Birmingham, 36 Ala.App. 494, 60 So. 2d 474 (certiorari denied and holding of Court of Appeals approved in 257 Ala. 588, 60 So.2d 479).
We, of course, do not have before us and do not decide upon the validity vel non of the other portion of the statute making it unlawful to make, manufacture or possess, etc., the completed product, namely, stink bomb or tear gas bomb.
We would in this connection, however, observe that while no cogent argument can be found to deny to the legislature the power to declare "stink bombs and tear gas bombs" unlawful when in the possession of unauthorized persons, our statute as heretofore notedunlike other state statutes makes no provision for the possession of such bombs by police departments, military units, educational institutions, etc. We will not question the wisdom of the legislature to declare "stink and tear gas bombs" as being nuisances per se, yet ordinarily provision should be made for the lawful use or possession of an article not in itself inherently evil. "`The police power of the Legislature, in reference to the prohibition of nuisances, is limited to the prohibition or regulation of those acts which injure or otherwise interfere with the rights of others,' and what is a nuisance is a judicial question." Alabama Great Southern R. Co. v. Cummings, 211 Ala. 381, 100 So. 553, 555, 33 A.L.R. 439.
We think the stated provision has another vice. That part of the statute which stamps as unlawful the "possession for the purpose of making * * * any stink bomb, or tear gas bomb * * * any of the ingredients necessary or commonly used in making * * * such stink bomb" has the same vice against its validity as inhered in the statute considered in the case of Carter v. State, supra, because the offense is made to stand not upon the result or effect of the act, but upon the intent with which the act is committed. In that case the pertinent part of the act there considered provided:
In denouncing the act as an unconstitutional abuse of legislative power, this Court observed:
The same rationale must necessarily lead to the same conclusion with reference to the statute instantly considered. The act proscribes the possession for the purpose of making which is no different from the intent of making. 22 Words and Phrases, Intention, p. 14; 35 Words and Phrases, Purpose, p. 546. Manifestly, the validity of the act now under view and the one in the Carter case cannot be differentiated on any rational basis, the act of possession (a single act) with intent under the instant statute and "any act with the intent" under the statute in the Carter case are similar legislative proscriptions, and as was held, the mental attitude of the actor is the sine qua non of the offense. We have not yet reached the dizzy heightswe hopeof sophistical constitutional interpretation to hold that one can be punished for what he "intends" or "purposes" to do.
Further rationalizing. As to the evidentiary presumption sought to be established in favor of the State by § 370, Title 14, a fatal defect exists when applied to that part of § 369 here involved. Section 370 states "such possession shall be prima facie evidence that such person had the same for the purpose of making, producing or manufacturing such stink bomb," etc. It would seem that such evidentiary presumption would allow the state to prove the corpus delicti and in the absence of defensive evidence override an accused's presumption of innocence and authorize a conviction of the very crime charged in § 369.
The Supreme Court of the United States in Bailey v. Alabama, 219 U.S. 219, 31 S. Ct. 145, 146, 55 L. Ed. 191 (holding unconstitutional an Alabama statute [Gen.Acts of Alabama 1903, p. 345, as amended by Gen. Acts of Alabama 1907, p. 636] reading in part "Any person who, with intent to injure or defraud his employer, enters into a contract in writing for the performance of any act of service, and thereby obtains money or other personal property from such employer, and with like intent, and without just cause, and without refunding such money, or paying for such property, refuses or fails to perform such act or service, must on conviction * * *. And the refusal or failure of any person, who enters into such contract, to perform such act or service, or to cultivate such land, or refund such money, or pay for such property, without just cause, shall be prima facie evidence of the intent to injure his employer or landlord or defraud him.") (Emphasis supplied), speaking through Mr. Justice Hughes said:
Speaking further of this statute, the court observed:
Although the statute in the Bailey case, supra, was declared unconstitutional as violating constitutional provisions other than the Fourteenth Amendment, we do not think it would be a strained construction to adopt the argument made there (with reference to the evidentiary presumption feature of the statute) to the instant statute (§ 370, Title 14) to the conclusion that such a statute deprives a defendant of the presumption of innocence where mere possession of ingredients "commonly used" is made the basis of the crime charged.
It does not take a scientist or chemist to imagine several common ingredients that, when mixed together, would effect an odor that would enable the finished product to be termed a "stink bomb". But to say that the possession of these ingredients, many of which are commonly used in everyday living, gives rise to the presumption that they will be used for the purpose of concocting a "stink bomb", perverts, in our opinion, the theory that the possession of articles, not in and of themselves unlawful, has a reasonable relation to the enforcement and prevention of the evil sought to be suppressed. Since this court can take judicial knowledge that many gases, liquids, acids and chemicals used daily in businesses, industries, agriculture, etc., could be used to manufacture "stink bombs", the words "necessary or commonly" as used in our statute have, at best, a nebulous connotation which does violence to the exactness required in criminal statutes.
Suggestion has been made in consultation that such a construction might not consist with such valid enactments as instance, § 131, Title 29, Code of 1940, of the prohibition law making it "unlawful for any person, firm or corporation in this state to manufacture, sell, give away, or have in possession, any still, apparatus, appliance, or any device or substitute therefor, to be used for the purpose of manufacturing any prohibited liquors or beverages." We think the statutes readily distinguishable. The evil sought to be suppressed in all of our liquor statutes is the making, possession and transportation, etc., of illegal liquors or beverages. The possession of a still or substitute therefor has a reasonable relationship to the evil sought to be suppressed. The next section, 132, of the liquor statute makes provision that the unexplained possession of any part or parts of any still, etc., shall be prima facie evidence of the violation of this article. The possession of such articles, however, is not made unlawful but their unexplained possession is merely an evidentary presumption so that when *589 taken in connection with other evidence would authorize a judge or jury to find that a defendant had committed the crime of possessing a complete still or substitute therefor, to be used for the purpose of manufacturing prohibited liquors or beverages.
The evil sought to be suppressed by the first part of § 369, Title 14, is the depositing or throwing of a "stink or tear gas bomb" in a place that would offend an innocent person or the general public. The possession of such a bomb by unauthorized persons has a reasonable relation to the evil sought to be suppressed and would, in our opinion, be a lawful exercise of the police power. But to make the possession of a commonly used stink or tear gas bomb ingredient for the purpose of making such bomb a crime, is so vague and uncertain as to be disproportionate to the evil sought to be suppressed and must be condemned as an unwarranted abuse of the police power of the state and offensive to the mentioned sections of our State and Federal Constitutions.
LIVINGSTON, C. J., STAKELY and COLEMAN, JJ., concur.
LAWSON, GOODWYN and MERRILL, JJ., dissent.
MERRILL, Justice (dissenting).
I cannot follow the reasoning of the majority opinion, nor can I see any reasonable distinction between the cited prohibition law statutes and the ones dealing with stink bombs. The cited prohibition law statutes probably have been construed as often as any of our penal statutes in the past thirty-eight years, and to my mind, they furnish settled and established guidance for application to the instant case.
Title 29, § 131, Code 1940, makes it unlawful for a person to "have in possession, any still, apparatus, appliance, or any device or substitute therefor, to be used for the purpose of manufacturing any prohibited liquors or beverages."
Title 14, § 369, Code 1940, makes it unlawful for any person to "have in their possession for the purpose of making, producing or manufacturing any stink bomb, or tear gas bomb, or any substitute or device therefor, any of the ingredients necessary or commonly used in making, producing or manufacturing such stink bomb or substitute or device therefor." I submit that the only difference in the two parts of the quoted statutes is the position of the phrase "for the purpose of" in the two sentences, and that, in effect, the two statutes have the same legal significance in relation to their respective subjects.
Title 29, § 132, reads:
Our cases hold that in "possession" cases, §§ 131 and 132 must be considered together. Section 132 is a rule of evidence; it creates no crime and fixes no penalty, but simply fixes what will be prima facie evidence of a violation of the preceding section of the code when certain facts are proven, which are the unexplained possession of any part or parts of any still, apparatus or appliance, or any device or substitute therefor, commonly or generally used for, or suitable to be used in the manufacture of prohibited liquors or beverages. Little v. State, 27 Ala.App. 119, 166 So. 618.
