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90f6181c-8db0-483e-bfaa-7f5909647d78 | Patterson v. Seibenhener | 137 So. 2d 758 | N/A | Alabama | Alabama Supreme Court | 137 So. 2d 758 (1962)
Gladis PATTERSON et al.
v.
Luther H. SEIBENHENER.
6 Div. 651.
Supreme Court of Alabama.
February 1, 1962.
*759 St. John & St. John, Cullman, for appellants.
Thos. A. Smith, Jr., and Robt. A. Sapp, Cullman, for appellee.
SIMPSON, Justice.
This appeal challenges the action of the trial court in refusing the affirmative charge requested by appellants on the two negligence counts contained in the complaint.
The record discloses that Luther S. Seibenhener, appellee, was a passenger in a pickup truck belonging to his employers, and was being transported from the site of a construction job in Fayette County, Alabama, to his home in Cullman County. He was accompanied by two fellow employees, J. D. Pinkard, and the driver, Gladis Patterson, one of the defendants below. The three men traveled together to Fayette County that same morning but had stopped working shortly after noon because of rain. En route back from the job site and approximately four miles north of Berry, Alabama, the truck slid off the highway and appellee received personal injuries.
Plaintiff, appellee, filed suit in the Circuit Court of Cullman, County, Alabama, in three counts. Count I charged defendants with negligence and alleged that "Plaintiff was a passenger for consideration"; Count II charged the defendants with wanton misconduct in injuring the plaintiff, a passenger for consideration; and Count III also charged defendants with negligence and alleged that "the plaintiff was a passenger, not subject to the Guest Act of Alabama". At the close of the testimony the appellants requested the general affirmative charge in connection with Counts I and III. This was refused and the case submitted to the jury *760 on all three counts, without objection being taken to the oral charge of the Court. The jury returned a general verdict in favor of plaintiff, assessing certain damages against defendants.
Appellants insist that the trial Court committed reversible error in refusing the affirmative charge in connection with the negligence counts, on the theory that the appellee's own negligence contributed to his injury, and insist that contributory negligence on the part of appellee was established as a matter of law inasmuch as he and others testified that the driver of the truck was driving on wet, slippery roads during rain, at a rate of speed in excess of 65 miles per hour and the appellee's only effort to protect himself against the danger inherent in this situation was to protest to the driver, when they started the trip, by saying, "By all means take it easy. We've got plenty of time."
It is axiomatic that the only justification for a directed verdict is when the testimony will support no other, and if there is a scintilla of evidence or reasonable inference therefrom adverse to the party requesting it, the same should be refused. 18A Ala.Dig., Trial, (1); Birmingham Elec. Co. v. Bailey, 31 Ala.App. 275, 15 So. 2d 465, cert. den. 244 Ala. 671, 15 So. 2d 469.
A cause should never be withdrawn from the jury unless it appears as a matter of law that a recovery cannot be had upon any view of the facts which the evidence reasonably tends to establish. The issues of negligence and contributory negligence are to be determined by the jury as a general rule and ordinarily should not be disposed of by the Court in a peremptory manner. Birmingham Ry. Light & Power Co. v. Gonzales, 183 Ala. 273, 61 So. 80; Alabama Great So. Ry. Co. v. Bishop, 265 Ala. 118, 89 So. 2d 738, 64 A.L.R.2d 1190.
Appellants apparently concede that here was testimony tending to establish appellee's theory that he was a passenger for consideration. They contend only that the Court erred in refusing the affirmative charge in connection with the negligence counts. In this we cannot agree. Even if the evidence is without conflict, the question whether due care has been used is usually one of fact for the jury. Yates v. DeMo, 270 Ala. 343, 118 So. 2d 924; Shelby Iron Co. v. Bierly, 202 Ala. 422(4), 80 So. 806. This case, to our minds, is typically illustrative of this principle.
Another way of stating the principle, where from the facts shown by the evidence, although undisputed, reasonable men might draw different conclusions as to negligence or contributory negligence, such questions are for the jury, and it is only when the facts are such that all reasonable men must draw the same conclusion that negligence or contributory negligence is ever a question of law for the Court. White Swan Laundry Co. v. Wehrhan, 202 Ala. 87, 79 So. 479, Tennessee Mill & Feed Co. v. Giles, 211 Ala. 44, 99 So. 84; Callaway v. Moseley, 131 F.2d 414 (Ala.C.C.A.); Reaves v. Maybank, 193 Ala. 614, 69 So. 137. In other words, where not only the facts constituting the conduct of the parties, but also the standard of care which they should have exercised, are to be determined the case is entirely one of fact to be decided by the jury. When the proof discloses such a state of facts, whether controverted or not, that, in essaying to fix responsibility for the injury or damage, different minds may arrive reasonably at different conclusions or may disagree reasonably as to the inferences to be drawn from the facts, the right of a party in a negligence action to have a jury pass upon the question of liability becomes absolute. Drew v. Western Steel Car & Mfg. Co., 174 Ala. 616, 56 So. 995, 40 L.R.A., N.S., 890.
The Court in this case was not bound to require the jury to render a verdict as to each count, where the case was submitted on three counts, nor was the Court bound *761 to require the jury to render a verdict on either of the counts specifically. Southern Railway Co. v. Lawler, 11 Ala.App. 241, 65 So. 857, cert. den. Ex parte Southern R. Co., 191 Ala. 663, 66 So. 1009.
In the light of these well recognized principles it is manifest the trial court's refusal to give the affirmative charge for defendants in connection with the negligence counts contained in the complaint was without error.
Affirmed.
LIVINGSTON, C. J., and GOODWYN and COLEMAN, JJ., concur. | February 1, 1962 |
9dd18cd4-2fcc-4d9b-85c6-ed2bb8b9461b | Gilbreath v. Levi | 119 So. 2d 210 | N/A | Alabama | Alabama Supreme Court | 119 So. 2d 210 (1959)
Bill GILBREATH, Adm'r,
v.
W. J. LEVI.
8 Div. 977.
Supreme Court of Alabama.
December 17, 1959.
Rehearing Denied March 24, 1960.
*212 H. G. Bailey, Boaz, for appellant.
Roberts & Orme, Gadsden, and T. J. Carnes, Albertville, for appellee.
STAKELY, Justice.
Under Sections 382, 383 and 384, Title 61, Code of 1940, the appellant, Bill Gilbreath, as Administrator of the Estate of Eschol J. Gilbreath, deceased, filed in the Probate Court of Marshall County, Alabama, his sworn report to the effect that to the best of his knowledge and belief the property of the deceased is insufficient to pay the just debts of the estate of the deceased and that the estate is insolvent. The Probate Judge set a day for the hearing of the report and gave due notice thereof as required by law. This report was contested by a claimant against the estate of the deceased, namely, W. J. Levi (appellee), who held a claim against the estate which had been reduced to judgment after the death of the decedent. A guardian ad litem was appointed by the court to represent and protect the interests of the minor children of the decedent. The guardian accepted the appointment and filed a denial of the averments of the report.
A hearing on the report was had ore tenus before the probate judge, who rendered a decree denying the report of insolvency and holding that the property of the estate, if sold, would be sufficient to pay the just debts of the estate. It is from that decree that the appellant has taken this appeal.
At the hearing of the report of insolvency the administrator, Bill Gilbreath, testified in substance as follows: At the time of the death of the intestate on January 24, 1955, there was on deposit in the bank to his credit the sum of $2,388.44. The decedent had on hand at that time cash and checks amounting to $1,610.90. At the time of his death the decedent was engaged in operating a used car lot in Gadsden, Alabama, and he had fifty-one cars on this lot when he died.
Under an order of the court he sold these fifty-one cars and received the sum of $15,000 therefor. All of these cars were subject to the lien of a "floor plan" to the Atlas Finance Company of Gadsden, Alabama, and that he used this $15,000 to make payment to the Atlas Finance Company on the indebtedness due the Atlas Finance Company under the lien of the aforesaid "floor plan." He used other funds of the estate in paying off the balance of this lien. This claim amounted to $18,780, for which sum the Atlas Finance Company filed a claim against the estate. He used the $2,388.44 in money in the bank to pay off the balance due the Atlas Finance Company and for checks outstanding at the time of intestate's death which the intestate had given before his death for the purchase of cars delivered to him before his death and which went under the lien of the floor plan. These cars were among the fifty-one cars which were on the lot at the time of the death of the intestate. There were cars going in and off this floor plan. The exact amount owed on the floor plan at the time of the intestate's death was $15,000. He paid from the administrator's account an outstanding check to Atlas Finance Company in the sum of $3,180 and that this was for the floor plan. There were at this time other outstanding checks given by the deceased before his death for the purchase of cars which were delivered to the deceased and *213 went upon the car lot prior to his death as follows: F. G. Lowery, $1,675, Hoyt Plunkett, $1,500 and Attalla Motor Company $800. These checks were returned on account of the maker's death and they were paid by the administrator out of the funds of the estate supplemented by funds furnished by the widow of the deceased. Photostatic copies were introduced in evidence which represent a running account of funds paid into and out of the estate.
The running account includes insurance money of the widow of the decedent of which the administrator and the widow have kept a record.
Appellee in this cause filed a suit against the estate of the decedent wherein a judgment was obtained against the administrator in the sum of $2,160 with costs. See Gilbreath v. Levi, 268 Ala. 148, 105 So. 2d 96.
With the exception of the real estate hereafter referred to, there were no assets of this estate other than the fifty-one automobiles, $2,384.44 in cash in the bank and checks amounting to $1,610.90, some notes and accounts which the administrator regarded as worthless with the exception of $600 received by him on one of the notes. All the money that he received from the estate as administrator went to pay the amount due on the floor plan for the fifty-one cars and other cars that went into the floor plan which were represented by outstanding checks as hereinabove set forth.
As administrator he paid some probate court costs in the matter of the court order proceedings in selling the cars and an attorney's fee in the aforesaid court proceedings. He did not have enough money on hand to pay all of this and he had to supplement with his private funds. He further testified that the widow of the deceased paid the funeral expenses of the deceased amounting to $1,000 from her private funds and the widow has also paid from her private funds (insurance funds) the amount due on a mortgage upon the homestead of realty owed by the deceased in the amount of $5,369.96 and that the widow and minors' exemptions in the personal property of the estate, towit the sum of $1,000 has not been paid.
All of the real estate owned by the deceased at the time of his death was his home dwelling situated upon twelve acres of land upon which there was a mortgage with balance due of $5,369.96, which the widow has paid, as aforesaid. The decedent (administrator's brother) paid about $900 for the land and $1,500 for the home, the original home he lived in on this land until he built another home thereon. He built on this land in the 1930's. The home is a three bedroom brick house. The administrator has lived in Boaz (the site of the real estate) all of his life. He is familiar with property values in the area and at the time of his brother's death this real estate, with the improvements, was reasonably worth $12,000 or $1,000 per acre.
The witness further testified that the homestead has not been set aside to the widow and the minor children and that there were no insurance policies held by the deceased payable to the estate.
Mrs. W. J. Levi (wife of the claimant, W. J. Levi, who procured the aforesaid judgment), testified as follows. She was familiar with the twelve acres of land and the house thereon which Mr. Gilbreath owned at the time of his death. She is generally familiar with the value of property and that she would think that the house and land would be worth $15,000 at the time of his death.
On cross examination this witness testified that she lived in Gadsden and had never lived in Boaz. She had never owned any property in or around Boaz. Her value was placed on present day values and that she has owned and sold property in Gadsden.
The administrator further testified that the total amount of money received by him from the estate was $19,599.34, that *214 this includes the $15,000 derived from the sale of the cars, $2,388.44 in the bank, $1,610.90 in checks and cash and $600 on a note.
As against this were the claims of W. J. Levi for $3,500, reduced by judgment to $2,160.20, plus costs, and the claim of the Atlas Finance Company for $18,780, which claims were filed against the estate. The foregoing was all of the testimony heard at the hearing.
The estate of a decedent is to be declared insolvent "when the real and personal property is insufficient for the payment of the debts." § 382, Title 61, Code of 1940; Banks v. Speers, 97 Ala. 560, 11 So. 841, 842.
Conceding that the real estate of the decedent is worth the highest amount shown by the testimony, towit, the sum of $15,000, the estate according to the administrator breaks down as follows:
Section 383, Title 61, Code of 1940, provides that in making his report the administrator shall file with his report, among other things, the following: "A full statement of the claims against the estate which have come to his knowledge, the character and amount of each claim * * *."
The testimony is without conflict except as to the value of the real estate. The testimony of the administrator shows that this value at the time of the death of the intestate was $12,000 and there is other testimony that the real estate was at that time worth $15,000. So it seems to us that we can get to the heart of this case by determining whether the lower court was in error in holding that the equity of the decedent in the real estate, if sold, would be sufficient to pay all debts and claims against the estate.
There are only two claims filed against the estate, one by the Atlas Finance Company in the amount of $18,780 and the *215 other by the appellee, W. J. Levi, in the amount of $2,160 plus costs. The claims of F. C. Lowery, Hoyt Plunkett and Attalla Motor Company were claims evidenced by outstanding checks which the decedent had given for the purchase price of cars before his death but delivered after his death. These cars were among the fifty-one cars sold because of the lien of the so called "floor plan."
This brings us to a consideration of the status of the real estate. It appears to be the position of the appellee that since no steps have been taken by the widow and the minor children to have the real estate appraised, ascertained and determined to be exempt from administration when the decree of solvency was rendered, the said real estate is to be considered as a part of the assets of the estate of the decedent. This is not correct. The Alabama statutes do not contemplate that the claim for a homestead by the widow and minor children must be filed as a claim against the estate. "To be a claim against the estate, there must be the relation of debtor and creditor; and we are not aware of any conceivable case in which the claims of heirs and legatees to the estate, or parts of it, can be called claims against the estate." Harrison's Adm'r v. Harrison's Distributees, 39 Ala. 489, 496.
The real estate owned by the decedent which was twelve acres in area, was all the real estate owned by the decedent at the time of his death and at the time of his death he resided thereon. Under both the Alabama Constitution of 1901, § 206, and under the Alabama statutes, the real estate of the decedent was of a homestead character to the extent of $6,000. §§ 661, 663, Title 7, 1955 Cumulative Pocket Part, Code of 1940. The claim of a homestead exemption may be asserted before a sale of the property. Kennedy v. First Nat. Bank of Tuscaloosa, 107 Ala. 170, 18 So. 396, 36 L.R.A. 308; Coleman v. Birmingham Fertilizer Co., 208 Ala. 160, 93 So. 904; B. F. Goodrich Silvertown Stores v. Brown, 253 Ala. 576, 46 So. 2d 204. The real estate has not been sold. There is no decree ordering the sale thereof.
Under § 665, Title 7, Code of 1940, $1,000 is to be allowed the widow and minor children as their exemption to be paid from the personal property of the estate. These are prior claims against the estate regardless of debts.
Further we note that the widow out of her own funds has paid the balance due on the mortgage in the amount of $5,369.99. She has no rights as a general creditor of the estate because she has not presented her claim as required by § 211, Title 61, Code of 1940, but she has the right to enforce against the real estate her purely equitable right arising out of her payment of the mortgage indebtedness for the protection of her interest in the real estate. Des Portes v. Hall, 238 Ala. 641, 192 So. 899; Hughes v. Howell, 152 Ala. 295, 44 So. 410; Charmley v. Charmley, 125 Wis. 297, 103 N.W. 1106, 110 Am. St.Rep. 827; Foster v. Foster, 219 Ala. 70, 121 So. 80; 50 Am.Jur. 742-743. See Esslinger v. Spragins, 236 Ala. 508, 183 So. 401. The enforcement of this equitable right required no presentation of her claim. Hood v. Hammond, 128 Ala. 569, 30 So. 540.
Furthermore the widow is entitled to be reimbursed for the funeral and burial expenses which she paid. This is a preferred claim and does not require presentation. Canada v. Canada, 243 Ala. 109, 8 So. 2d 846.
We think that the statement of the assets and liabilities of the estate as made by the administrator which is set forth above is correct.
In addition to the above list of liabilities, the estate will be liable for administration expenses, taxes and perhaps *216 attorney's fees in the course of its administration.
The estate is insolvent. We therefore do not agree with the finding of the trial court that there will be sufficient funds on hand to pay all debts or claims against the estate and that the estate is solvent.
We are remanding the cause to the lower court for such further proceedings as may be appropriate when an estate is insolvent. See § 389 et seq., Title 61, Code of 1940.
We have concluded that the decree of the lower court should be reversed, a decree here rendered holding the estate insolvent and the cause remanded.
Reversed, rendered and remanded.
LIVINGSTON, C. J., and LAWSON and MERRILL, JJ., concur.
On Rehearing
STAKELY, Justice.
On application for rehearing it is insisted that so far no homestead claim has been asserted and further there has been no proof that the widow has a claim against the estate by subrogation growing out of the payment by her of the mortgage on the real estate and furthermore that even if such claim by way of subrogation was made, the Probate Court being a court of limited jurisdiction, cannot establish such claim.
In the original opinion we remanded the case to the lower court for such further proceedings as may be appropriate when an estate is insolvent. We, of course, do not know at this time what steps may be taken by the widow or in behalf of the minor children to claim a homestead and we do not know what the widow may assert for her claim by way of subrogation growing out of her payment of the mortgage on the real estate of the decedent in order to protect the homestead rights of herself and the minor children.
If the jurisdiction of the Probate Court is so limited that a claim by way of subrogation cannot be determined therein, the estate can be transferred to the Circuit Court of Marshall County, in Equity, which undoubtedly will have jurisdiction to entertain such a claim by way of subrogation. This can be done by virtue of § 139, Title 13, Code of 1940.
Furthermore we noted in our original opinion that § 383, Title 61, Code of 1940, provides that in making this report, "the administrator shall file with his report a full statement of the claims against the estate which have come to his knowledge, the character and amount of each claim * * *." The claims referred to by the administrator accordingly are not necessarily claims which should be presented under § 214, Title 61, Code of 1940.
As we pointed out in the original opinion, the claim of the widow growing out of her payment of the balance due on the mortgage requires no presentation. It seems to us, however, that the widow should now proceed to establish her claim by way of subrogation as well as her claim for reimbursement for funeral expenses. Steps should also now be taken by her or in behalf of the minor children to assert and to establish their rights, if any, to the homestead exemption or to any exemption they may have in the personalty of the estate. If such proceedings are not instituted within a reasonable time to be fixed by the lower court after this extended opinion is there received, such claim or claims should not be considered in settling the estate.
Opinion extended and application for rehearing overruled.
LIVINGSTON, C. J., and LAWSON and MERRILL, JJ., concur. | December 17, 1959 |
c89cfd9e-0ba8-434e-abe2-77df24fc093d | Fields v. City of Fairfield | 143 So. 2d 177 | N/A | Alabama | Alabama Supreme Court | 143 So. 2d 177 (1962)
Edward R. FIELDS et al.
v.
CITY OF FAIRFIELD.
6 Div. 801, 802, 809.
Supreme Court of Alabama.
June 14, 1962.
Rehearing Denied July 12, 1962.
*178 J. B. Stoner, Atlanta, for appellants.
J. Clewis Trucks and Frank B. Parsons, Fairfield, for appellee.
MERRILL, Justice.
Dr. Edward R. Fields and Robert Lyons were adjudged to be in contempt of circuit court because they had been found guilty of violating a temporary injunction issued by the court against them as individuals, and against the National States Rights Party, of which they were officers, enjoining them from conducting an advertised meeting in Fairfield. Field and Lyons were each fined $50 and sentenced to 5 days in jail.
Petitioners "appealed" their judgment of conviction to this court and later their attorney "discovered that writ of certiorari is the proper remedy in this case," and asked that the purported appeal be considered as a petition for writ of certiorari. We have complied with the request and so treat the cause now under review.
Petitioners were distributing handbills in the City of Fairfield, which read:
The attorney for the city sought a temporary injunction to enjoin petitioners from *179 holding the advertised meeting because they had not complied with an ordinance of the City Code which provided "It shall be unlawful for any person or persons to hold a public meeting in the city or police jurisdiction without first having obtained a permit from the mayor to do so." The judge issued the temporary injunction and a copy was served on Fields at Noon, Wednesday, August 11th. Lyons also had notice of the temporary injunction which enjoined them "from holding a public meeting at 8 P.M. on Wednesday, October 11, 1961, at 5329 Valley Road, Fairfield, Alabama, as announced, and from distributing further in the City of Fairfield, handbills announcing such meeting such as were distributed in the City of Fairfield, Alabama, on October 10, 1961, until further orders from this Court; and this you will in no wise omit under penalty, etc."
Fields and Lyons were arrested that night where a crowd had gathered across the street from the advertised place of meeting. Fields was making announcements to the crowd and both he and Lyons were distributing copies of "The Thunderbolt," the newspaper of the Party.
The petitioners make two points in brief. They say first that the evidence shows they did not violate the terms of the injunction. There is evidence to support the finding that they did violate the terms of the temporary injunction, and we have held that upon petition for certiorari, the court does not review questions of fact but only questions of law; but if the court below misapplies the law to the facts as found by it or there is no evidence to support the finding, a question of law is presented to be reviewed upon the petition for certiorari. Ex parte Wetzel, 243 Ala. 130, 8 So. 2d 824.
We come now to the main point argued by petitioners"that the temporary injunction was void ab initio on account of being contrary to and in violation of both the United States and Alabama Constitutions." This argument is based upon the premise that the ordinance of the City of Fairfield is unconstitutional. We cannot say that it is unconstitutional on its face.
In Ex parte National Ass'n for Adv. of Colored People, 265 Ala. 349, 91 So. 2d 214, we said:
Here, the circuit court had jurisdiction of the parties and the subject matter. It had the authority to make the decree or order, and on its face, the order disobeyed was not void. It is not contended that any procedural requirements were omitted.
In the face of this, petitioners, without moving to dissolve the temporary injunction, seeking a hearing, or in any way contesting the writ, proceeded to meet a crowd gathered across the street from the advertised place of meeting and distributed inflammatory literature.
*180 As a general rule, an unconstitutional statute is an absolute nullity and may not form the basis of any legal right or legal proceedings, yet until its unconstitutionality has been judicially declared in appropriate proceedings, no person charged with its observance under an order or decree may disregard or violate the order or the decree with immunity from a charge of contempt of court; and he may not raise the question of its unconstitutionality in collateral proceedings on appeal from a judgment of conviction for contempt of the order or decree, or on application for habeas corpus for release from imprisonment for contempt. United States v. United Mine Workers of America, 330 U.S. 258, 67 S. Ct. 677, 91 L. Ed. 884; Howat v. Kansas, 258 U.S. 181, 42 S. Ct. 277, 66 L. Ed. 550; People v. Bouchard, 6 Misc. 459, 27 N.Y.S. 201; McLeod v. Majors, 5th Cir., 102 F.2d 128; Pure Milk Ass'n v. Wagner, 363 Ill. 316, 2 N.E.2d 288.
In the United Mine Workers case, supra, the court said:
Under these authorities, petitioners were guilty of contempt, as they chose to disregard the temporary injunction rather than contesting it by orderly and proper proceedings.
Affirmed.
LIVINGSTON, C. J., and SIMPSON and HARWOOD, JJ., concur. | June 14, 1962 |
3fddcb0e-559b-4755-b9d4-c1248d6a9abd | Reynolds v. State | 146 So. 2d 85 | N/A | Alabama | Alabama Supreme Court | 146 So. 2d 85 (1962)
Kermit Billy REYNOLDS
v.
STATE of Alabama.
1 Div. 78.
Supreme Court of Alabama.
October 25, 1962.
Granade & Granade, Chatom, for appellant.
MacDonald Gallion, Atty. Gen., and Ed Brogden, Sp. Asst. Atty. Gen., for the State.
GOODWYN, Justice.
Appellant was indicted and tried for violation of § 398, Tit. 14, Code 1940, which provides as follows:
The jury found appellant guilty and fixed his punishment at imprisonment in the penitentiary for 42 years. Sentence was imposed accordingly.
Appellant's motion for a new trial, charging insufficiency of the evidence to support the verdict, was overruled. Our conclusion is that the motion should have been granted. (The motion also asserts error in refusing to give appellant's requested affirmative charge, but such charge does not appear in the record.)
Section 398 embraces two offenses, one being carnal knowledge and the other abuse in the attempt to have carnal knowledge. "Carnal knowledge", as used in the *86 statute, means sexual intercourse, that is, the actual penetration of the male sexual organ into the sexual organ of the female. The holding in Dawkins v. State, 58 Ala. 376, 29 Am.Rep. 754, clearly implies this. See also: State v. Normandale, 154 La. 523, 97 So. 798; Harris v. State, 72 Fla. 128, 72 So. 520, 521; Strawderman v. Commonwealth, 200 Va. 855, 108 S.E.2d 376, 379; State v. Bowman, 232 N.C. 374, 61 S.E.2d 107; State v. Ramsdell, 242 Iowa 62, 45 N.W.2d 503, 508; State v. Schwartz, 215 Minn. 476, 10 N.W.2d 370, 371; Wharton's Criminal Law, 12th Ed., Vol. 1, § 685, p. 919, § 697, p. 934; Bishop on Statutory Crimes, 3rd Ed. § 488, p. 414; Bishop on Criminal Law, 9th Ed., § 1132, p. 838; Black's Law Dictionary, 4th Ed., "Carnal knowledge," p. 268; Ballentine's Law Dictionary, 2nd Ed., "Carnal knowledge," p. 190, "Sexual intercourse," p. 1194; 75 C.J.S. Rape § 10, pp. 471-472; 12 C.J.S. Carnal p. 1151; 52 C.J., Rape, §§ 22, 23, p. 1014; 9 C.J., Carnal Knowledge, p. 1293; Words and Phrases, Perm.Ed., Vol. 6, "Carnal knowledge," p. 160; Words and Phrases, Perm.Ed., Vol. 39, "Sexual intercourse," p. 107.
From State v. Normandale, 154 La. 523, 97 So. 798, 800, supra, is the following:
The Virginia statute (Code of Virginia, § 18-54) provides in part:
In discussing this statute in Strawderman v. Commonwealth, 200 Va. 855, 108 S.E.2d 376, 379, supra, the Virginia Superior Court of Appeals had this to say:
There is no evidence whatever supporting the charge of carnal knowledge. Nor does the evidence support the charge of abuse in the attempt to have carnal knowledge. While there is ample evidence showing an abuse of the child, we find no evidence showing an abuse of her genital or sexual organs. It has been held many times that an injury to these parts, in the attempt to have carnal knowledge, is the abuse to which the statute refers. See: Huggins v. State, 271 Ala. 428, 434, 123 So. 2d 911; Smith v. State, 256 Ala. 444, 446, 55 So. 2d 208; Lee v. State, 246 Ala. 69, 71, 18 So. 2d 706; James v. State, 246 Ala. 617, 619, 21 So. 2d 847; Hutto v. State, 169 Ala. 19, 20, 53 So. 809; Sims v. State, 146 Ala. 109(14), 41 So. 413; Castleberry v. State, 135 Ala. 24, 28, 33 So. 431; Dawkins v. State, 58 Ala. 376, 378-379, 29 Am.Rep. 754; Rushing v. State, 39 Ala.App. 32, 38, 94 So. 2d 770, cert. den. 266 Ala. 700, 94 So. 2d 777; Smith v. State, 34 Ala.App. 45, 50, 38 So. 2d 341; Lee v. State, 31 Ala.App. 91, 97, 13 So. 2d 583, cert. den. 244 Ala. 401, 13 So. 2d 590; Montgomery v. State, 28 Ala.App. 442, 445, 186 So. 589; Miller v. State, 16 Ala.App. 534, 535, 79 So. 314; 75 C.J.S. Rape § 28, p. 493; 44 Am.Jur., Rape, § 18, p. 913.
The medical testimony, as well as that of other witnesses, shows only that the rectum and the area around the rectum were bruised or injured. We find nothing whatever in the evidence showing any abuse or injury of the girl's genital or sexual organs.
The state had the burden of proving, beyond a reasonable doubt, one of the charges included in the indictment. Failing in this, the conviction cannot stand, even though the evidence undoubtedly is sufficient to support a charge of another heinous crime.
The judgment is due to be reversed and the cause remanded.
Reversed and remanded.
LIVINGSTON, C. J., and SIMPSON and COLEMAN, JJ., concur. | October 25, 1962 |
7d08850b-05a0-42b2-84b5-7e2f01c33419 | McRae v. Bandy | 115 So. 2d 479 | N/A | Alabama | Alabama Supreme Court | 115 So. 2d 479 (1959)
G. C. McRAE, d/b/a McRae Motors
v.
Harley B. BANDY and P. E. O'Neal, d/b/a Bandy and O'Neal Auto Sales.
8 Div. 925.
Supreme Court of Alabama.
November 5, 1959.
*480 Mead & Norman, Birmingham, for appellant.
Britnell & McEntire, Decatur, for appellees.
LIVINGSTON, Chief Justice.
The complaint in this cause is in trover for the recovery of damages for the conversion of one 1956 Bel Aire Chevrolet Automobile. The cause was tried by the court below without the intervention of a jury and resulted in a judgment for the plaintiffs. The defendant appeals.
Briefly stated, the facts are as follows: One Kenneth Bishop, representing the Bishop Motor Company, went to the place of business of appellees, Harley B. Bandy and P. E. O'Neal, partners, doing business as Bandy and O'Neal Auto Sales, in Trion, Georgia, and purchased from the appellees the Chevrolet automobile in question, and a 1956 Oldsmobile which is not involved in this litigation. Bishop paid for the two cars by check and immediately brought the cars to Alabama. The Chevrolet automobile, the car in question, was taken to the Dixie Auto Auction in Birmingham, Alabama, where it was purchased by the appellant, G. C. McRae, d/b/a McRae Motors. The Dixie Auto Auction paid Bishop for the automobile with a check of the appellant, which was endorsed by the Dixie Auto Auction.
The two cars were bought by Bishop from the appellees on November 27, 1955. The sale by Bishop to the Dixie Auto Auction of the automobile involved was made November 28, 1955, and the same day the Dixie Auction sold the automobile to the appellant.
Appellant carried the automobile to Decatur and sold it to one Henry Lee King on November 29, 1955.
On December 2, 1955, appellees' bank notified them that the check given to them by Bishop in payment of the automobile had been returned as worthless. On December *481 2, 1955, appellees came to Alabama in search of Bishop and the automobiles, but was unable to locate either Bishop or the automobiles. Appellees did encounter a Mr. Norman, attorney for the Dixie Auto Auction, who told appellees that the car in question had been sold through the Dixie Auto Auction to appellant on November 28, 1955.
On or about December 2, 1955, the appellant was informed by the Dixie Auto Auction that the title to the car was questionable and requested that appellant pick up the car from his customer and return it to them in Birmingham, Alabama. The Dixie Auto Auction Company also requested that appellant stop payment on the check given by him as payment for the Chevrolet automobile, this being the check which the Dixie Auto Auction had endorsed to Bishop.
Appellant contacted his customer, Henry Lee King, and requested King to return the car to them and that he, the appellant, would loan King a car until they could locate a similar one.
It appears from the testimony that appellant was aware on or about December 2, 1955 that the title to the Chevrolet automobile was in doubt.
On December 5, 1955, the appellees made a request that the appellant return the car: to them. The appellees were not put in possession of the car but instead the appellant delivered the car to the Dixie Auto Auction, and it was subsequently taken to the State of Georgia and sold. Appellees were first notified on December 12, 1955 that the Chevrolet automobile had been removed from Alabama to Georgia and sold.
There appears in the record certain agreed stipulations of fact to the effect that certain transactions did occur; namely, the sale of the car by Bishop to the Dixie Auto Auction, also the sale by the Dixie Auto Auction to the appellant, the McRae Motors. It was also stipulated that McRae sold the Chevrolet automobile to a customer, Henry Lee King, from whom the appellant later requested the return of the car. It was further stipulated that the car was returned by the appellant to the Dixie Auto Auction Company, who took it to Georgia where it was sold. While the stipulations appear in the record, nowhere do we find it argued that the stipulations would affect the questions of law raised by this appeal.
Under the foregoing facts, we come now to the question of whether the laws of Alabama or the laws of Georgia are controlling. In regard to the purchase of the cars by Bishop from the appellees, a transaction which took place wholly within the State of Georgia, the laws of Georgia are to be applied. As is stated in 11 Am.Jur., Sec. 66, p. 354:
It was stated in Hallgarten v. Oldham. 135 Mass. 1, 46 Am.Rep. 433:
As further illustration of the point, it was said in Hutchison v. Ross, 262 N.Y. 381, 187 N.E. 65, 68, 89 A.L.R. 1007:
In Georgia, where personal property is delivered to another under an agreement that he is to pay cash therefor, and where the cash payment is made by check, which the person receiving believes to be good, but which afterward proves to be worthless, no contract or sale arises and no title to the property passes, and the vendor may recover possession of the property from the vendee. Chafin v. Cox, 39 Ga. App. 301, 147 S.E. 154; Winton v. Butler, 53 Ga.App. 696, 186 S.E. 773. However, this principle by its express terms is applicable only as between vendor and vendee. The general rule applicable to property other than negotiable securities, that the seller can convey no greater right or title than he has, is only predicable of a simple transfer from one person to another where no other elements intervene. Capital Automobile Co. v. Ward, 54 Ga.App. 873, 189 S.E. 713. We think, therefore, that in accordance with the decisions of the Georgia courts, no title passed as between the vendor, who are the appellees in this case, and Bishop, the vendee.
It is the contention of the appellant that the laws of Georgia are to be applied in regard to the subsequent transactions which took place within the State of Alabama. We are not impressed with this view. Are we to presume that where there is a transaction in one state and subsequent transfer of that property to another state, that the state into which the property was taken must look to the state from which the property was removed in regards to all subsequent transfers?
In Weinstein v. Freyer, 93 Ala. 257, 9 So. 285, 12 L.R.A. 700, this court held that the statute of Georgia, where the conditional sale contract was made and where the property was then located and remained for two and one-half years, which avoids conditional sales contracts as against third parties unless recorded in thirty days of execution, did not apply so as to avoid the title of the vendor as against a purchaser in good faith from the vendee, after the property had been removed to Alabama.
It was said in Marvin Safe Company v. Norton, 48 N.J.L. 410, 7 A. 418, 421, 57 Am.Rep. 566:
Therefore, applying the laws of Alabama in regard to the transactions taking place within this state, we are of the opinion that Bishop having acquired no title to the automobile in Georgia could transfer no better title than he had when the property was removed to this state.
*483 Section 29 of Title 57, Code of Alabama 1940, provides:
The Court of Appeals had this to say in McClure Motor Co. v. McClain, 34 Ala. App. 614, 42 So. 2d 266, 268:
To illustrate further, this Court used the following language in Moore v. Long, 250 Ala. 47, 33 So. 2d 6, 7:
See also Bennett & Co. v. Brooks, 146 Ala. 490, 41 So. 149; Barrow v. Brent, 202 Ala. 650, 81 So. 669; Barksdale v. Banks, 206 Ala. 569, 90 So. 913.
It was said in Claybrooke Warehouse & Gin Co. v. Farmers Cooperative Warehouse & Gin Co., 260 Ala. 518, 71 So. 2d 88, 90:
See Sec. 29, Title 57, Code of Alabama 1940; Geneva Gin & Storage Co. v. Rawls, 240 Ala. 320, 199 So. 734; Boutwell v. Parker, 124 Ala. 341, 27 So. 309; Slaton v. Lamb, 260 Ala. 494, 71 So. 2d 289.
It is, therefore, the opinion of this Court that Bishop having no title to pass, he could not have passed any better title to Dixie Auto Auction than he had at the time of the transaction, therefore, Dixie Auto Auction acquiring no title from Bishop, could not have passed any title to the appellant.
The wrongful assumption or dominion over property of another in subversion and denial of his rights constitutes a conversion of such property irrespective of whether there was a demand made for the surrender and a refusal to surrender said property. Meador v. Evans, 188 Ala. 229, 66 So. 446; Woods v. Rose & Co., 135 Ala. 297, 33 So. 41; Moore v. Monroe Refrigerator Co., 128 Ala. 621, 29 So. 447.
We are of the opinion, and hold, that the original vendee Bishop, having no title at the time be brought the car into Alabama, could convey none to the Dixie Auto Auction. The Dixie Auto Auction having acquired no title from Bishop, could convey none to the appellant. The appellant having no title to the car, was in possession of it subversive to the rights of the true owner.
The holding of the lower court is without error and is, therefore, affirmed.
Affirmed.
LAWSON, STAKELY and MERRILL, JJ., concur. | November 5, 1959 |
6d050290-2172-42ca-9941-8fa0e5e30c6b | Jansen v. State | 137 So. 2d 47 | N/A | Alabama | Alabama Supreme Court | 137 So. 2d 47 (1962)
V. R. JANSEN, Judge of the Probate Court of Mobile County,
v.
STATE of Alabama ex rel. Maurice A. DOWNING.
1 Div. 32.
Supreme Court of Alabama.
January 18, 1962.
*48 V. R. Jansen and Pillans, Reams, Tappan, Wood & Roberts and A. L. Phillips, Jr., Mobile, for appellant.
Maurice A. Downing, appellee, pro se.
W. Dewitt Reams, Mobile, for Frank W. Boykin, amicus curiae.
Jas. E. Moore, Mobile, Hobdy G. Rains, Gadsden, Ralph Y. Smith and Frank J. Mizell, Montgomery, for State Democratic Executive Committee, amici curiae.
GOODWYN, Justice.
This case involves the validity of Act No. 154, appvd. Sept. 15, 1961, which was passed at the 1961 Special Session of the Legislature. The Act provides for the manner of nominating candidates for Congress in primary elections and electing congressmen in statewide general elections, subject to certain contingencies set forth in the Act. It has been referred to as the "9-8 Plan" and is a legislative design, in lieu of redistricting, for meeting the reduction in the number of Alabama congressmen from nine to eight.
The trial court declared the Act to be invalid and enjoined the probate judge of Mobile County, the respondent and crosscomplainant in the proceedings below, "from obligating Mobile County for the expense of preparation for an election pursuant to the provisions of said Senate Bill 224 [Act No. 154] and * * * from attempting to comply with the terms of Senate Bill 224 [Act No. 154] by the use of paper ballots at any primary or general elections hereafter conducted in Mobile County," The probate judge brings this appeal from that decree.
In view of the time elements involved, the importance of and wide public interest in the validity vel non of Act No. 154, and the reasonable probabilities that the contingencies therein stated will not prevent its application, if valid, to congressional elections to be held this year, we put to one side any procedural question which might be presented and proceed to a decision on the merits.
What we have to decide is whether the Act is either violative of one of the following provisions of the Alabama Constitution, viz.: § 104, subdiv. 29, § 190, or Amendment 41, or is so incomplete, vague, uncertain and indefinite as to make it inoperative and void. We approach these questions in the light of the following well-established principles:
In passing on the validity of a statute it must be remembered that the legislature, except insofar as specifically limited by the state and federal constitutions, is all-powerful in dealing with matters of legislation; that a legislative act is presumed to be constitutional and valid, and all doubts are to be resolved in favor of its validity; that a statute, if reasonably possible, must be so construed as to sustain its validity and will not be declared invalid unless the court is clearly convinced that it cannot stand; that all questions of propriety, wisdom, necessity, utility and expediency in the enactment of laws are exclusively for the legislature, and are matters with which the courts have no concern.
With these principles in mind, we have concluded that the trial court erred in declaring Act No. 154 to be invalid.
First, we will dispose of the constitutional questions.
Section 104, subdiv. 29, Constitution 1901, provides as follows:
Section 110, Constitution 1901, contains these definitions:
Act No. 154 has statewide application, and is not restricted to a political subdivision or subdivisions of the state less than the whole; nor does it apply to an individual, association, or corporation. Accordingly, the Act is not violative of § 104, subdiv. 29, of the Constitution.
Section 190, Constitution 1901, provides, in pertinent part, as follows:
Amendment 41, proclaimed ratified on July 21, 1939, changed the foregoing portion of § 190 to read as follows:
It is contended that this part of Amendment 41 makes it mandatory that voting machines, if authorized and used in a county, as is the case in Mobile County, must be used in all elections; that Act No. 154 provides for the use of paper ballots in voting for eight of the nine candidates for nomination as congressmen at the time of the regular run-off primary, thus contravening Amendment 41 and rendering the Act invalid. We cannot agree. It has been held that this Amendment "is not self-acting, but requires enabling legislation. It is not mandatory, but grants authority to the legislature so as to relieve the former requirement of uniformity throughout the state in this respect. The constitutional amendment was evidently the result of the decision of this court in McCall v. Automatic Voting Machine Corp., 236 Ala. 10, 180 So. 695." Kendrick v. State ex rel. Shoemaker, 256 Ala. 206, 212, 54 So. 2d 442.
Of significance is the fact that the legislature, in adopting enabling legislation very shortly after ratification of Amendment 41, provided for the optional use of paper ballots in precincts having less than 100 registered voters. Code 1940, Tit. 17, § 94; Act No. 292, § 4(c), appvd. Aug. 25, 1939, Gen.Acts 1939, pp. 443, 447. This was a clear legislative interpretation of Amendment 41 that the use of voting machines in all elections is not mandatory. Although a legislative act cannot change the meaning of a constitutional provision, such act may throw light on its construction and, as a legislative interpretation of a particular provision, it is entitled to much weight. Farrior v. New England Mortgage Security Co., 88 Ala. 275, 279, 7 So. 200. It has also been held that the generally and long-accepted interpretation of the constitutional provision by the legislative bodies is available for correctly interpreting the organic law. Jones v. McDade, 200 Ala. 230, 235, 75 So. 988.
We come now to the question whether Act No. 154 is so incomplete, vague, uncertain or indefinite as to make it inoperative and void.
*50 To be sure, courts may declare legislative enactments to be inoperative and void for indefiniteness or uncertainty in meaning. But such power should be exercised only when a statute is so incomplete, so irreconcilably conflicting, or so vague or indefinite, that it cannot be executed, and the court is unable, by the application of known and accepted rules of construction, to determine, with any reasonable degree of certainty, what the legislature intended. Opinion by the Justices, 249 Ala. 88, 91, 30 So. 2d 14; 50 Am.Jur., Statutes, § 472. We do not consider Act No. 154 to be so uncertain in meaning, or so incomplete, or so conflicting, or so vague or indefinite, as to warrant its invalidation.
This Act does not purport to cover the entire subject of holding primary and general elections. It deals only with congressional elections; and, in applying it to such elections, it must be construed in connection with other applicable election laws. The manifest legislative purpose and intent was to continue the application to congressional elections of all laws already applicable thereto except insofar as they may be in conflict with the Act's provisions. When the Act is considered in connection with the nonconflicting provisions of other applicable election laws, we think there is provided a reasonably workable scheme for holding the congressional elections, although we realize there may be need of working out the practical details for conducting the elections. Too, many of the suggested problems said to result from Act No. 154 may never arise and are, therefore, purely speculative. This court should not, and will not, undertake to advise the county's officials with respect to election details with which they may never be confronted. In this connection, we do not think it inappropriate to call attention to the statute authorizing county officials to obtain opinions from the attorney-general "as to any question of law connected with" their duties. Code 1940, Tit. 55, §§ 240-242.
The trial court apparently entertained the view that any applicable election law which, in some respect, conflicts with some provision of Act No. 154 has been permanently repealed in its entirety, by reason of the provision in said Act that "all laws or parts of laws which conflict with this act are repealed." The provision does not have that effect. The controlling principle is thus stated in 50 Am.Jur., Statutes, § 520, p. 529:
See, also, 82 C.J.S. Statutes § 285, pp. 476-477.
From 82 C.J.S. Statutes § 291, p. 492, is the following:
The injunction is due to be dissolved, the decree reversed, and the cause remanded to the trial court for entering a decree consistent with the views expressed in this opinion. It is so ordered.
Injunction dissolved.
Reversed and remanded with directions.
LIVINGSTON, C. J., and SIMPSON and COLEMAN, JJ., concur. | January 18, 1962 |
451baec4-7fd1-430a-a605-8c591c05ee20 | Aliant Bank v. Four Star Investments, Inc. | N/A | 1150822, 1150823, 1150824 | Alabama | Alabama Supreme Court | REL: 05/05/2017
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2016-2017
____________________
1150822
____________________
Aliant Bank, a Division of USAmeribank
v.
Four Star Investments, Inc., et al.
____________________
1150823
____________________
Aliant Bank, a Division of USAmeribank
v.
Wrathell, Hunt & Associates, LLC, and Pfil Hunt
____________________
1150824
____________________
Aliant Bank, a Division of USAmeribank
v.
Engineers of the South, LLC, and Tim Harbison
Appeals from St. Clair Circuit Court
(CV-12-900044)
STUART, Chief Justice.
Aliant Bank, a division of USAmeribank ("Aliant"), sued
various individuals and
business entities involved in a failed
effort to develop the Twelve Oaks subdivision in Odenville,
alleging that, as a result of those defendants' conspiracy and
wrongful actions, Aliant's security interest in the property
upon which the Twelve Oaks subdivision was to be built had
been rendered worthless. The St. Clair Circuit Court
ultimately entered a number of orders either dismissing
Aliant's claims or entering a summary judgment in favor of the
various defendants. Aliant has filed three appeals; we affirm
in part and reverse in part in appeals no. 1150822 and no.
1150823 and affirm in appeal no. 1150824.
2
1150822, 1150823, 1150824
I.
On August 15, 2007, Aliant closed a $2.3 million loan
("the Aliant loan") with Four Star Investments, Inc., a
corporation that owned 197 acres of land in Odenville that
Four Star Investments' president, Bobby R. Smith, Jr.
("Smith"), planned to develop into a subdivision to be known
as Twelve Oaks. The proceeds of the Aliant loan were used
both to pay off a previous loan on the Twelve Oaks property
and to finance construction of the infrastructure for the
subdivision. The Aliant loan was secured by a first-priority
mortgage on the Twelve Oaks property and was also personally
guaranteed by Smith, a contractor who had experience
developing several other subdivisions in the St. Clair County
area. Another company owned and operated by Smith, Twelve
Oaks Properties, Inc., thereafter operated as the entity
developing Twelve Oaks.
During this same time frame, Smith was also seeking
additional financing from
other sources for the development of
Twelve Oaks. He eventually came into contact with Pfil Hunt,
a Mobile-based investment banker with experience setting up
public-private
partnerships
between
municipalities
and
developers. Hunt advised Smith that one option was to create,
3
1150822, 1150823, 1150824
pursuant to the Alabama Improvement District Act, § 11-99A-1
et seq., Ala. Code 1975, a type of public corporation known as
an "improvement district" for which bonds could be issued and
sold, thus providing immediate revenue for the construction of
improvements benefiting the
Twelve Oaks property.
Those bonds
would later be repaid by the end purchasers of the developed
lots, who would be responsible for paying an annual assessment
that ran with the property until the bonds were repaid. Smith
ultimately elected to pursue that route, and throughout the
fall of 2007 he worked with Hunt and Hunt's management company
Wrathell, Hunt & Associates, LLC ("WHA"), to complete the
planning of Twelve Oaks and to prepare a petition requesting
that the
Odenville town council formally create an improvement
district that encompassed the Twelve Oaks property. As part
of that process, Hunt directed Smith to Tim Harbison, an
engineer with the engineering firm Engineers of the South, LLC
("EOS"), who, in November 2007, created an engineer's report
detailing the feasibility of the planned Twelve Oaks
subdivision. That report, based on figures provided by Smith,
stated that it would cost $5,618,000 to complete the Twelve
Oaks infrastructure, including roads, sidewalks, signage,
street lighting, landscaping and irrigation, earthwork and a
4
1150822, 1150823, 1150824
series of lakes, water and sewage systems, a clubhouse and a
swimming pool, park areas, and walking trails.
Smith thereafter petitioned the Odenville town council to
create the planned improvement district, and, on January 14,
2008, the
Odenville town council adopted a resolution granting
the petition and
creating the Twelve Oaks Improvement District
("the District").
The District's board of directors consisted
of Smith; Smith's brother Billy Smith, who was the partner
with Smith in B&B Construction, Inc., a construction company
that had worked on the Twelve Oaks property; and Fran Mize, a
real-estate broker and another business partner of Smith's
responsible
for
marketing
Twelve
Oaks
(hereinafter referred
to
collectively as "the Board members"). The District
subsequently hired WHA to manage the District and EOS as the
official engineer for
the District, and they thereafter worked
toward preparing a bond issue and finding a buyer for the to-
be-issued bonds. Ultimately, Allstate Insurance Company
("Allstate") agreed to purchase $4,395,000 worth of bonds
issued by the District.
In April 2008, the District petitioned the Odenville town
council to adopt a resolution approving the assessments that
would be used to secure and pay the bonds to be issued by the
5
1150822, 1150823, 1150824
District. In support of that petition, the District submitted
the engineer's report prepared by Harbison and a methodology
report prepared by WHA, which concluded that the $4,395,000
face value of the bonds would require a special assessment of
$12,557.14 to be levied upon each of the 350 lots planned for
Twelve Oaks, which assessment WHA recommended be payable at
the rate of $1,318.67 per year for a 10-year period. The
methodology report noted that the $4,395,000 bond issue would
raise only $2,959,821 that would be available for the
development of Twelve Oaks, because $993,870 of the bond
proceeds would be set aside for capitalized interest and a
debt-service reserve fund and the remainder of the bond
proceeds would be paid out as costs and fees associated with
the issuance of the bonds, which would be underwritten by
another firm affiliated with Hunt –– Gardnyr Michael Capital.
The methodology report also noted that an additional
$2,658,179 would still be needed to finish the estimated
$5,618,000 of infrastructure improvements needed to complete
Twelve Oaks; however, the methodology report did not indicate
where those funds would come from. The Odenville town council
thereafter adopted a
resolution setting the assessments at the
6
1150822, 1150823, 1150824
requested level, and the District then adopted its own
resolution authorizing the issuance of the bonds.
On June 6, 2008, the District filed a bond-validation
petition in the St. Clair Circuit Court pursuant to § 11-81-
221, Ala. Code, which "allows a public corporation to
'determine its authority to issue ... obligations and the
legality of all proceedings had or taken in connection
therewith,' and 'the validity of the tax or other revenues or
means provided for the payment thereof.'" Houston Cty. Econ.
Dev. Auth. v. State, 168 So. 3d 4, 21 (Ala. 2014) (quoting §
11-81-221). On July 2, 2008, the trial court entered a final
judgment confirming the validity and enforceability of the
bonds and the assessments securing them. No appeal was filed,
and it was thus established that the bonds and the assessments
providing for their payment could "never be called in question
in any court in this state." § 11-81-224, Ala. Code 1975.
On July 14, 2008, Smith met with Doug Williamson, the
Aliant officer responsible for the Aliant loan, and informed
him that the bonds were ready to be issued but that the
District could not proceed until Aliant executed a "mortgagee
special assessment acknowledgment" that would subordinate
Aliant's interest in the Twelve Oaks property to the interests
7
1150822, 1150823, 1150824
of the bondholders; Aliant alleges that this was the first
time it was informed that it would be asked to subordinate its
interest in the Twelve Oaks property. Williamson alleges that
Smith
and
the
District's attorney
made
various
representations
to him during that meeting and over the course of the next
several days regarding the viability of Twelve Oaks and the
controls that would be placed upon the use of the bond
proceeds and that, based upon those and other representations
made by Smith, as well as upon written representations made in
the engineer's report prepared by Harbison and other materials
prepared by WHA, he agreed to execute the mortgagee-special-
assessment acknowledgment on behalf of Aliant, doing so on
July 24, 2008.
On July 31, 2008, the bonds were issued, and the bond
proceeds were split into a series of trust accounts maintained
by U.S. Bank, N.A., which, pursuant to the District's
agreement with Allstate, had been selected to serve as trustee
of those accounts. Pursuant to the terms of the trust
indenture, the District could access the $2,959,821 available
for the construction of improvements only upon filing a
request
for
reimbursement
and
providing
appropriate
documentation describing the work that had been completed and
8
1150822, 1150823, 1150824
the costs that had been incurred; such requests then had to be
signed and approved by both a District board member and
Harbison or another EOS engineer. Unbeknownst to Aliant,
however, Odenville had, on November 26, 2007 –– before the
District had even been officially created –– adopted a
resolution authorizing Twelve Oaks Properties, Inc., to be
reimbursed from the
future bond proceeds for improvements made
to the Twelve Oaks property before the bonds were issued. In
accordance with that resolution, Smith filed a request for
reimbursement on behalf of Twelve Oaks Properties on August 8,
2008 –– eight days after the bonds were issued –– seeking
$1,181,962 from the bond proceeds for work completed before
the bonds were issued. Smith approved the request on behalf
of the District, and, after Harbison approved the request as
District engineer, the requested payment was made. On
September 10, 2008, Smith submitted another request for
reimbursement seeking $541,866, of which $306,951 was for work
performed before the bonds were issued. That request was also
approved by Harbison, and the bond proceeds were disbursed as
requested.
In the following months, virtually all the remaining bond
proceeds were paid out, and by March 2010 only $9,500
9
1150822, 1150823, 1150824
remained. Aliant alleges that little progress was made at
Twelve Oaks during this time. The trust accounts holding
reserves were exhausted by late 2010 as well, and eventually
neither the District nor Smith and his affiliated companies
were able to make future payments on the bonds when they
became due. In early 2011, Four Star Investments defaulted on
the Aliant loan, and, on May 2, 2011, Aliant sued Four Star
Investments and Smith alleging that they had breached the
terms of their loan and guarantee agreements. On September
26, 2011, the trial court entered a $2,241,288 judgment in
favor of Aliant in that action (hereinafter referred to as
"the default action").
Aliant
thereafter
began
conducting
postjudgment
discovery
seeking to learn more about the assets of Four Star
Investments and Smith. During that process, Aliant learned
more details regarding the creation of the District, the
development of Twelve Oaks, and how the bond proceeds had been
used. On March 30, 2012, Aliant, based on the information it
had
discovered,
filed
another
lawsuit
asserting various
claims
related to the development of Twelve Oaks. As eventually
amended,
Aliant's
final
complaint
asserted
nine
counts
against
various individuals and entities. Those defendants can be
10
1150822, 1150823, 1150824
categorized as follows: (1) "The Twelve Oaks defendants,"
including Four Star Investments, Twelve Oaks Properties, the
District, Smith, Billy Smith, Mize, and B&B Construction; (2)
Hunt and his management company WHA; (3) "the EOS defendants,"
including Harbison and his engineering firm EOS; and (4)
Allstate and U.S. Bank.1 The gravamen of Aliant's claims is
that those defendants combined to commit a number of wrongful
acts that siphoned all equity from the Twelve Oaks development
and that, while the defendants had individually profited from
those acts, Aliant had been injured inasmuch as its security
interest in the Twelve Oaks property had been rendered
worthless because the property was now encumbered by
assessments that had a total value in excess of the market
value of the Twelve Oaks property.
The defendants eventually all moved the trial court
either to dismiss the claims asserted against them or to enter
summary judgments in their favor. Through a number of orders
entered between April 2015 and April 2016, the trial court
dismissed some of the claims asserted by Aliant against Smith,
1Some individuals who had purchased lots in Twelve Oaks
were also added as parties to the lawsuit at various times;
however, the claims involving those parties are not relevant
to these appeals.
11
1150822, 1150823, 1150824
Four Star Investments, Allstate, and U.S. Bank and entered
summary judgments in favor of the defendants on all the
remaining claims.
Aliant subsequently filed four appeals with
this Court: appeal no. 1150637 (challenging the judgments
entered in favor of Allstate and U.S. Bank); appeal no.
1150822 (challenging the judgments entered in favor of the
Twelve Oaks defendants); appeal no. 1150823 (challenging the
judgments entered in favor of Hunt and WHA); and appeal no.
1150824 (challenging the judgment entered in favor of the EOS
defendants). We consolidated the four appeals for the purpose
of writing one opinion; however, the parties to appeal no.
1150637 subsequently settled their dispute, and that appeal
has since been dismissed.
II.
The trial court disposed of each claim asserted by Aliant
in this case either by dismissing the claim or by entering a
summary judgment in favor of the defendant against which the
claim was asserted; Aliant argues that the trial court erred
in both respects. With regard to those claims that were
dismissed, this Court has stated:
"The appropriate standard of review of a trial
court's [ruling on] a motion to dismiss is whether
'when the allegations of the complaint are viewed
12
1150822, 1150823, 1150824
most strongly in the pleader's favor, it appears
that
the
pleader
could
prove
any
set
of
circumstances that would entitle [the pleader] to
relief.' Nance v. Matthews, 622 So. 2d 297, 299
(Ala. 1993); Raley v. Citibanc of Alabama/Andalusia,
474 So. 2d 640, 641 (Ala. 1985). This Court does
not consider whether the plaintiff will ultimately
prevail, but only whether the plaintiff may possibly
prevail. Nance, 622 So. 2d at 299. A 'dismissal is
proper only when it appears beyond doubt that the
plaintiff can prove no set of facts in support of
the claim that would entitle the plaintiff to
relief.' Nance, 622 So. 2d at 299; Garrett v.
Hadden, 495 So. 2d 616, 617 (Ala. 1986); Hill v.
Kraft, Inc., 496 So. 2d 768, 769 (Ala. 1986)."
Lyons v. River Road Constr., Inc., 858 So. 2d 257, 260 (Ala.
2003). We review the summary judgments entered by the trial
court under the following standard:
"This Court's review of a summary judgment is de
novo. Williams v. State Farm Mut. Auto. Ins. Co.,
886 So. 2d 72, 74 (Ala. 2003). We apply the same
standard of review as the trial court applied.
Specifically, we must determine whether the movant
has made a prima facie showing that no genuine issue
of material fact exists and that the movant is
entitled to a judgment as a matter of law. Rule
56(c), Ala. R. Civ. P.; Blue Cross & Blue Shield of
Alabama v. Hodurski, 899 So. 2d 949, 952-53 (Ala.
2004). In making such a determination, we must
review the evidence in the light most favorable to
the nonmovant. Wilson v. Brown, 496 So. 2d 756, 758
(Ala. 1986). Once the movant makes a prima facie
showing that there is no genuine issue of material
fact, the burden then shifts to the nonmovant to
produce 'substantial evidence' as to the existence
of a genuine issue of material fact. Bass v.
SouthTrust Bank of Baldwin County, 538 So. 2d 794,
797-98 (Ala. 1989); Ala. Code 1975, § 12-21-12."
13
1150822, 1150823, 1150824
Dow v. Alabama Democratic Party, 897 So. 2d 1035, 1038-39
(Ala. 2004).
III.
Aliant's final amended complaint asserted nine counts,
with each count including claims against multiple defendants.
However, we note that Aliant has not, in its briefs to this
Court, addressed the trial court's disposition of the first
three asserted counts –– labeled "judicial foreclosure,"
"declaratory judgment and bill to quiet title," and "unjust
enrichment" –– and Aliant has accordingly waived any argument
that the trial court acted in error in its disposition of
those counts. See Bogle v. Scheer, 512 So. 2d 1336, 1337
(Ala. 1987) ("The plaintiff filed a five-count complaint ....
[O]n appeal he has argued only that a summary judgment was not
proper on the conspiracy count (count four). Because issues
not argued in brief are waived, ... our review is limited to
whether the summary judgment was proper on the conspiracy
14
1150822, 1150823, 1150824
count.").2 We consider the rest of the counts asserted by
Aliant in the order in which they were presented.
Count four of Aliant's final amended complaint asserts
negligence
and
breach-of-fiduciary-duty claims
against
WHA
and
the individual Board members –– Smith, Mize and Billy Smith.
"The elements of a negligence claim are a duty, a breach of
that duty, causation, and damage." Armstrong Bus. Servs.,
Inc. v. AmSouth Bank, 817 So. 2d 665, 679 (Ala. 2001) (citing
AALAR, Ltd. v. Francis, 716 So. 2d 1141, 1144 (Ala. 1998)).
Similarly, the elements of a breach-of-fiduciary-duty claim
are the existence of a fiduciary duty, a breach of that duty,
and damage suffered as a result of that breach. Regions Bank
v. Lowrey, 101 So. 3d 210, 219 (Ala. 2012). Aliant alleges in
its complaint that WHA and the Board members had a duty to
2It appears that counts one, two, and three of Aliant's
final amended complaint were primarily directed to Allstate
and determining the validity of the assessments securing the
bonds issued by the District and Aliant's interest in the
Twelve Oaks property in relation to any interest that Allstate
might have. As explained supra, Aliant has settled its claims
with Allstate, but, to the extent counts one, two, and three
might assert claims against other defendants that are parties
to these consolidated appeals, Aliant has waived those claims
by failing to argue that the trial court erred in its
disposition of them.
15
1150822, 1150823, 1150824
responsibly manage and oversee the District and that Aliant
was damaged after they
"breached their duties by, among other things,
failing to exercise their independent professional
judgment and analysis related to the feasibility of
the [bond] issue, by failing to properly supervise
and monitor the spending of the [bonds] on the
premises, by failing to assure that the requisitions
were proper and for work actually performed, by
failing to properly monitor and supervise the
construction of the promised improvements, by
mismanaging the funds [so] that only a small portion
of the promised improvements were completed, and by
otherwise failing to carry out the responsibilities
of their job."
The determination whether a duty exists is generally a
question of law for the court to decide. Ex parte BASF
Constr. Chems., LLC, 153 So. 3d 793, 801-02 (Ala. 2013). With
regard to Aliant's claims against the Board members, like the
board of directors governing any corporate body the Board
members had the duty to act with care and the duty to act with
loyalty. See Massey v. Disc Mfg., Inc., 601 So. 2d 449, 456
(Ala. 1992) ("The corporate fiduciary duty is divided into two
parts: (1) a duty of care; and (2) a duty of loyalty.").
Although the board of directors of a typical for-profit
corporation owe those duties to the corporation and its
shareholders, see, e.g., Jones v. Ellis, 551 So. 2d 396, 401
(Ala. 1989), the District is a public corporation with no
16
1150822, 1150823, 1150824
shareholders. However, just as a for-profit corporation
exists primarily to maximize profit for the benefit of its
shareholders, the District exists primarily to benefit those
owning property within its boundaries; accordingly, the Board
members owe their duties to owners of property within the
District. Inasmuch as Alabama is a "title theory" state,
Aliant, which at all relevant times held a mortgage on the
Twelve Oaks property, must be included among those to whom the
Board members owed a duty of care and a duty of loyalty. See
Maiden v. Federal Nat'l Mortg. Ass'n, 69 So. 3d 860, 865 (Ala.
Civ. App. 2011) ("Alabama is a 'title theory' state; thus,
when a person mortgages real property, the mortgagee obtains
legal title to the real property ....").
Having held that the Board members did owe certain duties
to Aliant, we also hold that Aliant met its burden of putting
forth substantial evidence establishing that a genuine issue
of material fact exists with regard to the other elements of
its
negligence
and
breach-of-fiduciary-duty claims
against
the
Board members. The affidavit of Aliant's expert Marcus A.
Watson in particular described the problematic nature of the
actions taken by the Board members, especially in light of the
fact that they were all related parties inasmuch as they
17
1150822, 1150823, 1150824
shared business interests in various entities involved in the
development of Twelve Oaks.
In their combined brief to this Court, the Twelve Oaks
defendants do not argue that Aliant failed to submit
substantial evidence establishing its negligence and breach-
of-fiduciary-duty claims against the Board members. Rather,
they argue that all the Twelve Oaks defendants were entitled
to a summary judgment on all the claims asserted against them
by Aliant on the basis of several affirmative defenses,
specifically, immunity, res judicata and collateral estoppel,
and the statute of limitations. In its order entering a
summary judgment in favor of the Twelve Oaks defendants, the
trial court in fact agreed that all the claims asserted by
Aliant were barred by the doctrines of res judicata or
collateral estoppel and by the statute of limitations. The
trial court also cited those affirmative defenses when
entering summary judgments in favor of the other defendants on
the claims asserted in Aliant's final amended complaint. For
the reasons that follow, we disagree that all of Aliant's
claims are barred by the doctrines of res judicata and
collateral estoppel and by the statute of limitations; the
defendants' general arguments in this regard are without
18
1150822, 1150823, 1150824
merit. Nevertheless, there are specific facts relevant to
some of
the
claims asserted against individual defendants such
that those claims are barred by principles of immunity or the
appropriate statute of limitations. Those exceptions are
discussed in subsequent sections of this opinion; no
affirmative defenses bar the negligence and breach-of-
fiduciary duty claims asserted against the Board members,
however, and our analysis of the general immunity, res
judicata/collateral-estoppel,
and
statute-of-limitations
arguments they make is equally applicable to the similar
arguments made by the other defendants.
The Board members first argue that they are entitled to
immunity based on the Alabama Improvement District Act, which
provides, in part:
"Districts, the members of the board, its
officers, and agents shall have the same immunity
from liability as a municipality and its officers.
No civil action shall be brought or maintained
against the district or any director thereof for or
on account of the negligence of a district or
director or its or his or her agents, servants, or
employees in or about the construction, acquisition,
installation,
maintenance,
operation,
superintendence, or management of any facility or
other improvement owned, controlled, maintained, or
managed by the district."
19
1150822, 1150823, 1150824
§ 11-99A-7, Ala. Code 1975. Emphasizing the second sentence
in this section, the Board members argue that no action in
negligence can be brought against them based on their actions
related to managing and operating the District. They further
argue that § 11-47-190, Ala. Code 1975, which sets forth the
immunity that applies to municipalities and their officers,
operates to bar any action against them based on intentional
torts as well; § 11-47-190 provides, in pertinent part:
"No city or town shall be liable for damages for
injury done to or wrong suffered by any person or
corporation, unless such injury or wrong was done or
suffered through the neglect, carelessness, or
unskillfulness of some agent, officer, or employee
of the municipality engaged in work therefor and
while acting in the line of his or her duty ... and
whenever the city or town shall be made liable for
damages by reason of the unauthorized or wrongful
acts or negligence, carelessness, or unskillfulness
of any person or corporation, then such person or
corporation shall be liable to an action on the same
account by the party so injured."
We disagree that these two statutes apply in this case to bar
the claims asserted by Aliant in count four of its final
amended complaint. Section 11-99A-7 is clear that the
legislature intended an improvement district and its board
members to have "the same immunity from liability as a
municipality and its officers," and § 11-47-190 provides that
a municipality can be sued for the negligent acts of its
20
1150822, 1150823, 1150824
agents and that, if a municipality is the subject of a lawsuit
as a result of the negligence of an agent, "then such person
... shall be liable to an action on the same account by the
party so injured." See, e.g., Morrow v. Caldwell, 153 So. 3d
764 (Ala. 2014) (recognizing that under § 11-47-190 a
municipality can be sued based upon the negligence of its
agent, while the agent can be sued in his or her individual
capacity for both negligent and intentional acts). Reading
these two statutes together, the sentence in § 11-99A-7
indicating that no claim can be pursued against a director of
an improvement district "for or on account of the negligence
of a district or director or its or his or her agents,
servants, or employees" must operate only to bar a negligence
claim from being asserted against a director based upon the
negligence of some other party –– not the director's own
negligence. This is consistent with how immunity is applied
to cases involving municipal employees. See, e.g., Newton v.
Town of Columbia, 695 So. 2d 1213, 1218 (Ala. Civ. App. 1997)
("[A]
municipality's chief
executive
is
not
vicariously liable
for the misconduct of his or her subordinates."). In this
case, the Board members are being sued based on their own
alleged wrongdoing, not the actions of each other or some
21
1150822, 1150823, 1150824
other agents. Accordingly, § 11-99A-7 does not bar the
negligence and breach-of-fiduciary duty claims asserted by
Aliant against the Board members.
We next consider the Board members' argument that they
are entitled to a summary judgment based on the doctrines of
collateral estoppel and res judicata. The trial court agreed,
stating in its order granting their motion for a summary
judgment:
"On May 2, 2011, Aliant filed suit previously in
this court against codefendants [Smith] and Four
Star [Investments] about the same loan they now
complain about. On October 13, 2011, the court
entered a judgment against Four Star [Investments]
and [Smith] in the amount of $2,241,287.75 as a
consequence of their default under the loan
transactions. This order represents a final,
binding adjudication of Aliant's claims concerning
the loan on the Twelve Oaks property. Indeed, this
court has previously held Aliant was estopped from
bringing tort claims against [Smith].
"Collateral estoppel applies when '(1) an issue
in a prior action was identical to the issue
litigated in the present action; (2) the issue was
actually litigated in the prior action; (3)
resolution of the issue was necessary to the prior
judgment; and (4) the same parties are involved in
the two actions.' Lee L. Saad Constr. Co. v. DPF
Architects, P.C., 851 So. 2d 507, 520 (Ala. 2002).
Here, (1) Aliant is suing over the very same issue
–- [the Aliant loan]; (2) the loan was previously
litigated to a final judgment; (3) resolution of the
loan was necessary for the prior judgment; and (4)
Aliant, Four Star [Investments], and [Smith] were
all parties to both cases. Aliant is the same party
22
1150822, 1150823, 1150824
seeking to relitigate the same loan. See Whisman v.
Alabama Power Co., 512 So. 2d 78, 82 (Ala. 1987)
('The party identity criterion does not require
complete identity, but only that the party against
whom res judicata is asserted was either a party or
in privity with a party to the prior action ....').
Because the elements of collateral estoppel have
been met, Aliant is estopped from prosecuting this
suit over the very same loan.
"Aliant's claims are precluded in this case.
Aliant has already brought suit on this very same
loan and obtained a judgment. Because Aliant seeks
to relitigate the same issues as those in [the prior
action], its claims are barred.
"'If a claim, which arises out of a single
wrongful act or dispute, is brought to a
final conclusion on the merits, then all
other claims arising out of that same
wrongful act or dispute are barred, even if
those claims are based on different legal
theories or seek a different form of
damages, unless the evidence necessary to
establish the elements of the alternative
theories
varies
materially
from
the
evidence necessary for a recovery in the
first action.'
"Equity Resources Mgmt., Inc. v. Vinson, 723 So. 2d
634, 638 (Ala. 1998).
"The prior judgment is res judicata. See Martin
v. Cash Express, Inc., 60 So. 3d 236, 241 (Ala.
2010) ('[A] judgment or decree by consent is as
conclusive between them and their privies as if the
suit had been an adversary one and rendered after a
trial on the facts.'); see Whisman v. Alabama Power
Co., 512 So. 2d 78, 82 (Ala. 1987) ('The issue has
been litigated and, if the defense is asserted, the
prior litigation will preclude this issue from being
relitigated.'). Since Aliant has already litigated
its claim on the loan at issue and obtained a
23
1150822, 1150823, 1150824
judgment, it cannot now relitigate the issue under
a different theory."
This Court has explained that "[r]es judicata and
collateral estoppel are two closely related, judicially
created doctrines that preclude the relitigation of matters
that have been previously adjudicated or, in the case of res
judicata, that could have been adjudicated in a prior action."
Lee L. Saad Constr. Co. v. DPF Architects, P.C., 851 So. 2d
507, 516 (Ala. 2002). Essentially, the doctrine of collateral
estoppel operates to bar the relitigation of issues actually
litigated in a previous action, while the doctrine of res
judicata bars the litigation of claims that were or could have
been litigated in a previous action. Lee L. Saad, 851 So. 2d
at 516-17. Aliant argues that neither doctrine has
application here because, it says, the default action was
limited to determining whether Four Star Investments had
breached an agreement to repay a promissory note secured by a
mortgage on the Twelve Oaks property and whether Smith had
breached an accompanying agreement personally guaranteeing
Four Star Investments' debt. Thus, Aliant argues, collateral
estoppel does not apply because, it says, the issues
surrounding the claims raised in the instant action –– such as
24
1150822, 1150823, 1150824
whether the Board members breached any duties they owed Aliant
and whether any of the defendants made misrepresentations to
Aliant –- were not litigated in the previous action, and,
Aliant argues, res judicata does not apply because, it says,
the claims asserted in the instant action were not and could
not have been asserted in the previous action. We agree.
With regard to collateral estoppel, the trial court and
the Board members broadly identify the issue litigated in a
prior action and the issue Aliant allegedly now seeks to
relitigate as being the Aliant loan. However, although the
Aliant loan is certainly a relevant part of both actions, it
is not itself an "issue" that may be the subject of collateral
estoppel. As explained in Lee L. Saad, collateral estoppel
operates to prevent the relitigation of factual issues that
have already been decided in a prior action. 851 So. 2d at
519. Thus, factual issues relating to the Aliant loan that
were decided in the default action –– such as whether Four
Star Investments had executed a valid promissory note with
Aliant, whether Smith had personally guaranteed Four Star
Investments' debt, and whether those agreements were breached
–– cannot be relitigated in the instant or any other action;
collateral estoppel precludes it. However, the factual issues
25
1150822, 1150823, 1150824
that must be resolved to decide the negligence, fraud, and
other claims now asserted by Aliant against the Board members
and other defendants in the instant action –- such as whether
any duties were breached and whether any misrepresentations
were made –– were undisputedly not considered in the default
action; those issues simply were not relevant to whether Four
Star Investments and Smith breached their loan and guarantee
agreements. Inasmuch as the doctrine of collateral estoppel
bars the relitigation only of "issues actually decided in a
former action," it is without effect in this case. Leverette
v. Leverette, 479 So. 2d 1229, 1237 (Ala. 1985) (emphasis
added).
We next turn to the Board members' argument that Aliant's
claims against them are barred by the doctrine of res
judicata. In essence, even though we have concluded that the
factual issues relevant to Aliant's present claims were not
actually decided in the default action, we must still
determine whether Aliant could have asserted its present
claims in the default action, thus putting those factual
issues before the court at that time. See Dairyland Ins. Co.
v. Jackson, 566 So. 2d 723, 725 (Ala. 1990) (explaining that
res judicata will bar further litigation of "any claim that
26
1150822, 1150823, 1150824
was or could have been adjudicated in the prior action"). The
Board members argue that the doctrine of res judicata bars
Aliant's present claims "because the matters in the [instant]
action involve the same wrongful act and dispute (i.e., non-
payment of the [Aliant] loan) as was at issue in the first
action. This is true regardless of what name or title that
Aliant may use to describe its claims." The Twelve Oaks
defendants' brief, pp. 30-31. Aliant, however, argues that
the default action was essentially just a simple breach-of-
contract case involving one wrongful act –– the failure to pay
moneys owed by contract –– while the instant action
encompasses entirely different claims based on other wrongs,
such as the breaching of duties and the making of
misrepresentations. Moreover, Aliant argues, it could not
have asserted its present claims in the default action
because, it alleges, it did not discover the facts supporting
the present claims until after the default action was
resolved.
The elements of res judicata are (1) a prior judgment on
the merits, (2) rendered by a court of competent jurisdiction,
(3) with substantial identity of the parties, and (4) with the
same cause of action presented in both suits. Equity Res.
27
1150822, 1150823, 1150824
Mgmt., Inc. v. Vinson, 723 So. 2d 634, 636 (Ala. 1998) The
only element now disputed by the parties is the fourth ––
whether the cause of action in the instant case is the same as
the cause of action in the default action. This Court has
explained the factors relevant to making that determination:
"The determination of whether the cause of action is
the same in two separate suits depends on whether
the issues in the two actions are the same and
whether the same evidence would support a recovery
for the plaintiff in both suits. Dominex, Inc. v.
Key, 456 So. 2d 1047, 1054 (Ala. 1984). Stated
differently, the fourth element is met when the
issues involved in the earlier suit comprehended all
that is involved in the issues of the later suit.
Adams v. Powell, 225 Ala. 300, 142 So. 537 (1932)."
Dairyland Ins., 566 So. 2d at 726. See also Chapman Nursing
Home, Inc. v. McDonald, 985 So. 2d 914, 921 (Ala. 2007)
(explaining that res judicata applies to all legal theories
and claims arising out of the same nucleus of operative facts
and that two causes of action are the same for res judicata
purposes when the same evidence is applicable in both
actions).
In considering those factors, we cannot agree with the
trial court that the claims now asserted by Aliant are
essentially the same as the claim asserted by Aliant in the
default action. The evidence that Aliant presented in the
28
1150822, 1150823, 1150824
default action indicated that Four Star Investments and Smith
executed and subsequently breached agreements with Aliant and
supported a recovery for Aliant on the breach-of-contract
claims asserted in the default action. However, that evidence
would not support and is not needed to prove Aliant's present
claims of negligence, breach of fiduciary duties, fraud,
conspiracy, and wantonness. Those claims are based on
separate and distinct actions, not directly related to the
Aliant loan, that were allegedly taken by the Board members
and other defendants, and separate evidence is needed to
establish those claims. For example, with regard to the
negligence and breach-of-fiduciary-duty claims asserted
against the Board members, that evidence would include
evidence of the actions the Board members took in their
official capacities and whether those actions were sufficient
to fulfill the duties they owed Aliant. Accordingly, the
doctrine of res judicata does not bar Aliant from asserting
its present claims.
Our conclusion that the doctrines of res judicata and
collateral estoppel do not apply in this case is supported by
this Court's decision in Benetton S.p.A. v. Benedot, Inc., 642
So. 2d 394 (Ala. 1994), a similar case in which it was alleged
29
1150822, 1150823, 1150824
that a previous action between parties in which a judgment was
entered on a debt operated as res judicata to bar a subsequent
action between the same parties. Benetton involved a dispute
between the Italian clothing manufacturer Benetton and its
United
States
subsidiary
and
sales
representatives
(hereinafter referred to collectively as "Benetton"), on the
one hand, and Al-Ben, Inc., an Alabama company that had
contracted with Benetton to operate certain Benetton stores in
Alabama, on the other hand. 642 So. 2d at 396. Al-Ben had
had a tumultuous relationship with Benetton from the
beginning, alleging that Benetton failed to complete its
obligations so that the stores could open when originally
planned and that Benetton constantly sent it unordered and
unwanted merchandise that had to be sold for a loss.
Ultimately Al-Ben sued Benetton asserting claims of fraud,
conspiracy, and breach of contract.
Benetton separately sued the owners of Al-Ben in federal
district court, alleging that the owners had personally
guaranteed debt Al-Ben had incurred for merchandise received
from Benetton, and Benetton ultimately obtained a judgment in
its favor on this claim. 642 So. 2d at 397. Al-Ben thereafter
was awarded $1,500,000 in the state-court action, and Benetton
30
1150822, 1150823, 1150824
appealed that judgment to this Court, arguing that Al-Ben's
fraud, conspiracy, and breach-of-contract claims should have
been barred by the doctrines of res judicata and/or collateral
estoppel based on the earlier judgment entered by the federal
district court. 642 So. 2d at 398-99. In rejecting
Benetton's res judicata argument, this Court applied the
"same-evidence" test discussed supra, stating:
"We cannot say that the same cause of action is
present
in
both
actions.
[Al-Ben's
owners']
liability, through personal guarantees, for Al–Ben's
debt based on unpaid invoices does not involve the
issues of fraud, conspiracy, and breach of contract.
The first action does not involve the issues raised
in the second action, and the same evidence would
not support a recovery for the plaintiffs in both
actions. Therefore, the doctrine of res judicata
does not bar Al–Ben's action against Benetton based
on fraud, conspiracy, and breach of contract."
Benetton, 642 So. 2d at 400. The Benetton Court also declined
to apply the doctrine of collateral estoppel, noting that the
federal district court had not decided any factual issues
relevant to the state-court action because the federal
district court had entered a judgment representing only the
amount Al-Ben's owners conceded they owed; the federal
district court had made no judgment on debt attributable to
merchandise Al-Ben's owners claimed they had not wanted or
ordered. Id.
31
1150822, 1150823, 1150824
Applying Benetton to the facts of this case, we note that
Four Star Investments' and Smith's liability for the Aliant
loan did not involve issues of negligence, breach of fiduciary
duties, fraud, conspiracy, and wantonness. The default action
did not involve the issues raised in the instant action, and
the same evidence would not support a recovery for Aliant in
both actions. Accordingly, the doctrine of res judicata does
not bar the instant action. Moreover, because the Board
members and other defendants have not identified any issue
that was actually litigated in the default action that Aliant
is seeking to relitigate in this action, the doctrine of
collateral estoppel is inapplicable as well.
Finally, the Board members also argue that Aliant's
negligence and breach-of-fiduciary-duty claims against them
are barred by the applicable statute of limitations. The
trial court held, and the Board members argue, that Aliant
suffered injury (1) when it closed the Aliant loan in August
2007; (2) when it agreed to subordinate its security interest
in the Twelve Oaks property in July 2008; and (3) when the
bond proceeds were disbursed to Smith, his companies, and
others beginning in 2008. Accordingly, they argue, Aliant's
tort claims accrued, at the latest, in 2008, and the
32
1150822, 1150823, 1150824
applicable two-year statute of limitations, see § 6-2-38(l),
Ala. Code 1975, bars the claims now asserted inasmuch as
Aliant did not initiate this action until March 2012. They
further argue that Aliant was aware, at the time the bonds
were issued, of the general process by which the bond proceeds
would be disbursed and that Aliant knew that it could inspect
the Twelve Oaks property to view construction progress at any
time but apparently failed to do so; accordingly, they argue,
Aliant should have been aware of its potential claims within
that two-year period and it cannot rely on the discovery rule
of § 6-2-3, Ala. Code 1975. See generally DGB, LLC v. Hinds,
55 So. 3d 218, 224 (Ala. 2010) (explaining that, pursuant to
§ 6-2-3, if a potential tort claim has been fraudulently
concealed, the two-year statute of limitations generally
applicable to such a claim will be tolled until the plaintiff
discovers the fraud).
Aliant disputes the trial court's conclusion and the
Board members' argument that it suffered injury in 2008 and
that the statute of limitations began to run at that time.
Aliant argues that,
although much of the malfeasance allegedly
committed by
the
various defendants occurred during that time,
Aliant remained unaware of that fact for several years, and it
33
1150822, 1150823, 1150824
suffered no legal injury until early 2011, when Four Star
Investments defaulted on the Aliant loan. Aliant accordingly
argues that § 6-2-3 applies and that its March 2012 complaint
was timely.
In support of its argument, Aliant relies heavily upon
Bryant Bank v. Talmage Kirkland & Co., 155 So. 3d 231 (Ala.
2014), which it alleges mirrors this case. In that case, a
bank relied upon an appraisal conducted in December 2007
valuing a property at $1,700,000 to issue a commercial
mortgage loan that same month. 155 So. 3d at 233. After the
borrower defaulted in October 2008, the bank ordered a new
appraisal of the property from a different company, which
concluded that the property was worth only $205,000. In July
2010, the bank sued the appraisers, alleging negligent
misrepresentation and breach of contract. The appraisers
thereafter successfully moved the trial court to enter a
summary
judgment
in
their
favor
on
the
negligent-
misrepresentation claim, and the bank appealed that judgment
to this Court. On appeal, the appraisers argued that the
bank's claim accrued in December 2007 when the loan was made
and that the bank's July 2010 complaint was accordingly filed
outside the two-year limitations period. 155 So. 3d at 238.
34
1150822, 1150823, 1150824
The bank, however, argued that the claim did not accrue until
"it incurred damage as a result of [the borrower's] default on
the loan." 155 So. 3d at 237. This Court ultimately declined
to affirm the summary judgment on the basis of the appraisers'
statute-of-limitations argument, explaining:
"No evidence was presented indicating that [the
bank] had actual knowledge –– for more than two
years before commencing this action –– that the
appraisal was conducted in a negligent manner.
Accordingly,
[the
bank's]
negligent-
misrepresentation claim accrued when a reasonable
person would have discovered the fraud –– a question
within the purview of the jury. Because a genuine
issue of material fact exists as to when [the bank]
discovered facts that would have caused a reasonable
person to inquire and led to the discovery of the
fraud
giving
rise
to
[the
bank's]
negligent-misrepresentation claim, the defendants
were not entitled to a summary judgment on the basis
that the statute of limitations had run on its
negligent-misrepresentation claim. ..."
Bryant Bank, 155 So. 3d at 238.
There is likewise no evidence in this case establishing
that Aliant had actual knowledge of the facts that form the
basis of its claims at the time they were occurring. The
Board members and other defendants argue that Aliant should
have taken steps to discover those facts based on the lack of
progress Aliant alleges it saw at Twelve Oaks during the time
the bond proceeds were being depleted; however, Williamson
35
1150822, 1150823, 1150824
gave sworn testimony indicating that he concluded, based on
the lack of construction activity he witnessed, that
development had been temporarily put on hold during this time
and that the bond proceeds were accordingly not being
disbursed. Williamson further explained that Aliant had no
role in the disbursement of the bond proceeds, which were held
by U.S. Bank, as trustee, and were disbursed after requests
for reimbursement were approved by EOS and the District, and
that Aliant received no invoices and had no right to access
the relevant bank records. Under these facts, the question of
when Aliant's tort claims accrued is a question for the jury;
a court cannot properly decide as a matter of law when a
reasonable person should have discovered that claims had been
fraudulently concealed unless the evidence is undisputed. See
Bryant, 155 So. 3d at 237 (explaining that the issue of when
a reasonable person would have discovered fraud is generally
a question of fact for the jury that can be decided as a
matter of law only when the facts are undisputed and the
evidence supports but one conclusion). The summary judgment
entered by the trial court in favor of the Board members on
Aliant's
negligence
and
breach-of-fiduciary-duty
claims
cannot
36
1150822, 1150823, 1150824
be affirmed on statute-of-limitations grounds and is due to be
reversed.
Count four of Aliant's complaint also asserts negligence
and breach-of-fiduciary-duty claims against WHA. Aliant
maintains that, like the Board members, WHA had a duty to
responsibly manage and oversee the District and that it
breached that duty in several respects noted above in the
discussion of the similar claim made against the Board
members. WHA argues that it had no fiduciary relationship
with Aliant and that it owed no duty to Aliant –– fiduciary or
otherwise. For the reasons that follow, we agree.
With regard to Aliant's breach-of-fiduciary-duty claim
against WHA, the trial court stated:
"Aliant has also failed to establish that WHA
owed it a fiduciary duty, as the facts indicate
Aliant had no relationship, conversations, or
communications with WHA. Without a relationship
between WHA and Aliant a duty cannot be established
much
less
a
fiduciary
duty.
Aliant's
own
representative specifically testified that he was
not aware of any relationship between [Aliant and]
WHA much less a fiduciary relationship between the
two entities.
"In Alabama, a fiduciary or confidential
relationship [has been] defined [as follows]:
"'"'A confidential relationship is one in
which one person occupies toward another
such a position of adviser or counselor as
37
1150822, 1150823, 1150824
reasonably to inspire confidence that he
will act in good faith for the other's
interests, or when one person has gained
the confidence of another and purports to
act or advise with the other's interest in
mind; where trust and confidence are
reposed by one person in another who, as a
result, gains an influence or superiority
over the other; and it appears when the
circumstances make it certain the parties
do not deal on equal terms, but, on the one
side, there is an overmastering influence,
or, on the other, weakness, dependence, or
trust, justifiably reposed; in both an
unfair advantage is possible. It arises in
cases in which confidence is reposed and
accepted, or influence acquired, and in all
the variety of relations in which dominion
may be exercised by one person over
another.'"'
"DGB, LLC v. Hinds, 55 So. 3d 218, 233 (Ala. 2010)
(quoting Bank of Red Bay v. King, 482 So. 2d 274,
284 (Ala. 1985), quoting in turn 15A C.J.S.
Confidential (1967)).
"Further, a fiduciary relationship is defined
as:
"'[a] relationship in which one person is
under a duty to act for the benefit of
another on matters within the scope of the
relationship .... Fiduciary relationships
usually arise in one of four situations:
(1) when one person places trust in the
faithful integrity of another, who as a
result gains superiority or influence over
the first, (2) when one person assumes
control and responsibility over another,
(3) when one person has a duty to act for
or give advice to another on matters
falling
within
the
scope
of
the
relationship, or (4) when there is a
38
1150822, 1150823, 1150824
specific
relationship
that
has
traditionally been recognized as involving
fiduciary duties, as with a lawyer and a
client or a stockbroker and a customer.'
"Swann v. Regions Bank, 17 So. 3d 1180, 1193 (Ala.
Civ. App. 2008) (quoting Black's Law Dictionary,
1315 (8th. 2004)).
"Aliant's corporate representatives testified
that there was never any relationship between WHA
and Aliant. Mr. [Craig] Wrathell[, the president]
of WHA[,] also testified that he did not have any
communications with Aliant. Since Aliant has not
provided substantial evidence that WHA owed it a
fiduciary duty, summary judgment is granted in WHA's
favor on the breach-of-fiduciary-duty count."
Aliant has identified no evidence that would refute the trial
court's conclusion that Aliant had no relationship with WHA,
much less a confidential or fiduciary relationship. Notably,
this is not a case where we must determine whether the parties
engaged in arm's length dealing or whether there was a
fiduciary relationship; rather, it is undisputed that Aliant
and WHA did not deal with each other at all –– there was no
relationship between them. In light of this undisputed
evidence, we agree with the trial court that WHA owed Aliant
no fiduciary duties, and the summary judgment entered in favor
of WHA on Aliant's breach-of-fiduciary-duties claim is
accordingly due to be affirmed. We further note that,
although Aliant in its brief cites several cases to support
39
1150822, 1150823, 1150824
its argument that WHA owed it a general duty of care, the
alleged breach of which forms the basis of Aliant's negligence
claim, it has cited no caselaw to support its argument that
WHA owed it specific fiduciary duties.
The final remaining claim asserted by Aliant in count
four is its negligence claim against WHA. Aliant argues that
it was injured as a result of WHA's alleged failure to act
with care and skill in its role as manager of the District.
WHA's duties as manager of the District were outlined in a
management agreement between it and the District; however, it
is undisputed that Aliant was not a party to that contract.
Aliant accordingly acknowledges the general rule in Alabama
that "where the charge of negligence is based upon breach of
duty arising out a contractual relationship, no cause of
action arises in favor of one not in privity to the contract."
Federal Mogul Corp. v. Universal Constr. Co., 376 So. 2d 716,
724 (Ala. Civ. App. 1979). However, citing Berkel & Co.
Contractors, Inc. v. Providence Hospital, 454 So. 2d 496 (Ala.
1984), and Cincinnati Insurance Cos. v. Barber Insulation,
Inc., 946 So. 2d 441 (Ala. 2006), Aliant argues that it is
entitled to rely on an exception to that general rule that
applies when the defendant negligently performed its contract
40
1150822, 1150823, 1150824
with knowledge that others were relying on its proper
performance. See also Williams v. Jackson Co., 359 So. 2d
798, 801 (Ala. Civ. App. 1978) ("Thus one who undertakes to
perform a contract may be determined to owe a duty to others
not privy to the contract to perform his obligations under the
contract without negligent injury to such others. Such duty
may arise from the foreseeability that such others may be
injured by negligent performance, or duty may arise from the
knowledge
that
others
are
relying
upon
a
proper
performance."). Inasmuch as Aliant's arguments are based
primarily upon Providence Hospital and Barber, we begin with
an analysis of those cases.
Providence Hospital involved negligence claims against a
hospital and its architect asserted by a subcontractor hired
to install piling supports for an addition to the hospital.3
454 So. 2d at 499. The hospital's architect directed the
subcontractor's construction of the piling supports, and,
after the piling supports failed, the subcontractor sued,
alleging that the hospital and its architect breached their
duties of care in directing the construction. 454 So. 2d at
3The general contractor who had contracts with both the
subcontractor and the hospital was not a party to the action.
41
1150822, 1150823, 1150824
500. After a summary judgment was entered in favor of the
hospital, the subcontractor appealed to this Court, which
reversed the summary judgment, explaining that the hospital
did owe a duty of care to the subcontractor:
"[The hospital] argues further that even if
privity is not a defense, the facts disclosed that
no duty was owed to [the subcontractor]. In
deciding whether to impose a duty in a construction
context, the trial court should analyze six factors:
"'"(1)[T]he
extent
to
which
the
transaction
was intended to affect the other person;
(2) the foreseeability of harm to him; (3)
the degree of certainty that he suffered
injury; (4) the closeness of the connection
between the defendant's conduct and the
injury; (5) the moral blame attached to
such conduct; and (6) the policy of
preventing future harm."'
"Howe v. Bishop, 446 So. 2d 11 (Ala. 1984) (Torbert,
C.J., concurring in the result), quoting from United
Leasing Corp. v. Miller, 45 N.C. App. 400, 406–07,
263 S.E.2d 313, 318 (1980). Under this standard,
[the hospital] clearly owes [the subcontractor] a
duty to act reasonably in directing and approving
pile construction work. The transaction was
intended to affect [the subcontractor], and it was
foreseeable that it would. The alleged harm is
certain and directly connected to [the hospital's]
conduct. Given the business relationship and lack
of personal injury, the question of moral blame is
not relevant in this case. The final factor, the
policy of preventing future harm, also supports the
finding of duty. [The hospital] could have averted
the alleged loss either by not acting or by acting
reasonably. This Court will impose liability on
[the hospital] to require it to act responsibly.
42
1150822, 1150823, 1150824
"This argument for a legal duty is especially
compelling because [the hospital] and its architect
had the power through liquidated damages and other
means to force [the subcontractor] to do as [the
hospital] wished. The court in United States v.
Rogers & Rogers, 161 F. Supp. 132, 136 (S.D. Cal.
1958), explained the responsibilities arising from
unequal positions in the context of contractor and
architect:
"'Altogether too much control over the
contractor necessarily rests in the hands
of the supervising architect for him not to
be placed under a duty imposed by law to
perform
without
negligence
his
functions
as
they affect the contractor. The power of
the architect to stop the work alone is
tantamount to a power of economic life or
death over the contractor. It is only just
that such authority, exercised in such a
relationship, carry commensurate legal
responsibility.'
"Under the circumstances, [the hospital] and its
architect owed [the subcontractor] a duty to act
reasonably in directing the pile work."
Providence Hospital, 454 So. 2d at 502-03. Thus, in
Providence Hospital, the Court determined that it was
appropriate to find that a duty existed even in the absence of
a contract.
In contrast, in Barber this Court determined that no duty
was owed where there was no privity between the parties. In
Barber, a general contractor was hired to construct a lake
house and, during the construction process, that general
43
1150822, 1150823, 1150824
contractor hired a subcontractor to install insulation in the
walls. 946 So. 2d 442. Some time after the completed house
was delivered to the homeowners, a pipe in the walls burst,
causing extensive water damage, and the homeowners' insurance
company subsequently sued the subcontractor responsible for
installing the insulation, alleging negligence. After a
summary judgment was entered in favor of the subcontractor,
the insurance company appealed to this Court, which affirmed
the summary judgment after concluding that the subcontractor
owed no duty to the homeowners. 946 So. 2d at 449. The
Barber
Court
reviewed
Providence
Hospital
at
length,
distinguishing it as follows:
"Prominent
in
the
Court's
analysis
[in
Providence Hospital] was the control the architect
exercised over the subcontractor's work. [The
subcontractor's]
own
contractual
performance
depended on the care exercised by the architect;
that is, [the subcontractor] was relying on the
architect, as the hospital's agent, to exercise due
care in 'directing the pile work.' 454 So.2d at
503.
"The element of reliance and the nature of the
defendant are the features that most clearly
distinguish Providence Hospital from this case.
Providence Hospital simply represents the widely
recognized rule that architects and similar design
professionals may be liable in tort to persons with
whom they are not in privity, when it is foreseeable
that such persons would detrimentally rely on the
professional's representations or performance. ...
44
1150822, 1150823, 1150824
"....
"[The insurance company's] contention that the
[homeowners] relied on the contract between [the
general contractor] and [the subcontractor] falls
far short of the particularized reliance of the
plaintiffs upon the architect ... in Providence
Hospital .... Indeed, [one of the homeowners]
testified by deposition that he had 'never heard' of
[the subcontractor] prior to this litigation. In
fact, it was [the general contractor] –– not [the
homeowners] –– that relied on [the subcontractor].
The [homeowners] relied on [the general contractor],
not [the subcontractor]. The absence of reliance
and consideration of the six factors set forth in
Providence
Hospital
militate
against
imposing
liability on [the subcontractor].
"....
"In short, [the insurance company] has cited no
persuasive
authority
for
imposing
on
[the
subcontractor] a duty to the [homeowners] arising
out of its insulation subcontract with [the general
contractor. Thus, the trial court did not err in
entering
a
summary
judgment
for
[the
subcontractor]."
Id. at 447-49. The instant case is more akin to Barber than
it is to Providence Hospital. First, in Providence Hospital,
the fact that the hospital's architect exercised authority
over and directed the subcontractor's work was crucial to the
Court's holding that the hospital owed the subcontractor a
duty. In this case, Aliant seeks to impose a duty upon WHA;
however, WHA was never in a position of control over Aliant.
Rather, the entity that was in a position of control in this
45
1150822, 1150823, 1150824
case was the District. The District hired and paid WHA to
provide management services, and, under the terms of the
management agreement, the District could terminate its
relationship with WHA for good cause at any time or for any
reason whatsoever upon giving 60 days' written notice. Aliant
played no part in that relationship. To paraphrase the Barber
Court, the "particularized reliance" that was present in
Providence Hospital simply does not exist in this case. 946
So. 2d at 448.
When comparing the facts of the instant case to those in
Barber, however, it is evident that a similar conclusion that
no duty was owed is warranted. Just as the homeowners in
Barber had no relationship with the subcontractor, it is
undisputed that Aliant had no relationship with WHA. The
District, not Aliant, relied upon WHA to provide management
and administrative services. For these reasons, the trial
court correctly concluded that WHA owed no duty to Aliant, and
the summary judgment entered on the negligence claim asserted
by Aliant against WHA in count four of its complaint is
accordingly due to be affirmed.
46
1150822, 1150823, 1150824
IV.
Count five of Aliant's final amended complaint asserts
negligence
and
breach-of-fiduciary-duty
claims
against
the
EOS
defendants. Aliant argues generally that the EOS defendants
failed to perform the engineering services they were hired by
the District to perform with the skill and care required by
the recognized standards of the engineering profession. In
its final amended complaint, Aliant specifically identifies
the following ways in which the EOS defendants were alleged to
have failed in their duties:
"1)
by
failing to
properly monitor
and
supervise
the construction of the planned improvements; 2) by
failing to monitor the use of the [bond] funds; 3)
by failing to independently confirm that requisition
requests submitted for reimbursement from bond funds
contained invoices that had not been altered, were
proper and/or were for work actually performed; 4)
by relying upon representations of [Smith] about the
progress of the development without independent
knowledge or verification; 5) by failing to
understand the development, including verification
of which phases they were reviewing; 6) by
submitting false and misleading progress reports
about the actual progress of the development and
implementation of the promised improvements; and 7)
by otherwise failing to carry out their professional
responsibilities."
As the Board members and WHA argued with regard to the
negligence and breach-of-fiduciary-duty claims asserted
against them in count four of Aliant's final amended
47
1150822, 1150823, 1150824
complaint, the EOS defendants first argue that the summary
judgment entered in their favor on the similar claims asserted
against them should be affirmed on grounds of immunity, res
judicata/collateral estoppel, and statute of limitations. In
many respects, their arguments on these points are effectively
the same arguments advanced by the Board members and rejected
by this Court in Part III of this opinion; however, the facts
underlying
the
EOS
defendants'
statute-of-limitations
argument
differ in one crucial respect that ultimately dictates a
different result.
This action was initiated by Aliant in March 2012. In
that initial complaint, Aliant asserted claims against Four
Star Investments, Twelve Oaks Properties, WHA, and the Board
members. However, no claims were asserted against the EOS
defendants at that time; notably, the complaint named no
fictitious defendants either. Aliant did not assert any
claims against the EOS defendants until October 29, 2014.
Aliant argues that it did not discover the facts surrounding
the EOS
defendants' role in the alleged conspiracy surrounding
the Twelve Oaks development until after it began discovery in
this case and, more specifically, when it deposed Harbison in
August 2014; however, the EOS defendants argue that Aliant,
48
1150822, 1150823, 1150824
had it
been exercising reasonable diligence, should have known
of the relevant facts at least when it initiated this lawsuit
in March 2012 –– more than two years before it asserted its
claims against the EOS defendants in October 2014 and, the EOS
defendants argue, outside the period set forth in § 6-5-
221(a), Ala. Code 1975, which provides, in relevant part:
"All civil actions in tort, contract, or otherwise
against any ... engineer performing or furnishing
the design, planning, specifications, testing,
supervision, administration, or observation of any
construction of any improvement on or to real
property ... for the recovery of damages for:
"(i) Any defect or deficiency in the
design, planning, specifications, testing,
supervision,
administration,
or
observation
of the construction of any such improvement
...; or
"(ii) Damage to real or personal
property caused by any such defect or
deficiency; ...
"....
"shall be commenced within two years next after a
cause of action accrues or arises, and not
thereafter. ..."
Section 6-5-220(e), Ala. Code 1975, further provides that the
two-year period described in § 6-5-221(a) begins to run "at
the time the damage or injury is or in the exercise of
reasonable diligence should have been first discovered,
49
1150822, 1150823, 1150824
whichever is earlier." In § 6-5-225(c), Ala. Code 1975, the
legislature specifically stated that its intent in § 6-5-
221(a) was to apply the discovery rule of § 6-2-3, Ala. Code
1975, to
actions against architects, engineers, and builders.
As discussed in Part III, this Court explained in Bryant
Bank that the question of when a reasonable person should have
discovered a claim is generally a question of fact within the
purview of the jury. 155 So. 3d at 238. Indeed, that
question will be decided only as a matter of law when the
facts are undisputed and the evidence warrants but one
conclusion or,
stated another way, when the evidence indicates
that the plaintiff actually knew of facts that would have put
a reasonable person on notice of the existence of a claim.
155 So. 3d at 237. The EOS defendants argue that this is
precisely such a case inasmuch as, they argue, the evidence
establishes that Aliant possessed information putting it on
notice of the EOS defendants' alleged wrongful acts at least
by October 29, 2012, two years before it actually asserted
claims against them. In support of this argument, the EOS
defendants emphasize that Four Star Investments defaulted on
the Aliant loan in early 2011 and Aliant sued it and Smith
alleging breach of his personal guaranty agreement in May
50
1150822, 1150823, 1150824
2011. In a deposition, Williamson testified that he had been
monitoring the construction progress at Twelve Oaks and that,
"[w]hen the note was not renewed and went into default, and
then
through
the
process
of
discovering
additional
information, I was shocked to discover that the entire
proceeds of the bonds had been disbursed." Aliant thereafter
obtained a judgment against Four Star Investments and Smith in
August 2011. In December 2011, Aliant had the Twelve Oaks
property appraised; in its March 2012 original complaint,
Aliant asserts that it learned at that time that the promised
improvements had not been made even though Smith and his
companies were out of money with which to continue development
and that the Twelve Oaks property now had a negative net value
as a result of the assessments that encumbered it.
During this same time, Aliant was conducting post-
judgment discovery to assist it in collecting its August 2011
judgment, and it notified EOS pursuant to Rule 45(a)(3)(A),
Ala. R. Civ. P., that it intended to issue EOS a subpoena
requesting the production of all documents EOS had pertaining
to the District, including "[a] complete accounting of every
dollar spent and/or disbursed on Twelve Oaks by the [District]
or [EOS] from the funds received from the bond issue
51
1150822, 1150823, 1150824
(including documents showing when, how much, for what, and to
whom said disbursements were issued)." After Four Star
Investments objected to
the subpoena, Aliant filed a response,
explaining:
"11. While Aliant's suit claims against [Four
Star Investments and Smith] involved a breach of
promissory note, there was much more involved.
Aliant was induced by [Four Star Investments and
Smith] and other parties to subordinate its first
mortgage position in favor of [the District bonds].
The funds from these bonds were to be used to fund
the development of the infrastructure for the Twelve
Oaks subdivision.
"....
"13. It is unclear whether the funds advanced
to [Four Star Investments and Smith] through the
bonds were ever used in the subdivision. If there
is any information in possession of any of the
proposed subpoenaed parties which could be used to
enhance Aliant's position or interest in the
District property or lead to the discovery of
additional information (including the location of
any depository accounts and/or any alter egos of
[Four Star Investments and Smith]) about [Four Star
Investments' and Smith's] assets or the possible
improper or fraudulent transfer thereof then Aliant
is entitled to discover the same."
The EOS defendants allege that no subpoena was ultimately
issued to them but that they voluntarily delivered the
requested materials to Aliant in March 2012 and that Aliant
returned them that same month after making copies for its
files. Included in those materials were all the reimbursement
52
1150822, 1150823, 1150824
requests and documents submitted by Smith and approved by
Harbison.
In March 2012, Aliant filed its initial complaint
asserting claims against the Board members, WHA, and others
and alleging that a substantial amount of the bond proceeds
had been improperly disbursed to Twelve Oaks Properties
without proper documentation. In the course of the discovery
process relating to those claims, WHA, on October 4, 2012,
responded to an Aliant interrogatory regarding its oversight
of the progress of the Twelve Oaks development by stating that
"[t]he progress of the development would be under the purview
of the district engineer, who would coordinate with the
developer. [WHA] does not deal with the daily activities or
progress of the construction of the improvements."4 We also
note that when U.S. Bank moved to intervene in this action in
June 2012, it placed in the court record a copy of the
engineer's report completed by Harbison in November 2007 and
4At some point, Aliant produced a copy of WHA's
interrogatory responses for the EOS defendants. Notes,
presumably made by the person who reviewed the responses on
behalf of Aliant, were handwritten next to the responses, and
the note next to WHA's response explaining that the progress
of the development was "the purview of the district engineer"
reads "Add Engineer?"
53
1150822, 1150823, 1150824
a copy of the reimbursement form that had to be completed
before bond proceeds could be disbursed. This form was the
same style as the completed reimbursement forms produced by
the EOS defendants for Aliant in March 2012 and the form
clearly indicates that no disbursement could be paid until an
EOS engineer certified that the disbursement was for the
Twelve Oaks project and was consistent with "(i) the
applicable acquisition or construction contract; (ii) the
plans and specifications for the portion of the project with
respect to which such disbursement is being made; and (iii)
the [November 2007] report of the consulting engineer."
We agree with the EOS defendants that this evidence
establishes beyond dispute that Aliant knew of the EOS
defendants' alleged wrongful acts and role in the alleged
conspiracy before October 29, 2012, and that its October 29,
2014, amended complaint asserting claims against them for the
first time was accordingly untimely. Even though Aliant may
not have known that the proceeds of the bonds had been
improperly disbursed and
misused when it initiated the default
action and obtained a judgment against Four Star Investments
and Smith in 2011, it certainly was aware of facts indicating
as much when it filed its second lawsuit in March 2012,
54
1150822, 1150823, 1150824
because that initial complaint alleged that the various
defendants "should have known that the requisition requests
made for the bond funds were not for goods or services
provided to the [Twelve Oaks development]." Aliant also had
documents in its possession from at least March 2012
indicating that no bond proceeds could be disbursed unless EOS
certified that the disbursal was proper and that Harbison had,
in fact, approved the requests for reimbursement filed by
Smith. Furthermore, it is undisputed that by March 2012
Aliant had knowledge of facts that had led it to conclude that
Smith's reimbursement requests had improperly been approved
and paid and that Aliant was aware that EOS's approval was
required before any reimbursement could be paid and that
Harbison had in fact provided that approval. Nevertheless,
Aliant did not assert claims against the EOS defendants until
October 29, 2014. This was more than two years after those
claims had accrued, i.e., when, in the exercise of reasonable
diligence, they should have been discovered, and we can
accordingly conclude as a matter of law that all claims
asserted by Aliant against the EOS defendants are barred by
the statute of limitations set forth in § 6-5-221(a). See §
6-5-221(a)
(explaining
that
the
two-year
statute
of
55
1150822, 1150823, 1150824
limitations set forth therein applies to all civil actions "in
tort, contract, or otherwise"); and Dickinson v. Land
Developers Constr. Co., 882 So. 2d 291, 299 (Ala. 2003)
(holding that the plaintiffs discovered a number of problems
with their house more than two years before they filed their
action against the builder and their claims arising from those
problems were accordingly barred by § 6-5-221).5
5Aliant has argued that it did not discover the facts that
form the basis of its claims against the EOS defendants until
it deposed Harbison in August 2014 and when, in conjunction
with that deposition, the EOS defendants produced an internal
memorandum written by Harbison in June 2012 indicating that,
in May 2012, Harbison had discovered that Smith had copied his
signature to certain reimbursement forms that had been
submitted and paid. Aliant argues that the EOS defendants
suppressed this memorandum; the EOS defendants dispute that
characterization, arguing that it did not exist when they
voluntarily produced their Twelve Oaks records for Aliant in
March
2012
and
that
they
had
received
no
further
communications or request for information from Aliant until
Aliant sought Harbison's deposition in the summer of 2014, at
which time the memorandum was produced. We note only that,
although this memorandum and Harbison's deposition may have
revealed additional facts pertinent to Aliant's case, it is
still undisputed that Aliant had knowledge of the facts that
form the basis of its claims against the EOS defendants for
more than two years before it formally asserted those claims.
Aliant's claim accrued when it became privy to facts that
would provoke inquiry in a person of reasonable prudence and
that, if further investigated, would have led to the discovery
of the EOS defendants' alleged deficient performance of their
duties, not when Aliant became privy to all the facts
surrounding
the
EOS
defendants'
alleged
wrongdoing.
Dickinson, 882 So. 2d at 299.
56
1150822, 1150823, 1150824
V.
Count six of Aliant's final amended complaint asserts
fraud claims against Four Star Investments, Twelve Oaks
Properties, and B&B Construction based on invoices submitted
for reimbursement by those companies for goods and services
supposedly provided to the District. Aliant asserts that many
of the claimed goods were never actually provided and claimed
services were never actually rendered and that those
companies' receipt of bond proceeds based on those invoices
accordingly constitutes fraud.
In its brief to this Court, Aliant quotes Harmon v.
Motors Insurance Corp., 493 So. 2d 1370, 1373 (Ala. 1986), in
which this Court recited the elements of a fraud claim:
"(1) a false representation;
"(2) concerning a material fact;
"(3) reliance upon the false representation, and;
"(4) damage as a proximate result."
Aliant then proceeds to detail the evidence it submitted to
the trial court indicating that the invoices submitted by Four
Star
Investments,
Twelve
Oaks
Properties,
and
B&B
Construction
contain
false
representations
concerning
material
facts
before
concluding that Aliant was damaged inasmuch as the paying of
57
1150822, 1150823, 1150824
the allegedly fraudulent invoices substantially exhausted the
bond proceeds without providing any benefit to the Twelve Oaks
development. However, although we agree that the evidence
cited by Aliant constitutes substantial evidence that a false
representation of a material fact was made, it is apparent,
considering the whole of the evidence and Aliant's theory of
the case, that Aliant never relied upon the misrepresentations
in the allegedly fraudulent invoices. In Hunt Petroleum Corp.
v. State, 901 So. 2d 1, 4-5 (Ala. 2004), this Court explained
that reliance is an essential part of any fraud claim and
detailed what kind of evidence is needed to establish the
element of reliance:
"The law of fraud is well-settled. 'An essential
element of any fraud claim is that the plaintiff
must
have
reasonably
relied
on
the
alleged
misrepresentation.' Waddell & Reed, Inc. v. United
Investors Life Ins. Co., 875 So. 2d 1143, 1160 (Ala.
2003). Section 6–5–101, Ala. Code 1975, provides
that '[m]isrepresentations of a material fact made
willfully
to
deceive,
or
recklessly
without
knowledge, and acted on by the opposite party ...
constitute legal fraud.' Thus, reliance in the form
that the misrepresentation is 'acted on by the
opposite party' is an essential element of fraud in
Alabama. Liberty Nat'l Life Ins. Co. v. Allen, 699
So. 2d 138, 141 (Ala. 1997).
"....
"Reliance requires that the misrepresentation
actually induced the injured party to change its
58
1150822, 1150823, 1150824
course of action. See Restatement (Second) of Torts
§ 537 (1977) ('The recipient of a fraudulent
misrepresentation can recover against its maker for
pecuniary loss resulting from it if, but only if ...
he relies on the misrepresentation in acting or
refraining from action, and ... his reliance is
justifiable.'); 9 Stuart M. Speiser et al., The
American Law of Torts § 32:49 (Clark Boardman
Callaghan 1992) ('It is a fundamental principle of
the law of fraud throughout the United States,
regardless of the form of relief sought, that in
order to secure redress, the representee (person to
whom or which the misrepresentation was made) must
have relied upon the statement or representation as
an inducement to his action or injurious change of
position.').
"This
Court
has
explained
what
constitutes
legal
reliance in Alabama:
"'"To
determine
whether
or
not
a
misrepresentation
was
actually
relied
upon,
whether it was a cause in fact of the
damage, the sine qua non rule is often
applied. If the plaintiff would not have
acted on the transaction in question but
for
the
misrepresentation,
such
misrepresentation was an actual cause of
his loss. If he would have adopted the
same
course
irrespective
of
the
misrepresentation and would have sustained
the same degree of damages anyway, it can
not be said that the misrepresentation
caused any damage, and the defendant will
not be liable therefor."'
"Shades Ridge Holding Co. v. Cobbs, Allen & Hall
Mortgage Co., 390 So. 2d 601, 611 (Ala. 1980)
(quoting Fowler V. Harper and Fleming James, Jr.,
The Law of Torts § 7.13 (1956)). See also Fisher v.
Comer Plantation, Inc., 772 So. 2d 455, 466 (Ala.
2000) ('When deciding whether the plaintiff relied
on
a
misrepresentation,
the
fact-finder
must
59
1150822, 1150823, 1150824
consider whether the plaintiff would have chosen a
different course but for the suppression of a
material fact.'). Other states have adopted similar
tests.
"....
"Although the terminology varies from state to
state, the underlying principle is the same –– for
a plaintiff to state a fraud claim, he must show
that a misrepresentation induced him to act in a way
that he would not otherwise have acted, that is,
that he took a different course of action because of
the misrepresentation."
It is undisputed in this case that Aliant never relied on or
changed
its
course
of
action
based
on
the
false
representations allegedly made in the identified invoices.
Indeed, when asked in his deposition about Aliant's
involvement in the process by which the bond proceeds were
disbursed, Williamson stated that "[Aliant] had no knowledge
of ... any of the disbursements in how those proceeds were
used." In response to a subsequent question, Williamson
further stated that "[Aliant] didn't have any access to what
transpired with the disbursement of the proceeds of the bond
issue. We didn't know when they were disbursed, who they were
disbursed to, what was supposed to happen." This testimony is
consistent with Aliant's position that it did not learn that
the bond proceeds had been exhausted until Four Star
60
1150822, 1150823, 1150824
Investments defaulted on the Aliant loan in early 2011. In
light of the undisputed fact that Aliant had no knowledge of
the false representations allegedly made in the invoices
submitted by Four Star Investments, Twelve Oaks Properties,
and B&B Construction, it cannot have relied on those false
representations. See Fisher v. Ciba Specialty Chems. Corp.,
Civil Action No. 03-0566-WS-B (S.D. Ala. Oct. 11, 2007) (not
selected for publication in F. Supp. 2d) ("It is axiomatic
that a plaintiff cannot show reliance (reasonable or
otherwise) on a statement of which he or she is unaware.").
In conclusion, if the false representations allegedly
made in the invoices submitted by Four Star Investments,
Twelve Oaks Properties, and B&B Construction support a cause
of action for fraud, that cause of action must belong to some
party other than Aliant. Aliant had no knowledge of the false
representations and accordingly could not have taken, or
refrained from taking, any action in reliance upon those
representations. Inasmuch as reliance is a required element
of any fraud claim, this lack of evidence is a sufficient
basis upon which to affirm the summary judgment entered by the
trial court in favor of Four Star Investments, Twelve Oaks
61
1150822, 1150823, 1150824
Properties, and B&B Construction on the fraud claims asserted
by Aliant in count six of its amended complaint.
We also note, however, that B&B Construction has claimed
that Aliant's claims against it are barred by the statute of
limitations. Had Aliant asserted no other claims against B&B
Construction it would be unnecessary for us to address this
issue; however, inasmuch as Aliant asserts conspiracy and
additional fraud claims against B&B Construction in count
seven of its final amended complaint, we address B&B
Construction's statute-of-limitations argument.
Aliant filed its initial complaint in March 2012;
however, it did not designate any fictitious defendants in
that complaint, and it did not designate B&B Construction as
a defendant until it filed an amended complaint on October 29,
2014. Aliant's fraud and conspiracy claims against B&B
Construction are all subject to a two-year statute of
limitations. See § 6-2-3, Ala. Code 1975 ("In actions seeking
relief on the ground of fraud where the statute has created a
bar, the claim must not be considered as having accrued until
the discovery by the aggrieved party of the fact constituting
the fraud, after which he must have two years within which to
prosecute his
action."), and Garris v. A&M Forest Consultants,
62
1150822, 1150823, 1150824
Inc., 623 So. 2d 1035, 1039 (Ala. 1993) (noting that the
plaintiff's claim was "barred by the statute of limitations
for a conspiracy action, which is two years; § 6-2-38(l), Ala.
Code 1975, as amended"). The question of when a reasonable
person should have discovered a claim is generally a question
of fact within the purview of the jury; however, that question
may be decided as a matter of law when the facts are
undisputed and the evidence warrants but one conclusion or,
stated another way, when the evidence indicates that the
plaintiff actually knew of facts that would have put a
reasonable person on notice of the existence of the claim.
Bryant Bank, 155 So. 3d at 237-38. In this case, the relevant
facts are undisputed and require the conclusion that Aliant
knew or reasonably should have known of its claims against B&B
Construction at least when it filed its initial complaint in
March 2012. Accordingly, the claims asserted against B&B
Construction for the first time in October 2014 are untimely
and are barred by the statute of limitations.
In its March 2012 complaint, Aliant made the following
allegations:
"47. Upon information and belief, large sums of
the funds received pursuant to the bonds were
diverted and not used for their intended purposes.
63
1150822, 1150823, 1150824
Many were paid and/or transferred to entities wholly
owned and controlled by Bobby Smith with little or
no description of the actual goods or services
purportedly rendered.
"....
"54. [WHA], [Twelve Oaks Properties], and the
District knew or should have known that the
requisition requests made for the bond funds were
not for goods or services provided to the premises.
Said requests were either on their face not for the
premises or were so vague that a reasonably prudent
person in the defendants' position would have made
further inquiry and/or sought additional details."
Thus, Aliant acknowledges that it knew by March 2012 that a
large amount of the bond proceeds had been paid out in
reimbursements to entities "owned and controlled" by Smith.
Aliant knew at that time that Smith had an ownership interest
in B&B Construction, and it was in possession of the
reimbursement requests indicating that bond proceeds had been
claimed by B&B Construction. This information was sufficient
to put Aliant on notice of its potential claims against B&B
Construction, but Aliant nevertheless waited over two and a
half years before filing an amended complaint asserting those
claims. Because the statute of limitations for those claims
was two years, however, they were untimely, and the summary
judgment entered by the trial court in favor of B&B
64
1150822, 1150823, 1150824
Construction is accordingly due to be affirmed in all
respects.
VI.
Count seven of Aliant's final amended complaint also
asserts two species of fraud claims –– misrepresentation and
suppression –– as well as conspiracy claims against Twelve
Oaks Properties, the District, Four Star Investments, Smith,
Mize, and Billy Smith, and Hunt and WHA.6 The gravamen of
those claims is that the defendants conspired together and
concocted a plan whereby the District was created and the
bonds were issued for the purpose of enriching the defendants
without regard to the fact that the plan virtually ensured the
ultimate failure of the Twelve Oaks development. Aliant
argues that a crucial part of this plan involved the
defendants' convincing Aliant to execute the mortgagee-
special-assessment acknowledgment that subordinated its
interest in the Twelve Oaks property –– a requirement for the
bonds to be issued –– and, Aliant argues, the defendants
6Count seven also asserts those claims against the EOS
defendants and B&B Construction; however, for reasons already
discussed, those claims are barred by the relevant statutes of
limitations, and we accordingly need not address the specific
allegations made against the EOS defendants and B&B
Construction in the context of those claims.
65
1150822, 1150823, 1150824
accomplished
that
goal
by
making
fraudulent
misrepresentations
and concealing and suppressing material facts. However,
before we consider whether substantial evidence exists to
support the fraud and conspiracy claims asserted by Aliant, we
first address affirmative defenses claimed by two of the
defendants named in this count.
We first note that Aliant has identified the District
itself as a defendant with regard to these claims. In Part
III of this opinion we addressed the Twelve Oaks defendants'
§ 11-99A-7 immunity argument as it related to the negligence
and
breach-of-fiduciary-duty
claims
asserted
against
the
Board
members. Although we ultimately concluded that § 11-99A-7 did
not shield the Board members from liability as to those
claims, under the plain language of § 11-99A-7 and § 11-47-
190, we must nevertheless conclude that the District itself is
entitled to immunity on the claims asserted against it by
Aliant. Section 11-99A-7 expressly provides that an
improvement district has "the same immunity ... as a
municipality," and this Court has stated that § 11-47-190
"absolves a municipality from liability for the intentional
torts of its agents." Altmayer v. City of Daphne, 613 So. 2d
366, 369 (Ala. 1993). The Altmayer Court specifically noted
66
1150822, 1150823, 1150824
that fraud claims were among those claims barred by § 11-47-
190, id.; conspiracy likewise is an intentional tort, and
conspiracy claims are barred by § 11-47-190. See Grider v.
Carver, 767 F. Supp. 2d 1246, 1251 (M.D. Ala. 2011) (noting
that the
plaintiffs' state conspiracy claim was an intentional
tort). Inasmuch as § 11-99A-7 grants the District the same
immunity to which a municipality would be entitled, the
summary judgment entered by the trial court is due to be
affirmed with regard to the claims asserted by Aliant against
the District.7
Aliant has also named Hunt, a partner in WHA, as a
defendant to the fraud and conspiracy claims asserted in count
seven of its final amended complaint; Hunt argues that the
claims asserted against him personally are barred by the
statute of limitations because, although WHA was named as a
defendant in
Aliant's initial March 2012 complaint, Aliant did
not amend its complaint to add him as a defendant until
October 2014 –– more than two years later –– and thus, Hunt
7Aliant has also asserted a wantonness claim against the
District in count eight of its amended complaint; that claim
is also barred by § 11-99A-7. See Town of Loxley v. Coleman,
720 So. 2d 907, 909 (Ala. 1998) ("This Court has construed §
11–47–190 to exclude liability for wanton misconduct.").
67
1150822, 1150823, 1150824
argues, outside the two-year period allowed by § 6-2-38. The
trial court agreed with Hunt, stating in its order entering a
summary judgment in his favor:
"[T]he undisputed evidence shows Aliant knew of Mr.
Hunt and his role in the project in 2008, yet failed
to name him in the 2012 suit. Aliant was aware that
Mr. Hunt was working for Gardnyr Michael [Capital],
the underwriter for the bonds, no later than July
10, 2008, the date of the validation order. ...
Aliant knew of Mr. Hunt and Gardnyr Michael
[Capital] at the outset of the bond deal in 2008."
This Court will decide as a matter of law when a fraud claim
accrued, that is, when "a person of reasonable prudence would
have discovered the alleged fraud," only when the evidence is
undisputed and allows but one conclusion. Bryant Bank, 155
So. 3d at 237. In this case, Hunt argues only that Aliant
should have been aware of its fraud and conspiracy claims
against him in 2008 because it undisputedly knew at that time
that he was involved in the bond issue through his work for
Gardnyr Michael Capital, the underwriter for the bonds. We
disagree that this is a sufficient basis upon which to
conclude as a matter of law that Aliant must have known of its
claims against Hunt at that time. Hunt has cited this Court
to no evidence establishing when Aliant knew of Hunt's
involvement in any wrongdoing; it points only to evidence
68
1150822, 1150823, 1150824
establishing that Aliant knew Hunt was involved in the bond
issue through his work at Gardnyr Michael Capital, the
underwriter for the bonds. However, Aliant has not asserted
any claims against or alleged any wrongdoing by Gardnyr
Michael Capital; its claims against Hunt are based on
wrongdoing he committed in his individual capacity or through
his work at WHA. Hunt has not attempted to establish when
Aliant should have been aware of that wrongdoing, and Aliant
argues that this is an issue of fact for the jury. We cannot
resolve this issue as a matter of law at this time, and we
accordingly decline to affirm the summary judgment entered in
favor of Hunt on that basis.
We thus turn to the merits of Aliant's fraudulent-
misrepresentation claims.
"To establish a prima facie case
of fraudulent misrepresentation, a plaintiff must show: (1)
that the representation was false, (2) that it concerned a
material fact, (3) that the plaintiff relied on the false
representation, and (4) that actual injury resulted from that
reliance." Boswell v. Liberty Nat'l Life Ins. Co., 643 So. 2d
580, 581 (Ala. 1994). As the basis for these claims, Aliant
has identified alleged misrepresentations 1) orally made by
Smith in his communications with Williamson and 2) contained
69
1150822, 1150823, 1150824
in written materials prepared by WHA. In an affidavit,
Williamson
described
those
misrepresentations
and
their
impact
on Aliant's decision to agree to subordinate its interest in
the Twelve Oaks property as follows:
"16. Over [a period of several months beginning in
February 2008] Bobby Smith provided me with various
documents related to the proposed bond deal,
including, but not limited to, a term sheet and a
financial analysis prepared by [Gardnyr Michael
Capital], the engineer's report, a proposed budget
analysis for the phase by phase development of the
subdivision, as well as a draft of the methodology.
"17. It was not until a meeting I had with Bobby
Smith in mid-July 2008 that I was presented with the
mortgagee special assessment acknowledgment for
[Aliant] to sign. A true and correct copy of my
July 14, 2008, memo is attached hereto.
"18. I was assured by representations made by Bobby
Smith
and
the
various
[District]
and
bond
transaction documents referenced above that the bond
proceeds would be used strictly for the development
of the infrastructure
for the remaining 270
undeveloped lots and a clubhouse and pool, that the
funds' disbursement would be carefully controlled
and monitored, and that there would be independent
inspections to verify the expenditures purportedly
made on the project.
"19. A few days later I had a follow-up discussion
with Bobby Smith and Heyward Hosch, District
counsel, regarding additional requirements related
to the bonds and whether there were any restrictions
preventing [Aliant] and Bobby Smith from having
agreements related to lot releases.
"20. [Aliant] was satisfied based on my discussion
with Mr. Hosch and Bobby Smith that in such
70
1150822, 1150823, 1150824
situation the bond fund spending could be halted or
slowed. A true and correct copy of my July 21,
2008, memo is attached hereto.
"21. At no time was it revealed to me that the
parties intended to use any of the bond proceeds to
pay any Bobby Smith-controlled entity (owner,
developer, or otherwise) for work done or expense
incurred before the bond issue.
"22. Based on all of the above, Aliant executed the
mortgagee special assessment acknowledgment on or
about July 24, 2008.
"23. If I had known that all of the equity built up
in the development was going to be given back to the
development with the first two draws, that there
were not going to be controls over the disbursements
of the bond funds, and that the progress of the
development was not going to be carefully monitored
by professionals, I would not have signed the
mortgagee special assessment acknowledgment.
"24. As of July 24, 2008, the infrastructure of
phase I of the development was complete and eighty
(80) lots of that phase [were] available for
development.
"25. I was told that the bond proceeds would be
used to expand the subdivision so that an additional
270 lots (a total of 350) would be made available.
"26. I had [no] idea that over one half of the
total bond proceeds was going to be used to
reimburse Bobby Smith and [Twelve Oaks Properties]
for virtually all of the pre-bond issuance work,
work which had been funded with money largely
advanced by Aliant through [the Aliant loan].
"27. As of [January 27, 2016], with the exception
of the club house and pool, the infrastructure is
not measurably further along and there are no more
completed and saleable lots available than existed
71
1150822, 1150823, 1150824
on the day I signed the [mortgagee special
assessment] acknowledgment."
Williamson's affidavit is sufficient to establish a prima
facie case of fraudulent misrepresentation against Smith and
Twelve Oaks Properties, the entity Smith is alleged to have
been representing when making the oral misrepresentations, as
well as against Hunt and WHA based on misrepresentations
allegedly made by Hunt in WHA documents transmitted to Aliant.
Accordingly, the summary judgment was improper as to those
claims.
Aliant also argues that the misrepresentations allegedly
made by Smith and in the WHA documents should support
fraudulent-misrepresentation
claims
against
Four
Star
Investments, Mize, and Billy Smith because, it argues, they
were all allegedly part of an overarching conspiracy.
However, this argument evinces a misunderstanding of the
conspiracy cause of action. If the finder of fact is
ultimately
convinced
that
Smith
made
fraudulent
misrepresentations and that there was a conspiracy in which
Four
Star
Investments,
Mize,
and
Billy
Smith
were
participants, then Four Star Investments, Mize, and Billy
Smith
may
be
held
liable
for
Smith's
fraudulent
72
1150822, 1150823, 1150824
misrepresentations by being held liable for conspiracy, not
fraudulent misrepresentation.
This Court's decision in DGB is
instructive. We noted in that case that the fraudulent-
misrepresentation and fraudulent-suppression claims asserted
against defendant Ray Jacobsen were properly dismissed, but a
conspiracy
claim
asserted
against
Jacobsen
based
on
allegations that other defendants worked together and with him
"to
knowingly misrepresent information
and
to
conceal
material
facts" was nevertheless viable. DGB, 55 So. 3d at 231-34.
We next consider the fraudulent-suppression claims
asserted by Aliant. The gravamen of those claims is that the
defendants knew that Smith was going to use the bulk of the
bond proceeds to reimburse himself and his companies for work
done before the bonds were issued and that the defendants
concealed this fact from Aliant in order to induce it to sign
the
mortgagee-special-assessment
acknowledgment.
"The
elements of a suppression claim are '(1) a duty on the part of
the defendant to disclose facts; (2) concealment or
nondisclosure of material facts by the defendant; (3)
inducement of the plaintiff to act; (4) action by the
plaintiff to his or her injury.'" Freightliner, L.L.C. v.
Whatley Contract Carriers, L.L.C., 932 So. 2d 883, 891 (Ala.
73
1150822, 1150823, 1150824
2005) (quoting Lambert v. Mail Handlers Benefit Plan, 682 So.
2d 61, 63 (Ala. 1996)). Aliant does not cite these elements
anywhere in the briefs it filed in its appeals of the
judgments entered in favor of the Twelve Oaks defendants and
Hunt and WHA, but it cites Shades Ridge Holding Co. v. Cobbs,
Allen & Hall Mortgage Co., 390 So. 2d 601, 616 (Ala. 1980),
for the
proposition that fraudulent suppression exists "where
the defendant has special knowledge or means of knowledge not
open to the plaintiff and is aware that the plaintiff is
acting under a misapprehension as to facts which would be of
importance to him and would probably affect his decision" and
Bank of Red Bay v. King, 482 So. 2d 274, 284-85 (Ala. 1985),
to suggest that fraudulent suppression might be found when a
party knows that the plaintiff is relying on something that is
not true. See Aliant's briefs in appeal no. 1150822, pp. 31-
33, and in appeal no. 1150823, pp. 29-31.
The first element of a fraudulent-suppression claim that
must be established is whether the defendant alleged to have
concealed a material fact had a duty to disclose that fact to
the plaintiff; this inquiry presents an issue of law to be
determined by the court. Freightliner, 932 So. 2d at 891. To
the extent Aliant addresses this element, it essentially
74
1150822, 1150823, 1150824
argues that the various defendants owed it such a duty based
solely on the fact that they knew that Aliant was unaware that
the vast majority of the bond proceeds would be disbursed to
reimburse Smith and his companies for work completed before
the bonds were issued. See, e.g., Aliant's brief in appeal
no. 1150823, p. 33 (arguing that the trial court erred in
entering a summary judgment in favor of Hunt and WHA on the
fraudulent-suppression claims asserted against them because
the trial court failed to give effect to the law set forth in
Shades Ridge Holding Co. and Bank of Red Bay, which, Aliant
argues, "creat[ed] a duty for WHA to disclose the detail of
the plan for the [District] by reason of their knowledge of
Aliant's misapprehension"). We disagree that the defendants'
knowledge that Aliant was unaware that the bond proceeds could
be distributed for work performed before the bonds were issued
was sufficient in itself to create a duty to disclose.
This Court has explained the duty to disclose as follows:
"A duty to communicate can arise from a confidential
relationship
between
the
plaintiff
and
the
defendant, from the particular circumstances of the
case, or from a request for information, but mere
silence in the absence of a duty to disclose is not
fraudulent. Dodd v. Nelda Stephenson Chevrolet,
Inc., 626 So. 2d 1288 (Ala. 1993); Hardy v. Blue
Cross & Blue Shield of Alabama, 585 So. 2d 29
(Ala.1991); King v. National Foundation Life Ins.
75
1150822, 1150823, 1150824
Co., 541 So. 2d 502 (Ala. 1989); see, McGowan v.
Chrysler Corp., 631 So. 2d 842 (Ala. 1993); §
6–5–102, Ala. Code 1975.
"....
"This Court has stated that whether one has a
duty to speak depends upon a fiduciary, or other,
relationship of the parties, the value of the
particular fact, the relative knowledge of the
parties, and other circumstances of the case. Bama
Budweiser of Montgomery, Inc. v. Anheuser–Busch
Inc., 611 So. 2d 238 (Ala. 1992); Norman v. Amoco
Oil Co., 558 So. 2d 903 (Ala. 1990); see § 6–5–102,
Ala. Code 1975. When the parties to a transaction
deal with each other at arm's length, with no
confidential relationship, no obligation to disclose
information arises when the information is not
requested."
Mason v. Chrysler Corp., 653 So. 2d 951, 954-55 (Ala. 1995)
(emphasis added). Essentially, the primary factor to be
considered when determining whether a duty to disclose exists
is the nature of the relationship between the parties. See,
e.g., Armstrong Bus. Servs., 817 So. 2d at 677 (noting that
the Court begins its inquiry by considering whether the facts
establish "a relationship sufficient to give rise to a duty to
disclose"). A duty to disclose is more likely to be found
where there is a special or confidential relationship between
the parties, but a duty to disclose may still be found when
the parties engage in an arm's length business transaction and
there are special circumstances or when specific information
76
1150822, 1150823, 1150824
is requested. Mason, 653 So. 2d at 954-55. However, it will
be the rare situation and only under the most extreme special
circumstances that a duty to disclose is imposed upon parties
that have no relationship with each other.
In this case, it is undisputed that Aliant had no
relationship with Hunt and WHA. At most, the evidence in the
record indicates that Hunt was a participant in one telephone
call with an Aliant employee and the substance of that call is
unknown. Based on this lack of a relationship –– much less a
confidential relationship or even an arm's length business
relationship –– we cannot conclude that Hunt and/or WHA owed
Aliant a duty to disclose. Aliant has identified no special
circumstances that warrant the imposition of such a duty;
instead, it effectively assumes that such a duty existed
solely because Hunt and WHA had greater knowledge than it and
said nothing. However, "mere silence in the absence of a duty
to disclose is not fraudulent." Mason, 653 So. 2d at 954.
The summary judgment entered in favor of Hunt and WHA on the
fraudulent-suppression claims asserted against them is due to
be affirmed.
With regard to the claims asserted against the various
Twelve Oaks defendants, however, Aliant did have a business
77
1150822, 1150823, 1150824
relationship with Smith. Aliant has alleged that Smith
represented to it that the bond proceeds would be used to
develop 270 additional lots in Twelve Oaks while allegedly
knowing that he and/or his companies would actually receive
the majority of the bond proceeds for work that had already
been performed in association with the development of the
first 80 lots. In CNH America, LLC v. Ligon Capital, LLC, 160
So. 3d 1195, 1202-03 (Ala. 2013), we explained that "'once a
party elects to speak, he or she assumes a duty not to
suppress or conceal those facts that materially qualify the
facts already stated'" (quoting Freightliner, 932 So. 2d at
895). See also First Alabama Bank of Montgomery, N.A. v.
First State Ins. Co., 899 F.2d 1045, 1056 (11th Cir. 1990)
("Finally, even if one is not under a duty to speak, if he
decides to do so, 'he must make a full and fair disclosure,'
without concealing any facts within his knowledge." (quoting
Ellis v. Zuck, 409 F. Supp. 1151, 1158 (N.D. Ala. 1976), and
citing Jackson Co. v. Faulkner, 55 Ala. App. 354, 315 So. 2d
591 (1975))). Thus, once Smith represented how the bond
proceeds would be used, he had a duty to make a full
disclosure as to how those proceeds would be used. Aliant has
submitted evidence indicating that Smith failed to fulfill
78
1150822, 1150823, 1150824
that duty and instead concealed the truth about how the bond
proceeds would be used, thus inducing Aliant to execute the
mortgagee-special-assessment acknowledgment and resulting in
subsequent injury to Aliant. Accordingly, the summary
judgment
entered
on
the
fraudulent-suppression
claims
asserted
against Smith and Twelve Oaks Properties is due to be
reversed. Aliant has failed to establish that Mize or Billy
Smith owed it a duty to disclose, however, and the summary
judgments entered in favor of them on the fraudulent-
suppression claims asserted by Aliant are due to be affirmed.
Finally, inasmuch as we have held that Aliant has put
forth substantial evidence supporting at least some of the
fraudulent-misrepresentation
and
fraudulent-suppression
claims
asserted in count seven of its final amended complaint and
that the trial court accordingly erred in entering a summary
judgment against Aliant on those claims, we also hold that the
trial court erred in entering a summary judgment against
Aliant on the conspiracy claims it asserted against Smith,
Twelve Oaks Properties, Four Star Investments, Mize, Billy
Smith, Hunt, and WHA. Some of the defendants have argued that
they cannot be found liable for conspiracy if they are not
liable for the underlying wrong upon which the conspiracy
79
1150822, 1150823, 1150824
claim is based; however, our holding in DGB refutes this
argument. Although it is true that "[a] plaintiff alleging
conspiracy must have a valid underlying cause of action,"
Callens v. Jefferson County Nursing Home, 769 So. 2d 273, 280
(Ala. 2000), it is not necessary that each alleged conspirator
be the subject of an underlying cause of action, only that
there be a valid cause of action against at least one of the
alleged conspirators. See DGB, 55 So. 3d at 234 ("Because the
[plaintiffs] have alleged valid underlying causes of action
and because acts of coconspirators are attributable to each
other, see [Ex parte] Reindel, [963 So. 2d 614, 621 (Ala.
2007),] the [plaintiffs] have stated a claim of civil
conspiracy upon which relief may be granted against each of
these defendants."). Thus, the defendants in this case may be
liable for conspiracy even if they are not liable for the
underlying fraud.
VII.
In count eight of its final amended complaint, Aliant
asserts wantonness claims against Smith, Mize, Billy Smith,
Twelve Oaks Properties, and WHA.8 Specifically, Aliant
8Aliant also asserts wantonness claims against the EOS
defendants and the District in count eight; however, as
80
1150822, 1150823, 1150824
asserts that these defendants "undertook a duty to carefully
and prudently spend and/or assure that the [bond proceeds]
were spent in accordance with the bond documents to make the
promised improvements" and that they "consciously and/or
intentionally
acted
with
reckless
disregard
to
the
consequences of their wrongful acts."
We first note, however, that, although Aliant adequately
explained the basis of its wantonness claim in its complaint,
in its brief to this Court in appeal no. 1150822 challenging
the judgment entered in favor of the Twelve Oaks defendants,
Aliant has wholly failed to explain its wantonness claim or to
cite any authority regarding wantonness. In J.K. v. UMS-
Wright Corp., 7 So. 3d 300, 305-06 (Ala. 2008), we considered
an argument that a trial court had erred in entering judgment
on a wantonness claim where the appellants had similarly
failed to support their argument:
"Not only do [the appellants] not describe with any
specificity conduct of the trustees that they
consider to have been wanton, but they also fail to
cite any statute or caselaw that defines wantonness,
and they do not illustrate how the actions by the
members of the board of trustees could satisfy any
discussed supra, all claims against the EOS defendants are
barred by the statute of limitations, and the District is
protected by § 11-99A-7 immunity.
81
1150822, 1150823, 1150824
such definition. '"'Where an appellant fails to
cite any authority, we may affirm, for it is neither
our duty nor function to perform all the legal
research for an appellant.'"' McCutchen Co. v.
Media General, Inc., 988 So. 2d 998, 1004 (Ala.
2008) (quoting Henderson v. Alabama A & M Univ., 483
So. 2d 392, 392 (Ala. 1986), quoting in turn Gibson
v. Nix, 460 So. 2d 1346, 1347 (Ala. Civ. App.
1984)). Because [the appellants] have not provided
us with a standard against which to evaluate the
trustees' allegedly wanton behavior ... the trial
court's judgment on this issue is affirmed."
Thus, by failing to adequately argue the issue, Aliant has
effectively waived its argument that the trial court erred in
entering summary judgment against it on the wantonness claims
asserted against Smith, Mize, Billy Smith, and Twelve Oaks
Properties. Bogle, 512 So. 2d at 1337.
With regard to the wantonness claim asserted against WHA,
we stated in Lemley v. Wilson, 178 So. 3d 834, 841-42 (Ala.
2015), that, "'[t]o establish wantonness, the plaintiff must
prove that the defendant, with reckless indifference to the
consequences, consciously and intentionally did some wrongful
act or omitted some known duty.'" (Quoting Martin v. Arnold,
643 So. 2d 564, 567 (Ala. 1994).) Aliant has based its
wantonness claims on the omission or breach of a known duty;
however, we have already determined, supra in Part III, that
WHA owed Aliant no duties. Moreover, Aliant's wantonness
82
1150822, 1150823, 1150824
claims are premised on the allegation that the named
defendants failed to make sure that the bond proceeds were
properly spent; however, the documentary evidence in the
record establishes that WHA had no role in approving the
disbursement of bond proceeds. Disbursements had to be
approved by EOS and the District's board of directors; WHA
provided only administrative assistance in that process.
Accordingly, the summary judgment entered in favor of WHA on
the wantonness claim asserted against it in count eight of
Aliant's final amended complaint is also due to be affirmed.
VIII.
In the last count of its final amended complaint, Aliant
argues that Twelve Oaks Properties and WHA are liable for
breach of contract. Aliant acknowledges that there is no
contract between it and either Twelve Oaks Properties or WHA;
however, it nevertheless argues that it was an intended third-
party beneficiary of 1) a completion agreement between Twelve
Oaks Properties and the District executed in conjunction with
the bond issuance in which Twelve Oaks Properties took
responsibility for completing the planned improvements at
Twelve Oaks that were not funded by the bond proceeds; and 2)
the management agreement between WHA and the District. In
83
1150822, 1150823, 1150824
Swann v. Hunter, 630 So. 2d 374, 376 (Ala. 1993), this Court
stated:
"To recover in a breach-of-contract action, as
a third-party beneficiary, the plaintiff must prove
the following: (1) that the contracting parties
intended, when they entered the contract, to bestow
a direct, as opposed to an incidental, benefit upon
a third party, (2) that the plaintiff was the
intended third-party beneficiary of the contract,
and (3) that the contract was breached. ..."
Aliant argues that the completion agreement executed by Twelve
Oaks Properties and the management contract executed by WHA
were intended to benefit the owners of property in the
District –– including Aliant inasmuch as it held a mortgage on
the Twelve Oaks property –– and that Twelve Oaks Properties
and WHA failed to fulfill their obligations under those
contracts to the detriment of Aliant.
Both the completion agreement and the management
agreement were intended to bestow some benefit upon the
District. Aliant argues, essentially, that, inasmuch as the
District's raison d'etre is to provide improvements to the
property within its borders, as the holder of an interest in
such property it was an intended beneficiary of any contract
that benefited the District. Twelve Oaks Properties and WHA
rightfully do not dispute that Aliant had an interest in
84
1150822, 1150823, 1150824
property within the District when those contracts were
executed because it is undisputed that Aliant held a mortgage
on the Twelve Oaks property at that time and "Alabama is a
'title theory' state; thus, when a person mortgages real
property, the mortgagee obtains legal title to the real
property and the mortgagor retains an equity of redemption."
Maiden, 69 So. 3d at 865. However, Twelve Oaks Properties and
WHA argue that Aliant's interest in the Twelve Oaks property
at most made Aliant an incidental beneficiary to the cited
contracts, not a direct beneficiary such that Aliant can sue
for the breach of a contract. See Holley v. St. Paul Fire &
Marine Ins. Co., 396 So. 2d 75, 80 (Ala. 1981) ("One who seeks
recovery in contract as a third-party beneficiary must
establish that the contract was intended for his direct, as
opposed to incidental, benefit."). In its orders entering a
summary judgment against Aliant on these claims, the trial
court agreed, holding that Aliant was not an intended third-
party beneficiary to either of the cited contracts.
"[T]he
determination
of
third-party-beneficiary
status
is
a conclusion of law that we review de novo." Harris Moran
Seed Co. v. Phillips, 949 So. 2d 916, 920 (Ala. Civ. App.
2006). For the reasons that follow, we agree with the holding
85
1150822, 1150823, 1150824
of the trial court that Aliant was not an intended beneficiary
to the cited contracts. Although those contracts were
intended to benefit the District, even if we were to conclude
that the parties to those contracts intended to bestow
benefits upon the "owners" of property within the District as
well, those benefits would run directly only to the party in
possession of the property –– any benefit to the mortgagee
would necessarily be incidental.9 Benefits and improvements
made to mortgaged property would not directly benefit the
9In First Union National Bank of Florida v. Lee County
Commission, 75 So. 3d 105, 113 (Ala. 2011), this Court
explained how a mortgagee and a mortgagor are both in some
sense "owners" of mortgaged property:
"[The mortgagee's] argument presumes that legal
title is the equivalent of absolute ownership of
property, but that presumption is incorrect. See
Alabama Home Mortgage Co. v. Harris, 582 So. 2d
1080, 1083–84 (Ala. 1991) (recognizing that there is
no 'absolute owner' of property until there is a
merger of equitable title and legal title). [The
mortgagee's] interpretation of the term 'owner' in
§ 40–10–28[, Ala. Code 1975,] fails to consider the
fact that when real property is mortgaged, only
legal title passes to the mortgagee, and the
mortgagor retains his or her other status as 'owner
and holder of equitable title.' Sims v. Riggins,
201 Ala. 99, 103, 77 So. 393, 397 (1917) (the
mortgagor is 'the owner and holder of the equitable
title'). Until there has been a foreclosure, the
mortgagor continues to 'own' the property. Alabama
Home Mortgage, 582 So. 2d at 1083–84."
86
1150822, 1150823, 1150824
mortgagee until there is a merger of equitable title and legal
title. At best, Aliant in this case would receive an
incidental benefit from the cited contracts inasmuch as the
property securing the Aliant loan would increase in value and
Aliant's risk of loss in the event of default would decrease;
however, this is far from a direct intended benefit that will
support a third-party-beneficiary breach-of-contract claim.
Accordingly, the trial court's judgments in favor of Twelve
Oaks Property and WHA on the claims asserted against them in
count nine of Aliant's amended complaint are due to be
affirmed.
IX.
Aliant sued various individuals and business entities
involved in developing the Twelve Oaks subdivision in
Odenville, alleging that, as a result of those defendants'
conspiracy
and
wrongful
actions,
Aliant's
security
interest
in
the property upon which the Twelve Oaks subdivision was to be
built had been rendered worthless. The trial court ultimately
entered judgments against Aliant and in favor of the
defendants on all counts. We now affirm those judgments in
part and reverse them in part. In appeal no. 1150822, we
reverse the summary judgment entered by the trial court
87
1150822, 1150823, 1150824
against Aliant (1) on the negligence and breach-of-fiduciary-
duty claims asserted against the Board members in count four
of
Aliant's
complaint;
(2)
on
the
fraudulent-misrepresentation
and fraudulent-suppression claims asserted against Smith and
Twelve Oaks Properties in count seven of Aliant's complaint;
and (3) on the conspiracy claims asserted against Smith,
Twelve Oaks Properties, Four Star Investments, Mize, and Billy
Smith in count seven of Aliant's complaint. We affirm the
summary judgment entered by the trial court against Aliant and
in favor of the various Twelve Oaks defendants in all other
respects. In appeal no. 1150823, we reverse the summary
judgments
entered
against
Aliant
on
the
fraudulent-
misrepresentation and conspiracy claims asserted against Hunt
and WHA in count seven of Aliant's complaint; however, we
affirm those summary judgments with regard to all other claims
asserted by Aliant against Hunt and WHA. Finally, in appeal
no. 1150824, we affirm the summary judgment entered by the
trial court against Aliant and in favor of the EOS defendants
on all counts.
1150822 –– AFFIRMED IN PART; REVERSED IN PART; AND
REMANDED.
88
1150822, 1150823, 1150824
1150823 –– AFFIRMED IN PART; REVERSED IN PART; AND
REMANDED.
1150824 –– AFFIRMED.
Bolin, Parker, Main, and Wise, JJ., concur.
Shaw, J., concurs in the result.
89 | May 5, 2017 |
678917c2-d8dc-49dd-be6a-3cad012d851b | Quinlivan v. Quinlivan | 114 So. 2d 838 | N/A | Alabama | Alabama Supreme Court | 114 So. 2d 838 (1959)
Joseph D. QUINLIVAN
v.
James R. QUINLIVAN.
1 Div. 815.
Supreme Court of Alabama.
October 8, 1959.
*839 Cunningham & Wilkins, Mobile, for appellant.
Vincent F. Kilborn and Benjamin H. Kilborn, Mobile, for appellee.
MERRILL, Justice.
Appeal from a decree sustaining demurrer to complainant's amended bill of complaint.
Appellant filed a bill for specific performance of a partly written and partly oral contract entered into by him with appellee. Demurrer to the bill was sustained, the bill was amended, the demurrer was refiled and again sustained.
One argued assignment of error is that the court erred in allowing respondent to orally amend his answer. Had the court so done, it would have been error because equity rules contemplate written pleadings. Lindsey v. Reeves, 251 Ala. 400, 37 So.2d 501[8]. But there was no oral amendment. Appellee moved for permission to make all the original grounds of demurrer, which were written, as part of his answer, and that these be refiled to the bill as last amended. This motion was granted, and after argument, the demurrer was sustained. This procedure has been approved, Gaines v. Harmon, 246 Ala. 307, 20 So. 2d 503.
The other argued assignment of error is that the court erred in sustaining the demurrer to the amended complaint.
The bill as amended shows that complainant, Joseph D. Quinlivan, had for many years operated, and is now operating, an ice plant under the firm name of Crystal Ice Company, and respondent has for many years operated, and is now operating, an electrical appliance service under the firm name of Quinlivan Specialty Company; that each of these firms are co-partnerships composed of the complainant, the respondent and Clara Quinlivan Mullen; that on December 12, 1952, complainant agreed to convey to respondent all his right, title or interest in Quinlivan Specialty Company, and in consideration therefor, respondent agreed to convey to complainant all of his right, title or interest in Crystal Ice Company, and respondent further agreed to pay *840 to complainant a sum of money equal to the amount by which complainant's interest in Quinlivan Specialty Company exceeded respondent's interest in Crystal Ice Company; that under the agreement, complainant is entitled to have conveyed to him thirteen specifically described parcels of real estate; that complainant "has fully paid for said property and further that he has been put in possession of same by respondent and has further remained in possession since the execution of said agreement on December 12, 1952;" that the value of complainant's interest in Quinlivan Specialty Company exceeds respondent's interest in Crystal Ice Company in the amount of $11,000; that the books and records were caused to reflect the withdrawal of each of the partners from the respective firms as of May 31, 1952; that on numerous occasions, complainant has offered to execute the necessary papers to effectuate the transfer to respondent of complainant's interest in Quinlivan Specialty Company, and on numerous occasions, he has requested respondent to execute the necessary legal documents to effectuate the transfer of respondent's interest in Crystal Ice Company and to pay him the $11,000 difference, but that respondent failed and refused to do so.
The effect of the prayer is that respondent be required to convey the property and pay the $11,000.
It appears to be conceded that the demurrer to the bill as amended was sustained on grounds raising the points, first, that the contract sought to be specifically performed falls within the influence of the Statute of Frauds; and, second, that the bill is insufficient for want of proper parties in that Clara Quinlivan Mullen, a third partner in each business, is not made a party to the action.
Equity will not specifically enforce an agreement within the Statute of Frauds, Jones v. McCown, 251 Ala. 581, 39 So. 2d 14; Downs v. Downs, 257 Ala. 643, 60 So. 2d 686; Tit. 20, § 3(5), Code 1940.
Where the bill shows on its face the invalidity of the contract by reason of the Statute of Frauds, the pleader may raise the question by demurrer. Spruiell v. Stanford, 258 Ala. 212, 61 So. 2d 758, and cases there cited.
The bill here shows on its face that the agreement was partly oral, and all of the agreement to convey and pay any difference was oral, but appellant insists that the allegation of payment and that the complainant was in possession, places the contract without the operation of the Statute of Frauds, Tit. 20, § 3(5).
Our decisions are to the effect that the possession mentioned in Tit. 20, § 3(5), must be of a notorious and exclusive character to bring the case within the exception of the statute, Knight v. Smith, 250 Ala. 113, 33 So. 2d 242; Jones v. Jones, 219 Ala. 62, 121 So. 78.
The possession of the purchaser must refer exclusively to the contract sought to be enforced and be such as would not be done but for it, and "possession of a tenant in common who has contracted orally to buy from his cotenant is ordinarily not sufficient as an act of part performance of the contract to satisfy the statute." Spruiell v. Stanford, 258 Ala. 212, 61 So. 2d 758, 762.
Some of the general rules applicable to part performance of oral contracts for the sale of realty are set out in Gibson v. Bryant, 267 Ala. 97, 100 So. 2d 32, and Formby v. Williams, 203 Ala. 14, 81 So. 682, as follows:
Construing the allegations of the amended bill most strongly against the pleader, he admits that he has operated Crystal Ice Company for many years, and that it was a partnership in which appellee was one of the partners. Under those facts without further explanation, complainant's possession was that of a partner and cotenant. Since the possession could be accounted for just as well by the relationship of partner or cotenant, or by some relation between him and appellee other than the alleged oral contract, it is not such a possession as is required to remove the bar of the Statute of Frauds. Knight v. Smith, 250 Ala. 113, 33 So. 2d 242; Jones v. Jones, 219 Ala. 62, 121 So. 78.
The bill was also insufficient for failure to make Clara Quinlivan Mullen a party. Paragraph 3 of the bill avers that "until, to-wit, December 12th, 1952, the said Crystal Ice Company and Quinlivan Specialty Company were co-partnerships composed of your Complainant and your Respondent and Clara Quinlivan Mullen." Paragraph 4(a) of the bill avers that "Under the aforesaid agreement by the complainant and respondent, complainant is entitled to have conveyed to him by proper deed of conveyance the following described real property of said Crystal Ice Company: * * *." It should be noted that complainant alleges that he is entitled to have the entire property conveyed to him, not just appellee's interest in the property. Tit. 43, § 29, Code 1940, provides:
Title 43, § 32, Code 1940, provides:
Under the allegations of the bill, Clara Quinlivan Mullen is presumed to have an interest in the partnership real property which complainant alleges that he is entitled to have conveyed to him.
The rule is that all persons having a material interest in the litigation, or who are legally or beneficially interested in the subject matter of the suit and whose rights or interests are sought to be concluded thereby, are necessary parties. Petcher v. Rounsaville, 267 Ala. 237, 101 So. 2d 324; Courington v. Kilgore, 264 Ala. 23, 84 So. 2d 646. Clara Quinlivan Mullen has such rights and interests in the partnership property as to come within the application of this rule.
The demurrer to the bill as last amended was properly sustained.
Appellant is granted twenty days from the date of receipt of notice from the clerk of this court of this decision to amend as he may be advised.
Affirmed.
LAWSON, SIMPSON and STAKELY, JJ., concur. | October 8, 1959 |
63040f13-cead-43d4-bc72-492854ace017 | Robinson v. Robinson | 136 So. 2d 889 | N/A | Alabama | Alabama Supreme Court | 136 So. 2d 889 (1962)
Mary Cecil Reese ROBINSON et al.
v.
Edward B. ROBINSON et al.
3 Div. 979.
Supreme Court of Alabama.
January 18, 1962.
Jones, Murray & Stewart, Montgomery, for appellants.
*890 H. T. Fitzpatrick, Jr. and Woodley C. Campbell, Montgomery, for appellees.
MERRILL, Justice.
This is an appeal by three of nine respondents from an interlocutory decree overruling demurrers to a bill for declaratory judgment. The appeal was taken prior to September 15, 1961, the approval date of the act abolishing such appeals. Decrees pro confesso were taken against the six respondents who did not appeal.
The bill for declaratory judgment was filed in the Circuit Court of Lowndes County by five adult complainants and one minor complainant. Adult complainants are the living children of George Robinson. The minor is a child of a deceased son of George Robinson. The respondents are all the other heirs and devisees of E. W. Robinson, Sr., deceased, and Pickett Robinson, deceased.
The bill seeks an interpretation of Item 6 of the will of E. W. Robinson, Sr., which was probated in Lowndes County in 1937; seeks an interpretation of the will of the said Pickett Robinson, which was probated in Lowndes County in 1959, and prays for ancillary relief in the form of damages for waste to real property described in both wills.
The bill shows that E. W. Robinson, Sr., in 1937, devised the McCarty Place (about 1,500 acres) to his son Pickett for life, and further provided if he die without a child, one-half of this property was to go to appellees (heirs of George Robinson) and the other one-half to appellant Mary Cecil Reese Robinson (Pickett's widow) for her life, and on her death, this one-half was also to vest in appellees; that during his lifetime, Pickett removed timber and gravel from the McCarty Place and his widow and executrix did the same thing after his death; that just prior to his death, Pickett attempted to adopt appellant, George Marlow Reese, Jr., which proceeding was not completed, and he also entered into an adoption contract for the adoption of George; that Pickett died in 1959, and in his will, provided that "it is my will that title to that real estate held by me for life pass to the said George Marlow Reese, Jr. at my death;" that appellant Reese now claims to own the Mc-Carty Place in fee simple by virtue of E. W. Robinson's, Sr. will, by the uncompleted adoption, by the contract of adoption, and by the will of Pickett Robinson; and that appellees insist that they own the property subject to the life interest of Pickett's widow in one-half of the Mc-Carty Place. Appellees make this claim because they contend that Pickett died in 1959, leaving no "child" as defined in Item 6 of their grandfather's will in 1937.
Item 6 of the will provides:
The trial court overruled the demurrer and in his opinion stated:
The decree of the trial court was general, even though the demurrer was addressed to the bill as a whole and to five so-called aspects. The effect of such a ruling was a ruling only on the demurrer to the bill as a whole, and if any aspect were good, the decree is due to be affirmed. Rowe v. Rowe, 256 Ala. 491, 55 So. 2d 749; McCary v. Crumpton, 263 Ala. 576, 83 So. 2d 309; Foshee v. Mitchell, 270 Ala. 533, 120 So. 2d 741.
Appellees are persons interested in the will of E. W. Robinson, Sr. and are entitled to a declaration of rights under Tit. 7, § 159, Code 1940. Foshee v. Mitchell, supra; Curlee v. Wadsworth, 3 Div. 970, Ala., 136 So. 2d 886.
The bill shows a justiciable controversy and it is abundantly clear that a construction of two wills and possibly an adoption contract will have to be made before this cause can be determined. Since to declaratory judgment feature of the bill contained equity, the demurrer was properly overruled. Foshee v. Mitchell, supra.
Appellants argue that the trial court was in error in stating that it was his opinion that A. Pickett Robinson took only a life estate in the McCarty Place.
We recognize the rule that a court does not usually construe a will on demurrer, Curlee v. Wadsworth, supra; Fillmore v. Yarbrough, 246 Ala. 375, 20 So. 2d 792. Although the trial court's announcement that Pickett took only a life estate under the, his father's will, may have been premature, no prejudicial error intervened; and it probably benefited all parties to know the trial court's thinking, based upon the bill and the exhibits thereto, prior to the hearing of the case on the merits.
We have already shown that the demurrer was properly overruled and we have repeatedly held that a correct decision will not be disturbed because the court gave a wrong or insufficient reason therefor. Cherokee County v. Cunningham, 260 Ala. 1, 68 So. 2d 507; 2 Ala.Dig. 671, Appeal and Error.
Ordinarily where a bill for declaratory relief shows a bona fide justiciable controversy which should be settled, the demurrer thereto should be overruled and a declaration of rights made and entered only after answer and on such evidence as the parties may deem proper to introduce on submission for final decree. The test of the sufficiency of such a bill is not whether the complaint shows that the complainant will succeed in getting a declaration of rights in accordance with his theory or contention, but whether he is entitled to a declaration of rights at all. Curjel v. Ash, 263 Ala. 585, 83 So. 2d 293; Foshee v. Mitchell, 270 Ala. 533, 120 So. 2d 741.
Having decided that the bill does contain equity and that a bona fide justiciable controversy is presented, it follows that the demurrer was properly overruled.
Affirmed.
LIVINGSTON, C. J., and LAWSON and STAKELY, JJ., concur. | January 18, 1962 |
bd99ea13-ae79-48a5-b5b1-b1cc081dc037 | Ex Parte Winnagle | 115 So. 2d 261 | N/A | Alabama | Alabama Supreme Court | 115 So. 2d 261 (1959)
Ex parte Charles Sibley WINNAGLE.
3 Div. 873.
Supreme Court of Alabama.
October 8, 1959.
Rehearing Denied November 5, 1959.
Charles Sibley Winnagle, pro se, petitioner.
MacDonald Gallion, Atty. Gen., and Jas. W. Webb, Asst. Atty. Gen., for the State.
LAWSON, Justice.
This is an original petition for writ of habeas corpus filed in this court by Charles S. Winnagle, who is confined in Kilby Prison.
It appears from the petition that Winnagle applied to the Circuit Court of Montgomery County for the issuance of a writ of habeas corpus. § 6, Title 15, Code 1940. The petition was stricken on motion of the State.
It is averred in the petition filed here that Winnagle gave notice of appeal to the Court of Appeals from the action of the Circuit Court in striking his petition, but that no appeal has reached the Court of Appeals and that court has refused to *262 entertain an original petition for writ of habeas corpus.
Since the case of Ex parte Simonton, 9 Port. 383, it has been regarded as settled that the writ of habeas corpus may issue from this court only when necessary in the exercise of the "general superintendence and control of inferior jurisdictions" with which it is clothed by the Constitution. § 140, Constitution of 1901; Ex parte Chaney, 8 Ala. 424; Ex parte Croom, 19 Ala. 561.
The necessity which will authorize the issuance of the writ from this court does not exist unless some court, or the judge of some court invested with jurisdiction to act in the premises, has undertaken to decide upon the case of a party aggrieved or else, without any just cause therefor, has refused to entertain the same. Ex parte Simonton, 9 Port. 383.
The practice to be pursued in obtaining the writ from this court was very deliberately and carefully prescribed in Ex parte Croom, supra. The party aggrieved by the action, or the refusal of the inferior jurisdiction to act, must on oath present a petition or application to this court, disclosing a state of case which will show that the inferior jurisdiction has erred to his prejudice, and that upon the case made before that jurisdiction, he is entitled to the relief he seeks.
The only inquiry which can be entered upon by this court is whether, upon the facts before it, the inferior jurisdiction has erred to the prejudice of the petitioner. A new case cannot be made in this court; deficiencies in the case presented to the inferior jurisdiction, if any there be, cannot be supplied.
We cannot say that the petition filed in this court shows that the Circuit Court of Montgomery County erred to petitioner's prejudice in striking the petition filed in that court.
Attached to the petition filed in the Circuit Court was a copy of the judgment of conviction entered in the Circuit Court of Tuscaloosa County in 1916. It is apparently valid on its face. The trial court's jurisdiction could not be impeached by parol testimony in a habeas corpus proceeding. Under such circumstances we cannot say that the Circuit Court erred in striking the petition, in view of our holding in Griffin v. State, 258 Ala. 557, 63 So. 2d 682.
Writ denied.
STAKELY, GOODWYN, MERRILL and COLEMAN, JJ., concur. | October 8, 1959 |
65b5770e-bced-4a10-9de0-889eb296fbd2 | Long v. O'MARY | 116 So. 2d 563 | N/A | Alabama | Alabama Supreme Court | 116 So. 2d 563 (1959)
Bryant P. LONG et al
v.
Lee W. O'MARY, Director.
4 Div. 6.
Supreme Court of Alabama.
December 17, 1959.
*564 J. W. Brassell and Roy H. Phillips, Phenix City, for appellants.
MacDonald Gallion, Atty. Gen., and Julius Cage, Jr., Asst. Atty. Gen., for appellee.
LAWSON, Justice.
This is a child custody case.
The appeal to this court is by Bryant P. Long and his wife, Pearl Long, from a final decree of the Circuit Court of Russell County, in Equity, ordering that the child be removed from the custody of the Longs and placed in the care, custody and control of the State Department of Pensions and Security.
The child is illegitimate. He was born on June 9, 1958. Within a few days of his birth his mother placed him in the custody of Mrs. Long, in accordance with an agreement previously made. The Longs paid the mother's hospital expenses.
There is some indication in the record to the effect that the Longs instituted adoption proceedings in the Probate Court of Russell County and that the child's mother evidenced her consent to such an adoption. The record further indicates that the mother later withdrew her consent and the petition for adoption was denied.
The present litigation was commenced on December 2, 1958, by the filing of a "Petition for Custody" in the equity court by Lee W. O'Mary as the Director of the Russell County Department of Pensions and Security. The petition averred, among other things, that the child "should be adjudged a ward of the State since he is in need of the care and protection of the State because he is in such condition and surroundings in the home of Bryant P. and Pearl Long and is under such improper and insufficient guardianship or control as to endanger his morals, health and general welfare."
The Circuit Court of Russell County, in equity, has the inherent power and jurisdiction to determine questions relating to the custody of minor children. It was not deprived of that jurisdiction by the provisions of § 351, Title 13, Code 1940. See Whitfield v. Saulsberry, 247 *565 Ala. 690, 26 So. 2d 93; Ex parte Graham, 266 Ala. 1,95 So. 2d 390.
The State Department of Pensions and Security now has the responsibilities and exercises all the powers and duties previously invested by law in the State Department of Public Welfare and the County Departments of Pensions and Security now have the responsibilities, powers and duties previously given to the County Departments of Public Welfare. Act 341, effective October 1, 1955, 1955 Acts of Alabama, p. 763.
The right of a court of equity upon petition of a director of a County Department of Pensions and Security to award a dependent or neglected child to the State Department of Pensions and Security is not questioned. See Ex parte Graham, supra; Bianco v. Graham, 268 Ala. 385, 106 So. 2d 655.
The grant or refusal of a continuance rests within the discretion of the trial court. Dollar v. McKinney, 267 Ala. 627, 103 So. 2d 785; American Rubber Corp. v. Jolley, 260 Ala. 600, 72 So. 2d 102, 67 A.L.R.2d 489; Ex parte Driver, 258 Ala. 233, 62 So. 2d 241. We cannot say with any degree of certainty that the record reflects an abuse of discretion by the trial court in refusing the continuance. True, the senior member of the firm representing the Longs had been hospitalized the day before the trial commenced. But his partner appeared at the hearing and expressed the desire that the cause proceed after a few hours delay, rather than have the custody of the child awarded temporarily to the State Department of Pensions and Security in the event a long continuance was granted, as the trial court indicated would be his ruling.