It would be a violation of § 131 if a person possessed any still, apparatus, appliance or other device for the purpose of manufacturing prohibited liquors, whether such devices were or were not generally used or are suitable to be used for such *590 purpose. But in order for the possession of the devices to make out a prima facie case under § 132, they must be of such character as in common use are suitable for the purpose of manufacturing liquor. Wilson v. State, 211 Ala. 574, 100 So. 917. The possession of a complete still is not unlawful unless it is for the purpose of manufacturing prohibited liquors. This is a constituent element of the offense denounced by the statute. Masters v. State, 18 Ala.App. 614, 94 So. 249; Reese v. State, 18 Ala.App. 357, 92 So. 77; Gamble v. State, 19 Ala.App. 82, 95 So. 202; Wilson v. State, supra.
Under these two sections, the possession of certain enumerated articles has been held sufficient to support a conviction:
(1) A tub, a trough containing some wet meal and one or two little cans or buckets such as are used for dipping water. Arthur v. State, 19 Ala.App. 311, 97 So. 158.
(2) A can and a copper worm that defendant testified that he had found. Bell v. State, 20 Ala.App. 150, 101 So. 158.
(3) A 100-pound lard can, a trough and a cap. Harvey v. State, 20 Ala.App. 264, 101 So. 512.
(4) A copper still can and still cap in the loft of defendant's dwelling house. Watford v. State, 21 Ala.App. 428, 109 So. 174.
(5) A lard can, a cap and some mash. Whigham v. State, 21 Ala.App. 454, 109 So. 281.
(6) A copper worm, some pipe and some copper connections in a wagon which defendant was driving along a road. Horton v. State, 22 Ala.App. 114, 113 So. 279.
(7) "Parts of a still" which defendant claimed he possessed for a perfectly legitimate purpose. Jones v. State, 25 Ala.App. 346, 146 So. 424.
The statute relating to the possession of ingredients for manufacturing stink bombs as being prima facie evidence is Tit. 14, § 370, which reads:
This section corresponds to Tit. 29, § 132, except that it specifically exempts a regular licensed druggist or chemist or a person who has the ingredients in his possession for medicinal or domestic purposes.
Thus, just as Tit. 29, § 131, makes it unlawful for a person to possess an appliance to be used for the purpose of manufacturing prohibited liquors, so Tit. 14, § 369, makes it unlawful for a person to have in his possession any ingredients used to produce stink bombs for the purpose of manufacturing such stink bombs. Certainly, it would seem that § 369, Tit. 14, no more "makes the mental attitude of the actor the sine qua non of the offense" than does § 131, Tit. 29.
Also, just as Tit. 29, § 132, makes the unexplained possession of any part of a still commonly used for the manufacture of prohibited liquors prima facie evidence that the defendant possessed a complete still for the purpose of manufacturing prohibited liquors, so Tit. 14, § 370, makes the unexplained possession of any ingredients commonly used for the making of stink bombs prima facie evidence that the defendant *591 possessed such ingredients for the purpose of manufacturing such stink bombs, subject to certain enumerated exceptions.
We now revert to the question of the constitutionality of the statutes. The constitutionality of our prohibition laws has been upheld repeatedly. Jones v. State, 17 Ala.App. 444, 85 So. 839; Brogden v. State, 18 Ala.App. 56, 88 So. 366; Ricketts v. State, 18 Ala.App. 162, 90 So. 137, certiorari denied 206 Ala. 701, 90 So. 925; and in Coats v. State, 257 Ala. 406, 60 So. 2d 261, 262, this Court, all the Justices concurring, stated in reference to Tit. 29, § 132, "We know of no constitutional right which such a statute infringes."
Under the same principles by which our courts have held the prohibition law statutes constitutional, I would hold that part of the statute constitutional which was certified to us by the Court of Appeals, which is:
Just as it is within the police power of the state to enact and enforce the liquor laws to preserve the health, morals or safety of the public, even more so is that power being properly exercised when a statute like the one under consideration is enacted by the legislature. The depositing of a stink or tear gas bomb is usually a sneaky act, as a consequence of which property can be destroyed and men, women and children could possibly be trampled to death if such bombs were deposited in a crowded theatre or like building.
I think I have already demonstrated that the statute does not seek "to punish one for what he thinks or believes" as was the case in Carter v. State, 243 Ala. 575, 11 So. 2d 764, 766, but to punish one who possesses stink bomb ingredients for the purpose of making, producing or manufacturing a stink bomb. I do not think the Carter case is an apt authority.
I am unable to follow the Court of Appeals in this paragraph:
The quoted words of the statute, taken separately, and as arranged in the sentence, have an "ascertainable meaning" and are clear and unambiguous. The words do not include acts which are innocent of any relation to stink bombs because the only possession of ingredients which is unlawful is a possession for the purpose of manufacturing a stink or tear gas bomb. Referring again to the cases construing Tit. 29, §§ 131 and 132, the possession of stills, lard cans, troughs, caps, tubs, copper worms, wet meal, pipes, cans and buckets are innocent acts, but they become unlawful acts when they are possessed for the purpose of manufacturing prohibited liquors. Just so, the possession of ingredients commonly used to make stink bombs is innocent, but such possession becomes unlawful when it is "for the purpose of making, producing or manufacturing any stink bomb." That is the standard of conduct. The possession must be for the purpose set out in the statute to be unlawful.
It follows that it is my opinion that the quoted part of Tit. 14, § 369, supra, is constitutional; and I must of necessity dissent.
LAWSON and GOODWYN, JJ., concur. | June 20, 1957 |
2546a32f-7f48-4aa6-97ea-c27e98032b9d | Ganus v. Sullivan | 99 So. 2d 204 | N/A | Alabama | Alabama Supreme Court | 99 So. 2d 204 (1957)
Emma Lee GANUS
v.
Sarah Ganus SULLIVAN et al.
1 Div. 743.
Supreme Court of Alabama.
October 24, 1957.
Rehearing Denied December 19, 1957.
*205 Adams, Gillmore & Adams, Grove Hill, for appellant.
Grady Hurst, Jr., Chatom, for appellees.
MERRILL, Justice.
Appeal from a decree overruling demurrer to a bill in equity, as amended.
The bill sought to sell the homestead of Henry Ganus, deceased, for division and sought an ascertainment of the widow's dower and homestead rights. The amendment to the bill alleged the fair value of the homestead to be $11,000. The bill does not state the acreage of the homestead, but describes it by government subdivisions as four contiguous forties which, without additional explanation, comprise 160 acres.
The bill alleges Henry Ganus died intestate; that there has been no administration of his estate and none contemplated; that he left no debts, and that the land cannot be equitably partitioned. It also alleges that Henry Ganus and his wife jointly owned a home in the State of Mississippi, where the wife resided for more than two years prior to the death of Henry Ganus.
The complainants are two brothers and the children of a third brother, now deceased, of Henry Ganus. The respondents are the widow of Henry Ganus and the children of his deceased sister.
The principal point of the demurrer is that the bill, as amended, affirmatively shows that the widow has homestead rights in the property, and under the present homestead statute, she takes a life estate in the entire parcel; and the complainants, being remaindermen only, cannot maintain the bill.
The trial court, in the decree overruling the demurrer, stated in part:
(There is nothing in the bill showing that the homestead consists of more than 160 acres).
This case is governed by the law in effect at the time of the husband's *206 death, which was 1955. Compton v. Cook, 259 Ala. 256, 66 So. 2d 176; Archer v. Tolleson, 257 Ala. 668, 60 So. 2d 853.
The decision in this cause turns on the construction of the 1951 amendment to Tit. 7, § 661, Code 1940. See Act No. 911, Acts of Alabama 1951, p. 1558, listed in Tit. 7, Pocket Part, p. 125, which provides:
We are concerned with the second sentence of § 661. Appellee contends that the first sentence of the section applies where the husband dies intestate, and the second sentence only applies when he dies testate, having willed the homestead to the widow and minor children, if any, and since there is no will, the second sentence has no application in the instant case.
We cannot agree with this contention. We think the intent of the Legislature was to provide the widow and the minor children, if any, with a life estate in the homestead without limit as to value, in the absence of devise by will, so long as there were no debts, or they were paid, and so long as the area did not exceed 160 acres. We think it clear that such a construction was intended by the Legislature, the exception being, as it has long been, that the husband, by will, could devise that part of his property over and above the homestead exemption as he pleased.
Appellees further contend that our case of Mitchell v. Mitchell, 258 Ala. 572, 64 So. 2d 104, supports his contention because we said in that case, quoting from appellees' brief, "* * * that the two purposes of the 1951 amendment were (1) To raise the value of the homestead to $6,000.00, and (2) To delete all provisions for the absolute vesting in the widow and minor children. If the statute vest the homestead without limit as to value in the absence of a will wouldn't it have been mentioned in Mitchell v. Mitchell." There is no merit in this contention. We still think the two major objectives in the existing statutes at that time were these enumerated in Mitchell v. Mitchell. Sections 663 and 697 of Tit. 7 had not been reenacted and amended when Mitchell v. Mitchell was decided, and they are not applicable in the instant case. As stated in that case, many sections of the Code relating to homestead exemptions were repealed and others were amended. One of the changes was to provide a homestead for the widow and minor children *207 without limit as to value, provided there was no devise of the homestead or part of it by will, and that there were no unpaid debts, and the area of the homestead did not exceed 160 acres. Whether it be called a "major" change or not, we think the clear intention of the Legislature was to effect such a status.
Thus, the bill shows that decedent left a homestead and, for aught that appears from the bill, it does not exceed 160 acres in area, that there is a widow, and that those seeking to sell the homestead, or part of it, for division, are remaindermen. Cotenancy is an indispensable element of compulsory partition or a sale for division, and a remainderman cannot maintain a bill for sale for division against the life tenant. Compton v. Cook, 259 Ala. 256, 66 So. 2d 176; Mizell v. Walley, 253 Ala. 302, 44 So. 2d 764; Street v. Watts, 202 Ala. 622, 81 So. 564.
It, therefore, follows that appellees showed no right to maintain a bill seeking a sale for division of the homestead against the widow of Henry Ganus. The decree of the lower court is reversed, one is here rendered sustaining the demurrer to the bill, as amended, and the cause is remanded, and appellees are given twenty days from the receipt of notice of this decision by the circuit clerk to amend as they may be advised.
Reversed, rendered and remanded.
LIVINGSTON, C. J., and LAWSON and COLEMAN, JJ., concur.
On Application for Rehearing
MERRILL, Justice.
Appellee has favored us with a scholarly study of the homestead laws of Alabama in brief on application for rehearing and urges that our opinion as to the meaning of the second sentence of § 661, Tit. 7, Code 1940, as amended, is not sound. We are still of the opinion that the Legislature intended by that provision that the widow and minor children of a decedent should have a life interest in the homestead of a decedent without limit as to value, when the homestead did not exceed 160 acres in area and where there were no debts, or if there were debts or claims, they were satisfied from sources other than the homestead.
There is one new matter to which we feel that we should reply. Appellee contends that our holding in the instant case is contrary to the holding in Roberts v. Roberts, 263 Ala. 517, 83 So. 2d 348, 349, and "can in no way be reconciled" with it. We think the distinction between the cases is found in the third paragraph of the opinion in the Roberts case which records that the estate consisted in part of "about 281 acres of farm lands in Houston County." Obviously, more than 160 acres were involved and the opinion shows that sections of the homestead statutes, other than § 661, were involved, discussed and applied. We are unable to see the conflict or the irreconcilability in the two cases.
The application is overruled.
LIVINGSTON, C. J., and LAWSON and COLEMAN, JJ., concur. | October 24, 1957 |
b58372c2-160b-43b9-86ee-cb5373b99fa9 | Larson v. State | 97 So. 2d 776 | N/A | Alabama | Alabama Supreme Court | 97 So. 2d 776 (1957)
C. J. LARSON et al., d/b/a Tide Finance Company,
v.
STATE of Alabama ex rel. John PATTERSON, Attorney General.
3 Div. 749.
Supreme Court of Alabama.
July 26, 1957.
Rehearing Denied November 14, 1957.
*777 Wallace L. Johnson, Mobile, Winton G. Wilson and S. Palmer Keith, Jr., Birmingham, D. Eugene Loe, Hill, Robison & Belser and Hill, Hill, Whiting & Harris, Montgomery, for appellants.
John Patterson, Atty. Gen., J. Noel Baker and Robt. Bradley, Asst. Attys. Gen., for appellee.
White, Bradley, Arant, All & Rose, Birmingham, amici curiae, in support of appellee.
GOODWYN, Justice.
This is a suit brought in the circuit court of Montgomery County, in equity, by the State of Alabama, on the relation of the Attorney General of the State, against C. J. Larson and Virgil C. Moore, a partnership, doing business as Tide Finance Company, and C. J. Larson, Virgil C. Moore and M. R. Rice, individually. The bill seeks a temporary injunction enjoining and restraining respondents, "their servants, agents and employees, while acting within the line and scope of their employment, from making or entering into any contract or agreement whereby the rate of interest upon the loan or forbearance of money, goods, or things in action, exceeds the rate of $6.00 upon $100.00 for one year, or whereby the rate of interest by written contract exceeds the sum of $8.00 upon $100.00 for one year, or exceeds that rate for a greater or lesser sum or for a longer or shorter time, and on loan contracts and agreements presently in existence on which interest has been charged in excess of the lawful rate, to enjoin and restrain each of the respondents from filing suit thereon for more than the principal amount of the obligation with proper credit for all prior interest payments."
There is also a prayer that upon a final hearing the court "will issue a permanent injunction in accordance with the foregoing prayer for a temporary injunction, and in addition will declare that the acts of the respondents constitute a public nuisance against the citizens of the State of Alabama; that in consequence thereof the contracts taken and held by the respondents in violation of Title 9, Section 60, 1940 Code of Alabama, be declared null and void, and that each of said respondents, and their servants, agents and employees, be forever enjoined and restrained from carrying on and prosecuting their said business in violation of Title 9, Section 60, 1940 Code of Alabama, and from committing the acts as aforesaid which constitute a public nuisance", and will "appoint a receiver who shall be directed by this Honorable Court to examine, investigate and scrutinize each and every loan of record of each and every borrower whose name or names appear in the records kept by the said respondents; that the receiver determine if usurious interest has been charged upon said loan contracts, and determine the amount of usurious interest collected by the respondents upon each and every loan contract; that receiver be directed to deduct from the principal the usurious interest collected on each and every loan contract; further, that the receiver be directed to examine each and every contract made after the entry of the permanent injunction against the respondents to determine whether or not the respondents are charging a rate of interest in excess of that prescribed by law."
The bill also contains a prayer for general relief.