We consider that the allegations of the petition are sufficient to call into exercise the full jurisdiction of the equity court with respect to the custody of the child in question. Mere legal niceties of pleading are not favored in cases of this character. Bureau of Catholic Charities v. Deakle, 253 Ala. 471, 45 So. 2d 163; Scott v. Scott, 247 Ala. 598, 25 So. 2d 673; Easterling v. Caton, 260 Ala. 543, 71 So. 2d 835.
Bryant P. Long was called as a witness by the complainant and was examined concerning prior arrests and convictions. It is here asserted that Long was thereby required to give evidence against himself in violation of § 6 of Article 1 of the Constitution of Alabama. There is no merit in this assertion. Assuming without deciding or conceding that Long was entitled to refuse to testify in this case because the evidence given by him would tend to incriminate him, we observe that this record does not show that Long was compelled to testify. He was simply called as a witness and apparently took the stand without protest from him or his lawyer. The privilege against self-incrimination, even in those instances where it is available, is "purely a personal one, and can be claimed only by the witness, or by someone authorized to protect his interests, and, unless so claimed is waived." Southern Ry. Co. v. Bush, 122 Ala. 470, 490, 26 So. 168, 174.
Neither the illegitimate child about whom this case revolves nor the Longs will be benefited by a discussion in this opinion of the evidence adduced in the trial below, so we refrain from setting out the evidence in detail. Suffice it to say that the evidence shows that on more than one occasion Long had been convicted of crime and had served a sentence in the federal penitentiary. He had recently been convicted of lottery operations in Russell County. In view of his record, the age of the Longs, and the fact that the illegitimate child, if permitted to remain in their custody, would be brought up in the community where the facts concerning his birth were known, lead us to the inescapable conclusion that the court acted in the best interests of the infant and that its decision was not palpably against the evidence. *566 Where, as here, the testimony was taken orally before the trial court, the rule is that the finding will not be disturbed on appeal unless palpably wrong.
It is well settled that a decree denying an application for rehearing in equity will not support an appeal. Nor is such a decree subject to review on assignments of error on appeal from the final decree. Equity Rule 62, Code 1940, Tit. 7 Appendix; Whitman v. Whitman, 253 Ala. 643, 46 So. 2d 422; Hipp v. McMurry, 263 Ala. 11, 81 So. 2d 531; Odem v. McCormack, 266 Ala. 465, 97 So. 2d 574; Oliver v. Dudley, 267 Ala. 87, 100 So. 2d 327.
We have treated of those assignments of error which have been adequately argued in brief. Inasmuch as we find no merit in any of those assignments of error, the decree of the trial court is due to be affirmed. It is so ordered.
Affirmed.
STAKELY, MERRILL and COLEMAN, JJ., concur. | December 17, 1959 |
18baf112-1c56-4e8f-a27c-35663abd37d1 | American Fire and Casualty Company v. Tankersley | 116 So. 2d 579 | N/A | Alabama | Alabama Supreme Court | 116 So. 2d 579 (1959)
AMERICAN FIRE AND CASUALTY COMPANY
v.
J. P. TANKERSLEY et al.
6 Div. 398.
Supreme Court of Alabama.
December 17, 1959.
Rives, Peterson, Pettus & Conway and T. M. Conway, Jr., Birmingham, for appellant.
McKay & Livingston, C. W. McKay, Jr., Sylacauga, for appellee Tankersley.
London, Yancey, Clark & Allen, Birmingham, for appellee Daniel.
Hare, Wynn & Newell, Birmingham, for appellees Ponder.
LAWSON, Justice.
American Fire and Casualty Company filed its bill in the Circuit Court of Jefferson County, in Equity, under the declaratory judgment statute and made parties thereto J. P. Tankersley, L. M. Daniel, Shell Oil Company, Myrtle I. Ponder and the latter's husband. §§ 156-168, Title 7, Code 1940, as amended.
The amended bill sought a declaration as to whether complainant is obligated under a policy of insurance to defend Tankersley or to pay judgments which might be rendered against him in suits brought against Tankersley, Daniel and Shell Oil Company by Myrtle I. Ponder and her husband, W. Curtis Ponder.
The suit by Myrtle I. Ponder was filed on the law side of the Circuit Court of Jefferson County on September 11, 1957. It seeks to recover damages for personal injuries which it is averred Mrs. Ponder sustained when she slipped and fell at a filling station in Sylacauga, Alabama, on January 2, 1957.
W. Curtis Ponder's suit filed on the law side of the Circuit Court of Jefferson County *580 several weeks after his wife's suit was filed, seeks to recover damages for the loss of services and society of his wife and for expenses incurred in the treatment of the injuries she is alleged to have sustained on January 2, 1957, as a result of the fall at the filling station.
The filling station where the accident is alleged to have occurred was operated by Tankersley under a sublease from Daniel, who was the lessee of Shell Oil Company.
American Fire and Casualty Company on May 11, 1956, issued its standard garage liability insurance policy wherein Tankersley is named as the insured.
By the terms of the policy the insurance company agreed, in consideration of the payment of the premium, and in reliance upon the statements in the declarations, "and subject to the limits of liability, exclusions, conditions and other terms" of the policy:
Also:
Among the conditions in the policy of insurance are the following:
In its bill for declaratory judgment, the insurance company averred that it is under no obligation to defend the suits against Tankersley or to pay any judgment rendered therein, because Tankersley did not give notice to the company as soon as practicable after the accident occurred, as required by Condition 9 of the policy. It is averred that complainant did not receive notice of the accident, claim or suit until, to wit, October 1, 1957, after Tankersley had been served with a copy of the summons and complaint in a suit against him and called upon the company to defend him. As heretofore shown, Mrs. Ponder fell on January 2, 1957.
This declaratory judgment proceeding was tried before the court and a jury, as is *581 authorized by § 164, Title 7, Code 1940. Zayatz v. Southern Ry. Co., 248 Ala. 137, 26 So. 2d 545, 167 A.L.R. 426.
The court charged the jury orally in part as follows:
The court at the request of Tankersley gave the following written charge:
The jury found that notice of Mrs. Ponder's accident was not given to the insurance company as soon as practicable, but also found that the failure to give notice as soon as practicable was not prejudicial to the insurance company's investigation and defense of the suits brought by Mr. and Mrs. Ponder.
The trial court adopted the findings of the jury and decreed in part as follows:
From that decree the complainant below, the insurance company, has appealed to this court.
There is no cross appeal or cross assignments of error; hence the finding that notice of the accident was not given as soon as practicable remains unchallenged.
On this appeal the insurance company, the appellant, insists that the trial court erred (1) in submitting to the jury the issue of whether or not the American Fire and Casualty Company was prejudiced as a result of its failure to receive notice of the accident as soon as practicable; (2) in charging the jury that the burden of proof with respect to the issue of prejudice was upon the American Fire and Casualty Company; (3) in adopting the finding of the jury that there was no prejudice; and (4) in rendering its final decree declaring it to be the duty of American Fire and Casualty Company to defend J. P. Tankersley in the suits because no prejudice resulted to the insurer from the breach of the notice provision of the policy.
We agree. Our view is that in this case it was entirely immaterial whether the insurance company was prejudiced or not.
The cases recognize a distinction between policies in which notice to the insurer of the accident and notice to the insurer of any claim or suit are made a condition precedent to any suit against the company and those policies in which there is no express provision making the insured's failure to give such notice a ground of forfeiture or a condition precedent. It is cases involving policies of the kind last mentioned in which the question of whether the insured is prejudiced by the failure to give notice of the accident is considered.
*582 The rule established by the great weight of authority is that where, as in the policy involved in this case, notice of the accident and forwarding of any demand, notice, summons or other process are specifically made a condition precedent to any action against the insurer, the failure to give a reasonably timely notice of the accident or of the receipt of any demand, notice, summons or other process will release the insurer from the obligations imposed by the contract, although no prejudice may have resulted. Sears, Roebuck & Co. v. Hartford Accident & Indemnity Co., 50 Wash. 2d 443, 313 P.2d 347; State Farm Mut. Automobile Ins. Co. v. Cassinelli, 67 Nev. 227, 216 P.2d 606, 18 A.L.R.2d 431; Houran v. Preferred Acc. Ins. Co. of New York, 109 Vt. 258, 195 A. 253; Whittle v. Associated Indemnity Corp., 130 N. J.L. 576, 33 A.2d 866; State Farm Mut. Automobile Ins. Co. v. Arghyris, 189 Va. 913, 55 S.E.2d 16; Courtney v. Stapp, 232 Miss. 752, 100 So. 2d 606; Northwestern Mutual Ins. Co. v. Independence Mut. Ins. Co., Mo.App., 319 S.W.2d 898; Malloy v. Head, 90 N.H. 58, 4 A.2d 875, 123 A.L.R. 941; M. F. A. Mutual Ins. Co. v. Mullin, D.C., 156 F. Supp. 445; Standard Accident Ins. Co. v. Turgeon, 1 Cir., 140 F.2d 94.
Other decisions might be cited but the rule, substantially as we have stated it, together with supporting cases, will be found in the following A. L. R. Annotation on "Liability insurance: clause with respect to notice of accident or claim, etc., or with respect to forwarding suit papers," 18 A.L.R.2d 443, 452, and other annotations on the same subject matter. 123 A.L.R. 950; 76 A.L.R. 23.
Appellees rely upon Young v. Travelers Ins. Co., 5 Cir., 119 F.2d 877. This case does apply the no prejudice rule, but no provisions of the policy are recited except the simple requirement to give notice, and we must presume the absence of any provision in the policy making notice to the insurer of the accident a condition precedent. See State Farm Mut. Automobile Ins. Co. v. Cassinelli, supra.
Appellees also cite and rely upon Navigazione Alta Italia v. Columbia Casualty Co., 5 Cir., 256 F.2d 26. The policy there involved did contain conditions similar to those included in the policy before us. Although the court quoted the so-called prejudice rule as stated in the Young case, supra, we do not understand the decision in that case to have turned on the application of that rule.
The sole issue in this case according to the majority view, which we adopt, should have been simply whether Tankersley gave notice of the accident as soon as practicable. That issue was decided against Tankersley. Hence, it was error to decree that the insurance company was bound under its contract to defend Tankersley in the suits brought against him and his co-defendants by Mr. and Mrs. Ponder.
The decree of the trial court is reversed.
Reversed and remanded.
LIVINGSTON, C. J., and STAKELY and MERRILL, JJ., concur. | December 17, 1959 |
0171093b-ba17-43a7-aa54-e722a018c0f2 | Prestwood v. Ivey | 138 So. 2d 713 | N/A | Alabama | Alabama Supreme Court | 138 So. 2d 713 (1962)
L. M. PRESTWOOD et al.
v.
A. C. IVEY, as Administrator.
4 Div. 75.
Supreme Court of Alabama.
January 18, 1962.
Rehearing Denied March 22, 1962.
*714 John C. Walters, Troy, J. Kirkman Jackson, Birmingham and Lewey Stephens, Jr., Elba, for appellants.
John W. Gibson and Oliver W. Brantley, Troy, for appellee.
MERRILL, Justice.
This is an appeal from a judgment for $13,000 under a complaint in simple negligence, charging L. M. Prestwood, Morris Prestwood and Clayton Prestwood, partners doing business as Prestwood Chair Company, and the driver of their truck, W. R. Reardon, with the negligent death of Emma C. Ivey. A motion for a new trial was overruled.
The accident occurred on a rainy afternoon, December 31, 1958. Defendants' trailer truck was traveling south on U. S. 231, meeting the automobile driven by the decedent. The collision occurred on the *715 east side of the road, the right wheels of decedent's car being on the shoulder of its right-hand side. Two other persons in the automobile were killed. The driver of the truck testified that the accident was caused by defective brakes on the truck, explaining that when he touched his brakes, they locked and did not release, causing him to skid out of control or jack-knife in the highway.
Appellants' first assignment of error is that "the Court erred in permitting plaintiff's witness Ballinger to detail the injuries of deceased." Appellants argue that since compensatory damages cannot be recovered under an action brought under Tit. 7, § 123, as here, the only question was the negligence vel non of defendants, and evidence of the extent of injuries was not admissible.
We have no disagreement with appellants' propositions of law, only with their application to the facts in this case.
Ballinger, a licensed mortician, was the first witness called by plaintiff. He testified that he arrived after the collision occurred, and found the deceased's body in the front seat of the car, and he "took her to be dead." He was asked to "describe the condition of her body" at that time and the court sustained objection to that question. He then testified that "generally speaking," the automobile accident was the cause of decedent's death. He said he observed several of decedent's injuries, and he was then asked to describe those injuries that he had observed. It had been stated to the court that the only purpose for asking these questions was to show the cause of death. The following occurred:
The burden of proof on the plaintiff included proving that the deceased was killed in the accident as a result of injuries sustained therein. The evidence was admissible to meet that burden. The court charged the jury both in the oral charge and in written charges that only punitive damages could be recovered in the action.
The case of Kurn v. Counts, 247 Ala. 129, 22 So. 2d 725, 729, cited by appellants, is not applicable. There, "the record shows a stipulation of counsel that the deceased died as a result of those injuries. So that counsel for plaintiff did not have any further burden in that respect, and he was not authorized to introduce prejudicial matters to prove an admitted fact." Here, there was no such stipulation and nothing to show that at the time the evidence was adduced, the cause of decedent's death was an admitted fact. The trial court did not err in admitting this evidence to show the cause of death.
Appellants argue that the court erred in permitting appellee to introduce into evidence two deeds made by Lewis M. Prestwood to his wife. One deed described over 1,000 acres of land in Coffee County and stated "it being the specific intention of grantor herein to convey the grantee herein all the land and real estate that he owns in Coffee County, Alabama." The other deed conveyed 200 acres contiguous to the first tract but this acreage was in Pike County. The court let the evidence in under the rule announced in Burdett v. Hipp, 252 Ala. 37, 39 So. 2d 389, that it "is admissible on the ground that such evidence tends to show a consciousness of liability."
Appellants argue first that the Hipp case was an action for assault and battery, and the doctrine does not apply to negligence cases. The answer to that contention is *716 that the opinion in the Hipp case cites at least three negligence cases involving automobile collisions in support of the consciousness of guilt principle: Harmon v. Haas, 61 N.D. 772, 241 N.W. 70, 80 A.L.R. 1131; Chaufty v. De Vries, 41 R.I. 1, 102 A. 612; Cusik v. Miller, 102 Kan. 663, 171 P. 599, L.R.A.1918D, 1086.
Appellants also contend that the Hipp case is not apt authority because appellee did not affirmatively prove that the property was all the land that Prestwood owned. In the Hipp case, all the land was deeded. But we do not agree that evidence of property conveyances after an accident is limited to conveyances of all of one's property to be admissible, nor is the Hipp case to be so limited. None of the authorities cited in the Hipp case so hold. In Johnson v. O'Brien, 258 Minn. 502, 105 N.W.2d 244, 249, the court said:
We hold that there was no burden on the appellee to show affirmatively that the deeds from Prestwood to his wife described all his property, even though one deed did show that he conveyed all of his real property in Coffee County.
Appellants also argue that the "deeds were not admissible because Lewis M. Prestwood was not, individually, a party to this suit." Appellants' position is that only the partnership was sued, and when one of the partners is not sued individually, his individual property is not affected, citing Woodfin v. Curry, 228 Ala. 436, 153 So. 620.
But we cannot agree that Lewis M. Prestwood was not sued individually. The suit was against "L. M. Prestwood, Morris Prestwood and Clayton Prestwood, partners doing business as Prestwood Chair Company, and Willie Ray Reardon." The added words, "partners doing business" etc., were "merely descriptive of the persons of the defendants or of the relation existing between them" and was a suit against the four named individuals. McKissack v. Witz, Biedler Co., 120 Ala. 412, 25 So. 21; Blackman v. Moore-Handley Hardware Co., 106 Ala. 458, 17 So. 629.
Appellants contend that the court erred in sustaining objections to the introduction of a liability insurance policy covering the partnership and the equity file in a suit by appellee against L. M. Prestwood and wife, seeking to set aside the deeds from Prestwood to his wife, as fraudulent conveyances. The file consisted of the bill, demurrer thereto, answer and cross-bill and demurrers to the cross-bill. Appellants argue that the policy would have shown that the accident was covered by liability insurance, and the pleadings of the Prestwoods in the equity case would have shown that there was no fraud connected with the conveyances of the husband to the wife.
The objection to the insurance policy was properly sustained. Counsel merely offered a policy "issued by the Employers Insurance Company of Alabama, to the Defendants Prestwood in this case, which affords coverage of $10,000.00 to any one person injured, or with a $20,000.00 total for any one accident, and which policy was in force and effect at the time of the occurrence of this accident, December 31, 1958.", and stated that it covered the vehicle involved in the collision. The policy was not self-proving *717 and no preliminary evidence of its authenticity was offered. People's Savings Bank v. Jordan, 200 Ala. 500, 76 So. 442; First Nat. Life Ins. Co. of America v. Simpson, 25 Ala.App. 72, 140 So. 766.
The objection to the equity file was also properly sustained. The effect of its admission would have been to permit the unsworn and self-serving declarations of the Prestwoods in their answer to be admitted into evidence when they could explain the transaction between them by testifying in person if they had chosen so to do. Appellants sought to introduce the entire file. There was no error in the trial court's ruling. Moore v. Leftwitch, 1 Stew. & P. 254.
Appellants argue that the motion for a new trial should have been granted because patrolman Long, who investigated the accident and testified, talked to a group of people during a recess in the trial, one of whom was a juror, but he was never identified.
Long and some members of the group were discussing the worth of governors on trucks. The fact that Long was talking to the group was reported to the judge and the attorneys, and attorneys for both sides went and talked to Long and evidently were convinced that Long had done nothing improper because nothing more was done about it. After the jury returned to the box, patrolman Long observed that one of the jurors had been in the group. The juror was not brought before the court, and the court has no way of knowing what the juror heard or his version of the same.
The trial court heard all the testimony on the motion for a new trial and observed in his written opinion overruling the motion:
On questions of this kind, we consider the ruling of the trial court as being presumptively correct and conclude that the court acted within its sound judicial discretion in denying the motion. Green v. State, 252 Ala. 513, 41 So. 2d 566. There was no reversible error in the action of the trial court. Boswell v. Land, 217 Ala. 39, 114 So. 470; Adams v. State, 32 Ala.App. 367, 26 So. 2d 216.
Finally, appellants argue that they were entitled to the affirmative charge because the undisputed evidence of the truck driver was that "the sudden locking of the brake system" caused the truck trailer to "jack-knife" across the road. We cannot agree. The physical facts already described showing that the decedent's car was so far on its right-hand side of the road that the right wheels were off the pavement and on the shoulder, and that appellants' vehicle came across the center line and struck it, was sufficient to present a jury question as to whether the collision was caused by the negligence of appellants or was an unavoidable accident.
Having found no reversible error in the argued assignments of error, it follows that the judgment should be affirmed.
Affirmed.
LIVINGSTON, C. J., and LAWSON and STAKELY, JJ., concur. | January 18, 1962 |
c96037a0-7b72-4ee2-a3b9-8fddf72af9ab | Allison v. State | 137 So. 2d 761 | N/A | Alabama | Alabama Supreme Court | 137 So. 2d 761 (1962)
Dewey ALLISON
v.
STATE of Alabama.
6 Div. 811.
Supreme Court of Alabama.
February 1, 1962.
Dewey Allison, pro se.
MacDonald Gallion, Atty. Gen., and John C. Tyson, III, Asst. Atty. Gen., for respondent.
COLEMAN, Justice.
This is a petition seeking to review an order of the circuit court denying relief to petitioner on his application to that court for writ of error coram nobis.
In his application to the circuit court, petitioner sought to review his prior conviction for murder in the first degree.
The petition filed in this court shows that petitioner was convicted and sentenced on May 26, 1960. It recites in pertinent part as follows:
Attached to the petition is a copy of the judgment of the circuit court denying the petition for coram nobis presented to that court. The judgment of the circuit court shows that this petitioner on his trial for murder in the first degree was represented by competent counsel and afforded every right to which the law entitled him. The order further shows that competent counsel was appointed to represent petitioner on the hearing in the circuit court on his petition for coram nobis.
We are unable to find from anything hat is now before us that petitioner has been denied any constitutional right. We are of opinion that he was afforded due process, notice of the charges against him, confrontation by and cross-examination of witnesses, and representation by counsel.
Petitioner states in his petition presented to us that perjured testimony was used by the prosecution to bring about his conviction. There are statements in his petition by which petitioner implies that the State knowngly used perjured testimony on his main trial. This assertion is not supported by what is before us. The circuit court, after an extensive hearing, found to the contrary.
Petitioner complains that, on the hearing of his petition for coram nobis in the circuit court, he was denied a transcript of the testimony taken on his main trial more than a year before he filed the petition for coram nobis. By Act No. 62, approved September 15, 1961, the legislature provided for furnishing transcripts on appeal from a judgment of conviction. Neither in that act nor anywhere else, so far as we are advised, is there provision for furnishing a transcript of evidence, not on appeal, but on a post-appeal review of conviction for murder. Ex parte Carmack, Ala.App., 133 So. 2d 891.
His petition shows that petitioner did not attempt to appeal from his conviction. He does not assert that he did. The judgment now under attack recites "* * the petitioner having waived his right of appeal * * *." The writ of error coram nobis is not intended to relieve a party from his own negligence. Ex parte Taylor, 249 Ala. 667, 32 So. 2d 659. We do not think the writ is intended to provide a review by appeal where the complaining party has not sought to appeal and the time for appeal has long since expired. The circuit court did not err in failing to furnish transcript of evidence.
On this record petitioner is not entitled to relief by a writ of error coram nobis. We are of opinion that petitioner has failed to show that the circuit court erred in denying the writ.
Writ denied.
LIVINGSTON, C. J., and SIMPSON and GOODWYN, JJ., concur. | February 1, 1962 |
929dcbee-2143-4031-8fea-dbb4b486eaad | County Board of Education of Clarke County v. Oliver | 116 So. 2d 566 | N/A | Alabama | Alabama Supreme Court | 116 So. 2d 566 (1959)
COUNTY BOARD OF EDUCATION OF CLARKE COUNTY et al.
v.
Effie Mae OLIVER.
1 Div. 822.
Supreme Court of Alabama.
December 17, 1959.
Adams, Gillmore & Adams, Grove Hill, for appellants.
*567 Tucker & Taylor, Birmingham, for appellee.
LAWSON, Justice.
The appellee, Effie Mae Oliver, was a tenure school teacher, that is, she had obtained a continuing service status. § 352, Title 52, Code 1940, as amended.
After a hearing, as provided by § 359, Title 52, Code 1940, as amended, the County Board of Education of Clarke County, her employing Board of Education, cancelled Effie Mae Oliver's contract of employment on the ground of incompetency.
Effie Mae Oliver thereupon began this action of mandamus in the Circuit Court of Clarke County to require the County Board of Education, the members of said Board, and the County Superintendent of Education to reinstate her as a teacher.
The trial court granted the peremptory writ of mandamus and ordered the respondents to restore or reinstate Effie Mae Oliver to her original status as a teacher in the Clarke County school system for the year 1958-59.
From that judgment the respondents below appealed to this court.
The circuit court correctly entertained the petition for mandamus and this case is properly here by appeal. Williams v. Board of Education of Lamar County, 263 Ala. 372, 82 So. 2d 549; Cooper v. Perry County Board of Education, 264 Ala. 251, 86 So. 2d 832. This proceeding was terminated in the court below and the submission here was prior to the effective date of Act No. 643, approved November 19, 1959, which provides for a Tenure Commission to determine appeal cases under the Teacher Tenure Law.
Section 359, Title 52, Code 1940, as amended, provides in part as follows:
The written notice given to Effie Mae Oliver in regard to the proposed cancellation of her contract was to the effect that her services for the past year "had been unsatisfactory and incompetent."
Incompetency is a ground for cancellation of a contract of a teacher on continuing service status. § 358, Title 52, Code 1940, as amended.
However, the term "incompetent" is generic in its meaning and of itself conveys no information of the particular act of commission or omission, or want of qualification which will authorize the conclusion that the individual having such status or guilty of such act or omission is incompetent. Ridgway v. City of Fort Worth, Tex.Civ.App., 243 S.W. 740.
"Incompetency" is a relative term which may be employed as meaning disqualification, inability or incapacity. It can refer to lack of legal qualifications or fitness to discharge the required duty. It may be employed to show want of physical or intellectual or moral fitness.
In advising Effie Mae Oliver that her services were unsatisfactory, the Board of Education was no more specific than if it had merely told her that she was incompetent.
The Teacher Tenure Law contemplates the rudimentary requirements of fair play with reasonable notice and opportunity to be present, information as to charges made, and opportunity to controvert such charges, the right to examine and crossexamine witnesses, and submit evidence and be heard in person or by counsel. Board of Education of Choctaw County v. Kennedy, 256 Ala. 478, 55 So. 2d 511.
Effie Mae Oliver was entitled to a detailed statement of the reasons why the *568 County Board of Education had concluded that she was incompetent. § 359, Title 52, Code 1940, as amended.
Since the Board of Education did not give the required written notice, it acted incorrectly in cancelling the appellee's contract.
It follows that the judgment of the trial court awarding the peremptory writ of mandamus must be affirmed.
The question for our decision is whether the judgment of the trial court is correct, not whether the ground on which the trial court professed to proceed is tenable. Alabama Public Service Commission v. Mobile Gas Company, 213 Ala. 50, 104 So. 538, 41 A.L.R. 872.
Affirmed.
STAKELY, MERRILL, and COLEMAN, JJ., concur. | December 17, 1959 |
b8f41a5e-a4af-44fc-b1d9-d89df8fd206c | Miller v. Hillview Water Works Project, Inc. | 139 So. 2d 337 | N/A | Alabama | Alabama Supreme Court | 139 So. 2d 337 (1962)
Chester N. MILLER
v.
HILLVIEW WATER WORKS PROJECT, INC.
6 Div. 721.
Supreme Court of Alabama.
March 22, 1962.
*338 J. J. Cockrell, Birmingham, for appellant.
Harsh, Glasser & Lankford and John L. Glasser, Birmingham, for appellee.
LAWSON, Justice.
Mandamus by Chester N. Miller against The Hillview Water Works Project, Inc., a corporation (hereinafter Water Company), to compel it to permit Miller to attach his service pipe line from his property to a service pipe line belonging to another customer rather than by the construction of a separate service pipe line from the Water Company's main to Miller's property, as required by the Water Company's rules as set out in its bylaws.
The Water Company was organized "to build, construct, reconstruct, repair, maintain, extend and operate a water works system for the municipality known as Hillview, Jefferson County, Alabama, and its environs."
Section 1 of Article V of the bylaws of the Water Company provides:
Miller is the owner of Lot 17 situated in or near Hillview, on which he constructed a $6,000 residence before he made arrangements for water.
The name of the street on which Miller's lot is situated is not disclosed by the record before us. We will call it A Street. It runs north and south. Miller's lot is on the east side. There is no water main in A Street.
The nearest water main is in a street which we will refer to as Z Street. It runs east and west and intersects A Street at a point some distance south of Miller's lot. The distance from Miller's lot to Z Street does not appear, but there are three lots between Miller's lot and Z Street.
Miller made application to the Water Company for water from its main on Z Street. He paid the required costs, including what seems to have been a down payment on one share of stock in the Water Company. (Section 1 of Article I of Water Company's Bylaws) Miller's application was granted provided he would construct a two-inch service pipeline from the water main in Z Street to his lot.
Because he could not get the permission of one of the intervening property owners to lay the service pipeline across his property and because of the cost of such a line, Miller countered with the suggestion that he be permitted to connect his property with a service pipeline owned by one Claborn, which runs north from the Water Company's main in Z Street, parallel with A Street, in front of Miller's lot. Claborn had consented to that arrangement. Claborn's service pipeline is referred to as water line "X."
The Water Company would not agree to Miller's suggestion.
Thereupon Miller filed in the Circuit Court of Jefferson County his petition against the Water Company wherein, as amended, he averred substantially the facts recited above and wherein he prayed:
An alternative writ of mandamus was duly issued.
The Water Company demurred to the original petition. The demurrer was sustained. Amendments were filed. Demurrer to the petition as amended was sustained. In the decree sustaining demurrer to the petition as amended, the trial court observed "that the matter is not subject to further amendment and that the petitioner is not entitled to the issuance of a writ." That decree was amended so that the petition as amended was dismissed out of court and the petitioner, Miller, was taxed with the costs of the proceeding. Miller has appealed to this court.
The judgment dismissing the petition and taxing the costs against the petitioner, Miller, will support the appeal. Jordan v. Clarke-Washington Electric Membership Corp., 262 Ala. 581, 80 So. 2d 527.
If the petition as last amended was subject to the demurrer interposed thereto and Miller, the petitioner, desired to amend again, he should have so indicated. Failure to do so justified a judgment of dismissal. Jordan v. Clarke-Washington Electric Membership Corp., supra.
So that, our inquiry is whether the petition as last amended is subject to the demurrer interposed.
There is one matter which is not raised by the demurrer to which we think we should write. The prayer of the petition prays for the issuance of an alternative writ of mandamus or rule nisi only, without expressly praying that the court ultimately order the issuance of a peremptory writ. The prayer is subject to criticism because of this omission, but it is not so defective as to warrant a holding that it is not sufficient to support an order for the issuance of a peremptory writ. The prayer for general relief is, in our opinion, ample for an order for the issuance of the peremptory writ after a hearing. State ex rel. Fitzmaurice v. Clay, 208 La. 443, 23 So. 2d 177; People ex rel. Desiderio v. Conolly, 238 N.Y. 326, 144 N.E. 629.
The petition, as amended, to which we will refer hereinafter simply as the petition, alleges in substance that the Water Company was organized under the general laws applicable to all corporations. The certificate of incorporation is made an exhibit to the petition and, as we have indicated, it shows that the Water Company was incorporated for the purpose of building and operating a water works system for Hillview and its environs.
A corporation so organized may have the power to engage in the utility business but not be a utility until it engages in such service or holds itself out to do so. Alabama Power Co. v. Cullman County Electric Membership Corp., 234 Ala. 396, 174 So. 866. Cf. Southern Liquid Gas Co. v. City of Dothan, 253 Ala. 350, 44 So. 2d 744.
However, under the allegations of this petition the Water Company is shown to be a public utility, for it is alleged that it is furnishing water to the inhabitants of Hillview and its environs. We do not understand appellee to question the sufficiency of the petition in that respect.
A public utility is obligated to serve all members of the public that it holds itself out to serve, fairly and without discrimination. City of Mobile v. Bienville Water Supply Co., 130 Ala. 379, 30 So. 445; State ex rel. Ferguson v. Birmingham Water Works Co., 164 Ala. 586, 51 So. 354, 27 L.R. A.,N.S., 674; City of Montgomery v. *340 Greene, 180 Ala. 322, 60 So. 900; State ex rel. Lammons v. Commander, 211 Ala. 230, 100 So. 223; Cloverdale Homes v. Town of Cloverdale, 182 Ala. 419, 62 So. 712, 47 L.R.A.,N.S., 607; Wiegand v. Alabama Power Co., 220 Ala. 620, 127 So. 206; Birmingham Waterworks Co. v. Hernandez, 196 Ala. 438, 71 So. 443, L.R.A.1916E, 258; Birmingham Ry., L. & P. Co. v. Littleton, 201 Ala. 141, 77 So. 565.
This duty to serve the public exists independent of statute regulating the manner in which such utilities do business. Wiegand v. Alabama Power Co., supra. The duty is imposed because they are organized to do a business affected with a public interest and are held out to the public as being willing to serve all of its members. Birmingham Ry., L. & P. Co. v. Littleton, supra.
There are, however, conditions precedent to the obligation of a public utility to serve any particular applicant. The applicant must submit to such reasonable conditions as the utility sees fit to impose. Birmingham Ry., L. & P. Co. v. Littleton, supra; Messer v. Southern Airways Sales Co., 245 Ala. 462, 17 So. 2d 679. One of the conditions precedent to the right of a citizen to be supplied with water, which a water company may require, is that the citizen provide the proper means of conveying the water from the water main onto his property. Birmingham Waterworks Co. v. Hernandez, supra; Bessemer Waterworks v. City of Bessemer, 198 Ala. 535, 73 So. 905; Alabama Water Co. v. Knowles, 220 Ala. 61, 124 So. 96; Sims v. Alabama Water Co., 205 Ala. 378, 87 So. 688, 28 A.L.R. 461; Birmingham Waterworks Co. v. Brooks, 16 Ala.App. 209, 76 So. 515, cert. denied, 200 Ala. 697, 76 So. 995.
The rules of the Water Company incorporated in its bylaws provide, in effect, that each customer must maintain the service pipes from the water main to his premises and that only one house shall be connected to any one "tap" off the water main.
The efficacy of the rules adopted by a utility in regard to the conduct of its business is not dependent upon the prior approval of those rules by the Alabama Public Service Commission. Wiegand v. Alabama Power Co., supra.
In the instant case the petitioner, Miller, wants to avoid the effect of the Water Company's rule that only one house shall be connected to any one "tap" off the main line.
In our opinion that rule is reasonable on its face. It is no doubt designed to prevent waste and operates to prevent the controversies which result when water supply is cut off from one customer, who has paid his rent, because a user who is connected with the same service pipeline is in arrears. See Sims v. Alabama Water Co., supra; Birmingham Waterworks Co. v. Brooks, supra.
The Alabama Public Service Commission approved a similar rule for the Alabama Water Company. Alabama Water Co. v. Knowles, supra. Rule 9(e) set out in the report of that case shows that the Alabama Water Company reserved the right to approve or disapprove an application for the supply of water for two or more buildings by a single service line.
The petition contains no allegation of fact tending to show the rule in controversy to be unreasonable. The petition does show that Miller constructed a dwelling on a lot situated some distance from a water main without first making arrangements for water supply and that to comply with the Water Company's rule will be expensive. Miller will have to construct a service pipeline for a considerable distance, but not as far as did Claborn. He may have to purchase or otherwise acquire from an intervening property owner the right to bring that line across his property if he is to secure water from the water main in Z Street. But these circumstances are of Miller's own making and do not support the charge that the rule under attack is unreasonable.
There are no averments in the petition to the effect that the Water Company has *341 waived the rule in question in favor of any other customer
It is well understood that to justify the issuance of a writ of mandamus it is necessary that the relator have a clear legal right to the thing he demands and it must be the clear legal duty of a respondent to perform the thing required. State ex rel. Lammons v. Commander, supra; Jordan v. Clarke-Washington Electric Membership Corp., supra.
The petition does not show such right and the demurrer to it was properly sustained. By petitioner not seeking further amendment, his petition was dismissed without error. Jordan v. Clarke-Washington Electric Membership Corp., supra.
The judgment of the trial court is affirmed.
Affirmed.
LIVINGSTON, C. J., and MERRILL and COLEMAN, JJ., concur. | March 22, 1962 |
69c47611-15ab-449f-9d7e-58b2cd497c2a | State v. Spann | 118 So. 2d 740 | N/A | Alabama | Alabama Supreme Court | 118 So. 2d 740 (1959)
STATE of Alabama ex rel. ATTORNEY GENERAL
v.
Norman D. SPANN.
4 Div. 994.
Supreme Court of Alabama.
December 17, 1959.
Rehearing Denied March 24, 1960.
MacDonald Gallion, Atty. Gen., Jos. D. Phelps, Asst. Atty. Gen., J. Theodore Jackson, Dothan, and Wm. G. Caffey, Mobile, for appellant.
Lee & McInish, Dothan, for appellee.
*741 STAKELY, Justice.
This appeal is from a judgment of the Circuit Court of Houston County, Alabama, sustaining the demurrer of Norman D. Spann (appellee), to a petition of the State of Alabama on the relation of its attorney general (appellant), alleging that said defendant for three years last passed "has intruded and is intruding into the profession of architecture by engaging in the planning or designing for the erection, enlarging or alteration of a building or buildings for others, or by furnishing architectural supervision of the construction thereof (a profession requiring a license or certificate or other legal authorization within this state), without having obtained a certificate of registration from the State Board for the Registration of Architects of the State of Alabama, or the license required by law and is still unlawfully practicing said profession in Houston County, Alabama."
The petition prayed for an order or rule to show cause "by what warrant or authority the defendant is practicing said profession; and that he be excluded from said profession or be prohibited from practicing the same in the State of Alabama, until he shall have complied with the statutes in such cases applying."
The demurrer of the defendant attacked the statute under which the writ was issued as unconstitutional on various grounds. The court sustained the demurrer on the theory that the statute, § 8 et seq., Title 46, Code of 1940, as amended by the Acts of the Legislature of Alabama of 1943, p. 191, and particularly Section 9 of the amended statute, contains arbitrary and unreasonable clauses and is too indefinite or uncertain to meet constitutional requirements. Having sustained the demurrer to the petition, the court then dismissed the petition for the writ of quo warranto. The appeal here is from that judgment.
I. General Acts, Regular Session 1931, p. 514 et seq. (Tit. 46, § 8, Code of 1940), provided for the registration or licensing of persons practicing architecture in the State of Alabama.
The lower court in entering its judgment sustaining the demurrer to the petition for writ of quo warranto expressly bases its decision on the claimed unconstitutionality of a portion of the amendatory act approved June 22, 1943. This act purported to amend §§ 8, 9, 13, 14, 15 and 19 of Title 46, Code of 1940. See § 8 et seq., Title 46, 1955 Cumulative Pocket Part, Code of 1940.
The claim of unconstitutionality is sought to be applied only to that portion of Chapter 2 of the 1943 Act, p. 191, which purports to amend § 9 of Title 46. The portion of the amended § 9 found objectionable is the provision that,
There is considerable discussion in briefs as to whether the unconstitutionality of the portion of the amendatory act which we have quoted above affects the question of the constitutionality of the original act. It is argued that even though the amendatory act be unconstitutional, yet the original act which required a certificate of registration from the State Board for the Registration of Architects of the State of Alabama would not be affected. We see no point in considering the matter here referred to since upon due consideration, we do not think that the act, as amended, is unconstitutional.
*742 It may be generally stated that in many states statutes are in force which regulate architects in the practice of their profession and these statutes require that those intending to engage in the profession secure from the proper board, commission or officer, a license or certificate to practice. The state in the exercise of the police power may thus regulate the practice of architecture. 3 Amer.Jur. § 3, p. 998.
It may be also noted here that there are several cases from other jurisdictions in which exemptions similar to the exemptions provided in the Act of 1931 are upheld as valid. Bollin v. Fahl, 232 Mich. 658, 206 N.W. 495; People ex rel. Laist v. Lower, 251 Ill. 527, 96 N.E. 346, 36 L.R.A.,N.S., 1203; Ex parte McManus, 151 Cal. 331, 90 P. 702.
As we have heretofore indicated, the only provision of the amendatory act of 1943 which was held by the lower court to be arbitrary, unreasonable and too indefinite and uncertain to meet constitutional requirements, is the provision exempting those making plans and specifications for a one or two family residence costing not more than $10,000 from registering and obtaining a license as an architect.
It is our judgment that the legislature had the right and power to determine from the kind of building and its use, whether protection of the public requires that the plans and specifications therefor be prepared by a registered, licensed architect. A small building comparatively simple in design and structure and to be used by comparatively few people, for example a one or two family dwelling, might with reason be considered and in fact was considered by the legislature in a class which does not require the expert services of an architect. It seems to us that this is within the inherent power and authority of the legislature. The fact that a residence could be built for $10,000 or less would practically insure both smallness, simplicity and use by a few people and the combination would certainly form a basis upon which the legislature could classify these comparatively cheap and small family units as buildings which do not require that their plans and specifications be drawn by a registered and licensed architect. This is a matter which seems to us to be peculiarly within the province of the legislature and was considered and passed on by it when inserting the provision in the amendatory statute, which the lower court condemned.
From what we can ascertain there are statutes in other states containing provisions exempting from the operation of the statute buildings costing less than a specified amount. For example, the limit was placed by law at $10,000 for residences in the Arizona architect statute [A.R.S. § 32-101 et seq.]; at $5,000 in the New Mexico statute [1953 Comp. § 67-12-1 et seq.]; at $7,500, respectively, in the Illinois and Idaho statutes [Ill.Rev.St.1959, c. 10½, § 1 et seq.; I.C. § 54-301 et seq.]. The North Carolina, Michigan and Nebraska statutes [G.S. § 83-1 et seq.; Comp.Laws 1948, § 338.551 et seq.; N.R.S. 623.010 et seq.] fix the limit at $20,000. Florida, Arkansas, Minnesota, New York, Oklahoma, Pennsylvania, Utah and Georgia fix the limit at $10,000 [F.S.A. § 467.01 et seq.; Ark.Stats. § 71-301 et seq.; M.S.A. § 326.02 et seq., Education Law, § 7301 et seq.; 59 O.S.1951 § 45.1 et seq.; 63 P.S. § 21 et seq.; R.C.M. 1947, § 58-3-1 et seq.; Code, § 84-301 et seq.]. In most of these statutes this provision of the act is substantially identical with the provision of the Alabama statute as amended in 1943. Apparently the legislatures of all of these states found a sound basis for classifying buildings on a cost basis and so far as we have been able to ascertain, there is no case in which such a provision has been criticized much less held so arbitrary as to be beyond the province of the legislature.
It is argued by the appellee that under the amendatory act one drawing plans and specifications for a one or two family residence to cost $10,000 or less, can be made punishable by a subsequent increase *743 in the cost of materials or by labor disputes or by some other contractor disagreeing as to what the building should cost. We do not agree with this contention. The validity of the act should not be determined on such an hypothetical basis. If one is called on to prepare plans and specifications for a one or two family residence to cost $10,000 or less and he undertakes reasonably and in good faith to prepare plans and specifications for a building which he honestly estimates will not cost in excess of $10,000, he will not be made punishable because of subsequent changes in the estimated price of materials or by strikes prolonging the work or by changes thereafter made by the person employing him. If he plans a building which he fairly and honestly estimates will cost less than $10,000 he is exempted from registering and obtaining a license as an architect and he will not be made punishable by unforeseen circumstances. It seems to us that necessarily his plans and specifications must be prepared in the light of conditions then known to or reasonably foreseeable by him and he is not to be penalized by a change of conditions or even by a reasonable and honest underestimate. Of course he should not be allowed to evade the statute by deliverately underestimating the cost of the proposed building.
We believe that it is within the discretion of the legislature to determine at what point licensing is to begin and at what point it shall end. The Alabama Legislature determined in line with the legislatures of many other states that private structures costing under $10,000 were less needful of expert design than are larger structures. Requiring planners of such lower cost structures to be licensed architects would be burdensome to the public in that the cost of such structures would be increased and thereby restrictive.
A number of our statutes have afforded farmers and farm benefits as a separate classification, not as one segment of one classification. For example, all drivers of motor vehicles upon a public highway must be licensed. § 59, Title 36, Code of 1940. Under § 67, Title 36, Code of 1940, however, there is an exemption of drivers of tractors and other farm vehicles temporarily driven or moved on a highway. Such exemptions recognize a different classification, not a preferred or privileged or underprivileged segment of one class.
We cannot say that we know all the reasons for the classifications under the act in question. This is not necessary however. It is within the scope of legislative authority to make classifications in its regulatory enactments. Unless clearly and patently arbitrary, oppressive and capricious on its face, such classification is not subject to judicial review. Mere inequality under such classification is not sufficient to invalidate a statute. In the case of State ex rel. Shirley v. Lutz, 226 Ala. 497, 147 So. 429, 431, it was claimed that an act charging different license rates for plumbers in areas having different populations was discriminatory. In that case this court said:
"Our cases above cited uniformly hold that all reasonable intendments *744 must be indulged to support the constitutionality of solemn legislative acts, and this rule applies equally in dealing with a classification basis of this kind. The court must see clearly that such classification is arbitrary and without any reasonable basis in view of the subject-matter of legislation.
The court in the foregoing case recognized the necessity of separate provisions for varying groups and locales and held that those classifications were for the legislature and not for the consideration of the courts unless clearly arbitrary without basis.
In Alabama State Federation of Labor v. McAdory, 246 Ala. 1, 18 So. 2d 810, this court held that the legislature was not bound to extend regulations to all cases which it might possibly reach and that as a matter of classification much must be left to sound legislative discretion. Further that while a classification must not be purely arbitrary, oppressive or capricious, mere production of inequality thereby is insufficient to invalidate a statute, but inequality, in order to encounter challenge of the constitution must be actually and palpably unreasonable and arbitrary. See also Smith v. Wolf, 160 Ala. 644, 49 So. 395.
It results that since we have concluded that the amendatory Act of 1943 in the particulars here challenged is not unconstitutional, the judgment of the lower court must be reversed and the cause remanded.
Reversed and remanded.
LIVINGSTON, C. J., and LAWSON and MERRILL, JJ., concur. | December 17, 1959 |
2e9df149-1e38-4885-97ef-d32610889ae3 | Alabama Farm Bureau Mut. Cas. Ins. Co. v. Dalrymple | 116 So. 2d 924 | N/A | Alabama | Alabama Supreme Court | 116 So. 2d 924 (1959)
ALABAMA FARM BUREAU MUTUAL CASUALTY INSURANCE COMPANY, Inc.
v.
Ralph L. DALRYMPLE.
8 Div. 990.
Supreme Court of Alabama.
December 17, 1959.
Lusk & Lusk, Guntersville, for appellant.
Clark E. Johnson, Jr., Albertville, for appellee.
STAKELY, Justice.
This is an action by the insured, Ralph L. Dalrymple (appellee), against the insurer, Alabama Farm Bureau Mutual Casualty Insurance Company, Inc. (appellant), when the verdict of the jury exceeded the policy limits and when it is claimed the insurer *925 had an opportunity to settle within the policy limits prior to the verdict. This case has been before this court on a previous occasion. Dalrymple v. Alabama Farm Bureau Mut. Ins. Co., Inc., 267 Ala. 416, 103 So. 2d 711.
In due course the defendant filed its pleas and the case was tried with the result that there was verdict and judgment for the plaintiff in the amount of $6,000. There was a motion for new trial which was overruled, the court, however, requiring the reduction of the judgment to $5,600 to which the plaintiff agreed.
The case was tried on two counts. Count 1-A charged a negligent failure or refusal to settle the suit resulting in a judgment in favor of Joseph H. Croft for $10,000 and Count 1-C charging that the defendant in bad faith failed or refused to settle the suit which resulted in a judgment in favor of Joseph H. Croft in the amount of $10,000. We have held both such counts good. Waters v. American Cas. Co. of Reading, Pa., 261 Ala. 252, 73 So. 2d 524.
The defendant filed its pleas of (1) the general issue and (2) "that plaintiff has not paid said Joseph H. Croft said excess of $5,000.00 in said judgment." A demurrer to plea 2 was sustained. There was a motion for new trial which was overruled and some of the grounds assigned in the motion was the refusal of the court to give certain written charges requested by the defendant to the effect in substance that the plaintiff had not paid Joseph H. Croft the excess of $5,000 in the judgment.
On April 9, 1955, Ralph L. Dalrymple was insured by Alabama Farm Bureau Mutual Casualty Insurance Company, Inc., under its policy No. A-25560 to the extent of $5,000 for legal liability accidentally sustained by any person arising out of plaintiff's use of his automobile. On that date the plaintiff, Ralph L. Dalrymple, while driving on the Albertville-Boaz Highway overtook a car driven by Joseph H. Croft and was about to pass it when he perceived either an approaching car or a yellow line and resumed his place behind the Croft car but due to a fault in his brakes could not check his speed in time and hit the Croft car in the rear. We shall refer later to further tendencies of the evidence.
The case of Joseph H. Croft against Ralph L. Dalrymple, which the appellant here undertook to defend, resulted in a judgment for $10,000. Five Thousand Dollars of this judgment with interest and costs was paid by the Alabama Farm Bureau Mutual Casualty Insurance Company, Inc., on January 23, 1957. It was stipulated that Joseph H. Croft had tried to collect the balance of the judgment but had not succeeded in collecting anything.
I. There are a number of propositions on which the appellant bases its right to a reversal. It is insisted that there can be no recovery for an excess judgment in cases of this kind prior to the actual payment thereof. So far as we can ascertain this is the first time this question has been before this court. There appear to be a number of cases which present this question in other jurisdictions. There are some cases which hold that in order to warrant a recovery the plaintiff must prove either that he has paid the excess or at least that his financial status is such that it is sure to be collected. The theory of these cases seems to be that unless such proof is made there is no proof of pecuniary loss and, therefore, there can be no recovery. We refer in this connection to State Automobile Mutual Ins. Co., etc. v. York, 4 Cir., 104 F.2d 730; Duncan v. Lumbermen's Mutual Casualty Co., 91 N.H. 349, 23 A.2d 325; Dumas v. Hartford Accident & Indemnity Co., 92 N.H. 140, 26 A.2d 361.
In other jurisdictions it is held that such proof is not necessary and we are of the opinion that these latter cases take the sounder view. In Southern Fire & Casualty Co. v. Norris, 35 Tenn.App. 657, 250 S.W.2d 785, it was held in substance that while logical in the abstract, a contrary view only serves as a windfall to an insurer fortunate enough to have an insolvent as its insured. *926 In other words, the insurer is in the position of having been derelict in the performance of its duty under a policy for which it accepted a premium paid by the insured in good faith and if the insured had not felt the need of the protection offered by the policy and the services of the company in handling claims against him, it is to be assumed that he would not have taken the policy. The claim which is an adjudged liability can be escaped only by bankruptcy (See 8 C.J.S. Bankruptcy § 562, p. 1502, also 8 C.J.S. Bankruptcy § 574, p. 1526), or by payment. If the policyholder chooses the former course his credit is impaired. If he does not, the outstanding judgment against him is likely to prove too difficult to discharge.
Furthermore if prepayment is required in cases of this kind the company is likely to be less responsive to its trust where the insured is insolvent than in cases where the insured is able to discharge any judgment in excess of the policy limits which may be rendered against him. In support of its views the Tennessee Court has cited certain Wisconsin and Texas cases and other authorities. See Schwartz v. Norwich Union Indemnity Co., 212 Wis. 593, 250 N.W. 446; Universal Automobile Ins. Co. v. Culberson, Tex.Civ.App., 54 S.W.2d 1061.
As stated, we think the position taken by the Tennessee Court and the other courts taking a view similar to the Tennessee Court represent the sounder view. Accordingly we hold that in the instant case the plaintiff in order to recover was not required to prove that he had paid the excess of the judgment rendered against him.
II. It is next insisted that the appellant was entitled to the general affirmative charge for the reasons: (1) The evidence fails to show an opportunity to settle. (2) The allegations of the complaint are not susceptible to proof and are contrary to the instruction of the court because of the word "would". We find no merit in these contentions.
We have carefully examined the testimony in the record but see no reason to set it out here in detail. We think there were tendencies of the evidence which showed that prior to the trial of the suit brought by Joseph H. Croft against the plaintiff in this suit, the insurance company (appellant here), had an opportunity to settle the law suit for $5,000, which was within the limits of the policy. Furthermore the insurance company never offered more than $3,750 to settle the case. Certainly a jury question was presented in this aspect of the case and the jury found in favor of the plaintiff.
In addition tendencies of the evidence showed that the insurance company was aware of the nature and extent of the injuries suffered by Joseph H. Croft. The company knew that Joseph H. Croft had been confined to his home or bed from the time of the accident until the trial, a matter of about fifteen months, and that the company had received complete medical information from the doctors of James H. Croft concerning his injuries. Tendencies of the evidence showed that Joseph H. Croft was an able bodied man, earning $95 to $100 per week prior to the accident and that he had not been able to work since the accident and that he suffered from a sprained back and a sprained thumb which caused a great deal of pain and suffering.
III. It is insisted that the use of the word "would" in the complaint and in the instructions of the court results in reversible error. Webster's Dictionary and Black's Law Dictionary, 4th Ed. p. 1782, define the word "would" as "a word sometimes expressing what might be expected." Vol. 45 Words and Phrases pp. 546-547. The meaning of this word so far as the complaint is concerned was not tested by demurrer. The strict rule to be indulged against a pleader on demurrer is not applicable when the sufficiency of the complaint is questioned by a general attack on the judgment. In the latter instance all doubts and intendments should be resolved in favor of rather than against the *927 sufficiency of the complaint. Werten v. K. B. Koosa & Co., 169 Ala. 258, 53 So. 98.
It is argued that the use of the word "would" in the oral charge of the court was not followed by the jury in rendering its verdict and that accordingly the verdict should be set aside on the motion for a new trial. There was no exception to the oral charge on the point here made. The actual words spoken by the court to the jury were, for example, "that the defendant knew or should have known that Joseph H. Croft would recover a large judgment against the plaintiff in excess of their limits of liability." The use of the word "would" in the court's oral charge should be considered in its context. It is argued that there is no evidence to support the use of the word "would" in the court's oral charge to the jury. We do not agree. There is no material distinction between the meaning of the word "would" and "might" or "could" as used in the court's oral charge. Taylor v. Metropolitan St. Ry. Co., 256 Mo. 191, 165 S.W. 327. We find no reversible error here. Authorities supra.
IV. Finally it is contended that the court was in error in overruling the motion for a new trial. In addition to what has been heretofore said in this opinion, the argument is made that the jury returned a verdict after only short deliberation which indicates that the verdict was the result of passion, partiality or corruption on the part of the jury. We are not willing to reach such a conclusion especially in the face of the refusal of the trial court to do so after he heard the evidence and saw the witnesses. Louisville & Nashville R. Co. v. Tucker, 262 Ala. 570, 80 So. 2d 288; Central of Georgia R. Co. v. White, 175 Ala. 60, 56 So. 574.
We have concluded that the judgment of the lower court is due to be affirmed.
Affirmed.
LIVINGSTON, C. J., and LAWSON and MERRILL, JJ., concur. | December 17, 1959 |
2670487a-7dd6-465a-a031-1472f19cf6e8 | Denson v. Foote | 142 So. 2d 877 | N/A | Alabama | Alabama Supreme Court | 142 So. 2d 877 (1962)
Harold DENSON
v.
Wilson H. FOOTE, d/b/a Foote Auto Company.
8 Div. 62.
Supreme Court of Alabama.
March 22, 1962.
Rehearing Denied June 21, 1962.
*878 T. J. Carnes, Albertville, and Barnes & Smith, Gadsden, for appellant.
Mitchell, Poellnitz & Cox, Florence, for appellee.
COLEMAN, Justice.
This is an appeal by complainant from a decree in equity, sustaining respondent's demurrer to complainant's bill of complaint as last amended and dismissing it. The bill prays for declaratory decree. Complainant argues that the court erred in sustaining the demurrer and in dismissing the bill.
Being of opinion that the bill was demurrable for non-joinder of a necessary party, Jimmy D. Morris, we pretermit consideration of the other grounds of demurrer.
So far as we are advised, this case, as one for declaratory relief, is sui generis. Complainant seeks here to enforce his claim by a proceeding which in some measure is analogous to equitable attachment or garnishment. We are not to be understood as intimating that the instant case constitutes a proceeding for equitable attachment or garnishment. We refer to those proceedings merely for guidance in determining whether or not Morris is a necessary party to the instant suit.
§ 301, Title 7, provides that writs of equitable attachment may issue as there specified; and "* * * in the issue of equitable attachments, and the proceedings thereon, the provisions in relation to attachments from courts of law must be observed, except so far as may be otherwise provided in this chapter * * *."
In connection with the issue of attachments at law, § 852, Title 7, provides for constructive service by publication on a nonresident, and § 853 of the same title provides for notice to a resident defendant.
Perhaps the instant bill seeks a remedy which is more like garnishment than attachment, although complainant seeks to reach a particular chattel, or its value, instead of money. § 314, Title 7, provides, inter alia, that in equity, in all suits in which a decree for payment of money may be rendered, "* * * a writ of garnishment may be issued by the register, under the rules and regulations prevailing in circuit courts in actions at law."
General garnishment statutes are found in Title 7, § 995 et seq., Code 1940. § 1000 provides for notice to a resident defendant. § 1011 provides that upon filing of garnishee's answer, "* * * the clerk or register shall give plaintiff and defendant notice * * *."
It may fairly be said, we think, that our garnishment statutes contemplate that in a proceeding to apply the property of a defendant which is in the hands of a garnishee, to the satisfaction of plaintiff's claim against defendant, the defendant shall, at the least, have actual or constructive notice: either in the suit against defendant, which resulted in the judgment, when garnishment is sought on a judgment; or in the pending suit when garnishment is sought in aid of such suit.
On consideration of the nature of garnishment, we think it necessarily appears that when defendant's property is in the hands of a garnishee, and plaintiff seeks to subject such property to satisfaction of plaintiff's claim against defendant, then the defendant is entitled, at some stage of the proceeding, to be made a party thereto and have his day in court.
In the instant suit, complainant seeks to subject to the satisfaction of his claim against Morris, the Cadillac car, or its value, which is alleged to be in respondent's possession. Complainant's claim to the Cadillac necessarily rests on the premise that Morris now has a right to the Cadillac because respondent rescinded his trade with Morris. Complainant's asserted right to recover the Cadillac from Morris rests on the premise that Morris has committed fraud against the complainant. If the validity of these assertions of complainant against Morris are to be adjudicated in this suit; and we do not see how such an adjudication can be avoided if complainant *880 is to have relief; then we are of opinion that Morris has such an interest in the controversy as that he is a necessary party, that because of the failure to make Morris a party the bill was subject to demurrer, and that the decree sustaining it was not in error.
We have not found or been cited to a case closely in point. In a Texas case, plaintiff sought, by garnishment, to obtain satisfaction of a judgment which plaintiff had recovered against a defendant, Wells. Plaintiff argued that the court should have granted him relief on equitable grounds. It appears that the garnishment had been commenced at law. The court declined to decide whether a garnishment proceeding could be changed from law to equity or whether equity could afford the relief plaintiff was seeking. With respect to plaintiff's argument for relief on equitable grounds, the court said:
In 71 A.L.R.2d 779, comment on Scranton Finance Co. v. Personal Finance Company, (1939, Pa.), 41 Lack.Jur. 133, indicates that in a proceeding for declaratory judgment as to priorty of two adverse liens on an automobile, the court held that the owner of the automobile and the secretary of revenue were necessary parties. The comment indicates that the court also held that the parties had an adequate remedy at law under a statute, but we are not concerned with this latter holding.
Complainant cites Vandeford v. Stovall, 117 Ala. 344, 23 So. 30, as authority for holding that Morris is not a necessary party to the instant bill. In the Vandeford case, the amended bill was against a single respondent to enforce a trust in land which had been conveyed to the respondent. Complainant alleged that he had paid the purchase money; that title had been conveyed to respondent, although she had paid none of the purchase money; and that the land, in equity and good conscience, belonged to complainant. From a decree granting relief, respondent's grantors, who had originally been parties to the bill, undertook to appeal. This court held that respondent's grantors had no interest in the suit and were not necessary or even proper parties to the original bill.
The respondent's grantors in the Vandeford case were not grantees of the complainant in that case, and, in that respect, stood in a position different from that of Jimmy D. Morris, who was a grantee or transferee of the complainant in the instant case.
The instant case more closely resembles Leigeber v. Scott, 263 Ala. 507, 83 So. 2d 246, 247, wherein complainant conveyed to one King, who in turn conveyed to certain respondents. This court held that King was a necessary party to the suit to cancel King's deeds to his grantees. The court said: "* * * King's conveyances to his grantees were warranty deeds and he likewise should be made a party to a bill to cancel them. * * *" The analogy is not perfect, but tends to persuade us that Morris is a necessary party.
In Trammell v. Glens Falls Indemnity Co., 259 Ala. 430, 66 So. 2d 537, this court, on rehearing, with reference to the rule as to necessary parties, commented on Brantley v. Brantley, 258 Ala. 367, 63 So. 2d 29, where declaratory judgment had been sought, as follows:
In the instant case, the absence of Morris was shown by the bill. Sustaining the demurrer was not error.
The court not only sustained the demurrer, but also dismissed the bill. Complainant asserts that dismissal was error because he was not afforded an opportunity to amend after the demurrer was sustained.
The record discloses that the bill of complaint was filed January 22, 1959. Demurrer was filed February 13, 1959. An amended demurrer was filed February 11, 1960. The demurrer was overruled May 7, 1960. Defendant filed an answer which is immaterial here.
On December 19, 1960, complainant filed an amendment to the bill changing the averment of the date on which complainant traded with Morris. It appears from a decree rendered December 22, 1960, that this amendment was filed in open court on the occasion of an oral hearing, and that on complainant's filing of the amendment to the bill, respondent refiled his demurrer to the bill "and also called to the attention of the Court the absence of the necessary party respondent."
The decree of December 22, 1960, sustained the demurrer to the amended bill and recites that after the conclusion of the hearing, the complainant filed further amendment to the bill, and that, to the bill as further amended, respondent refiled the demurrer. The decree further recites that it appears that the cause is ready for submission on demurrer to the bill as last amended.
The record contains next a notice to complainant's solicitor that on January 3, 1961, respondent will submit the cause for ruling on demurrer to the bill as last amended. Appended to the notice is a certificate by solicitor for respondent that he has "this day" properly mailed a copy of the notice to the attorney of record for complainant. The notice was filed December 22, 1960. On the record, we think that complainant is chargeable with notice of the contents of the decree and of the notice of submission filed on the date of the decree. Complainant makes no contention to the contrary.
The last amendment filed by complainant after conclusion of the hearing on December 22, 1960, makes no change in the character of the bill. The amendment simply adds averments to the effect that respondent has retained possession of the Cadillac since July 2, 1958, to the date of the amendment, and that complainant claims of respondent the value of the hire or use of the Cadillac from July 2, 1958.
The decree of January 18, 1961, from which appeal is taken, recites that the cause was submitted on demurrer to the bill as last amended; that on consideration of bill and demurrer, the court is of opinion that the demurrer should be sustained and the bill dismissed; and that the demurrer is sustained and the bill is dismissed.
With respect to the dismissal of a bill after demurrer to it is sustained, this court has said:
*882 In the instant case, the decree of December 22, 1960, sustaining the demurrer, recites:
The bill was not dismissed until January 18, 1961, twenty-seven days after the first decree sustaining the demurrer, and also twenty-seven days after notice of further submission on demurrer. The decree does not expressly recite that demurrer was sustained for non-joinder of a necessary party, but it certainly calls such defect to the attention of anyone reading the decree.
In the instant case, complainant was chargeable with notice that a necessary party had not been joined. He subsequently filed an amendment, but he did not cure this defect and he does not indicate that he undertook to cure it. He asserts in brief that Morris is not a necessary party.
Since complainant must be regarded as having been apprised of the defect as to parties, and as having thereafter amended the bill without seeking to cure such defect, we are of opinion that he must be regarded as having had opportunity to amend and as having elected not to do so.
In a case where the bill was held subject to the objection of misjoinder of parties complainant, and complainants had an opportunity to correct the objection, but did not do so after the demurrer had been sustained on that ground, this court said:
So in the instant case, complainant is not in position to complain that he was not permitted to further amend his bill.
We are of opinion that the court was not in error in dismissing the bill.
Affirmed.
LIVINGSTON, C. J., and LAWSON and MERRILL, JJ., concur.
ON REHEARING.
COLEMAN, Justice.
This cause was placed on rehearing on motion of the writer for the purpose of considering a misapprehension that might arise from reading the original opinion.
The opinion may give the impression that the demurrer, to the bill as a whole, contains a ground which takes the point that a necessary party is absent. Such is not the case, although the amended demurrer addressed to one alleged aspect of the bill does contain the ground that: "(23) Jimmy D. Morris is not a party respondent to this bill of complaint."
We do not regard the absence of a ground of demurrer, taking the point of non-joinder of a necessary party, as preventing the court from taking notice of *883 such non-joinder and sustaining the demurrer on that ground.
Whatever of apparent conflict there is in the foregoing quotations was explained as follows:
In the instant case, as is noted in the opinion on original deliverance, the trial court, in its decree of December 22, 1960, expressly stated that the respondent had "* * * called to the attention of the Court the absence of the necessary party respondent." In that situation, we are of opinion that the court was not in error in sustaining the demurrer for lack of a necessary party, although no ground of demurrer to the bill as a whole expressly took that point.
Opinion extended.
Rehearing overruled.
LIVINGSTON, C. J., and LAWSON and MERRILL, JJ., concur. | March 22, 1962 |
b6e8931f-4023-45e9-b09a-122114d41b54 | Smith v. Lancaster | 114 So. 2d 568 | N/A | Alabama | Alabama Supreme Court | 114 So. 2d 568 (1959)
George Dewey SMITH
v.
J. T. LANCASTER et al.
7 Div. 448.
Supreme Court of Alabama.
September 17, 1959.
*569 Lusk, Swann & Burns, Gadsden, for appellant.
Hawkins & Rhea, Gadsden, for appellees.
GOODWYN, Justice.
This is an appeal by the complainant from a final decree of the circuit court of Etowah County, in equity, rendered on February 11, 1959, in a declaratory judgment proceeding holding that Act No. 429, appvd. Aug. 27, 1953, Acts 1953, Vol. I, p. 529, is not violative of "any of the provisions of sections 45, 106 and 110 of the Constitution of Alabama"; that it is "based on a substantial difference in the population upon which the classification is made and such classification is reasonably related to the purposes to be effected by the Act"; and that it does not "discriminate unfairly and unconstitutionally against this plaintiff in the performance of his vocation as a journeyman plumber."
Act No. 429 is in the form of what is sometimes referred to as a "general law of local application." It was passed as a general law. If it is in fact a local law it is defective because "notice of the intention to apply therefor" was not published as required by § 106 of the Constitution. The critical, and perhaps the most serious, question bearing on its constitutionality is whether it is a local law as defined in § 110 of the Constitution.
By its terms, Act No. 429 is operative only in counties "having a population of not less than 80,000 nor more than 94,000 according to the last or any subsequent Federal decennial census." Its title is as follows:
As argued here, appellant insists, in short, that Act No. 429 is unconstitutional because:
I. The prescribed population classification is not reasonably related to the purposes to be effected by the Act (Constitution, §§ 106 and 110).
II. Its subject is not clearly expressed in its title (Constitution, § 45).
III. It presents a double classification (Constitution, §§ 106 and 110).
Section 106 of the Constitution requires publication of notice of the intention to *570 apply for passage of a "special, private, or local law." It contains this significant provision:
Section 110 of the Constitution provides as follows:
The question is whether Act No. 429 is a general or a local law, as those terms are defined in § 110. If it is a local law it necessarily follows that it is void because the notice required by § 106 was not given.
It is well-settled that a law based upon a population classification may, under limited conditions, be enacted as a "general" law. Couch v. Rodgers, 253 Ala. 533, 45 So. 2d 699; Taxpayers and Citizens of City of Mobile v. Board of Commissioners of City of Mobile, 252 Ala. 446, 454, 41 So. 2d 597; State ex rel. Rountree v. Summer, 248 Ala. 545, 547, 28 So. 2d 565; City of Birmingham v. Moore, 248 Ala. 422, 423-424, 27 So. 2d 869; McCoy v. Jefferson County, 232 Ala. 651, 653, 169 So. 304; Ex parte Ashton, 231 Ala. 497, 499, 165 So. 773, 104 A.L.R. 54; State ex rel. Shirley v. Lutz, 226 Ala. 497, 500, 147 So. 429; Wages v. State, 225 Ala. 2, 141 So. 707; State ex rel. Ward v. Henry, 224 Ala. 224, 228, 139 So. 278; Kearley v. State ex rel. Hamilton, 223 Ala. 548, 137 So. 424; Mobile County v. Byrne, 218 Ala. 5, 117 So. 83; Walden v. City of Montgomery, 214 Ala. 409, 410-411, 108 So. 231; Vaughan v. State ex rel. Dawson, 212 Ala. 258, 259, 102 So. 222; State ex rel. Brooks v. Gullatt, 210 Ala. 452, 98 So. 373; Reynolds v. Collier, 204 Ala. 38, 85 So. 465; State ex rel. Saltsman v. Weakley, 153 Ala. 648, 45 So. 175.
The applicable rule is thus stated in City of Birmingham v. Moore, supra [248 Ala. 422, 423-424, 27 So.2d 871]:
It is our view that the Act cannot survive this test. Specifically (without passing on the other elements), we do not think the population classification is "reasonably related to the purpose to be effected by the act." In other words, how can it be said that the purpose to be accomplished by this Act, passed as a health measure, has any reasonable relationship just to those counties coming within the limited population range of 80,000 to 94,000? Concededly, Etowah was the only county within that range when the Act was passed and is the only county which could possibly be affected by it until after the 1960 Federal decennial census.
According to the 1950 decennial census Etowah County had a population of 93,892. So, if the 1960 census shows an increase in its population of as little as 109 it will not then be subject to the Act.
*571 Certainly, it seems to us, if the purpose of the Act is reasonably related to Etowah County now, because of its present population, it would continue to be so related, and more so, after the County has increased in population beyond the maximum of the prescribed classification. As already noted, the Act is essentially a health measure, referable to the police powers of the State. And its purpose undoubtedly is more closely more reasonablyrelated to conditions found in the counties having the largest population. See State ex rel. Shirley v. Lutz, supra. But it will not apply to Etowah after the 1960 census if there has been an increase in population beyond the fixed range.
Appellees rely heavily on State ex rel. Shirley v. Lutz, supra. But the Act there considered is clearly distinguishable from the one now before us. That Act created a State Plumbers Board with application to counties having a decennial census population of 100,000 or more, while Act No. 429 provides for a County Board in any county having a population of not less than 80,000 nor more than 94,000. As said in Couch v. Rodgers, supra, in discussing the Lutz case [253 Ala. 533, 45 So.2d 701]:
The Act declared unconstitutional in Couch v. Rodgers, supra, was one regulating the business of barbering in counties having a Federal decennial census population of not less than 46,500 nor more than 48,000, applicable only to Cullman County. A number of this court's decisions bearing on the question now before us were there discussed. It seems to us that the holding in that case lends strong support to appellant's insistence. As there said:
The Act in the Lutz case (Act No. 628, appvd. Aug. 24, 1931, Gen.Acts 1931, p. 764) was applicable to Jefferson and Mobile Counties, the State's two largest in population. In 1935 the same Act was passed with a population classification of 80,000 or more, thereby making Montgomery County also subject to it (Act No. 472, appvd. Sept. 13, 1935, Gen.Acts 1935, p. 995). Act No. 472 was included in the 1940 Code as subdivs. 1 and 2 of Art. 17, Tit. 62. These two subdivisions were repealed by Act No. 486, appvd. Aug. 30, 1949, Acts 1949, p. 709. At the same session another Act, containing provisions similar to Acts 628 and 472, was passed creating a State Plumbers Board and made applicable in all counties having a population of not less than 140,000, that is, Jefferson and Mobile Counties (Act No. 529, appvd. Sept. 2, 1949, Acts 1949, p. 827; Code 1940, Tit. 62, 1955 Cum.Pock.Part, §§ 134(2)-134(17), pp. 60-66). According to the 1950 census, there are two counties, Montgomery (with a population of 138,965) and Tuscaloosa (with a population of 94,092), having a population of more than 94,000 and less than 140,000. Thus it can be seen that there is in effect a State Plumbers Board operative in the two largest counties and another Act providing for county boards in counties having a population of not less than 80,000 nor more than 94,000. What rational basis is there for saying that the regulation of plumbing is reasonably related to counties having a population of 80,000 to 94,000 when counties having a larger population (Montgomery and Tuscaloosa counties) are omitted from coverage of similar acts?
It is our view, too, that the Act, in effect, is limited to operation within the corporate *572 limits of municipalities located in any county having the prescribed population. That being so, on what basis can it be said that the purpose of the Act is reasonably related to municipalities, of whatever size, which happen to be located somewhere within any such county and is not so related to other municipalities of comparable size in other counties? A classification based on population must find justification in the subject matter of the Act. As already noted, the essential purpose of Act No. 429 is to preserve the health of the inhabitants of the affected areas. We can think of no basis for saying that there is a reasonable need for this health measure in the municipalities located in the affected counties and not a similar need in other comparable municipalities throughout the State.
Equally applicable here is the following from Vaughan v. State, supra [212 Ala. 258, 259, 102 So. 223]:
Also applicable is the following from State ex rel. Saltsman v. Weakley, supra [153 Ala. 648, 45 So. 176]:
In view of the holding under I, we pretermit discussion of the other two questions as being unnecessary to a decision.
From what we have said it follows that the decree appealed from is due to be reversed and one here rendered declaring Act No. 429 to be invalid.
Reversed and rendered.
LIVINGSTON, C. J., and LAWSON, SIMPSON, STAKELY and MERRILL, JJ., concur. | September 17, 1959 |
f3054e82-1844-4b96-ad36-730ebd2c4a38 | Baggett v. Allen | 137 So. 2d 37 | N/A | Alabama | Alabama Supreme Court | 137 So. 2d 37 (1962)
Archie BAGGETT, Administrator,
v.
Nell ALLEN, Administratrix et al.
6 Div. 672.
Supreme Court of Alabama.
January 18, 1962.
Brobston & Brobston, Bessemer, for appellant.
Mead, Norman & Fitzpatrick, Birmingham, for appellee Sellers.
LAWSON, Justice.
Blanard B. Kendrick and his wife, Ruth Elizabeth Kendrick, were killed on the morning of October 23, 1958, when the automobile in which they were riding collided with an automobile driven by Larry Ray Sellers at the intersection of Eastern Valley Road and Reevestown Road, which intersection is located about 4.3 miles south of the city limits of Bessemer.
Archie Baggett, as the administrator of Ruth Elizabeth Kendrick, brought suit under the so-called homicide or wrongful death statute (§ 123, Title 7, Code 1940) against Nell Allen, as administratrix of the estate of Blanard B. Kendrick and against Larry Ray Sellers.
The trial resulted in a verdict and judgment in favor of the plaintiff against the defendants in the sum of $10,000.
Defendant Larry Ray Sellers filed a motion for a new trial. That motion was granted. The plaintiff has appealed from the judgment granting the motion for a new trial.
Ground 41 of the motion for new trial asserted error on the part of the trial court in admitting in evidence over the objection of the defendant Sellers the opinion testimony of Highway Patrolman Bell that the Sellers automobile was traveling at a speed *38 of sixty miles an hour at the time of the accident.
Officer Bell, who reached the scene approximately fifteen minutes after the collision, was permitted to express that opinion based on the physical evidence which he found on the road, the damage to both automobiles, and the distance the automobiles traveled after the impact. There were no skidmarks leading up to the point of impact.
We are of the opinion that the objection should have been sustained to the question which elicited the opinion of Officer Bell as to the speed of the Sellers automobile and that the trial court acted correctly in granting the new trial because of his failure to sustain the objection. Williams v. Roche Undertaking Co., 255 Ala. 56, 49 So. 2d 902; Huguley v. State, 39 Ala. App. 104, 96 So. 2d 315.
At the outset of the cross-examination of the witness Bell, he stated that he did not consider himself an expert on the judging of the speed of an automobile based on the condition in which he found the automobile after a wreck.
Following this statement, counsel for the defendant Sellers moved to exclude the opinion testimony of Officer Bell. The trial court thereupon asked Bell the following questions:
The witness Bell replied:
The trial court did not thereafter rule on the defendant Sellers' motion to exclude the opinion testimony of the witness Bell.
Ground 42 of the motion for a new trial asserted error on the part of the trial court in failing to grant that motion.
We have said that a trial court in its discretion may consider error on a motion for new trial, even though proper objection or exception was not taken. Harrison v. Baker, 260 Ala. 488, 71 So. 2d 284. We think the same principle would apply to a situation where the trial court failed to rule on a motion to exclude.
The answer given by the witness Bell to the question propounded by the trial court did not, in our opinion, add anything to his testimony as given on direct examination. As we have heretofore shown, the testimony showed beyond peradventure that there were no skidmarks leading up to the point of impact. The "scuff marks in the road" to which witness Bell referred in his answer to the trial court's question was but an example of the physical evidence which he found in the road at the point of impact.
We have said that the inquiry as to the competency of a witness to testify as an expert is addressed to the sound discretion of the trial court, whose decision on the evidence will not be disturbed on appeal except for palpable abuse. Johnson v. Battles, 255 Ala. 624, 52 So. 2d 702. Here it seems that the trial court during the course of the trial entertained the view that Officer Bell was qualified to give expert testimony as to the speed of the Sellers automobile at the time of the accident. That view, however, was not conclusive on the trial court so as to prevent the granting of a new trial because of the court's subsequent determination that the witness was not shown to possess the qualifications of an expert.
We are clear to the conclusion that Grounds 41 and 42 necessitate an affirmance of the cause. We see no occasion to treat the other grounds of the motion for *39 a new trial which the trial court considered to be well taken in that they deal with points which are not likely to arise on another trial of this cause. Taylor v. Brownell-O'Hear Pontiac Co., 265 Ala. 468, 91 So. 2d 828; Lassetter v. King, 33 Ala.App. 204, 31 So. 2d 586.
The judgment of the lower court is affirmed.
Affirmed.
LIVINGSTON, C. J., and STAKELY and MERRILL, JJ., concur. | January 18, 1962 |
f43ad1b4-d7af-4acf-adcb-c9fe5a951fe2 | First National Bank of Mobile v. Pope | 117 So. 2d 174 | N/A | Alabama | Alabama Supreme Court | 117 So. 2d 174 (1959)
FIRST NATIONAL BANK OF MOBILE, Edwin C. Wilcox, doing buisness as Edwin C. Wilcox Company, and Harold Donald Percy,
v.
Lavada H. POPE.
1 Div. 823-825.
Supreme Court of Alabama.
December 17, 1959.
Rehearing Denied January 21, 1960.
*175 Sam M. Johnston, Johnston, McCall & Johnston, Mobile, for appellant First National Bank.
Caffey, Gallalee & Caffey, Mobile, for appellant Wilcox.
Dan T. McCall, Jr., Mobile, for appellant Percy.
Thornton & McGowin, Mobile, for appellee.
MERRILL, Justice.
Appeal from a decree sustaining demurrer to bill as amended and to cross-bills of respondents, Wilcox and Percy.
The original bill of complaint was filed by the First National Bank of Mobile. It alleged the procurement of money from the bank by Douglas H. Pope, deceased, by the exercise of fraud, and the investment by Douglas H. Pope of some of the money so fraudulently obtained in the payment of premiums on life insurance policies totaling $80,000, payable to his wife, Lavada H. Pope, the appellee; and also that some of the money was used in part payment of the purchase price of a homestead which Douglas H. Pope and Lavada H. Pope acquired as joint tenants and not as tenants in common (full title passed to Lavada H. Pope on the death of her husband under the survivorship clause in the deed).
The bill further alleged that all premiums since July 22, 1949, and all payments on *176 homestead were paid from the monies fraudulently obtained by Pope. Some of the insurance policies were purchased before Pope had any financial dealings with appellants.
It is also alleged that Pope was engaged in the general brokerage business under the name of Douglas H. Pope Company, dealing in the purchase and sale of commodities in the United States and foreign lands; that the bank began making loans to him in 1949, which continued until his death in 1958; that his accounts were carried in the name of Douglas H. Pope and his trade name of Douglas H. Pope Company; that when he died, he owed the bank, in his individual account, $6,597, and under his trade name, $173,954.
It is averred that the loans were made by the bank because Pope deposited with the bank collateral evidencing assets which did not in fact exist and by misrepresenting to it the ownership and possession of commodities sufficient to amply secure the loan, and that he represented that he was solvent and that his assets far exceeded his liabilities. It is averred that as a result of such false misrepresentations and the deposits of fictitious and non-existent collateral, Pope defrauded complainant of vast sums of money, the amount having already been stated.
The bill shows that $5,000 from the proceeds of the insurance paid to Lavada H. Pope was deposited in complainant bank, and that $72,000 was deposited in the Merchants National Bank of Mobile, a respondent. It is then averred that the money fraudulently obtained from the bank was used by Pope to purchase the homestead, and pay the interest on the unpaid balance, and to pay the premiums on the life insurance policies, and that the proceeds of the policies and the real estate were impressed with a trust for the benefit of the bank and that the bank did not discover the fraud of Pope until after his death on January 6, 1958.
It also averred that respondents, Harold Donald Percy and Edwin C. Wilcox, asserted claims to an interest in the proceeds.
The prayer of the bill seeks to have the court determine the respective claims of all parties in the funds and the real estate.
Respondent Percy filed an answer and cross-bill admitting most of the allegations but denied that Pope had used all the money loaned him from the bank to pay the premiums and buy the real estate, but says that during that time, Percy had advanced Pope over $242,000 because Pope had fraudulently represented that he was engaged in the business of buying rice hulls in carload lots for export at a handsome profit and that Pope, at the time of his death, owed Percy $19,688.42, and Percy asked that the proceeds of the insurance and the homestead be subjected to his claim.
Respondent Wilcox filed a similar answer and cross-bill to that of Percy alleging that during the period, he advanced Pope over $250,000 based on fictitious carload lots of rice pulp and that at the time of his death, Pope owed Wilcox $34,211.47. Wilcox also asked that the proceeds of the insurance and the homestead be subjected to his claim.
Appellee argues that Pope's personal representative should have been made a party to the suit and that there may have been other creditors who had been defrauded as were the appellants. We cannot agree.
There is no question here of a fraudulent conveyance involving the estate of the decedent. The issue is between the widow, Lavada Pope, and the three claimants as to the ownership of the proceeds of insurance policies in which Lavada Pope was the sole beneficiary. The personal representative has no such interest in the policies as to require that he be made a party.
If there be persons who ought to be and are not made parties to the suit, *177 that fact does not appear on the face of the bill, and therefore, the objection is not a proper subject of demurrer. Walling v. Thomas, 133 Ala. 426, 31 So. 982. Based upon the allegations of the bill and the cross-bills, the necessary parties are before the court.
The pivotal question in this case is whether monies obtained as loans over a period of years for which fictitious collateral was offered by the borrower and partly invested in insurance policies made payable to the widow of the borrower, or in a homestead owned by the borrower and his widow which passed to her, can be traced into and enforced against the proceeds of the insurance or against the homestead, giving consideration to the exemptions in favor of the widow.
The majority rule seems to be that where a person has embezzled, stolen or misappropriated funds of another and used them for the purchase or payment of premiums on insurance on his life, a trust is created in favor of the owner of the funds, and the owner is entitled to recover from the proceeds of the insurance policies. This recovery is sometimes limited to the amount of the premiums and sometimes to such proportion of the total insurance as the amount of the premiums which have been paid from the misappropriated funds bears to the total amount of the premiums paid. 38 A.L.R. 930; 24 A.L.R.2d 672.
It is also generally held that statutes which exempt the proceeds of life insurance from the claims of the insured's creditors are inapplicable to prevent one whose funds have been wrongfully used to pay premiums from resorting to the proceeds for relief. 24 A.L.R.2d 675.
Cases applying these principles and cited by appellants are: Truelsch v. Northwestern Mut. L. Ins. Co., 186 Wis. 239, 202 N.W. 352, 38 A.L.R. 914embezzler bookkeeper; Vorlander v. Keyes, 8 Cir., 1 F.2d 67 embezzler bank president; Massachusetts Bonding & Ins. Co. v. Josselyn, 224 Mich. 159, 194 N.W. 548embezzler administrator; Dayton v. H. B. Claflin Co., 19 App. Div. 120, 45 N.Y.S. 1005thief; Shaler v. Trowbridge, 28 N.J.Eq. 595embezzler partner; Holmes v. Gilman, 138 N.Y. 369, 34 N.E. 205, 20 L.R.A. 566embezzler partner; Brown v. New York Life Ins. Co., 9 Cir., 152 F.2d 246embezzler bank vice president; Jansen v. Tyler, 151 Or. 268, 49 P.2d 372embezzler corporate officer; Succession of Onorato, 219 La. 1, 51 So. 2d 804, 24 A.L.R.2d 656embezzler agent of estate funds.
It will be noted that in every case, the funds were stolen or embezzled. Insofar as our investigation reveals, it is uniform in the United States that a thief acquires no title to personal property and, ordinarily, no one can transfer to another a better title than he himself possesses. Our cases are in accord. Stathem v. Ferrell, 267 Ala. 333, 101 So. 2d 546; Geneva Gin & Storage Co. v. Rawls, 240 Ala. 320, 199 So. 734; Barrow v. Brent, 202 Ala. 650, 81 So. 669; see Tit. 57, § 29, Code 1940.
In the cases cited by appellants, title to the stolen or embezzled funds never left the true owner, and the owner was permitted to recover from the proceeds of the insurance.
In the instant case, Douglas Pope did not steal, embezzle or misappropriate any funds of appellants. Under the allegations of the bill, the bank, "loaned him monies continuously" from "the initial dates of the opening of said accounts until his death" (1949-1958). It is alleged that he gave notes for the sums he borrowed. The title to the borrowed money was in Douglas Pope to do with as he pleased, and there is no allegation that he promised to use the money in any particular way or for any specific purpose. Whether the collateral was the same or different for each loan, we are not apprised; it is alleged that he "obtained such loans by depositing with your Complainant collateral evidencing assets which did not in fact exist; and by falsely misrepresenting to it the ownership and possession of commodities sufficient in value *178 and volume to amply secure said loans." But it still remains that the bank intended to lend the money to him, it loaned him money "continuously" over a period of nine years and did not become dissatisfied with its business relationship with him until after his death.
We think there is a very valid distinction in the instant case and the cases based upon embezzlement, theft or misappropriation of funds where title to the money did not pass from the true owner.
One other case cited by appellants requires mention. It is Exchange State Bank v. Poindexter, 137 Kan. 101, 19 P.2d 705. "The petition alleged that she conspired with her husband in his obtaining two loans from the bank, one on October 3, 1929, for $2,123, and the other on April 10, 1930, for $1,019,67, representing at the time that he was the owner of 150 head of cattle and the money was to be used for feeding and caring for them, while he in fact owned no cattle at that time, but used the funds borrowed to pay premiums on his insurance policies in favor of his wife, and that he was at that time insolvent." The court there held that the widow was charged with knowledge of what her husband was doing to secure the money. In the instant case, there is no inference in the allegations of any complicity or knowledge of any sort on the part of Mrs. Pope.
We have not been cited to, nor have we found, any case factually in point with the one under consideration, but since there was no embezzlement, theft or misappropriation on the part of Douglas Pope, and no alleged complicity or knowledge on the part of his widow, we are unwilling to apply the cited authorities to the facts in the instant case.
Another persuasive feature supporting the trial court's action in sustaining the demurrer is Tit. 7, § 624, Code 1940, dealing with the rights of creditors and beneficiaries under policies of life insurance. In pertinent part, the section reads: "* * the husband or father may insure his life for the benefit of his wife, or for the benefit of his wife and children, or for the benefit of his child or children, either in their own names or in the name of a trustee and such insurance, and the proceeds and avails thereof, whether or not the right to change the beneficiary is reserved or permitted, is exempt from liability for his debts or engagements, or for his torts or any penalty or damages recoverable of him." And the "policy of such legislation finds its origin in the duty of maintenance and protection which every husband owes to his family, and the importance to the state that as few widows and orphans as possible should be cast as paupers upon the public charity," and the statute should be liberally construed in favor of those whom it seeks to protect. Kimball v. Cunningham Hardware Co., 192 Ala. 223, 68 So. 309, 312; Young v. Thomason, 179 Ala. 454, 60 So. 272.
Again, we note that the cases holding similar exemption statutes inapplicable are instances where the funds were stolen, embezzled or misappropriated, or where the wife had notice or knowledge of the husband's activities.
Appellants state that we have quoted the following from Pomeroy, § 1053, with approval and argue that it is decisive of the case before us:
We have found this quotation in five of our cases, each of which discloses a fiduciary relationship in which the person practicing the fraud took title to land in himself and claimed antagonistically to the party who, in equity, should have had the title. See Knowles v. Canant, 255 Ala. 331, 51 So. 2d 355; Bevels v. Hall, 246 Ala. 430, 21 So. 2d 325; Edmondson v. Jones, 204 Ala. 133, 85 So. 799; Butler v. Watrous, 185 Ala. 130, 64 So. 346; Kent v. Dean, 128 Ala. 600, 30 So. 543.
In each of those cases, the more apt citation from Pomeroy could have been § 1055, which reads:
We found the quotation from Pomeroy, § 1053, in one other of our cases, American-Traders' National Bank v. Henderson, 222 Ala. 426, 133 So. 36. There, the bill was to reform a contract of life insurance and it was alleged that one Bell was the agent of the insurance company, the employer of Henderson and the dominant party to the transaction; that Bell promised Henderson to get a life insurance policy of $10,000 payable to Henderson's estate, but Bell had himself named beneficiary; that the policy was issued and delivered to Bell who kept it until Henderson died. The court held that the allegations in the bill established a constructive trust in the policy and its proceeds in favor of Henderson's estate.
Thus, every time the quotation has been approved in our cases, it has been in a case where a fiduciary relationship, and not that of lender and borrower, prevailed. No such fiduciary relationship is shown between Douglas Pope and any of the appellants.
We are cited to 54 Am.Jur., Trusts, § 248, the first two sentences of which read:
It will be noted that the cited section applies to a fiduciary relationship where there has been a wrongful conversion. Douglas Pope did not wrongfully convert the property of appellants. The money was loaned to him to use as he saw fit for several years prior to his death.
We cannot say that the approved quotation from Pomeroy, § 1053, is applicable to the factual situation here, because in addition to the lack of the fiduciary relationship and wrongful conversion, the beneficiary of the insurance policy is protected by Tit. 57, § 29, Code 1940.
From aught appearing from the bill, the real estate is the homestead of the widow. We think what has been said concerning *180 the proceeds of the life insurance policies is dispositive of the attempt to trace the funds borrowed by Douglas Pope into the homestead.
We are not to be understood by this opinion as approving or disapproving "the majority rule" which the cases cited by appellants enunciate. That question, concerning the thief, embezzler, or accomplice, is not before us. We merely hold that those cases are not apt authority when applied to the facts in the instant case.
It follows that the decree of the lower court should be affirmed, and appellants are given thirty days from the date of notice of this decision to amend as they may be advised.
On appeal, three cases were consolidated and the order is appropriate in each of the appeals.
Affirmed.
LIVINGSTON, C. J., and LAWSON and STAKELY, JJ., concur. | December 17, 1959 |
4f2688e2-de6a-4b7b-a37d-17adeff2c61f | Hamilton v. State | 116 So. 2d 906 | N/A | Alabama | Alabama Supreme Court | 116 So. 2d 906 (1959)
Charles Clarence HAMILTON
v.
STATE of Alabama.
6 Div. 164.
Supreme Court of Alabama.
September 17, 1959.
Rehearing Denied January 21, 1960.
*907 Orzell Billingsley, Jr., Arthur D. Shores, Peter A. Hall and Oscar W. Adams, Jr., Birmingham, for appellant.
John Patterson, Atty. Gen., and Jas. W. Webb, Asst. Atty. Gen., for the State.
LIVINGSTON, Chief Justice.
The appellant, Charles Clarence Hamilton, was indicted by the Grand Jury of the Tenth Judicial Circuit of Alabama for burglary in the first degree under the provisions of Sec. 85 of Title 14, Code of Alabama 1940, which reads as follows:
The indictment contained two counts. Count 1 charged the defendant with breaking and entering into the inhabited dwelling house of Jacob C. Milko in the nighttime with intent to steal, etc. Count 2 of the indictment charged the defendant with breaking and entering into the inhabited dwelling house of Jacob C. Milko in the nighttime with intent to ravish, etc.
The jury returned a verdict of guilty as charged in Count 2 of the indictment and fixed the punishment at death. Judgment was rendered accordingly. Appellant's motion for a new trial was overruled. This appeal comes to this court under the Automatic Appeal Statute, Title 15, Sec. 382(1) et seq., Code of Alabama 1940, Cumulative Pocket Part. The Honorable Clell I. Mayfield was appointed by the trial court to, and did, defend the appellant on his trial in the court below. On appeal, it appears that the appellant is represented by four other and different attorneys at law.
*908 The evidence for the state tended to prove the following:
On the night of October 13, 1956, Mr. and Mrs. Jacob C. Milko were occupying a dwelling house designated as 1501 Avenue G, Ensley, Jefferson County, Alabama. Living with Mr. and Mrs. Milko were the grandparents of Mrs. Milko. The grandparents were Jake Giangrosso and Mary Giangrosso, each of whom occupied separate rooms. The grandmother, Mrs. Mary Giangrosso, occupied a room adjoining that of Mr. and Mrs. Milko, connected by a door between the two rooms. Mrs. Giangrosso's room also had a door leading out to the front porch of the dwelling house. Jake Giangrosso occupied a room in another part of the dwelling.
During the early morning hours, sometime between 2:00 and 3:00 o'clock of October 13, 1956, Mr. and Mrs. Milko heard the grandmother in the adjoining room making a loud noise or groaning. Mr. Milko got out of bed and opened the door leading into Mrs. Giangrosso's room, where he found the defendant, Charles Clarence Hamilton, standing near the door between the two rooms. His shoes were off, one being under the bed of Mrs. Giangrosso, and the other near the front door. His pants were off and were on the bed of Mrs. Giangrosso, and he was in his underwear, and as expressed by Mr. Milko, "His downstairs was hanging out, and he didn't have no shoes on and he had an old corduroy shirt on, and he was staring me straight in the face. That was all he had on." The front door of Mrs. Giangrosso's bedroom leading to the porch was open. Mr. Milko went back in his bedroom and procured a revolver, returned to Mrs. Giangrosso's bedroom where the appellant was still standing, turned on the light, held his gun on appellant, and told his wife, Mrs. Milko, to call the law. Mrs. Giangrosso was standing between the bed and the door leading into Mr. Milko's room. Upon turning the lights on, the front door was seen to be wide open. Mr. Milko held the appellant until two police officers arrived, which was only a few minutes. Mr. Milko further testified that he was employed by the Tennessee Coal, Iron and Land Company in the Transportation Division, and that on the day in question, his working hours were from 3:00 p. m. until 11:00 p. m., and that in his best judgment he did not get home on the night of October 12, 1956 until around a quarter to 11:00 o'clock; that when he got home his wife had retired and his wife's grandmother and grandfather had also retired; that he unlocked the front door leading into Mrs. Giangrosso's bedroom and went through her bedroom into his own bedroom, and Mrs. Giangrosso was in bed at that time, as was also his wife.
Testimony further shows that Mrs. Giangrosso is of Italian birth, speaks English with difficulty, is partially blind, more or less feeble, and suffers with a heart condition. Testimony further shows that the front door leading from Mrs. Giangrosso's bedroom to the outside was locked prior to the defendant's entry, and after apprehension of the defendant marks of a forcible entry were found on the door leading from the porch into Mrs. Giangrosso's bedroom.
Mrs. Milko testified that she had seen the defendant at previous times walking in front of the Milko dwelling and at those times he made certain obscene motions with his hands.
The appellant testified, in substance, that Mrs. Giangrosso came out of her house on the night in question and began to yell at him, and grabbed him by the arm and forced him to accompany her into her room; that she made him sit down by her bed for about an hour and take off his shoes; that her son-in-law came in and pulled his pistol on him and held him for the police. The appellant further testified that he was indicted November 9, 1956 by the Grand Jury for nighttime "burglary with intent to steal." (This testimony will be referred to later.) Appellant further testified that there was no telephone in the (Milko) house, and *909 that Milko went outside the house to get the police.
In rebuttal, both Mr. and Mrs. Milko reiterated their testimony to the effect that there was a telephone in the Milko home and that Mrs. Milko called the officers while Mr. Milko held the appellant. The evidence further tends to show that the Milko home is located within two or three blocks of the police station.
Appellant insists that in capital cases where defendant is unable to employ counsel the court must appoint effective counsel for him, and failure to do so denied defendant a fair trial and violates the equal protection and due process clause of the Fourteenth Amendment to the Constitution of the United States and the Constitution §§ 1, 6 and laws of the State of Alabama; and that the right of accused to assistance of counsel includes the right to assistance from time of arraignment until beginning and end of the trial.
We have no quarrel with the above insistence of counsel for appellant, but the principle is without application to the record before us. The record discloses that Hon. Clell I. Mayfield was appointed by the court to defend, and did defend, the appellant on his trial in the court below. But counsel who now represent appellant on this appeal insist that Mr. Mayfield was not appointed until after appellant was arraigned and had entered a plea of not guilty. Present counsel attached to their brief a certified copy of the bench notes of the trial judge in this case. The argument is that the bench notes show that appellant was arraigned on March 1, 1957, and also show that Mr. Mayfield was appointed counsel for appellant on March 4, 1957. The record contains the following minute entry:
Also, the judgment entry of the 23rd day of April, 1957, the date on which appellant was tried, is to the same effect as the minute entry upon arraignment.
A minute entry constitutes the final record of a judgment. It cannot, in a court of record, be impeached by the judge's bench notes or memoranda, which operate only as a direction to the clerk as to what judgment and orders shall be entered on the court's records. Ex parte Haynes (Haynes v. State), 39 Ala.App. 349, 98 So. 2d 670; Lockhart v. State, 34 Ala.App. 297, 39 So. 2d 40.
In Du Pree v. Hart, 242 Ala. 690, 8 So. 2d 183, 186, it is stated:
Counsel for appellant next insist that to constitute burglary in the first degree "there must be a breaking and entering of the dwelling house of another with an intent to commit a felony therein." This argument presents purely a question of fact in that the evidence was amply sufficient to prove a breaking and entering of the dwelling of another in the nighttime with the intent to commit a felony therein, and is without merit.
The appellant testified in his own behalf. After appellant had been crossexamined by the solicitor for the state, he, as distinguished from re-direct examination by his attorney, requested the court to allow him to testify further. The trial court granted the request. The appellant then proceeded to testify to the effect that he had been indicted twice for the same offense, and made certain other irrelevant and immaterial statements. The trial court interrupted the appellant and explained to him that he was entitled to testify only to matters that were relevant and material to the matters involved in the indictment upon which he was then on trial. We have carefully examined the proffered testimony, which is our duty under the Automatic Appeal Statute, and are clear to the conclusion that no error intervened in reference to the proffered testimony, nor did error intervene as to the manner or method in which the trial court conducted this part of the trial, nor as to the colloquies which ensued between the trial court and appellant with reference thereto.
Mention is made in brief of other colloquies between the court and the defendant during the trial in the court below. Suffice it to say, that no objections were made nor exceptions reserved to any remarks made by the court.
It was stated in Washington v. State, 259 Ala. 104, 65 So. 2d 704, 707:
See, also, Jackson v. State, 260 Ala. 641, 71 So. 2d 825.
At the beginning of the trial of appellant on April 23, 1957, defendant stated to the court that the lawyer appointed to defend him by the court was not his lawyer, and the court-appointed attorney asked permission to withdraw from the case. On this occasion, the court asked the appellant if he had other counsel, and he replied that he did not. Thereupon, the court explained the purposes and duty of the court to appoint capable counsel to represent those defendants charged with capital offenses who were unable to employ counsel, and declined to allow the court-appointed counsel to withdraw.
Sec. 318, Title 15, Code of 1940, as amended by Act No. 176, Acts of Alabama 1947, p. 61, provides that:
In the first place, attorneys at law are officers of the court. An attorney assigned as counsel for an indigent prisoner ought not to ask to be excused for any light cause. Code of Ethics of Alabama State Bar Association. In the second place, the appellant did not indicate to the court that he wished the court-appointed attorney to withdraw from his defense, nor that he was unfaithful or incompetent. He merely stated, without more, that the court-appointed attorney was not his lawyer. The record before us does not indicate to the slightest degree that the appellant was seeking to discharge his attorney in order to exercise his right to conduct his own defense. At most, the statement made by the appellant indicated only that he did not approve of the courtappointed attorney. But present counsel insist that under these circumstances representation could be nothing more than pro forma. But in their brief, with commendable candor, they stated: "We do not mean to reflect upon the capabilities of counsel representing defendant."
Even conceding that appellant requested the dismissal of his court-appointed attorney, to yield to such a request, where the defendant has not made it clear that he really wishes to conduct the defense in propria persona gives far too great a chance to delay trials and otherwise embarrass effective prosecution of crime. United States v. Gutterman, 2 Cir., 147 F.2d 540, 157 A.L.R. 1221; United States v. Mitchell, 2d Cir., 137 F.2d 1006; Id., 2d Cir., 138 F.2d 831.
We have carefully examined the record with reference to the conduct of the trial by the court-appointed attorney, and are of the opinion that he did his full duty under the circumstances. And as was stated in Arrington v. State, 253 Ala. 178, 43 So. 2d 644, 647:
There is no merit in this contention of the appellant.
The trial court refused six written charges duly requested by the appellant. Charge 1 relates only to Count 1 of the indictment. The defendant was convicted under Count 2 of the indictment, therefore, reversible error could not intervene because the verdict of the jury was, in effect, an acquittal under Count 1 of the indictment. Charge 2 is in the following language:
Charge No. 2 is an incorrect statement of the law. The breaking and entering the house with intent to ravish is the gravamen of the offense charged in Count 2 of the indictment, and it is not required that the intended act be consummated. 1 Whart., Crim.Law, 8th Ed., Sec. 818; Wicks v. State, 44 Ala. 398; Wolf v. State, 49 Ala. 359; Barber v. State, 78 Ala. 19; Holland v. State, 247 Ala. 53, 22 So. 2d 519. The charge is also inaptly drawn and is confusing in its tendencies. For like reasons, Charges 5 and 6 were properly refused.
Charge No. 3 was substantially covered in the oral charge and its refusal was without error.
Refused Charge 4 is misleading and incorrect under the evidence presented in this *912 case. There is no evidence that the dwelling house entered and occupied by Jacob C. Milko and family was effectively divided into portions, rather, the evidence is uncontroverted that the house was occupied by Mr. Milko and his family as a unit.
We have examined the record with care and find no error to reverse.
Affirmed.
LAWSON, SIMPSON, STAKELY, GOODWYN and MERRILL, JJ., concur. | September 17, 1959 |
c14622ca-a365-4afb-86cc-358be8912d5d | Murphy v. Carrigan | 116 So. 2d 568 | N/A | Alabama | Alabama Supreme Court | 116 So. 2d 568 (1959)
Aratera MURPHY
v.
R. D. CARRIGAN.
1 Div. 677.
Supreme Court of Alabama.
December 17, 1959.
*569 Moody & Higgins, Mobile, for appellant.
Vincent F. Kilborn, Mobile, for appellee.
MERRILL, Justice.
This case was originally assigned to another member of the court, but was reassigned to the writer on November 23, 1959.
Complainant, Aratera Murphy, filed the original bill seeking to have a mortgage given by her to respondent set aside as void. Respondent filed an answer and cross-bill setting out the entire transaction which caused the disputed mortgage to be given.
Complainant demurred to the cross-bill, the demurrer was overruled and complainant brought this appeal.
The cross-bill admits the allegations of the original bill and proceeds to allege, in substance:
Complainant and her husband were feesimple owners of certain real property and desired to have a home erected thereon. They purchased a frame house and engaged respondent to move the house and install it on their lot and do considerable work on it, for which complainant and her husband agreed to pay respondent $3,775. At that time, the complainant and her husband were without funds with which to pay the *570 agreed price. They agreed to execute and deliver a mortgage on the real property to secure payment to respondent. The work to be done, the amount and manner of payment, the security, and the terms of payment were all agreed upon.
Complainant's husband left the State to work in Ohio, and complainant and her husband were anxious that the work on the house should begin. To induce respondent to start work, complainant executed a note and mortgage which are in accordance with the terms agreed upon. Complainant's husband was absent and did not sign these instruments. To obtain the husband's signature, respondent prepared a duplicate note and mortgage and mailed them to the husband. The plan was to have the husband sign the duplicate instruments and return them to respondent. Respondent would then obtain complainant's signature on the duplicate instruments and destroy the originals. This was the agreement of all the parties. The husband advised respondent in writing that this should be done, and later advised respondent in writing that he had received the papers and would execute them, have them notarized, and would return them at once. The same letter advised respondent that complainant, as his wife, would attend to all matters.
Relying on these representations and instructions, respondent began work. When nothing remained to be done except to complete the sewer connections, complainant, in writing, notified respondent that he was forbidden further access to the property for any purpose. The husband has refused to execute and deliver the duplicate note and mortgage and complainant now seeks to renounce and discharge the mortgage and note executed by her. Respondent has fully performed except for connection of the sewer main. Complainant and her husband have failed and refused to pay the installments due on the obligation as agreed to by the parties and the same is now in default.
The prayer of the cross-bill seeks process on the husband; to compel the husband to execute the original note and mortgage, or in the alternative, to compel complainant and her husband to execute and deliver a note and mortgage of the same terms as the original ones; further, the prayer seeks to ascertain and declare that the mortgage is in default, and that the court will foreclose; and in the alternative, a further prayer to fix and declare a lien in favor of respondent upon the real property.
Complainant, Aratera Murphy, demurred to the cross-bill as follows:
The demurrer was to the cross-bill as a whole. When so, the demurrer must be overruled if any aspect thereof is good. *571 Ingalls Iron Works Co. v. Ingalls Foundation, 266 Ala. 656, 98 So. 2d 30.
Grounds 3, 5 and 6 of the demurrer merely reiterate the basis of the original billthat the mortgage is void. The crossbill does show that the complainant's mortgage was signed without the assent and concurrence of the husband, Tit. 34, § 73, Code 1940, and absent this requirement, the mortgage given by the wife to appellee is void. Obermark v. Clark, 216 Ala. 564, 114 So. 135, 55 A.L.R. 1153. But, there is more to the cross-bill than an attempt to foreclose the mortgage. These grounds only went to that aspect of the bill.
Ground 4 is not well taken because the cross-bill affirmatively shows that complainant, Aratera Murphy, was a joint owner of the property and that the debt sought to be secured was a joint debt. Therefore, the fee-simple interest of the wife was involved, and not merely a proposed suretyship for her husband.
Ground 1 is not well taken. The rule is that the cross-bill is sufficient if the subject matter of the cross-bill relates to the subject matter of the original bill and it does in this case. Johnson v. Green, 259 Ala. 511, 66 So. 2d 768; Gadsden Bowling Center v. Frank, 249 Ala. 435, 31 So. 2d 648, 172 A.L.R. 1430; Smith v. Maya Corp., 227 Ala. 6, 148 So. 621; Ashe-Carson Co. v. Bonifay, 147 Ala. 376, 41 So. 816.
Ground 2 is likewise without merit. "We need not stop to consider whether the cross-bill contains equity since inadequacy of legal remedies is not an essential element of a cross-bill." Gadsden Bowling Center v. Frank, 249 Ala. 435, 31 So. 2d 648, 650.
The equity of the bill can be based upon the aspect that an equitable lien or mortgage was created under the facts alleged in the cross-bill, which on demurrer are taken as true.
In order for an equitable mortgage to exist, it is essential that the mortgagor have a mortgageable interest in the property sought to be charged as security; that there be clear proof of the sum which it was to secure; that there be a definite debt, obligation or liability to be secured, due from the mortgagor to the mortgagee; and the intent of the parties to create a mortgage, lien or charge on property sufficiently described or identified to secure an obligation. Barnett v. Waddell, 248 Ala. 189, 27 So. 2d 1; Pollak v. Millsap, 219 Ala. 273, 122 So. 16, 65 A.L.R. 110; Jones v. Stollenwerck, 218 Ala. 637, 119 So. 844; 59 C.J.S. Mortgages §§ 13 and 15. All of these elements are present in the averments of the cross-bill.
We have held that a note pledging described land as security for the debt evidenced thereby constituted an equitable mortgage enforceable in equity, Barnett v. Waddell, 248 Ala. 189, 27 So. 2d 1; that a written instrument may be an equitable mortgage when it contains no words of conveyance passing legal title to mortgaged property in praesenti or when it makes a present conveyance of property without expressing mortgage features in it, but only in a parol agreement, Moorer v. Tensaw Land & Timber Co., 246 Ala. 223, 20 So. 2d 105; and that a mortgage, not witnessed nor acknowledged, and not meeting the requirements of a legal mortgage, operated as an agreement to mortgage and thereby created an equitable lien. Rhodes v. Schofield, 263 Ala. 256, 82 So. 2d 236; Bishop v. McPherson, 232 Ala. 594, 168 So. 675, 678. The latter case quotes the following from 41 C.J., § 33, 59 C.J.S. Mortgages § 13, with approval:
In opposing the equity of the cross-bill, appellant brings herself into conflict with the maxim that "he who seeks equity must do equity." In Grider v. American Freehold Land Mortg. Co., 99 Ala. 281, 12 So. 775, 780, 42 Am.St.Rep. 58, this court said:
In Loxley v. Douglas, 121 Ala. 575, 25 So. 998, 999, the reason given for applying the said maxim was:
And in Rhodes v. Schofield, 263 Ala. 256, 82 So. 2d 236, 239, we said:
The decree overruling the demurrer is due to be and is affirmed. Roberts v. Lindsey, 242 Ala. 522, 7 So. 2d 82; Bishop v. McPherson, 232 Ala. 594, 168 So. 675.
Affirmed.
LIVINGSTON, C. J., and LAWSON and STAKELY, JJ., concur. | December 17, 1959 |
6c5ee785-89dd-4a75-a816-d2353b4a8bc3 | Ex parte East Central Baldwin County Water, Sewer and Fire Protection Authority. | N/A | 1151145 | Alabama | Alabama Supreme Court | REL: 06/30/2017
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2016-2017
____________________
1151145
____________________
Ex parte East Central Baldwin County Water, Sewer and Fire
Protection Authority
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CIVIL APPEALS
(In re: East Central Baldwin County Water, Sewer and Fire
Protection Authority
v.
Town of Summerdale et al.)
(Baldwin Circuit Court, CV-09-901240;
Court of Civil Appeals, 2130708)
MURDOCK, Justice.
East Central Baldwin County Water, Sewer and Fire
Protection Authority ("ECBC") petitioned this Court for a writ
of certiorari seeking review of the decision of the Court of
1151145
Civil Appeals in East Central Baldwin County Water, Sewer &
Fire Protection Authority v. Town of Summerdale, [Ms. 2130708,
July 22, 2016] ___ So. 3d ___ (Ala. Civ. App. 2016)
("Summerdale III"). In that decision, the Court of Civil
Appeals affirmed a partial summary judgment of the Baldwin
Circuit Court
declaring that two amendments to the certificate
of incorporation of ECBC approved by the Baldwin County
Commission ("the county commission") -- one in 2002 and the
other in 2008 -- were void. We granted the petition; we
reverse the decision of the Court of Civil Appeals and remand
the cause for further proceedings.
I. Procedural History
In October 2009, the Town of Summerdale ("Summerdale")
filed a complaint against ECBC and the county commission
seeking a judgment declaring that the 2002 and 2008 amendments
to ECBC's certificate of incorporation were void.1 The 2002
amendment expanded ECBC's geographic service area, and the
2008 amendment authorized ECBC to include sewer services in
certain parts of its service area. Summerdale sought a
declaration that the 2002 amendment and the 2008 amendment
were void because the county commission's approval of the
1ECBC is a public corporation incorporated under the
provisions of Ala. Code 1975, § 11-88-1 et seq. See
Part IV.A.1, infra.
2
1151145
amendments was based on incorrect facts set forth in the
applications for the amendments. Specifically, Summerdale
contended that the application for the 2002 amendment falsely
stated that there was no other public water system adequate to
serve the expanded geographic service area and that the
application for the 2008 amendment falsely stated that there
was no other public sewer system adequate to provide sewer
services in ECBC's proposed sewer-service area. The City of
Robertsdale
("Robertsdale")
and
Baldwin
County
Sewer
Services,
LLC ("BCSS"), also filed similar suits, which the trial court
consolidated
with
Summerdale's
suit.
(Summerdale,
Robertsdale, and BCSS are sometimes hereinafter referred to
collectively as "the plaintiffs.")
In June 2012, the trial court entered a partial summary
judgment declaring the 2002 amendment void, which it certified
as final under Rule 54(b), Ala. R. Civ. P. On appeal, the
Court of Civil Appeals, by order, set aside the Rule 54(b)
certification and dismissed the appeal because the partial
summary judgment did not address the validity of the 2008
amendment. East Central Baldwin Cty. Water, Sewer & Fire
Prot. Auth. v. Town of Summerdale, (No. 2120106, Oct. 23,
2013), ___ So. 3d ___ (Ala. Civ. App. 2013) (table). The
trial court then entered a new order stating that its partial
3
1151145
summary judgment also applied to the 2008 amendment.2 ECBC
appealed.
On appeal, the Court of Civil Appeals held that the
plaintiffs lacked standing to challenge the 2002 amendment and
the 2008 amendment. The Court of Civil Appeals dismissed the
appeal with instructions to the trial court to set aside the
void judgment and to dismiss the complaints to the extent that
they challenged the 2002 amendment and the 2008 amendment.
East Central Baldwin Cty. Water, Sewer & Fire Prot. Auth. v.
Town of Summerdale, [Ms. 2130708, Feb. 27, 2015] ___ So. 3d
___ (Ala. Civ. App. 2015) ("Summerdale I"). Summerdale,
Robertsdale, and BCSS then petitioned this Court for a writ of
certiorari. This Court granted the writ (except as to one
claim by Summerdale3), and it reversed the judgment of the
Court of Civil Appeals and remanded the case for further
proceedings. Ex parte Town of Summerdale, [Ms. 1140793, May
13, 2016] ___ So. 3d ___ (Ala. 2016) ("Summerdale II").
2The new partial summary judgment did not adjudicate a
contract claim by Summerdale against ECBC alleging that ECBC
had breached a franchise agreement regarding the Shadyfield
Estates subdivision. That claim is not before us; it
apparently remains pending in the trial court.
3We did not grant certiorari review as to Summerdale's
challenge to the 2008 amendment authorizing sewer service in
part of ECBC's service area. Summerdale had sold its sewer
system to BCSS and, therefore, no longer had an interest in
providing sewer service.
4
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On remand, the Court of Civil Appeals addressed the
remaining issues presented on appeal. The Court of Civil
Appeals
affirmed
the
partial
summary
judgment, concluding that
the county commission's approval of the 2002 amendment and the
2008 amendment was void because the county commission had no
authority to approve an application that contained incorrect
statements of fact. Specifically, the Court of Civil Appeals
held that the application for the 2002 amendment incorrectly
stated that there was no adequate public water system in the
expanded service area and that the application for the 2008
amendment incorrectly stated that there was no adequate public
sewer system in the proposed sewer-service area.
ECBC filed a petition for a writ of certiorari. This
Court granted the petition.4
II. Facts
The parties stipulated to the following facts, which were
set forth in the opinion of the Court of Civil Appeals in
Summerdale I:
4In its brief in support of its petition for a writ of
certiorari, ECBC attempts to raise an
argument that Summerdale
and Robertsdale are estopped from denying the validity of the
county
commission's
approval
of
the
2002
and
2008
applications. ECBC did not raise that issue in its petition,
and we will not consider it at this juncture.
5
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"'ECBC
is
an
Authority
organized
under
Article 1, Chapter 88, Title 11, Code of Ala.
(1975), as amended.
"'....
"'... On or about February 4, 2002, the Board
of Directors of ECBC ... adopted a resolution
proposing [an] amendment to [ECBC's] Certificate of
Incorporation for the purpose of enlarging ECBC's
service area to include certain additional territory
for the purpose of providing water and fire
protection services.
"'... On or about February 5, 2002, the Board
of Directors of ECBC filed a written application
with [the county commission] describing the proposed
amendment
and
requesting
that
[the
county
commission] adopt a resolution declaring that it had
reviewed the contents of the application, and after
review, had found and determined as a matter of law
that the statements contained in the application
were true.
"'... On or about February 19, 2002, [the
county commission] ... adopted a resolution in which
it declared that it had reviewed the contents of
said application, and after the review, had found
and determined as a matter of law, that the
statements contained in said application were true.
"'... On or about March 28, 2002, an Amendment
to the Certificate of Incorporation of ECBC was
recorded in the Office of the Judge of Probate of
Baldwin County, Alabama, Instrument Number: 650808.
Said Amendment added additional territory to ECBC's
service area.
"'... On or about June 10, 2008, the Board of
Directors of ECBC adopted a resolution proposing
another
amendment
to
its
Certificate
of
Incorporation to make provision for the operation of
a sewer system and requested that its name be
changed to East Central Baldwin County Water, Sewer
and Fire Protection Authority. The request was for
6
1151145
all of the lands in its service area except for
those areas already being serviced by BCSS....
"'... On or about June 18, 2008, the Board of
Directors of ECBC filed a written application with
[the county commission] which described the proposed
amendment to the Certificate of Incorporation and
requested that [the county commission] adopt a
resolution declaring that it had reviewed the
contents of the application and, after review, had
found and determined as a matter of law that the
statements contained in the application were true.
"'... The application states that "there is no
public sewer system adequate to serve the territory
in which it is proposed that [ECBC] will render
sewer service."
"'... [The county commission] approved the
application by adopting a resolution on about
September 16, 2008.'"
Summerdale I, ___ So. 3d at ___ (emphasis added).
The opinion of the Court of Civil Appeals in Summerdale I
also set forth additional facts:
"Further,
the
evidentiary
materials
submitted
by
the parties indicate the following. David Wilson,
the mayor of Summerdale, testified in his deposition
that, in 2002, Summerdale did not have definite
plans to service the ECBC 2002 expanded service
area. He testified that whether Summerdale would do
so would depend on need and whether it was
economically feasible to do so. He testified that
Teresa Lucas, the engineer for ECBC, and Roy Dyess,
a director for ECBC, had explained to the Summerdale
city council before the adoption of the 2002
amendment that, if Summerdale ever annexed portions
of the ECBC 2002 expanded service area into the
city, Summerdale would have the option to purchase
ECBC's system or lay water lines parallel to ECBC's
lines. Wilson testified, and the minutes of the
February 11, 2002, Summerdale city council meeting
reflect, that he repeated Lucas's and Dyess's
7
1151145
explanations at the council meeting and that Lucas
had not objected to his statement. He testified
that he had since learned that the federal statute
under which ECBC has borrowed money prohibits
parallel lines. John Resmondo, the manager of the
public works for Summerdale, also testified that
Summerdale could not afford to run water lines in
the ECBC 2002 expanded service area.
"Charles Murphy, Robertsdale's mayor, testified
in his deposition that he had not known what ECBC's
service area was until 2005. He testified that
Robertsdale had water lines that were located in the
ECBC 2002 expanded service area before the 2002
amendment. Murphy testified that Robertsdale had
had over 12 customers in one section of the ECBC
2002 expanded service area since 1994 or 1995, over
6 customers in another section since before 1994,
about 10 customers in another section, and over 20
in another section. He testified that, at the time
of the 2002 amendment, Robertsdale did not have
definitive plans to offer further water services in
the ECBC 2002 expanded service area. Since that
time, Robertsdale had sought to purchase a portion
of ECBC's service area. He testified that, at the
time of his deposition, Robertsdale did not intend
to provide services in the northern portion of the
ECBC 2002 expanded service area unless it could make
money there and that he did not expect that to
happen in the foreseeable future. He testified,
however, that if there were sufficient customers to
pay for the cost of the expansion to get the desired
rate of return, Robertsdale's system would have
adequate capacity to provide water services in the
northern portion of the ECBC 2002 expanded service
area.
"Murphy testified that ECBC's authority to
provide sewer services in its service area would
pose a problem because ECBC would try to charge a
franchise fee if Robertsdale were to seek to install
sewer lines in the ECBC 2002 expanded service area.
"Murphy testified in his affidavit that 'ECBC's
service
area
has
been
extended
to
include
approximately one third (1/3) of Baldwin County,
8
1151145
including the logical and abutting areas of
[Robertsdale] and other service providers.' He
further testified that, before the 2002 proposed
expansion of the water-service area by ECBC,
Robertsdale's 'water capacity and service capability
quadrupled ECBC's existing water capacity and
service capability.' He testified that, '[p]rior to
the 2002 expansion request by ECBC, no one from ECBC
... came before a Robertsdale work session or city
council meeting with any details of a proposed water
expansion area or a map outlining their intentions.'
He testified that, had he known the specifics of the
proposed plan, he would have requested that the
Robertsdale city council oppose the expansion. He
testified that 'Lucas[] met with [him] and explained
that she worked for ECBC and they were considering
putting some water somewhere east of Robertsdale,
but [that she had] never produced a map with these
exact details. The primary purpose of the meeting
... was that she wanted to introduce herself ... to
solicit work from the City Of Robertsdale.' He
testified that the first he had learned of the
details of the 2002 expansion was in 2005 when he
discovered that an area that Robertsdale was trying
to provide service to was part of ECBC's service
area. He testified that the ECBC 2002 expanded
service
area
included
Robertsdale's
existing
sewer-treatment plant where Robertsdale was already
providing water. He testified that, '[p]rior to the
2002 expansion request by ECBC, ... Robertsdale was
ready and adequate to provide water service to the
[ECBC 2002 expanded service area].' Murphy also
testified
that,
before
the
2008
amendment,
Robertsdale's 'sewer capacity and service capability
dwarfed ECBC's existing sewer capacity and service
capability ... [and] was ready and adequate to
provide sewer service to the area encompassed by
ECBC.'
"Wilson also testified that Summerdale had
entered into an agreement on July 27, 2007, with
BCSS to provide sewer services. Murphy testified
that he did not want ECBC to have sewer authority
because, he said, if Robertsdale were to annex any
of the areas in the ECBC service area, Robertsdale
would have to pay ECBC a franchise fee. Charles
9
1151145
Hall, the manager for ECBC, testified that ECBC had
borrowed money from the United States Department of
Agriculture to construct its water system in the
ECBC 2002 expanded service area. Hall testified
that ECBC has the capacity to provide water
services, but not sewer services, throughout its
service area. He testified that ECBC was servicing
all the parts of its service area where people had
requested water services except a few places where
it had not been feasible. He testified that ECBC
has a protected service area regarding water
services due to its agreement with the United States
Department of Agriculture.
"Hall testified that, in 2005, ECBC had
contracted with Alabama Utilities Services, Inc.
('AUS'), to provide sewer services in ECBC's service
area but that that contract had expired. Hall
testified that, on January 1, 2009, ECBC had entered
into a franchise agreement with Integra Water
Baldwin, LLC, to provide sewer services in ECBC's
service area and that that franchise agreement was
still in effect. He testified that, before the 2008
amendment, ECBC did not have an agreement with any
provider to provide sewer services.
"Lucas testified by deposition that Wilson had
dropped his objection to the 2002 amendment at the
public hearing before the Summerdale city council.
She testified that Summerdale and Robertsdale had
been aware of the 2002 amendment and that neither
city could adequately provide water for the ECBC
2002 expanded service area because none of them were
providing it at the time. Lucas testified that she
had met with Murphy before the 2002 amendment and
that he had said that Robertsdale could not provide
water services to the ECBC 2002 expanded service
area. She testified that she had assured Murphy
that the expansion would not affect Robertsdale's
ability to annex parts of that area and that Murphy,
therefore, had had no concerns about the amendment.
Lucas testified that there was no demand for sewer
services in ECBC's service area.
"Lucas testified in
her
deposition that the
2002
expansion had taken ECBC's service area up to the
10
1151145
city limits of Summerdale and Robertsdale, where
those cities stopped providing water and sewer
services. Lucas testified that, in July 2003, ECBC
had obtained a 'Rural Utility Service Loan' from the
United States Department of Agriculture in the
amount of $3,037,500, and a grant in the amount of
$2,362,500 for part of the 2002 expansion. She
testified that she had known that no city would be
able to lay a parallel water line once ECBC obtained
a federal loan for its water system.
"In 2008, Robertsdale, Summerdale, and BCSS
objected to the county commission's approving ECBC's
application regarding the 2008 amendment. Two work
sessions and one public hearing were held concerning
the application. The minutes from those meetings
reflect that Bob Willis, from ECBC, represented to
the county commission that ECBC did not intend to
actually provide sewer services in its service area
and that ECBC did not have any definite plans for
contracting to provide sewer services. Willis
stated that ECBC did not intend to stop providers
from servicing ECBC's service area but that he
wanted providers to come to ECBC for oversight so
that ECBC could realize revenue. Willis noted that
ECBC had not sought to provide sewer services in the
few places in its service area where there were
existing sewer lines from other providers. Dan
Blackburn, a representative of BCSS, stated that
BCSS and some municipalities have sewer lines in the
ECBC service area and that BCSS had the ability at
that time to expand sewer services throughout ECBC's
service area. Larry Sutley, a representative of
Summerdale, stated that Summerdale and all the other
surrounding cities had plans to expand sewer
services
into
the
ECBC
service
area.
A
representative
of
Robertsdale
stated
that
Robertsdale had the same plan that ECBC had -- if
there is a need, it would provide sewer services in
the ECBC service area. He stated that Robertsdale
had the capability to do so.
"On November 17, 2008, ECBC demanded that BCSS
'submit to it any and all plans and specifications
concerning the placement and construction of sewer
lines for which it has received permitting from
11
1151145
Baldwin County and, further, that no action be taken
by BCSS to construct or put said lines into place
until ECBC has had an opportunity to review said
plans and specifications.' It also requested that
'any plans for the placement or construction of
sewer lines and/or sewer systems within ECBC's
service area be submitted to it prior to making
permit application with Baldwin County.' Finally,
it requested that no 'permits for any portion of a
sewer system to be located in our service area be
issued by the [county commission] without prior
approval from ECBC.'
"ECBC stipulated: 'It is undisputed that at the
time
ECBC
made
application
to
[the
county
commission] in 2002 to expand its service area that
there were a number of small pockets where the City
of Robertsdale actually had some water lines in the
ground. The total number of customers was probably
less than twenty-five (25).'"
Summerdale I, ___ So. 3d at ___ (emphasis added).
In Summerdale II, this Court stated additional relevant
facts:
"With
regard to
Robertsdale, as
noted, its
mayor
Charles Murphy testified that before the 2008
amendment Robertsdale's 'sewer capacity and service
capability dwarfed ECBC's existing sewer capacity
and service capability' and that Robertsdale's
sewer-treatment plant was located within ECBC's
expanded service area. Murphy testified that
Robertsdale's sewer-treatment plant has been in the
same location since 1979 and that Robertsdale was
capable of providing sewer service to residents in
ECBC's expanded service area.
"Finally, the head manager of BCSS, Clarence
Burke, Jr., testified that the reason BCSS purchased
Summerdale's sewer system was that doing so would
give BCSS the ability to interconnect all of its
systems but would require laying sewer lines through
ECBC's expanded service areas. BCSS could not carry
out that project absent approval from ECBC because
12
1151145
of the grant of sewer service to ECBC in its
expanded service area by the 2008 amendment."
Summerdale II, ___ So. 3d at ___ (emphasis added).
On June 22, 2012, the trial court entered an order
stating:
"Based on the application made by Defendant, ECBC,
to the [county commission] containing geographic
areas in Robertsdale, Alabama community that were
already being served by the City of Robertsdale, the
application contained incorrect information. The
Court is not in a position to 'carve out'
corrections
to
the
application
and
approval.
Therefore, the [county commission's] approval of
ECBC's application should be set aside and by this
Order is deemed set aside."
(Emphasis added.)
In September 2013, the trial court entered an order
denying ECBC's motion to reconsider, stating, in pertinent
part:
"'5. ECBC has conceded in court that a small
number of citizens that were included in the
territory covered by the 2002 Amendment were, in
fact, at the time actually being served by City of
Robertsdale's water system.
"'6. Given that the Application to the County
was simply the Amendment in proposed form, the Court
previously determined that the Application included
facts that were not true. As a result, the [county
commission] approved an application for expansion of
the ECBC territory, based on facts that were not
true.
"'Based on the evidence and law presented, this
Court found in the Summary Judgment that the
governing body (Baldwin County) acted upon the
assumption that the statements in the application
13
1151145
were true when in fact the 2002 application
contained statements that were not true and
therefore, the approval was not valid. After review
of the case and arguments of the attorneys, the
Court finds nothing to change its original ruling.'"
Summerdale I, ___ So. 3d at ___ (emphasis added).
III. Standard of Appellate Review
"'This Court's review of a summary
judgment is de novo. Williams v. State
Farm Mut. Auto. Ins. Co., 886 So. 2d 72, 74
(Ala. 2003). We apply the same standard of
review
as
the
trial
court
applied.
Specifically,
we
must
determine
whether
the
movant has made a prima facie showing that
no genuine issue of material fact exists
and that the movant is entitled to a
judgment as a matter of law. Rule 56(c),
Ala. R. Civ. P.; Blue Cross & Blue Shield
of Alabama v. Hodurski, 899 So. 2d 949,
952-53 (Ala. 2004). In making such a
determination, we must review the evidence
in the light most favorable to the
nonmovant. Wilson v. Brown, 496 So. 2d
756, 758 (Ala. 1986). Once the movant
makes a prima facie showing that there is
no genuine issue of material fact, the
burden then shifts to the nonmovant to
produce "substantial evidence" as to the
existence of a genuine issue of material
fact. Bass v. SouthTrust Bank of Baldwin
County, 538 So. 2d 794, 797-98 (Ala. 1989);
Ala. Code 1975, § 12-21-12.
"[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 Assur. Co. of Fla., 547 So. 2d 870,
871 (Ala. 1989).'
"Dow v. Alabama Democratic Party, 897 So. 2d 1035,
1038-39 (Ala. 2004)."
14
1151145
Ex parte Jackson Cty. Bd. of Educ., 4 So. 3d 1099, 1102 (Ala.
2008).
IV. Analysis
A. Appropriate Standard for the Trial Court's Review of the
County Commission's Decisions
1. Was the County Commission's Approval a Mandatory
or a Discretionary Act?
In Summerdale III, the Court of Civil Appeals stated:
"ECBC argues that the county commission's
actions in approving the 2002 amendment and the 2008
amendment are not subject to judicial review unless
those actions were the result of 'fraud, corruption,
or unfair dealings' and that, if the amendments are
subject to judicial review, the county commission's
actions are presumed to be valid unless they were
arbitrary and capricious.
"'[T]he action of a county governing body in the
exercise of discretionary powers vested in it is not
subject to judicial review except for fraud,
corruption or unfair dealing.' Bentley v. County
Comm'n for Russell Cty., 264 Ala. 106, 109, 84 So.
2d 490, 493 (1955). Furthermore, the standard of
review of a local government's exercise of its
discretionary powers is whether its actions were
'arbitrary and capricious.' ECO Preservation
Servs., LLC v. Jefferson Cty. Comm'n, 933 So. 2d
1067, 1071 (Ala. 2006). As noted by this court in
Jefferson County v. Weinrib, 36 So. 3d 508 (Ala.
2009), however, although review of discretionary
actions of county commissions is limited, when the
actions
are
not
discretionary,
the
limited
jurisdiction
to review those actions
is not
applicable. 36 So. 3d at 511 n.4. ...
"Similarly, in the present case, as in Weinrib,
Robertsdale, Summerdale, and BCSS have argued that,
because the facts set forth in ECBC's applications
were not true, the county commission lacked the
discretion to approve the applications. Therefore,
15
1151145
if the statute at issue in this case is mandatory
and not discretionary, the trial court's and this
court's review of the county commission's decisions
are not limited under the holdings of Bentley and
ECO Preservation Services. ... Accordingly, we
conclude that the county commission's actions in
approving the 2002 amendment and the 2008 amendment
were not based on an act of discretion; instead, the
county commission had no choice but to deny the
applications if the facts in the applications were
not true. Because the county commission's actions
were not discretionary, we conclude that ECBC's
arguments -- that the 2002 amendment and the 2008
amendment are not subject to judicial review unless
those actions were the result of 'fraud, corruption,
or unfair dealings' and that, if the amendments are
subject to judicial review, the county commission's
actions are presumed to be valid unless they were
arbitrary and capricious -- are without merit. The
trial court's and this court's review of the county
commission's actions are not contingent upon a
showing of 'fraud, corruption, or unfair dealings'
and are not subject to the limited 'arbitrary and
capricious' standard of review."
Summerdale III, ___ So. 3d at ___ (emphasis added).
In its petition to this Court, ECBC asserts conflicts
with Archer v. Estate of Archer, 45 So. 3d 1259 (Ala. 2010),
Bentley v. County Commission of Russell County, 264 Ala. 106,
84 So. 2d 490 (1955), and ECO Preservation Services, LLC v.
Jefferson County Commission, 933 So. 2d 1065 (Ala. 2006), as
to the issue whether the county commission's review and
approval involved mandatory or discretionary duties. ECBC
contends that, if the entire controlling statute is given
effect, the county commission's decision to approve or to deny
16
1151145
an application for an amendment to a certificate of
incorporation is discretionary, and not mandatory.
ECBC is organized under the provisions of Ala. Code 1975,
§ 11-88-1 et seq., as a "water, sewer and fire protection
authority."5 Such authorities are public corporations that
are "independent instrumentalities of the state," see
§ 11-88-2, Ala. Code 1975, created to provide water, sewer,
and/or fire-protection services in designated geographic
areas. Under §§ 11-88-3 and 11-88-4, Ala. Code 1975, such an
authority is not to file its certificate of incorporation and
does not come into existence until the governing body of each
county within the proposed service area of the authority has
approved the application for incorporation. Likewise, § 11-
88-5, Ala. Code 1975, provides that any amendment to an
authority's certificate of incorporation (including a change
in the geographic service area or a change in the type of
services provided) must likewise be approved by the applicable
5ECBC was originally incorporated as "Rosington Water and
Fire Protection Authority" and originally provided only water
and fire-protection services. The
2002 amendment expanded the
territory served and changed the name of the authority to
"East Central Baldwin County Water and Fire Protection
Authority." The 2008 amendment changed the name of the
authority to "East Central Baldwin County Water, Sewer and
Fire Protection Authority" and made provision for ECBC to
include sewer services in parts of its designated territory.
17
1151145
county governing bodies. In this case, the county commission
is the only applicable governing body.
Section 11-88-5 provides that an application for an
amendment to the certificate of incorporation must include
certain information. Among other things, the application must
"(2) State, in the event that it is proposed to
add any new territory to the service area of the
authority, that there is no public water system
adequate to serve any new territory in which it is
proposed that the authority will render water
service, [and] that there is no public sewer system
adequate to serve any new territory in which it is
proposed that the authority will render sewer
service ....
"(3) State that the said amendment will promote
the public health, convenience, and welfare ...."
§ 11-88-5(c) (emphasis added).
Section 11-88-5(d) provides for review of an application
by each relevant governing body as follows:
"(d) As promptly as may be practicable after the
filing of the said application with any governing
body pursuant to the foregoing provisions of
subsection (c) of this section, that governing body
shall review the said application and shall find and
determine whether the statements in the said
application are true. ... If the said governing
body finds and determines that the statements in the
said application are true, it shall adopt a
resolution declaring that it has reviewed the said
application and has found and determined as a matter
of fact that the statements in the said application
are true. If the said governing body finds and
determines
that
the
statements
in
the
said
application are not true, it shall deny the
application. In the event that any such application
shows that the authority proposes to make provision
18
1151145
for the operation of a system or facility not then
provided for in its certificate of incorporation,
any governing body with whom such application is
filed may, without any investigation or further
consideration, assume that any statement therein
that the authority proposes to render service from
such a new system or facility is true and may,
without any investigation or further consideration,
so find and determine in such resolution."
(Emphasis added.)
The plaintiffs argue, consistent with the holding of the
Court of Civil Appeals, that the county commission had no
discretion with regard to the approval or denial of ECBC's
applications
for
amendments
to
its
certificate
of
incorporation and that any false statement6 in an application
renders the county's commission's approval "void." This
argument misreads the statute in at least three respects.
First, the argument misreads the statute as stating that
the governing body reviewing the application shall deny the
application if certain facts are untrue. Although the
plaintiffs' mistake is understandable, that is not actually
what the statute says. Instead, the statute provides that,
"[i]f the said governing body finds and determines that the
6The plaintiffs' briefs to this Court do not address
materiality or limit their arguments to material untruths.
The trial court apparently based its decision on the fact that
Robertsdale had a few customers in a small portion of the 2002
expanded service area.
19
1151145
statements in the said application are not true, it shall deny
the application." (Emphasis added.)
Second, the plaintiffs' argument fails to address the
essential nature of the review process provided in the
statute. Section 11-88-5(d) provides that the governing body
shall review an application and shall make certain findings
and determinations. The ensuing duty to approve or to deny an
application arises only after the governing body has conducted
that review and made such findings and determinations, and the
manner in which the duty is then executed is to be based on
those findings and determinations. The legislature's use of
the terms "review," "find," and "determine" strongly suggests
that the legislature intended the review process to be
discretionary, and not mandatory.7 This conclusion is
bolstered by the use in the statute of qualitative criteria
("adequate" service and "promot[ing] the public health,
convenience and welfare"). Such a review is inherently
discretionary.
7Merriam-Webster's Collegiate Dictionary 340 (11th ed.
2003) defines "determine" as, among other things, "to find out
or come to a decision about by investigation, reasoning, or
calculation"; "to come to a decision." "Find" is defined as,
among other things, "to discover by the intellect or the
feelings"; "to determine and make a statement about <[find] a
verdict>." Id. at 469
20
1151145
Moreover, the discretionary nature of the review process
by the governing body is bolstered by the fact that the same
review process applies both to the commission's assessment of
the required statement in the application about adequate
service and its assessment of the required statement "that the
said amendment will promote the public health, convenience,
and welfare." Ala. Code 1975, § 11-88-5(c)(3). Whether
something will promote "the public health, convenience, and
welfare" clearly involves a discretionary decision, and the
parallel structure of the statutory language addressing the
review process suggests that all the findings are similarly
discretionary. Contrary to the plaintiffs' argument, the
statute does not contemplate two qualitatively different
processes, one in which certain statements in the application
must actually be true (in the sense that a court could make a
de novo decision after the fact on the matter), and then, only
if this first condition is met, a second process in which the
commission has authority to conduct a discretionary review as
to whether the amendment will promote the public health,
convenience, and welfare.
In this case, the county commission reviewed each
application, including holding "work sessions" and a public
21
1151145
hearing as to the 2008 amendment.8 Thereafter, the county
commission found the facts in each application to be correct,
and it approved each amendment based on those findings. To
the extent that there is a mandatory duty, it is to act
consistent with its own findings made at the end of the review
process, which the county commission did.
Third, the plaintiffs' argument does not adequately
consider
whom
the
legislature
intended
to
make
the
determination as to the truth or falsity of the statements in
the application. The approach advocated by the plaintiffs
will, in many cases, shift ultimate responsibility for a
policy decision regarding public water and sewer systems from
the relevant governing bodies to a circuit judge (who might
not even sit in the county in which the authority seeking the
8There
was
evidence
before
the
trial
court
indicating that
Summerdale initially objected to ECBC's 2002 application but
later dropped its objection. There was also evidence
indicating that, as to the 2008 application, ECBC reduced its
proposed service area in response to statements made to the
county commission by representatives of nearby municipalities
and utility providers.
The plaintiffs argue that the county commission did not
conduct an adequate review of the applications for the
amendments, but they do not cite any authority as to what
constitutes an adequate review, and they do not explain what
additional investigation the county commission should have
performed. Further, the governing body's discretion in
conducting the required review also includes the discretion to
determine what review or investigation is appropriate in any
given case.
22
1151145
amendment is located). The members of the governing body or
bodies are elected officials who have responsibilities
regarding public infrastructure. These officials often
receive complaints about public services (or the lack
thereof), and they are generally aware of the county's
finances, infrastructure needs, and development plans. The
legislature no doubt contemplated that a governing body is
typically in a much better position than is a circuit judge to
evaluate the need for additional public water and sewer
systems and to determine whether a particular proposed new
facility or service area will promote the public health,
convenience, and welfare.
Accordingly, we conclude that a governing body's duty to
review and approve applications is a discretionary one.
2. Is the County Commission's Approval of the
Applications Subject to Judicial Review?
A related issue is whether, and to what extent, a
governing body's decision to approve or deny an authority's
application to amend its certificate of incorporation to
provide additional services is subject to judicial review.
ECBC argues (1) that the county commission's actions in
approving the 2002 amendment and the 2008 amendment are not
subject to judicial review unless those actions were the
result of "fraud, corruption, or unfair dealings" and
23
1151145
(2) that, if the amendments are subject to judicial review,
the
county commission's actions are presumed valid unless they
were arbitrary and capricious.
The plaintiffs argue that the county commission's
approval of the 2002 and the 2008 amendments was void because
it was under a mandatory duty to deny an application
containing incorrect statements of fact.9 The plaintiffs cite
Chism v. Jefferson County, 954 So. 2d 1058, 1073 (Ala. 2006),
and Dillard v. Baldwin County Commission, 833 So. 2d 11, 16
(Ala. 2002), for the generalized propositions (1) that
counties in Alabama are creatures of statute and can exercise
only that authority conferred on them by the legislature, and
(2) that "enactments conferring power upon county governing
boards will be strictly and narrowly construed." The
plaintiffs do not explain how those generalized principles of
law apply to this case, nor do they address the authority
explicitly conferred on governing bodies by § 11-88-1 et seq.
9The plaintiffs frame their argument in terms of an
approval being void, suggesting that the circuit court may
conduct a de novo review into the truth or falsity of the
statements in the application. That argument is not
explicitly made, but it follows from the argument they do
make.
24
1151145
to review applications such as those at issue here, to make
findings of fact, and to approve or deny those applications.10
ECBC cites a number of our prior cases that use the
"fraud, corruption, or unfair dealings" language, but we do
not agree that that is the proper test. Most of the cases
ECBC
cites
for
that
proposition involved
legislative
decisions
of a county commission, such as the issuance of bonds or the
construction of roads, bridges, and public buildings. See,
e.g., Bentley v. County Comm'n for Russell Cty., 264 Ala. 106,
84 So. 2d 490 (1956) (upholding issuance of warrants to
finance road and bridge improvements against challenge
asserting fraud, corruption, or unfair dealing by county
commission); O'Rear v. Sartain, 193 Ala. 275, 288, 69 So. 554,
558 (1915) (same); and Board of Revenue of Etowah Cty. v.
Hutchins, 250 Ala. 173, 33 So.2d 737 (1948) (holding that
county board of revenue has discretion to issue bonds to
finance new jail and courthouse in new location, asserting
fraud, corruption, or unfair dealings).
Our
prior
cases
have
sometimes
mixed
the
arbitrary-or-capricious
standard
with
the
standard
relating
to
10The plaintiffs do not explain how a decision by a
governing body, pursuant to the specific authority of § 11-88-
5(d), is void merely because the decision is later determined
to have been incorrect.
25
1151145
fraud,
corruption,
or
unfair
dealing,
but
the
arbitrary-or-capricious standard is the appropriate standard
for an issue such as that presented here. In ECO Preservation
Services, LLC v. Jefferson County Commission, supra, this
Court rejected the "fraud, corruption, or unfair dealings"
standard when the county commission refused to grant a right-
of-way for construction of a private sewer line. This Court
held that, "[a]lthough our cases have not always used the
words 'arbitrary or capricious,' we have consistently applied
that standard in practice when reviewing a county's decision
to grant or deny a license or permit." 933 So. 2d at 1071.
We conclude that the kind of county commission approval
at issue here is analogous to the grant or denial of a license
or permit. Accordingly, we review the county commission's
approval of the amendments under the arbitrary-or-capricious
standard.
B. Were There Adequate Public Water Services and Adequate
Public Sewer Services in the Expanded Service Areas?
The plaintiffs argue that the county commission should
have denied ECBC's applications because the applications
incorrectly stated that the relevant areas were not adequately
served by water systems or sewer systems, as the case may be,
at the time the applications were approved.
26
1151145
As regards the adequacy of the existing systems, the 2016
opinion of the Court of Civil Appeals stated:
"'Adequate' is defined as 'sufficient for a
specific
requirement,'
'barely
sufficient
or
satisfactory,'
and
'lawfully
and
reasonably
sufficient.'
Merriam-Webster's
Collegiate
Dictionary 15 (11th ed. 2003). According to
Robertsdale, Summerdale, and BCSS, there were public
water systems and public sewer systems that were
capable of providing services in the 2002 ECBC
expanded service area and that were 'adequate' for
the purposes of § 11-88-5, despite the fact that
Robertsdale and Summerdale had chosen not to offer
services in that entire area. ...
"....
"... [W]e construe the meaning of the term
'adequate' as used [in] § 11-88-5 to be 'capable of
providing services,' as argued by Robertsdale,
Summerdale, and BCSS. ..."
Summerdale III, ___ So. 3d at ___ (some emphasis added).
We cannot conclude that the existing systems are
"adequate" merely because nearby municipalities "are capable
of" providing water and sewer services to the proposed service
areas. This interpretation ignores the purpose of water,
sewer, and fire-protection authorities, which is to provide
services to the public in areas not otherwise served.11 If the
11The Court of Civil Appeals based its analysis of the
adequacy issue in part on a conclusion that, under the purpose
clause of Ala. Code 1975, § 11-88-2, water, sewer, and fire-
protection authorities (such as ECBC) are intended to aid the
State (and the surrounding municipalities) and not to benefit
the public. Although the parties do not address the public-
benefit issue, we note our disagreement with the notion
27
1151145
pertinent area does not have a particular service and if there
are no present plans to provide that service, the service in
the area is not "adequate," regardless of what capacities
nearby municipalities possess. Adequacy of service must be
viewed from the perspective of residents and businesses in the
target area and must be evaluated based on the services that
are actually provided (or that are planned to be provided) in
the target area, not on the existence of some theoretical
capacity to provide services.
In the present case, there was evidence indicating that,
in 2002, water service was provided to only a small number of
customers in the proposed extension of the service area and
that neither Summerdale nor Robertsdale had plans to add
service in the area in the foreseeable future, in part because
such service was not economically feasible. There was
evidence indicating (1) that Summerdale and Robertsdale were
expressed by the Court of Civil Appeals. First, it appears
that water, sewer, and fire-protection authorities are
authorized for the benefit of the public. See Limestone Cty.
Water & Sewer Auth. v. City of Athens, 896 So. 2d 531, 536
(Ala. Civ. App. 2004) (holding that a water and sewer
authority organized under § 11-88-1 et seq. is a "public
corporation" and "is an 'instrumentality of the state' in the
sense that it is created pursuant to the laws of the State and
for the public benefit"). Second, there is no suggestion in
the statute (or in logic) that water, sewer, and fire-
protection authorities are intended to benefit municipalities
such as Summerdale and Robertsdale.
28
1151145
aware of ECBC's proposal that became the 2002 amendment, (2)
that representatives from ECBC met with representatives of
Summerdale and Robertsdale before the 2002 amendment was
approved, and (3) that the Summerdale Town Council approved
the 2002 amendment. Those facts are consistent with the
county commission's implicit finding that the public water and
public sewer systems in the proposed extension of the service
area were not adequate.12 At a minimum, these facts preclude
a summary judgment.
There was other evidence to the contrary, including
evidence indicating that ECBC allegedly made misstatements to
Summerdale and Robertsdale as to certain elements of ECBC's
plans. The present case was decided on a partial summary
judgment. Although it ruled in favor of Summerdale and
12Summerdale argues that ECBC's expansion of its service
area, together with certain federal statutory provisions,
gives ECBC a monopoly on providing water and sewer services in
the expanded service area and effectively cuts off Summerdale
and
Robertsdale from
expansion beyond
their
existing
corporate
limits. That is an objection that should have been addressed
to the county commission before the applications for the
amendments were approved. Further, whether the applicable
statutes give too much leverage to authorities vis-à-vis
municipalities appears to be a policy question to be addressed
by the legislature. We do note, however, that ECBC acted to
fill a perceived need for water and sewer services at a time
when the municipalities were unwilling to act.
29
1151145
Robertsdale, the trial court, for all that appears, did not
decide those factual issues.13
V. Conclusion
Accordingly, we conclude that the Court of Civil Appeals
applied the wrong standard of review and that, therefore, its
decision is due to be reversed. We also conclude that the
summary judgment was erroneous because (1) it did not give
appropriate weight to the county commission's findings as to
the adequacy of the existing services and (2) there appear to
be genuine questions of material fact that would preclude a
summary judgment.
Accordingly, we reverse the decision of the Court of
Civil Appeals and remand the cause for further proceedings.
REVERSED AND REMANDED.
Parker, Wise, Bryan, and Sellers, JJ., concur.
Bolin and Shaw, JJ., concur in the result.
Main, J., dissents.
Stuart, C.J., recuses herself.
13Among other things, there remain factual questions as to
what representations were made to the mayors and council
members
of
Summerdale
and
Robertsdale,
whether
the
representations
were
materially
untrue,
and
whether
Summerdale
and
Robertsdale
detrimentally
relied
on
those
representations.
Likewise, the trial court will have an opportunity to address
the various estoppel claims that have been raised by the
various parties on appeal.
30 | June 30, 2017 |
c7b4a53b-3e4d-4ef6-9804-308775db617c | City of Birmingham v. Scogin | 115 So. 2d 505 | N/A | Alabama | Alabama Supreme Court | 115 So. 2d 505 (1959)
CITY OF BIRMINGHAM
v.
Mrs. George A. SCOGIN et al.
6 Div. 449.
Supreme Court of Alabama.
November 5, 1959.
*506 J. M. Breckenridge, Birmingham, for appellant.
James & Beavers, Birmingham, for appellees.
STAKELY, Justice.
This is an appeal by the City of Birmingham, a municipal corporation, from a decree granting a temporary injunction based on the bill of complaint as last amended filed against the City of Birmingham by the complainants Mrs. George A. Scogin, Mrs. J. B. Parker and Mrs. Forrest R. Blair. § 1057, Title 7, Code of 1940. The hearing for a temporary injunction was before the court on May 27, 1959.
The bill of complaint alleges that the respondent, the City of Birmingham, a municipal corporation, was operating a garbage dump on land more particularly described in a map which is marked Exhibit A and made a part of the bill of complaint, which land is separated from the complainants' land by a railroad right of way, that said city through neglect or carelessness and unskillfulness of its officers, agents, servants or employees, has permitted the garbage dump to become a health hazard to complainants and to become a breeding place for germs, rodents and vermin and that the city through its agents, officers, servants or employees has operated the garbage dump and has suffered the area in the immediate vicinity of the complainants' property through neglect, carelessness and unskillfulness to become offensive, obnoxious and detrimental to the health of complainants and other residents of the area and that the existence of such condition has continued for such a length of time as to raise the presumption of knowledge on the part of the City Commission of Birmingham, that demands have been made upon the city to abate this condition and that the city has refused, that the premises being used as a garbage dump are in a residential district of the city, that complainants have an investment of thousands of dollars in their homes and that the continued operation of the garbage dump in the above described manner will diminish, if not entirely destroy, the rental and sale values of the complainants' property, that inconvenience and damage to the complainants by reason of the negligent, careless and unskillful operation of the garbage dump are permanent, continuous and constantly recurring so that complainants have no full, adequate remedy at law, that the garbage dump at its present location is not a fit or suitable place for a garbage dump and is a nuisance, that unless the city is restrained from the operation of the garbage dump complainants will be compelled to smell noxious odors, vapors and gases that arise from the dumping of the garbage, that the lands on which *507 the properties of the complainants are located and the garbage disposal operation is now being carried on is in an A residential property zone as now classified by the existing zoning laws of the City of Birmingham and the operation of a landfill garbage disposal dump as now carried on by the respondent, is prohibited by the terms of the aforesaid zoning ordinance and is unlawful.
In the prayer of the bill the complainants seek a temporary injunction immediately enjoining the City of Birmingham from the further use and operation of the garbage dump in the area in the immediate vicinity of the property of the complainants. Upon a final hearing of the cause the complainants pray that a permanent injunction be issued against the respondent prohibiting it from further operating the garbage dump in the area as hereinabove described.
The map attached to the bill of complaint and marked Exhibit A shows that the homes of the three complainants are built on lots which abut in the rear on a railroad right of way. Going to the evidence for the moment, it shows that the City of Birmingham purchased the land across the railroad right of way on April 2, 1952. This deed was recorded in the office of the Judge of Probate of Jefferson County, Alabama, on April 3, 1952. The deed recites a consideration of $9,000 and includes the land conveyed thereby described in Exhibit A to the bill of complaint upon which the garbage disposal area involved in this suit is located. The complainants purchased their property at dates later than the date when the City of Birmingham purchased its property. The map shows that the land purchased by the City of Birmingham lies along the railroad right of way and is bisected by a creek which runs from north to south through the land. The land across the creek has been used in the past by the city for the disposal of garbage. A portion of the land lying between the creek and the properties of the complainants had been used for garbage disposal for about two months prior to the institution of this suit.
We set out in substance the testimony of each of the three complainants as follows.
Mrs. George A. Scogin, one of the complainants, testified that the City of Birmingham was operating a garbage dump on land described in Exhibit A to the bill of complaint and this is separated from the property of the complainants by a railroad right of way, that the city began dumping in the area immediately across the railroad right of way about two months prior to the date of the hearing. She testified that she had observed noxious odors almost every day and that when the odors appear she goes inside and turns on the air conditioner. This complainant further testified that she purchased her house in 1953, paying $7,700 for the property, that the property is now worth about $8,000. She further testified that prior to two months before the hearing the city had operated a garbage dump across the creek from where they are now dumping and accordingly in the past two months have come closer to her property. She estimated the right of way of the railroad between her property and the garbage dump area was about 25 feet wide and not 100 feet wide. She did not smell odors prior to two months ago and the odors were more intense early in the morning and late in the afternoon. The city had used the area across the creek from where they are now dumping for a period of about four years.
Mrs. J. B. Parker, another complainant, testified that she lived on the other side of Mrs. Scogin and that her property backs up to the railroad track. She bought her house six and one-half years ago. The city was dumping in the area across the creek at that time but she did not know it. There were trees and bushes that obscured the view of the dump. There were no noticeable odors at her house prior to the time dumping began on her side of the creek but odors were very noticeable since then. She goes to work at seven o'clock in the *508 morning and returns home at 6:30 p. m. When she returns home she turns on the air conditioner. She went over to the dump about three weeks prior to the hearing when they were not working over there and found some exposed garbage and some old water standing. The same odor that comes from her garbage can comes from the garbage dump.
Mrs. Forrest Blair, one of the complainants, testified that she had lived in the vicinity of the city dump for five years. She paid $8,100 for her house and its value immediately before the city started dumping was $7,100. She had observed odors since the city started dumping two months ago. She had odors before two months ago from the old dump across the creek. She lives about 100 feet from the dump. Dumping is carried on all day long. She has big cock roaches in her back yard. She lives next door to Mrs. Scogin, another complainant. She had not noticed any odors from the creek.
Other residents of the neighborhood gave testimony substantially similar to the testimony of the complainants.
In addition Roy E. Smith, Jr., a witness for the complainants, testified in substance that he was a real estate broker licensed since 1938 and had "practiced real estate" the last thirteen years and that he specializes in real estate in the western section and that Court Q and Quincy Court are in the western section. The houses in the vicinity of Court Q and Quincy Court range in price from $7,500 to $12,000. In his opinion there has been a lessening in the value of the houses in the vicinity of the dumping operations by reason of the dumping.
Mr. John Steineicher, a witness for the complainants, testified in substance that he was Planning Director of the City of Birmingham and that the official zone map of the City of Birmingham showed that the area where the complainants' houses are located and where the garbage disposal area is located is zoned A-Residential under the Zoning Ordinance of the City of Birmingham. The pertinent part of the zoning ordinance was introduced in evidence.
Ernest B. Reed, a witness for the complainants, testified in substance that he lived on the road leading to the dump and that he has gone over to the dump four times. On his first visit there was a lot of odor and quite a few flies and there was garbage that was not completely covered. On his second visit there was odor but garbage was uncovered in just a few small spots. He noticed a few flies. Trucks going to the garbage dump start coming by his house at 4 a. m. and between 4 a. m. and 7 a. m. a garbage truck passes his house at the rate of one every fifteen minutes. He noticed two drag lines and a bulldozer on the dump. He used to graze cattle in the area where the city has a temporary road to the garbage area and he had moved his cattle out but was not required to do so by the owner of the land over which the temporary road is constructed. The city has improved the street going by his house with something but he does not think it is paving.
The City of Birmingham, introduced in its behalf the affidavit of Guy M. Tate, Jr., Director of the Bureau of Sanitation of the Jefferson County Department of Health, wherein he says that he inspected the city's garbage disposal area on May 12, 1959, at 3 p. m. and on May 20, 1959 at 9:30 a. m. On the May 12th inspection all of the garbage to be disposed of that day was in place and compacted and the final daily covering was being placed over it. On the inspection on May 20th the operation was in full swing and garbage trucks were coming in at a fairly rapid rate. On both of these occasions the sanitary landfill was being operated in a manner that indicated excellent sanitary engineering practices and all the recommendations made by the Jefferson County Health Department were being carried out in every detail. There was no indication of rodents, the number of flies was at a minimum and there was no evidence of a nuisance of any kind. In *509 carrying out this operation the City of Birmingham is placing particular emphasis on adequate equipment and is taking extra precautions to spray the operation with insecticide emulsion for the control of flies every few hours during the day.
There was also introduced in behalf of the respondent the affidavit of Paul Pate, Assistant Director of the Bureau of Sanitation of the Jefferson County Department of Health, wherein he says that at the request of the Superintendent of Streets and Sanitation for the City of Birmingham, he made an initial inspection of the garbage disposal area prior to the commencement of operations there for the purpose of making recommendations as to the type of operation to be conducted and the drainage necessary for the operation. He recommended that (1) a channel be cut from the railroad right of way to the creek at each end of the city property so that surface water would flow into the creek, (2) that trenches be cut paralleling the creek and earth removed from trenches be stockpiled adjacent to the trenches to be utilized as cover material for the garbage, (3) that little cells of garbage be compacted into the trenches and that after each day's operation the garbage be covered with earth or other suitable cover material. He further says that he made several inspections of the operations during the day and upon completion of operations for the day. Recent dates of inspection made were May 6th, May 7th, May 12th and May 20, 1959. No prior notice of the dates or times of the inspections was given to city employees at the operation and on his inspections he found conditions good as they relate to sanitation. In his opinion the sanitary landfill operation is being conducted in keeping with good sanitary engineering practices and that a health hazard is not being created by the landfill operation. No rodents or signs of rodents were observed and no flies were observed in large numbers.
There was introduced in evidence as respondent's Exhibit D the original deed conveying to the City of Birmingham the land being used as a garbage disposal area. This deed shows that it is dated April 2, 1952, and was recorded in the office of the Judge of Probate of Jefferson County, Alabama, on April 3, 1952. The deed recites a consideration of $9,000 and includes in the land conveyed thereby the land described as Exhibit A to the bill of complaint upon which the garbage disposal area involved in this suit is located.
Mr. P. H. Walkley, a witness for the respondent, testified in substance that he is an inspector specializing in control of vermin and is employed by the Jefferson County Board of Health and had been so employed for thirteen years. Mr. Guy M. Tate is his immediate superior. As a part of his duties he makes frequent inspections of sanitary landfills and other garbage disposal areas around the county. He makes inspections of the garbage disposal area involved in this suit on a weekly basis since April 22, 1959, and he had made about six such inspections. He last inspected the area on the day preceding the trial of this case and the garbage on the disposal area is packed daily in cells and covered with earth daily. A new operation begins the next day. On his inspections he found the garbage being packed very well and coverage being made. He found the employees using spraying equipment with a chemical called malathion which is doing a good job on fly control. He found very few flies on the disposal area. The city was using two machines in the operation, one machine had loaders on front and the other a bulldozer which followed behind pushing the garbage into position and packing it. He observed men cleaning up refuse that would become scattered from the machine tractor and he detected no odor except the odor of fresh garbage when he got up actually to the burial site. He detected no odor other than as described on any of his inspections. He saw no evidence of roaches. Large black roaches are found generally throughout the City of Birmingham and outside thereof around yards in *510 residential areas and in wooded sites. Drainage is provided for the garbage disposal area and the drainage is not through the garbage. He saw no pollution in any water on the area during the six times he was there. He gave no prior notice on any of the six inspections he made to the City of Birmingham or any employee of of the city.
On his first visit it was cold weather and he saw no spraying equipment and saw no flies either. He found no odor coming from the old disposal area across the creek. He has in the past observed an odor coming from the creek and that in the past years he has had calls out there relative to odors from the creek. That water does not drain through the garbage into the creek. The city was covering the garbage with six inches of dirt. Germs could be carried by flies. He had received no information about snakes at the garbage disposal area. He made periodic inspections of garbage disposal areas in Jefferson County. He has had complaints relative to the odors from the creek at the location in question prior to the time the city began disposing of garbage in the area.
Dr. George A. Denison, a witness for the respondent, testified that he is a County Health Officer and had been County Health Officer since 1942. His qualifications were admitted. He made inspection of the garbage disposal site involved in this suit on May 12th and he found a sanitary landfill which, in his opinion, was being properly operated. His inspection was made at 3 o'clock in the afternoon when it was still in operation. The last truck had just dumped garbage. The garbage was placed in a trench about 50 feet wide. It was compacted and covered over with dirt which constituted a cell. The total operation consisted of one cell after another and the operation is known as the landfill method. He noticed a slight odor at the site of the dump but did not notice any odor any distance from the operation. He saw a few flies but they were not excessive and were well under control. He saw no evidence of rats or vermin. In his opinion the operation which was being carried on at the time of his inspection did not create a health hazard to the people in the area. If garbage were deposited on the area between 4 a. m. and 7 a. m. in the morning without any covering or spraying or other attention and left for three hours in such condition, it would not create a health hazard in the neighborhood, although it might create some odor that would temporarily be objectionable. It is customary in this type operation to be sure all garbage is completely covered at the end of a day's operation. In a sanitary landfill operation the normal procedure is to use the treads of a bulldozer to pack the garbage down and this is the recommended procedure.
Mr. W. H. Kittrell testified, as a witness for the respondent, substantially as follows. He lived in Montgomery, Alabama, and was employed by the State Department of Health as Director of Vector control in the Bureau of Sanitation. He had been employed by the State Health Department for 22 years. He held a B. S. Degree in Engineering and a Master of Public Health Degree. Among his duties with the State Health Department he acted as advisor and consultant to county health departments and local governments on matters pertaining to the control and prevention of insects and rodents and this included the inspection of garbage disposal areas. He made an inspection of the garbage disposal area involved in this suit on May 20th. On his inspection he found there had been excavated a strip of land roughly 50 feet wide and several hundred feet long parallel with the railroad right of way and lying between the railroad and Valley Creek, which excavation was four or five feet deep and dirt had been piled in windrows on each side of the excavation and a ramp type landfill had been started in the center section of the excavation compacting the refuse on the slope and the earth piled up on the side was being used for covering material and the center section had been surfaced with mine waste, black slate or *511 slag. Drainage had been provided and was adequate to take care of the drainage in the fill. He did not see any flies on the garbage disposal area. Tractors were being used to compact the garbage and they were adequate for this purpose and were doing an excellent job. He saw no rats or roaches or evidence of rats or roaches on the disposal area. Large black roaches are common in Birmingham. He observed an odor at the working space on the disposal area but he did not detect any odor over beyond a few feet from the working space. The method being used is a method recommended by the State Health Department. The disposal of garbage as being carried on during his inspection would not create a health hazard. Spraying of the area was being made from a spray machine mounted on a pickup truck and that spraying with a malathion emulsion would be effective on flies in this area. The material in the spray has a residual effect and will remain effective for a considerable time. Any flies landing on a sprayed area would probably be killed by the residual effect. It had rained the night before but there was no water standing on the area. He had inspected about twenty-five landfill operations in Alabama. He has seen one landfill dump as close to residences as this one and that was at Gadsden on a city housing project and he had not seen any other landfill operation as close to residences as this operation.
The testimony of A. H. Moncrief, a witness for the respondent, is largely corroborative of the testimony heretofore set out for the respondent except that it will take the city three or four months to complete the present dumping operations on the land involved in this suit and that Exhibit E introduced for the respondent shows the actual dump site itself. Exhibit F is a picture of the sanitary landfill where garbage has already been dumped. Exhibit G is a picture of a drainage ditch on the east end of the fill and a large rock is shown near the ditch, that the ditch drains to the creek. Exhibit H is taken from the present sanitary landfill and shows an area across the creek which is the old sanitary landfill. Exhibit I is a picture of the present sanitary landfill from the extreme northern end of it. Exhibit I shows where garbage had been dumped and covered up the day the picture was taken. Exhibit J is a picture of the east end of the disposal area looking west. Exhibit K is a picture of the sanitary landfill from the center looking east. Exhibit L is a picture of the sanitary landfill taken from the railroad track. The landfill operations are to the right beyond the dirt shown piled up in the respondent's Exhibit I and the houses are to the left in the picture. Exhibit M is another picture taken from the railroad track and the residences are to the left and the disposal area to the right in relation to the picture. Exhibit N is a picture taken a little further to the north of the railroad right of way and shows the houses to the left and the garbage disposal area to the right. His testimony further shows that there is a slight odor on the disposal area but he could not detect it 20 or 30 feet away.
The testimony of N. R. Daniels, a district supervisor for the City of Birmingham, over garbage disposal and street work in the western section of the city, which is the area involved in this suit, is largely corroborative of the testimony for the respondent which has heretofore been set out.
Mr. Neal McRae, a witness for the respondent, testified in substance that he is Superintendent of Streets and Sanitation for the City of Birmingham, had been with the city for twenty-five years. His testimony is largely corroborative of the testimony of the respondent which has been heretofore set forth, except that he goes to the disposal area involved in this suit two or three times a week and testified that it is operated as a sanitary landfill, that garbage is placed in a channel about fifty feet wide and generally in depth from four to eight feet and is compacted and covered with earth and the garbage for each day is sealed into separate cells, that 34th Street was paved from Brighton Road to the dead *512 end before dumping started in the area involved in this suit, that the road from the dead end and across private property was cleared out with equipment and surfaced with mine rock so that it would not be muddy, that the road is machined as needed and wet down on dry days at least once a day, that the City of Birmingham does not have any garbage disposal area in the western section of the city at the present time except the area involved in this suit, that the only garbage disposal area in the city at the present time other than the area involved in this suit is the airport dump, that the additional cost to the city to dispose of the garbage in the airport dump which is now being deposited in the area involved in this suit would be in excess of $450 per day, that the City of Birmingham is at present in the process of acquiring approximately five acres for the disposal of garbage in the western section and that the matter has been sent to the city's legal department for handling, that the city is not going to dump up to its boundary line and is not going any closer to its boundary line than twenty feet.
I. This court has often said that there can be no abatable nuisance in doing in a proper manner what is authorized by law. Fricke v. City of Guntersville, 251 Ala. 63, 36 So. 2d 321; Branyon v. Kirk, 238 Ala. 321, 191 So. 345; Harris v. Town of Tarrant City, 221 Ala. 558, 130 So. 83; Downey v. Jackson, 259 Ala. 189, 65 So. 2d 825.
The city of Birmingham is expressly authorized to establish garbage areas by Section 496, Title 37, Code of 1940, as amended. In the Code of 1907 the legislature authorized municipalities in this state to establish and maintain crematories for the destruction of garbage. This is § 1282 of the Code of 1907. This section was brought forward as § 2039 of the Code of 1923. Then it was brought forward as § 496, Title 37, Code of 1940 and in 1947, as shown in the General Acts of 1947, p. 26, the legislature amended the aforesaid section 496 so that the section as amended reads as follows:
See § 496, Title 37, p. 316, 1955 Cumulative Pocket Part, Code of 1940.