The material averments of the bill, as amended, are as follows:
That John Patterson is the duly qualified Attorney General of the State and as such *778 brings the action in the name of and for the State; that respondents Larson and Moore are partners in the business known as Tide Finance Company, which maintains an office in the City of Montgomery; that respondent Rice is a resident of Montgomery and is manager of said business; that respondents "are engaged in the business of lending money for themselves and others in Montgomery County, Alabama, and have been so engaged for a period of 12 months next before the filing of this bill of complaint"; that respondents "have in the conduct of their business in said county during the 12 months preceding the filing of the bill of complaint, and are now, deliberately, persistently, continuously and intentionally violating the laws of the State of Alabama and in particular Title 9, Section 60, 1940 Code of Alabama, which reads as follows:
"`The rate of interest upon the loan or forbearance of money, goods or things in action, except by written contract, is six dollars upon one hundred dollars for one year, and the rate of interest by written contract is not to exceed eight dollars upon one hundred dollars for one year; and at that rate for a greater or less sum, or for a longer or shorter time';
that constantly and continuously, knowingly and deliberately, the respondents have loaned money to individuals in Montgomery County and exacted from them a rate of interest by written contract in excess of $8 upon $100 for one year; that in making loans in said county during the period of one year next preceding the filing of this bill of complaint the said respondents have charged or received and are now continuously and knowingly charging or receiving high and usurious rates of interest, which said rate of interest so charged or received is greatly in excess of the amount authorized by law to be charged, exacted or received for making such loans"; that respondents "in carrying on and engaging in their business as above set forth have used the courts of this State in enforcing and collecting usurious interest in violation of the provisions of Title 9, Sec. 65, 1940 Code of Alabama, which provides as follows:
"`§ 65. Interest on usurious contracts; recovery back of usury.All contracts for the payment of interest upon the loan or forbearance of goods, money, things in action, or upon any contract whatever, at a higher rate than is prescribed in this chapter, are usurious, and cannot be enforced either at law or in equity, except as to the principal. Nor shall the borrower of money at a usurious rate of interest ever in any case in law or equity be required to pay more than the principal sum borrowed, and if any interest has been paid the same must be deducted from the principal and judgment rendered for the balance only. Provided, however, that the defense of usury may not be pleaded against a holder of any negotiable instrument, in due course.'";
that "the parties contracted with and sued by the respondents are largely ignorant and not advised of their legal rights and are not able to employ counsel to represent them; that the contracts of loan are prepared by the respondents and innocently or ignorantly executed by the borrowers and do not show on their face the usurious interest which is being charged; that because of the inability of the borrowers to retain legal counsel and by reason of their ignorance of the law and their legal rights, the borrowers allow judgments by default to be rendered against them in said actions; that in and by such judgments, in addition to obtaining a judgment for money to which they have no legal right in that proper credit for interest is not given and in and by such suits, the respondents obtain judgments for attorneys' fees greatly in excess of what would be a reasonable fee had the judgment been rendered for the principal amount of the indebtedness less the amount of interest paid thereon"; that "the State of Alabama in its sovereign capacity is interested in the protection of its citizens, particularly small wage earners, from invasions of their legal rights and *779 from the illegal exaction or extortion of monies which such citizens are not legally required to pay" and "is also interested in preserving the courts of Montgomery County from an abuse of their processes on the part of said respondents in their attempt to use the courts of the County in the manner aforesaid for the purpose of collecting money under the aforedescribed contracts, which is not legally collectible; and the State is also interested that the courts of Montgomery County be so conducted that the trial disposition of legal and meritorious matters coming before said courts be not impeded or hampered, and that the practices of the respondents as described above be effectually restrained"; that respondents "will continue to violate the provisions of the statutes of Alabama set forth above and will continue to exact large sums of money as usurious interest, and will continue to institute * * * vexatious actions in the courts of Montgomery County for the purpose of attempting to enforce, and collect, usurious sums of money and interest, and that the processes of the courts of Montgomery County will continue to be abused by such actions unless restrained therefrom by order, judgment or decree of this Court"; that "it is the established public policy of the State of Alabama to protect the interest and welfare of its indigent and helpless citizens against the ravages of the respondents, and to protect the economic prosperity of its industrial areas, and to further the public faith in the integrity and impartiality of its courts of law; that the acts of the respondents as above described constitute a public nuisance to the citizens of the State of Alabama and will continue to be a public nuisance unless the practices of the respondents be effectually restrained."
The bill is sworn to by John Patterson, the Attorney General.
Upon filing the bill the cause was set down for hearing on the question of granting a temporary restraining order as prayed for. Code 1940, Tit. 7, §§ 1054-1055.
Prior to the hearing, Larson and Moore successively demurred to the bill, moved to strike from the bill certain "prolix and irrelevant allegations", moved to dismiss the bill, filed an amended demurrer to the bill as last amended, and answered the bill.
After the hearing the court rendered decrees denying the motion to strike and the motion to dismiss, overruling the amended demurrer to the bill as last amended, and granting the temporary injunction as prayed for. This appeal is from those decrees. However, the only decrees appealable are those overruling the demurrer (Code 1940, Tit. 7, § 755) and granting the temporary injunction (Code 1940, Tit. 7, § 1057). Accordingly, our consideration at this time will be limited to the appealable decrees. The rule is that "if no provision is made by law for an appeal from an interlocutory decree, such decree may not be assigned for error on an appeal from another interlocutory decree." Fogleman v. National Surety Co., 222 Ala. 265, 267, 132 So. 317, 319; Land v. Cooper, 244 Ala. 141, 142, 12 So. 2d 410; Scott v. Leigeber, 245 Ala. 583, 585, 18 So. 2d 275; Reid v. Williams, 250 Ala. 602, 603, 35 So. 2d 496; Dillard v. Gill, 254 Ala. 5, 6, 47 So. 2d 203; Rush v. Newsom Exterminators, 261 Ala. 610, 614, 75 So. 2d 112.
The part of the decree dealing with the temporary injunction is as follows:
"And the matter coming on further to be heard, is submitted upon the motion of the State for the temporary restraining order prayed for in the bill; upon the testimony taken orally before the Court in support of the motion, and the affidavits of the respondents in opposition thereto. Some seventeen witnesses for the State have testified orally in open court and three affidavits have been introduced by the State.
"The respondents, on their part, have submitted some forty-two affidavits, which have been filed in the cause and read to the Court; and the matter now being submitted *780 for ruling on the State's motion for a temporary restraining order, the Court is of opinion that the order should issue as prayed for, and in so ruling the Court finds from the record now before it:
"That all the material and essential averments of the bill are sustained by the proof; and that the record before the Court shows clearly, and without real dispute, that the acts of the respondents complained of are unlawful; that they are against the ancient and established public policy of the State that usury is odious in law; that said Acts constitute a public nuisance with resulting injury to the public welfare and to all persons who come within the sphere of its operation.
"The Court finds thar (sic) during the period of time set forth in the bill, respondents have continuously and intentionally exacted unlawful interest from their borrowers, contrary to the usury laws of Alabama. It appears without dispute that every transaction between the lenders and their borrowers, testified about before the Court, are infected with the taint of usury from start to finish. The testimony proves, and there is no dispute as to this, that the rates of interest charged the borrowers by the respondents were unconscionable and exorbitant.
"It is shown by the uncontroverted evidence that the rate of interest charged by the lender and paid by one borrower was 700 per cent per annum. Another borrower was charged and paid 693 per cent per annum; another 624 per cent per annum; another 537 per cent per annum; yet another 480 per cent per annum, and another 416 per cent per annum. Interest charges ranging anywhere from 272 per cent per annum to 412 per cent per annum were everyday entries on the loan company's books.
"There is no doubt from the testimony that at all times mentioned in the bill the respondents were conducting their lending business in such a way as to deliberately and intentionally exact unlawful interest from their necessitous borrowers.
"The evidence also reasonably satisfies the Court that most of those who made loans from the lending company were in the lower-income brackets of life; were people of little education; some of them positively ignorant, and few of them had any idea whatever what the lawful rate of interest was in their own State, and most of them had only a faint conception, if any, what a promissory note was and what were the legal consequences affecting them when they signed one. All of the borrowers who testified had no assets except their earning power and could not obtain loans from the commercial banks.
"It is plain to the trial judge, after seeing the witnesses on the stand, watching their conduct and demeanor, and listening to their testimony in open court, that they are people who do not fully understand what their legal rights are. They are people who can be easily imposed upon.
"The manner in which the loan company conducted its business of lending small sums of money, ten to fifty dollars, to necessitous borrowers was certainly a nuisance to the public and their way of dealing with their customers has resulted in injury to the public welfare.
"The testimony shows that collectors of the company frequently made visits to the homes of their customers at unreasonable hours of the night, and generally long after usual business hours; that some of the borrowers would be called to the doors of their little homes in the midnight hours, or in the eerie hours before dawn, and have lights flashed in their faces and be confronted with imperative demands for the payment of unconscionable interest.
"It appears from the testimony of one witness that Company collectors came and took him from his job and brought him in a Company car to its office and required him to make a payment on his loan. The Court is convinced that this particular witness *781 did not go with the agents of the Company voluntarily or with eagerness but went through fear and intimidation.
"It further appears that the testimony of some of the witnesses that collectors for the Company would come to their homes and when advised that the borrower was without money, would force him to draw a check on one of the local banks, when it was known to the collectors that the borrower did not have, and never did have any banking account. Suggestions were made to the borrower, if he would sign the check presented to him by the collectors he could pick it up the next day, or the day after, and if he did not then pay the check, it would be turned over to the `sheriff of the county'.