The foregoing section as amended gives to municipalities of this state the power and authority to collect and dispose of garbage originating in such municipalities in such manner as may be deemed expedient by the municipal authorities. The action of a government agency acting within its authority will not be controlled or revised by injunction. Brammer v. Housing Authority of Birmingham Dist., 239 Ala. 280, 195 So. 256; Goodwin v. State Board of Administration, 212 Ala. 453, 102 So. 718; Lehmann v. State Board of Public Accountancy, 208 Ala. 185, 94 So. 94.
In the case of Downey v. Jackson, 259 Ala. 189, 65 So. 2d 825, this court held that the construction and operation of a public project by a city exactly as authorized by law and strictly in accordance with good practice cannot be a nuisance although it may work damage to others. To like effect was the holding in McClung v. Louisville & Nashville R. Co., 255 Ala. 302, 51 So. 2d 371. We think it can be stated as true that the disposal area of garbage involved in this suit is not a garbage dump as such expression is usually used. On the contrary, it is a sanitary landfill garbage disposal operation. The undisputed evidence shows that the disposal area in this case is not a health hazard. We further think that there *513 is no evidence to show that the disposal area increases the number of rodents, roaches or snakes. Nor does it increase flies to any appreciable extent. We can well understand that it is not unreasonable for persons living near a sanitary landfill garbage disposal operation to object to such operation. It is just human nature to object to such an operation even though it is operated strictly according to the best practices and is not a health hazard and does not emit obnoxious odors. However there are many annoyances and inconveniences which are the usual and ordinary result of urban life. Sometimes these annoyances are small and sometimes great. There is always a question of degree, considering the type and kind of activity which is alleged to be an abatable nuisance. The activity which was enjoined in this case is an activity not only beneficial to the people of a large city, but seems to us to be necessary to protect the health of the inhabitants thereof, including the appellees whose garbage is picked up by the city.
It is an activity specially authorized by legislative act as we have shown. According to the evidence the city has only two garbage disposal areas, one in the western section and one in the eastern section of the city. The distance between the two is over ten miles through city traffic. We can understand the hazard to the health of inhabitants of a large city such as the City of Birmingham which would result should the temporary injunction be allowed to stand, prohibiting the use of the garbage disposal area in the western section of the city.
The evidence in this case shows that a large number of truck loads of garbage per day was being deposited in the disposal area here involved prior to the injunction issued in this case. This amounts to 1/3 of the total daily garbage collected by the City of Birmingham. It costs the city an additional sum of $450 per day to transport garbage from the western section to the eastern section garbage disposal. The three complainants in this case bought their present homes after the time the city purchased the land in 1952.
We quite understand that although the operation of a landfill garbage disposal operation is a governmental function yet if the operation is conducted in a negligent manner by the agents, employees or servants of the City of Birmingham and as a result thereof a nuisance is created, the nuisance is subject to being abated by an injunction. In fact we so held in Downey v. Jackson, 259 Ala. 189, 65 So. 2d 825, and in City of Bessemer v. Chambers, 242 Ala. 666, 8 So. 2d 163. The case of Downey v. Jackson, supra, is cited in briefs by both sides to this controversy. The case of Downey v. Jackson, supra, is a case which we think should be followed in the present controversy. In Downey v. Jackson, supra, this court said [259 Ala. 189, 65 So.2d 828]:
In Downey v. Jackson, supra, the lower court did exactly what the lower court has done in this case. The lower court enjoined outright the playing of night baseball on the ball diamond involved. In this case the lower court enjoined outright the disposal of garbage in the disposal area here involved. In Downey v. Jackson, supra, this court modified the injunction so as not to stop the playing of night games, but enjoined the respondents from causing the glare of lights used for night games to the extent that this can be reasonably done by a screen suitable to that end.
It does not seem to us that in the present case the court applied the principles laid down in Downey v. Jackson, supra. In this case if there was no negligence on the part of the City of Birmingham in the operation of the disposal area, the injunction should have been denied. On the other hand if the court found any negligence on the part of the City of Birmingham, then only the negligent act or acts should have been enjoined. It seems to us that under the evidence the only act of the City of Birmingham which should be enjoined is the unreasonable creation, if any, of noxious odors or fumes by the landfill garbage disposal operation, if such obnoxious odors continued for an unreasonable length of time. We think it is clear that the landfill method of disposing of garbage is a modern and sanitary method when employed and operated as the evidence shows in this case.
We consider that the decree of the lower court should be modified so as to enjoin the depositing of any garbage in the area involved which is not covered over by six p. m. of the day on which the garbage is deposited, since the operation will be completed in the next three or four months and the days will for the most part be shorter. If necessary, the channels or trenches should be made shorter in length and narrower in width so that this result can be better accomplished.
II. This brings us to the issue of zoning which has been raised in this case. The Alabama cases have long held that zoning does not apply to the operation of a governmental function by a municipality. Lauderdale County Board of Education v. Alexander, Ala., 110 So. 2d 911; Alabama Alcoholic Beverage Control Board v. City of Birmingham, 253 Ala. 402, 44 So. 2d 593; Water Works Board of City of Birmingham v. Stephens, 262 Ala. 203, 78 So. 2d 267. See also 58 Am.Jr. p. 1009, § 120; 101 C.J.S. Zoning § 135, p. 893.
In this state it has been consistently held that a municipality in operating a garbage disposal area is discharging a governmental function and not a proprietary function. City of Tuscaloosa v. Fitts, 209 Ala. 635, 96 So. 771; Kirk v. McTyeire, 209 Ala. 125, 95 So. 361; City of Bessemer v. Abbott, 212 Ala. 472, 103 So. 446; City of Bessemer v. Chambers, 242 Ala. 666, 8 So. 2d 163; Brown v. City of Fairhope, 265 Ala. 596, 93 So. 2d 419.
The appellees cite in their behalf the case of Jefferson County v. City of Birmingham, 256 Ala. 436, 55 So. 2d 196. We have examined the original record in that case and find that the case did not involve a garbage disposal area. It was a bill for a declaratory judgment to determine whether a sewage disposal plant which Jefferson County proposed to construct and operate under a legislative act which provided for the issuance of revenue bonds and the charging of a sewer service charge to all property using the sewers installed under *515 this act was violative of the zoning ordinance of the City of Birmingham. It was held that Jefferson County would be operating a facility similar to water works, gas works, etc, and under the decisions of this court such facility would be a proprietary function of a municipality and properly subject to the zoning ordinance. In Water Works Board of City of Birmingham v. Stephens, 262 Ala. 203, 78 So. 2d 267, this court held that the operation of a water tank was subject to zoning since the operation of a water tank was a proprietary function and subject to zoning. So Jefferson County v. City of Birmingham, 256 Ala. 439, 55 So. 2d 196, is consistent with the holding of this court that maintenance of sanitary sewers by a municipality is a corporate and proprietary function. As pointed out this court has held that garbage disposal is a governmental as distinguished from a corporate or proprietary function. City of Tuscaloosa v. Fitts, 209 Ala. 635, 96 So. 771; Kirk v. McTyeire, 209 Ala. 125, 95 So. 361; City of Bessemer v. Abbott, 212 Ala. 472, 103 So. 446; City of Bessemer v. Chambers, 242 Ala. 666, 8 So. 2d 163; Ivory v. City of Montgomery, 35 Ala.App. 631, 51 So. 2d 559; Brown v. City of Fairhope, 265 Ala. 596, 93 So. 2d 419, 422.
In Brown v. City of Fairhope, supra, this court held specifically that sewage disposal is a corporate function of a municipality and that garbage disposal is a governmental function of a municipality. This court so held in the following words.
In Lauderdale County Board of Education v. Alexander, Ala., 110 So. 2d 911, 917, which we have hereinabove referred, this court said:
III. We have examined the photographs introduced in evidence and it seems to us that the photographs show that a garbage dump as that term is usually used is not involved in this case. The photographs show that there are no residences on three sides of the area. A deep railroad cut 100 feet wide separates the city's land from the land of the three complainants. There is a sanitary landfill being operated on the land of the city. It is not a garbage dump. It seems to us that we have here an essential health and sanitary service, the discontinuance of which will adversely affect the health of a large number of inhabitants of the City of Birmingham.
We, accordingly, have concluded that the decree of the lower court should be modified to the extent herein set forth but not enjoining in its entirety the landfill garbage disposal operation on the land of the city.
Modified and affirmed.
LIVINGSTON, C. J., and LAWSON and MERRILL, JJ., concur. | November 5, 1959 |
ce5b6849-40a7-40db-bd4e-c8978fa53560 | Underwood v. West Point Manufacturing Company | 116 So. 2d 575 | N/A | Alabama | Alabama Supreme Court | 116 So. 2d 575 (1959)
Sybil J. UNDERWOOD
v.
WEST POINT MANUFACTURING COMPANY.
5 Div. 719.
Supreme Court of Alabama.
December 17, 1959.
*576 Walker & Walker, Opelika, for appellant.
Wm. O. Walton, Jr., Lafayette, for appellee.
LAWSON, Justice.
This is an appeal from a decree overruling demurrer to a bill in equity.
The bill was filed in the Circuit Court of Chambers County, in Equity, by West Point Manufacturing Company against Sybil J. Underwood, Sinclair Refining Company, Ralph E. Freeman, Jr., and First Federal Savings and Loan Association of West Point, Georgia.
The bill seeks a mandatory injunction "requiring Respondents to immediately stop trespassing on the property of Complainant by dumping or emptying sewage from the lot owned or operated by Respondents into the private sewage disposal system of Complainant."
The case made by the bill is substantially as follows: Complainant owns and operates a private sewage disposal system in Fairfax, an unincorporated town in Chambers County. Complainant charges fees for the use of its system and makes rules and regulations concerning its use.
The respondent Sybil J. Underwood owns a lot in Fairfax that is crossed by a sewer line leading from land which belonged to the F. B. Trammell estate to a main sewer line of complainant.
The Trammell line was constructed in about 1938 and was connected to complainant's sewer line with complainant's permission.
One Malcolm Jarvis was formerly a joint owner with Sybil J. Underwood of the lot in question, which we will sometimes refer to hereinafter as the Underwood lot. They leased the lot to the respondent Sinclair Refining Company.
A filling station was recently constructed on the Underwood lot. It is operated by the respondent Ralph E. Freeman, Jr., under an agreement with Sinclair Refining Company.
There was no sewage connection on or from the Underwood lot at the time work on the filling station was begun. Complainant has never "authorized any sewage connection from said lot."
Malcolm Jarvis, when he was a joint owner of the Underwood lot, sought complainant's permission to make sewage connections from the Underwood lot to complainant's *577 sewerage system. Such permission was not granted. The bill avers:
The appeal is by the respondent Sybil J. Underwood from the decree overruling her amended demurrer. She is the only respondent who demurred to the bill.
It is contended that the bill is without equity in that the complainant has an adequate remedy at law and that the trial court therefore erred in overruling the general demurrer addressed to the bill.
This court is committed to the equitable right of injunction by the owner of land in possession when the trespass is of a continuous or repeated nature, so that actions at law would be inadequate. Birmingham Trust & Savings Co. v. Mason, 222 Ala. 38, 130 So. 559, and cases cited; Tidwell v. H. H. Hitt Lumber Co., 198 Ala. 236, 73 So. 486, L.R.A.1917C, 232; Green v. Mutual Steel Co., Inc., 268 Ala. 648, 108 So. 2d 837. There being no question of disputed title, or at least that equitable relief is not barred on that ground, injunction is the proper remedy to restrain trespasses where the remedy at law is inadequate because of the nature of the injury or because of the necessity of multiplicity of actions to obtain redress. Lewis v. Hicks, 264 Ala. 440, 87 So. 2d 867, 60 A.L.R.2d 307.
In Tidwell v. H. H. Hitt Lumber Co., 198 Ala. 236, 73 So. 486, L.R.A.1917C, 232, this court adopted the modern rule and departed to some extent from some of the early cases, such as Deegan v. Neville, 127 Ala. 471, 29 So. 173, cited by appellant. Jones v. King, 221 Ala. 179, 128 So. 378. In the case last cited we said that an owner of hunting privileges was entitled to an injunction against continuing trespasses interfering with or destroying such rights.
In Williams v. Still, 263 Ala. 214, 82 So. 2d 230, we affirmed a decree which overruled demurrer to a bill which sought to restrain and enjoin the polution of a stream which ran through complainant's pasture. To like effect is the case of Elmore v. Ingalls, 245 Ala. 481, 17 So. 2d 674.
*578 If the averments of the bill are true, and they must be so treated on demurrer, the complainant is the owner of a private sewerage system and has the right to decide who can use that system and upon what terms. There is nothing in the bill to indicate that complainant's sewerage system is so effected with a public interest as to entitle all property owners in the vicinity who are willing to pay a reasonable fee to connect with it.
While we have found no Alabama case, and none has been cited, which deals with the rights of an owner of a private sewerage system to injunctive relief in a situation of the kind presented by this bill, there are several cases from other jurisdictions recognizing that an owner of a private sewerage system may enjoin unauthorized persons from using his facilities. Kittrell v. Angelo, 170 Ark. 982, 282 S.W. 363; Newport Manor, Inc. v. Carmen Land Co., Fla., 82 So. 2d 127; Boyden v. Walkley, 113 Mich. 609, 71 N.W. 1099. See Lee v. Scriver, 143 Minn. 17, 172 N.W. 802.
In our opinion the bill shows an injury occasioned by repeated trespasses, the dumping of sewage into complainant's system by way of the Trammell line, which cannot be compensated for in a court of law. Lewis v. Hicks, supra; Green v. Mutual Steel Co., supra; Williams v. Still, supra.
It is next argued the court erred in overruling grounds of demurrer taking the point "that the bill is so vague and ambiguous as to fail to inform the respondents of what they are called upon to defend."
We cannot agree. The bill plainly informs this appellant, the demurrant, that she is the owner of a lot on which a connection has been made to the Trammell line and that as a result of that unauthorized connection sewage from her lot is being repeatedly emptied into complainant's sewerage system. It matters not who made the connection. The appellant is called upon by the bill to show why the connection should not be discontinued.
The bill avers that the continuous trespass constitutes irreparable damage to complainants. The facts are not averred as is necessary in most cases of this kind. Cullman Property Co. v. H. H. Hitt Lumber Co., 201 Ala. 150, 77 So. 574. However, the very nature of the injury shown by the bill is such as to show it to be irreparable.
The right of the complainant to determine who is going to use its sewerage system cannot be taken away from it simply by responding in money damages. In order to protect its right to control the use of its property, complainant must look to a court of equity.
There is nothing in the bill to indicate that the owner of the Underwood lot has any right to connect with the Trammell sewer simply because that line was laid across the lot some years ago.
It is said that the bill is multifarious because First Federal Savings and Loan Association of West Point, Georgia, is improperly joined as a party respondent.
Although no relief is prayed against the Association, we think it was a proper party since it holds a mortgage on the lot in question.
But, in any event, the respondent Sybil J. Underwood is properly before the court and, if the Association is not properly brought in as a party, this is a matter of which Mrs. Underwood cannot complain, as she will not be affected thereby. Treadaway v. Stansell, 203 Ala. 52, 82 So. 12.
We hold that none of the grounds of the demurrer which are argued in brief of appellant are well taken and that the decree of the trial court should be affirmed. It is so ordered.
Affirmed.
LIVINGSTON, C. J., and STAKELY and MERRILL, JJ., concur. | December 17, 1959 |
2724307a-eeae-43e2-9fef-b94651344068 | Taylor v. Peoples Fertilizer Co. | 117 So. 2d 180 | N/A | Alabama | Alabama Supreme Court | 117 So. 2d 180 (1959)
Morris TAYLOR et al.
v.
PEOPLES FERTILIZER CO.
1 Div. 814.
Supreme Court of Alabama.
October 15, 1959.
Rehearing Denied January 21, 1960.
*181 C. LeNoir Thompson, Bay Minette, for appellants.
Chason & Stone, Bay Minette, for appellee.
STAKELY, Justice.
On the motion to strike the transcript and dismiss the appeals.
*182 In this case the appeals were taken by Annis Parsons Moorer, Golda Parsons Friedhoff, Nettie Parsons Williams and Margaret Parsons Griffin from a final decree of the Circuit Court of Baldwin County, in Equity, to this court on December 22, 1958, and by Vada Parsons Potts from the said decree to this court on December 29, 1958.
The transcript of the record was filed in this court on March 4, 1959, more than sixty days after the taking of the appeals.
On March 18, 1959, the appellee filed its motion to strike the transcript of record and dismiss the appeal taken by Annis Parson Moorer, Golda Parsons Friedhoff, Nettie Parsons Williams and Margaret Parsons Griffin. It also filed on the same day its motion to strike the transcript of record and dismiss the appeal taken by Vada Parsons Potts. Among other grounds, the motion to strike is based on the failure of the appellants to request the trial judge to extend the time for filing the transcript in this court and no additional time was granted the appellants in which to file the transcript of record.
On March 21, 1959, a motion was made to this court requesting this court to grant the appellants an additional sixteen days from February 20, 1959, to March 5, 1959, in which to file the transcript of record in this court. The motion was based on alleged sickness in the family of the attorney and his alleged trouble with his teeth due to abscesses in his teeth. Attached to this motion to this court is a copy of the motion filed with the trial court and a denial of the motion made by the trial judge.
The provisions and requirements of Supreme Court Rule 37, as amended (263 Ala. XXI, 1957 Red Supplement to the Code of Alabama, p. 107), are plain and unequivocal in stating that, "in equity cases the transcript shall be filed within sixty days of the taking of the appeal" unless the trial judge has extended the time for filing such transcript of record for good cause shown not to exceed thirty days and if such time is so extended by the trial judge, thereafter the Supreme Court may extend the time for the filing of the transcript of record for good cause shown upon petition in writing of which the adversary counsel must have ten days notice. Rule 37, as amended, contains the following:
The appellee takes the position that this court is without authority to extend the time for the filing of the transcript of record unless such time was first extended by the trial court. We think this position is correct, unless the application to this court for an extension shows that the trial judge was unavailable or was not made for a good and sufficient reason.
The motion made to the trial court for an extension of time was made after the transcript had been filed in this court but within thirty days from the aforesaid sixty day period, that is within ninety days after the appeal had been taken and was made on the ground, among other grounds, that the illness of the family of the attorney taking the appeal including not only his children and his wife but also serious dental troubles of the attorney resulting from abscesses in his teeth, prevented him from filing his motion in the trial court earlier. The ruling of the trial court on the motion to extend the time for filing the transcript in this court fails to show the basis on which the trial court denied the motion, but the motion was filed with the trial court before the case was submitted in this court or any other action had been taken by this court in the case.
*183 It seems to us that the spirit of the rule, where the motion is made in the trial court, even though the transcript had been filed in this court, is sufficient to give the trial court jurisdiction to pass on the motion for an extension of time in the event no submission had been made in this court or any other action had been taken by this court, as set forth above. We think that the allegations which are sworn to showing sickness in the family of the attorney for the appellants and his own dental trouble suffered by abscesses from his teeth, are sufficient grounds for the trial court to have granted an extension of time. Accordingly we have reached the conclusion that the prerequisite to a consideration in this court of the motion here to extend the time for filing the transcript is sufficient to allow us to pass on the requested extension of time since the case had not been submitted or any other action taken by this court prior to the time the motion referred to was filed in this court. We accordingly grant such extension and shall proceed to a consideration of the case on its merits.
The bill of complaint in this case was filed by the Peoples Fertilizer Company, a corporation, as complainant against Morris Taylor, Daisy Opal Taylor and Annis Moorer, as guardian of H. M. Parsons, a person of unsound mind, as respondents, in the Circuit Court of Baldwin County, in Equity, on November 27, 1956.
H. M. Parsons died and his death was suggested by his solicitor on July 12, 1957. The cause was revived against Prince Griffin, as executor of the estate of H. M. Parsons, deceased, and against Annis Parsons Moorer, Vada Parsons Potts, Golda Parsons Friedhoff, Nettie Parsons Williams and Margaret Parsons Griffin, as the heirs at law, next of kin and legatees under the last will and testament of H. M. Parsons, deceased. The cause was removed to the United States District Court in Mobile, Alabama, upon petition of Vada Parsons Potts but the cause was remanded by the United States District Court to the Circuit Court of Baldwin County on March 18, 1958. A decree pro confesso was rendered against Morris Taylor and Daisy Opal Taylor on February 26, 1957. The remaining respondents filed their answer on June 16, 1958. The cause proceeded to trial on the bill of complaint and the answer of the respondents.
The allegations of the bill as amended show in substance the following. The Peoples Fertilizer Company, the complainant, is a corporation organized under the laws of the State of Alabama with its principal place of business at Foley, Alabama. All of the respondents are resident citizens of Baldwin County, Alabama, and all over the age of twenty-one years. On April 6, 1955, H. M. Parsons was adjudged insane and on April 7, 1955, Annis Moorer was appointed as his guardian by the Probate Court of Baldwin County.
Morris Taylor was justly indebted to the Peoples Fertilizer Company on September 22, 1947. On this date a suit was filed by the complainant in the Circuit Court of Baldwin County. Service was had on Morris Taylor on September 24, 1947. At the time of the filing of such suit Morris Taylor was the owner of certain real estate lying in Baldwin County and more particularly described in the bill of complaint.
The foregoing property had been acquired by Morris Taylor from John G. Murphy by warranty deed date February 28, 1945. This deed is recorded in the office of the Judge of Probate of Baldwin County in Deed Book 89 at page 92. In this deed Daisy Opal Taylor, one of the respondents and the wife of Morris Taylor, was named as the grantee. It is alleged on information and belief that such deed was made to her in order that she might hold such property in trust for Morris Taylor, who was the actual owner of the property. Daisy Opal Taylor and Morris Taylor, her husband, conveyed a portion of this property to James B. Crabtree by warranty deed dated November 15, 1946. This deed is recorded *184 in the office of the Judge of Probate of Baldwin County, Alabama, in Deed Book 114, p. 102.
On September 4, 1947, James B. Crabtree and wife reconveyed the property which he had acquired to Daisy Opal Taylor, such deed being recorded in the office of the Judge of Probate of Baldwin County at Book 23, p. 140. It is alleged on information and belief that Daisy Opal Taylor was to hold this property in trust for her husband, Morris Taylor.
It is further alleged that while the above mentioned suit which had been brought by the complainant against Morris Taylor, was pending, Daisy Opal Taylor and Morris Taylor, her husband, entered into a scheme or plan with the aforesaid H. M. Parsons to defraud the complainant. It was agreed between Daisy Opal Taylor and her husband Morris Taylor on the one part and H. M. Parsons on the other part that Daisy Opal Taylor and Morris Taylor would convey to H. M. Parsons the property described in the bill of complaint. This property had two houses located thereon. It was further agreed between them that Daisy Opal Taylor and Morris Taylor would have the right to occupy and use, without rent, the house located nearest Bay Minette and H. M. Parsons would have the right to occupy or rent out the other house and this was to continue for a period of ten years. At the expiration of the ten year period the entire property was to be sold by H. M. Parsons and the proceeds of such sale was to be divided equally between Morris Taylor and H. M. Parsons. It is further alleged that in accordance with such fraudulent agreement, Daisy Opal Taylor and Morris Taylor, her husband, executed a warranty deed to H. M. Parsons on April 27, 1948, conveying the aforesaid property in Baldwin County, Alabama. This deed was recorded in the office of the Judge of Probate of Baldwin County, in Deed Book 130, p. 63.
It was discovered that a mistake had been made in the description of said property and on May 10, 1948, Daisy Opal Taylor and Morris Taylor executed a deed of correction to H. M. Parsons, conveying the aforesaid property to H. M. Parsons. This deed was filed for record in the office of the Judge of Probate of Baldwin County in Deed Book 130, p. 183.
Subsequent to the execution and recording of the aforesaid deed of correction, complainant secured a judgment in its suit against Morris Taylor on September 27, 1948, in the sum of $5,342.71 and the costs of court. A certificate of this judgment was recorded in the office of the Judge of Probate of Baldwin County, Alabama, on October 1, 1948. No part of such judgment has ever been paid. H. M. Parsons has not conveyed any part of the property hereinabove referred to.
It is further alleged in the bill of complaint as amended that a short time prior to April 27, 1948, when the warranty deed was executed by Daisy Opal Taylor and Morris Taylor, her husband, to H. M. Parsons, Morris Taylor, Daisy Opal Taylor, his wife, and H. M. Parsons entered into an oral agreement that such deed would be executed for the purpose of hindering, delaying or defrauding complainant in its collection of money due the complainant by Morris Taylor and such deed was executed by Morris Taylor and Daisy Opal Taylor, his wife, and accepted by H. M. Parsons for the purpose of hindering, delaying or defrauding the complainant.
After the demurrer of Annis Moorer as guardian of H. M. Parsons was overruled, answer of H. M. Parsons, a non compos mentis, by his guardian, Annis Moorer, was filed to the bill of complaint denying the various allegations of the complaint.
Subsequently the complainant amended its complaint by striking Annis Moorer as guardian of H. M. Parsons, a person of unsound mind, as a party respondent in said cause.
The bill prayed that upon a final hearing of the cause that the deed from Daisy *185 Opal Taylor and Morris Taylor, her husband, to H. M. Parsons dated April 27, 1948, and the deed from Daisy Opal Taylor and Morris Taylor, her husband, to H. M. Parsons dated May 10, 1948, be declared null and void and of no force and effect and that an order be made by the court to the register to note on the margin of the record where such deeds are recorded that they have been declared null and void.
It is further prayed that Morris Taylor be decreed the owner of the title to the land which was conveyed in a deed from John G. Murphy and Nannie Murphy, his wife, to Daisy Opal Taylor or that Daisy Opal Taylor was holding the same in trust for Morris Taylor, her husband. It is further prayed that the court shall order the register to sell the aforesaid property described in order to satisfy the judgment recovered by the complainant together with the interest thereon.
The case was heard orally before the court and, in substance the court held that the deed from John G. Murphy and his wife to Daisy Opal Taylor dated February 28, 1945, conveying the property described in the bill of complaint was actually made to her in order to prevent the aforesaid land from being subject to the debts then existing of Morris Taylor and that there was no gift of said property to Daisy Opal Taylor and that the consideration for the property was paid by Morris Taylor and that Daisy Opal Taylor was actually holding title to said property for said Morris Taylor and that such title which he had in and to said property was subject to his judgment creditors.
It was further held by the court that the heirs of H. M. Parsons, deceased, have failed to show that they are the owners of that certain mortgage and the debt secured thereby and described in said mortgage from Daisy Opal Taylor and Morris Taylor, her hubsand to John G. Murphy, which mortgage is dated February 17, 1945, and recorded in the office of the Judge of Probate of Baldwin County. The court further held that the debt secured by the mortgage from Daisy Opal Taylor and Morris Taylor, her husband, to H. M. Parsons dated November 15, 1946, and recorded in the office of the Judge of Probate of Baldwin County, Alabama, was paid by Morris Taylor to H. M. Parsons during his lifetime and that the heirs of H. M. Parsons, deceased, have no claim against said property under said mortgage. The court further held that at the time of the execution and delivery of the deed from Daisy Opal Taylor and Morris Taylor, her husband, to H. M. Parsons, dated April 27, 1948, and at the time of the execution and delivery of the correction deed from Daisy Opal Taylor and Morris Taylor, her husband, to H. M. Parsons dated May 10, 1948, Morris Taylor was indebted to the Peoples Fertilizer Company, a corporation, the complainant in this cause, and a suit had been filed thereon and that such indebtedness was reduced to judgment in the Circuit Court of Baldwin County on September 27, 1948, and that a certificate of such judgment was filed in the office of the Judge of Probate of Baldwin County and recorded in the office of the Judge of Probate of Baldwin County, such judgment being for $6,342.71 and costs of court.
The court further held that the aforesaid deeds to H. M. Parsons, above referred to, were executed and delivered by Daisy Opal Taylor and Morris Taylor, her husband, and were accepted by H. M. Parsons for the purpose of hindering, delaying or defrauding the Peoples Fertilizer Company, the complainant in this cause.
The court further held that since Morris Taylor is now indebted to the Peoples Fertilizer Company, a corporation, in the sum of $6,342.71 with interest, the land described in the bill of complaint together with the improvements thereon should be sold for the satisfaction of such judgment, unless such judgment with interest thereon is paid *186 within a period of thirty days as set forth in the decree of the court.
In a subsequent decree dated December 12, 1958, the court decreed that since Morris Taylor had failed to comply with the decree of the court rendered on November 4, 1958, in that he has failed to pay the Peoples Fertilizer Company the amount due such company, the register shall proceed to advertise the property and sell the same. Subsequently Margaret Parsons Griffin, Annis Parsons Moorer, Golda Parsons Friedhoff, Nettie Parsons Williams and Vada Parsons Potts, respondents, brought their appeals to this court.
The proof showed in substance the following. John G. Murphy and Nannie Murphy, his wife, conveyed the property described in the bill of complaint to Daisy Opal Taylor on February 28, 1945, Morris Taylor, the husband of Daisy Opal Taylor, testified that he paid the consideration to John G. Murphy and put the title in the name of his wife because at that time he owed money that he was unable to pay and he had the deed to his wife recorded. Daisy Opal Taylor testified that she did not buy the land from John G. Murphy, but it was bought by her husband, Morris Taylor, who paid the consideration and that her husband did not give the property to her. Her husband put the title in her name because he owed some money and she never intended to claim ownership of the land. We do not find in the record where this evidence is contradicted by any one.
On February 17, 1945, Daisy Opal Taylor and Morris Taylor, her husband, executed a mortgage to John G. Murphy to secure an indebtedness of $3,000. The appellants claimed to be the owners of this mortgage through H. M. Parsons, but the debt secured thereby and such mortgage was never shown to have been transferred to H. M. Parsons.
Appellants also claim under a mortgage from Daisy Opal Taylor and Morris Taylor, her husband, to H. M. Parsons dated November 15, 1946. This mortgage was to secure a debt of $2,500. The appellants offered in evidence five $500 notes and chattel mortgages which are payable to H. M. Parsons, but each of which contains recitals that the Baldwin County Bank had the right of foreclosure. Neither this mortgage nor the mortgage first referred to has ever been foreclosed.
The appellee offered in evidence a receipt executed by H. M. Parsons on September 10, 1948, subsequent to the date of both of the above noted mortgages. This receipt says that all mortgages, both on and off the record, have been paid and James Crabtree, who was a witness to such receipt, testified that such receipt was so executed by H. M. Parsons.
The appellants claimed James C. Crabtree was an interested party and therefore his testimony is not admissible because he once owned two acres of the land in question. The two acres mentioned were deeded to him on November 15, 1946, but he reconveyed such land to Daisy Opal Taylor on September 4, 1947.
Morris Taylor testified that he paid the consideration for the conveyance from James Crabtree to his wife and he did not make any gift of the property to her. His wife testified that she was taking the title to this land for Morris Taylor and according to her testimony, she claimed no interest in it.
The suit was filed by the Peoples Fertilizer Company against Morris Taylor on September 22, 1947, and judgment was rendered in its favor on September 27, 1948. This suit was filed on notes executed by Morris Taylor to the Peoples Fertilizer Company, one dated February 26, 1946, and the other dated February 8, 1947. Both of these notes were executed before the alleged fraudulent conveyances, hereinafter referred to, were made and this suit was pending when such deeds were made by Daisy Opal Taylor and Morris *187 Taylor, her husband, to H. M. Parsons on April 27, 1948, and on May 10, 1948.
The instant suit was filed on November 27, 1956, against Morris Taylor, Daisy Opal Taylor and Annis Moorer, as the guardian of H. M. Parsons, a person of unsound mind, claiming fraud in the execution of such deeds.
Morris Taylor testified that he told Mr. Chason about such transaction just before the present suit was filed but he did not tell him about such transaction until after they had double crossed him and had done what they agreed not to do. As stated before, this proceeding was revived against the appellants as heirs of H. M. Parsons and also against the executor of such estate on January 21, 1958. The proof showed that the debt due by Morris Taylor to the appellee had not been paid.
James Crabtree testified that he was at the home of Morris Taylor when the attorney for appellants and H. M. Parsons came there, that he was in an adjoining room with the door open and heard Mr. Parsons tell Morris Taylor that he thought that the attorney had figured out a way for Morris to save his property, that they were to change the title to the property to someone, that Morris Taylor came in and borrowed $20 from him.
Morris Taylor testified that after the original suit was filed by the Peoples Fertilizer Company against him, he made several attempts to unload the property described in the present suit, that just before the first deed to H. M. Parsons was executed, the attorney for the appellants and H. M. Parsons came to his home at night while he was there with his wife and James Crabtree and his wife, that he left the door open and went into an adjoining room to talk to Mr. Parsons and to the attorney, that the attorney told him that his property could be saved. He outlined steps to be taken to effectuate this result.
As a part of the plan Morris Taylor had built a house on the property and had started to build another house. "Parsons was willing to take possession of the land in his name and give me one house for ten years to live in and he would take the other house and rent it out for ten years or to do whatever he wanted to do with it and he also had the use of the land. He would get the revenue out of it and take care of the taxes and at the end of ten years when it was figured that everything had blown over, Mr. Parsons would sell it and we would split the proceeds right down the middle. As a part of the plan it was suggested that from time to time I would give Mr. Parsons a month's rent and he would give me a receipt just to show if investigators should come around investigating the place. I was to pay some rent but it would be returned to me. It was understood that a deed would be prepared and we each were to give the attorney $100.00. My part of the fee was paid that night to the attorney in cash. I didn't have but $80.00 so I borrowed the other $20.00 from James Crabtree."
Morris Taylor further testified that soon after the plan to defeat his creditors, including the Peoples Fertilizer Company, were conceived, he executed a deed and delivered it to H. M. Parsons and that he executed such deed and delivered such deed for the purpose of defeating or defrauding the Peoples Fertilizer Company, one of the creditors at that time. He further testified that soon after the execution of the first deed, it was called to his attention that a mistake had been made in the description and that he executed another deed on May 10, 1948, to H. M. Parsons and that there was no consideration for this deed and that it was executed for the purpose of delaying or defrauding the Peoples Fertilizer Company.
Daisy Opal Taylor testified that she was at home with her husband on or about April, 1948, and that Mr. Crabtree and his wife were present and that the attorney *188 for the appellants came to their home. She was in an adjoining room with the door open and that they called Morris out to talk to him and she heard Mr. Parsons tell Morris that the attorney had figured out a way to save his property. Morris came in later and stated that he owed the attorney $100 and he borrowed $20 from Mr. Crabtree and that soon after that she and Morris executed a deed to H. M. Parsons, conveying the land in question. Her testimony showed that she and her husband executed this deed for the purpose of hindering, delaying or defrauding the Peoples Fertilizer Company from collecting their debt on a suit pending at that time. She testified that she did not reveal the scheme to defraud the Peoples Fertilizer Company until about the time the present suit was filed, about ten years later.
The attorney, as a witness for the appellants, testified that he went to the home of Morris Taylor during the month of February, 1948, for the purpose of collecting an attorney's fee due him in the sum of $25 and that he collected such amount at that time. He testified that James Crabtree was present at that time and that Morris went into the room where James Crabtree was and came out and handed him $20. He had just handed him $5 before he went into the other room. He testified that Mr. H. M. Parsons went with him to the Taylor home on that occasion and that he went to show the attorney where to find Morris Taylor.
We have carefully considered the evidence in this case and think that it supports the allegations of the bill of complaint. When Morris Taylor purchased the property in question from John G. Murphy on February 28, 1945, he was heavily in debt and he decided to put the property in his wife's name. Both Morris Taylor and his wife, Daisy Opal Taylor, testified that this was done to prevent any creditor from levying on such property. While the law may presume that the property is given to a wife when the title is placed in her name, this is only a rebuttable presumption and we do not see how it can be rebutted any stronger than by the man and wife who are involved in the transaction. It is insisted by the appellants in brief that none of the testimony of Morris Taylor or his wife, Daisy Opal Taylor, or of James Crabtree can be considered because of the socalled "dead man's statute".Title 7, § 433, Code of 1940. Their testimony in regard to the transaction with John G. Murphy could not come under the rule of this statute because H. M. Parsons was not a party to this transaction in any respect. Accordingly, it is uncontradicted that the property when purchased belonged to Morris Taylor and would be subject to his debts.
As to the contention that James Crabtree is precluded from being a witness, his only connection with the title was that he bought two acres of land from Morris Taylor on November 15, 1946, but he reconveyed it to Morris Taylor on September 4, 1947. At that time H. M. Parsons had not come into the picture so to speak, and certainly the testimony of James Crabtree would be competent. James Crabtree testified that he dealt with Morris Taylor and both Morris Taylor and his wife, Daisy Opal Taylor, testified that Morris Taylor paid the consideration for the reconveyance and that the property was again taken in the name of Daisy Opal Taylor because Morris Taylor was still in debt. This testimony is uncontradicted. Accordingly the property in question belonged to Morris Taylor as of September 4, 1947, and James Crabtree had no further interest in the property.
When the property was bought by Morris Taylor from John G. Murphy and his wife, he executed a mortgage to secure the purchase price of $3,000. The appellants appear to claim title under this mortgage but not only did the appellants fail to show an assignment of this mortgage to *189 H. M. Parsons, but there was introduced in evidence a receipt dated September 10, 1948, signed by H. M. Parsons and witnessed by J. B. Crabtree, as follows:
As stated James Crabtree was a witness to this receipt and he testified that he saw H. M. Parsons sign the receipt and that he witnessed it at their request. Under this receipt the court accordingly correctly held that the mortgage had been paid and the court's decree which holds that the appellants have failed to establish their title to such mortgage is correct.
The appellants also claim that they have some title under a mortgage from Morris Taylor and his wife to H. M. Parsons which was dated November 15, 1946. As to this mortgage, there was introduced in evidence the receipt referred to above executed by H. M. Parsons on September 10, 1948, wherein it is recited that H. M. Parsons has received of Morris Taylor payment in full of all debts owed to him, including all mortgages on and off the record.
It will be observed that the first mortgage which was dated February 17, 1945, was due and payable $500 every six months or the entire mortgage would have been due in February of 1948. The other mortgage, the one to H. M. Parsons, secured a debt of $2500 and was payable in installments of $500 every six months and would have matured in May, 1949. H. M. Parsons did not die until June 30, 1957. Neither of these mortgages had been foreclosed during that time or approximately nine years from their date. Morris Taylor was still living on the property at the time H. M. Parsons died and their scheme was being carried out until H. M. Parsons lost his mind and his guardian was appointed for him. The guardian knew nothing about the scheme and began to institute proceedings to remove Morris Taylor from the property. It was then that Morris Taylor decided he would reveal the scheme and this suit resulted.
We do not see how all of the testimony of Morris Taylor, Daisy Opal Taylor or James Crabtree should be stricken from the record because of the dead man's statute, which prohibits testimony of an interested party of any transaction with a dead man. Testimony of these three witnesses as to the part played by the attorney for the appellants is certainly admissible testimony. Garrett v. Trabue, 82 Ala. 227, 3 So. 149; Kilgore v. Kimbrell, 231 Ala. 148, 163 So. 896. He could attempt to refute the evidence and he did try to a certain extent but by his own testimony there were some things which he did not deny. He did not deny that he went to the home of Morris Taylor a short time before the deed was executed, that he went there in the night time and found Mr. and Mrs. Crabtree there with Mr. and Mrs. Taylor. He did not deny that they were in an adjoining room and he called Mr. Taylor into the front room to talk to him. He did not deny that H. M. Parsons was there with him. He did not deny that they stayed for some length of time. He did not deny that he collected some money from Morris Taylor that night. In brief, according to his testimony, he agreed with almost all of the testimony given by these three witnesses until it involved him in a scheme to defraud the complainant in this case.
The evidence as given by Morris Taylor and his wife is certainly admissible evidence in that he took the title in his wife's name, when he bought the property from John G. Murphy, because he was in debt. When the suit was filed by the complainant *190 in this cause against Morris Taylor, it resulted in a judgment, as aforesaid. Morris Taylor became afraid of the scheme that he had used up until that time of putting the property in his wife's name and according to his own testimony, he attempted to unload that property. He discussed the matter with H. M. Parsons. On the night in question, we have the legal testimony of Morris Taylor and his wife and James Crabtree that the attorney and H. M. Parsons came to the Taylor home. Certainly James Crabtree would be qualified to state anything that he heard. According to the testimony of James Crabtree he heard H. M. Parsons tell Morris Taylor that he thought that the attorney had figured out a way that Morris Taylor could save his property. The testimony of Morris Taylor as to the scheme which he had figured out is competent testimony since it occurred as a conversation between Morris Taylor and the attorney. There was one completed house and one uncompleted house on the property. According to the scheme Morris Taylor would be allowed to live in the completed house and H. M. Parsons would complete the other house and would rent it out for ten years to get his money back and H. M. Parsons would have the use of the land. It was observed by the attorney that a judgment would not be any good after ten years unless revived and the property could then be sold and they would "split the proceeds right down the middle." The attorney even talked about the matter of rent since a creditor might wonder why Morris Taylor was still living on the property after he had sold it and the plan was that Morris Taylor would pay the rent to H. M. Parsons and H. M. Parsons would give it back.
The testimony further showed that the attorney charged each of the parties $100 for his services in suggesting this scheme. Morris Taylor only had $80 in his pocket so he had to go in and borrow the other $20 from Mr. Crabtree. This is confirmed by John Crabtree. The record is silent as to whether Mr. Parsons ever paid his $100.
It seems likely that this scheme would never have come to light if Mr. Parsons had not lost his mind and it did not come to light for almost ten years.
In connection with the foregoing we think it well to refer to a number of propositions of law. We first refer to § 7, Title 20, Code of 1940, which in part provides that all conveyances in writing of any estate or interest in real property made with intent to hinder, delay or defraud creditors of their lawful debts, are void.
Any transfer of real property which is merely a simulated assignment or conveyance behind which a debtor may hide to enjoy the use of the property is void. In the case of Wolcott v. Titus, 238 Ala. 342, 191 So. 383, 385, it is stated:
This court has held that transactions to defeat creditors are viewed by the court with disfavor and the statute therefore should receive a liberal construction. Galloway v. Shaddix, 197 Ala. 273, 72 So. 617.
We further wish to note that in offering testimony on the trial of this cause, § 372(1), Title 7, 1955 Cumulative Pocket Part, Code of 1940, was observed with respect to objections to evidence. The court did not specially rule on the legality of any evidence, but under this statute we presume that the court considered evidence that was relevant, material, competent and legal. We must uphold the findings by the court when there is legal evidence before the court as if it were the verdict of a jury notwithstanding § 17, paragraph 1, Title 13, Code of 1940. Dougherty v. Hood, 262 Ala. 311, 78 So. 2d 324.
Finally as we have often stated, where the trial court saw the witnesses and heard their testimony ore tenus, the decree of the court is presumed to be correct unless it is palpably wrong. Lovelace v. McMillan, 265 Ala. 290, 90 So. 2d 822.
We have reached the conclusion that the decree of the court was correct and should be upheld.
Affirmed.
All the Justices concur. | October 15, 1959 |
45504b95-2a86-47c5-b280-4109ed09dd1b | Cook v. State | 115 So. 2d 101 | N/A | Alabama | Alabama Supreme Court | 115 So. 2d 101 (1959)
E. L. COOK, alias,
v.
STATE of Alabama.
4 Div. 811.
Supreme Court of Alabama.
October 15, 1959.
*102 Smith & Smith, Phenix City, and Walker & Walker, Opelika, for appellant.
John Patterson, Atty. Gen., and Robt. Straub, Asst. Atty. Gen., for the State.
LIVINGSTON, Chief Justice.
E. L. Cook was indicted and tried in the Circuit Court of Russell County, Alabama, for the murder of John Mancil. Defendant interposed a plea of not guilty. The jury returned a verdict of guilty of murder in the first degree and fixed punishment at life imprisonment in the state penitentiary. The court adjudged and sentenced the appellant accordingly, and from such judgment this appeal is taken.
The judgment of conviction was entered on October 14, 1954, and an appeal was taken the same day. A motion for a new trial was filed on October 15, 1954, and was denied on June 28, 1955. The court reporter filed the transcript of testimony with the Clerk of the Circuit Court of Russell County on the 23rd day of July, 1955. The state has made a motion to strike the transcript of testimony in that it was not filed within the sixty days allowed for the taking of an appeal as provided for in Sec. 827(4), Title 7, Code of Alabama 1940, Cum.Pocket Part.
Although not controlling in this case, Sec. 827(4) has been amended several times, the last time by Act No. 97, Gen. Acts 1956, pp. 143-144. In pertinent part, it now reads:
But the same result has been reached without benefit of the amendment. See Koger v. State, 38 Ala.App. 476, 87 So. 2d 552. The transcript of testimony was *103 filed well within sixty days from the ruling on a motion for a new trial. The state's motion to strike is denied.
The state's evidence tended to show that on Sunday afternoon about 3:00 p. m., August 6, 1950, the deceased, John Mancil, and his uncle, William C. Rogers, visited the 601 Club in Phenix City, Alabama. The 601 Club was a membership club in Phenix City, and appellant was a partner in, and the operator of, the Club. The deceased took part in a blackjack game and played for approximately 30 minutes. A discussion took place between the deceased and appellant, and the deceased left the game and the 601 Club. The deceased and Rogers rode around for awhile and returned to the 601 Club at approximately 6:00 p. m. During his absence, some alcohol was consumed by the deceased, but the testimony as to the quantity was in conflict. Upon returning to the 601 Club, the deceased purchased a half-pint of whiskey, sat down at a table and started to drink. After several drinks, deceased got up and engaged in a dice game. While so engaged, the deceased became involved in an argument, quit the dice game and returned to the table. At this point, the evidence is in conflict.
The state's evidence further tends to show that while the deceased was sitting at the table, the appellant approached with a pistol and after ordering the deceased and Rogers to get out, started shooting. The state's evidence further shows that neither deceased nor Rogers made a move toward appellant or threatened him in any way.
The defendant on the other hand contends that the deceased and Rogers were too drunk to shoot dice and were using profanity. The defendant asked them to "quiet down and quit cursing." When they persisted in their conduct, defendant went to the office, got his pistol, came back and said, "I have done asked you men to leave and I mean you are going to leave now." Then, according to appellant, the deceased stepped up with a chair in his right hand and Rogers had a knife in his right hand and a chair in his left hand. They started advancing on appellant who shot one time into a post. When that didn't stop them, he fired, killing the deceased and wounding Rogers. Appellant called an ambulance and the police, and when the Chief of Police arrived, surrendered to him.
Before proceeding to a discussion of the several propositions of law raised and argued for a reversal of this cause, and for a better understanding of this opinion, we think it not amiss to here state some of the background and uncontradicted facts in the case and facts within the judicial knowledge of this Court.
Albert L. Patterson, long a resident citizen of Phenix City, Russell County, Alabama, was the Democratic Nominee for the office of Attorney General of the State of Alabama, in the May 1954 Democratic Primary election. During his campaign for Attorney General, Patterson made statements and distributed literature over the State of Alabama and in Phenix City, Alabama, pledging to eradicate gambling and other vices in the state, and particularly in Russell County and Phenix City, Alabama.
Patterson was killed on the night of June 18, 1954, at about 9 o'clock p. m.
On June 25, 1954, the Chief Justice of this Court ordered that a special session of the Circuit Court of Russell County, Phenix City, Alabama, be held, beginning Wednesday, June 30, 1954, reciting that on account of the recent killing of Albert L. Patterson in Russell County, Alabama, it is advisable that a circuit judge outside of said circuit be assigned for duty to conduct the court at said session, and the public good requiring it, the Chief Justice ordered the Honorable Walter B. Jones, Judge of the Fifteenth Judicial Circuit, Montgomery, Alabama, to appear at Phenix City, Alabama, on Wednesday, the 30th *104 day of June, 1954, to conduct the business of the court in said special session, which includes the empaneling of the grand jury for the purpose of investigating the death of the said Albert L. Patterson, and to empanel petit juries to serve at said special session and for the transaction of such other business of the court as may be presented to it, and reciting further that the Honorable Walter B. Jones shall have the full authority of the regular circuit judge of said circuit, and it shall continue until the business of the court is finally disposed of.
On July 9, 1954, the Chief Justice made another order which recites that:
On July 17, 1954, Judge Jones discharged the regular grand jury theretofore empaneled, which was then in recess. On July 19, 1954, Judge Jones drew and ordered summoned jurors from which to select another grand jury and ordered them summoned for appearance at Phenix City on July 21, 1954. These jurors were served by H. Ralph Mathews, Jr., the then Sheriff of Russell County, Alabama. On July 21, 1954, a new grand jury was organized and empaneled, and recessed until August 9, 1954.
On July 22, 1954, the Governor of Alabama, as Governor of Alabama and Commander-in-Chief of the Alabama National Guard proclaimed a state of qualified martial rule in Russell County, Alabama. The proclamation was as follows:
On August 9, 1954, Judge Jones ordered highway patrolmen Holland and Stone to act as bailiffs for the grand jury.
On August 24, 1954, H. Ralph Mathews, Jr., resigned as Sheriff of Russell County, Alabama, and on the same date the Governor appointed M. Lamar Murphy as Sheriff of Russell County, Alabama, and his commission as such sheriff was issued on the 30th day of August, 1954.
On the 30th day of August 1954, the grand jury made a partial report to Judge Jones, containing the following:
"From testimony before us, it appears that there has been no serious, continuous or respected effort heretofore made on the part of law enforcement officials of Phenix City and Russell County to stamp out or abate this condition, but that passive acquiescence was given on the part of those in authority and charged under oath, as a matter of law, with the duty of stamping out this condition and bringing to justice through criminal prosecution the infamous and nefarious individuals responsible for this condition. To us it appears that such condition has been allowed to remain and flourish unmolested until it has become an infamous and carbuncle on the society of the great State of Alabama, spraying its poisonous corruption and inviting an assemblage of criminals and creating an atmosphere for the commission of the other class of crimes, which usually follow when gambling affects an area. As a result of our investigations, we herewith return into this court 545 Indictments, which include both felony and misdemeanor charges."
Among the indictments returned by the grand jury was one charging H. Ralph Mathews, Jr., the Sheriff of Russell County, Alabama, with willful neglect of duty.
On December 8, 1954, the said H. Ralph Mathews, Jr., entered a plea of guilty to the charge of willful neglect of duty as such sheriff.
On December 9, 1954, Albert Fuller, the Chief Deputy Sheriff of Russell County, was indicted by the Grand Jury of Russell County for the murder of Albert Patterson, and was later convicted on said charge. Albert Fuller was also indicted by the grand jury on a charge of accepting a bribe in Russell County and tried and convicted on the charge.
Much more could be said, but clear enough, the foregoing indicates the utter *106 chaotic and unlawful conditions existing in Russell County and Phenix City, Alabama, at the time the Governor proclaimed partial military rule in said county. It also clearly indicates that the sheriff and his deputies were wholly unable or unwilling to enforce the law.
When appellant's case was called for trial on October 4, 1954, with the Honorable Walter B. Jones presiding as circuit judge, the appellant objected "to being placed on trial at said term, and in the then presence," assigning orally and in writing 119 grounds of objection. The appellant also moved for a continuance, assigning the same grounds contained in the objection.
It is to be noted that the appellant made no application for a change of venue under Sec. 267 of Title 15, Code of 1940. As we understand appellant's objections to going to trial, they are based entirely on the results of the "Governor's Proclamation of Qualified Military Rule" and the Chief Justice's order directing Honorable Walter B. Jones to hold a special term of the Russell County Circuit Court, and his order authorizing him to preside at both the special and the regular term of the Circuit Court of Russell County, Alabama.
We do not have here a case in which it is urged that the state militia was in any way the trier of facts, nor that the militia either arrested or held the defendant, nor that he was being tried by a military tribunal as distinguished from the civil authorities. The record conclusively shows that the grand jury which returned the indictment against the appellant was drawn and organized by the orders of Judge Jones, and its members were summoned to appear by the the then Sheriff of Russell County, H. Ralph Mathews, Jr., that the petit jury was drawn by Judge Jones, and served to appear by M. Lamar Murphy, who was then the Sheriff of Russell County, and that Judge Jones empaneled the petit jury which tried the appellant. As we understand it, the defendant objected to being put to trial on two grounds: first, the presence of the Honorable Walter B. Jones, who appellant claimed had no authority to preside at said trial, and, second, the presence of the state militia in Russell County, Alabama, in Phenix City, and in the Russell County courthouse, in compliance with the Governor's Proclamation.
The court takes judicial knowledge of the several commissioned officers of the state, the term of their office, extent of their authority, and the signature of clerks of the circuit courts. Buckner v. Graves, 210 Ala. 294, 98 So. 22. Averments inconsistent with such judicial knowledge are negatived thereby. State ex rel. Glenn v. Wilkinson, 220 Ala. 172, 124 So. 211, and cases therein cited.
As a consequence, this Court takes judicial knowledge that the Honorable Walter B. Jones, is, and was, at all times pertinent to this inquiry, a Judge of the 15th Judicial Circuit of Alabama. We also take judicial knowledge of the fact that H. Ralph Mathews, Jr., was the Sheriff of Russell County, Alabama, on June 18, 1954, the date on which Albert Patterson was killed, and that said Mathews resigned on August 24, 1954, and that M. Lamar Murphy was appointed Sheriff of Russell County, Alabama, by the Governor on August 24, 1954, and his commission was issued on August 30, 1954.
The record before us shows that M. Lamar Murphy, the then Sheriff of Russell County, summoned the petit jurors from which was selected the jury to try this appellant.
In essence, the objections concerning the order of the Chief Justice are to the effect that Judge Jones had no authority to preside over the Circuit Court of Russell County, Alabama.
There can be no sort of doubt that the Circuit Court of Russell County is, and was, a legal court. Indeed, no claim to the contrary is here made.
*107 Circuit courts are always open for business within time limited by statute, and time for a transaction of business of court within such limits is left with the circuit judges. Title 13, Sec. 114, Code of Alabama 1940.
If, as argued, Judge Jones was not in fact a judge at the time and place, that proposition could only be raised or sustained in a direct proceeding against Judge Jones in which he is a party. Here, the objection was made to Judge Jones himself. Judge Jones was called upon to decide whether or not he was a qualified judge. This was a question only a judge could answer. The rule is that to determine the competency of the judge to act in a given case, the party objecting must bring an action in which the judge himself is a party. The question cannot be determined in a proceeding before the judge being questioned, or on appeal. Spradling v. State, 17 Ala. 440; Winn v. Eatherly, 187 Miss. 159, 192 So. 431; Wright v. State, 3 Ala.App. 24, 58 So. 68.
Aside from this procedural question, and laying to one side the question of the legality vel non of the orders of the Chief Justice, Judge Jones being the duly elected and qualified Judge of the 15th Judicial Circuit, his jurisdiction as a circuit judge is coextensive with the state, and he has official authority and power in one county as in another. City of Mobile v. Grayson, 220 Ala. 349, 125 So. 221; State ex rel. Montgomery v. Merrill, 218 Ala. 149, 117 So. 473; and Board of Education of Escambia County v. Watts, 19 Ala.App. 7, 95 So. 498. It is, therefore, clear enough that there is nothing in the record to show that Honorable Walter B. Jones was not legally authorized to preside over the Circuit Court of Russell County, Alabama, at all times pertinent to this inquiry.
So far as the legality of the Governor's Proclamation is concerned, the defendant is in no position to raise that question unless he is affected by it. Here, as stated above, for aught appearing, the state militia, under the Governor's Proclamation, has not dealt with the defendant in any manner whatsoever. But appellant insists that his constitutional rights will be violated if he is put to trial while the state militia is on duty in Russell County under the Governor's Proclamation.
Appellant's grounds for objecting to being put to trial, so far as they were based on the Governor's Proclamation, seem to take the position that he was denied a trial by due process of law guaranteed him by both the state and federal constitutions. Specifically, he argues that the Governor's Proclamation deprived the court of the arm of a civil sheriff and that the court cannot constitutionally function without a sheriff. The position cannot be sustained for several reasons. First, M. Lamar Murphy was the Sheriff of Russell County when the defendant was tried, and was appointed by the same Governor that issued the proclamation after Ralph Mathews, Jr., had resigned the office of Sheriff of Russell County. The record clearly demonstrates it, and moreover, we do judicially know it. In the second place, if Military officers had wrongfully and illegally intruded into and usurped the office of Sheriff of Russell County, quo warranto was the proper method of attack and not a mere objection to being put to trial. Furthermore, we are cited to no authority, nor has our search revealed any, to the effect that a circuit court cannot constitutionally function without the aid of a sheriff.
Another argument is that the presence of the state militia in Phenix City and Russell County so intimidated and overawed the court, the court officials, and the public generally, to such an extent that the appellant was denied a fair trial by due process of law.
The simple answer to this argument is, a change of venue to another county. The appellant did not apply for such a change of venue. Presumably, he was willing *108 to speculate on a favorable verdict of a jury in the county of his residence and where the crime for which he was tried took place. Others charged with crime by the same grand jury which indicted this appellant were granted a change of venue and were tried elsewhere.
The appellant attempts to put the burden on this court of deciding as an abstract proposition of law whether or not the proclamation of the Governor was legal. That question is not presented to this Court under any legal procedure of which we are aware.
It is well settled that under the procedure of this jurisdiction the continuance of a cause is lodged in the discretion of the trial court, and we will not review the exercise of that discretion unless there is a palpable abuse of it. Ala.Dig.Criminal Law:' 586. Upon the record before us, we cannot say that the trial court abused his discretion in this case.
Judge Jones appointed Stone and Holland, Highway Patrolmen, to attend the grand jury as bailiffs. Sec. 186, Title 13, Code of 1940, provides that the sheriff of the county must appoint one person to serve as bailiff of the grand jury. This Court has held that this section allows sheriffs no discretion and leaves appointment of bailiffs solely to the court's discretion. Ward v. State ex rel. Goldsmith, 17 Ala.App. 170, 82 So. 660, certiorari denied 203 Ala. 306, 82, So. 662. See also Ex parte Strobach, 49 Ala. 443; Stokes v. City of Montgomery, 203 Ala. 307, 82 So. 663; State ex rel. Farmer v. Haas, 239 Ala. 16, 194 So. 395.
The appellant complains that the statutes were not properly followed in the drawing and summoning of the jurors in this case. Apparently fifty jurors had been summoned to appear at a session of the civil court on the same day appellant's trial was set. These jurors were discharged and not used, and fifty other jurors were drawn, plus thirty special jurors, making a total of eighty jurors drawn from which the state and the appellant could make their selection. In the case of Courington v. State, 20 Ala.App. 581, 104 So. 341, certiorari denied Ex Parte Courington, 213 Ala. 163, 104 So. 343, the trial court did not draw any regular venire for the week of that defendant's trial. The court held that the fact that no regular venire was drawn was not ground for reversible error. It will be noted that appellant had eighty names from which to choose. That number is well above the minimum set by the statute. The motion to quash was properly overruled.
Appellant's next objection is that it was error to allow the introduction of the bullet which wounded the witness Rogers and to allow a description by one Dr. Elkins as to where the bullet was lodged in the body of Rogers. The basis for appellant's objection is that it was not relevant to the issue of whether the appellant shot the deceased in self-defense. To this, we cannot agree. It was shown that Rogers was wounded during the same difficulty which caused the death of deceased Mancil. The evidence showed that he was shot during the same burst of gunfire. As a general rule, it is permissible to show all that transpired at the time of the difficulty as constituting part of the res gestae. The fact that the bullet which killed deceased was not introduced into evidence does not of itself render inadmissible a bullet fired during the same difficulty which struck another person. Grissett v. State, 241 Ala. 343, 2 So. 2d 399; Moulton v. State, 19 Ala. App. 446, 98 So. 709, certiorari denied Ex Parte Moulton, 210 Ala. 656, 98 So. 715. We cannot say that the exhibition of the bullet which struck Rogers was to prejudice the jury against the defendant. Grissett v. State, supra; Floyd v. State, 245 Ala. 646, 18 So. 2d 392; Langley v. State, 32 Ala.App. 163, 22 So. 2d 920, certiorari denied 247 Ala. 176, 22 So. 2d 923.
Appellant next insists that because the state brought out from appellant's witness, *109 Duffey Roberts, that he had heard a great deal about this case while Roberts served on the grand jury in October, 1950, the appellant should be allowed to introduce all that transpired at the grand jury session. We quote from the transcript:
The theory of the appellant is that the state having brought out a part of the transaction with respect to the grand jury of 1950, the appellant on redirect examination was entitled to go into the entire transaction. The mere fact that a conversation or transaction took place does not in a trial give either side the right to bring out the conversation or transaction. To do so would cause either party to be at the mercy of a hostile witness on cross-examination. Should we adopt the appellant's line of reasoning it would appear that any time the fact of a conversation was elicited, the other party could put into evidence the contents of the conversation, no matter how objectionable. This we do not perceive to be the rules of evidence in this state. We are not here concerned with the rule of completeness. Part of the conversation or transaction is not in evidence. Therefore, it was not error to exclude what took place on the grand jury. Nellis v. Allen, 268 Ala. 259, 105 So. 2d 659; Jones v. Central of Ga. R. Co., 204 Ala. 148, 85 So. 428.
The appellant contends that it was error to allow that state to ask defendant's witness, Mrs. Leila Mae Smith, on cross-examination, where she had worked prior to her employment at the 601 Club. There is no merit in this. Conceding that it was error, we do not see how the answers could prejudice this appellant. The witness merely gave the places of her employment prior to going to work for the 601 Club. Error is not presumed on review and the appellant must show that error substantially injures the rights of the accused. Garrett v. State, 248 Ala. 612, 29 So. 2d 8; Slayton v. State, 234 Ala. 9, 173 So. 645; Wilson v. State, 31 Ala.App. 21, 11 So. 2d 563, certiorari denied 243 Ala. 671, 11 So. 2d 568.
Refused Charges.
Written charge 5 was condemned in Cauley v. State, 33 Ala.App. 557, 36 So. 2d 347, certiorari denied 251 Ala. 163, 36 So. 2d 354. What was said there is in conformity with our views. Francis v. State, 188 Ala. 39, 65 So. 969.
Charge 7 was adequately covered in the trial court's oral instructions to the jury.
Charge 13 invades the province of the jury and ignores the fact that the jury may also find the appellant was not free from fault.
Charge 14 is bad in that it ignores the question of freedom from fault. If given, the jury was authorized to find the appellant not guilty even though he may have been instrumental in bringing on the affair which resulted in the death of John Mancil. Sanders v. State, 243 Ala. 691, 11 So. 2d 740; Griffin v. State, 28 Ala.App. 314, 184 So. 206, certiorari denied 236 Ala. 584, 184 So. 208.
Charge 16 was condemned in Gipson v. State, 262 Ala. 229, 78 So. 2d 293.
Charge 6 is abstract. There was no evidence that this appellant was at his home. It is also faulty in that it ignores the question of the appellant being in a lawful place of business. There was much evidence by both the state and the appellant that gambling was one of the primary functions of the 601 Club. This *110 Court takes judicial notice of the fact that public gambling or running a gaming table is illegal. Title 14, Sec. 263 et seq., Code of Alabama 1940. Under the reasoning of Hill v. State, 194 Ala. 11, 69 So. 941, 2 A.L.R. 509, we must consider the business illegal and the doctrine of retreat applicable.
Finding no error in the record, the judgment is due to be affirmed.
All the Justices concur. | October 15, 1959 |
c9e24408-aa3c-4986-b8b1-b405ac17321a | Long v. Hirs | 116 So. 2d 605 | N/A | Alabama | Alabama Supreme Court | 116 So. 2d 605 (1959)
Laurie Virginia LONG
v.
Louise B. HIRS.
1 Div. 841.
Supreme Court of Alabama.
December 17, 1959.
*607 Caffey, Gallalee & Caffey, Mobile, for appellant.
Vincent F. Kilborn, Mobile, for appellee.
LAWSON, Justice.
This is an appeal by Laurie Virginia Long from a decree of the Circuit Court of Mobile County, in Equity, sustaining demurrer to that aspect of her bill as last amended which seeks enforcement of an option to repurchase certain property from the respondent, Mrs. Louise B. Hirs.
Mrs. Long owned a lot and the building thereon known as 1662 Government Street, Mobile, Alabama, subject to a vendor's lien held by one Evans.
Evans pressed Mrs. Long for payment. She made efforts to borrow money with which to satisfy Evans. To that end she approached one Doney, a real estate broker. Doney apparently contacted the respondent, Mrs. Hirs, who on July 8, 1955, directed a communication to Doney, which is made Exhibit B to the bill as last amended.
In Exhibit B Mrs. Hirs agreed to pay Mrs. Long $22,000 for the suit property; to lease the property to Mrs. Long for a primary term of five years, with an option to re-lease for a secondary term of five years, at a monthly rental of $300; and to grant an option to Mrs. Long "to re-purchase the above premises for Twenty Three Thousand ($23,000.00) Dollars cash at any time after one year of the primary lease period has run, or within the first year of the primary lease period, on payment of the rental under the lease for that period remaining in the first year under the primary lease period."
Mrs. Long accepted the offer on July 9, 1955.
Thereafter, Mrs. Hirs' attorney prepared a warranty deed for Mrs. Long's execution and a written agreement which embodied a lease and option to re-purchase. The deed was executed by Mrs. Hirs on August 3, 1955. Contemporaneously with the execution of the deed Mrs. Long and Mrs. Hirs executed the said written agreement which was made Exhibit A to the bill as last amended. Paragraphs 3, 4 and 5 of the said written agreement (Exhibit A) will be set out in the report of the case.
*608 Mrs. Long paid the rent within the first five days of every month of the first year of the lease and observed each condition of the lease during that year, so that her right to repurchase during that year was maintained.
But Mrs. Long apparently defaulted in August, 1956. In September, 1956, Mrs. Hirs went into possession of the property and her possession continued to the time of the filing of the original bill on August 27, 1957.
Mrs. Long wants her property back. In her bill as last amended she sought to achieve that end on two theories. First, she sought to have the deed of August 3, 1955, and the said written agreement executed simultaneously therewith declared to be a mortgage and that she be permitted to redeem. Second, in the alternative, she sought a decree of "specific performance by respondent of the option provided in Exhibit B, hereto attached as the same is embodied in Exhibit A."
Demurrers addressed to the amended bill as a whole and to that aspect seeking to have the deed and written agreement of August 3, 1955, declared to be a mortgage were overruled and, of course, Mrs. Long cannot complain of such rulings.
Mrs. Long's complaint here, as shown at the outset of this opinion, is with that part of the decree of the trial court which, in effect, sustained Mrs. Hirs' demurrer addressed to that aspect of the amended bill which sought specific performance of the option to repurchase.
The bill as last amended must be construed as showing that Exhibit B was wholly extinguished by the execution of Exhibit A, the written agreement of August 3, 1955, which is the final agreement between the parties and the only one upon which Mrs. Long is entitled to rely. The rule declaring all prior negotiations merged into the written contract purporting to cover the entire transaction has application here. W. T. Rawleigh Co. v. Cone, 232 Ala. 127, 167 So. 274.
The whole tenor of Exhibit A requires prompt payment within the first five days of a month of the monthly rental and faithful observance of all lease provisions during the prior month, as the essence of Mrs. Long's right to renew the "month-to-month purchase options."
Paragraph 3 of Exhibit A, in our opinion, deals with the conditions on which month-to-month options are granted during the entire primary term.
Paragraph 4 of Exhibit A, upon which Mrs. Long places emphasis, deals with the purchase price. It says that if the first year's month-to-month options have been continued until August 1, 1956, then, on and after August 1, 1956, the monthly options shall extend month-to-month thereafter to buy at $23,000 instead of $25,600.
We do not think it can be logically argued that Exhibit A gave a continuing option for the last four years of the lease wholly apart from the obligation to pay rent promptly on or before the fifth day of each month of each year of the lease. There were no monthly options except those granted on prompt payment of the rent for that month.
No allegations of the bill as last amended show the options were kept in force by payment of rent in the prescribed manner. No allegations are made that rent was paid for the month of August, 1956, and subsequent months, or that the lease conditions were observed for August and later months.
We hold, therefore, that the trial court correctly sustained the demurrer addressed to that aspect of the bill as last amended, which sought specific performance of the option to repurchase.
The decree of the trial court is affirmed.
Affirmed.
LIVINGSTON, C. J., and STAKELY and MERRILL, JJ., concur. | December 17, 1959 |
0025b54e-b823-48f5-b15c-4221e7df668b | State v. Fourth National Bank of Columbus, Ga. | 117 So. 2d 145 | N/A | Alabama | Alabama Supreme Court | 117 So. 2d 145 (1959)
STATE of Alabama for Use of RUSSELL COUNTY, et al.,
v.
FOURTH NATIONAL BANK OF COLUMBUS, GA., as Executor, et al.
4 Div. 980.
Supreme Court of Alabama.
December 17, 1959.
*147 Jas. H. Caldwell, Circuit Sol., Phenix City, for appellants.
Bowen H. Brassell, Phenix City, for appellees other than Greene.
Hill, Hill, Whiting & Harris and John O. Harris, Montgomery, for appellee Greene.
LAWSON, Justice.
This suit was instituted by the Solicitor of the Twenty-sixth Judicial Circuit in the name of the State of Alabama for the use and benefit of Russell County and in the name of Russell County against the Fourth National Bank of Columbus, Georgia, as executor of the estate of J. B. Parkman, deceased; Oscar E. Cole; Austin A. Dudley; C. A. Davis; Robert C. Greene, doing business as Valley Construction Company; and the Maryland Casualty Company.
In essence the purpose of the suit is to recover for Russell County monies alleged to have been illegally expended, the illegality consisting of the failure to advertise for bids for road construction performed on behalf of Russell County.
J. B. Parkman and the respondents Oscar E. Cole and Austin A. Dudley were members of the County Commission for Russell County, and authorized the alleged illegal payments to the respondents Davis and Greene, road contractors. Maryland Casualty Company was the surety on the official bonds of Parkman, Cole and Dudley.
Demurrer of the respondents other than Robert C. Greene was sustained on September 18, 1958. The amended demurrer of the respondent Robert C. Greene was sustained on September 30, 1958. The complainants took an appeal to this court on October 3, 1958. The certificate of appeal was filed here on October 31, 1958.
Submission in this court, on March 26, 1959, was on the merits, on appellants' motion for extension of time within which to file the transcript of the record in this court, on appellee Greene's objections to appellants' motion for extension of time, and on the motion of the other appellees to strike the transcript of the record.
Section 769, Title 7, Code 1940, provides that in equity cases the appellant shall file the transcript (full record) in the office of the clerk of this court within sixty days from the date of the taking of the appeal.
Revised Rule 37 of this court, Code 1940, Tit. 7 Appendix, as amended, reads:
In regard to appeals submitted in this court prior to June 1, 1955, the effective date of the revised rules of this court, we construed § 769, Title 7, Code 1940, as not requiring the dismissal of an appeal from a decree in equity where the transcript was not filed here within sixty days from the date of the taking of the appeal if the transcript was on file and the cause ready for submission on the merits at the first call of the division from which the appeal came. McCoy v. Wynn, 215 Ala. 172, 110 So. 129; Hinson v. Cook, 241 Ala. 70, 1 So. 2d 33; Collins v. Thompson, 259 Ala. 82, 65 So. 2d 491; Franks v. City of Jasper, 259 Ala. 641, 68 So. 2d 306. Submissions on brief as well as on oral argument were then taken at the calls of the several divisions and hence if the transcript was on file prior to the call of the division from which the appeal came, the failure to file the transcript within the sixty-day period did not work any delay.
But under our revised rules, in the absence of a request for oral argument, made in the manner provided, when briefs from all parties have been properly filed with the clerk of this court, the clerk must "immediately submit the case in term time upon the transcript and such briefs." Revised Rule 4; 261 Ala. XXI.
Hence, a failure to file the transcript within the sixty-day period under the revised rules could result in delay of the submission in this court. Therefore, the rule of the cases last cited above can have no application in determining whether the transcript has been timely filed within the meaning of Revised Rule 37, as amended. The mere fact that the transcript is on file in the office of the clerk of this court before the first call of the division from which the appeal comes will not operate to bar dismissal of the appeal where there has been a failure to file the transcript within the time prescribed in said Rule 37, as amended.
A transcript not filed in the office of the clerk of this court within the time prescribed in Revised Rule 37, as amended, will be stricken and the appeal dismissed where no extension of time for filing the transcript in this court has been obtained in the manner and within the time prescribed in that rule. Harbin v. O'Rear, 264 Ala. 190, 86 So. 2d 279; Donahoo v. Kerns, 265 Ala. 24, 89 So. 2d 270; Underwood v. Estes, 267 Ala. 406, 103 So. 2d 18; Hornbuckle v. State, 268 Ala. 347, 105 So. 2d 864; Wanninger v. Lange, 268 Ala. 402, 108 So. 2d 331.
*149 This being an equity case and the appeal having been taken on October 3, 1958, the transcript was due to be filed here not later than December 2, 1958. It was not filed by that time.
On December 2, 1958, the solicitor and one of the attorneys who had appeared on behalf of the respondents other than Robert C. Greene, joined in filing a motion requesting the "court" to extend the time for filing the transcript in this court for a period of thirty days.
The attorney who had filed separate demurrer on behalf of the respondent Robert C. Greene did not join in the motion.
The circuit judge to whom the motion for extension of time was presented recused himself. He had filed demurrers on behalf of some of the respondents and was appointed circuit judge after the decrees sustaining the demurrers were entered.
Counsel for the parties not being able to agree on a special judge, the register appointed a special judge under the provisions of § 124, Title 13, Code 1940, to act on the motion for extension of time within which to file the transcript in this court.
On December 22, 1958, following a hearing on the petition to extend time for filing the transcript, the special judge entered two separate decrees, one of which appears to deny the petition in all respects. But when the two decrees are considered together, it is made to appear that the trial court in fact decreed that the time for filing the transcript be extended for a period of thirty days until, to wit, January 2, 1959, "as to all matters of an appeal between the complainant and the respondents except Robert C. Greene * * *" As to the respondent Robert C. Greene, the petition for extension of time within which to file the transcript in this court was denied.
The transcript was filed on December 24, 1958. On the same day the appellants filed a motion requesting this court "to grant to the appellants twenty-two days as additional time to and including the 24th day of December, 1958, (the date of filing of said record in this court) within which to file the transcript of the record with the Clerk of this Court, as to appellee, Robert C. Greene, doing business as Valley Construction Company; additional time as to the remaining five appellees have [sic] already been granted by the trial court."
It was on January 2, 1959, that the appellee Robert C. Greene, through his counsel, filed in this court his "objections to motion for an extension of time to file the transcript of the record." And on the same day the appellees other than Robert C. Greene filed in this court their motion to strike the transcript theretofore filed in this court on December 24, 1958, on the ground that the transcript was not filed within the time required by Supreme Court Rule 37, as amended, and on the further ground that a copy of the transcript served upon movants does not contain a copy of the assignments of error.
The appellees other than Robert C. Greene having consented to and in fact having asked for the order of extension, cannot be heard in this court to say that the transcript was not filed within the time required by Supreme Court Rule 37, as amended, when it was filed within the extended period of thirty days as decreed by the special judge in regard to said appellees.
There is no requirement that the copy of the transcript served upon the appellee contain a copy of the assignments of error. Supreme Court Rule 1 provides that assignments of error shall be written or typed upon transcript paper and bound with the transcript and shall bear the certificate of appellant, or his counsel, that a copy of the same has been served upon the appellee or his counsel. The assignments of error in this case are typed upon transcript paper, which has been bound with the transcript of the record. The assignments of error are followed by a certificate of counsel who represents the appellants *150 to the effect that counsel for all appellees were served with a copy of the assignments of error. This certificate complies in all material respects with the requirements of Supreme Court Rule 1. The contents of the certificate stand undisputed.
The motion to strike the transcript of the record filed by the appellees other than Robert C. Greene is overruled.
We come now to consider the appellants' motion or application to this court for an order extending the time for the filing of the transcript so as to include December 24, 1958, the day on which the application and transcript were filed in the office of the clerk of this court.
The fact that the special judge refused to extend the time for filing the transcript does not affect our right to extend. Taylor v. Peoples Fertilizer Company, Ala., 117 So. 2d 180.
The application for extension was filed in this court prior to submission on a petition in writing, of which counsel for appellees had more than ten days notice. Although such an application is properly filed here before submission of the appeal, our action on the application does not have to be taken prior to submission. City of Athens v. Cook, Ala., 113 So. 2d 133.
We can extend the time for filing the transcript for as long as we deem proper under the circumstances of the particular case, since Supreme Court Rule 37, as amended, does not limit us in that respect. City of Athens v. Cook, supra.
Have the appellants shown good cause for the extension for which they pray?
We are of the opinion that this question should be answered in the affirmative.
Section 767, Title 7, Code 1940, provides:
The register secured the services of the court reporter to make up the transcript in this case. The court reporter did not begin work on the transcript until about fifteen days before the time the transcript was due to be filed in this court in the absence of an order of extension.
The court reporter did not finish his work until Tuesday, November 25, 1958, when he deposited the unbound transcript on the desk of the register. Neither the court reporter nor the register ever gave any formal notice to the solicitor that the transcript was completed for filing in this court. In fact, the transcript had not been bound on the day of the hearing of the motion which, as shown above, was on December 22, 1958.
Although he admitted that he did not notify the solicitor that the reporter had completed his work, the register states that it is his best recollection that the solicitor saw the transcript in its uncompleted state on the register's desk on Wednesday, November 26, 1958. The solicitor states that he did not see the transcript on that occasion.
According to the solicitor, he did not learn that the court reporter had finished his work on the transcript until Monday, December 1, 1958, at which time he was *151 given a copy of the transcript bearing the register's certificate under date of November 25, 1958. The court reporter is not certain as to whether the solicitor made inquiry of him in regard to the transcript on Friday, November 28, or Monday, December 1, 1958. It seems clear to us, however, that the court reporter's conversation with the solicitor did not take place until Monday, December 1.
An appellant is under the duty of seeing that his appeal is perfected according to the requirements of the statutes and rules of court. Jefferson Iron & Metal Co. v. Bethune, 263 Ala. 131, 81 So. 2d 674; Wanninger v. Lange, supra.
But the attorney for the appellant should be able to secure the transcript from the clerk or register in ample time, consistent with his many other duties, to check the transcript and make proper assignments of error before the transcript is forwarded to the clerk of this court, if he so desires.
The register's office was closed for Thanksgiving on November 27. It was open until about 11 o'clock on Friday, November 28. The register was not in his office on the 28th but his wife and the court reporter were there. The register's office was closed on the following Saturday and Sunday.
It is undisputed that the attorney for appellant did not receive the transcript until December 1, the day before the transcript was to be filed here.
There are but two ends to be accomplished by the filing of the transcript within a certain time. One is to enable this court to dispose of its business with dispatch and in an orderly manner and the other is to give to the appellee an opportunity to examine the transcript and prepare his defense. Alabama Great Southern R. Co. v. Planters' Warehouse & Commission Co., 153 Ala. 241, 45 So. 82.
To grant the application for extension filed in this court would work a delay of only twenty-two days in the filing and since oral argument was requested no delay in submission of the case resulted. The right of the appellee Robert C. Greene to examine the transcript and prepare his defense under existing rules will not be adversely affected.
Accepting as true for present purposes the register's statement to the effect that the solicitor saw the transcript on the register's desk in its unbound state on Wednesday, November 26, 1958, we cannot view as unreasonable and without good cause the appellants' request for an extension of time within which to file the transcript here. The solicitor acted promptly in requesting the trial court to grant an extension of time and has not permitted the cause to be submitted in this court without requesting extensions as provided in Revised Rule 37, as amended.
We are of the opinion that an order should be entered to the effect that the time for filing the transcript be extended to include December 24, 1958, the day on which the transcript was filed here. It is so ordered.
It follows that the objection of appellee Robert C. Greene to the application for extension is overruled.
The right of the solicitor to institute the suit is not challenged inasmuch as it is based on an audit made by the State Department of Examiners of Public Accounts. § 19, Act 351, approved August 14, 1947, General Acts 1947, p. 231 (See 1955 Supplement to 1940 Code, where § 19 of Act 351 is designated as § 170(19), Title 55).
A suit for the recovery of public funds may be maintained on the equity side of the court without an averment of any special equity. §§ 74, 75, Title 7, Code 1940.
The officers involved, their sureties, and all other persons interested may be made parties in order that all equities *152 may be worked out in one suit. Pickens County v. Williams, 229 Ala. 250, 156 So. 548.
The County Commission for Russell County was established by Act 520, approved August 30, 1949, Acts of Alabama 1949, p. 776, which act defines the duties and responsibilities of the Commission and provides that it shall have all the jurisdiction and powers which were vested in or which might be later vested in the County Commissions or Boards of Revenue or other similar governing bodies of this state.
The case made by the bill is substantially as follows: J. B. Parkman, Oscar E. Cole and Austin A. Dudley constituted the County Commission for Russell County from January 19, 1953, through January 14, 1957.
During that period of time Parkman, Cole and Dudley, in their official capacities, wrongfully and illegally used funds of Russell County in the amount of $1,166,437.21, in that they authorized the use of Russell County funds in such an amount in payment of claims filed by respondents Davis and Greene for work done on Russell County roads in accordance with contracts which Parkman, Cole and Dudley entered into with Davis and Greene, without a compliance with any of the provisions of § 54, Title 23, Code 1940, which section reads as follows:
It is alleged that Davis received the sum of $1,097,098.52 and that Greene received the sum of $69,337.69. The bill does not charge any of the respondents with fraud, nor is it alleged that the roads were improperly constructed or that Russell County suffered financially in any way as a result of the contracts being let without a compliance with § 54, Title 23, Code 1940, supra.
Section 54, Title 23, supra, is included in Article 3, Chapter 1, Title 23, Code 1940, which article relates to the "Establishment, Discontinuance, Working and Maintenance of Public Roads, Bridges and Ferries" by the governing bodies of the several counties of this state.
The provisions of that section became a part of the law of this state in § 11, Act 505, approved September 22, 1915, General Acts 1915, p. 573. The title of the said 1915 Act reads: "To provide for the establishment, discontinuance, construction, use, working and maintenance of the public roads, bridges, and ferries of the several counties of this State; to define the duties and powers of the boards of revenue, courts of county commissioners, or other governing bodies of each of the several counties with regard to same; and to fix penalties for the violation of the rules, regulations and laws of the boards of revenue, courts of county commissioners or other like governing bodies of the several counties."
The provisions of § 54, Title 23, supra, are operative in all cases within their purview where they are not in conflict *153 with an existing special or local law applicable to the county concerned. Stone v. State ex rel. Jett-Muths Const. Co., 204 Ala. 13, 85 So. 443. The 1949 Local Act, supra, which created the County Commission for Russell County contains no provision with respect to the manner of letting contracts. It provides in effect that the general laws applicable to county governing bodies, not in conflict with that Act, are applicable to the County Commission for Russell County.
The enforcement of a contract for the construction of roads entered into without a compliance with the provisions of § 54, Title 23, may be enjoined. Dunn Const. Co. v. White, 209 Ala. 460, 96 So. 444. Cf. Van Antwerp v. Board of Commissioners of City of Mobile, 217 Ala. 201, 115 So. 239.
But we are not here concerned with an effort to enjoin the execution or enforcement of a contract.
Here the roads have been constructed. The contractors have been paid. For aught appearing in the bill, the roads were properly built and the contractors received no more than the reasonable value of the services, materials and labor furnished. The bill does not allege that the county has lost one cent as a result of the construction of the roads under negotiated contracts.
Under such circumstances, can the county recover from the respondents the monies so paid the contractors?
We have found no Alabama case where this concrete question was presented, nor have we found an Alabama case which treats the right of a contractor to maintain a suit against a city or county to recover for public improvements made or installed under a contract not let in accordance with provisions similar to those included in § 54, supra.
There are cases to the effect that even though the contract for public improvements has been completed, if the contract was made in violation of a law providing for the letting of contracts to the lowest bidder, a suit may be maintained to restrain the paying out of public monies upon such contracts. Robert G. Lassiter & Co. v. Taylor, 99 Fla. 819, 128 So. 14, 69 A.L.R. 689; Anderson v. Fuller, 51 Fla. 380, 41 So. 684, 6 L.R.A.,N.S., 1026.
Other cases hold that under such circumstances the monies paid out may be recovered. Miller v. McKinnon, 20 Cal. 2d 83, 124 P.2d 34, 140 A.L.R. 570; Wester v. Belote, 103 Fla. 976, 138 So. 721.
The Florida cases cited above are not referred to in City of Punta Gorda v. Eureka Fire Hose Mfg. Co., 117 Fla. 614, 158 So. 128, where the Supreme Court of Florida upheld the right of the Fire Hose Company to recover on the common counts a balance due for fire hose purchased by the City under contracts made without competitive bids. In that case the Florida court said:
The prevailing rule may be that where there has been a failure to comply with a competitive bid statute, there can be no recovery by a contractor or a furnisher of supplies or materials to a public agency, either on the contract or on a theory of implied contract or quantum meruit, or upon a basis of estoppel or upon the doctrine of unjust enrichment or upon any other equitable ground or consideration. 10 McQuillin on Municipal Corporations, 3d Ed. (1950), § 29.26, pp. 258-259, § 29.41, p. 288; Los Angeles Dredging Co. v. City of Long Beach, 210 Cal. 348, 291 P. 839, 71 A.L.R. *154 161; Johnson County Savings Bank v. City of Creston, 212 Iowa 929, 231 N.W. 705, 237 N.W. 507, 84 A.L.R. 926; Sanitary District of Chicago v. McMahon & Montgomery Co., 110 Ill.App. 510; McBrien v. City of Grand Rapids, 56 Mich. 95, 103, 22 N.W. 206; Sadler v. Board of County Commissioners of Eureka County, 15 Nev. 39; Parr v. Village of Greenbush, 72 N.Y. 463; Addis v. City of Pittsburgh, 85 Pa. 379; Burgess v. City of Cameron, 113 W.Va. 127, 166 S.E. 113, 703; City and County of Denver v. Moorman, 95 Colo. 111, 33 P.2d 749; United States Rubber Co. v. City of Tulsa, 103 Okl. 163, 229 P. 771.
However, other cases have allowed recovery on implied contract or quantum meruit where the services, labor or material have been performed and accepted by the public agency notwithstanding noncompliance with a statute requiring that contracts should be let only after competitive bidding. City of Punta Gorda v. Eureka Fire Hose Mfg. Co., supra; Abrams v. City of Seattle, 173 Wash. 495, 23 P.2d 869; Village of Pillager v. Hewett, 98 Minn. 265, 107 N.W. 815; Boxwell v. Department of Highways, 203 La. 760, 14 So. 2d 627; East Texas Const. Co. v. Liberty County, Tex.Civ.App., 139 S.W.2d 669; Capital Bridge Co. v. County of Saunders, 164 Neb. 304, 83 N.W.2d 18; Yuma County v. Hanneman, 42 Ariz. 561, 28 P.2d 622; Gamewell Company v. City of Phoenix, 9 Cir., 216 F.2d 928, 940.
We are of the opinion that the rule of the cases last cited above is in accord with the rule of our cases which have treated generally with the question as to whether recovery may be had from a city or county in an action in quantum meruit for service performed or material furnished.
In summary, we find that the Alabama law pertinent to this type of case is that where the contract was not within the corporate power, expressly prohibited by law, or violative of public policy, no recovery may be had either on express contract or quantum meruit. Bluthenthal & Bickert v. Town of Headland, 132 Ala. 249, 31 So. 87; Kelly v. Burke, 132 Ala. 235, 31 So. 512; Meyer-Marx Company v. Mayor and City Council of Ensley, 141 Ala. 602, 37 So. 639; Greil Brothers Co. v. McLain, 197 Ala. 136, 72 So. 410; Town of Cottonwood v. H. M. Austin & Co., 158 Ala. 117, 48 So. 345; Escambia County v. Dixie Chemical Products Co., 229 Ala. 287, 156 So. 631; McGehee v. Lindsay, 6 Ala. 16; Moody v. Terrell-Hedges Co., 16 Ala.App. 441, 78 So. 639, certiorari denied 202 Ala. 444, 80 So. 828.
But where the power to contract lies within the competence of the city or county, and there has been an irregular exercise of that power, recovery in quantum meruit may be had although the express contract is void. General Electric Co. v. Town of Fort Deposit, 174 Ala. 179, 56 So. 802; Greeson Mfg. Co. v. County Board of Education, 217 Ala. 565, 117 So. 163; City of Mobile v. Mobile Electrical Supply Co., 6 Ala.App. 131, 60 So. 426; Morgan County v. Money, 28 Ala.App. 514, 189 So. 773, certiorari denied 238 Ala. 149, 189 So. 775. See Allen v. Intendant and Councilmen of La Fayette, 89 Ala. 641, 8 So. 30, 9 L.R.A. 497; Montgomery County v. Pruett, 175 Ala. 391, 57 So. 823; Brown v. Tuskegee Light & Power Co., 232 Ala. 361, 168 So. 159.
The general power to construct and maintain roads was within the competence of the County Commission for Russell County. There was an irregular exercise of that power which under our cases would not defeat recovery in quantum meruit for services and material furnished where the transaction was made in good faith. As we have heretofore indicated, there is no averment of fraud, collusion, peculation or improvidence.
If the contractors could have recovered in quantum meruit for the reasonable value of the labor and materials furnished by them, as we have indicated, it follows that the County cannot succeed in this suit to recover a sum equal to the amount of money paid to the contractors *155 Davis and Greene. See Tobin v. Town council of Town of City of Sundance, 45 Wyo. 219, 17 P.2d 666, 84 A.L.R. 902.
We are of the opinion that the demurrers to the bill were properly sustained and that the decrees of the trial court should be affirmed. It is so ordered.
Affirmed.
LIVINGSTON, C. J., and STAKELY and MERRILL, JJ., concur. | December 17, 1959 |
5fe4d302-1541-462a-92b8-558367ff4b01 | Smith v. Cullen | 116 So. 2d 582 | N/A | Alabama | Alabama Supreme Court | 116 So. 2d 582 (1959)
William B. SMITH
v.
Lester P. CULLEN.
6 Div. 190.
Supreme Court of Alabama.
December 17, 1959.
*584 Chas. A. Stewart and Huie, Fernambucq & Stewart, Birmingham, for appellant.
Whitmire, Morton & Coleman, Birmingham, for appellee.
COLEMAN, Justice.
Appellee, plaintiff below, recovered verdict and judgment for five thousand dollars for personal injury and property damage arising out of an automobile collision at a street intersection in Birmingham.
The complaint contained two counts, one charging negligence and the other wanton misconduct by the defendant. Motion for new trial was overruled.
Defendant argues three propositions to show error, to wit: (1) that the court erred in refusing the affirmative charge for defendant as to the wanton count, (2) that the court erred in overruling motion for new trial on ground that the verdict is contrary to the great weight of the evidence, and (3) that the court erred in overruling the motion for new trial on the ground that the verdict is so excessive on its face as to show that it is the product of bias and prejudice on the part of the jury. We discuss these propositions in numerical order.
"In considering the question of the sufficiency of the evidence of wantonness to be submitted to the jury, this court must accept the adduced evidence most favorable to the plaintiff as true, and indulge such reasonable inferences as the jury was free to draw from the evidence. * * *" English v. Jacobs, 263 Ala. 376, 377, 82 So. 2d 542, 543; McNickle v. Stripling, 259 Ala. 576, 67 So. 2d 832. Where from the evidence a reasonable inference may be drawn adverse to party requesting affirmative charge, the charge is properly refused. Aircraft Sales & Service v. Gantt, 255 Ala. 508, 52 So. 2d 388.
The evidence favorable to the plaintiff in the instant case tended to show that plaintiff was driving his car in a westerly direction on 48th Street at fifteen miles per hour, that he came to intersection of 48th Street and Court S and stopped his car completely, that a third car was proceeding south on Court S and had also stopped completely at the intersection on plaintiff's right, that defendant was driving his car north on Court S about eighty feet from intersection at a speed of approximately thirty-five miles per hour and was approaching intersection on plaintiff's left when first seen by plaintiff, that the driver of third car signaled for plaintiff to cross intersection, that plaintiff started across intersection and traveled about six or eight feet into the intersection when he saw defendant's car about fifty feet away whereupon plaintiff stopped a second time, that defendant without changing course drove into plaintiff's car and *585 struck plaintiff's car on the left front fender and pushed plaintiff's car seven or eight feet north in defendant's direction of travel, that 48th Street is an oiled dirt or gravel street without curbs, that Court S is a paved street with curbs, that both streets are 30 feet wide, that no traffic control or signal was at the intersection, that as defendant approached the intersection his vision to the right in the direction from which plaintiff came was limited or obstructed by houses and shrubbery, that the intersection is in a residential district, that defendant was familiar with the intersection and traveled it "everyday," that there were thirty feet of tire or skid marks behind defendant's car from the point of impact, and that after the collision defendant told an officer who investigated the accident "when I first saw Cullen I slammed on my brakes and skidded into him." The collision occurred about 5:30 p. m. on April 5, 1956, in daylight. It was dry when the accident happened and began drizzling some 10 to 15 minutes later.
Evidence favorable to defendant showed that he drove into intersection at fifteen miles per hour and did not see plaintiff until plaintiff entered intersection later and drove his car into defendant's car.
This court has said:
In a recent case arising out of a collision at an intersection in Birmingham, traffic rules applicable also to the instant case were summarized as follows:
Title 36, § 5(b), Code 1940, further provides a maximum speed limit of fifteen miles per hour "when approaching within fifty feet and in traversing an intersection of highways when the driver's view is obstructed."
The facts in Smith v. Lawson, supra, parallel the facts in the instant case. There plaintiff came to a complete stop, looked in all directions, did not see a car coming, and started across the street. About halfway across the intersection defendant's car struck plaintiff's car. In holding that the wanton count was properly submitted to the jury, this court said:
*586 "`Wantonness may arise from knowledge that persons, though not seen, are likely to be in a position of danger, and with conscious disregard of known conditions of danger and in violation of law [defendant] brings on the disaster.'
From the evidence favorable to the plaintiff in the case now before us, we are of opinion that the jury could reasonably infer that when defendant approached the intersection he saw plaintiff's car stopped eighty feet away, yet continued on into the intersection in reckless disregard of plaintiff's peril and probable injury and did not slow down or attempt to stop until it was too late to avoid collision. The tire or skid marks behind defendant's car, and the moving of plaintiff's car eight feet sideways reasonably justify the inference that defendant was traveling at a speed which, under the circumstances, showed a reckless indifference to the consequences. The evidence favorable to defendant would support a contrary inference and an issue of fact was properly presented to the jury.
Appellant cites us to the principle stated us follows:
It is true that circumstances may exist so that merely driving a car at an unlawful and excessive speed would not constitute wanton misconduct. As we understand the evidence, however, the circumstances of this case coupled with the speed of defendant's car were such as would reasonably justify the inference that defendant, with knowledge of the probable consequence of injury to plaintiff, recklessly drove at excessive speed and thereby caused the collision. The court did not err in refusing the affirmative charge for defendant as to the wanton count.
The rules to govern review of the insistence that the verdict is contrary to the great weight of the evidence were laid down by this court in 1890 as follows:
That rule has been consistently followed. In the instant case the evidence was in conflict, but the verdict was not so contrary to the great weight of same as to warrant this court in putting the trial court in error for overruling defendant's motion for new trial on that ground. See Northern Alabama R. Co. v. McGough, 209 Ala. 435, 96 So. 569.
The evidence supported plaintiff's contention that the accident caused him pain and suffering. His physician testified that plaintiff "* * * had multiple contusions of the pelvic and lumbar areas and over the bladder. There was some small bruises on the skin and tenderness along the iliac crest and over the third lumbar spine down to the sacrum;" that "* * * his tenderness was down over the bladder and along in here (indicating) on both sides and in the back and he was tender from about here (indicating) down there over the sacral area and part of the lumbar spine and muscles along the side of the spine were tender and in spasm;" that the sacrum is "* * * the lowest bone of the spinal column;" that X-rays showed no fractures or dislocations but plaintiff did have this "* * * bruised condition of the * * * soft tissue * * *" in the tailbone region and over the back; that plaintiff was referred to an orthopedic surgeon whose findings were the same as those related above; that plaintiff was treated with heat, rest, and drugs to relieve spasm and pain; that plaintiff was slow in recovering and continued to have discomfort "for quite a while;" that plaintiff had "some irritation of the bladder," that this cleared up under medication but plaintiff continued to complain in that area; that plaintiff took some form of medication for several months; that plaintiff was in hospital for ten days. Plaintiff testified that he went to doctor every two or three days for the first three or four weeks and about once a week for a period thereafter; that plaintiff had not stopped seeing the doctor at the time of trial which was ten months after the accident; that the last time plaintiff had gone to doctor was about three weeks before trial. The doctor thought plaintiff "should very soon be back to complete normalcy." Medical expenses amounted to four hundred dollars and repairing plaintiff's car cost about two hundred dollars.
Appellant argues "* * * that assuming that the jury was allowed by submitting the wanton count for their consideration to assess punitive damages in their discretion then it is even felt under those circumstances that the verdict is unfair and unjust and a result of bias and prejudice."
This court has said:
"In cases of this character, even the trial court will not set aside the verdict of the jury merely because, in its opinion, the jury gave too much or too little; and when the trial court has refused to disturb a verdict on account of the amount recovered, the appellate court is very reluctant to substitute its judgment for that of the jury and the court below. We will not do so unless the amount is so excessive, or so grossly inadequate, as to be indicative of prejudice, passion, partiality, or corruption on the part of the jury. (Citations omitted.)'" Brandwein v. Elliston, 268 Ala. 598, 109 So. 2d 687, 690, 691.
Under the foregoing rules we will not disturb the verdict here. The judgment below is affirmed.
Affirmed.
LAWSON, STAKELY, and MERRILL, JJ., concur. | December 17, 1959 |
d30e2fb2-6f91-4450-a802-52cdc7fa072b | Burleson v. Burleson | 114 So. 2d 887 | N/A | Alabama | Alabama Supreme Court | 114 So. 2d 887 (1959)
Robert M. BURLESON
v.
Anita Gilbert BURLESON.
8 Div. 978.
Supreme Court of Alabama.
October 8, 1959.
Earl E. Cloud, Huntsville, for appellant.
Ford, Caldwell, Ford & Payne, Huntsville, for appellee.
STAKELY, Justice.
Robert M. Burleson (appellant) filed a petition on August 7, 1958, against Anita Gilbert Burleson (appellee), in which he sought to obtain modification of the divorce decree rendered by the Circuit Court of Madison County, in Equity, on July 5, 1957. The decree of divorce granted a divorce on the ground of cruelty to Anita Gilbert Burleson from the petitioner. In addition to the divorce, Mrs. Burleson was granted in the aforesaid decree of divorce the custody of the four and one-half year old son born of the marriage, "subject to the right of Robert M. Burleson to see, be with and have the custody of the child on Saturday of each week from two P.M. until seven P.M."
In paragraph four of the original bill of complaint filed by Mrs. Burleson seeking a divorce she alleged that she was a fit and proper person to have the custody, care, control and management of her minor child, Robert M. Burleson II. By his answer in *888 the divorce proceedings Robert M. Burleson admitted that allegation to be true.
In the petition in the present proceeding in which the court is asked to modify the original divorce decree, Robert M. Burleson seeks to have the custody of the child taken from the mother and granted to him or "in the alternative" to reduce the amount of maintenance and support "proportionately and in accordance to the petitioner's decrease in income and additional expense."
It is alleged in the petition that prior to, during and since the date of the decree of divorce, Anita Burleson has been having an affair with a certain man named in the petition and left their home under the pretense of going to work and that on certain named dates in 1958 she and this man were seen together at her home and in various other and sundry places in Huntsville, Alabama.
Mrs. Burleson filed answer to the petition to modify, denying the pertinent allegations in the petition and specifically denying that she at any time had had or was now having an affair with the named man and alleging that she was a fit and proper person to have the custody of the child and that the petitioner was not such a fit person.
In his petition Robert Burleson alleged that Mrs. Burleson kept the child in a Day Nursery while she worked and left the child with a woman next door to the nursery. In answer thereto Mrs. Burleson averred that the child was one who had not known how to mix with other children and it was to the best interest of the child that he be allowed to attend such Day Nursery so he could have the companionship of other children and learn to conduct himself properly in their company.
In his petition Robert Burleson further alleged that the allowance to his former wife for support and maintenance of the child should be stopped entirely and that petitioner's salary since the decree had been reduced by more than $175 per month.
After a lengthy hearing before the court in which the court heard the witnesses testify orally, the court denied the petition for change of custody of the child but granted the prayer reducing the amount to be paid to Mrs. Burleson for the support and maintenance of the child from $100 per month to $65 per month.
There is no need to set out the testimony in detail. In brief the petitioner attempted to show that he, his brother and sister-in-law at certain times and places spied on his former wife and noted meetings between her and a certain named doctor in Huntsville, Alabama. In his testimony the named doctor not only specifically denied such meetings with Mrs. Burleson but it was shown that Mrs. Burleson was his receptionist and technician and had been employed at the hospital prior thereto as a technician when he was on the staff of the hospital. On two occasions in an emergency prior to the decree she had gone to make a cardiogram and an analysis. She earned $300 per month. There was evidence by the doctor's wife and other evidence tending to show that the doctor was at home or at other places at the times when it was claimed he met Mrs. Burleson. The trial judge was asked by Mrs. Burleson to visit the home of Mrs. Burleson and to observe the points from which the petitioner, his brother and sister-in-law made their observations. The judge made the visit.
According to the testimony since the decree of divorce the petitioner had left his job at Redstone Arsenal in Huntsville, Alabama, and had become a travelling salesman for a firm in Chattanooga, Tennessee. He earned $450 per month at Redstone Arsenal. His present earnings were decreased $175 per month.
The parents of Robert Burleson live in Johnson City, Tennessee. In Chattanooga, Tennessee, he has an apartment. He indicated that he could get a job travelling out of Johnson City, Tennessee, and that when absent from Johnson City he would leave the child with his mother. Johnson City, *889 Tennessee, is located about 335 miles from Huntsville, Alabama, the home of the mother.
There was testimony by witnesses other than Mrs. Burleson tending to show the environment of the home of Mrs. Burleson and the love and care the child got there and the adequate home facilities of Mrs. Burleson. This testimony tended to show that Mrs. Burleson was affectionate with the child and that the child had wonderful care. There was testimony tending to show that the nursery in which the child was placed while his mother, Anita Burleson, was at work was well run and was a wholesome atmosphere for a child to be placed in.
The court in its decree held that the petitioner had not met the burden of proof on him and after a consideration of the evidence, we consider that the decree of the court should be upheld.
Some principles are well understood in cases of this kind. This court has consistently held that a former decree awarding custody of a minor child is conclusive of the interest of the child and the rights of the parents so long as the status at the time of the decree remains without material change unless pertinent facts existing but not disclosed at the time of the final decree are brought to light. Messick v. Messick, 261 Ala. 142, 73 So. 2d 547; Sparks v. Sparks, 249 Ala. 352, 31 So. 2d 313.
Of course the welfare of the child is the paramount consideration. McBride v. McBride, 268 Ala. 619, 109 So. 2d 718.
Ordinarily where a child is of such tender age as to require the care and attention that the mother is specially fitted to bestow, the mother rather than the father is the proper custodian unless for some reason she is unfit for the trust. We have furthermore said that the question of the rightful custody of the child is never res adjudicata, but in cases of this kind the court does not look with favor on repeated harassing litigation. Greene v. Greene, 249 Ala. 155, 30 So. 2d 444; Messick v. Messick, supra.
The witnesses testified orally before the court and we need not comment further on this feature of the case except to say that time and again this court has held that where the witnesses so testify, this court will indulge a presumption in favor of the correctness of the findings of the lower court, unless such findings are palpably wrong.
Affirmed.
LAWSON, SIMPSON and MERRILL, JJ., concur. | October 8, 1959 |
fc66cf1e-9da9-4880-a68d-4cf460c1ee36 | Cook v. Latimer | 147 So. 2d 831 | N/A | Alabama | Alabama Supreme Court | 147 So. 2d 831 (1962)
John W. COOK
v.
Marina LATIMER, as Administratrix.
4 Div. 110.
Supreme Court of Alabama.
October 18, 1962.
Rehearing Denied December 20, 1962.
*832 Prestwood & Prestwood, Andalusia, for appellant.
Frank J. Tipler, Jr., Tipler & Fuller, Andalusia, Harry R. Teel and Robt. H. Walston, White, Bradley, Arant, All & Rose, Birmingham, for appellee.
SIMPSON, Justice.
Appeal by the plaintiff from a judgment on a jury's verdict in favor of the defendant. The case went to the jury on the wanton count of the plaintiff and the plea of the general issue by the defendant and a counter-claim by the defendant alleging wantonness on the part of the plaintiff.
The plaintiff John W. Cook and Walter Latimer, the defendant's intestate, were returning to Andalusia, Alabama on U. S. Highway 331 from Troy, Alabama, after having dated two young ladies. The evidence tended to show that Walter Latimer was driving the automobile of Cook's father, with Cook asleep on the back seat. Just inside the corporate limits of Brantley, Alabama the automobile left the road, traveled in a straight line some 127 feet, finally coming to rest after colliding with a large pecan tree. It is unnecessary to enlarge on the facts since we are at the conclusion that Assignments of Error No. 1. and No. 2. are well taken, necessitating a reversal of the judgment.
Assignment of Error No. 1. concerns a statement made by defendant's counsel in his opening statement to the jury, to this effect:
Appellant objected to the statement without specifying grounds and the trial court overruled the objection. We regard the quoted statement as highly prejudicial. The statement itself had the effect of appealing to the sympathy of the jury by stating that the administratrix had lost her husband in an automobile accident some time previously, which is a fact entirely irrelevant to the issue in the case. The natural tendency of the statement was to influence the finding of the jury. The test was not whether the argument did improperly influence the verdict, but that it might have done so. Williams v. City of Anniston, 257 Ala. 191, 58 So. 2d 115. An early statement of the *833 applicable rule is found in Cross v. State, 68 Ala. 476:
A statement by counsel to the jury that a certain fact exists, when there is no evidence of that fact, or that evidence would be inadmissible to prove the fact, or the fact itself would be irrelevant should not be allowed over proper objectionCross v. State, supra; Moore v. Holroyd, 219 Ala. 392, 122 So. 349; Naro v. State, 209 Ala. 614, 96 So. 761; Pacific Mutual Life Insurance Co. of California v. Marks, 230 Ala. 417, 161 So. 543; such a statement would be hearsay and thus illegal evidence. (See McElroy, Ala.Evid., Vol. 2, § 277.01 and cases cited therein.) Here, not only was the statement by appellee's counsel hearsay; it was highly prejudicial.
In our jurisdiction where a case involves issues of fact, parties of course may outline what they expect to prove unless it is manifest that such proof is incompetent.Mazer v. Brown, 259 Ala. 449, 66 So. 2d 561; and the statement must be made in good faith as to what the evidence is expected to show.Prudential Ins. Co. v. Calvin, 227 Ala. 146, 148 So. 837; Atlanta Life Ins. Co. v. Canady, 225 Ala. 377, 143 So. 561.
To be sure, the general manner and character of the opening statement are within the discretion of the trial court, but counsel may not in his opening statement introduce immaterial and prejudicial matter before the jury.Brown v. Leek, 221 Ala. 319, 128 So. 608. This is especially true where it is manifest that such proof would be incompetent and is made to influence the jury.Atlanta Life Ins. Co. v. Ash, 228 Ala. 184, 153 So. 261, and cases cited.
Appellee earnestly argues that because no grounds for the objection were specified to the stated argument, the ruling of the court does not invite a review. This is the general rule, but is subject to a well-established exception. The exception is thus stated in Anderson v. State, 209 Ala. 36, 95 So. 171, and set out more recently in Colquett v. Williams, 264 Ala. 214, 86 So.2d 381:
The situation presented in the case at bar falls within this exception. The statement was patently illegal as a hearsay statement of counsel, serving no purpose other than to incite feelings of sympathy toward the defendant, serving no valid purpose as evidence, and shedding no light on any issue in the case.
For other pertinent authorities see Harris v. Martin, 271 Ala. 52, 122 So. 2d 116; Durham v. York, 269 Ala. 304, 112 So. 2d 472; State v. Howington, 268 Ala. 574, 109 So. 2d 676.
Appellee quotes at length in his brief from Alabama Power Co. v. Bruce, 209 Ala. 423, 96 So. 346, which he argues is pertinent to the case at bar. In this we cannot agree. In that case the court said:
However, it appears that the statement of counsel here was not "objectionable only because there are no facts or testimony in the record", but it was objectionable because it was a rank hearsay statement of counsel entirely irrelevant and grossly prejudicial to the appellant's case.
Appellee also argues further the rule requiring specific grounds of objection is more appropriate to a situation occurring during the opening statement of counsel because the trial court has heard no testimony. This might be tenable in some situations, but here where no testimony could be admissible that could render the statement proper, such an argument impresses us as untenable. There being no legitimate basis for the statement, we are impressed that the learned trial court erred to a reversal in overruling the objection thereto.
Assignment of Error No. 2 is rested upon the refusal of the trial court to allow the plaintiff (appellant) to "reply in kind" to the statement of defendant's counsel. The record indicated that plaintiff's reply would have been to the effect that defendant, Mrs. Latimer, had a cause of action arising out of the death of her husband from the automobile accident which defendant's counsel referred to in the opening argument and had recovered a substantial sum in the law suit. Appellee argues that the "reply in kind" is discretionary with the trial court and that no one has the right to demand an improper argument or statement in a court of law, citing Bennett v. State, 86 Ga. 401, 12 S.E. 806, 808, 12 L.R.A. 449; 31 C.J.S. Evidence § 190 pp. 913, 914.
The doctrine of "curative admissibility" is well recognized (see McElroy, Ala.Evid., Vol. 1, § 14.01 and cases noted therein). The line marking the limits of admissibility is somewhat adumbrant. Where no prejudice has occurred, the rule of course should not apply. The illegal rebuttal evidence may be admitted only to the extent that it cures the effect of the admission of the first illegal evidence. Where the first illegal evidence is highly prejudicial, the opponent should be allowed to reply as a matter of right to erase from the minds of the jurors the first illegal evidence.
A pertinent statement of the applicable rule thus appears in Huntsville Knitting Mills v. Butner, 194 Ala. 317, 69 So. 960:
See also Hanners v. State, 147 Ala. 27, 41 So. 973; Morgan v. State, 88 Ala. 223, 6 So. 761; Bank of Phoenix City v. Taylor, 196 Ala. 665, 72 So. 264. The statement in Bank of Phoenix City case was clarified in Gibson v. Gaines, 198 Ala. 583, 73 So. 929. The following from the Gibson v. Gaines case is applicable here:
See also Williams v. City of Anniston, supra, where the court held that the admission of argument of counsel for the defendant *835 city that the judgments would be paid out of taxes was not justified by the fact that plaintiff had tried to show that her husband was blind. This illustrates the limit of the admission of illegal rebuttal evidence and that a statement substantially unconnected with the illegal evidence should not be allowed in the rebuttal. Here, however, the rebuttal statement sought to be offered by counsel was to some extent related to the opening statement of counsel and in our judgment was error to reverse in refusing to permit plaintiff's counsel to introduce such rebuttal evidence.
There are other errors argued but they probably will not occur on another trial so they will not be discussed.
For the errors noted we are constrained to hold that the judgment must be reversed.
Reversed and remanded.
LIVINGSTON, C. J., and MERRILL and HARWOOD, JJ., concur.
Appellee calls attention to the fact that the errors, if any, occurring on trial were harmless since appellant was not entitled to recover in any event, having failed to establish a scintilla of evidence to support the wanton count. We took note of this argument but in consultation concluded that appellee was not entitled to the affirmative charge, but that a jury question was presented under the authority of Shirley v. Shirley, 261 Ala. 100, 73 So. 2d 77. We are still of the same opinion.
The other point argued on rehearing was adequately treated in the original opinion. We are at the conclusion that the application should be overruled.
Opinion extended and application for rehearing overruled.
LIVINGSTON, C. J., and MERRILL and HARWOOD, JJ., concur. | October 18, 1962 |
dcca2dd9-a08f-42c7-b01e-923ef1b274a9 | Southern Apartments, Inc. v. Emmett | 114 So. 2d 453 | N/A | Alabama | Alabama Supreme Court | 114 So. 2d 453 (1959)
SOUTHERN APARTMENTS, INC.,
v.
Mildred EMMETT.
6 Div. 395.
Supreme Court of Alabama.
August 13, 1959.
Rehearing Denied September 17, 1959.
*454 W. J. Sullivan, Jr., and Sadler, Sadler, Sullivan & Herring, Birmingham, for appellant.
Jenkins & Cole, Birmingham, for appellee.
MERRILL, Justice.
Appellee, a tenant, sued appellant, the owner of the apartment occupied by appellee, for injuries to her right hand and index finger. The count on which the case was submitted to the jury alleged that the appellant negligently performed certain repair work which it undertook to perform on a handle in appellee's bathtub, proximately resulting in appellee's injury.
Appellant's pleas were the general issue and contributory negligence. The verdict of the jury and judgment thereon was in the amount of $4,500. A motion for a new trial was overruled.
Appellant's main contention is that it was entitled to the affirmative charge either with or without hypothesis, assignments of error 1, 2, 3 and 4.
There was no lease in evidence, but it is undisputed that the relation of tenant and landlord existed between the parties. The rule is, as to the tenant, his servant, guest or others entering under his title, in the absence of a covenant to repair, or keep in repair, that the landlord is only liable for injuries resulting from latent defects, known to him at the time of the leasing, and which he concealed from the tenant. Uhlig v. Moore, 265 Ala. 646, 93 So. 2d 490, and cases there cited.
It is the law that where the lessor, under no duty to repair, voluntarily undertakes so to do, he is liable for injuries proximately caused by negligence in so making repairs as to render the premises dangerous *455 to life or limb of those rightfully occupying the premises. Faucett v. Provident Mut. Life Ins. Co. of Philadelphia, 244 Ala. 308, 13 So. 2d 182, and cases cited.
It is also true, where the landlord voluntarily or gratuitously undertakes to make repairs upon the building demised, he is liable to the tenant for injuries resulting from negligence of himself or servant in making such repairs; but, if the repairs are made inefficiently, and not negligently, by himself or servant, he is not liable for injuries resulting to the tenant. Cairnes v. Hillman Drug Co., 214 Ala. 545, 108 So. 362; Spangler v. Hobson, 212 Ala. 105, 101 So. 828.
The tendencies of the evidence show that appellee and her mother were tenants in the Nelright Apartments in Birmingham, owned by appellant. On June 29, 1959, appellee, after taking a bath, attempted to turn off water dripping in the bathtub, and while so doing, the porcelain on the right faucet handle broke and cut her hand and finger. Approximately one month prior to this occurrence Emerson Brock, a janitor, repaired or attempted to repair this faucet.
Appellee's maid was present when appellee's mother told Brock that the handle of the faucet was loose and that water was running into the tub. Appellee called Brock's attention to the loose porcelain part of the handle and to the leaking faucet. She told him that "it turned at the handle and the porcelain cap was loose at the connection." Brock worked on the faucet, installed a new washer and the handle was tightened to some extent, although water continued to drip, and the porcelain handle "still shook some." Brock told appellee he "had done the best and could not fix it" and that he would "tell Mr. Hawkins (his superior) about it." Brock had worked as a maintenance man for some ten years in several apartments, including the Nelright Apartments. He also took out garbage in Nelright Apartments, and did "small work" around the apartments.
The four witnesses called to testify were appellee's maid, appellee's physician, appellee and Brock, the latter the only witness for appellant.
The main conflicts in the evidence were Brock's denials that he was told the handle was loose; that he had said that he had done the best he could and that he would tell his superior about it; and that the porcelain on the handle was loose. These conflicts made up an issue of fact for the jury.
Here, there was evidence that the handle and the porcelain were specifically pointed out as being defective, and appellant's maintenance man undertook to make repairs and later admitted that he had attempted to make the repairs and that he had not successfully completed the job. This, together with the manner in which appellee was injured, made a question for the jury and appellant was not entitled to the affirmative charge either with, or without, hypothesis.
*456 Assignment of error 6 deals with the refusal of the court to give written charge 29, requested by appellant, which reads:
It suffices to say that there was no evidence as to the existence of the basic factors on which the status of an independent contractor could be established. See Dortch Baking Co. v. Schoel, 239 Ala. 266, 194 So. 807 [2]. The mere fact that Brock testified that he worked as maintenance man for Marbury Real Estate Company and did maintenance work in apartments handled by that Company, including "doing such maintenance work at the Nelright Apartments" does not support the giving of a charge that he was an independent contractor.
Assignment of error 5 charges error in the refusal of the trial court to grant the motion for a new trial. It is argued that the judgment was contrary to the great weight and preponderance of the evidence.
Verdicts are presumed to be correct and no ground of a new trial is more carefully scrutinized or more rigidly limited than that the verdict is against the weight of the evidence; and when the presiding judge refuses to grant a new trial, the presumption in favor of the correctness of the verdict is strengthened. Mobile City Lines Inc. v. Hardy, 264 Ala. 247, 86 So. 2d 393. A verdict is not to be set aside merely 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. Tallapoosa County v. Holley, 268 Ala. 67, 104 So. 2d 834. Where there is evidence which, if believed, justified the verdict, the motion for a new trial is properly overruled. Mulkin v. McDonough Construction Co. of Georgia, 266 Ala. 281, 95 So. 2d 921; Kurn v. Counts, 247 Ala. 129, 22 So. 2d 725.
The judgment is affirmed.
LIVINGSTON, C. J., and LAWSON and STAKELY, JJ., concur. | August 13, 1959 |
6d0554ed-c666-4361-9fb4-ef679b790953 | Stokely-Van Camp, Inc. v. Ferguson | 122 So. 2d 356 | N/A | Alabama | Alabama Supreme Court | 122 So. 2d 356 (1959)
STOKELY-VAN CAMP, INC.
v.
Etsel C. FERGUSON.
8 Div. 914.
Supreme Court of Alabama.
August 13, 1959.
Rehearing Denied August 18, 1960.
*357 J. A. Lee, Scottsboro, for appellant.
Andy Hamlet, Jr., W. Loy Campbell and H. R. Campbell, Scottsboro, for appellee.
LIVINGSTON, Chief Justice.
This action is in tort for personal injuries. The complaint contained one count to which demurrers were overruled, and charged that the defendant was negligent in the preparation of its canned goods, i. e., pork and beans, which plaintiff purchased from an intermediate dealer, and which he ate shortly thereafter and became violently ill. There was a verdict and judgment for plaintiff for $4500. The appellant's motion for a new trial was overruled, and it appealed.
This court has considered numerous cases touching the duty of care required of manufacturers of food products put up in packages or bottles to be sold intact, and their liability to the ultimate consumer for negligence in putting such products on the market in a condition unfit for human consumption, or dangerous to health because of the presence of foreign matter. Reichert Milling Co. v. George, 230 Ala. 3, 162 So. 393; Try-Me Beverage Co. v. Harris, 217 Ala. 302, 116 So. 147; Coca-Cola Bottling Co. v. Crook, 222 Ala. 369, 132 So. 898; Collins Baking Co. v. Savage, 227 Ala. 408, 150 So. 336; Birmingham Chero-Cola Bottling Co. v. Clark, 205 Ala. 678, 89 So. 64, 17 A.L.R. 667; Whistle Bottling Co. v. Searson, 207 Ala. 387, 92 So. 657; Jefferson Dairy Co. v. Williams, 215 Ala. 559, 112 So. 125; Kirkland v. Great Atlantic & Pacific Tea Co., 233 Ala. 404, 171 So. 735.
The appellant insists on several grounds of demurrer interposed to the complaint. In pertinent part, the complaint is as follows:
As we understand it, it is argued by the appellant that the averment that the pork and beans were "spoiled, contaminated, impure, stale, rotten or containing foreign matter to such an extent that as a result of eating said Pork and Beans, the Plaintiff became violently sick and ill," etc., contains disjunctive alternate averments, and are no better than the weakest alternative, and that the averment that the pork and beans were spoiled, contaminated, impure, stale, rotten or containing foreign matter to such an extent that as a result of eating said pork and beans the plaintiff became violently sick and ill, etc., is a mere conclusion of the pleader.
There is no merit in this insistence. The averment that the pork and beans were spoiled is not a mere conclusion of the pleader, neither is the averment that they were contaminated, impure, stale, rotten or containing foreign matter a mere conclusion of the pleader.
In every cause of action grounded solely on negligence, there are three essential elements to a right of recovery: First, a duty owing from defendant to the plaintiff; second, a breach of that duty; and third, an injury to the plaintiff in consequence of that breach. Tennessee Coal, Iron & R. Co. v. Smith, 171 Ala. 251, 55 So. 170; Alabama Baptist Hospital Board v. Carter, 226 Ala. 109, 145 So. 443; Southern Railway Co. v. Simmons, 237 Ala. 246, 186 So. 566; Alabama Great Southern R. Co. v. Campbell, 32 Ala.App. 348, 26 So. 2d 124; Alabama Great Southern R. Co. v. Raney, 34 Ala.App. 125, 37 So. 2d 150. The complaint stated a cause of action.
Three other assignments of error will be treated together because they are controlled by the same principles. (1) It is contended that the verdict of the jury and the judgment entered thereon are not sustained by the great preponderance of the evidence, and the court erred in denying appellant's motion to set aside the verdict and the judgment entered thereon and to grant unto appellant a new trial. (2) The verdict of the jury is so against the preponderance of the evidence, after allowing all reasonable presumptions of its correctness, as to show that it is wrong and unjust, and the court erred in denying appellant's motion to set aside the verdict and the judgment entered thereon and to grant unto appellant a new trial, and (3) that the verdict of the jury, and the judgment thereon, are excessive.
The sole question presented by these three assignments of error is whether or not the verdict and the judgment are supported by the preponderance of the evidence. Verdicts are presumed to be correct and no ground for a new trial is more carefully scrutinized or more rigidly limited than that the verdict is against the evidence. Cobb v. Malone, 92 Ala. 630, 9 So. 738. It is true that the power of the trial court to set aside the verdict is inherent and is essential to prevent irreparable injustice in cases where a verdict wholly wrong is the result of inadvertence, forgetfulness, or intentional or capricious disregard of the testimony, or of bias or prejudice on the part of juries, which sometimes occurs. In the exercise of this power, courts should be careful not to infringe the right of trial by jury and should bear in mind that it is the exclusive province of the jury to determine the credibility of witnesses, to weigh the testimony and find facts from that testimony. The power of *359 the trial court to set aside a verdict should be exercised only when it positively and affirmatively appears that the substantial ends of justice require that a verdict should be set aside and a new trial granted.
In Yarbrough v. Mallory, 225 Ala. 579, 144 So. 447, 449, it was said:
The foregoing being the principles by which a trial court should be controlled, it is to be observed that these principles apply with much greater force to the exercise of this power by an appellate court. When the presiding judge of the trial court refuses to grant a new trial, the correctness of the verdict is thereby strengthened.
There is no merit in the foregoing three assignments of error.
Assignment of Error No. 5 is as follows:
Clearly, the fact that no other person had made claims of food poisoning from eating Stokely-Van Camp pork and beans in 1955-56 was not evidence to show exercise of care on the part of defendant, or that defendant was not guilty of negligence. Hill Grocery Co. v. Hameker, 18 Ala.App. 84, 89 So. 850; Greenwood Cafe v. Lovinggood, 197 Ala. 34, 72 So. 354. There is no merit in this assignment of error. Winter-Loeb Grocery Co. v. Boykin, 203 Ala. 187, 82 So. 437.
The appellant insists that the refusal of written charges 1, 3, 4, 5 and 7 constituted reversible error. These charges are abstract or state erroneous propositions of law. Moreover, the principles of law involved in the case were adequately covered by the court's oral charge, and the refusal of these charges was without error.
Assignment of Error No. 11 is as follows:
It is elementary that pleading without proof has the same effect as proof without proper pleading. A careful review of the record fails to show any evidence whatever of contributory negligence and the charge was, therefore, abstract and its refusal was not erroneous.
We see no good reason to here set out the tendencies of the evidence. On the one hand, the evidence tended to support the theory that plaintiff was made ill by eating the product of the appellant. On the other hand, the evidence tended to prove that his illness was the result of an automobile accident at a prior time. Suffice it to say, the evidence was in conflict, and it was a case for the jury.
No argued assignment of error merits a reversal of the cause and the same is hereby affirmed.
Affirmed.
LAWSON, STAKELY and MERRILL, JJ., concur. | August 13, 1959 |
dba94857-3fe0-4ba7-94be-a619d4556209 | Hodges v. Beardsley | 112 So. 2d 482 | N/A | Alabama | Alabama Supreme Court | 112 So. 2d 482 (1959)
Mrs. Willie Gibson HODGES et al.
v.
Ralph Harold BEARDSLEY et al.
1 Div. 765.
Supreme Court of Alabama.
May 28, 1959.
*483 Austill & Austill, Mobile, for appellants.
Frank S. Coffin, Sam W. Pipes, III, and Lyons, Pipes & Cook, Mobile, and C. C. Richmond, Jackson, Miss., for appellees.
SIMPSON, Justice.
Complainant, Mrs. Willie Gibson Hodges filed a bill in equity seeking to set aside a deed executed by complainant to respondents Beardsley on October 3, 1936 upon the ground that at the time of the execution of the deed she was a minor, 16 years of age, and upon the additional ground that at said time she was a married woman living with her husband; that they were bona fide residents of Alabama and her husband did not join in the execution of the deed. By amendment complainant also sought to have set aside a quitclaim deed conveying the same property as the 1936 deed which deed was executed by complainant and her husband to respondents Beardsley in 1947. As a ground for cancellation of the latter deed, complainant alleges fraud.
Complainant seeks by this suit to establish her title as tenant in common with respondents Beardsley to an undivided 1/8 interest in the lands in question which complainant and respondent Mrs. Beardsley inherited from one Levi Gibson.
A petition of intervention in the case was filed by A. B. Case, to whom, on September 13, 1956 and prior to the commencement of the suit, complainant and her husband executed an oil, gas and mineral lease of her undivided interest in the land.
The trial of the cause upon testimony taken in open court resulted in a final decree denying relief to complainant Hodges, and to the intervenor, Case, from which decree they have appealed.
We do not deem it necessary to the decision of this case to determine the validity of that deed executed by complainant to respondents Beardsley in 1936 for that we conclude, upon reasons hereinafter stated, the 1947 deed executed by complainant and her husband was valid and operated to pass the title to respondents Beardsley.
The principle is well settled that as between the parties to a deed reciting a valuable consideration, the grantor, in the absence of mistake, fraud or duress, is estopped to deny the recitation. Wilfe v. Waller, 261 Ala. 436, 437, 74 So. 2d 451. Nor is mere inadequacy of consideration a sufficient ground for cancelling a conveyance. Smith v. Collins, 148 Ala. 672, 41 So. 825; Porter v. Roberson, 263 Ala. 294, 82 So. 2d 244.
Moreover, the 1947 deed recites a valuable consideration and there is evidence which, if believed and this was within the province of the trial court supports the conclusion that such consideration was in fact paid.
The degree of proof required to rescind or cancel a conveyance because of *484 fraudulent misrepresentation is more than a mere probability of the truth of the charge of fraud. Smith v. Collins, supra. Fraud, when alleged, must be clearly and satisfactorily proven. Porter v. Roberson, supra.
The evidence offered by complainant in support of her charge of fraud and misrepresentation is clearly insufficient. In fact, there is no evidence of a misrepresentation by respondents or their agent. It appears from complainant's own testimony that she knew she was signing papers which would affect her interest in the land in controversy.
Complainant also insists that the 1947 deed is inoperative for the reason that it was not signed by her husband, one W. E. Entrekin, Jr. The deed in question bore the signature of the said Entrekin and the deed was properly acknowledged before a notary public. An acknowledgment is entitled to great weight and can be impeached only by evidence that is clear and convincing. Porter v. Roberson, supra.
Entrekin, on direct examination in the trial below, testified that he did not sign the deed and on cross-examination, he testified that he did not recall signing the deed. The trial court also had the benefit of comparing Entrekin's signature on the deed in question with his signature on an instrument which Entrekin signed in the presence of the court. We conclude that the objections offered by the complainant to the deed of 1947, i. e., fraud and the failure of the husband to join in the execution, were not satisfactorily proved and thus are not well taken; the said conveyance, therefore, operated to pass the title out of complainant so far as the parties to the quitclaim deed were concerned. Alexander v. Fountain, 195 Ala. 3, 70 So. 669.
On September 13, 1956 and prior to the recording of the 1947 quitclaim deed, complainant and her husband executed an oil, gas and mineral lease of her interest in the land in question to A. B. Case. Case takes the position that he is a bona fide purchaser for value of that interest and without notice of the 1947 quitclaim deed from the complainant to respondents Beardsley.
Section 120, Title 47, Alabama Code 1940 provides in part that all conveyances of real property are inoperative and void as to a purchaser for a valuable consideration without notice unless the same have been recorded before the accrual of the rights of such purchaser.
Lightsey v. Stone, 255 Ala. 541, 546, 52 So. 2d 376, 381,
Gamble v. Black Warrior Coal Co., 172 Ala. 669, 55 So. 190; Gill v. More, 200 Ala. 511, 520, 76 So. 453, 55 Am.Jur., Vendor & Purchaser, § 697.
The question herein presented is whether or not Case had notice or was *485 chargeable with notice of the 1947 deed which question is one of fact. Alexander v. Fountain, supra; 24 Am. Jur., Gas & Oil, § 24.
While, as in the instant case, a party may deny expressly that he had notice of a fact, yet the circumstances may be such as to justify the court in concluding that he did have knowledge. 39 Am.Jur., Notice, § 32. Actual notice, as above observed, is a conclusion of fact inferred from all of the evidence. 2 Pomeroy's "Equity Jurisprudence", § 598; see also City National Bank v. Nelson, 218 Ala. 90, 117 So. 681, 61 A.L.R. 938
We have read the record with great care and see no reason to discuss in detail the considerable amount of evidence adduced on the issue of notice. Holgerson v. Gard, 257 Ala. 579, 60 So. 2d 427, 33 A.L.R.2d 1315. Suffice it to say that the evidence in this cause and the reasonable inferences therefrom support the conclusion that Case had knowledge of facts sufficient to elicit inquiry as to the source of respondents Beardsleys' title and he could and would have ascertained this source had he instituted inquiry. Gamble v. Black Warrior Coal Co., supra, and authorities, supra.
Our conclusion is based in part upon the following evidence: Complainant testified that she was asked by Mr. Case prior to the execution of the lease whether or not she had signed any instrument other than the 1936 deed with respect to the land to the respondents. She further testified that she told him she had not for the stated reason that she did not at that time recall signing anything. Yet it is clear that on another occasion and not more than two weeks prior thereto complainant told another party that she had signed some papers with reference to the property in question for the respondents in 1947.
Evidence was also adduced that the price asked for and received by the complainant was less than the apparent value of the interest leased. Mr. Case, the lessee, traded in land, timber and oil properties. See 2 Pomeroy's "Equity Jurisprudence", § 600.
The uncontroverted facts show that Case purchased with full knowledge that he would prosecute and pay the entire costs of this litigation against the respondents. See Sloss-Sheffield Steel & Iron Co. v. Lollar, 170 Ala. 239, 252, 54 So. 272.
The trial court heard the witnesses ore tenus; every presumption will be indulged in favor of his decree which will not be disturbed unless palpably wrong. Parkman v. Ludlum, 260 Ala. 235, 69 So. 2d 434; Fuller v. Blackwell, 246 Ala. 476, 21 So. 2d 617; Ritter v. Hewitt, 236 Ala. 205, 181 So. 289. There is ample evidence to support the trial court's decree.
Affirmed.
LIVINGSTON, C. J., and GOODWYN and COLEMAN, JJ., concur. | May 28, 1959 |
c11189e7-b577-4593-980f-c11bc8c14a36 | Walker v. State | 114 So. 2d 402 | N/A | Alabama | Alabama Supreme Court | 114 So. 2d 402 (1959)
Ernest Cornell WALKER, alias,
v.
STATE of Alabama.
6 Div. 381.
Supreme Court of Alabama.
June 25, 1959.
Rehearing Denied September 17, 1959.
*403 Wm. W. Conwell and Walter M. Campbell, Birmingham, for appellant.
MacDonald Gallion, Atty. Gen., and Geo. D. Mentz, Asst. Atty. Gen., for the State.
LAWSON, Justice.
The appeal is from a judgment of conviction for rape, with infliction of the death penalty. Appellant is of the Negro race. The victim is a white woman. The alleged crime was committed on Saturday, November 1, 1958. Appellant was indicted on November 6, 1958, and was arraigned on November 21, 1958. He was unable to employ counsel, so at arraignment the trial court appointed two members of the Jefferson County Bar to represent him. § 318, Title 15, Code 1940, as amended. Upon arraignment Walker pleaded not guilty and not guilty by reason of insanity. When the case was called for trial, counsel for Walker sought to withdraw the plea of not guilty but this request was refused and the case was tried on the pleas interposed upon arraignment. As indicated above, the jury found Walker guilty and imposed the death penalty. Judgment and sentence were in accord with the verdict. There was no motion for a new trial.
The appeal here is under the automatic appeal statute. Act 249, approved June 24, 1943, General Acts 1943, p. 217. See 1955 Cum.Pocket Part, Vol. Four, Code 1940, Title 15, § 382(1) et seq. After determining that Walker is an indigent person, without sufficient funds to pay for the services of an attorney to represent him on appeal, the trial court appointed the counsel who represented Walker in the trial court to prosecute this appeal and they appear here in his behalf.
Six persons were called as witnesses by the State: the prosecutrix, her husband, two physicians, and two persons who were law enforcement officers of the City of Homewood at the time the offense is alleged to have been committed.
The testimony of the prosecutrix and that of her husband is substantially as hereafter summarized:
The husband of prosecutrix was for a number of years the building superintendent of Shades Valley High School at Homewood, Alabama. He and his wife occupied an apartment situated on the "ground" floor of the high school building. There were two other floors in the building, generally referred to as the first and second floors. The defendant had worked as a janitor under prosecutrix' husband in 1954 and was well known both to the prosecutrix and to her husband.
Defendant came to the apartment around 8:30 a. m. on the morning of Saturday, November 1, 1958, and talked with the husband concerning a job. He was advised that there was no vacancy at the time, but if one occurred the husband would get in touch with the defendant. Shortly before 10:30 the husband left the apartment to go to the bank and to perform other duties. Shortly after he left the defendant entered the apartment through the doors which separated the apartment from other parts of the ground floor of the building. Tendencies of the evidence are to the effect that he gained entrance by using a master key.
*404 After entering the apartment, he first requested that the prosecutrix give him a gun. Upon being told that there was no gun in the house, he hit the prosecutrix in the face and began to choke her. Following such abuse the prosecutrix told him where the gun was located and without relinquishing his hold upon prosecutrix' neck, he dragged her to the point where he obtained a shotgun. Thereafter he continued to mistreat and threaten the prosecutrix and finally succeeded in dragging her up a flight of stairs to the first floor, where he ravished her.
After completing the sexual act the defendant locked the prosecutrix in a broom closet. Later the appellant returned to the broom closet, bringing with him the prosecutrix' husband, who had returned to the apartment. The prosecutrix was then removed from the closet and was taken into another closet or room, where she and her husband were locked up.
After a comparatively short period of time, the defendant forced the husband to accompany him downstairs to the apartment level, where he made inquiry concerning the contents of a safe. Later the husband was taken back to the first floor and locked in a small closet similar to the one in which his wife had first been placed. The husband was able to escape and went to the rescue of his wife and called the authorities.
The prosecutrix was carried to a hospital, where she was examined by two physicians. One of them testified that she was hysterical at the time she was admitted and had marks and bruises about her neck. The other physician, who made a thorough examination of the prosecutrix, testified that the prosecutrix had multiple bruises and scratches on her arms, on her chest, abdomen and legs. There were large bruises on the outside of each hip. There were two small lacerations or tears in the vagina.
Police officers gave testimony concerning the apprehension of the defendant approximately a week after the crime is alleged to have been committed. They also testified concerning a confession made to them by the defendant, which was reduced to writing and admitted in evidence.
The appellant, Walker, did not testify nor were any witnesses called in his behalf.
The evidence was not only sufficient to carry the case to the jury on the charge or rape, but was altogether sufficient to support the verdict of the jury finding the defendant guilty of that crime. Under the automatic appeal law, supra, we must examine all the evidence when the death sentence is imposed and reverse the judgment if in our opinion that verdict is contrary to the great weight of the evidence, although no motion for new trial has been made. Easley v. State, 246 Ala. 359, 20 So. 2d 519.
Before the confession was admitted in evidence, the State showed that none of the officers present at the time the confession was made threatened Walker in any way, told him it would be better for him to make a statement, or offered him a reward to make a statement. We think the predicate as laid by the State was in all respects sufficient to show prima facie that the confession was made voluntarily, there being nothing in this record to indicate that under the circumstances prevailing at the time it was made, when considered with the age, character and situation of the defendant, he was deprived of his free choice to admit, to deny or to refuse to answer. Phillips v. State, 248 Ala. 510, 28 So. 2d 542, and authorities there cited; Arrington v. State, 253 Ala. 178, 43 So. 2d 644.
Reversible error is not made to appear in the action of the trial court in permitting the State to introduce in evidence certain articles of clothing which were found in the prosecutrix' apartment immediately after the crime was committed and after the defendant had fled. Although there was no positive identification of these articles of clothing as being those worn by the defendant at the time of the attack, *405 his confession shows that he did leave his clothing in the apartment. Under these circumstances we are of the opinion that the clothing was admitted in evidence without error. See Thomas v. State, 257 Ala. 124, 57 So. 2d 625.
During the closing argument for the State the following occurred:
The objection to this argument might well have been sustained in view of our holding in the case of Boyle v. State, 229 Ala. 212, 154 So. 575. However, reversible error cannot be predicated on the remarks of the solicitor in view of the fact that there was no evidence to support the plea. of not guilty by reason of insanity and, as will hereafter be shown, the jury was correctly instructed to disregard that plea. Under such circumstances we are of the opinion that no possible injury could have resulted to the defendant by virtue of the remarks of the assistant solicitor made in reply to argument of counsel for the defendant.
The trial court in the course of its oral charge to the jury said:
Thereupon the following occurred:
In brief filed here on behalf of appellant, counsel take the position that an exception was properly interposed to that part of the oral charge which we have italicized above. Under the automatic appeal law we are not required to review the oral charge of the court in the absence of proper exceptions thereto. Byrd v. State, 257 Ala. 100, 57 So. 2d 388; Easley v. State, supra.
The proper way to reserve exceptions to a part of an oral charge is to recite what the court said, or the substance thereof. Kelley v. State, 226 Ala. 80, 145 So. 816. In this instance the trial court was not advised of the "ruling" to which counsel did "accept" or of the basis of the motion for mistrial.
But we do not care to dispose of appellant's contentions concerning the part of the charge italicized above solely on the point of no proper objection.
This court and the Court of Appeals have held that where there is no evidence to establish the plea of insanity, it is not reversible error for the trial court in its oral charge to instruct the jury to the effect that there is no evidence which would justify a finding of not guilty by reason of insanity. Manning v. State, 217 Ala. 357, 116 So. 360; Uptain v. State, 37 Ala.App. 290, 71 So. 2d 111, certiorari denied 260 Ala. 459, 71 So. 2d 115. See Rice v. State, 204 Ala. 104, 85 So. 437.
Of course, if there is any evidence tending to support the plea of insanity, whether offered by the State or by the defendant, such a charge is erroneous. Counsel for appellant contend that the evidence for the State going to show the commission of the crime was sufficient to justify the jury in concluding that the defendant was insane in that no sane man would have perpetrated such a crime. We cannot agree with this insistence. Persons on trial for the commission of crimes are presumed sane and proof of the crime does not affect that presumption. The burden of proof is on the defendant to support his plea of insanity.
In the confession introduced in evidence is the following sentence: "I came back and saw Mr. Burgett leaving and something came in my mind to go get her." The words, "something came in my mind to go get her," are said to show that the defendant was moved by an irresistible impulse and therefore a jury question was presented as to defendant's sanity. Again we cannot agree with the insistence of counsel for appellant. The quoted words, in our opinion, do no more than show a decision or determination on the part of defendant to do the act for which he was tried and convicted.
We hold that there was no evidence to support the insanity plea and that the trial court did not err in so instructing the jury and in declining in its oral charge to instruct on the law of insanity.
For the same reason the trial court did not err in giving at the request of the State its written requested Charge A and in refusing to give defendant's written requested Charge 1. Manning v. State, supra; Uptain v. State, supra; Rice v. State, supra. See also Johnson v. State, 169 Ala. 10, 53 So. 769; Pilley v. State, 247 Ala. 523, 25 So. 2d 57; Johnson v. State, 247 Ala. 271, 24 So. 2d 17; Snead v. State, 251 Ala. 624, 38 So. 2d 576. There is nothing in the opinion in Peters v. State, 240 Ala. 531, 200 So. 404, or in the opinion in Roberts v. State, 36 Ala.App. 491, 59 So. 2d 821, which supports the position of appellant to the effect that irrespective of the fact that there is absolutely no evidence to support *407 the defendant's plea of insanity, it is error for the trial court to instruct the jury to the effect that the insanity plea cannot be considered. We understand the opinion in the Peters Case, supra, to show that there was some evidence tending to support the defendant's plea of insanity. In Roberts v. State, supra, the Court of Appeals was dealing with a charge wherein the trial court had in effect given an affirmative instruction in favor of the State in regard to the defendant's plea of not guilty.
In accordance with our duty in cases of this character, we have examined the record for any reversible error, whether pressed upon our attention or not. We have dealt herein with all questions calling for treatment. We find no reversible error in the record and the cause is due to be and is affirmed.
Affirmed.
All the Justices concur. | June 25, 1959 |
06bdb05a-f465-4bc2-bd20-70c9ece4004c | State v. Lamson & Sessions Company | 114 So. 2d 893 | N/A | Alabama | Alabama Supreme Court | 114 So. 2d 893 (1959)
STATE of Alabama and Tax Assessor of Jefferson County,
v.
LAMSON & SESSIONS COMPANY.
6 Div. 253.
Supreme Court of Alabama.
October 8, 1959.
*894 John Patterson, Atty. Gen., Willard W. Livingston and Wm. H. Burton, Asst. Attys. Gen., for appellants.
Martin & Blakey, Harold Williams and Donald L. Collins, Birmingham, for appellee.
COLEMAN, Justice.
The Tax Assessor of Jefferson County added to the ad valorem tax return of the appellee, taxpayer, an item listed as "20. Supplies, raw materials and manufactured articles of manufacturers, not including products manufactured within twelve months and stored at point of manufacture." in the assessed value of $229,100. Taxpayer appealed to the circuit court where ninety-five per cent of the additional assessment, being $217,645, was annulled and set aside. From the judgment of the circuit court, the tax assessor and the State have taken the instant appeal.
Appellants insist that the trial court erred in holding that ninety-five per cent of the raw material inventory is not subject to ad valorem tax and is specifically exempt therefrom under Title 51, § 2, paragraph (I), Code 1940, which recites as follows:
This case is not concerned with the statutory requirement as to when the "raw material" was produced. As we understand the record, the State agreed that the material here in question was "produced during the current calendar year."
For a condensed statement of the facts and the contentions of taxpayer, we quote the following excerpts from taxpayer's brief:
Taxpayer's argument, in short, is that the legislature intended to exempt a manufacturer's basic material stocked for manufacturing purposes, whether such basic material is raw in the ordinary sense or not; that "raw material" is a relative term; and that which is a manufactured product to one taxpayer may be "raw material," within the meaning of the statute, to another taxpayer.
The question in the case may be fairly stated as follows: Are the steel rods and bars, which are stored at taxpayer's plant for manufacturing purposes in Alabama, raw material, and, therefore, exempt from ad valorem tax under paragraph (l) of § 2, Title 51, Code 1940?
We answer in the negative and hold that said roads and bars are not raw material within the meaning of the statute.
Appellants state in brief, and correctly, so far as we have ascertained, that, as to construction of paragraph (l), supra, this is a case of first impression. We must undertake then, to construe the statute from its language and under applicable rules of construction.
We have found no definition of "raw material" in the statute. "* * * There is a generally accepted canon of statutory construction to the effect that where there is nothing to indicate to the contrary, words in a statute will be given the meaning which is accepted in popular everyday usage. * * *" Republic Steel Corp. v. Horn, 268 Ala. 279, 105 So. 2d 446, 447; Ala.Digest, Statutes, "Raw" has been defined as:
*896 Looking to the language of paragraph (l), supra, the statute grants exemption as to "raw material." If the legislature intended to grant exemption as to all "material" produced during current calendar year stocked for manufacturing purposes, why was the word "raw" used? The answer must be that only raw material was to be exempt, and material that was not raw should not be exempt.
Immediately following the words "raw material," the words "including coke" were inserted. If the legislature intended to exempt all material stocked for manufacturing purposes, why was it felt necessary to expressly state that coke was to be included in the exempt material? Coke is defined as:
Appellee's witness, R. W. Mooty, a metallurgist with 35 years' experience, testified that coke is employed in refining iron ore. Coke is certainly not a raw material in the primary sense because it is not found in nature in the form of coke, but is a material made from coal. The legislature must have recognized this fact, recognized further that coke would not be considered as included within the term "raw material," and, in order to provide an exemption for coke, thought it necessary to expressly state that coke should be included as a raw material, although it would not ordinarily be so considered.
Where a statute enumerates certain things on which it is to operate, the statute is to be construed as excluding from its operation all those things not expressly mentioned. Champion v. McLean, 266 Ala. 103, 112, 95 So. 2d 82. Here the statute has expressly enumerated coke as a manufactured material which is to be included as a raw material. Under the rule of construction, the statute is to be construed as excluding from its operation all other manufactured materials not expressly mentioned. We think the language clearly shows that the legislature did not intend to include special clemistry steel rods and bars as raw material under paragraph (l), supra.
If taxpayer's inventory of supplies is to be exempt from tax under the statute, the statute must show in clear and unambiguous terms the intention of the legislature to grant the exemption, "* * * for the right of taxation is essential to the existence of all governments, * * * and it is never to be presumed that this right is abandoned or surrendered unless it clearly appears that such was the intention. * * *" Stein v. Mayor, Aldermen and Common Council of Mobile, 17 Ala. 234, 239. "* * * `* * * "Taxation is the rule; exemption the exception." * * * When therefore it is claimed that by legislation any species of property, * * * is relieved from its just proportion of public burdens, the intention to release it ought to be expressed in clear and unambiguous terms; it ought not to be deduced from language of doubtful import, nor when there is room for just controversy as to the legislative intent. * * * A statute creating an exception from taxation, or substituting, for the benefit of an individual or a corporation, taxation less onerous than that which others must bear "belongs to a class of statutes in which the narrowest meaning is to be taken which will fairly carry out the intent of the Legislature." * * *'" Brown v. Protective Life Insurance Co., 188 Ala. 166, 168, 169, 66 So. 47; see also, Ala.Digest, Taxation, Giving full consideration to appellee's argument, we think the most that can be said is that it creates "room for just controversy as to the legislative intent."
*897 The statute exempts "raw material." The taxpayer says that means to include "These steel rods" which "* * * cannot be classified as a raw material in its natural state." Under the rule of strict construction, the doubt must be resolved against taxpayer who seeks to enlarge the exemption to include material admittedly not in its natural state and which can be called "raw" only in the sense that from it taxpayer makes something else of different size and shape.
In City of Henderson v. George Delker Company, 193 Ky. 248, 235 S.W. 732, decided in 1921 and relied on by appellee, the court held that taxpayer who finished and assembled parts into buggies was a manufacturer, and that the parts were "raw material" under the Kentucky statute. The court there said that "raw material" did not necessarily mean "crude material in its natural state," under the statute which exempted: "* * * `machinery and products in course of manufacture of persons, firms or corporations actually engaged in manufacturing and their raw material actually on hand at their plants for the purpose of manufacture,' * * *." 235 S.W. 732. The statute quoted contains no mention of any particular substance, such as "including coke," which is found in paragraph (l) of § 2, Title 51, Code 1940. This difference, we think, is sufficient to distinguish the cited Kentucky case from the case at bar. Moreover, the same Kentucky court, construing the same statute in 1943, decided that rough lumber, which had been made from logs by taxpayer and was held in stock for further processing, was not exempt as raw material. The 1943 opinion in pertinent part recites:
We have carefully examined the other cases cited by appellee. To discuss those authorities in detail would unduly lengthen this opinion. While the cited cases do contain expressions supportive of appellee's contentions, each of them, as it appears to us, can be distinguished from the instant case.
The rods and bars here under consideration are made to order and vary as to diameter, cross-section, and length. Some bars or rods have chemical content different from that of other bars or rods, and are unquestionably manufactured products in the sense that iron ore has been refined, mixed with other elements, and shaped to fit varying specifications. They are clearly not in the same state as when found in nature, but have been made into something else by the hand of man. We are of opinion that the steel rods and bars which constitute taxpayer's inventory are not raw material within the meaning of the statute.
The judgment of the circuit court is reversed and the cause is remanded.
Reversed and remanded.
LAWSON, STAKELY, GOODWYN and MERRILL, JJ., concur. | October 8, 1959 |
d5b83844-967d-4f91-af40-f2426326835b | American Liberty Ins. Co. of Birmingham v. Leonard | 115 So. 2d 470 | N/A | Alabama | Alabama Supreme Court | 115 So. 2d 470 (1959)
AMERICAN LIBERTY INSURANCE COMPANY OF BIRMINGHAM, Ala.,
v.
Howard Ensign LEONARD, Jr., et al.
1 Div. 831.
Supreme Court of Alabama.
November 5, 1959.
*472 McCorvey, Turner, Johnstone, Adams & May, Mobile, for appellant.
Jos. M. Powers, Mobile, for appellees.
STAKELY, Justice.
This is an appeal from a decree of the equity court overruling the demurrer of the American Liberty Insurance Company of Birmingham, Alabama, to the bill of complaint as last amended, instituted by Howard Ensign Leonard, Jr. and Peggy E. Leonard. The purpose of the bill is to secure a revision or reformation of a policy of fire insurance and extended coverage No. 95976 by striking therefrom the dwelling and contents rider No. 252-A2 which was attached to the policy as issued and substituting in lieu thereof dwelling and contents rider No. 248-A2. The pertinent allegations of the bill are set out in the report of the case.
I. According to the allegations of the bill of complaint, as last amended, a revision or reformation of policy No. 95976 is sought by striking therefrom dwelling and contents rider No. 252-A2 and substituting in lieu thereof dwelling and contents rider No. 248-A2. The two riders are attached to the bill of complaint as last amended. They are both long and to a degree at least complicated. Counsel in briefs do not specify the difference in coverage of the two riders, but appear to agree that form 252-A2 which was attached to the policy when it was issued, contains a more restricted coverage. From our examination of the two riders we would say that the policy with form 252-A2 attached is a policy insuring against named perils which are fire and extended coverage. Extended coverage, according to the rider, includes perils of windstorm, hail, explosion, riot, riot attending a strike, civil commotion, aircraft, vehicles, smoke, with certain exceptions.
Rider form 248-A2 appears to cover everything included in rider 252-A2 plus at least two additional coverages, (1) repair and replacement of damaged portions or parts of the house without taking depreciation into consideration, if the insurance is equal to 80 percent of the value, (2) trees, shrubs, plants or lawns to a certain extent. For the purposes of this decision we shall assume that rider 248-A2 contains coverages greater than form 252-A2.
Briefly stated the allegations of the bill of complaint, as last amended, show that the appellant issued its fire and extended coverage insurance policy to the appellees. The appellant did not intend to issue the type policy which was issued but intended to issue another policy. The policy is subject *473 to reformation because of mutual mistake. This mutual mistake consisted in the erroneous issuance of the policy. The appellant issued the wrong policy. The appellant failed to inform the appellees of the type of coverage being given them. The appellees mistakenly accepted the policy thinking that they had gotten the same adequate coverage as others similarly situated.
Section 59, Title 9, Code of 1940, provides, as follows:
This statute is merely declaratory of the established principle applicable to the reformation of instruments. American-Traders' Nat. Bank v. Henderson, 222 Ala. 426, 133 So. 36. A counterpart to the foregoing statute is found in § 136, Title 47, Code of 1940, wherein the words "deed, mortgage, or other conveyance" are substituted in place of the words "written contract."
Accordingly cases involving revision or reformation of a "deed, mortgage, or other conveyance" are just as applicable to a situation such as the instant one which involves the reformation or revision of a written contract of insurance. The terms of the statute are plain and unambiguous and give the equity court power to reform or revise a written contract only when the requirements of the statute have been met. The statute requires either a mutual mistake of both parties or a fraud on the part of one of the parties or a unilateral mistake of one party which the other party at the time knew or suspected. In addition to these alternative grounds for equitable relief, there is the requirement that as a result of one of the alternative circumstances the written contract "does not truly express the intention of the parties."
Upon a careful consideration of the allegations of the bill of complaint, as last amended, it is our judgment that none of the requirements of the statute for the granting of a reformation or revision of the policy have been met.
Assuming that certain mistakes are set out in the allegations, we think it is obvious that they are merely a series of unilateral mistakes on the part of the appellant with possibly one unilateral mistake of the appellees, none of which are mutual.
In Burgin v. Sugg, 204 Ala. 270, 85 So. 533, 534, this court in reversing the lower court for overruling a demurrer to a bill of complaint seeking reformation of a written contract stated:
In Kant v. Atlanta, Birmingham & Atlantic R. Co., 189 Ala. 48, 66 So. 598, 599, this court in affirming a decree for the respondent said:
It should be noted that reformation or revision because of a unilateral mistake is authorized only when there is fraud or inequitable conduct on the part of the other party to the contract. In Webb v. Sprott, 225 Ala. 600, 144 So. 569, 572, this court said:
Of course on demurrer the allegations of the bill of complaint must be construed most strongly against the pleader. Construing the allegations of the bill of complaint as last amended in their most favorable light for the appellees, we cannot say that the allegations of the bill in regard to mutuality or mistake are sufficient to render the bill not subject to demurrer.
II. But the complaint contains allegations that if the appellees are mistaken in the allegations that the contract of insurance was issued erroneously or by mistake, the appellant fraudulently misrepresented to the appellees that the policy contained the same coverage as being provided for other property owners in the same subdivision and that therefore the contract is subject to revision because of fraud of the appellant and mistake of the appellees. This pleading does not meet the requirements of our cases.
In Richardson v. Curlee, 229 Ala. 505, 158 So. 189, 190, this court said:
In Groover v. Darden, 259 Ala. 607, 68 So. 2d 28, 32, this court said:
It is not alleged in the bill of complaint that the policy received by the appellees did not in fact contain the same coverage as was provided others in the same subdivision. It cannot be said on the allegations of the bill of complaint as last amended that the appellant issued policies to other owners in the same subdivision or had any knowledge whatever of the coverage afforded the other owners.
III. As we showed above revision or reformation is designed to make the instrument speak the true intent of the parties. There must have been a meeting of the minds of the parties. The court cannot make a new contract for the parties or establish as a contract between them that which it is supposed they would have made had they understood the facts. The function of equity is to "reform an instrument only for the purpose of having it express the understanding and agreement of the parties." Reeves v. Thompson, 225 Ala. 204, 142 So. 663.
It does not appear from the allegations of the bill of complaint as last amended that there was any agreement between the appellant and the appellees. In fact the allegations of paragraph four of the bill of complaint negative any possibility that there was or had been any prior agreement or meeting of the minds. Here are *475 the allegations: "The complainant further avers that the respondent issued the policy to the complainants herein without such policy being solicited from the respondent or any policy being solicited from the respondent. * * *"
In addition to the excerpts from the authorities which we have referred to above we add the following. In Atlas Assur. Co., etc. v. Byrne, 235 Ala. 281, 178 So. 451, this court said:
In Kant v. Atlanta, Birmingham & Atlantic R. Co., 189 Ala. 48, 66 So. 598, 599, this court said:
Furthermore in Welsh v. Neely, 187 Ala. 222, 65 So. 795, 796, involving an action for reformation of a conveyance, this court said:
To sum up the situation there are three grounds upon which a party to a written contract or policy of insurance can have such a contract revised or reformed: (1) Because of mutual mistake of both parties to the contract, the contract fails to express the intention of the parties; (2) because of a unilateral mistake on the part of one of the parties, which the other party knew or suspected, the contract fails to express the intention of the parties; or (3) because of fraud the contract fails to express the intention of the parties.
We have reached the conclusion that the lower court acted incorrectly in overruling the demurrer to the bill of complaint as last amended.
Reversed and remanded.
LIVINGSTON, C. J., and LAWSON and MERRILL, JJ., concur. | November 5, 1959 |
95266c61-dfd1-464c-b253-ecf70a3da777 | Louis Pizitz Dry Goods Company v. Harris | 118 So. 2d 727 | N/A | Alabama | Alabama Supreme Court | 118 So. 2d 727 (1959)
LOUIS PIZITZ DRY GOODS COMPANY
v.
Mary D. HARRIS.
6 Div. 416.
Supreme Court of Alabama.
December 17, 1959.
Rehearing Denied March 24, 1960.
*728 Sadler, Sadler, Sullivan & Herring, Birmingham, for appellant.
Berkowitz, Lefkovits & Paden, Birmingham, for appellee.
LAWSON, Justice.
This is an action for damages for personal injuries alleged to have been sustained by plaintiff, Mrs. Mary D. Harris, on June 30, 1956, when she slipped and fell upon the sidewalk in front of the store of the defendant, Louis Pizitz Dry Goods Company, at 1821 Second Avenue, North, in the City of Birmingham.
The jury returned a verdict in the amount of $10,000. Judgment was entered accordingly.
Upon the filing by the plaintiff of a remittitur of all damages in excess of $7,000, *729 the defendant's motion for a new trial was overruled. A final judgment in the amount of $7,000 was entered and this appeal followed.
The owner of property abutting on a public way is under no common-law duty to keep it in repair. If, through natural causes, it becomes dangerous and persons traveling thereon are injured, the abutting owner is not liable. Texas Co. v. Williams, 228 Ala. 30, 152 So. 47. See City of Birmingham v. Wood, 240 Ala. 138, 197 So. 885; Hill v. Reaves, 224 Ala. 205, 139 So. 263.
An abutting owner, however, owes a duty to the public to do no affirmative act that will create an unsafe condition in the public way fronting his property. It is his duty to use reasonable care to see that the portion of the sidewalk used by him is kept in a reasonably safe condition for pedestrians. Texas Co. v. Williams, supra; Van Antwerp Realty Corp. v. Walters, 253 Ala. 187, 43 So. 2d 537.
The general rule seems to be that whatever it is that causes the harm to the pedestrian, if it is the affirmative act of the abutting owner, whether it be from the spilling of melted snow or rain cast on the sidewalk by such owner (Douglas v. Johnson, Sup., 16 N.Y.S.2d 644; Troy v. Dix Lumber Co., 300 Mass. 214, 15 N.E.2d 272; Annotation in 34 A.L.R. beginning at page 409); or escaping oil (Collais v. Buck & Bowers Oil Co., 175 Wash. 263, 27 P.2d 118); or wet vegetable leaves left on the sidewalk (Fadem v. City of St. Louis, Mo. App., 99 S.W.2d 511); or spilled gasoline on the sidewalk (Hanlon v. City of Waterbury, 108 Conn. 197, 142 A. 681); or water mixed with dirt or silt (Cobb v. Salt River Valley Water Users' Ass'n, 57 Ariz. 451, 114 P.2d 904), he is liable for the resulting harm to a pedestrian who was injured while exercising due care.
The defendant does not contend that the law is other than as stated above, but does insist that under the facts as shown by the record before us, it was entitled to the general affirmative charge with hypothesis and that the trial court erred in refusing that charge, which was duly requested in writing.
Defendant says that it was entitled to the affirmative charge with hypothesis for two reasons: First, no proof of negligence on part of defendant. Second, contributory negligence of plaintiff.
In treating of this insistence, 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 the trial court in refusing the charge must be affirmed. Liberty National Life Ins. Co. v. Weldon, 267 Ala. 171, 100 So. 2d 696, 61 A.L.R.2d 1346, and cases cited.
Mrs. Harris fell on the concrete sidewalk adjacent to defendant's store at about 9 o'clock in the morning on a clear dry day. She was on her way to keep a beauty parlor appointment at defendant's store.
Tendencies of the evidence are to the effect that Mrs. Harris slipped and fell after stepping into a small stream composed of water and ammonia which had been used by defendant's employee in washing defendant's display windows. The stream of water and ammonia ran from a display window across the sidewalk. The stream was approximately one inch wide. It had "gathered some dust but there was [sic] no objects in the water such as dirt or debris."
According to the defendant's answer to interrogatories approximately one teaspoon of ammonia was mixed with ten quarts of water to make the solution needed to clean the defendant's display windows.
H. Leroy Thompson, a chemical engineer, testified for the plaintiff. After stating his *730 qualifications and familiarity with water and ammonia, he was asked the following question:
After the question was reframed so as to show that the sidewalk was made of concrete, the trial court overruled objections of the defendant interposed to the question and the witness answered: "The opinion is that the sidewalk was likely to be more slippery, under those circumstances."
The witness was then asked to state the basis of his opinion. He replied:
In Alabama the rule in civil cases is that the case must go to the jury if the evidence or the reasonable inferences arising therefrom furnish "a mere `gleam,' `glimmer,' `spark,' `the least particle,' the `smallest trace', `a scintilla'" in support of the theory of the defendant's liability. Ex parte Grimmett, 228 Ala. 1, 152 So. 263, 264; Alabama Great Southern R. Co. v. Bishop, 265 Ala. 118, 89 So. 2d 738, 64 A.L. R.2d 1190.
We are unable to say that there was no scintilla going to sustain plaintiff's contention that she was caused to fall by the negligence of the defendant's servant.
As we construe the evidence, the jury could find therefrom that the accident was due to the one cause, to wit, the slippery condition of the sidewalk which resulted from the presence on the sidewalk of a mixture of water and ammonia negligently cast thereon by defendant's servant.
It was a jury question as to whether the defendant breached its duty to use reasonable *731 care to see that the part of the sidewalk used by it in washing its windows was kept reasonably safe for pedestrians. Texas Co. v. Williams, supra; Cobb v. Salt River Valley Water Users' Ass'n, supra.
The present case is distinguishable on the facts from Cox v. Goldstein, 255 Ala. 664, 53 So. 2d 354, and from Opelika Montgomery Fair Co. v. Wright, 36 Ala.App. 1, 52 So. 2d 404, certiorari denied, 255 Ala. 499, 52 So. 2d 412.
In Cox v. Goldstein, supra, the plaintiff fell in the vestibule leading to the defendant's store. We affirmed the action of the trial court in giving the affirmative charge for the defendant. However, we pointed out in the opinion that "there was no soap, grease or other foreign slippery substance on the floor except rain water," and said: "It is not the duty of persons in control of such passageways to keep a force of moppers to mop up the rain as fast as it falls or blows in, or is carried in by wet feet or clothing or umbrellas, for several obvious reasons unnecessary to mention in detail." [255 Ala. 664, 53 So. 2d 357]
In the Opelika Montgomery Fair Co. case, supra, the fall occurred on steps inside the store and the Court of Appeals in its opinion pointed out that there was no evidence from which it could be reasonably inferred that there was any foreign substance upon the steps. That court said also that: "The negligence, if any, of the defendant must flow from the slipperiness of the steps inherent in their construction out of the terrazzo, a marble like substance." [36 Ala.App. 1, 52 So. 2d 410]
Here the fall occurred on the sidewalk and there is evidence which tends to show that the defendant's servant cast upon the sidewalk a foreign substance which made the sidewalk slippery.
Plaintiff was under no duty to look out for the cleaning solution on the sidewalk without notice that there was some occasion to do so. Great Atlantic & Pacific Tea Co. v. Miller, 229 Ala. 313, 156 So. 834. There is no direct evidence that she had such notice and her own testimony is positive that she had none and that she did not see the stream of water and ammonia until after she fell. The defendant was not entitled to the general affirmative charge with hypothesis on the ground that the plaintiff was guilty of contributory negligence as a matter of law.
The defendant argues that the trial court committed reversible error in overruling defendant's objection interposed to the hypothetical question asked the witness Thompson on the ground that the question called for an opinion on a matter of common knowledge.
The rule governing admissibility of expert opinion evidence is that such evidence should not be admitted unless it is clear that the jurors themselves are incapable, from want of experience or knowledge of the subject, to draw correct conclusions from the facts proved. It is not admissible on matters of common knowledge. Alabama Great Southern R. Co. v. Bishop, supra, and cases cited.
The effect of a solution of water and ammonia upon a concrete sidewalk is not, in our opinion, a matter within common knowledge and we think the testimony of the chemist was proper to an enlightened consideration and determination of the question whether the defendant was negligent in the manner in which it washed its display windows.
Such testimony could not have prejudiced those of the jury who were equally informed and it might have been of assistance to those not so well posted. Prickett v. Sulzberger & Sons Co., 57 Okl. 567, 157 P. 356.
The defendant contends that the damages as finally fixed are excessive.
Damages for physical pain and mental anguish are in large measure discretionary and the rule is not to reverse on that account unless the amount is so excessive *732 or inadequate as to indicate prejudice, passion, partiality or corruptionnot an easy conclusion after the trial court has approved the verdict. Whitman's Fifth Avenue Garage Co. v. Ricks, 211 Ala. 527, 101 So. 53; Brandwein, d/b/a Brandy's, v. Elliston, 268 Ala. 598, 109 So. 2d 687.
Here the trial court has shown its disapproval of the $10,000 verdict, but it has adjudged, in effect, that the sum of $7,000 is a just award under the facts and circumstances of this case. We are not inclined to disturb the trial court's judgment in that regard.
Judgment affirmed.
Affirmed.
LIVINGSTON, C. J., and STAKELY and MERRILL, JJ., concur. | December 17, 1959 |
21f8d7b8-0d4c-4c05-9987-7e4647987e92 | McCullough v. State | 113 So. 2d 912 | N/A | Alabama | Alabama Supreme Court | 113 So. 2d 912 (1959)
Grover McCULLOUGH
v.
STATE.
6 Div. 451.
Supreme Court of Alabama.
July 2, 1959.
Rehearing Denied August 20, 1959.
Griffin & Wilson, Birmingham, for petitioner.
MacDonald Gallion, Atty. Gen., and John F. Proctor, Asst. Atty. Gen., opposed.
MERRILL, Justice.
Petition of Grover McCullough for certiorari to the Court of Appeals to review and revise the judgment and decision of that Court in McCullough v. State, 113 So. 2d 905.
Writ denied.
LIVINGSTON, C. J., and LAWSON, GOODWYN and COLEMAN, JJ., concur. | July 2, 1959 |
a29ceb9f-d37b-4186-937c-c0d06b6c33a6 | Morgan Plan Co. v. Vellianitis | 116 So. 2d 600 | N/A | Alabama | Alabama Supreme Court | 116 So. 2d 600 (1959)
MORGAN PLAN CO., Inc.
v.
Manuel VELLIANITIS et al.
1 Div. 830.
Supreme Court of Alabama.
December 17, 1959.
*601 Caffey, Gallalee & Caffey, Mobile, for appellant.