"It appears from the testimony that threats of garnishment against the borrowers were frequently made; and there is testimony to the effect that in order to escape from being garnished, the borrower would quickly beat it to the debtors' court for relief. Approximately 70 per cent of the witnesses who testified at the trial were in the debtors' court. While there is a little testimony that the transactions with the loan company did not drive all of them into the federal debtors' court, the Court is convinced that the charging and collecting of unlawful interest, at extortionate rates as listed above was a materially contributing and powerful factor in the borrowers taking refuge in the federal debtors' court. Undoubtedly the manner in which the respondents conducted their business caused countless necessitous borrowers to go into the federal debtors' court or take advantage of the bankruptcy act.
"The evidence for the State shows,and no witness was introduced by the loan company to deny this,that calls upon the borrowers in their homes after bed-time at night were common, accompanied with threats to cart off the furniture of borrowers, and on one occasion to seize the furniture of a borrower's relative. Quite often the Company collectors came en masse. One borrower testified that three of them descended upon him (sic) home and family in the dark hours of the night and that one of his friends had to advance a two-dollar payment in order to be rid of the collectors. The borrower watched the proceedings from a safe distance in the shadows across the street.
"The testimony shows that, with perhaps one exception, every borrower applying for a loan was pressed by the need of money for the necessities of life. Sometimes loans were needed to pay past-due rent and prevent eviction; sometimes to provide food for the hungry family of the borrowers; to provide clothing; to pay for utilities; sometimes to pay doctors, medical and hospital bills, and funeral expenses. All through the testimony the proof runs that practically all of the borrowers were in needy financial condition, could not get loans from the regular banks and could get money only from a small loan company.
"The evidence for the loan company consists solely of affidavits. It and its co-defendants did not offer oral testimony. The Court has carefully considered each of the affidavits, has permitted respondents' counsel to read them in open court, and has read the affidavits itself. The affidavits are entitled to little, if any, weight. They are all of the same likeness and are drawn up in `mass production.' They do not ring true. They do not speak the language of the type of borrowers who were customers of the loan company. There is hardly a sentence in any of the affidavits that represents the thoughts of the affiantthat is, are clothed in the words customarily used by the affiants.
"Phrases used such as these are the phrases of company agents or legal advisors; `immediately preceding the execution', etc; `completed all contract arrangements', etc.; `the money was urgently needed', etc.; `to meet an indebtedness incurred', etc.; `I am proud to have done business', etc.; `I am at the present time indebted', etc. These phrases are not the *782 words and phrases of small wage earners, of people with the limited education stated by the borrowers in their affidavitsthese are the words and phrases of men familiar with the complexities of the money lending business and with legal terminology. They are not the words usually found in the vocabularies of mechanics' helpers, cooks, housemaids, day-laborers, janitors, cowdrivers, and small tenant farmers, and people following like lines of work who are the affiants here.
"More than fifty per cent of the affidavits sworn to before the same notary contain this paragraph word for word, only the amount varying:
"`Mr. Mathis of Tide Finance Company has always been very courteous to me and he has never threatened me with harassment, bodily harm or legal action in connection with any of the loans. On the contrary, I have at all times been rendered courteous service and I am proud to have done business with the Tide Finance Company. No one forces me to borrow money from this Company and I do not borrow any more than is necessary for me to meet my debts. I repay my loan to the company in payments of $4.00 every other week.'
"The Court is impressed, after hearing all the evidence in this case, with the fact that the loan company has conducted its lending business with studied contempt for our usury laws; and has conducted its business in such manner as not only to affect its borrowers, but also to affect all the people who have come within the range of its operations. Their business methods have created a public nuisance by their charging and collecting unlawful and unconscionable interest from their more than 1050 customers; the visits in the dead of night, of their collectors; their threats against borrowers; their forcing them to sign blank checks on banks in which they had neither accounts nor money, and making them subject to the pains and penalties of the criminal laws,these things are a public nuisance.
"These actions, and others proved by the evidence in this case, present an evil and repulsive picture of oppression and intimidation; of the exaction from lowly and humble folk of unconscionable and extortionate rates of interest on small loans; of intentional flouting of the wise public policy of the State; of taking unlawful advantage of the necessities of financially distressed people, pictures which in their ugliness are hardly shown by any other record found in the books and files of this court.
"This court of equity in the face of the odious conditions shown by the record in this case would be unworthy of its ancient title, `a court of conscience', if it stood idly by and failed now to use its restraining and injunctive powers to stop the oppressive practices of the loan company shown by this record.
"The restraining order prayed for by the State cannot in equity and good conscience, in the interest of the public welfare, be denied. The Register will enroll the following decree:
"This matter now coming on to be heard, is submitted by the parties upon the motion of the complainant for a temporary restraining order against the respondents, upon the pleadings and proof, and upon the testimony taken orally before the Court, and upon the affidavits offered in evidence by the respective parties, and upon a consideration of the same, the Court is of opinion that the temporary restraining order prayed for should issue. It is, therefore,
"Ordered, Adjudged and Decreed by the Court that each of the defendants to this suit, their agents, servants and employees, while acting in the line and scope of their duties, are enjoined and restrained from making or entering into any oral contract or agreement, whereby the rate of interest upon the loan or forbearance of money, *783 goods, or things in action, exceeds the rate of six dollars upon one hundred dollars for one year, or whereby the rate of interest by written contract exceeds the sum of eight dollars upon one hundred dollars for one year, or exceeds that rate for a greater or lesser sum or for a longer or shorter time; and, on loans and contracts presently in existence on which interest has been charged in excess of the lawful rate, the said respondents, and each of them, their servants, agents or employes while acting in the line and scope of their employment, are enjoined and restrained from filing suit thereon for more than the principal amount of the obligation, with proper credit given for all prior interest payments.
"All other questions reserved."
It is apparent from reading the bill that relief is not sought on the basis of appellants' collection methods but mainly on the grounds that appellants have been, and are now, deliberately, persistently, continuously and intentionally violating the usury statutes of Alabama in lending money to necessitous borrowers who "are largely ignorant and not advised of their legal rights and are not able to employ counsel to represent them", and that appellants are using the courts of this state in enforcing collection of such usurious interest. In this connection, it is to be noted that a good part of the trial court's findings deals with appellants' collection methods although there is no allegation with respect thereto. It appears to be established by the evidence that those allegations charging violations of the usury statutes are true. However, the allegations with respect to appellants' use of the state's courts in enforcing collection of such usurious interest are not sustained by the evidence; nor is there any finding by the trial court with respect thereto.
In this posture of the case the principal question presented at this time, as we see it, is whether a lender of money who deliberately, persistently, continuously and intentionally charges highly usurious rates of interest on short term small loans made to necessitous borrowers who "are largely ignorant and not advised of their legal rights and are not able to employ counsel to represent them", may be enjoined from so doing. The answer to this question depends upon whether such acts are violative of the established public policy of this state and constitute a public wrong or nuisance subject to abatement by injunctive process.
In State ex rel. Embry v. Bynum, 1942, 243 Ala. 138, 9 So. 2d 134, this court unquestionably approved the proposition that the operations of a loan company, engaged in the business of habitually and persistently making short term small loans at highly usurious rates of interest to a class of ignorant, necessitous borrowers who are unable to assert theirs rights effectively, can constitute a public wrong or nuisance subject to abatement by injunction. Such holding finds support in decisions from several other jurisdictions, although there is authority supportive of a contrary holding. For cases supportive of the holding in Bynum see: State ex rel. Beck v. Associates Discount Corporation, 1956, 162 Neb. 683, 77 N.W.2d 215; State ex rel. Moore v. Gillian, 1940, 141 Fla. 707, 193 So. 751; State ex rel. Goff v. O'Neil, 1939, 205 Minn. 366, 286 N.W. 316; Commonwealth ex rel. Grauman v. Continental Co., 1938, 275 Ky. 238, 121 S.W.2d 49; State ex rel. Beck v. Basham, 1937, 146 Kan. 181, 70 P.2d 24; State ex rel. Smith v. McMahon, 1929, 128 Kan. 772, 280 P. 906, 66 A.L.R. 1072. For cases supportive of a contrary holding see: State ex rel. Boykin v. Ball Investment Co., 1940, 191 Ga. 382, 12 S.E.2d 574; Ex parte Hughes, 1939, 133 Tex. 505, 129 S.W.2d 270; Means v. State, Tex.Civ.App. 1934, 75 S.W.2d 953; Commonwealth v. Stratton Finance Co., 1941, 310 Mass. 469, 38 N.E.2d 640; People v. Seccombe, 1930, 103 Cal. App. 306, 284 P. 725.