Thornton & McGowin, Mobile, for appellees.
MERRILL, Justice.
This is an appeal from a decree sustaining a demurrer to a bill filed by Morgan Plan Company, appellant, against Manuel and Penelope Vellianitis, appellees, seeking a declaration of rights under certain leases and a sublease. The following is a drastic condensation of the allegations of the bill.
Helen R. Meaher leased the Greystone Building to Manuel Vellianitis in 1949, for a primary term of 132 months, ending October 31, 1960. The lease contained an option to renew for an additional term of ten years and a further option for an additional third ten-year term. Shortly after securing this lease, Vellianitis executed a sublease to a portion of the office building to Morgan Plan Company. It was also for a primary term of ten years and contained an agreement that Morgan Plan should have the same rights and privileges of renewal as were accorded Vellianitis by Helen R. Meaher.
In 1956, Morgan Plan gave the Vellianitises notice in writing of its election to renew the lease for an additional ten years, beginning in 1960.
It is then alleged that after receipt of the notice, the Vellianitises began negotiations for a modification of the lease; that they organized a corporation named *602 Blackstone Realty Company and caused the corporation to be named as lessee in the modified lease. This new lease was dated January 1, 1958. It is alleged that there is very little difference in the new lease and the old lease but that it is actually a scheme on the part of the Vellianitises to escape their contractual obligations with the Morgan Plan Company, and that Blackstone took the modified lease with full knowledge and notice of the terms of the sublease from the Vellianitises to Morgan Plan and was a party to the efforts to evade the trust and obligations created by the sublease in favor of Morgan Plan.
It is also alleged that appellees have denied the right of Morgan Plan to a renewal of its lease for the additional term of ten years, claiming that the execution of the new lease defeats appellant's right to renewal.
All the leases are made exhibits to the bill.
It is also alleged that an actual justiciable controversy exists between the parties over the effect of the three leases, particularly over the legal effect of Exhibit F (the lease between Helen R. Meaher and Blackstone).
The bill prays for a declaratory decree that Exhibit F does not have the effect of terminating or defeating appellant's right to a renewal and that the court decree that appellees make the renewal.
We agree with appellant's statement of the question as follows:
Ordinarily, where a bill for a declaratory judgment shows a bona fide justiciable controversy which should be settled, a demurrer thereto should be overruled and a declaration of rights made and entered only after answer and on such evidence as the parties may deem proper on submission for final decree. City of Bessemer v. Bessemer Theatres, 252 Ala. 117, 39 So. 2d 658; Mobile Battle House v. City of Mobile, 262 Ala. 270, 78 So. 2d 642.
However, where both sides have argued the case on the basis that a construction of an instrument is required, and seem desirous of such an interpretation, as here, we proceed to consider the matter even when here on appeal on demurrer. McCall v. Nettles, 251 Ala. 349, 37 So. 2d 635.
In City Garage & Sales Co. v. Ballenger, 214 Ala. 516, 108 So. 257, we held that the lease of real estate for a term of years, reduced to writing and signed by the parties, passes an interest or estate in lands. Here, Morgan Plan had, for a valuable consideration, been granted an option to renew the sublease on the same terms that the lessee, appellees, could renew the lease from the owner.
The primary question has not been directly decided in this State but the rule seems to be in such cases that the original lessee and sublessor cannot evade his obligation to renew the sublease at the instance of the sublessee if he (the lessee) renews his lease in accordance with the terms of the original lease or takes a new lease contract where the terms of the sublease have given the sublessee a similar option in the event that the lessee renews. 127 A.L.R. 953; 32 Am.Jur., Landlord *603 and Tenant, § 986; 51 C.J.S. Landlord and Tenant § 58c.
In Risk v. Risher, 197 Miss. 155, 19 So. 2d 484, 486, it was held that a fiduciary relationship was created, the court saying:
Other cases quoting and applying the principle quoted from Trice v. Comstock, supra, are: Clement v. Cates, 49 Ark. 242, 4 S.W. 776; Johnson v. Knappe, 24 S.D. 407, 123 N.W. 857; Parks v. Brooks, 188 Mich. 645, 155 N.W. 450; Wood v. White, 123 Me. 139, 122 A. 177; Testerman v. Burt, 143 Okl. 220, 289 P. 315; Hivick v. Urschel, 171 Okl. 17, 40 P.2d 1077.
Applying these principles here, the Meaher-Vellianitis lease gave Vellianitis the right to renew and the unqualified right to sublease. The Vellianitis-Morgan Plan lease gave Morgan Plan the right to renew to the same dates Vellianitis had under the original lease. The sublease not only vested rights but it imposed obligations. The Vellianitises were obligated to renew the sublease if the original lease should be renewed. The sublessee, Morgan Plan, having notified the sublessors, the Vellianitises, of its option to renew within the time prescribed by the sublease, a duty was cast upon appellees to perform the contract they had made with appellant when they renewed their lease with Helen R. Meaher.
We find no conflict in the authorities from other jurisdictions on this question. Some of the other cases so holding are: Puetz v. Cozmas, Ind.App., 142 N.E.2d 635; Horn & Hardart Co. v. 115 East 14th Street Co., Sup., 7 N.Y.S.2d 688; Hotel Allen Co. v. Allen's Estate, 117 Minn. 333, 135 N.W. 812; Winestine v. Rose Cloak & Suit Co., 93 Conn. 633, 107 A. 500; *604 Brummitt Tire Co. v. Sinclair Refining Co., 18 Tenn.App. 270, 75 S.W.2d 1022; Robinson v. Beard, 140 N.Y. 107, 35 N.E. 441; Cohen v. Rosen, 157 Va. 71, 160 S.E. 36.
But appellees argue that the sublease gives the right to cancel for any reason. This is based upon Article VII of the sublease which refers to the sublessor as lessors and the sublessee as lessee, and reads:
We cannot agree with appellees' contention. Article VII is identical in language with Item Sixteen of the Meaher-Vellianitis lease. Both the lease and the sublease call for the monthly payment of rent, the carrying of insurance in stated amounts, and other items, which if not carried out, would cause the lease or the sublease to terminate. We do not construe Item Sixteen or Article VII as giving the original lessor or the sublessor a right to cancel for any reason, but that these sections merely define the full effect of the termination if cancelled for any of the reasons authorizing cancellation in the lease or sublease.
We now come to the secondary question of whether the Vellianitises can evade the duty owed to appellant by creating a corporation and taking a slightly modified lease in its name when, according to the allegations of the bill "* * * the respondents, Manuel Vellianitis and Penelope Vellianitis, scheming and attempting to escape their contracted obligation to renew their said lease to complainant for the period from November 1, 1960 to and including October 31, 1970, caused said modified lease agreement with their lessor to be reduced to writing as a new and original lease, naming as lessee the respondent, Blackstone Realty Company, Inc., a corporation organized, owned and controlled by them. And complainant avers that said corporation was organized and was named as lessee in said modified lease as the creature of and for the use and benefit of respondents Manuel Vellianitis, and Penelope Vellianitis, with the intent, and in an effort by them, to escape the aforesaid obligation of their lease contract with complainant, and in violation of their duties to complainant under said lease contract, * *." It is sufficient to say that a court of equity will look through form to substance and "will declare a corporate setup a sham or subterfuge where substantially all of its stockholders organized it for a personal purpose, subversive of the rights of others." Ex parte R. A. Brown & Co., 240 Ala. 157, 198 So. 138, 139; Appelbaum v. First National Bank of Birmingham, 235 Ala. 380, 179 So. 373; Forest Hill Corporation v. Latter & Blum, 249 Ala. 23, 29 So. 2d 298.
Under the allegations of the bill, the creation of Blackstone Realty Company to take the new lease from Helen R. Meaher was merely a scheme on the part of the Vellianitises to escape their contractual obligations with appellant.
We attach little importance to the fact that Vellianitis did not renew his lease with Helen R. Meaher but took a new one in the name of Blackstone Realty Company. A lessee who sublets a portion of the premises, with the privilege of renewal for a specified term in case he obtains from the original lessor an extension of his lease, is bound by his covenant to the sublessee when he secures a new lease instead of an extension. Sharp v. Williams, 141 Fla. 1, 192 So. 476; Hausauer v. Dahlman, 18 App.Div. 475, 45 N.Y.S. 1088, affirmed 163 N.Y. 567, 57 N.E. 1111.
It is not necessary to discuss other points raised in briefs. The demurrer was sustained to the bill as a whole and if any *605 aspect thereof was good, the court erred in sustaining the demurrer. Florence Gin Co. v. City of Florence, 226 Ala. 478, 147 So. 417; Cunningham v. Andress, 267 Ala. 407, 103 So. 2d 722.
We have shown that the bill contained equity in that a justiciable controversy exists as to the construction of the leases made exhibits to the bill. In view of the above, the lower court erred in sustaining the demurrer and the decree must be reversed and the cause is remanded.
Reversed and remanded.
LIVINGSTON, C. J., and LAWSON and STAKELY, JJ., concur. | December 17, 1959 |
c78b52cc-9f4f-4a62-adf1-8e98ec378271 | Monte v. Montalbano | 145 So. 2d 197 | N/A | Alabama | Alabama Supreme Court | 145 So. 2d 197 (1962)
Rose MONTE et al.
v.
Ross MONTALBANO et al.
6 Div. 405.
Supreme Court of Alabama.
September 20, 1962.
*198 Knabe & Nachman, Montgomery, Oberdorfer & Oberdorfer, Birmingham, and Huey, Stone & Patton, Bessemer, for appellants.
McEniry, McEniry & McEniry, Bessemer, for appellees.
COLEMAN, Justice.
This is an appeal by cross-respondents from a decree of the circuit court, in equity, which denied relief on a bill of complaint and granted the relief prayed for in a cross bill. The cross bill sought a sale of real estate for division of the proceeds among cross-complainants and one of the cross-respondents as tenants in common. The decree was rendered on testimony heard ore tenus.
The cross-complainants and one of the cross-respondents, namely, Rose Monte, are the children and heirs of Caterino Montalbano who died intestate in 1928. Rose Monte and the other cross-respondent, Tony Rose, claim that they have acquired the entire title to the real estate by adverse possession. The only issue is whether or not the cross-respondents, Rose Monte and Tony Rose, have acquired title by adverse possession. The court resolved this issue against cross-respondents. We think the court was correct.
The suit commenced by statutory bill to quiet title. The appellants are the complainants in the bill, i. e., Rose Monte and Tony Rose, who alleged that they purchased the suit property in 1944 from Martin and Deason. Complainants alleged that they have been in actual, peaceable possession since December 15, 1944, and have assessed the property for taxation in their own names and paid the taxes throughout the period. The property is a lot in Bessemer.
Complainants further aver that the lot was sold for taxes in 1939 on an assessment to Caterino Montalbano who died intestate in 1928. Caterino Montalbano owned the property at the time of her death. She left surviving her a husband and seven (now six) children. The complainant (cross-respondent), Rose, is one of the children. The respondents (cross-complainants) are the other children of Caterino. Her surviving husband, Louis, executed a quit claim deed to complainants. This deed is dated December 18, 1944. Louis died December 3, 1947. Suit was begun in January, 1958.
In the cross bill, it is alleged that in 1939 the lot was sold for taxes to the state. In 1943, the state sold to Martin. Martin later sold one-half interest to Deason. By deed dated December 15, 1944, Martin and Deason conveyed to Rose Monte and Tony Rose, the cross-respondents. Tony is the brother of Caterino and uncle of Rose and the cross-complainants. Since the death of Louis Montalbano in 1947, cross-respondents have collected rents, allegedly far in excess of the amount of taxes, and have made no accounting to cross-complainants. The cross-complainants offered to do equity.
In answer to the cross bill, cross-respondents assert adverse possession since December 15, 1944, and that they have assessed the property for and paid taxes thereon in their own names; that their possession has been exclusive and this exclusive claim of ownership has been known to cross-complainants, "or should have been known to them by their exercise of reasonable diligence"; and that the cross-respondents have collected rents and never made accounting, or been called on to account, during all said *199 period. Cross-respondents deny that cross-complainants are tenants in common or have any interest in the lot.
Demurrer to the cross bill was overruled, and appellants complain of this ruling. In argument, however, appellants have argued many assignments together and we do not understand that the ruling on demurrer was incorrect if the final decree be correct. Accordingly, without separate attention to the demurrer, we discuss the proposition argued by appellant. The cross bill was sufficient, we think, under Coppett v. Monahan, 267 Ala. 572, 103 So. 2d 169.
In the final decree the court found that the possession of Rose Monte was for and on behalf of all the tenants in common, that no ouster of the cross-complainants ever took place, nor was there any holding of adverse possession by cross-respondents. The court decreed that the cross-complainants and the cross-respondent, Rose Monte, owned the lot as tenants in common, and that cross-respondent, Tony Rose, has no title or interest in the property. Sale for division was ordered.
The decree recites that since the death of the life-tenant in December, 1947, appellants have collected and retained rents in the amount of $10,189.00, which far exceeds the amounts by them expended for improvements, taxes, and other expenditures in regard to the property, and that an accounting therefor substantially favors appellees. Appellees, however, did not insist on a judgment for rents collected and none is rendered or to be rendered.
Cross-respondents assign the decree as error. There are fifty-nine assignments of error. Appellants have argued four propositions in support of their insistence for reversal, and these propositions, we think, fairly present the matters complained of.
The real question in the case is whether or not cross-complainants have lost the title which they inherited from their mother, Caterino Montalbano, as the result of adverse possession of the property by Rose Monte and Tony Rose.
Appellants argue first that they have title by the three-year statute, Title 51, § 295, Code 1940.
Second, appellants argue that the court erroneously treated Tony Rose as a cotenant and erroneously applied standards and principles applicable to adverse possession among cotenants.
Third, appellants argue that, even if they were cotenants of appellees, the testimony shows that appellants were entitled to prevail.
Fourth, appellants argue that appellees are not entitled to recover because they are guilty of laches.
The tax sale in 1939 is admittedly void. Land cannot be assessed for taxation as property of a deceased owner or of his estate, and a sale founded on such an assessment is a nullity. Jackson v. King, 82 Ala. 432, 3 So. 232; Webb v. Griffin, 243 Ala. 468, 10 So. 2d 458.
Inasmuch as Caterino Montalbano died intestate, her surviving husband, Louis, was entitled "to the use of the realty during his life." Title 16, § 12, Code 1940. Cross-respondents held a deed from the life-tenant, Louis, dated December 18, 1944. This is three days after the date of the deed to cross-respondents from Martin and Deason which date was December 15, 1944. Both deeds were filed for record in the office of the Judge of Probate on the same day, December 18, 1944. Both deeds are recorded in the same deed book, one deed on page 519, and the other on page 520. Whether cross-respondents held under the deed from the life-tenant or under the deed from the purchasers from the state, or both, is immaterial. Until the termination of the life estate by the death of Louis on December 3, 1947, there could be no adverse holding against cross-complainants, the remaindermen. The statute of limitations never *200 runs against the remaindermen or reversioner during the existence of the life estate, nor can there be any adverse possession as to him. Pickett v. Doe ex dem. Pope, 74 Ala. 122; Head v. Taylor, 272 Ala. 241, 130 So. 2d 4.
Rose Monte is a tenant in common with respondents. The possession of one tenant in common is prima facie presumed to be the possession of all, and it does not become adverse to the cotenants unless they are actually ousted, or, short of this, unless the adverse character of the possession of one is actually known to the others, or the possession of the one is so open and notorious in its hostility and exclusiveness as to put the other tenants on notice of its adverse character. Ashford v. Ashford, 136 Ala. 631, 34 So. 10.
The mere fact that a cotenant in possession has taken all the rents and profits does not show ouster of his companions. Markstein v. Schilleci, 258 Ala. 68, 61 So. 2d 75, and cases there cited.
Mere lapse of time and payment of taxes by one cotenant are not, in tenancies in common, necessarily acts of disseisin. There must be an entry and continuous exclusive possession under a claim of exclusive right. Possession and use by one tenant in common will not, of itself, repel the presumption that the possession is that of all the tenants in common. The intent to hold as exclusive owner, repudiating the rights of cotenants, must be established by proof and brought home to them. The redemption from a tax sale by one cotenant inures to the benefit of all cotenants. Coppett v. Monahan, 267 Ala. 572, 103 So. 2d 169.
This record is utterly devoid of evidence to show that knowledge of the adverse character of the possession of Rose Monte was ever brought home to the five (now four) cotenants who appear to be non-residents of this state. The burden was on appellants to present this proof and they have failed to support the burden. The result is that the circuit court was not in error in concluding that Rose Monte had not acquired title against her cotenants by adverse possession.
We have not overlooked the evidence as to Ross Montalbano, the brother and cotenant who resided in Jefferson County. There is testimony that he was told, some twelve years before suit commenced, that Rose and Tony owned the property. Ross, however, denied that he had been told. The court, who heard him testify ore tenus, will not be put in error for taking his testimony as true.
Ross admitted that he knew that the property had been sold for taxes. There is no evidence that any other cross-complainant had such knowledge. There is no evidence that Ross acted for the other cross-complainants or that they are chargeable with the knowledge Ross possessed.
Appellants contend that the cotenants were bound to come in within a reasonable time and contribute to the cost of redeeming from the tax sale. Five (now four) cotenants had no knowledge of the tax sale, so far as the record shows. On the authority of Markstein v. Schilleci, supra, we are of opinion that the non-resident cotenants cannot be held guilty of laches for failure to contribute. Under these circumstances and § 276, Title 51, Code 1940; Finerson v. Hubbard, 255 Ala. 551, 52 So. 2d 506; and Bell v. Williams, 256 Ala. 298, 54 So. 2d 582, we are of opinion that the court did not err in holding that the rights of Ross were not barred by laches for his failure to offer to contribute at an earlier date.
Appellants argue further that whatever may be the situation between Rose Monte and her cotenants, the uncle, Tony Rose, was a stranger to the cotenancy and it was not necessary, in order to make his holding adverse, that knowledge of the adverse character of his possession be brought home to cross-complainants.
*201 We think the answer to this contention is that the possession of Tony Rose was not adverse to cross-complainants because the possession of Tony Rose was never exclusive. Actual possession, continuous and under claim of right or claim of ownership, for 25 or 30 years, is still not adverse possession unless it is exclusive. Bowles v. Lowery, 181 Ala. 603, 62 So. 107.
Tony Rose held at all times as cotenant of Rose Monte. As we have undertaken to show, the court could find that Rose Monte held as cotenant of cross-complainants. The holding of Tony Rose, on such a finding, was not exclusive and, therefore, was not adverse.
The situation of Tony Rose has similarity to that of a stranger to the title who, jointly with one who had a right to redeem, redeemed from the purchaser at a mortgage foreclosure sale. This court said that the jointly redeeming stranger took the title as a trustee in invitum, and this joint redemption inured to the benefit of the cotenants of the one who had a right to redeem. Braly v. Polhill, 231 Ala. 633, 166 So. 419. Tony Rose, we think, was a trustee in invitum for the cotenants of Rose Monte.
Appellants argue that because Tony Rose put up all the money for the purchase from Martin and Deason, Rose Monte holds as resulting trustee for Tony Rose. Whether Rose Monte is such trustee or not is of no concern to the cross-complainants. Rose Monte did not testify. We do not see the relevancy of the principles which have to do with resulting trusts. The bill of complaint avers that both respondents purchased from Martin and Deason.
On the question of laches, we think the court could find cross-complainants not guilty. This court has said:
Cross-respondents have been amply reimbursed for the money they spent on the property. Injury to them by the delay does not appear.
We are of opinion that error has not been shown.
Affirmed.
LIVINGSTON, C. J., and GOODWYN and HARWOOD, JJ., concur. | September 20, 1962 |
4c287960-de23-48d7-8520-e44140fa7fa6 | Lambeth v. GULF, MOBILE AND OHIO RAILROAD COMPANY | 141 So. 2d 170 | N/A | Alabama | Alabama Supreme Court | 141 So. 2d 170 (1962)
Isaac J. LAMBETH
v.
GULF, MOBILE AND OHIO RAILROAD COMPANY.
1 Div. 3.
Supreme Court of Alabama.
May 10, 1962.
*171 Leon G. Duke and Seale, Marsal, Seale & Duke, Mobile, for appellant.
Lyons, Pipes & Cook, Mobile, for appellee.
SIMPSON, Justice.
Action by appellant for damages to person and property when he drove his automobile into a flatcar of appellee as its train of cars was proceeding slowly on its track across a public crossing in Mobile, Alabama.
After the appellant introduced his evidence seeking to prove negligence of the appellee, he rested his case, and the appellee, without introducing any evidence, moved the court to exclude the evidence. The court thereupon granted the motion and directed a verdict for the defendant. Judgment was rendered accordingly and the plaintiff brings this appeal.
While the practice of granting a motion to exclude the evidence in a civil action has been criticized (Carter v. City of Gadsden, 264 Ala. 544, 88 So. 2d 689; Dorough v. Alabama Great Southern Railroad, 221 Ala. 305, 128 So. 602), nevertheless, the granting of such motion is not error to reverse where either (1) plaintiff's evidence fails to make out a prima facie case (Cooper v. Providence Hospital, 272 Ala. 283[3], 130 So.2d 8); or (2) the evidence shows without dispute that the plaintiff was guilty of contributory negligence as a matter of law which proximately caused or contributed to his damages. Dorough, supra.
Pretermitting discussion of the negligence, vel non, of the defendant, we address ourselves to the question of whether or not the plaintiff was guilty of contributory negligence which proximately caused his damages. We hold that he was and this is dispositive of the case.
The evidence showed that the accident occurred about 10:00 P.M. on a clear night when the appellant had a clear view of the crossing several hundred yards before reaching it; there was no fog or smoke or anything to obstruct his vision; although he was not a regular traveler on that road, he traveled it about twice a year, had been over it four or five months previously, and knew that the track was there. There was a gradual curve in the road but there was a straight stretch of road for a considerable distance before reaching the crossing. Some considerable distance from the crossing there was a circular warning sign, plainly visible, bearing the letters "R/R". In addition to this sign, also visible for a considerable distance from the track, there were two "crossbuck" signs and an Alabama "Stop" sign. Appellant testified he knew these signs were warnings of a railroad crossing, but claimed he did not notice them, but instead was traveling about 40 to 45 miles per hour and did not reduce his speed until within about 38 feet of the train, when he first saw it on the track blocking the crossing, which was too late to avert the crash; he knew he should not override his lights, meaning "drive so fast that you can't see an object in time to stop", *172 which he was doing; he was traveling at such a rate of speed that when he saw the train on the crossing he could not then stop his automobile to avoid the collision.
The general rule, and governing here to sustain the ruling of the trial court, is that where a motorist fails to "Stop, Look & Listen" before crossing a railroad track, and he thereby runs into or collides with a train on its track at a public crossing, he is guilty of contributory negligence as a matter of law and his negligence will be treated as the sole proximate cause of his injuries. Coe v. Louisville & N. R. Co., 272 Ala. 115, 130 So. 2d 32; Watson v. Birmingham Southern R. Co., 259 Ala. 364, 66 So. 2d 903; Johnston v. Southern Ry. Co., 236 Ala. 184, 181 So. 253; Southern Ry. Co. v. Lambert, 230 Ala. 162, 160 So. 262; St. Louis-San Francisco Ry. Co. v. Guthrie, 216 Ala. 613, 114 So. 215, 217, 56 A.L.R. 1110; Louisville & N. R. Co. v. Outlaw, 36 Ala.App. 278, 60 So. 2d 367, cert. den. 257 Ala. 585, 60 So. 2d 377.
The controlling principle of law, many times reaffirmed by this court, is well stated in Southern Railway Co. v. Lambert, 230 Ala. 162, 160 So. 262, as follows:
Coe v. Louisville & Nashville R. Co., 272 Ala. 115, 130 So. 2d 32; Watson v. Birmingham Southern R. Co., 259 Ala. 364, 66 So. 2d 903.
Appellant argues that the rule of Callaway v. Adams, 252 Ala. 136, 40 So. 2d 73, controls the instant situation. That case, however, is without influence here. There, because of the peculiar environment surrounding the railroad crossing, special conditions of hazard such as the topography and grade and course of the highway and overhanging tree limbs obstructing the signal light, the presence of the train could not, by the exercise of reasonable care, be discovered until immediately upon it, thus disclosing an environment producing such special circumstances or conditions of hazard as made it a jury question as to whether or not the railroad company was guilty of negligence, and whether or not plaintiffa stranger to the situationwas guilty of contributory negligence. Here, however, no conditions of hazard and no peculiar environment confronted the plaintiff. Clearly then, the Callaway v. Adams case, supra, is inapplicable.
Nor is Title 48, § 170, Code of 1940, regarding giving the bell and whistle signals, applicable if the train has entirely occupied the crossing. Louisville & N. R. Co. v. Outlaw, 36 Ala.App. 278(7), 60 So. 2d 367; cert. den. 257 Ala. 585, 60 So. 2d 377; St. Louis-San Francisco Railway Co. v. Guthrie, 216 Ala. 613(6), 114 So. 215, 56 A.L.R. 1110.
While the genius of our trial practice forbids the taking of the case from *173 the jury where there is a scintilla of evidence against the controverted point, we are bound to hold, after a careful consideration of the entire case, that there was no error in giving the directed verdict for the defendant. Clearly, under the controlling authorities, supra, the plaintiff was guilty of contributory negligence, barring his recovery.
Affirmed.
GOODWYN, MERRILL and COLEMAN, JJ., concur. | May 10, 1962 |
d584ad24-843c-41af-af5b-bbd95efdc0d4 | Long v. Ladd | 142 So. 2d 660 | N/A | Alabama | Alabama Supreme Court | 142 So. 2d 660 (1962)
Horace L. LONG
v.
Frank M. LADD, Jr., et al.
1 Div. 797.
Supreme Court of Alabama.
June 14, 1962.
D. R. Coley, Jr., Mobile, for appellant.
Johnston, McCall & Johnston and Pierre Pelham, Mobile, for appellees.
LIVINGSTON, Chief Justice.
The appeal is from a decree of the Circuit Court of Mobile County, Alabama, in Equity. As originally filed, the bill of complaint was, in effect, a bill to quiet title under Title 7, Sec. 1109 et seq., Code of 1940. The complainants in the court below are Frank M. Ladd, Jr., and John E. Ladd. The respondent in the court below, appellant here, is Horace L. Long.
The land involved is "Fractional Section 33," Township 1, South, Range 1 East, Mobile County, Alabama.
*661 Demurrers to the original bill were overruled. The complainants then amended their bill seeking to remove a cloud on their title in the form of a deed to the respondent. Demurrers to the amended bill of complaint were overruled. The respondent then filed an answer and cross bill to the amended bill of complaint. The title to the land in question was traced from a government patent to one M. J. D. Baldwin (1841), and it is at this point that the cause of the instant suit started. The evidence tends to indicate that the land in question descended from M. J. D. Baldwin to his heirs by intestate's succession. Complainants' predecessors in title held under a recorded deed signed by eight grantors, the deed reciting that the grantors were the sole heirs of M. J. D. Baldwin. The deed was recorded in 1902 and conveyed the whole of "Fractional Section 33," containing fifty-eight (58) acres. The respondent's predecessors in title took under a deed from a grantor who the deed recited as being the administrator of the estate of one Gasper J. S. Cavallero, the next of kin of the sole heir of M. J. D. Baldwin. This deed was recorded in 1884 and conveyed the South Half of Section 33, containing 32 acres. It is this overlapping description that brings about the suit, the complainants having color of title to the whole of "Section 33," and the respondent having color of title to the "South Half of Sec. 33."
Complainants derived title by the will of their father in 1950. Respondent claims title in him by quitclaim deed from the Coffins in 1950.
The appellees in their brief base their right to recover on record title and adverse possession. The decree of the lower court was for complainants, and held, in effect, that the deed from the Coffins to respondent was a cloud upon complainants' title and was null and void.
All of the evidence and testimony was taken orally before the trial court.
The appellant argues three assignments of error: First, that the demurrers to the bill of complaint as amended were erroneously overruled, pointing out an alleged departure from the bill as originally filed and as amended; second, that certain evidence, to be noted later, was erroneously introduced on behalf of the complainants; and, third, that the decree is contrary to the great weight of the evidence.
The evidence is voluminous and we will not undertake a detail discussion of it. It tended to show that complainants acquired title to the land in question by inheritance from their father in 1950, and that their father had acquired title to "Section 33" in 1936 and 1937, by deeds from Odile Thompson and Pauline Brue. The evidence tended to show that from 1937 up to the filing of this suit (1952), the father of complainants, and then the complainants, assessed and paid taxes on the land in question; they posted the boundaries with "No trespassing" signs with their names inscribed on the signs; that during this period from 1937 to 1952, complainants and their father built and maintained the road which ran through a portion of the South Half of Section 33; that they built a fence which ran parallel to the road; that they sold timber off the land in 1937, and that they employed a caretaker from 1937 to 1952 to look after the land; that they sold an easement to the Power Company across the North Corner of the land in 1952; and that complainants also hunted on the land.
The respondent's evidence tended to show that he also paid taxes on the land claimed by him; posted it, hunted on it; sold an easement to the Power Company; and he also claimed that he built a fence South of the road of complainant, but that it was torn down by parties unknown.
As noted above, respondent demurred to the amended bill of complaint on the ground that it was a departure from the original bill.
An amendment to a bill in equity does not depart from the original purpose *662 of the bill if it seeks to adjudicate property rights, between the same parties, as the result of the same transaction though presenting different versions of fact and calling for application of different legal principles and molding of relief in different form.
It was held in Sloss-Sheffield Steel & Iron Co. v. Yancey, 201 Ala. 200, 77 So. 726, that a bill to quiet title brought under the statute, Sections 5443 and 5446, Code of 1907, now Section 1109 et seq. of Title 7, Code of 1940, could be converted into a bill to remove a cloud from title, and that the change was not such as to constitute a departure. See also Garrett v. First Nat. Bank of Montgomery, 233 Ala. 467, 172 So. 611; King v. McAnnally, 234 Ala. 479, 175 So. 546; Joiner v. Glover, 201 Ala. 279, 78 So. 55; Smith v. Gordon, 136 Ala. 495, 34 So. 838.
Sec. 1109 et seq., Title 7, Code of 1940, does not take away the jurisdiction of equity to remove a cloud from title which the equity courts had prior to the passage of the statute. Joiner v. Glover, supra; King Lumber Co. v. Spragner, 176 Ala. 564, 58 So. 920; May v. Granger, 224 Ala. 208, 139 So. 569.
Appellant also insists that the court erred in admitting into evidence the complaint, answer to the complaint, the amended complaint, and the judgment of the court of a prior trespass action between the father of the complainants and the appellant.
Admitting without deciding that this evidence was inadmissible, it is not reversible error because there is a presumption that the trial court did not consider any illegal, incompetent or irrelevant evidence. Sec. 372(1), Title 7, Code of 1940, Cum. Pocket Part.
The appellant argues that the decree of the lower court is contrary to the weight of the evidence.
The elements of title by adverse possession are (1) such possession as the land reasonably admits of, (2) openness and notoriety and exclusiveness of possession, (3) hostility toward everybody else in respect of possession, (4) holding possession under claim of right or claim of color of title, and (5) continuity for statutory period of ten years. Clanahan v. Morgan, 268 Ala. 71, 105 So. 2d 429; Goodson v. Brothers, 111 Ala. 589, 20 So. 443.
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; Clanahan v. Morgan, supra. Applying the above propositions of law to the evidence of this case, we entertain the view, considering the nature and character of the land, the possessory acts of complainants and their predecessors, the absence of sufficient possessory acts by the respondent or anyone else during the period from 1937 to 1952, the complainants have shown title by adverse possession. McMillan v. Aiken, 205 Ala. 35, 88 So. 135; Parrish v. Davis, 265 Ala. 522, 92 So. 2d 897; Moorer v. Malone, 248 Ala. 76, 26 So. 2d 558; W. T. Smith Lumber Co. v. Cobb, 266 Ala. 146, 94 So. 2d 763; Morris v. Yancey, 267 Ala. 657, 104 So. 2d 553.
It is true that these acts of possession by complainants did not extend over every portion of the area involved, but one who adversely possesses a part of a tract of land and has color of title to the whole tract, gains possession of all the land provided no one else in in possession. Alabama State Land Co. v. Matthews, 168 Ala. 200, 53 So. 174; McMillan v. Aiken, 182 Ala. 303, 62 So. 519. The complainants had color of title to all of "Section 33," and by adversely possessing said land for the statutory period of ten years, all of "Section 33" vests in them. Sec. 828, Title 7, Code of 1940.
We have examined the evidence carefully, and it is our opinion that the finding of the trial court was not contrary to the *663 great weight of the evidence and the decree will stand.
Other assignments of error not being argued are not considered. Supreme Court Rule 9(d), Title 7 Appendix; Smart v. Wambles, 271 Ala. 651, 127 So. 2d 611.
We find no reversible error and the decree of the lower court is affirmed.
Affirmed.
LAWSON, MERRILL and COLEMAN, JJ., concur. | June 14, 1962 |
563f07ed-a35c-485a-bea0-9dcd03265634 | O'Dell v. State | 117 So. 2d 164 | N/A | Alabama | Alabama Supreme Court | 117 So. 2d 164 (1959)
I. S. O'DELL et al.
v.
STATE of Alabama ex rel. John PATTERSON, Attorney General.
7 Div. 400.
Supreme Court of Alabama.
June 25, 1959.
Rehearing Denied January 21, 1960.
*165 S. Palmer Keith, Jr., Birmingham, Wallace L. Johnson, Mobile, and Knox, Jones, Woolf & Merrill, Anniston, for appellants.
John Patterson, Atty. Gen., Robt. P. Bradley, Asst. Atty. Gen., and Guy Sparks, Special Asst. Atty. Gen., for appellee.
LAWSON, Justice.
The appeal is from a decree overruling a demurrer to a bill in equity, as amended, which will be referred to hereafter simply as the bill.
The State of Alabama, in one bill, seeks to enjoin more than twenty loan "companies" in Calhoun County from continuing in the "loan shark business," to use the language of the bill, on the ground that the manner in which such businesses are conducted constitutes a public nuisance.
In brief filed here the appellants, the respondents below, concede that the averments of the bill are sufficient "to charge each of the respondents with an activity which could be enjoined as a public nuisance under the decisions of the Supreme Court of Alabama." The decisions referred to are State ex rel. Embry v. Bynum, 243 Ala. 138, 9 So. 2d 134, and Larson v. State ex rel. Patterson, 266 Ala. 589, 97 So. 2d 776.
But the appellants strenuously insist that the bill is multifarious and misjoins parties respondent and that the trial court erred in failing to sustain the grounds of the demurrer which took those points. We will limit our review to such grounds, for it is well established that on an appeal from a decree overruling a demurrer to a bill in equity, we consider only the grounds of the demurrer argued in appellant's brief. Wade v. Glencoe Lumber Co., 267 Ala. 530, 103 So. 2d 730.
Some of the businesses sought to be enjoined are corporations, others are partnerships and others are conducted by individuals. The corporations, the members of *166 the partnerships, and the individual operators are all joined as parties respondent.
The bill is multifarious under our holdings in Lee v. City of Birmingham, 223 Ala. 196, 135 So. 314, and Birmingham Bar Association v. Phillips & Marsh, 239 Ala. 650, 196 So. 725, unless the bill sufficiently charges the respondents with a conspiracy.
In the Lee case, supra [223 Ala. 196, 135 So. 315], a bill in equity was filed by the City of Birmingham against Robert E. Lee and J. W. Dunham to condemn as contraband certain slot machines alleged to be gambling devices seized by the police department of the City under authority of its ordinances and for the recovery of which the respondents had begun separate actions at law.
In the opinion in the Lee case we said: "Places where devices are kept for the purpose of permitting persons to gamble with them are declared by statute to be common nuisances, and may be abated in equity by the state. Section 4281, Code."
We reversed the action of the trial court in overruling the demurrer interposed to the City's bill on the ground that the bill was multifarious, saying in that connection in part as follows:
In Birmingham Bar Association v. Phillips & Marsh, supra, the Bar Association sought to put an end to the alleged practice of law in Jefferson County by unlicensed individuals, associations, and corporations connected with the insurance business. Demurrers were sustained by the trial court. On appeal we affirmed, saying in part as follows:
*168 We come now to a consideration of the averments of the bill which are designed to charge the respondents with concert of action.
Paragraph XIX of the bill reads:
It is said by appellants that the averments of Paragraph XIX are mere conclusions of the pleader which, even when considered in connection with the other averments of the bill are insufficient to charge the respondents with concert of action so as to permit them to be joined in an action of this kind.
We do not agree.
A conspiracy is a combination to accomplish an unlawful end or to accomplish a lawful end by unlawful means. Barber v. Stephenson, 260 Ala. 151, 69 So. 2d 251; Gaines v. Malone, 244 Ala. 490, 13 So. 2d 870.
Where civil liability for a conspiracy is sought to be enforced, the conspiracy itself furnishes no cause of action. The gist of the action is not the conspiracy alleged but the wrong committed. Louisville & N. R. Co. v. National Park Bank, 188 Ala. 109, 65 So. 1003; Humphrey v. Terry, 206 Ala. 249, 89 So. 607.
A conspiracy may be both pleaded and proved as aggravating the wrong complained of and enabling the complainant to recover in one action against all of the joint tort-feasors. The allegations with reference to the acts constituting the conspiracy are properly treated as matters of inducement and hence less certainty is required in setting out such acts than in setting out the gist of the action. American Thread Co. v. Rochester, 82 Ga.App. 873, 62 S.E.2d 602.
A great quantum of detail need not be required to be alleged as to the formation of the conspiracy because of the clandestine nature of the scheme or undertaking engaged in. The existence of the conspiracy must often be inferentially and circumstantially derived from the character of the acts done, the relation of the parties, and other facts and circumstances suggestive of concerted action. Schessler v. Keck, 125 Cal. App. 2d 827, 271 P.2d 588; American Thread Co. v. Rochester, supra.
In our opinion the State has clearly alleged the ultimate fact of conspiracy by pleading that respondents "* * * have contrived, combined, confederated, and conspired among themselves to do the acts hereinbefore described." Such averments are sufficient under the rule that allows great latitude in averring the formation and existence of a conspiracy. Farr v. Bramblett, 132 Cal. App. 2d 36, 281 P.2d 372; American Thread Co. v. Rochester, supra.
We entertain the view that this bill sufficiently charges the respondents with concert of action in carrying on the alleged nuisance so as to make them jointly suable. We do not consider our holding here to be in conflict with anything said in Steele v. Louisville & N. R. Co., 245 Ala. 113, 16 So. 2d 416, or in National Park Bank of New York v. Louisville & N. R. Co., 199 Ala. 192, 74 So. 69. The complaints in those cases failed to describe the illegal purpose or means which the conspirators sought to accomplish. This bill contains no such defect. The bill in this case is more like the one held to be good in Coker v. Coker, 209 Ala. 295, 96 So. 201.
We hold there is no merit in the grounds of demurrer relied upon by appellants, namely, multifariousness and misjoinder. It follows that the decree appealed from is due to be affirmed. It is so ordered.
Affirmed.
SIMPSON, STAKELY, GOODWYN and COLEMAN, JJ., concur.
*169 LIVINGSTON, C. J., dissents.
LIVINGSTON, Chief Justice (dissenting).
I am impelled to the conclusion that the bill of complaint in this case is multifarious and the trial court was in error in overruling the ground of demurrer specifically pointing out that defect.
In the case of Steele v. Louisville & N. R. Co., 245 Ala. 113, 16 So. 2d 416, 420, it is stated:
We think the instant bill is clearly multifarious under the cases of Birmingham Bar Association v. Phillips & Marsh, 239 Ala. 650, 196 So. 725, and Lee v. City of Birmingham, 223 Ala. 196, 135 So. 314.
In the case of Birmingham Bar Association v. Phillips & Marsh, supra, there was a proceeding to suppress the alleged practice of law by a number of unlicensed individuals, associations and corporations. Demurrers to the bill of complaint were sustained, and on appeal, this Court treated the proceeding in the alternate aspect of one in equity and also as a quo warranto proceeding. It was held that under either aspect the demurrer for misjoinder was well taken. It was there said:
In Lee v. City of Birmingham, supra, there was a proceeding in equity to condemn certain slot machines which were alleged to be gambling devices. The Court there stated:
See, also, Stamey v. Fortner, 230 Ala. 204, 205, 160 So. 116.
The only attempt made in the bill of complaint to show concert of action or any concern on the part of one respondent with the activities of any other respondent is made in Paragraph XIX of the bill of complaint, which reads as follows:
The above paragraph does not aver, even in general terms, what the nature of the agreement was between respondents that might constitute the conspiracy. The bill is not made any more specific when it says that the respondents have conspired to do "the acts hereinbefore described," for the reason that the wrongful acts of respondents set out in the prior paragraphs fail to show a common connection of the respondents with any such acts; and for aught appearing, one respondent is wholly unconcerned with the facts as to the others. Stated another way, for aught that appears from the bill, the wrongful acts charged in the prior paragraphs are charged as separate acts of each respondent, separately done. It is true that Paragraph XIII of the bill averred a "loan exchange" agreement between respondents, but such an arrangement is not in itself illegal, nor does it appear that the arrangement was a substantial factor in accomplishing the illegal objective of charging exorbitant interest rates. Consequently, the general averments of the conspiracy, alleged as a conclusion, do not save the bill from multifariousness. I, therefore, respectfully dissent. | June 25, 1959 |
30c6e5ad-a93f-4b05-b400-d94666f66211 | Central Mutual Insurance Co. v. Royal | 113 So. 2d 680 | N/A | Alabama | Alabama Supreme Court | 113 So. 2d 680 (1959)
CENTRAL MUTUAL INSURANCE CO.
v.
E. C. ROYAL et al.
7 Div. 416.
Supreme Court of Alabama.
June 25, 1959.
*681 Mead & Norman and Marshall H. Fitzpatrick, Birmingham, for appellant.
Clarence Simmons, Jr., and Ollie W. Nabors, Gadsden, for appellees.
STAKELY, Justice.
This is an appeal from the judgment of the lower court on a policy of insurance issued by Central Mutual Insurance Company, a corporation (appellant), in favor of E. C. Royal and Mamie I. Royal and East Gadsden Bank, a corporation (appellees), insuring a house owned by E. C. Royal and Mamie I. Royal and mortgaged to The East Gadsden Bank, a corporation, one of the appellees.
The policy insured against loss or injury by fire and a number of other perils named in the policy. The hazard in question in this case is alleged to be "collapse of the house or a part thereof."
The verdict of the jury and the judgment of the court thereon was in favor of the appellees in the amount of $1,200. Motion for a new trial was overruled and this appeal followed.
The case was tried on Counts 2 and 3, which appear to claim damages to the insured dwelling resulting from a collapse of a part thereof. The pleading was in short by consent.
Reversal is sought here on a number of rulings on the pleadings, the action of the court with reference to certain charges and the action of the court in overruling the motion for new trial.
The policy was in the basic amount of $15,000 and contained in pertinent part the following provision:
E. C. Royal and his wife were residing at 305 Hardin Circle, East Gadsden, in June and September, 1956. E. C. Royal testified that they heard a racket that sounded like something had fallen and broken in the house. About two weeks later it was noticed that the walls of the house had cracked on the west end, east end and on the north end. The inside walls of the house were also cracked. The foundation was broken so that you could, according to the witness, put your finger in it in places. The foundation was concrete poured in the ground.
A number of witnesses testified that there were cracks in the walls of the house and in the foundation of the house and it appeared that segments of the wall had sunk or dropped. The house was repaired and this suit is to cover the cost of the repair work.
There was no proof that the house had fallen down or caved in.
It is insisted by the appellant that there was no collapse of the house or any part thereof within the meaning of the policy.
There appears to be little law on the question here involved. Collapse of a building or any part thereof seems to be a clear and unambiguous statement and we find ourselves unable to agree that the proof showed a collapse of the house or any part thereof.
*682 The plain and ordinary sense of the word collapse cannot be so altered or warped to include within its meaning a movement of a structural part of a building as is sought to be done in the case at bar. We find only one case by an appellate court in this country which seems to be analogous to the case at bar. This is the case of Nugent v. General Insurance Co. of America, 8 Cir., 253 F.2d 800.
Just as in the present case, the plaintiff in the Nugent case showed that cracks had been discovered in the walls of the insured house. These cracks extended through the entire wall, from the outside to the inside. Cracks were also found in the basement floor and there was a displacement of a half inch in the two margins of the cracked surfaces. The house moved or settled toward the northeast. In the present case the evidence showed the Royal residence had moved or settled. In other words the facts in the Nugent case appear to be almost identical with the case at bar.
The Circuit Court of Appeals in the Nugent case upheld the findings of the District Court for the Eastern District of Missouri that the policy provision exactly similar to the provision involved in the instant case did not cover damage caused by such movement or sinking of the building footings and that such settling or sinking of the footings did not constitute a collapse of part of the building.
There seems to be no doubt about the meaning of the word "collapse". The plaintiff in the case of Skelly v. Fidelity & Casualty Co. of New York, 313 Pa. 202, 169 A. 78, contended that the word was ambiguous and so should be construed to grant coverage to the insured in a doubtful case. In that case the life insurance policy sued on contained a double liability clause should the insured sustain death "in consequence of the collapse of the outer walls of a building while the assured is therein." A railroad car got out of control and ran through the walls of the building in which the insured was located, causing the insured to be struck by portions of the wall and killed. In disposing of the plaintiff's contention that this unfortunate incident fell within the coverage of the policy, the court said:
In 14 C.J.S. p. 1316 the word "collapse" is defined as follows:
In the case of Rubenstein v. Fireman's Fund Insurance Co., 339 Ill.App. 404, 90 N.E.2d 289, 291, the court had under consideration a policy of insurance covering against damage to personal property caused by the collapse of a portion of a ceiling. The court said:
When the language of an insurance policy is clear and unambiguous it must be construed as it reads. The courts are not at liberty to raise doubts where none exist or to make a new contract for the parties. Life & Casualty Ins. Co. of Tennessee v. Bottoms, 225 Ala. 382, 143 So. 574; Pacific Mutual Life Ins. Co. of California v. Strange, 226 Ala. 98, 145 So. 425; Chemstrand Corp. v. Maryland Casualty Co., 266 Ala. 626, 98 So. 2d 1.
We find from the authorities dealing with the word "collapse" or "collapse of a building", as used in various policies of insurance, that the meaning thereof is plain and clear without ambiguity and the contract involved in this case must be enforced as written. In the case at bar there was no collapse of the building. There was no collapse of any part of the building. Some of the walls appeared to have cracks in them and in two or more places the concrete footing contained cracks, but there was no collapse of the building within the foregoing authorities. There was no falling in, no loss of shape, no reduction to flattened form or rubble of the building or any part thereof. The building was still in its original form and condition with the exception of a few cracks. Accordingly, we do not consider that the appellant was liable under the provisions of the policy to which we have referred or that the plaintiffs were entitled to recover.
It results that the judgment of the lower court must be reversed and the cause remanded.
Reversed and remanded.
LAWSON, GOODWYN and MERRILL, JJ., concur.
[*] See 7A Words and Phrases, Collapse, p. 137. | June 25, 1959 |
616876ed-6c90-450a-9dd4-722ef788d02e | Greyhound Corporation v. Brown | 113 So. 2d 916 | N/A | Alabama | Alabama Supreme Court | 113 So. 2d 916 (1959)
GREYHOUND CORPORATION et al.
v.
Nadeen A. BROWN.
6 Div. 915.
Supreme Court of Alabama.
June 25, 1959.
Rehearing Denied August 20, 1959.
*917 Lange, Simpson, Robinson & Somerville, Birmingham, for appellant Greyhound Corp.
Sadler & Sadler, Birmingham, for appellant Goodyear.
Hare, Parsons, Wynn & Newell, Birmingham, for appellee.
GOODWYN, Justice.
This is a personal injury action brought by appellee, Nadeen A. Brown, against appellants, Greyhound Corporation and Goodyear Tire & Rubber Company, in the circuit court of Jefferson County. The case arises out of an accident which occurred on a public highway in Jefferson County about 25 miles north of Birmingham. At the time of the accident plaintiff was a paying passenger on one of Greyhound's buses proceeding towards Birmingham. The right front tire of the bus blew out in rounding a curve, thus causing the bus to plunge down a ravine and roll over several times. Plaintiff was seriously injured. The jury returned a verdict in her favor for $15,000 against both defendants. Judgment on the verdict was duly entered. The defendants' separate motions to set aside the verdict and judgment and grant each of them a new trial being overruled, they brought this appeal.
The case went to the jury on amended counts 2, 3 and 4. In substance, each of said counts charges Goodyear with negligence which combined and concurred with Greyhound's negligence so as to injure plaintiff. As against Greyhound, the gravamen of all three counts is Greyhound's negligence as a common carrier of passengers for hire. As against Goodyear, the several counts charge negligence as follows:
Count 2 alleges, in substance, that Goodyear manufactured a tire and supplied it to Greyhound, a common carrier of passengers for hire, which tire was in use on the bus involved in the accident complained of; that said tire, when so supplied, was not reasonably safe for such use on said bus but to the contrary was imminently dangerous when used for such purpose; that said danger was known to Goodyear, or by the exercise of reasonable diligence should have been so known to it, but was not known to plaintiff and was not revealed to plaintiff by Goodyear or by anyone else; that, at the time of the accident the said tire, as a proximate consequence of its said imminent dangerous condition, had a blowout, and *918 as a proximate consequence thereof said bus was wrecked and plaintiff injured and damaged; that Goodyear negligently supplied said tire to Greyhound for use on said bus, knowing that said tire would be so used for the carriage of members of the public as passengers on the bus; that the nature of the defective condition of the tire was that its threads did not adequately adhere to the tire's tread, or for some other reason unknown to plaintiff the fabric of the tire was so weak that it was likely to blow out on its ordinary and intended use on the highway.
Count 3 alleges, in substance, that Goodyear, prior to the accident, undertook with Greyhound, in writing, to furnish for buses belonging to Greyhound sufficient tires to meet the requirements of said buses in a condition fit and suitable for such use and to furnish inspection and repair service adequate to maintain said tires in a condition safe and suitable for such use; that Goodyear undertook, in writing, with Greyhound to determine when tires furnished by Goodyear to Greyhound were permanently unfit for further service and in such cases to furnish new tires in lieu thereof; that at the time of the wreck there was in use on the bus a tire manufactured by Goodyear and supplied by it to Greyhound for use on said bus under said written undertaking; that on the occasion of the wreck Goodyear negligently failed to furnish a reasonably adequate repair and inspection service for said tire, and as a proximate consequence of its said negligence said tire, at the time of the wreck, "was not in a condition reasonably safe and suitable for use for the purpose for which it was supplied and intended to be used, but to the contrary was imminently dangerous when used for the purpose and in the manner for which it was supplied and intended to be used in that the fabric of said tire was so weak that it was imminently and dangerously likely to sustain a blowout when used in the customary and intended manner on the highway"; and that said tire sustained a blowout proximately causing the bus to be wrecked on the occasion complained of.
Count 4 alleges, in substance, that Goodyear was engaged in the business of manufacturing tires and supplying them to Greyhound for use on its motor buses; that on the occasion of the wreck Goodyear had manufactured and supplied to Greyhound one of the tires in use on the bus; that Goodyear "had retained the title to said tire and had retained control and responsibility for the condition and state of repair of said tire under the terms by which said defendant Goodyear had supplied said tire to said defendant Greyhound"; that under said terms Goodyear had undertaken to maintain and inspect said tire in a condition fit and suitable for the purpose for which it was delivered and intended to be used as a tire on a motor bus engaged in the carriage of members of the public, including the plaintiff, in the business of Greyhound, as a common carrier of such passengers for hire; that Greyhound paid Goodyear for the use, inspection and maintenance of said tire on a mileage basis; that on the occasion complained of said tire had a blowout and as a proximate consequence thereof said bus was wrecked and plaintiff injured and damaged; that on said occasion Goodyear "negligently continued to furnish and maintain said tire for the use and purpose aforesaid upon said bus in a condition not reasonably safe for said use for which it was intended and supplied, but to the contrary, negligently continued to furnish and maintain said tire in a condition which was defective to the extent that it was dangerously weak or worn and that it was dangerously likely to blow out when used for the customary and intended purpose which it was furnished and supplied by the defendant Goodyear"; that "as a proximate consequence of said negligence of the defendant Goodyear and of the said unsafe and defective condition, said tire did blow out on said occasion and as a proximate consequence thereof said wreck occurred and the plaintiff was injured and damaged as aforesaid."
The defendants' separate demurrers to these counts were overruled. Defendants *919 then entered a joint plea in short by consent.
No argument is here made questioning the rulings on the demurrers to the complaint. Nor is any question raised as to excessiveness of the verdict.
We discuss first the questions pressed upon us by Greyhound. Although it assigns 58 grounds of error, only two points are argued in brief. One charges error in a portion of the trial court's oral charge to the jury and the other concerns the refusal of one of Greyhound's requested written charges.
Exception was taken by Greyhound to the following portion of the oral charge:
It is insisted that it was error to so charge the jury because, under the doctrine of res ipsa loquitur, the burden of going forward shifts but not the burden of proof. Relied on in support of this are Florence Coca Cola Bottling Co. v. Sullivan, 259 Ala. 56, 65 So. 2d 169, and Lawson v. Mobile Electric Co., 204 Ala. 318, 85 So. 257. While those cases recognize the principle insisted upon, they are not applicable in the instant case. In this jurisdiction there is a well-recognized exception to the rule when the defendant is a common carrier of passengers for hire. See Southeastern Greyhound Lines v. Callahan, 244 Ala. 449, 454, 13 So. 2d 660, 663, where, in a case involving injury to a passenger caused by a defective seat, it was said:
See, also, Nelson v. Lee, 249 Ala. 549, 560, 32 So. 2d 22, where the holding in the Southeastern Greyhound Lines case was recognized.
We find no merit in Greyhound's insistence with respect to the oral charge.
Greyhound's requested written charge No. 10, refused by the trial court, is as follows:
*920 This is what is sometimes referred to as a "single juror" charge. Its refusal was not reversible error. Code 1940, Tit. 7, § 273; Southern Railway Company v. Stallings, 268 Ala. 463, 107 So. 2d 873, 884-885; City of Birmingham v. Bowen, 254 Ala. 41, 45-46, 47 So. 2d 174; City of Bessemer v. Clowdus, 261 Ala. 388, 395, 74 So. 2d 259. See, also, Green v. State, 263 Ala. 324, 330, 82 So. 2d 418, 423, where, in discussing a charge of similar import in a criminal case, it was said:
No contention is made by Greyhound that it was entitled to a directed verdict, nor that, under the evidence, the verdict as to it was against the weight of the evidence.
With respect to Goodyear, the ultimate and decisive question, it seems to us, is whether the tire failure was due to a defect in its manufacture or was caused by a road hazard, specifically, by an external object striking the tire while being used on the road by Greyhound, so weakening the tire as to cause it to deteriorate and blow out at the time of the wreck. In this connection, it is to be observed that the so-called "manufacturer's liability doctrine", which was fully expounded by Judge Cardozo in the celebrated case of MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050, L.R.A.1916F, 696, Ann.Cas.1916C, 440, has been approved in this jurisdiction. Defore v. Bourjois, Inc., 268 Ala. 228, 105 So. 2d 846; Miles v. Chrysler Corporation, 238 Ala. 359, 191 So. 245, Sterchi Bros. Stores v. Castleberry, 236 Ala. 349, 182 So. 474; Altorfer Bros. Co. v. Green, 236 Ala. 427, 183 So. 415; Saunders System Birmingham Co. v. Adams, 217 Ala. 621, 117 So. 72, 61 A.L.R. 1333. In Defore v. Bourjois, Inc., supra, [268 Ala. 228, 105 So. 2d 848] application of the doctrine was said to apply
We have here a situation where the manufacturer (Goodyear) owned the tire when plaintiff was injured, although it was being used by Greyhound under a lease agreement with Goodyear. No point is made that this situation in any way affects applicability of the manufacturer's liability doctrine.
There can be no doubt that plaintiff, as a passenger on the bus, could reasonably be expected to be endangered if the tire, while being used on the bus, was in fact defective. In this connection we note that there appears to be no serious dispute that the wreck resulted from a defect in the tire. If the tire failure was due to a defect in its manufacture and not the road hazard then, of course, there would be no occasion to discuss Goodyear's insistence that the road hazard constituted an independent intervening cause so as to relieve Goodyear of liability.
We have carefully considered the evidence. It is voluminous and by no means without conflict. While there is evidence from which the jury could have *921 found in accord with Goodyear's insistence, we are of the view that there is also sufficient evidence supporting the jury's finding that failure of the tire on the occasion complained of resulted from a defect in its manufacture.
No good purpose would be served by discussing the evidence in detail. It is sufficient to note that both the plaintiff and Goodyear had witnesses (no question being raised on the trial as to their qualifications) who testified as to the cause of the tire failure. The evidence offered by plaintiff tended to prove that it was caused by a defect in its manufacture, while the testimony of Goodyear's witnesses was to the effect that an external defect or break in the tread, caused by striking a sharp object, was the cause. The resolvement of this issue was one typically for the jury.
There was evidence to the effect that a driver of the bus noticed a small plug of rubber out of the tire in Nashville before proceeding on to Birmingham. He testified, however, that he did not consider such condition to be dangerous. This simply presented additional evidence bearing on the factual issue as to the cause of the blowout. That is, if the injury to the tire, as observed by the driver, was the cause of the tire's failure at the time of the wreck then, of course, an entirely different situation would be presented concerning Goodyear's liability. But the jury obviously resolved this issue against Goodyear and found, as already noted, that the cause of the tire's failure was a defect in the manufacture of the tire; such finding being supported by the evidence.
Goodyear's requested affirmative charges with hypothesis were properly refused. As said in McMillan v. Aiken, 205 Ala. 35, 40, 88 So. 135, 139:
From what we have said it follows that the judgment appealed from is due to be affirmed. So ordered.
Affirmed.
LAWSON, STAKELY and MERRILL, JJ., concur. | June 25, 1959 |
69098210-1bbb-4267-a5a8-00c405c7af42 | Andala Co. v. Ganus | 115 So. 2d 123 | N/A | Alabama | Alabama Supreme Court | 115 So. 2d 123 (1959)
ANDALA CO.
v.
Evelyn Chavers GANUS et al.
4 Div. 975.
Supreme Court of Alabama.
September 17, 1959.
*124 W. H. Albritton, Albritton & Rankin, Andalusia, for petitioner.
Ed Brogden, Andalusia, for Ganus.
J. Eugene Foster and Richard S. Brooks, Montgomery, for Department of Industrial Relations, opposed.
GOODWYN, Justice.
We granted certiorari to review the opinion and judgment of the Court of Appeals in The Andala Company v. Evelyn Chavers Ganus, Ala.App., 115 So. 2d 119, affirming judgment of the circuit court of Covington County awarding appellee (Evelyn Chavers Ganus) unemployment compensation.
The opinion of the Court of Appeals recites that "it is stipulated that the only question involved is whether claimant `left her employment voluntarily without good cause connected with such work.' Subsection B of Section 214, Title 26, Code 1940 as amended."
Included in the opinion is what appears to be a rather full statement of the facts. While it is not clear that all of the facts are set out, it does appear that the Court of Appeals based its decision on the stated facts after applying thereto what it considered to be the applicable law. The question before us, then, is whether the Court of Appeals correctly applied the law to the facts as stated in its opinion. Avondale Mills v. Burnett, 268 Ala. 82, 106 So. 2d 885; Greene v. Department of Industrial Relations, 263 Ala. 564, 83 So. 2d 364; Department of Industrial Relations v. Haynes, 259 Ala. 238, 67 So. 2d 62; Ex parte Alabama Textile Products Corporation, 242 Ala. 609(9), 7 So. 2d 303, 141 A. L.R. 87.
We see no need to repeat here the facts stated in the Court of Appeals' opinion. In short, it was concluded that, although claimant left her employment voluntarily, she left with "good cause connected with her work"; that the "good cause" was an "almost fifty per cent reduction in claimant's wages during a time of static wage levels." Our view is that the facts stated in the Court of Appeals' opinion are not sufficient, in the light of applicable authority, to show that claimant left her employment with "good cause connected with her work."
Code 1940, Tit. 26, § 214, par. B, as amended, provides, to the extent here pertinent, as follows:
Since there appears to be no question that claimant left her work voluntarily, we are concerned only with whether she left with "good cause connected with such work."
Our unemployment compensation law (Code 1940, Tit. 26, § 180 et seq., as amended) contains no provisions defining the phrase "good cause" as used in § 214, par. B, supra. However, we had this to say in Avondale Mills v. Burnett, supra [268 Ala. 82, 106 So.2d 886]:
*125 In the Mann case it is also stated that "the standards that must be used by the law are the standards of reasonableness as applied to the average man or woman, and not to the super sensitive." [35 Ala.App. 505, 50 So. 2d 784.]
We have held, too, that "where an employee leaves his work of his own volition, he has the burden of proving facts to avoid the requirements of the statutory provision." Avondale Mills v. Burnett, supra; Henderson v. Department of Industrial Relations, 252 Ala. 239, 40 So. 2d 629; Department of Industrial Relations v. Meeks, Ala.App., 110 So. 2d 643. Hence, the burden was upon claimant to prove that she left her employment for good cause connected with her work. It is our view that the facts, as stated in the Court of Appeals' opinion, fail to show that this burden was met.
The pertinent consideration is whether or not claimant acted reasonably in quitting her job. In other words, a test of good cause is whether it is reasonable when measured by what the average or normal worker would have done under similar circumstances. Can it be said that claimant, under the facts as stated in the opinion, acted reasonably, that is, as an average or normal worker? We are of the view that she did not; that she failed to give the new work techniques a fair trial, such as we believe an average or normal worker would have done under similar circumstances.
Although it is stated in the Court of Appeals' opinion that claimant suffered about a fifty per cent reduction in wages, we do not think the facts as stated therein bear this out. While the piece rate was cut approximately in half, this would not necessarily result in a fifty per cent reduction in her wages. In this connection it is to be noted that claimant would have been entitled to pay at a rate not less than the minimum hourly wage, regardless of her output. It is apparent, therefore, that there was not actually a fifty per cent reduction in her wages.
There is no indication from the stated facts that the new techniques were being put into effect for the purpose of reducing wages at all. The point is, it seems to us, that claimant did not act reasonably in leaving her work at the end of the first two weeks of the five weeks' training period set up for learning the new techniques.
Reversed and remanded.
LIVINGSTON, C. J., and LAWSON, SIMPSON, STAKELY and MERRILL, JJ., concur. | September 17, 1959 |
13f1ebcb-01ef-4ee2-8810-b5ae163282ce | Allison v. Stevens | 112 So. 2d 451 | N/A | Alabama | Alabama Supreme Court | 112 So. 2d 451 (1959)
Gay Austin ALLISON
v.
Mrs. Oscar STEVENS and David Lee Allison, Admrx. and Admr., et al., and Cross-Appeal.
8 Div. 953.
Supreme Court of Alabama.
May 28, 1959.
*452 Harold T. Foster, Scottsboro, and Lusk & Lusk, Guntersville, for appellant.
Harold O. Weeks and Jas. M. Proctor, Scottsboro, for appellees.
SIMPSON, Justice.
George W. Allison died testate on May 2, 1954. Appellant (complainant below and widow of George W. Allison) dissented from the will. Appellees, other than Clyde Woodall, the executor, are the sole surviving heirs of the testator and were the respondents below. (The death of one of the appellees, Tom D. Allison, has been suggested and on motion the cause was revived in the name of his administrators and heirs at law.)
Complainant filed a bill in equity seeking the removal of the administration of the estate of the testator from the Probate to the Equity Court, discovery, homestead, dower and quarantine rights and personal exemptions. By amendment to the bill, complainant also sought to have set aside certain deeds executed by the testator and the complainant to some of the respondents. Respondents' answer to the bill set up an antenuptial agreement between complainant and the testator wherein complainant released all rights of "dower, homestead exemptions, statutory right, distributive share and other claims against the estate of George W. Allison" including her right to dissent from the will. Respondents also averred that complainant had joined in the execution of the deeds in question "of her own free will and accord and that neither of them [complainant and testator] was influenced at the time of the execution of said deeds by the respondents or anyone else * * *" and that "by voluntarily joining in the execution of said deeds she created an estoppel by deed and is now estopped to challenge their efficacy".
The trial court, in its final decree, annulled the antenuptial contract and as a result thereof held that complainant was entitled to homestead and personal property exemptions and a distributive share in the personal property of the estate of George W. Allison. The trial court refused to set the deeds aside and denied complainant any dower in the properties conveyed by said deed.
Complainant has appealed and assigns as error the action of the trial court in refusing to set aside the deeds; respondents have cross-appealed and assign as error the action of the trial court in annulling the antenuptial contract between complainant and testator.
It appears from the evidence that George W. Allison, a widower, in 1942 made a will in which he devised and bequeathed all of his property to his children. Shortly thereafter he began "courting" the complainant and in 1944 they were married. Some three days prior to their marriage, Mr. Allison and complainant entered into the agreement referred to above, whereby complainant released her dower rights and distributive share, homestead and other rights, in the estate of Mr. Allison in consideration of the purchase by Mr. Allison of complainant's dwelling house from the complainant for $2,500 and the devising of said house to her in his will. It further appears that complainant had purchased the house for $2,500, she had made payments in the amount of $800 thereon and she owed a balance of $1,700 which she was paying "like rent". The testator paid complainant $800; she *453 conveyed the property to him and the testator executed a codicil to his will in which he devised the house free of incumbrances to the complainant.
It is clear that an antenuptial agreement of one party to release rights and interests in the estate of the other party in consideration of marriage or supported by other valuable consideration is enforceable in equity. Because of the confidential relationship of the two parties, such contracts are scrutinized by the courts to determine their justice and reasonableness. Where an antenuptial agreement is asserted as barring the wife's share in the estate of her husband, the husband or his representatives has the burden of showing that the consideration was adequate and that the entire transaction was fair, just and equitable from the wife's point of view or that the agreement was freely and voluntarily entered into by the wife with competent independent advice and full knowledge of her interest in the estate and its approximate value. Merchants' Nat. Bank v. Hubbard, 222 Ala. 518, 133 So. 723, 74 A.L.R. 646; Norrell v. Thompson, 252 Ala. 603, 42 So. 2d 461; Collier v. Tatum, 230 Ala. 218, 160 So. 530; 17A Am.Jur., Dower, § 172; 26 Am.Jur., Husband and Wife, §§ 282, 288; 41 C.J.S. Husband and Wife § 80; 27 A.L.R.2d 883.
No useful purpose would be served by setting out all the evidence bearing on the fairness or adequacy of the consideration for the agreement in the case at bar. Suffice it to say that after a close scrutiny of the evidence we are satisfied that the value of the home which was devised to the complainant by the testator is greatly disproportionate to the value of complainant's rights in the estate of the testator. We also conclude that the value of the estate of George Allison at the time the agreement was entered into was substantially the same as that at the time of his death. It is not shown by the evidence that complainant had competent independent advice nor did the respondents meet the burden of proof resting on them to show that complainant had full knowledge of her interest in the estate and the approximate value thereof. We find no error, therefore, on the part of the trial court in refusing to enforce the antenuptial contract.
In April, 1950 and more than five years after the marriage of the subject parties, testator, joined in by complainant, executed several conveyances of real property to his children, the respondents, excepting party respondent Woodall, the executor. Complainant now seeks to have said conveyances set aside for the reason that their execution was so connected with the antenuptial agreement that they should be construed as a part thereof and consequently are affected with the same invalidity as the antenuptial agreement. Complainant does not contend that the conveyances are a postnuptial settlement nor does she contend that in the execution the respondents exercised any undue influence or practiced any fraud on her or the testator. The invalidity, argues complainant, arises out of an alleged representation by the testator to the effect that he had, by his will which was previously made, given his property to his children; consequently, says the complainant, she did not know she had any interest in the property. The pleadings in the lower court do not disclose, as a ground for setting aside the conveyances, fraud on the part of the grantor-testator.
A misrepresentation as to a matter of law is an actionable misrepresentation of fact if it appears that it was so intended and understood and where it amounts to an implied assertion that facts existed which justified the conclusion of law reached. Best v. Best, 247 Ala. 627, 25 So. 2d 723. Such a misrepresentation need not be made at the time of the transaction but may have been previously made, provided, however, that the other party still has the right to rely on them. 23 Am.Jur. 952.
The conveyances in question were executed by the complainant and the testator more than five years after the alleged misrepresentation *454 by the testator and more than five years after the execution of the antenuptial contract by the parties during which time complainant and testator lived together as husband and wife.
Complainant also contends that by virtue of the confidential relationship of the parties, a presumption that undue influence was exercised by the testator obtains herein and that the burden of repelling such presumption is on the respondents by showing that complainant had competent and independent advice or by other satisfactory evidence. For such a presumption to be raised, however, the evidence must show clearly and satisfactorily that the testator was the dominant party. Merchants' National Bank v. Hubbard, supra.
Complainant testified in the lower court that at the time of the execution of the conveyances by the testator and herself the testator was feeble and his mind was "bad". This and other evidence offered by complainant repels the presumption that the testator was the dominant party. Compare Rash v. Bogart, 226 Ala. 284, 146 So. 814. It follows that no presumption of undue influence on the part of the testator can be indulged in and the evidence does not show that he, in fact, did exercise undue influence on complainant.
Section 46, Title 34, Ala.Code 1940 provides that a wife, if over the age of 18 years, may relinquish her right to a dower by joining with her husband in a conveyance thereof. Where a wife joins with her husband in a conveyance of land she may require a consideration enuring to herself as a condition on which she renounces her right to dower, or she may validly and effectually release her right thereto without such consideration and upon a consideration moving to her husband only. A conveyance by the husband and wife wherein the wife releases her right of dower without consideration and upon a consideration moving to the husband will be sustained. Bailey v. Litten, 52 Ala. 282; Pickard v. Osburn, 261 Ala. 206, 73 So. 2d 542; 28 C.J.S. Dower § 65.
The consideration expressed in the conveyances in question is a valuable one. Assuming, without deciding, that the consideration moving to the testator was inadequate, that, in itself, is not a sufficient ground for setting the conveyances aside. McLeod v. McLeod, 145 Ala. 269, 40 So. 414; Aiken v. Barnes, 247 Ala. 657, 25 So. 2d 849; Wilfe v. Waller, 261 Ala. 436, 74 So. 2d 451; Young v. Blonk, 261 Ala. 542, 74 So. 2d 910.
We have assiduously studied the pleadings and the evidence in support thereof and we conclude that no ground appears which would justify the setting aside of the conveyances.
It was held in Jarrell v. Farmers' Nat. Bank of Opelika, 253 Ala. 119, 43 So. 2d 116, that after the removal of an estate to chancery, the chancery court has the discretion to proceed according to rules and practices of the chancery court or to follow the statutory requirements provided for the administration of estates in the probate court. See also Johnson v. Johnson, 252 Ala. 366, 41 So. 2d 287; Title 13, § 138 Ala. Code 1940. This disposes of appellant's assignment of error 5, complaining of that portion of the decree providing that complainant's homestead and personal property exemptions be set aside to her in that equity court on proper petition, etc.
We are at the conclusion that neither the assignments of error nor the crossassignments are well taken and that the final decree should be and is ordered affirmed.
Let the costs of this appeal be taxed against the estate of the testator as a part of the cost of administration.
Affirmed.
LIVINGSTON, C. J., and GOODWYN and COLEMAN, JJ., concur. | May 28, 1959 |
f1d92d82-c5fa-41c3-86a6-e4021cb17284 | Daniel Construction Company v. Pierce | 120 So. 2d 381 | N/A | Alabama | Alabama Supreme Court | 120 So. 2d 381 (1959)
DANIEL CONSTRUCTION COMPANY
v.
L. C. PIERCE.
4 Div. 869.
Supreme Court of Alabama.
October 29, 1959.
Rehearing Denied May 19, 1960.
*382 Robt. B. Albritton, Albrittons & Rankin, Andalusia, for appellant.
Prestwood & Prestwood, Andalusia, for appellee.
GOODWYN, Justice.
Appellant, Daniel Construction Company, was a general contractor building a steam power plant at Gantt, Alabama. Royce F. Pierce, a minor, 17 years of age, the son of appellee, L. C. Pierce, was employed by a subcontractor doing the brick and tile work on the job. Both the subcontractor and Royce were subject to the provisions of the Alabama Workmen's Compensation Act (Code 1940, Tit. 26, § 253 et seq., as amended). Royce, while rolling a wheelbarrow loaded with mortar along a scaffolding, fell to a brick wall and then to a concrete floor, thereby causing injuries resulting in his death several days afterwards.
The father brought this suit against the general contractor pursuant to § 119, Tit 7, Code 1940, to recover damages for the wrongful death of his said minor son.
As last amended, the complaint consisted only of count two, as follows:
The jury returned a verdict in favor of appellee for $45,000, upon which verdict judgment was duly rendered. This appeal was taken from that judgment after the trial court overruled appellant's motion for a new trial.
The questions presented by those of the 54 assignments of error here argued and insisted upon, are thus summarized in appellant's brief:
Our conclusion is that we would not be warranted in reversing the case on any of these grounds. However, we entertain the view that the verdict is excessive, which will necessitate a reversal unless appellee makes a remittitur, as herein provided for.
We proceed to a discussion of our reasons for these conclusions.
The first question presented is whether the suit was properly brought by the father. Appellant's insistence is that it could only have been brought by the son's administrator, in view of § 312, Tit. 26, Code 1940, as amended by Act No. 635, appvd. Oct. 9, 1947, Gen.Acts 1947, p. 484. This section authorizes recovery of damages by an "employee, or his dependents in case of his death", from a party other than the employer, "where the injury or death for which compensation is payable under article 2 of this chapter [which deals with elective compensation under the Workmen's Compensation Law] was caused under circumstances also creating a legal liability for damages on the part" of such third party "whether or not such party be subject to the provisions of article 2 of this chapter." Act No. 635 also repealed § 311, Tit. 26. In this case, as already noted, the deceased minor son left no dependents surviving him. For this reason, says appellant, only the son's administrator can maintain the suit because of the following provision of § 312, added by the 1947 amendment:
Our problem is to determine whether the legislature intended, in amending § 312, to take away from the father the right to sue given him under § 119, Tit. 7, Code 1940. It is our view that it was not so intended and that the suit was properly brought by the father.
In the first place we do not think there is anything in amended § 312 clearly indicating an intention to take away the father's already existing right to sue expressly given by § 119, Tit. 7. As said in Goodman v. Carroll, 205 Ala. 305, 306, 87 So. 368, 369:
There is still another reason why there can be no objection to the suit being brought by the father. We have held that the damages recoverable under § 119 in a suit brought by the father belong to the father. As said by a full court in Peoples *385 v. Seamon, 249 Ala. 284, 288, 31 So. 2d 88, 90:
We have also held that there is no real difference between a suit brought by a father individually and one brought by him as his son's administrator. Peoples v. Seamon, supra; Benson v. Robinson, 223 Ala. 85, 86, 134 So. 799. In the Benson case the suit was brought by the father under § 5695, Code 1923, now § 119, Tit. 7. It was there held that the court correctly refused to allow an amendment to show that the father sued as administrator because thereby there was no effectual change in plaintiff's status since, in either event, the recovery was for the sole benefit of the father. See Peoples v. Seamon, supra; White v. Ward, 157 Ala. 345, 47 So. 166, 18 L.R.A., N.S., 568; Tennessee Coal, Iron and R. Co. v. Herndon, 100 Ala. 451, 14 So. 287.
Even assuming § 312 requires a suit for the wrongful death of a minor without dependents to be brought by the minor's administrator, still we do not think, under our liberal system of pleading, that the instant suit should be dismissed simply because it was brought by the father in his individual capacity and not as his son's administrator. As already noted, in either event he would be the sole beneficiary of any recovery had under § 119.
One of appellant's witnesses, Mrs. Voncile Thompson, testified on direct examination concerning a statement made to her by Royce's mother a few days after his death. Mrs. Thompson was employed by an attorney at Andalusia. She testified that she had gone to Mrs. Pierce's residence to interview her in connection with a workmen's compensation case which the attorney was handling for Julian Gunter, the subcontractor and Royce's employer. The unsigned statement, put to writing by the witness at the time of the interview, was admitted in evidence over appellee's objection.
On cross-examination of this witness the following occurred:
"The Court: Yes, you asked her about it yourself.
"Mr. Albritton: I asked her about workmen's compensation.
"Mr. Albritton: We except.
"Mr. Albritton: We object to that.
"Mr. Albritton: We except.
"A. I don't remember. I'm sorry.
"Q. To refresh your recollection, don't you remember that?
*386 "Mr. Albritton: We object to counsel refreshing her recollection along those lines.
On further cross-examination the witness was permitted to testify, over appellant's objection, that she remembered "there was another company involved", a "liability carrier."
Appellant insists that these rulings constituted error to reverse. We are unable to agree.
It must be remembered that this was appellant's own witness, placed on the stand to give testimony undoubtedly considered by appellant to be hurtful to appellee's case. In so testifying she thereby became subject to searching questions on cross-examination going to her interest in the case.
It is apparent that the testimony was allowed by the trial court as having some bearing on the witness' interest in the case. We have said that "it is always competent on cross-examination to make such interrogation of a witness as would tend to test his interest, bias or prejudice or to illustrate or impeach the accuracy of his testimony." Housing Authority of City of Decatur v. Decatur Land Co., 258 Ala. 607, 612, 64 So. 2d 594, 598. As there stated:
Of like import, and applicable here, is the following from Mobile City Lines v. Alexander, 249 Ala. 107, 114, 30 So. 2d 4, 10:
The trial judge was on the scene. We are not prepared to say that he so grossly abused his discretion in allowing the stated cross-examination as to authorize this court to pronounce reversible error in his rulings.
Appellant interposed objections to several portions of the argument to the jury made by counsel for appellee. The entire argument is not set out in the record. However, the portions objected to, and here insisted on as being improper and highly prejudicial, are thus stated in appellant's objections to the argument, which are in the record, viz.: "That Daniel Construction Company is saying that because this was a poor man's son that he should not recover"; "that we come up here with eight different pleas as an escape hatch to ruin our liability in this case"; "that the boy's life may not mean anything to Daniel Construction Company"; "if the jury brings out a verdict *387 less that $50,000 it wouldn't be any more than a mosquito bite to this defendant."
The trial court sustained the objection to the argument in each instance and instructed the jury to disregard it. But, says appellant, the argument in each instance was of that class the poisonous effect of which could not well be eradicated by an admonition from the trial court; that it was, in each instance, and certainly when considered cumulatively, so prejudicial in nature as to call for granting appellant's several motions for a mistrial and its motion for a new trial.
In deciding questions of this sort there can be no hard and fast rule applicable in every case. Each question must be decided in the light of the peculiar facts and circumstances involved, and the atmosphere created, in the trial of each particular case. Birmingham Electric Co. v. Cleveland, 216 Ala. 455, 461, 113 So. 403; Alabama Power Co. v. Goodwin, 214 Ala. 15, 17, 106 So. 239; Ashworth v. Alabama Great R. Co., 211 Ala. 20, 25, 99 So. 191; Anderson v. State, 209 Ala. 36, 43, 95 So. 171, 178. In the last cited case it is said that "no ironclad rule exists by which the prejudicial qualities of improper remarks or argument of counsel can be ascertained in all cases, much depending upon the issues, parties, and general circumstances of the particular case."
As already noted, all of the argument is not included in the record. Thus we have no way of knowing the context in which the several remarks were made. Cf. Housing Authority of City of Decatur v. Decatur Land Co., 258 Ala. 607, 612(3), 64 So. 2d 594, supra.
The trial court recognized the impropriety of the argument by sustaining appellant's objections thereto and instructing the jury to disregard it. The question, then, is whether the argument was so highly improper as to be beyond the cure of the court's instructions. In the light of the record as a whole, the general tenor of the trial, and the presumptions in favor of the trial court's rulings, we are not prepared to say that the argument was ineradicable.
In one instance the trial court disagreed with appellant as to the propriety of appellee's argument. It appears that the argument concerned the failure of appellant to produce at the trial an accident prevention manual demanded by appellee. The court based its ruling on the ground that the argument was a "reply in kind" to argument made by appellant. See Smith v. Reed, 252 Ala. 107, 111(4), 39 So. 2d 653; Louis Pizitz Dry Goods Co. v. Yeldell, 213 Ala. 222, 223, 104 So. 526; Howell v. Smith, 206 Ala. 646, 648, 91 So. 496. Since appellant's argument is not set out in the record, we have no way of determining whether the trial court erred in so ruling.
As already noted, Royce Pierce, at the time of receiving his fatal injury, was an employee of J. M. Gunter, a subcontractor for laying the brick and placing and installing the limestone and structural glazed tile. It is without dispute that Royce fell from a scaffold while rolling a wheelbarrow loaded with mortar for use in such work, thus causing his fatal injury. There is evidence supportive of a finding that he fell from a point where a "patent" or stationary scaffold joined to a "swinging" scaffold. In falling he hit a brick wall and from there fell to a concrete floor.
Under the contract between Gunter and appellant (the general contractor), appellant was to "furnish and erect the swinging scaffolding, all of the necessary materials, and will furnish hoisting equipment and operate the same for the distribution of the materials" to be installed by Gunter. Gunter was to do "all necessary moving of the scaffolding as required during the progress of the work and dismantle same at the completion" of his work. It is contended by appellant that these provisions placed on Gunter the responsibility of furnishing and erecting the "patent" or stationary *388 scaffolding, of maintaining all of the scaffolding and moving it as needed during the work; that if there was negligence in furnishing and maintaining the scaffolding at the place where Royce fell, it was Gunter's negligence and not appellant's.
The patent scaffold was made in 7 feet horizontal sections with each section having a vertical height of approximately 4½ feet. It extended from the hoisting elevator to the swinging scaffold. The swinging scaffold was hung by cables from steel beams supported by portions of the wall already built. As the work progressed the swinging scaffold could and was to be raised on a level with the patent scaffold each time the latter was raised. However, when Royce fell the swinging scaffold was 18 inches to 2 feet higher than the patent scaffold. Boards were placed at the juncture of the two scaffolds to serve as a ramp for going from one to the other. There is evidence supportive of a finding that Royce fell at this point. It is clear from the evidence that there was no guard rail or curbing at the place where he fell. The walkway of the patent scaffold was 4 feet wide and the swinging scaffold 7½ or 8 feet wide. While the evidence is in conflict as to whether there was a guard rail on the swinging scaffold, there is ample evidence supporting a finding that there was no guard rail of any kind around either scaffold, except where the patent scaffold connected with the hoisting elevator.
There is no dispute that the patent scaffold was actually constructed by the appellant; as was the swinging scaffold. There is evidence, too, from which the jury could find that appellant raised the scaffolds as needed.
As we see it, we do not have here a case where an employee of an independent subcontractor is injured by an unsafe appliance furnished by such subcontractor. Instead, the general contractor undertook to furnish all of the scaffolding for use by the subcontractor and his employees. And there is evidence from which the jury could find that appellant also undertook the moving and maintaining of the scaffolding where Royce fell. In this situation, the applicable principle is thus stated in 35 Am. Jur., Master and Servant, § 529, pp. 957-958:
See, also, 65 C.J.S. Negligence § 70, p. 562.