*784 In State ex rel. Embry v. Bynum, supra [243 Ala. 138, 9 So. 2d 139], it is said as follows:
"The public policy of this State condemns usurious contracts as `tainted with an evil * * * intent' Barclift v. Fields, 145 Ala. 264, 41 So. 84, 85 and `offensive to the policy and positive mandate of the law.' Hawkins v. Pearson, 96 Ala. 369, 11 So. 304; McCormick v. Fallier et al., 223 Ala. 80, 134 So. 471. This public policy is supported by Divine Authority, Exodus, Ch. 22, V. 25, and the common law. * * *
"* * * The right of the state to injunctions to protect its established public policy is sustained in Commonwealth [ex rel. Grauman] v. Continental Co., 275 Ky. 238, 121 S.W.2d 49; State [ex rel. Moore] v. Gillian, 141 Fla. 707, 193 So. 751; State ex rel. Goff v. O'Neil, 205 Minn. 366, 286 N.W. 316, and in principle by our case Try-Me Bottling Co. et al. v. State, 235 Ala. 207, 178 So. 231.
"Our conclusion, therefore, is that the state in pursuance of its established public policy in protecting the interest of its indigent and helpless citizens against the ravages of the loan shark pest, the economic prosperity of its industrial areas, the furtherance of the public faith in the integrity and impartiality of its law courts, in the administration of justice therein, may invoke the aid of its courts of equity to enjoin the unlawful practices of the defendants as a public nuisance, restrain and enjoin them from proceeding in the law courts to enforce said void contracts, and keep them in subjugation to the law." From State ex rel. Beck v. Associates Discount Corporation, supra [162 Neb. 683, 77 N.W.2d 229], (decided after the Bynum Case), is the following:
"The disastrous effects of usury are universally recognized and in every jurisdiction the state has, as a matter of public policy, enacted some measure of protection for its people from the harsh result and injury to them arising from unconscionable and unlawful exactions for the use of money imposed upon its residents, many of whom are obscure, economically distressed, and unable to protect themselves. The state itself, represented by the Attorney General, has therefore of necessity, in order to protect its people and prevent public wrongs, emerged as the proper party whose duty it is to represent all the public in defense of the state's own sovereignty and bring such actions as that at bar. In doing so, courts have generally recognized the state's right to the equitable remedies of injunction and receivership as a proper and effective method of controlling unlawful lenders under statutes comparable with our own. * * *"
The Supreme Court of Minnesota, in State ex rel. Goff v. O'Neil, supra [205 Minn. 366, 286 N.W. 318], relied on in Bynum, had this to say:
"The next proposition is, Does the complaint state a cause of action for injunctive relief? It is conceded that our statutes forbidding the taking of usury do not subject the transgressor to a penalty by way of imprisonment or fine. So there is no remedy for usury under the criminal law. The plaintiff contends that the business of usury as carried on by defendant is in the nature of a public nuisance and as such may properly be enjoined. * * * As stated, usury, by our statute, is not made a crime, so the state may not put a stop to the practice by criminal prosecution. However our usury legislation clearly establishes the policy of the state outlawing the taking of usury. It is forbidden. Why? In the interest of public welfare, to protect the helpless and the poor, always present in every community, from the rapacity of the money lenders who exact usury. On principle, where there is no adequate remedy either by criminal law or by the ordinary civil suit, equity may properly come to the rescue by appropriate injunctive relief. * * *
"In opposition defendant cites People v. Seccombe, 103 Cal. App. 306, 284 P. 725. *785 There a demurrer to the complaint in a suit for injunction against a usurer was sustained, because no sufficient facts were alleged, but mere conclusions of law. In the case of Means v. State, 75 S.W.2d 953, 954, Court of Civil Appeals, Texas, a temporary injunction was vacated on appeal. The state filed no brief. The action was to enjoin Means from operating as a loan broker or money lender in the county because he had not been licensed as such, as the Texas law required. It was also alleged that Means collected usurious interest on the money loaned. On the appeal it was held that there was no evidence that Means was a loan broker or money lender of the sort that was required to be licensed, and the court said: `Contracts for the payment of usurious interest are void. The offended individual has his remedy by suit against the lender for recovery of double the amount of the usurious interest paid. See article 5073, R.S.1925. Whether in the future the state shall be empowered to enjoin the business of money lending at usurious rates of interest under the conditions here shown addresses itself to the sound consideration of the Legislature.' Neither case presents the same situation as that stated in the complaint in the instant case. It appears from this complaint that the remedy available to defendant's victims is ineffective to stop the practice. They have not the means to employ a lawyer. The amounts involved are so small that to seek to recover what has been illegally extorted or defend against the obligation given for the loan would cost more than the amounts involved, besides the loss of time and the annoyance of litigation. Unless the state may enjoin a business in which every transaction is a flagrant violation of the usury law enacted for the protection of the many necessitous borrowers of trifling amounts, there is no effective remedy for the enforcement of the law. Injunction has been resorted to in respect to repeated and persistent infractions of other laws than those forbidding usury. (Citing cases) * * *
"No danger is to be apprehended that courts will grant injunctive relief against violators of statutes where there is an adequate remedy at law. In the case at bar there is no remedy by fine or by imprisonment; and, even were there such, the nature of defendant's business is such that the remedy given his victims for the usury exacted is ineffective because of their helplessness and inability to make use thereof."
From the Kansas case of State ex rel. Beck v. Basham, supra [146 Kan. 181, 70 P.2d 25], cited with approval in the Bynum Case, is the following:
"It has become the public policy of this state to limit interest rates. This is deemed prudent and necessary to prevent grasping persons from taking undue advantage of those in need of money, many times to their financial ruin and to the detriment of our people as a whole. * * *
"The evidence clearly shows, and the court found, that defendant is in the business of violating these statutes. * * *
"On his behalf it is conceded, in effect, that defendant is conducting a business in flagrant violation of our valid statutes and in violation of the long-time, well-settled public policy of this state, but appellee contends that nothing can be done about it for two reasons: (1) Because the statute does not make the charge of usury a crime and fix a penalty therefor. This point was considered in State ex rel. [Beck] v. McMahon, supra, and held not to be a bar to an action for injunction by the state. Indeed, the fact a criminal action cannot be maintained makes injunction all the more appropriate, since the state does not have that remedy for the enforcement of the statute. (2) It is contended that defendant has not conducted his business in such an offensive manner as to amount to a nuisance, as was the case alleged in State ex rel. [Beck] v. McMahon, supra. *786 This argument appears to be predicated upon the view that statutes of this state designed for the public good and evidencing long-continued public policy may be openly and notoriously violated with impunity so long as the violator is pleasant or gracious in his manner of violating the statute. * * *
"Much is said in the briefs of appellee about the conduct of defendant not amounting to a nuisance. That term has been many times defined, perhaps sometimes with too much refinement. We are not convinced defendant's conduct has to be characterized as a nuisance before it can be enjoined, but if so, there is authority so denominating it. In State ex rel. [Vance] v. Crawford, 28 Kan. 726, 733, 42 Am.Rep. 182, it was said: `The repeated, continuous and persistent violations of the statutes, are what makes then nuisances.' This the defendant, by his own testimony, establishes that he has done and is doing. In State v. Rabinowitz, 85 Kan. 841, 847, 118 P. 1040, 1042, 39 L.R.A.,N.S., 187, it was said: `At the common law acts done in violation of the law, or which are against good morals or public decency, and which result in injury to the public, constitute a public nuisance.
"It is fundamental that courts are open to the state for an action either in its sovereign capacity or as a corporate entity. (59 C.J. 299.) The sovereignty of a state embraces the power to execute its law. The state, on the relation of the Attorney General, may maintain an action to enjoin the flagrant violation of its law. See, State ex rel. [Beck] v. McMahon, supra. * * *
"There is no reason defendant should be permitted openly, notoriously, and flagrantly to violate our valid laws enacted for the benefit of our people. The state would be weak indeed if it were powerless to prevent it. Criminal prosecution is not available. Injunction is the only remedy. That remedy can be and should be enforced. * * *"
From another Kansas case, State ex rel. Smith v. McMahon, supra [128 Kan. 772, 280 P. 907], also cited with approval in the Bynum Case, we quote the following:
"* * * Has the law no adequate preventive for such a deplorable condition of affairs? Counsel for defendants answer with a confident negative. He says there is for each of the hundreds of borrowers a plain and adequate remedy at law, and that the exaction of usurious interest is of no concern of third parties, not even of the state itself. Is that so? We have a statute which limits the contract rate of interest to 10 per cent. per annum. This statute provides that any person who contracts for a greater rate of interest than 10 per cent per annum shall forfeit the excess; and in addition thereto shall forfeit a sum of money to be deducted from the amount due for principal and lawful interest equal to the amount of interest contracted for in excess of 10 per cent. per annum. R.S. 41-102.
"But according to plaintiff's allegations, the truth of which is conceded by the demurrers, this statute is systematically set at naught by the defendants. Between money lender and borrower, of course it is altogether ineffective until invoked in some lawsuit. And according to the plaintiff's allegations such a lawsuit will not arise once in every hundred times the usurious toll is taken from the wages of his victim. The wage-earner has no time to attend court nor means to employ a lawyer to invoke the defense to the usurer's claim accorded by this statute. He must earn wages every working day to support his family. If garnishment proceedings are instituted which will bring his employer into court on matters of no concern to that employer, the unfortunate debtor is discharged. This dread consequence to the debtor can only be avoided by continued submission to defendants' usurious exactions.
*787 "It is undeniable that many an isolated oppression is practiced on a debtor by an exacting creditor for which the law furnishes no practical relief. In the situation portrayed by plaintiff, it is perfectly obvious that for the hundreds of indigent debtors held in financial peonage by defendants the remedy supplied by law is pitifully inadequate; and the ruling in Pritchett v. Mitchell, 17 Kan. 355, 22 Am.Rep. 287, that the exaction of usury is a mere contractual matter of no concern to anybody but the parties themselves is imperatively in need of revision in the light of the complex social and economic conditions brought about by the industrial development in the half century since that doctrine was announced. The long-continued subjection of hundreds of indigent debtors to the usurious exactions of defendants by keeping them in fear of losing their jobs if they should have the temerity to assert the rights accorded them by the beneficent statutes of this commonwealth presents a situation which cannot be tolerated, and one which quite justifies the institution of this litigation by the state itself. In the State ex rel. v. Howat, 109 Kan. 376, 198 P. 686, 25 A.L.R. 1210, where the right of the state to initiate litigation over matters primarily of private concern but secondarily of far-reaching consequence to the public was thoroughly discussed, an excerpt appears from the Supreme Court of Illinois worth repeating here:
"`"It is one of the most useful functions of a court of equity that it may give complete and adequate relief against acts which will constitute nuisances. * * *
"`"* * * The public authorities have a right to institute the suit where the general public welfare demands it and damages to the public are not susceptible of computation. The maintenance of the public health, morals, safety, and welfare is on a plane above mere pecuniary damage, although not susceptible of measurement in money, and to say that a court of equity may not enjoin a public nuisance because property rights are not involved would be to say that the state is unable to enforce the law or protect its citizens from public wrongs." [Stead v. Fortner] 255 Ill. 474-477, 99 N.E. 683.' Pages 387, 388, of 109 Kan., 198 P. 691, 692.
"The same principle was well stated in the case of In re Debs, Petitioner, 158 U.S. 564, page 586, 15 S. Ct. 900, 907, 39 L. Ed. 1092, where it was said:
"`It is obvious from these decisions that while it is not the province of the government to interfere in any mere matter of private controversy between individuals or to use its great powers to enforce the rights of one against another, yet, whenever the wrongs complained of are such as affect the public at large, and are in respect of matters which by the constitution are entrusted to the care of the nation, and concerning which the nation owes the duty to all the citizens of securing to them their common rights, then the mere fact that the government has no pecuniary interest in the controversy is not sufficient to exclude it from the courts, or prevent it from taking measures therein to fully discharge those constitutional duties.'
"The courts are not helpless to put a stop to such a nefarious business as that of which plaintiff complains when that business has reached the widespread prevalence it has attained in the principal industrial communities of the state. What in any case is the justification for equitable interference with the multifarious doings of men but the natural reaction of the judicial conscience towards some peculiar evil for which the law by reason of its universality is inadequate to correct? From the foundation of our commonwealth it has been a matter of civic pride that one of this state's primary concerns has been that the poor man shall have a fair chance to better his material condition. To that end we have made the family homestead immune to judicial process in invitum. The household goods of the family, the tools of the workman, and the needful agricultural chattels *788 of the husbandman are generously exempted from execution sale. R.S. 60-3501 et seq. So, too, 90 per cent. of the current wages of a laborer who is the head of a family are protected from garnishment as prescribed in R.S. 60-3495. * * *
"Precedents for the particular form of redress sought by plaintiff to suppress the evil complained of are rare, but in State v. Martin, 77 N.J.L. 652, 73 A. 548, 24 L.R.A., N.S., 507, 134 Am.St.Rep. 814, 18 Ann.Cas. 986, the New Jersey Court of Errors and Appeals went a good deal further than we are asked to do in these cases. It held that, although the taking of usurious interest was not a criminal offense in New Jersey, yet interest in excess of 6 per cent. per annum being forbidden under a civil penalty, a loan office where the exaction of such usurious interest was systematically practiced was a disorderly house, for the maintenance of which the usurer could be indicted and punished. In the opinion the court said:
"`The title of our statute is "An Act against usury." 3 Gen.Stat. 1895, p. 3703. The provision of its first section is "that no person or corporation shall, upon contract, take directly or indirectly, for loan of any money, wares, merchandise, goods and chattels, above the value of $6 for the forbearance of $100 for a year, and after that rate for a greater or less sum or for longer or shorter time." The object disclosed in the title of the act is the prevention of usury; the method by which the legislature provides for the carrying of that object into effect is by enacting an express prohibition against taking it. Counsel argues that a violation of this mandate of the statute by a person loaning money does not constitute an unlawful act, first, for the reason that the statute imposes no penalty upon him for so doing. * * *
"`The statement that the statute does not impose any penalty upon a person who takes usury is not accurate; for the second section of the act deprives him of the power to enforce the payment of any interest on his loan, and entitles the borrower to have the amount of the usury deducted from the principal of the loan in case usury has been paid. * * * The fact that the statute imposes no penalty, except the deprivation of the money which the statute prohibits the lender from taking, affords no ground for holding that the taking of usury is not unlawful.' Pages 653, 654, of 77 N.J.L., 73 A. 549.
"It will thus be seen that the exaction of usurious interest has been denounced as unlawful and penalized by our Legislature although it is not one of the specific offenses enumerated in our Crimes Act. It is not only illegal, but it is a grievous antisocial iniquity (Marshall v. Beeler, 104 Kan. 32, 178 P. 245), and, when its practice assumes the proportions and prevalence alleged by the plaintiff, a court of equity should not hesitate to suppress it.
"* * * The Kansas statute does prohibit usury and does prescribe penalties (civil penalties inuring to the debtor), and, the practice of usury being unlawful in this state, upon sufficient aggravation it may be suppressed by injunction."
We do not understand appellants to question the decision in the Bynum case. Rather, in their argument they seek to distinguish that case from the case at bar on the grounds that the facts are dissimilar and that the status of the law has changed since the Bynum decision.
In their very able brief appellants analyze the allegations of the bill in the Bynum case in great detail to demonstrate the differences in the factual situation there and the factual situation presented by the pleadings and proof in the case at bar. While there are differences, it should be borne in mind that the question here is whether the principles laid down and approved in the Bynum case are applicable to the case now before us. The dissimilarity in some of the facts is not necessarily controlling.
*789 The principal distinction drawn by appellants is that the allegations of the bill in the Bynum case show that the loan companies there had used the courts to enforce collection of void usurious loan contracts and in so doing had clogged the courts' dockets, while in the case at bar the loan contracts are not void and there is no evidence that the defendants have so used the courts. Appellants' view is that in the Bynum case it was the loan companies' abuse of the courts in the respect indicated which rendered the companies' operations a public nuisance and not the persistent exaction of usurious interest from necessitous borrowers who were unable to assert their rights effectively.
With this we are unable to agree. The basic activity which the court condemned as a public nuisance was the habitual and persistent exaction of usurious interest from a class of borrowers who were helpless to assert their rights. It seems to us that this is made clear from a consideration of the opinion itself and the cases there relied on. Although the aggravation of the defendants' activity by their abuse of the courts was censured in the opinion, we do not think such abuse was the underlying basis for the court's conclusion that the defendants' operations constituted a public nuisance.
Appellants' next argument is that equity should decline jurisdiction of this case because the state now has an adequate remedy at law which was not available at the time the Bynum case was decided. The insistence is that the state now has a full and adequate remedy at law for combatting any illegal operations of small loan companies by virtue of the provisions of the Harris Act, originally enacted in 1945 and last amended in 1951 (Act No. 159, appvd. June 23, 1945, Gen. Acts 1945, p. 200; Act No. 787 appvd. Sept. 11, 1951, p. 1385; Code 1940, Tit. 5, §§ 263-275, Pocket Part).
The Harris Act was enacted for the purpose of licensing those engaged in the small loan business and providing a measure of supervision over the activities of those so engaged. The Act contains a number of provisions regulating the conduct of such business but the charging of usurious interest is not specifically forbidden. To administer the provisions of the Act, a bureau of small loans, headed by a supervisor, was created (§ 267). The last section of the Act specifies that the violation of any of its provisions shall be a misdemeanor (§ 275). As a further means of enforcing its provisions the Act provides: "The supervisor may, either before or after the suspension or revocation of any license, apply to any court of competent jurisdiction for an injunction or other order enjoining or prohibiting any person from violating any of the provisions of this chapter or any rules, regulations or orders of the bureau, and upon a proper showing the court shall issue such injunction or order as may be deemed proper" (§ 267).
Appellants insist that the state has an adequate means of policing the small loan companies through the action of the bureau of small loans and has no need to resort to a suit in equity for injunctive relief. The fallacy of this argument appears from a careful reading of the Harris Act itself. As already noted, none of its provisions specifically forbids the charging of usury. Section 275 provides as follows: "The charging of interest at an interest rate in excess of eight percent (8%) per annum shall not be deemed to be a criminal offense but nothing contained in this chapter shall be construed as legalizing the charging of interest at a rate in excess of eight percent (8%) per annum."
The activity which is sought to be enjoined in this case is the habitual and persistent exaction of usury from a class of borrowers who are unable to assert their rights effectively. This type of activity is not in itself violative of the provisions of the Harris Act, and the sanctions of the *790 Act cannot be used to suppress it. It is our conclusion, therefore, that the state does not have an adequate remedy at law under the provisions of the Harris Act so as to prevent resort to equity for relief in this case.
The decree provides that "on loans and contracts presently in existence on which interest has been charged in excess of the lawful rate, the said respondents * * * are enjoined and restrained from filing suit thereon for more than the principal amount of the obligation, with proper credit given for all prior interest payments." The undoubted meaning of "proper credit" is that "if any interest has been paid the same must be deducted from the principal and judgment rendered for the balance only", as provided in § 65, Tit. 9, Code 1940, supra. It seems to us that if the equity court has the power to abate by injunction the operations of a loan company engaged in habitually and persistently making short term small loans at highly usurious rates of interest to a class of ignorant, necessitous borrowers who are unable to assert their rights effectively, a necessary adjunct thereto, in order to do complete justice, is the power to prohibit the loan company from using the courts of this state in collecting "more than the principal amount of the obligation, with proper credit given for all prior interest payments." The obvious effect of this restraint is to invoke, on behalf of the stated class of borrowers, the prescription of § 65, Tit. 9, Code 1940, supra, that if any usurious interest has been paid it "must be deducted from the principal and judgment rendered for the balance."
With reference to the authority of the Attorney-General to bring this suit, we quote the following from appellants' brief:
"The Governor of Alabama, in whom is vested the supreme executive power of the State, has the constitutional responsibility to take care that the laws of the State be faithfully executed, and the Attorney General of Alabama is without authority to institute and prosecute, in the name of the State, suits and other proceedings at law or in equity contrary to and in direct violation of the orders of the Governor.
"The Constitution of the State of Alabama provides for the creation of an executive department, to consist, among others, of a Governor and an Attorney General. Art. 5, Sec. 112, Ala.Const.1901. The supreme executive power of the State is vested by our Constitution in the Governor, art. 5, Sec. 113, Ala.Const. 1901, and to the Governor alone is delegated the power and responsibility to take care that the laws be faithfully executed. Art. 5, Sec. 120, Ala. Const.1901.
"The Legislature has authorized the Attorney General to institute and prosecute, in the name of the State, all suits and other proceedings in law or in equity necessary to protect the rights and interests of the State. Tit. 55, Sec. 229, Ala.Code 1940. The Legislature has further specified that all litigation concerning the interest of the State shall be under the direction and control of the Attorney General. Tit. 55, Sec. 244, Ala.Code 1940. There is, of course, constitutional authority for this power, since our Constitution provides that the Attorney General shall perform such duties as may be prescribed by law, art. 5, Sec. 137, Ala. Const.1901; and the constitutionality of the foregoing Code sections has been upheld in cases in which the point was specially raised by demurrer that the Attorney General was without authority to institute the proceedings since, for aught that appeared, he acted without the direction or consent of the Governor. Try-Me Bottling Co. v. State, 235 Ala. 207, 178 So. 231; Montgomery v. Sparks, 225 Ala. 343, 142 So. 769; McDowell v. State, 243 Ala. 87, 8 So. 2d 569; State ex rel. Carmichael v. Jones, 252 Ala. 479, 41 So. 2d 280.
"We do not here contend that it is necessary for the Attorney General to allege that he is authorized by the Governor to institute suits, nor do we raise the issue as to whether the Attorney General, under our Constitution, is empowered to institute suits *791 without the consent or authority of the Governor; however, we respectfully urge that under our Constitution the Governor is the chief law enforcement officer, has vested in him the supreme executive power of the State, and has the constitutional responsibility to take care that the laws of the State be faithfully executed, so that the Attorney General of Alabama is without authority to institute and prosecute suits in the name of the State contrary to and in direct violation of the orders of the Governor; and to the extent that they might purport to authorize such action by the Attorney General, Tit. 55, Sec. 229, Ala.Code 1940, and Tit. 55, Sec. 244, Ala.Code 1940, would be unconstitutional. Board of Revenue of Jefferson County v. State, 172 Ala. 138, 54 So. 757; Parke v. Bradley, 204 Ala. 455, 86 So. 28; art. 5, secs. 112, 113, 120, and 121, Ala.Const. 1901.
"The appellants moved to dismiss the bill of complaint and demurred to the bill of complaint on the ground that, for aught that appeared, the Attorney General acted contrary to and in direct violation of the orders of the Governor in instituting this action. * * *"
At the present stage of the case we are not called upon to decide the specific point raised. Appellants apparently agree that the Attorney-General is authorized to bring the suit unless he has acted "contrary to and in direct violation of the orders of the Governor." Assuming, without deciding, that the suit cannot be maintained if such orders are given, we see no necessity of the bill negating such action by the Governor.
The decrees overruling the amended demurrer to the bill as last amended and granting the temporary injunction are due to be affirmed.
Affirmed.
SIMPSON, STAKELY, MERRILL and COLEMAN, JJ., concur.
LIVINGSTON, C. J., and LAWSON, J., concur specially.
LIVINGSTON, Chief Justice, and LAWSON, Justice (specially concurring).
We agree with the holding of the court to the effect that the demurrer was overruled without error. We are also in agreement with the court's action in upholding the temporary injunction ordered by the trial court. However, our agreement on this phase of the case is grounded on the belief that the proof shows that the overall manner in which appellants have conducted their business constitutes a public nuisance subject to being enjoined by the equity courts of this state in a suit instituted on behalf of the State at the instance of the Attorney General.
We do not understand the court to hold that the charging and collection of interest in an amount in excess of that provided by law, standing alone, is sufficient to constitute a public nuisance subject to injunctive relief. | July 26, 1957 |
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