We think there was evidence sufficient to support a finding of appellant's negligence in furnishing and maintaining the scaffolding at the place where Royce fell. That is, the evidence presented a question for the jury as to whether appellant failed to use ordinary care to see that the scaffolding was in a reasonably safe condition for the use of decedent, an invitee, in the manner and to the extent he was invited to use it. See Foster & Creighton Co. v. St. Paul Mercury Indemnity Co., 264 Ala. 581, 588, 589, 590, 88 So. 2d 825; Foreman v. Dorsey Trailers, Inc., 256 Ala. 253, 256. 54 *389 So. 2d 499; Day & Sachs v. Travelers' Ins. Co., 223 Ala. 558, 562, 137 So. 409; Sloss-Sheffield Steel & Iron Co. v. Bibb, 164 Ala. 62, 68-69, 51 So. 345; Lookout Mountain Iron Co. v. Lea, 144 Ala. 169, 175, 39 So. 1017; Campbell v. Lunsford, 83 Ala. 512, 515, 3 So. 522; Revels v. Southern California Edison Co., 113 Cal. App. 2d 673, 248 P.2d 986, 989, 990; Sun Oil Co. v. Pierce, 5 Cir., 224 F.2d 580, 585; McKee v. Patterson, 153 Tex. 517, 271 S.W.2d 391, 393; Gambella v. John A. Johnson & Sons, 285 App.Div. 580, 140 N.Y.S.2d 208, 210, 211.
For a collection of cases on the question before us, see Annotation, General Contractor's Liability for Injuries to Employees of Other Contractors, 20 A.L.R. 2d 868.
It was not error to refuse appellant's requested affirmative charge. As said in McMillan v. Aiken, 205 Ala. 35, 40, 88 So. 135, 139:
We do not understand appellant to insist, on this appeal, that appellee is barred from recovery because of his or Royce's contributory negligence.
Appellant charges error in the refusal of his requested charge No. 26 as follows:
Assuming, without deciding, the propriety of such charge in a case of this kind, it was not error to refuse it for the reason that it "was substantially and fairly given to the jury in the court's general charge." Code 1940, Tit. 7, § 273; Smith v. Lawson, 264 Ala. 389, 393, 88 So. 2d 322; Atlantic Coast Line R. Co. v. French, 261 Ala. 306, 313, 74 So. 2d 266.
The only ground of the motion for a new trial calling for discussion concerns the excessiveness of the verdict.
The damages recoverable under § 119, Tit. 7, Code 1940, are entirely punitive and are based on the culpability of the defendant and the enormity of the wrongful act. As said in Mobile Light & R. Co. v. Nicholas, 232 Ala. 213, 222, 167 So. 298, 305:
*390 On consideration of all the circumstances shown by the evidence, and the incidents of the trial, we entertain the view that the ground of the motion for a new trial charging excessiveness of the verdict was well taken. Accordingly, a judgment will be entered here that unless appellee files with the clerk of this court a remittitur within thirty days, reducing the judgment to $30,000, the judgment of the trial court will stand reversed. If such remittitur is duly filed, the judgment for $30,000, with interest from the date of the judgment in the circuit court, will stand affirmed. See United States Fidelity & Guaranty Co. v. Millonas, 206 Ala. 147, 154, 89 So. 732, 29 A.L.R. 520; Montgomery Light & Water Power Co. v. Thombs, 204 Ala. 678, 684, 87 So. 205; Code 1940, Tit. 7, § 811.
LIVINGSTON, C. J., and SIMPSON and MERRILL, JJ., concur. | October 29, 1959 |
363649be-d631-402c-8015-a362d39310d4 | WHEELER, LACEY & BROWN, INC. v. Baker | 112 So. 2d 461 | N/A | Alabama | Alabama Supreme Court | 112 So. 2d 461 (1959)
WHEELER, LACEY & BROWN, INC., et al.
v.
Mary C. BAKER.
6 Div. 291.
Supreme Court of Alabama.
May 28, 1959.
*462 Mead & Norman and S. Palmer Keith, Jr., Birmingham, for appellants.
Higgins, Windham, Perdue & Johnson, Birmingham, for appellee.
GOODWYN, Justice.
This is an appeal by the defendants from a judgment of the circuit court of Jefferson County rendered on a jury verdict in favor of the plaintiff in a personal injury action. The defendants' motion for a new trial was overruled.
The complaint consists of one count which alleges, in substance, the following: That the defendants Miree were the owners and defendant Wheeler, Lacey & Brown, Inc., a corporation, "was the agent with charge and control of a certain apartment building known as The Sycamore Manor" located in Birmingham "where the defendants conducted or operated an apartment house, and rented and leased apartments to individuals for a valuable consideration" and in connection therewith maintained a walkway between the public sidewalk and said apartment building for the use of tenants occupying said apartment building; that "said walkway was so negligently constructed or maintained by the defendants as to cause said walkway to have and contain uneven places"; that on the day of plaintiff's injury said walkway was not in a reasonably safe condition for use of the tenants; that, when injured, plaintiff "was a tenant of said defendants and was occupying an apartment in said apartment building"; that "while walking upon said walkway from the public sidewalk to her said apartment, plaintiff tripped or was otherwise caused to fall * * * and as a proximate consequence thereof she was injured and damaged" (injuries catalogued); that "all of her said injuries and damages were caused as a proximate result of the combined and concurring negligence of the defendants in negligently causing or negligently allowing said walkway at the point where plaintiff tripped and fell to be and remain in an unsafe condition for the use of the tenants occupying said apartment building on said date and occasion."
Defendants' separate demurrers to the complaint were overruled. They then entered a plea in short by consent. The defenses relied on under said plea were the general issue, contributory negligence, and plaintiff's release of any cause of action for the injuries complained of by reason of the following provision contained in her apartment lease, viz.:
We have concluded that the foregoing provision exonerates defendants from liability to the plaintiff. Accordingly, we confine our discussion to that one issue.
*463 There appears to be no dispute between the parties as to the validity of the exculpatory provision of the lease quoted above. Indeed, this court has held that a provision of this kind is not contrary to public policy. Life & Casualty Ins. Co. of Tennessee v. Porterfield, 239 Ala. 148, 150, 194 So. 173, and cases there cited. Such is the general rule. 32 Am.Jur., Landlord and Tenant, § 739, p. 615; 51 C.J.S. Landlord and Tenant § 226, p. 835.
The question presented, then, is whether the exculpatory provision is applicable to the circumstances of this particular case so as to exonerate defendants from liability. Both parties rely on the holding in Armi v. Huckabee, 266 Ala. 91, 94 So. 2d 380, to support their respective positions. The exculpatory provisions considered in that case are identical with those in the instant case. In the Armi case it was held that such provisions did not release the owners of the apartment building from liability for personal injuries to a tenant caused by the negligent conduct of the defendants, their agents or employees. In that case there was active negligence, while in the case before us liability is based on a defect which involves no affirmative negligence on the part of defendants, their agents or employees. It seems to us that to hold that the exculpatory provision, quoted above, is not an effectual release of defendants in this case would be to completely read it out of the lease. Cf. Life & Casualty Ins. Co. of Tennessee v. Porterfield, 239 Ala. 148, 150-151, 194 So. 173, supra; Cairnes v. Hillman Drug Co., 214 Ala. 545, 548, 108 So. 362; Spangler v. Hobson, 212 Ala. 105, 106, 101 So. 828. What was said in the Porterfield case is equally applicable here, viz.:
The defendants were due the general charge as requested by them. Accordingly, the judgment is due to be reversed and the cause remanded.
Reversed and remanded.
LIVINGSTON, C. J., and SIMPSON, STAKELY, COLEMAN, JJ., concur. | May 28, 1959 |
75549cdb-c756-4ef8-a9a9-8b1554f4bec4 | Cosby v. State | 114 So. 2d 250 | N/A | Alabama | Alabama Supreme Court | 114 So. 2d 250 (1959)
George COSBY
v.
STATE of Alabama.
8 Div. 965.
Supreme Court of Alabama.
August 20, 1959.
*251 Thos. G. Steele and Wm. B. Sherrill, Athens, for appellant.
MacDonald Gallion, Atty. Gen., and John F. Proctor, Asst. Atty. Gen., for the State.
SIMPSON, Justice.
Appellant was indicted, tried and convicted of murder in the first degree and his punishment fixed at life imprisonment. He has appealed to this court.
Although assignments of error were not necessary, appellant has noted them and they are helpful in our study of the case. These assignments raise the only questions meriting treatment so we will limit discussion to them.
Assignment of error 24 predicates error on the refusal of the trial court to grant appellant's motion for a mistrial. During the solicitor's examination of Josie Grigsby, witness for the State, the following occurred:
Appellant objected and the court stated, "That's out". Thereupon appellant made a motion for a mistrial which was overruled and the trial court instructed counsel to be cautious in their imputations. Counsel for appellant argues that appellant is a light-skinned Negro and that the above remark of the solicitor constituted an appeal to race prejudice. The victim, Price Bridgeforth, deceased, was also a Negro.
The law guarantees to every defendant, white or Negro, a fair and impartial trial, free from undue appeals to prejudice or other improper motive. Tannehill v. State, 159 Ala. 51, 48 So. 662; Williams v. State, 25 Ala.App. 342, 146 So. 422; Harris v. State, 22 Ala.App. 121, 113 So. 318. "Justice is blind, says the law, and in her judgment must see no man, color, race, or condition." Jones v. State, 21 Ala.App. 234, 109 So. 189, 191.
It is most doubtful that the remarks complained of could be construed as an appeal to race prejudice, but the trial court excluded them anyway and we are not willing to say that they were of such a nature as to require the granting of a mistrial. Owens v. State, 215 Ala. 42, 109 So. 109; Davis v. State, 233 Ala. 202, 172 So. 344; Johnson v. State, 35 Ala.App. 645, 51 So. 2d 901, see also Birmingham Railway, Light & Power Co. v. Gonzalez, 183 Ala. 273, 61 So. 80.
Assignments of error 22 and 23 are predicated on comments by the trial court. It appears that the State was attempting to impeach the defendant as a witness by the following questions propounded to him:
This latter question was not answered and the length of the sentence was never shown. To this question, however, appellant objected on the ground that the number of years would be immaterial and irrelevant and the court stated, "I don't think so. I think the number of years would have some weight." Appellant then asked the court to instruct the jury that the conviction was admitted solely for the purpose of impeaching the defendant's testimony as a witness and for no other reason. The court stated, "That's the law". At the conclusion of the evidence the court also gave defendant's written requested Charge 61 which reads as follows:
It is clear that reversible error on the part of the trial court in making the above complained of comment in the presence of the jury is not made to appear. Chambers v. State, 264 Ala. 8, 84 So. 2d 342; Luker v. State, 39 Ala.App. 548, 105 So. 2d 834; Ellis v. State, 244 Ala. 79, 11 So. 2d 861; Latikos v. State, 17 Ala.App. 655, 88 So. 47.
Appellant can take nothing by assignment of error 21; his objection to the question was sustained; the question was not answered and the court admonished the solicitor. See Coats v. State, 253 Ala. 290, 45 So. 2d 35; Woodard v. State, 253 Ala. 259, 44 So. 2d 241; Adams v. State, 175 Ala. 8, 57 So. 591; see also Luker v. State, supra.
Appellant also urges error on the part of the trial court in overruling his objections to certain remarks made by the solicitor during his closing argument. Counsel for the State and the defendant are allowed considerable latitude in drawing their deductions from the evidence and the propriety of the argument of counsel depends upon the particular issues, facts and atmosphere of each case. Bryson v. State, 264 Ala. 111, 84 So. 2d 785; Arant v. State, 232 Ala. 275, 167 So. 540; Brothers v. State, 236 Ala. 448, 183 So. 433. It is not clear from the fragmentary portion of the argument which appears in the record that the remarks complained of were made for purposes other than attacking the credibility of the defendant's testimony. The trial court instructed the jury that the only purpose for which the evidence of the prior conviction of the defendant could be considered was in determining whether or not they believed his testimony. Brothers v. State, supra. We cannot say, therefore, that the argument was so erroneous as to require a reversal. Mincy v. State, 262 Ala. 193, 78 So. 2d 262; Pate v. State, 32 Ala. App. 365, 26 So. 2d 214; Espey v. State, 31 Ala.App. 351, 17 So. 2d 430.
Defendant also argues that the verdict is contrary to the great weight of the evidence. The essential elements of murder in the first degree in a case such as this are that the taking of life must have been willful, deliberate, malicious and premeditated. Code 1940, Tit. 14, § 314. These must concur and coexist. If a man intentionally shoots another with a gun or other deadly weapon, and death ensues, the law implies or presumes malice and a formed design to take life and it imposes upon the slayer the burden of rebutting this presumption by other proof, unless the evidence which proves the killing rebuts the presumption. Coats v. State, supra, Hornsby v. State, 94 Ala. 55, 10 So. 522; Brown v. State, 109 Ala. 70, 20 So. 103; Warren v. State, 34 Ala.App. 447, 41 So. 2d 201.
After the intentional killing of the deceased by the defendant with a deadly *253 weapon has been proved, the burden rests on the defendant to prove a pressing necessity on his part to take life in self-defense, unless this fact arises out of the evidence produced against him to prove the homicide. The onus, therefore, rests on the defendant, in such case to show that he could not safely retreat without increasing or apparently increasing his peril. Gibson v. State, 89 Ala. 121, 8 So. 98; King v. State, 233 Ala. 198, 171 So. 254; Underwood v. State, 179 Ala. 9, 60 So. 842.
With the foregoing legal principles as our guide we have studied the record in the instant case. Two witnesses to the shooting testified that the defendant and Price Bridgeforth, the deceased, were in the home of one Josie Grigsby; Price was sitting on the arm of the sofa and approximately ten feet from where the defendant was sitting; Price, contrary to the wishes of the defendant, plugged a TV set into the wall and defendant pulled an automatic pistol from his pocket and shot him. These witnesses also testified that Price had no weapon, that they did not hear him make any threats to the defendant and that Price did not "lay a hand" on the defendant. The defendant testified that he went over to unplug the TV and Price gave him a "stiff jab" and knocked him into a chair, that he (the defendant) pulled his pistol and shot Price. Defendant also testified that he saw that Price had no weapon but his hand. We are of the opinion that from the above evidence and all the other facts and circumstances shown by the transcript in the case, the jury was authorized to find appellant guilty of murder in the first degree.
We find no error to reverse.
Affirmed.
LAWSON, GOODWYN and MERRILL, JJ., concur. | August 20, 1959 |
3bfea3de-645c-405c-8a33-9e0404bfd132 | Weston v. Weston | 114 So. 2d 898 | N/A | Alabama | Alabama Supreme Court | 114 So. 2d 898 (1959)
I. V. WESTON, Jr., Executor,
v.
G. H. WESTON.
4 Div. 971.
Supreme Court of Alabama.
October 8, 1959.
*899 A. B. Robertson, Jr., Clayton, Chauncey Sparks, Eufaula, for appellant.
Crews Johnston and Jack W. Wallace, Clayton, for appellee.
LAWSON, Justice.
This is an appeal from a final decree of the Circuit Court of Barbour County, in Equity.
I. V. Weston and G. H. Weston were adjoining landowners in Barbour County. By separate written instruments each of them gave to the D. M. Wilson Bauxite Company the right to mine iron ore and to erect and operate an iron ore washer on his land.
The Bauxite Company agreed to pay so-called washer fees to the owner of the land upon which the washer was ultimately erected.
After the washer was completed and in operation it was determined that a part of it had been erected on land which I. V. Weston and G. H. Weston both claimed to own and which was embraced in the lease which each of them had executed to the Bauxite Company. The other part of the washer was erected on land which unquestionably belonged to I. V. Weston.
*900 I. V. Weston claimed all of the washer fees on the theory that the washer had been erected entirely on his land.
G. H. Weston, contending that a part of the washer had been constructed on his land, claimed some of the washer fees.
In order to settle their adverse claims to the washer fees, the Bauxite Company filed a bill of interpleader pursuant to Equity Rule 36, Code 1940 Tit. 7 Appendix, against I. V. Weston and G. H. Weston.
I. V. Weston in his answer to the bill of interpleader alleged ownership and possession of the disputed area and claimed all of the washer fees.
G. H. Weston filed an answer which he made a cross bill wherein he alleged fee simple title to the disputed area and claimed a part of the washer fees. The Bauxite Company and I. V. Weston were made parties respondent to the cross bill. Both answered the cross bill. In his answer I. V. Weston alleged ownership and possession of the disputed area and again claimed all of the washer fees. The contents of the answer of the Bauxite Company to the cross bill need not be stated.
The cause came on for hearing before the chancellor and a jury, which was requested by G. H. Weston. § 322, Title 7, Code 1940.
During the course of the trial I. V. Weston died. I. V. Weston, Jr., as executor of the estate of I. V. Weston, was substituted in his stead. Act No. 708, 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); Equity Rule 35. See Ex parte Little, 266 Ala. 161, 95 So. 2d 269.
The trial court decreed that the disputed area belonged to G. H. Weston and that the washer fees be divided equally between I. V. Weston, Jr., as executor, and G. H. Weston.
I. V. Weston, Jr., as executor, has appealed to this court.
Appellant contends that even if it be determined that his intestate did not have paper title or title by adverse possession, his lease should prevail for he was holding the disputed area adversely at the time the leases were executed and the G. H. Weston lease was therefore void.
This insistence seems to be grounded on the statements found in some of our early ejectment cases to the effect that a conveyance of lands which are, at the time of the conveyance, in the adverse possession of a third person, under claim of title, is void as against the adverse holder, and will not sustain an action of ejectment against him to recover possession. Sharp v. Robertson's Ex'rs, 76 Ala. 343; Stringfellow v. Tennessee Coal, Iron & R. Co., 117 Ala. 250, 22 So. 997.
Even if it be conceded that the evidence shows that appellant's intestate was holding the disputed area adversely at the time the leases were executed and that the rule of the Sharp and Stringfellow Cases could ever have applied to a case of this kind, that rule can have no effect here, for it has been abrogated by statute as to conveyances executed subsequent to the effective date of § 3839, Code 1907, now § 938, Title 7, Code 1940. See Williams v. Muckelroy, 221 Ala. 531, 129 So. 476; Grayson v. Muckleroy, 220 Ala. 182, 124 So. 217; Spradling v. May, 259 Ala. 10, 65 So. 2d 494.
Moreover, the whole course of the trial and the decree itself show that the issue was upon the title to the disputed area and we are impelled to so regard that as the issue here. Phillips v. Phillips, 186 Ala. 545, 65 So. 49. A case will not be reviewed on a theory different from that on which it was tried below. Ellerbee v. Atlantic Coast Line R. Co., 258 Ala. 76, 61 So. 2d 89; Inter-Ocean Ins. Co. v. Banks, 268 Ala. 25, 104 So. 2d 836.
*901 We have two parties who claim a tract of land which is included in the chains of title claimed by each of them. Neither has shown title back to the government.
The first deed under which I. V. Weston claimed title is dated Novemeber 23, 1905. It is from F. B. Pierce to Aaron Price and includes in the description the area in dispute.
Contrary to the insistence of counsel for appellant, there is no legal evidence going to show that F. B. Pierce purchased the property from one B. B. McKenzie. Appellant's witness F. D. Veal did testify to the effect that F. B. Pierce told him that he purchased the property from B. B. McKenzie. It is our understanding of the record that this statement will not be considered by us, for we are considering here only such testimony as is relevant, material, competent and legal. Act No. 101, approved June 8, 1943, General Acts 1943, p. 105; 1955 Cum.Pocket Part, Code 1940, Title 7, § 372(1); Redwine v. Jackson, 254 Ala. 564, 49 So. 2d 115. A party in possession of land may make declarations explanatory of his possession, and either may claim or disclaim ownership, no matter who may be parties to the suit. However, his declarations as to the source of his title and as to past transactions, or contracts in respect thereto, are not admissible. Granade v. United States Lumber & Cotton Co., 224 Ala. 185, 139 So. 409; Shelton v. Stapler, 219 Ala. 15, 121 So. 34; Doe ex dem. Hooper v. Clayton, 81 Ala. 391, 2 So. 24; Dothard v. Denson, 72 Ala. 541; Daffron v. Crump, 69 Ala. 77.
Aaron Price on May 31, 1937, executed a deed wherein he attempted to convey certain property to his daughter Maude, the wife of I. V. Weston.
On June 30, 1948, Mrs. Maude P. Weston executed a deed to her husband, I. V. Weston, wherein the disputed area is described along with other lands.
But the record before us does not show that Mrs. Maude P. Weston acquired the area in dispute in the deed from her father under date of May 31, 1937. The description in that deed reads as follows: "That certain part of the tract of land known as the McKenzie land lying N. E. of Louisville, Alabama, and being bounded as follows to wit. On North by land owned by W. A. Bell. On East by M. N. McEachern and M. L. Beasley or Did Hurst land. On South by M. N. McEachern and A. R. Andrews lands and on the East by lands of J. H. Blair and lands this day deeded to Maggie Green. Said tract of land in this deed is two hundred fifteen acres more or less and all being in Barbour County, Alabama."
This description if aided by extrinsic evidence might be sufficient to identify the lands conveyed. See Eufaula National Bank v. Pruett, 128 Ala. 470, 30 So. 731; Scott v. McDonald, 249 Ala. 464, 31 So. 2d 351; Lavender v. Ball, 267 Ala. 104, 100 So. 2d 331, and cases there cited.
But this record does not contain any such extrinsic evidence. There is some evidence tending to show that the property acquired by Aaron Price from F. B. Pierce was sometimes referred to as the McKenzie place. But Aaron Price in his deed to Mrs. Maude P. Weston attempted to convey only a part of the McKenzie place and there is nothing in this record which identifies the part he intended to convey or which tends to show that the area in dispute is included within the boundaries referred to in the description.
There is no evidence in this record going to show that Bell, McEachern, Beasley, Hurst, Andrews or Blair owned any lands near Louisville, Alabama, or at any other place at the time the deed was executed. The record does not show the lands conveyed to Maggie Green. It is also noted that no western boundary is included in the description. In regard to the eastern boundary, the evidence in this case shows that the lands to the east and northeast of the *902 Price lands were owned by the Flournoys in 1937 and no mention is made of that fact in the description.
Appellant introduced in evidence a "Map of the Ivy Weston Land" made in May, 1948, by C. A. Pickett, a registered surveyor. This map indicated that the area in dispute belonged to Ivy Weston.
But Ivy Weston did not secure his deed until June 30, 1948, at least a month after the map was made.
The surveyor, Pickett, was not called as a witness and there is nothing in the record before us to support a conclusion that the map was based on the description included in the 1937 deed from Aaron Price to Maude P. Weston.
The deed from Aaron Price to Maude P. Weston purported to convey 215 acres more or less. The deed from Maude P. Weston to I. V. Weston covers approximately 238 acres. The area in dispute is twenty-four acres, approximately the amount of the excess of land described in the deed from Mrs. Weston to her husband over that purported to be conveyed in the deed to her from her father, Aaron Price.
It seems to be conceded that appellee, G. H. Weston, has shown an unbroken chain of paper title dating back to January 13, 1881, when one D. McKenzie conveyed the land in question to his daughter, Mrs. Susan Flournoy, and three of her children. The deed of June 18, 1839, by one Daniel McKenzie to one Bethune B. McKenzie, which appellant introduced in evidence for the purpose of showing that D. McKenzie in 1881 had no title to the area in dispute, was not recorded until February 14, 1958, several months after this litigation was begun and long after all the conveyances in appellee's chain of title were recorded. Moreover, there is nothing in the record to show that "D. McKenzie" and "Daniel McKenzie" are one and the same person. Hence, in this state of the record, the 1839 deed can have no effect on the appellee's chain of title.
In view of the foregoing, we hold that the record before us shows that G. H. Weston has the better paper title.
We come now to a consideration of appellant's claim that title to the disputed area was in his intestate under the doctrine of prescription.
Appellant sought to establish adverse occupancy and user of the property by his intestate and those under whom he claimed for more than twenty years.
The land in dispute is rough. Very little of it has been subject to cultivation. Much of it is covered by trees and underbrush. There are two or three big gullies on it.
The burden of proving the possession adversethat it was taken and held under a claim of title hostile to the title of the true ownerrests upon the party asserting it. Dothard v. Denson, supra.
Ownership and possession of land are each facts, to be proved by evidence as other facts are proved. Neither can be proved by general notoriety, nor by reputation. Doe ex dem. Hooper v. Clayton, supra.
Appellant called a number of witnesses, but many of them did no more than testify that I. V. Weston and those under whom he claimed always claimed the property in dispute and that a certain branch was generally recognized as the eastern boundary line of the I. V. Weston property.
There was testimony offered on behalf of appellant tending to show that at intervals since 1905 Aaron Price and I. V. Weston cultivated small areas of the disputed tract. There was also testimony relative to the spasmodic cutting of timber from the disputed area under the authority of Price and I. V. Weston. But such testimony falls short, in our opinion, of showing an actual continuous user of the area in dispute during a twenty-year period. Turnipseed v. Moseley, 248 Ala. 340, 27 So. 2d 483, 170 A.L.R. 882.
*903 In a bill of interpleader a claimant must recover on the strength of his own title and not on the weakness of the title of his adversary. Prudential Ins. Co. of America v. Cahill, 321 Ill.App. 45, 52 N.E.2d 481. As between the respondents compelled to interplead, recovery rests upon the strength of the claim of one, rather than upon the weakness of the other. In Lawrence v. Paden, 76 Ill.App. 510, 514, it is said:
We are of the opinion after a careful consideration of the record before us that the appellee, G. H. Weston, has shown the better right to the washer fees here involved and that the trial court was correct in so decreeing.
As we have heretofore indicated, the trial court submitted the issue of fact to a jury which responded thusly: "We, the jury, vote eight for G. H. Weston and four for I. V. WestonAlto Boyd, Foreman."
Thereafter the trial court entered a decree which contains the following language:
Obviously the trial court was in error in observing that the jury had in fact rendered a verdict. The members of the jury were not in agreement.
However, we do not think that the reference to the so-called jury verdict should vitiate the decree. Neither side was entitled to a jury trial as a matter of right. But the trial court was authorized to submit the issue of fact to a jury for decision for the purpose of "enlightening the conscience of the chancellor." Alabama, T. & N. R. Co. v. Aliceville Lumber Co., 199 Ala. 391, 74 So. 441, 445. Even if there had been a jury verdict in proper form it would have been advisory merely and could have been rejected by the trial court. Lucas v. Scott, 247 Ala. 183, 24 So. 2d 540; Jones, Trial by Jury in Alabama, 8 Alabama Law Review, p. 274.
Inasmuch as the evidence was taken orally before the trial court as well as before the jury, there is a presumption in favor of the court's finding in regard to matters about which there was a conflict in the evidence, although the court did apparently adopt the view of the majority of the members of the jury.
The lower court taxes all of the costs against the appellant. Equity Rule 36 provides that the trial court may tax costs in interpleader cases at its discretion. However, the matter of taxation of costs in equity cases is subject to review here. Sibley v. Hutchinson, 218 Ala. 440, 118 So. 638.
We are of the opinion that appellant should not have been taxed with the costs in this case and that the costs should have been ordered paid out of the fund the subject of the suit. In Morris v. Waldrop, 213 Ala. 435, 440, 105 So. 172, 177, we said: "The lower court was correct in the provision for the costs of the bill of interpleader in that court to be paid out of the fund the subject of the suit."
The decree of the Circuit Court, in Equity, is affirmed in all respects except as to taxation of costs. In that respect the decree will be here modified so as to provide that the costs in the trial court be paid out of the fund the subject of the suit.
*904 The costs of this appeal are taxed one half against the appellant, as executor of the estate of I. V. Weston, and one half against the appellee, G. H. Weston.
Modified and affirmed.
SIMPSON, STAKELY, GOODWYN and MERRILL, JJ., concur. | October 8, 1959 |
f2fd24bf-ffb5-41d5-b367-1566d2e3a5b1 | Boothby Realty Co. v. Haygood | 114 So. 2d 555 | N/A | Alabama | Alabama Supreme Court | 114 So. 2d 555 (1959)
BOOTHBY REALTY CO.
v.
Carrie M. HAYGOOD.
6 Div. 402.
Supreme Court of Alabama.
September 17, 1959.
Wm. M. Acker, Jr., Smyer, White, Reid & Acker, Birmingham, for appellant.
J. Robt. Huie and J. Terry Huffstutler, Birmingham, for appellee.
McGowen & McGowen and Manly & Manly, Birmingham, amici curiae, on behalf of appellant.
MERRILL, Justice.
Appellee, Carrie M. Haygood, brought suit against the Boothby Realty Company, *556 a Corporation, appellant, for maliciously and without probable cause therefor causing appellee to be prosecuted in a civil suit in the Municipal Court of Birmingham upon a charge of nonpayment of rent under a lease agreement. A judgment for appellee was set aside on motion for a new trial. The case was tried again and appellee was awarded damages in the amount of $4,500. The trial court ordered a remittitur reducing the judgment to $2,000, which remittitur was filed by appellee.
The tendencies of the evidence are that Mrs. Haygood had been a tenant of Boothby Realty Company for some time prior to September 26, 1955, when she consulted her attorney, Mr. J. Robert Huie, and requested him to learn from Boothby Realty Company under what terms and conditions she could vacate the said apartment before the expiration of her current lease. Mr. Huie had a telephone conversation with Mr. James H. Roberts, Vice-President of Boothby Realty Company, while Mrs. Haygood was in his office and there resulted from the conversation a letter written by Mr. J. Robert Huie in behalf of Mrs. Haygood authorizing Boothby to sublease the apartment occupied by Mrs. Haygood. Under date of December 23, 1955, Boothby Realty Company wrote Mrs. Haygood advising that they would be glad to quote her apartment for February 15th occupancy with the provision that she would be responsible for the apartment until a new lease was signed, plus three per cent of the unexpired lease or a minimum of $5, whichever was greater.
Subsequently, Mrs. Haygood received another letter from Boothby Realty Company advising that her apartment had been re-rented as of March 22, 1956. The letter requested that she remit rent through March 21st, plus three per cent. of the unexpired lease, amounting to $49.08. Mrs. Haygood sent her check to Boothby Realty Company in the amount of $49.08 on March 12, 1956. The check was accepted and cashed by Boothby Realty Company. Mrs. Haygood moved on March 21, 1956.
Boothby Realty Company rented Mrs. Haygood's apartment to Mrs. Bernice R. Webb, who signed a lease identical to the lease which had been in effect with Mrs. Haygood. Mrs. Webb paid the sum of $18.58, as rent on the apartment, to Boothby Realty Company at the time she signed the lease.
Mrs. Webb told Mr. Roberts that she would expect the apartment to have been redecorated and the floors sanded when she began occupancy on March 22nd and she received assurance that these requirements would be met. Based upon this assurance, she executed the lease and made the deposit. When March 22nd arrived, the redecoration had not commenced and the apartment was not ready. Mrs. Webb made other arrangements and requested that her money be returned, which appellant did. The apartment was re-rented to a third party on April 15, 1956. Mr. Roberts presented the entire file and the facts and circumstances surrounding the transaction to appellant's attorney, who advised the appellant that it had a cause of action against Mrs. Haygood for the unpaid rent under her lease up to April 15th.
Suit was filed in the Municipal Court of Birmingham and at the trial, the parties were present and testified and judgment was rendered for appellant. On appeal to the circuit court, the jury found in favor of the appellee.
The principle conflict in the evidence is exactly what took place in a telephone conversation between Mr. Roberts and Mrs. Haygood. Mr. Roberts testified that he called Mrs. Haygood over the telephone while Mrs. Webb was present in his office and explained that the redecorating and floor sanding would have to be completed by March 22nd, and that Mrs. Haygood agreed to vacate the apartment on March 15th. Mrs. Haygood admitted a telephone conversation but denied that she was asked to vacate before the 21st and denied also that she promised to vacate earlier. Mrs. Webb said that she saw Mr. Roberts make a telephone *557 call but did not hear the conversation, but after the call, he assured her that the apartment would be ready for occupancy on March 22nd. On Friday, March 16th, appellant sent a crew to begin the redecoration and they were denied entrance because Mrs. Haygood had not vacated. On the following Monday, Mr. Roberts went with the crew to the apartment again and they were denied entrance by the maid. They did not get access to the apartment until March 22nd.
Appellant contends that it was entitled to the affirmative charge because the evidence showed that it had recovered a judgment against the plaintiff here on the first trial and this fact was conclusive as to the presence of probable cause, even though plaintiff secured a judgment on appeal, there being no evidence in the instant case of fraud, perjury or other improper means.
This question does not appear to have been decided by this court insofar as civil cases are concerned, except in an attachment suit to which reference will be made later. This court does not follow the majority rule in cases of malicious prosecution arising out of criminal cases. The rule, according to the weight of authority, is that the judgment of conviction, if not obtained by improper means, is conclusive evidence of probable cause for instituting the prosecution even though the conviction is reversed. 34 Am. Jur., Malicious Prosecution, § 55; 54 C.J.S. Malicious Prosecution § 37b; Vol. II Modern American Law, Torts, Malicious Prosecution, § 5, p. 297. The "settled rule for Alabama" is "that the judgment of conviction, though later vacated and accused discharged, is prima facie evidence of the existence of probable cause for instituting the prosecution `which may be rebutted by any competent evidence which clearly overcomes the presumption arising from the fact of defendant's conviction in the first instance.'" Republic Steel Corp. v. Whitfield, 260 Ala. 333, 70 So. 2d 424, 426; Kemp v. York, 16 Ala.App. 675, 81 So. 195, certiorari denied, 202 Ala. 425, 80 So. 809.
The majority rule in malicious prosecution cases arising out of civil cases is that unless a judgment or decree in prior civil proceedings against the malicious prosecution plaintiff was obtained by fraud, perjury or other improper means, the judgment or decree establishes or shows conclusively the existence of probable cause for bringing the former action even though it was subsequently reversed or set aside. 58 A.L. R.2d 1430, § 5; 34 Am.Jur., Malicious Prosecution, § 57; 54 C.J.S. Malicious Prosecution, § 24b.
Many differences between malicious prosecution suits arising from criminal cases and those arising from civil cases are pointed out in Restatement of the Law of Torts, Vol. 3, §§ 674, 675. Some of these differences are:
1. A prosecution for a criminal offense is not justified unless the prosecutor believes and has probable cause for believing that the person against whom the proceedings are brought is guilty of the crime charged against him. Belief, even if reasonable, in the possible guilt of the accused is not enough to give the private prosecutor cause to initiate criminal proceedings. On the other hand, a reasonable belief in the possibility that the claim may be held valid is sufficient to give probable cause for the initiation of civil proceedings.
2. The only proper purpose for initiating criminal proceedings is to aid in the administration of the criminal law by bringing one who is believed to be a criminal to justice, while civil proceedings may properly be brought to secure the adjudication of a claim which the person initiating them believes may possibly be adjudicated in his favor.
3. Where the action is for the initiation of criminal proceedings, the private prosecutor may escape liability by proving that the accused was guilty of the crime charged against him, even though the proceedings had resulted in his acquittal. Where, however, the proceedings are civil, the decision of a competent tribunal is a final adjudication *558 of all matters in dispute. Therefore, the person who unsuccessfully initiates civil proceedings can not relitigate the validity of his claim in an action brought for their wrongful initiation.
4. In order to recover, the plaintiff must prove something more than the mere fact that the civil proceedings have been initiated without probable cause and for an improper purpose and have terminated in his favor. He must show either material harm or the violation of a legal right which is in itself sufficient to support an action for damages.
5. In one particular a private prosecutor's reasonable belief in the guilt of the accused differs from the reasonable belief of one who initiates private civil proceedings against another. A private prosecutor does not have reasonable grounds for believing that the accused has conducted himself in a particular manner, if he merely entertains a suspicion even though he reasonably believes it may be verified upon further investigation. On the other hand, where the proceedings are civil, it is enough that the person initiating them believes that he can establish the existence of such facts to the satisfaction of the court and jury. In a word, the initiator of private civil proceedings need not have the same degree of certainty as to the relevant facts which is required of a private prosecutor of criminal proceedings. In many cases civil proceedings, to be effective, must be begun before the relevant facts can be ascertained to any degree of certainty. To put the initiator of such proceedings to a greater risk of liability would put an undesirable burden upon those whose rights cannot be otherwise effectively enforced.
6. In criminal proceedings, the initiator must correctly believe that the facts constitute the crime charged, or his belief must be based upon the advice of counsel, sought in good faith and given after full disclosure of the facts. In determining probable cause for initiation of civil proceedings, all that is necessary is that the claimant reasonably believe that there is a chance that his claim may be held valid upon adjudication.
7. A claimant may believe that his claim is valid and that the correctness of that belief will be established by the court's finding in his favor. The possible validity is merely a matter of opinion and all that is required is that the opinion is reasonably entertained. To hold that the person initiating civil proceedings should be liable, unless the claim prove valid, would throw an undesirable burden upon those who by advancing claims not heretofore recognized nevertheless aid in making the law consistent with changing conditions and changing opinions. There are many instances in which a line of authority consistent with itself has been rejected. To subject those who challenge such authority to the liability of suits for malicious prosecution if they are not successful in persuading the courts to take a new look at a principle might prove a deterrent to the overturning of archaic decisions.
Our research has convinced us that the line of decisions which constitute the weight of authority as to malicious prosecutions arising out of civil proceedings are sounder and more logical and should be followed.
To succeed in an action for malicious prosecution, the averments and proof must show first, a judicial proceeding; second, that it was instigated by the defendant; third, want of probable cause; fourth, malice; fifth, the termination of the judicial proceeding favorably to the plaintiff; and sixth, the damage. Covington v. Robinson, 242 Ala. 337, 6 So. 2d 421; Birmingham Bottling Co. v. Morris, 193 Ala. 627, 69 So. 85; Sanders v. Davis, 153 Ala. 375, 44 So. 979; Crim v. Crim, 39 Ala.App. 413, 101 So. 2d 845. Here, there was no proof of want of probable cause under the rule stated supra. In Turner v. J. Blach & Sons, 242 Ala. 127, 5 So. 2d 93, 94, we said:
Neither party cites or discusses in brief the case of Penney v. Warren, 217 Ala. 120, 115 So. 16, 18. There, the action was malicious prosecution on account of an attachment suit (not a suit on the attachment bond as provided for in Tit. 7, § 887, Code 1940) in which the plaintiff in the attachment suit secured a judgment in municipal court but the judgment was reversed on appeal to circuit court. That case recognizes the rule in Alabama that a standing judgment for the plaintiff in attachment is conclusive of the existence of probable cause for suing out the attachment, while a judgment for the defendant in attachment is only prima facie evidence of want of probable cause for suing out the attachment. The defendant in the malicious prosecution suit sought to show that the municipal court had rendered judgment in his favor as plaintiff in the attachment suit, notwithstanding its reversal in the circuit court on appeal. This court said: "We have before us no precedents dealing with this question, but our view of the matter is, that where there is an appeal from a primary and inferior court to a higher court, and a trial de novo on the issues of fact, with judgment on the merits of the case in favor of the appealing party, the primary judgment loses its value as evidence of the existence of probable cause." At the time the above was written, there were no apt precedents dealing with the question in Alabama, but there was an abundance of authorities collected in the authority cited (38 C.J. 419, § 58), the second sentence of which reads: "On the other hand the weight of authority is to the effect that a judgment or finding in favor of plaintiff in an original action is conclusive evidence of probable cause, or estops defendant therein from denying the existence of probable cause, in the absence of fraud or other improper means used in obtaining the judgment; and it has been held that the conclusiveness of the judgment on the question of probable cause is not affected by the fact that it is erroneous, or by the fact that it is reversed on appeal to a higher court or set aside for irregularity, or by the fact that the enforcement of the judgment has been perpetually enjoined." See also 54 C.J.S. Malicious Prosecution § 24. We are here dealing with a suit for malicious prosecution, an action "not favored in law," and "the action has been hedged about by limitations more stringent than those in the case of almost any other act causing damage to another, and the courts have allowed recovery only when the requirements limiting it have been fully complied with." 34 Am.Jur., Malicious Prosecution, § 5; 54 C.J.S. Malicious Prosecution § 3; American Surety Co. v. Pryor, 217 Ala. 244, 115 So. 176. One of the reasons for this rule is that public policy requires that all persons shall resort freely to the courts for redress of wrongs and to enforce their rights, and that this may be done without the peril of a suit for damages in the event of an unfavorable judgment by jury or judge. If this were not the case, a large proportion of unsuccessful civil actions would be followed by suits for malicious prosecution, and there would be a piling of litigation on litigation without end. Burt v. Smith, 181 N.Y. 1, 73 N.E. 495; Gore v. Condon, 87 Md. 368, 39 A. 1042, 40 L.R.A. 382, 67 Am. St.Rep. 352; Owens v. Graetzel, 149 Md. 689, 132 A. 265.
*560 We feel strongly that a litigant should be entitled to have his rights determined in a court of law without risk of being sued and having to respond in damages, for seeking unsuccessfully to enforce his rights, and we think the better rule is that unless a judgment or decree in prior civil proceedings against the malicious prosecution plaintiff was obtained by fraud, perjury or other improper means, the judgment or decree establishes or shows conclusively the existence of probable cause for bringing the former action even though it was subsequently reversed or set aside, anything in Penney v. Warren, 217 Ala. 120, 115 So. 16 [7], to the contrary notwithstanding. Other cases following this rule where a trial in a court similar to our circuit court reversed a judgment of a lower court in favor of the malicious prosecution defendant are: Goldstein v. Sabella, Fla., 88 So. 2d 910, 58 A.L.R.2d 1418 (eviction); McBride v. Alles, 222 Ky. 725, 2 S.W.2d 391 (attachment); Gause v. McClelland, 102 Cal. App. 2d 762, 228 P.2d 91 (unlawful detainer).
We recognize that there is some difference between malicious prosecution suits based upon attachments and other civil proceedings, because the attachment is obtained on an ex parte affidavit without a hearing on the alleged grounds supporting the attachment. 58 A.L.R.2d 1441, § 22. But we cannot agree that a final judgment in favor of the plaintiff in attachment in a primary court which is reversed on a trial de novo on appeal, "loses its value as evidence of the existence of probable cause," because there is a vast difference in probable cause for instituting an action and the ultimate judgment based upon the action. Regardless of the final outcome of the case, a final judgment of a court of record in favor of the plaintiff in attachment should be admitted as evidence of probable cause. Cf. Republic Steel Corp. v. Whitfield, 260 Ala. 333, 70 So. 2d 424; Jordan v. Wilson, 263 Ala. 625, 83 So. 2d 340; Crim v. Crim, 39 Ala.App. 413, 101 So. 2d 845, which hold that in criminal malicious prosecution cases a prior judicial judgment for plaintiff, although later set aside, is prima facie evidence of probable cause, and acquittal is not even prima facie evidence of lack of probable cause.
Under the rule adopted in this case, the requisite element of lack of probable cause was absent because the judgment for the appellant in the municipal court was conclusive evidence of probable cause, there being no evidence of fraud, perjury or improper means in its procurement, and appellant was entitled to the requested affirmative charge.
Reversed and remanded.
LIVINGSTON, C. J., and LAWSON, SIMPSON, STAKELY and GOODWYN, JJ., concur. | September 17, 1959 |
9a853a23-2edd-4418-ab05-1dc0c063250d | Holmes v. Birmingham Transit Co. | 116 So. 2d 912 | N/A | Alabama | Alabama Supreme Court | 116 So. 2d 912 (1959)
Altie Belle HOLMES
v.
BIRMINGHAM TRANSIT CO.
6 Div. 348.
Supreme Court of Alabama.
August 20, 1959.
Rehearing Denied September 17, 1959.
Further Rehearing Denied January 21, 1960.
*913 Clifford Emond, Sr., Birmingham, for appellant.
Deramus, Fitts & Johnston and Jas. C. Barton, Birmingham, for appellee.
STAKELY, Justice.
The application for rehearing was filed in this court too late by one day. Ordinarily this court would not consider it and would dismiss the same. However, upon reading the application for rehearing, it seems to us that there is a just criticism of the opinion which should be corrected. The opinion did not sufficiently consider the relationship of passenger and carrier between the plaintiff and the defendant. Accordingly, the writer on his own motion has placed the case on the rehearing docket. As a result the original opinion is withdrawn and this opinion is substituted in lieu thereof.
This is a suit brought by Altie Belle Holmes (appellant) against Birmingham Transit Company, a corporation (appellee), for injuries alleged to have been sustained by the appellant (plaintiff below), while a passenger for hire on a bus operated by the appellee (defendant below), on January 23, 1957, at a stop on appellee's bus route known as Elizabeth Station in Birmingham, Jefferson County, Alabama.
The appellee was a common carrier of passengers for hire operating a transportation system in the City of Birmingham, Alabama.
The plaintiff alleged that at said time and place as she was alighting from the said bus the defendant, acting by and through its agent, servant or employee who was acting within the line and scope of his employment as such, negligently operated said bus and as a proximate consequence of said negligence the plaintiff sustained the injuries for which she sues.
The pleading was in short by consent, including the general issue with leave to give in evidence any matter which if well pleaded would be admissible in defense of the action.
Upon conclusion of the evidence the defendant requested the affirmative charge in writing which was refused by the court. The court thereupon submitted the case to the jury which returned a verdict in favor of the defendant. There was a motion for a new trial which the court overruled. This appeal followed.
*914 We are not intending to show that the defendant was entitled to the affirmative charge as might have been inferred from the original opinion, but that the case went to the jury without any presumption arising either from the doctrine of res ipsa loquitur or from the relationship of carrier and passenger.
The evidence showed substantially in part the following. Drew McKenzie, a witness for the plaintiff, testified, among other things, that he was about to board the bus involved in the accident at Elizabeth Station, that the accident occurred around 8:00 a. m. and that he did not know the plaintiff before the accident occurred. He testified in substance that he saw Mrs. Holmes "standing right there by the bus door" before the accident occurred and that the bus "made a kind of a move like that" and then he "saw her come out of the door on her stomach", "it made a kind of a little `vary' like that, and when I seen her she had done fell out on the ground, did it so quick." "The bus kind of `varied' a little bit, just like that, it didn't go nowhere, just kind of `varied' like that. I saw her come out and hit this concrete." The witness further testified that "that bus kind of made a little variance like that and she come tumbling out of there." The witness testified the bus doors were open at the time the bus moved.
The witness Emma Brown testified for the plaintiff in substance that she was on her way to work at the time of the accident and was waiting at the bus stop to board the bus at the time of the occurrence of this accident. She testified that she was looking right at Mrs. Holmes when she fell from the bus. She testified that "Mrs. Holmes began to step off the bus and the bus gave a jerk and she fell off." She testified that she picked the plaintiff up and sat her on a bench and brushed her coat off, that she didn't know Mrs. Holmes and that thereafter she boarded the bus and that the plaintiff "hobbled on to school." She testified that "the bus jerked" and that thereafter she boarded the bus and went on to her work.
Mrs. Belle Agnew Horton, witness for the plaintiff, testified in substance that she lived in Birmingham and that her occupation was school teacher and that she taught at Lee School in West End. She further testified that she remembered the occasion in January, 1957, when Mrs. Holmes complained of injuries a little after 8:00 in the morning and that she had observed Mrs. Holmes on the couch in the restroom by herself, putting cold packs on her leg and she looked sick, like she was in pain.
The plaintiff, Altie Belle Holmes, testified in substance that she was sixty-eight years of age and worked for the Board of Education as a school teacher. She had lived at the Ridgely Apartments in Birmingham for nearly thirty years and had been employed by the board of education as a teacher since 1928 with the exception of one year when she worked for the FBI in Washington. Her teaching was confined to the 4th and 5th grades and sometimes the 6th grade. Her teaching was always in the elementary school.
She further testified that on the morning of the accident it was cold and misting snow and spitting a little rain or something and that she wore a coat suit and a mouton coat. She testified that she had a soft velvet pocketbook in her hand and a school register which looked something like a folder and a set of papers belonging to the class. She further testified that when the bus stopped at Elizabeth Station, "I just got up to get off and I got up to the door, why something jerked, or something, and I went out and knocked the breath out of me." She further testified, "When I fell something gave under me, jerked somethingit was just as quick as lightning." The plaintiff further testified that as far as she remembered, she was holding that right pole, she was holding to that on the occasion when she was thrown from the bus. She further testified that after she got up out of the street she was sick at her *915 stomach and was nauseated and then went to the school building.
On cross examination the plaintiff further testified that as far as she knew the bus had stopped before she got up out of her seat to get off the bus and that the bus was stopped as she proceeded toward the front door. She further testified that she did not step down to the second step from the floor of the bus when she fell. "I was in the act of stepping." She also testified that so far as she remembered she had hold of a rail there with her right hand. She did not remember whether she stepped down with the right foot or with the left foot and that she was in the act of stepping off with the right or left foot to the second step when she fell. Plaintiff further testified that in her own mind she would not be certain that the bus moved on that occasion but she thought it did. She testified that she was wearing a type of shoe that is described as a walking shoe.
R. B. King, a witness for the defendant, testified substantially as follows. He was employed by the defendant as an inspector and that there was an occasion when he was called upon to inspect trolley bus No. 211 in the year 1957 and that he made an inspection of that bus on January 24, 1957. The witness further testified that he checked the doors, front entrance, platform, control locking devices and other parts of the bus and found them to be in "good condition", that he had been engaged in this business for a number of years and explained the details of the work of the particular mechanisms with which the bus was allegedly equipped.
Betty Joy Gable, a witness for the defendant, testified substantially as follows: That she was a prospective passenger on this particular bus at Elizabeth Station at the time of the alleged accident. She identified pictures representing the scene at Elizabeth Station and where she was standing and other physical aspects of the pictures. She testified further that the bus did not move from the time it came up there and stopped until the time Mrs. Holmes was beginning to alight. She testified further that the bus did not jerk, slide forward, sideways or make any other movement whatsoever.
James Houston Little, a witness for the defendant, testified substantially as follows: That he was employed by the defendant as a bus driver and was the operator of the trolley bus involved in this accident on January 23, 1957. He identified defendant's Exhibit No. 10 as a picture of the bus from the inside looking downward to the ground, showing two steps leading outward from the bus. The witness further testified with reference to the operation of the bus at various locations on the morning of the accident and prior to the accident and the procedure followed in testing the bus before it was taken out in the morning. Witness further testified that he had made numerous stops that morning prior to the accident and that he had found nothing about the bus which was in improper operating order. He further testified with reference to stopping at Elizabeth Station just prior to the accident and the procedure followed there with reference to opening the doors for the discharge of passengers. The witness testified that he heard the "commotion" of the plaintiff falling from the bus, "heard an exclamation" and looked and the plaintiff was in the process of falling out the door off the bottom step, that plaintiff then complained of being nauseated and was carried over to a waiting bench where she was seated and then she was assisted up and was walked around a little bit. Witness further testified that on that occasion the bus did not move in any direction, forward, backward, sideways or jerk. The witness further testified:
The witness then proceeded to state in detail the various things which were done by him to see if the door controls and the bus was in good operating condition. After stating these various steps which he took, the witness then continued:
The witness then testified how his examination of the bus would show that it was in good operating condition. The witness then continued.
Mr. Little further testified that the bus did not move in any direction when Mrs. Holmes fell.
I. Error is predicated on the action of the trial court in overruling plaintiff's objection to the argument of counsel for the defendant to the jury in connection with the plaintiff's burden of proof. In this connection we quote from the record as follows:
It is the insistence of the appellant that the foregoing statement as to the burden of proof is erroneous. It is the further insistence of the appellant that when the plaintiff offered proof that the bus jerked as she was alighting and threw her to the ground, the burden of proof thereafter shifted to the defendant and there was no burden on her to prove "what made it jerk." We think it is well at this point to summarize briefly the pertinent evidence.
The plaintiff offered evidence tending to show that as she was alighting from the bus the bus jerked and threw her to the ground. However, evidence offered by the defendant tended to show that there was no jerk of the bus. The defendant, however, did more than merely deny that there was no jerk of the bus. The defendant also showed by its testimony that this particular bus was equipped with brake and power interlocking safety devices which were properly operating on the occasion and had been so operating on that morning for one hundred previous stops and continued to operate properly thereafter.
We might add that there was no evidence of actual negligence. In other words, there was no proof that any agent, servant or employee of the defendant did or failed to do any specific act in the exercise of due care as a proximate result of which plaintiff was caused to fall. It has been many times decided by this court that the mere happening of an accident does not give rise to a presumption of negligence. It seems that the applicable rule is that where the plaintiff adduced evidence showing the fact of the accident and the attendant circumstances and that it was caused by the defendant's bus operated and in charge of defendant's agent or servant and is such as in the ordinary course of things does not happen without negligence, this was sufficient prima facie to shift to the defendant the burden of going forward with the evidenceres ipsa loquitur. Langley Bus Co. v. Messer, 222 Ala. 533, 133 So. 287.
However, the defendant may rebut the inference of negligence arising from the plaintiff's evidence by showing that the bus was properly equipped with approved devices and appliances to enable the operator to so operate the bus as to check its speed, close its doors or stop it if needs be.
The proof in rebuttal of the inference of negligence arising from the proof of the accident and attending circumstances, if believed, without dispute shows that the defendant was free from negligence. Of course, there was still in the case the evidence of the plaintiff tending to show that the bus jerked when the plaintiff was attempting to alight from the bus. Under these circumstances, the question of negligence was one of fact for the jury. See Langley Bus Co. v. Messer, 222 Ala. 533, 133 So. 287; Lawson v. Mobile Electric Co., 204 Ala. 318, 85 So. 257.
There is no evidence in this case of a specific defect in any of the equipment of the defendant. Hence, it cannot be said that the burden of proof was cast by law on the defendant by mere proof of the accident. Southeastern Greyhound Lines v. Callahan, 244 Ala. 449, 13 So. 2d 660, and cases cited; Greyhound Corp. v. Brown, Ala., 113 So. 2d 916. In other words, as the evidence was presented the burden of proof was on the plaintiff to show whether the bus jerked and what made it jerk. This being true, the court ruled correctly in overruling plaintiff's objection to the argument of counsel for the defendant.
II. It is argued that the trial court erred in giving to the jury at the request of the appellee written Charge No. 12 reading as follows:
*918 "Not in every case of injury to a passenger does a presumption of negligence on the part of the carrier arise from the happening of the injury." Central of Georgia R. Co. v. Brown, 165 Ala. 493, 51 So. 565, 566. To put it as briefly as possible, where an injury happens to a passenger while being transported by a carrier, each case stands on its own facts or circumstances so far as any presumption of negligence is concerned. Central of Georgia R. Co. v. Brown, supra.
There was not sufficient evidence of the circumstances of the occurrence complained of to raise the presumption of negligence under the maxim res ipsa loquitur. In other words, there is no evidence in this case that a movement of the bus must necessarily result solely from the negligence imputable to the defendant. There is no evidence in this case, as there was in Birmingham Electric Co. v. Davis, 244 Ala. 338, 13 So. 2d 888, 889, that: "* * * such things do not happen on streetcars, properly operated * * *" or that such an occurrence, in the language of the court, "* * * in the ordinary course of things, does not happen, without negligence * *"
Neither the plaintiff's witnesses nor the defendant's witnesses testified to any such proposition. Defendant's testimony is to the point that this particular bus on this particular occasion did not move. Further, it is the uncontroverted, credible testimony that this particular bus was equipped with brake and power interlocking safety devices which were properly operating on the occasion complained of, had been so operating on that morning for one hundred stops and continued to properly operate thereafter. Therefore, one vital element of the circumstances to be proven was not proved. Without this no presumption arose. Lawson v. Mobile Electric Co., 204 Ala. 318, 85 So. 257; Langley Bus Co. v. Messer, 222 Ala. 533, 133 So. 287.
There was no evidence of actual negligence. We mean to say that there was no evidence that any agent, servant or employee of the defendant did or failed to do any specific act in the exercise of due care, as a proximate result of which plaintiff was caused to fall. As pointed out above, there was no evidence of a specific defect in any of the equipment of the defendant. Accordingly, under the evidence no presumption of negligence having arisen, the burden of proof was on the plaintiff to prove to the reasonable satisfaction of the jury, not only that the bus moved on the occasion complained of, but what made it jerk.
Assuming for the sake of argument that a presumption of negligence did arise, however, such presumption arose by the plaintiff showing that she was a fare paying passenger on a bus under the control of the defendant and the bus moved, while stopped for her to alight, causing her to fall. The presumption merely had the effect of shifting the responsibility at the moment in the trial of this cause to the defendant to go forward with the evidence. As stated up to this point in the evidence, no actual negligence was proved. Merely circumstances were proved from which the appellant claims a presumption arose, but no specific act or failure to act was suggested. No specific defect in the equipment of the defendant was shown. For aught appearing some force for which the defendant was not legally responsible moved the bus, but if the presumption arose it arose under a rule, the policy of which is, that the defendant was in control of the bus and in a better position to know why it occurred and a carrier owes to its passenger the highest degree of care known to the law.
When the plaintiff rested her case, the defendant went forward with the evidence and showed that the bus did not move. At this point there was a direct conflict in the evidence as to the movement of the bus. The defendant went further, however, and rebutted the supposed inference or presumption of negligence which the plaintiff claimed arose from the circumstances shown by the plaintiff. The defendant's evidence thereafter is free from adverse inference. The uncontroverted and uncontradicted, *919 credible testimony as to proper or due care on the part of the defendant in its rebuttal evidence was to the effect that the bus was equipped with the safety devices mentioned above which were functioning at the precise time of the occurrence. At the close of defendant's testimony, the plaintiff offered no evidence of actual negligence. As stated in Langley Bus Co. v. Messer, 222 Ala. 533, 133 So. 287, 289, by the same author of the opinion in Birmingham Electric Co. v. Davis, 244 Ala. 338, 13 So. 2d 888,
At the end of defendant's uncontradicted and uncontroverted rebuttal evidence, the presumption raised by the maxim res ipsa loquitur was "functus officio." Birmingham Electric Co. v. Davis, supra; Lawson v. Mobile Electric Co., supra; Alabama Power Co. v. Berry, 254 Ala. 228, 48 So. 2d 231. Black's Law Dictionary, 3rd Ed. defines "functus officio" as follows:
This is the phrase used by Professor Wigmore in his rationale of the doctrine of res ipsa loquitur approved by Justice Sayre in Lawson v. Mobile Electric Co., supra, and approved in Birmingham Electric Co. v. Davis, supra. To state it as simply as possible, those authorities say that the presumption is not evidence, nor does it serve in the place of evidence after evidence to the contrary has been adduced. Lawson v. Mobile Electric Co., supra. It seems clear to us, therefore, that the appellant is under the mistaken impression that the evidence adduced in behalf of the plaintiff under the doctrine of res ipsa loquitur had the effect of raising a presumption of negligence which was inviolate and should be considered evidence of actual negligence to go to the jury in the face of an uncontroverted rebuttal.
Furthermore any presumption arising from the relationship of carrier and passenger ceased. The case was a case for the jury with the usual burden of proof on the plaintiff. Central of Georgia R. Co. v. Brown, supra; Southeastern Greyhound Lines v. Callahan, 244 Ala. 449, 13 So. 2d 660; Pollard v. Williams, 238 Ala. 391, 191 So. 225. As shown above the court in the instant case sent the case to the jury.
We consider that the court committed no error in giving written Charge No. 12.
III. Error is based upon the giving to the jury at the request of the defendant the following written Charge No. 17:
In the case of Mobile Cab & Baggage Co., Inc. v. Armstrong, 259 Ala. 1, 65 So. 2d 192, 194, this court reversed the lower court for refusing the defendant's request for the following written charge:
In this connection the court said:
The pleading in this case involved the submission on only a single count of simple negligence and a plea of not guilty by the defendant. It is true that a plea in short by consent would include the issue of contributory negligence, but no such issue was involved, proved, sought to be proved or even argued. The defendant's theory was that the bus did not move and if the plaintiff was negligent, then that negligence was the sole proximate cause of her fall and not merely a contributing cause to her fall. In the light of the foregoing case and the inapplicability of a plea or proof of contributory negligence, the defendant was entitled for the jury to be instructed that a verdict could not be rendered against the defendant if the jury was reasonably satisfied from the evidence that the sole proximate cause of plaintiff's injury was her own failure to use due care generally in her failure to retain her balance because she did not avail herself of the hand rails and holding bars present.
It is obvious that the issue of subsequent negligence was not in the case and the defendant was not accused of wanton misconduct.
There was no error in this ruling.
IV. and V. Error is also predicated on the action of the court in giving Charge No. 18 and Charge No. 19. What we have said with reference to the action of the court in giving Charge No. 17 is equally applicable to the giving of Charges No. 18 and No. 19. There was no error in these rulings.
It is argued that the plaintiff was not alighting from the bus at the time she suffered her fall. On cross examination she was asked whether she had stepped down to the second step from the floor of the bus when she fell. This was her answer:
VI. It is claimed that the court was in error in giving to the jury at the request *921 of the appellee written Charge No. 28, reading as follows:
This charge is made the basis of assignment of error No. 7. We refer to the action of the court in giving Charge No. 6 in Jones v. Union Foundry Co., 171 Ala. 225, 55 So. 153. In that case the court held that there was no error in giving Charge No. 7 at the request of the defendant.
VII. The appellant's objection to Charges 18, 19 and 26 is that they exclude every theory of recovery by the plaintiff except proof that the bus moved on the occasion complained of. The defendant was entitled to the following charge quoted from Birmingham Electric Co. v. Shelton, 231 Ala. 110, 163 So. 633, 634:
In her complaint plaintiff merely alleged generally in one count, based on simple negligence, that "the defendant * * * negligently operated said bus * * * and as a proximate consequence of said negligence the plaintiff sustained the following injuries * * *"
As we have said time and again this case was tried on the question of whether or not the bus moved. The plaintiff attempted to prove that it did. The plaintiff did not attempt to prove anything else. Under the plaintiff's theory of the case, the defendant was entitled to a charge that if the jury was reasonably satisfied that the bus did not move, then it could not return a verdict for the plaintiff. All three of the charges here referred to are obviously not in accord with the theory upon which the plaintiff tried her case. There was no error in the action of the court in giving Charges 18, 19 and 26.
VIII. The appellant objects to the defendant's Charge No. 15 made the subject of assignment of error No. 2. This is because of the use of the word "testimony" in the charge rather than the word "evidence". In the case of Crumley v. State, 18 Ala.App. 105, 89 So. 847, 848, the court said:
In Boyette v. Bradley, 211 Ala. 370, 100 So. 647, 651, this charge was considered and that opinion quoted Allen v. Birmingham Southern R. Co., 210 Ala. 41, 97 So. 93, on the subject of Charge 5, which stated:
The court stated that the giving of this charge was not error as any desired explanation could be obtained by a request for an explanatory charge.
We have examined this record with great care and find no error therein to reverse.
Affirmed.
Opinion corrected and rehearing denied.
LAWSON, SIMPSON, GOODWYN and MERRILL, JJ., concur. | August 20, 1959 |
afd3ac84-8d27-4eaa-a346-45a6cf6606dd | Lansdell v. Snoddy | 113 So. 2d 151 | N/A | Alabama | Alabama Supreme Court | 113 So. 2d 151 (1959)
Mabel Sue Snoddy LANSDELL
v.
William Benton SNODDY.
8 Div. 955.
Supreme Court of Alabama.
May 21, 1959.
Rehearing Denied June 25, 1959.
Jesse A. Keller, Florence, for appellant.
Potts & Young, Florence, for appellee.
STAKELY, Justice.
William Benton Snoddy (appellee) filed his bill in the equity court in two aspects, *152 first to set aside and have the court declare void a decree rendered on August 27, 1957, which dissolved the marriage between himself and Mabel Sue Snoddy, now Mabel Sue Snoddy Lansdell (appellant), and second, to award the custody of the minor child of the parties, a five year old girl, to himself, appellee.
The decree of August 27, 1957, awarded custody of the child to the mother (appellant) but it is alleged in the second aspect of the bill that there has been a material change of circumstances since the rendition of the decree of divorce.
The court sustained the demurrer to the aspect of the bill which seeks to set aside the divorce decree on the ground of fraud and that feature of the case is not before this court on this appeal.
Testimony was heard on the second aspect of the case with the result that the court rendered a decree which removed the custody of the child from the mother (appellant) and gave her custody to the father (appellee). This appeal is solely from the decree of the court awarding custody of the child to the appellee.
We have carefully considered the evidence in the case and do not find that there has been any material change in the circumstances since the decree of divorce was rendered, nor do we find any pertinent facts which existed at the time of the decree of divorce but which were not disclosed.
This court has consistently held that a former decree awarding custody of a minor child is conclusive of the interest of the child and the rights of the parents so long as the status at the time of the decree remains without material change unless pertinent facts existing but not disclosed at the time of the final decree are brought to light. Messick v. Messick, 261 Ala. 142, 73 So. 2d 547; Sparks v. Sparks, 249 Ala. 352, 31 So. 2d 313; White v. White, 247 Ala. 405, 24 So. 2d 763.
The only change in the circumstances according to the evidence in the case is that the appellant has since remarried. Her present husband is Dee Lansdell. The proof shows that he is of kindly disposition, is good to the child and is amply able to provide a home not only for his present wife but also for the child. The mere fact that the wife has since remarried is not within itself such a material change in the circumstances as to cause a modification of the original decree. Wren v. Stutts, 258 Ala. 421, 63 So. 2d 370; Ogle v. Ogle, 251 Ala. 623, 38 So. 2d 864.
We accordingly conclude that there has been no material change in circumstances since the rendition of the original decree of divorce sufficient to justify a modification of that decree.
It is contended that in addition to the remarriage of the appellant to Dee Lansdell that prior to the divorce decree Mabel Sue Snoddy was going with her present husband without the knowledge and consent of the appellee but there is no proof of any misconduct in this regard. It is further contended that the appellant obtained the decree of divorce and the custody of the child by fraudulently stating to the appellee that it would require a divorce decree and remarriage to prove that he loved her and that she would remarry him within a short time. We do not consider that this presents a sufficient reason, just brought to light, for modifying the decree, especially since it appears that the former husband participated in obtaining the divorce and was himself not free from fault.
We have often said that in cases of this kind the welfare of the child is the paramount consideration. McBride v. McBride, 268 Ala. 619, 109 So. 2d 718. Generally where a child is of such tender age as to require the care and attention that the mother is specially fitted to bestow, the mother rather than the father is the proper custodian, unless for some reason *153 she is unfit for the trust. McBride v. McBride, supra. We have further said that in cases of this kind repeated, harassing litigation is looked upon with disfavor. Messick v. Messick, 261 Ala. 142, 73 So. 2d 547; Greene v. Greene, 249 Ala. 155, 30 So. 2d 444.
We conclude that the custody of the child should be restored to her mother and we accordingly reverse the decree of the lower court and award the custody of the child to her mother. There are provisions in the original decree of divorce providing for visitation of the child by the father and the father is given the right at reasonable times and places to such visitation. We see no reason why these provisions should not be reinstated in the present decree.
Reversed and rendered.
LIVINGSTON, C. J., and LAWSON and MERRILL, JJ., concur. | May 21, 1959 |
a27d33a8-99d4-4460-8c27-3effa9def6b8 | Kelley v. Osborn | 113 So. 2d 192 | N/A | Alabama | Alabama Supreme Court | 113 So. 2d 192 (1959)
S. W. KELLEY, Jr., d/b/a Alabama Home Supply Company,
v.
Mrs. C. E. OSBORN.
7 Div. 450.
Supreme Court of Alabama.
May 21, 1959.
Rehearing Denied June 25, 1959.
Barnes & Carnes, Albertville, for petitioner.
Robt. H. King, Gadsden, opposed.
LAWSON, Justice.
This is a petition for writ of certiorari to review and revise the opinion and judgment of the Court of Appeals in the case of S. W. Kelley, Jr., d/b/a Alabama Home Supply Company v. Osborn, 113 So. 2d 189.
On certiorari to the Court of Appeals we consider only the questions treated in the opinion of the Court of Appeals which are challenged in the petition for the writ and which are argued in brief filed in support of the petition. Davenport-Harris Funeral Home, Inc. v. Chandler, 264 Ala. 623, 88 So. 2d 878; Liberty National Life Insurance Co. v. Stringfellow, 265 Ala. 561, 92 So. 2d 927. See Cranford v. National Surety Corporation, 231 Ala. 636, 166 So. 721; Atlantic Coast Line R. Co. v. Vise, 262 Ala. 329, 78 So. 2d 661.
We will consider the alleged errors of the Court of Appeals in the order in which they are set out in the petition for the writ.
1. "The Court erred in holding that the trial court committed no error in overruling the plaintiff's and petitioner's demurrers to Plea II."
In the opinion of the Court of Appeals it is said:
There is no other reference in the opinion of the Court of Appeals to the "forty-nine demurrers." There is no express holding that the demurrers were correctly overruled. *193 However, the affirmance of the judgment of the trial court may be said to constitute an implied holding to that effect. What points did the demurrers take? The opinion does not disclose. Which of the demurrers did counsel for Mrs. Osborn argue were well taken and should have been sustained? The opinion of the Court of Appeals does not show.
We do not conceive it to be our duty or prerogative for that matter to treat this case as if it had been appealed originally to this court and unless it is so treated we cannot reach the action of the trial court in overruling Kelley's demurrers to the defendant's plea II. We hold, therefore, that petitioner's first asserted ground for reversal of the judgment of the Court of Appeals cannot be sustained.
2. "The Court erred in holding that the trial court committed no error in overruling the plaintiff's and petitioner's motion to strike directed to Plea II."
A reference is made to the motion to strike in that part of the opinion of the Court of Appeals which we have already quoted. The only other mention of that motion in the opinion is as follows:
"* * * One of the grounds of the motion reads:
Although there is no express holding by the Court of Appeals that the motion to strike was correctly overruled by the trial court, we will consider that the affirmance of the trial court's judgment is an implied holding to that effect.
But we are not called upon to examine each and every ground of that motion. We limit our consideration to the sole ground which the Court of Appeals considered in its opinion, namely, ground 6, which we have quoted above.
Plea II is not as clear as it might be but we cannot say that the trial court erred to reversal in not striking that plea on the grounds set up in ground 6 of the motion to strike. A motion to strike for the reasons asserted in ground 6 of the motion is addressed to the discretion of the trial court. Davis v. Louisville & N. R. Company, 108 Ala. 660, 18 So. 687; Reynolds v. Lawrence, 147 Ala. 216, 40 So. 576; Tuscaloosa Ry. & Utilities Co. v. Lewis, 207 Ala. 463, 93 So. 386; Blumberg v. Speilberger, 209 Ala. 278, 96 So. 191; Mazer v. Brown, 259 Ala. 449, 66 So. 2d 561. Moreover, ground 6 of the motion appears to be couched in part in rather frivolous language. We fail to see how it can be seriously asserted that plea II is bad because it is unconstitutional.
3. "The Court erred in holding that petitioner's assignments of error 2 through 16 as argued in original brief were not well taken."
As far as we can determine from the opinion of the Court of Appeals assignments of error 2 through 16 were not treated by the Court of Appeals.
4. "The Court erred in holding that Laning v. C. R. Crim Building Co., 259 Ala. 268, 66 So. 2d 121, was distinguishable from the instant case."
We agree with the observations made by the Court of Appeals concerning the Laning case. But there is nothing in that case which could cause a reversal of the judgment of the trial court. In so far as it is cited by petitioner it relates to the matter of striking surplusage from pleading. As shown above the question as to whether or not plea II should be stricken because of ground 6 of the motion was one which was addressed to the discretion of the trial court.
5. "The Court erred in holding that the case at bar was determined by the case of *194 Commercial Credit Company, Inc. v. Perkins, 236 Ala. 616, 184 So. 178."
Some of the principles enunciated in Commercial Credit Company, Inc. v. Perkins, referred to above, appear to us to bear on the case at hand if we correctly interpret the opinion of the Court of Appeals. However, that opinion does not purport to set out all of the evidence, hence, we cannot say from a review of the opinion that the Court of Appeals erroneously concluded to the effect that the principles stated in the Commercial Credit case "substantially determine(s) the questions presented."
The appeal was submitted to the Court of Appeals on June 6, 1957. The Court of Appeals affirmed the judgment of the trial court on May 27, 1958. On June 9, 1958, the appellant filed an application for rehearing. On February 17, 1959, the Court of Appeals entered the following order:
On February 25, 1959, the appellant filed in the Court of Appeals another application for rehearing wherein the correctness of the substituted opinion was questioned. The appellant was entitled to file the second application for rehearing in view of the fact that the Court of Appeals wrote another opinion in response to the first application for rehearing. Such has been permitted by both of our appellate courts over a long period of time. The Court of Appeals overruled the last application for rehearing on March 3, 1959. Petition for certiorari was timely filed in this court on March 18, 1959. It follows that Mrs. Osborn's motion to strike the petition for certiorari must be denied.
Writ denied.
Motion to strike denied.
LIVINGSTON, C. J., and STAKELY and MERRILL, JJ., concur. | May 21, 1959 |
16bf7493-7efe-4933-a1f8-06aaaaf554a9 | Holderfield v. Deen | 112 So. 2d 448 | N/A | Alabama | Alabama Supreme Court | 112 So. 2d 448 (1959)
Mary Ruth HOLDERFIELD
v.
Sarah Jackson DEEN et al.
6 Div. 347.
Supreme Court of Alabama.
May 28, 1959.
*449 Grover S. McLeod, R. Clifford Fulford and Levine, Fulford & Gwaltney, Birmingham, for appellant.
Barber & Haigler and Dempsey F. Penington, Birmingham, for appellees.
GOODWYN, Justice.
This is an appeal by the plaintiff from a judgment of the circuit court of Jefferson County granting defendants' motion for a new trial in a personal injury action. In granting the motion the trial court did not specify which ground or grounds of the motion it thought justified its ruling. Among the 38 grounds are several taking the point that the verdict is not sustained by the great preponderance of the evidence.
The case went to the jury on count C, the essential averments of which charge defendants, as owners of a house, with negligence in voluntarily undertaking to repair "the plumbing in the kitchen in said house, which kitchen, prior to said time, was in a reasonably safe condition," by disconnecting the drain to the sink in the kitchen thereby negligently permitting said drain "to be disconnected for a long period of time so that water accumulated on the floor of said kitchen which was known to the defendants or would have been known by the defendants with due diligence that said floor would be dangerous to persons using said kitchen." It is further alleged that, "as a proximate consequence of the aforementioned negligence, the plaintiff in the lawful use of her kitchen fell onto the floor of said kitchen," causing the injuries complained of.
Defendants entered a plea in short by consent.
Code 1940, Tit. 7, § 276, sets out certain causes for granting a new trial. Among them is the following: "That the verdict or decision is not sustained by the great preponderance of the evidence, * *." It should be noted, however, that we have held that the causes enumerated in § 276 are not the exclusive causes for granting a new trial; that "courts of record have inherent power independent of the statute to set aside and vacate their orders and judgments within the term and for commonlaw causes." State v. Loftin, 268 Ala. 446, 108 So. 2d 163, 164; Harrison v. Baker, 260 Ala. 488, 71 So. 2d 284; Birmingham Electric Co. v. Yoast, 256 Ala. 673, 57 So. 2d 103, 30 A.L.R.2d 907; Ingalls Shipbuilding Corp. v. Cahela, 251 Ala. 163, 36 So. 2d 513; Parker v. Hayes Lumber Co., 221 Ala. 73, 127 So. 504; Equitable Finance Co. v. Burns, 220 Ala. 559, 126 So. 885; Batson v. State ex rel. Davis, 216 Ala. 275, 113 So. 300. A common law cause for granting a new trial is that the verdict failed to do justice between the parties. Schaeffer v. Walker, 241 Ala. 530, 3 So. 2d 405; Parker v. Hayes Lumber Co., supra.
It is an established rule of review that when the trial court, in granting a motion for a new trial, does not specify the ground or grounds of the motion which it considered to be well taken, we will "indulge the presumption that it was because the trial court concluded that the verdict was contrary to the great preponderance of the evidence [a statutory cause] or that the verdict was unjust in the light of the evidence [a common law cause]." State v. *450 Loftin, supra [268 Ala. 446, 108 So. 2d 164]; Chisom v. Woodward Iron Company, 265 Ala. 212, 213, 90 So. 2d 816; Romano v. Thrower, 258 Ala. 416, 417, 63 So. 2d 369; Birmingham Electric Co. v. Greene, 252 Ala. 40, 39 So. 2d 398; Camp v. Atlantic Coast Line R. Co., 251 Ala. 184, 36 So. 2d 331; Hyde v. Norris, 250 Ala. 518, 35 So. 2d 181. It is thus stated in Chisom v. Woodward Iron Company, supra [265 Ala. 212, 90 So.2d 817]:
With reference to the common law cause above referred to (failure of the verdict to do justice between the parties), we quote the following from Parker v. Hayes Lumber Co., supra [221 Ala. 73, 127 So. 504]:
"* * * [I]f the trial court had a definite and well-considered opinion that the verdict failed to do justice between the parties, it had the right and was under duty to set it aside and grant a new trial. On appeal this court will not reverse an order granting a new trial, `unless the evidence plainly and palpably supports the verdict' (Cobb v. Malone, 92 Ala. 630, 9 So. 738), meaning, as we think, that this court will not reverse in such case, unless the evidence adduced in the trial court plainly and palpably shows that the trial court was in error. * * *" [Emphasis supplied.]
After carefully considering the evidence in consultation we cannot say that it plainly and palpably supports the verdict and that the trial court's action in setting the verdict and judgment aside was plainly and palpably wrong. As said in German-American Wholesale Optical Co. v. Rosen, 233 Ala. 105, 106, 170 So. 211, 212:
"* * * The trial court saw and heard the witnesses, and on appeal some presumption must be indulged in favor of his ruling."
Appellant directs attention to § 764, Tit. 7, Code 1940, as amended by Act No. 57, approved June 10, 1949, Acts 1949, p. 81, wherein it is provided that on an appeal from a decision on a motion for new trial "no presumption in favor of the correctness of the judgment of the court appealed from, shall be indulged by the appellate court." We have held that that provision has not changed "the rule that the presumption on appeal is in favor of the correctness of the finding of the trial court." W. T. Smith Lumber Co. v. McKenzie, 256 Ala. 496, 500, 55 So. 2d 919, 922; Price v. Price, 199 Ala. 433, 435, 74 So. 381; Hatfield v. Riley, 199 Ala 388, 390, 74 So. 380. Cf. Davis v. Harrell, 209 Ala. 528, 96 So. 616; Hackett v. Cash, 196 Ala. 403, 405-406, 72 So. 52; Finney v. Studebaker Corporation of America, 196 Ala. 422, 424-425, 72 So. 54.
We have not discussed the evidence in this opinion "for fear its consideration on another trial may be prejudiced, however careful the language of discussion." [221 Ala. 73, 127 So. 505.] Frost v. Johnson, 256 Ala. 383, 386-387, 54 So. 2d 897; German-American Wholesale Optical Co. v. Rosen, supra; Parker v. Hayes Lumber Co., supra.
The judgment appealed from is due to be affirmed.
Affirmed.
LIVINGSTON, C. J., and SIMPSON and COLEMAN, JJ., concur. | May 28, 1959 |
0b38f80a-64f4-434b-ad1a-86af7b2f22e1 | King v. King | 114 So. 2d 145 | N/A | Alabama | Alabama Supreme Court | 114 So. 2d 145 (1959)
Taylor KING, Jr.
v.
Evelyn Cook KING.
6 Div. 432.
Supreme Court of Alabama.
August 13, 1959.
*146 Lipscomb & Lipscomb and L. Herbert Etheridge, Bessemer, for appellant.
Ling & Bains, Bessemer, for appellee.
*147 LAWSON, Justice.
This is an appeal from a final decree granting the appellee, the complainant below, an absolute divorce on the ground of cruelty. Said decree also awarded to appellee, as an allowance of alimony in gross, the one-half undivided interest of appellant in the home of the parties. Attorneys' fees were also awarded the appellee. There were no children.
We will not encumber the opinion with a delineation of the evidence going to show that respondent was guilty of cruelty as charged, since he does not contend here that the evidence was insufficient in that respect.
The main contention of the appellant, the respondent below, is that there was no marriage, hence there could be no divorce and he could not be required to pay alimony and attorneys' fees.
It is without dispute that there was a ceremonial marriage of appellant and appellee on April 12, 1952, under a license duly issued and that they cohabited as man and wife for nearly six years and until, to wit, March 3, 1958. It is also without dispute that on or about the date last mentioned the appellee, Evelyn Cook King, left the home which she and appellant had jointly purchased and which they had occupied for about five years because she had learned that at the time she went through the marriage ceremony with Taylor King a legal impediment existed to that marriage. Taylor King's marriage to Della King had not been dissolved.
The appellee filed a bill to annul her marriage to appellant but she had that bill dismissed when the appellant instituted proceedings to divorce Della. Appellant secured his divorce from Della on March 13, 1958. On that day or shortly prior thereto the appellee, Evelyn Cook King, returned to the house which she and appellant had purchased and she and appellant lived there until the final separation of the parties on Saturday, July 26, 1958, the day on which the acts of cruelty are said to have occurred.
Subsequent to March 13, 1958, the date on which Taylor King was divorced from Della King, no ceremonial marriage was entered into between Taylor King and Evelyn King, but they continued to occupy their home until July 26, 1958, and the trial court found from the evidence taken orally before him that a common-law marriage existed between Taylor King and Evelyn King at the time of their separation.
The conflict in the proof relates to the question of cohabitation as man and wife following the decretal order of March 13, 1958. Appellant insists that while they each lived in their jointly owned house they remained separate; that he had no sexual intercourse with appellee during that period of time and did not look upon or hold her out to the public as his wife. But we are persuaded the decided weight of the evidence, supported we think by reasonable deductions from the undisputed facts, leads to the conclusion that Taylor King obtained the divorce from Della King for the very purpose of removing all doubt or question as to the validity of their ceremonial marriage, which both parties evidently considered entirely regular, and that they continued to live together as man and wife until the separation on July 26, 1958.
It is the well-settled rule that if parties in good faith marry when in fact a legal impediment exists to their marriage, and they continue to cohabit as man and wife after the removal of the impediment to their lawful union, the law presumes a common-law marriage. Barnett v. Barnett, 262 Ala. 655, 80 So. 2d 626; Hunter v. Lynn, 256 Ala. 501, 55 So. 2d 849; Hill v. Lindsey, 223 Ala. 550, 137 So. 395.
The mere fact that the parties could not get together on the time when and the place where they were to have another ceremonial marriage is not sufficient to overcome the presumption of the common-law *148 marriage and the evidence which we think tends to show that they had an actual and mutual agreement to enter into a matrimonial relation, permanent and exclusive of all others, which was consummated by their cohabitation as man and wife and by their mutual assumption openly of marital duties and obligations. See Beggs v. State, 55 Ala. 108; Tartt v. Negus, 127 Ala. 301, 28 So. 713; White v. Hill, 176 Ala. 480, 58 So. 444; Hunter v. Lynn, supra; Barnett v. Barnett, supra.
We are clear to the conclusion that the evidence in this record does not show that the parties, or either of them, did not intend to enter into the relation of husband and wife unless there was a formal solemnization of the marriage. Cf. Farley v. Farley, 94 Ala. 501, 10 So. 646; Turner v. Turner, 251 Ala. 295, 37 So. 2d 186.
The witnesses were examined in the presence of the trial court and the rule is well settled that a trial court's finding in an equity case upon oral evidence has the effect of a jury's verdict and will not be disturbed unless plainly and palpably wrong. Stewart v. Stewart, 261 Ala. 374, 74 So. 2d 423; Turner v. Turner, 261 Ala. 129, 73 So. 2d 549; Hale v. Hale, 259 Ala. 666, 68 So. 2d 63. We cannot say from the record before us that the trial court's finding from the evidence that a common-law marriage existed at the time of the separation is plainly and palpably wrong.
There is no objection to making an allowance of alimony in gross. Wood v. Wood, 263 Ala. 384, 82 So. 2d 556; Ryan v. Ryan, 267 Ala. 677, 104 So. 2d 700. As shown above, the trial court vested in appellee the one-half undivided interest which appellant owned in the home which the parties purchased in 1953 for a recited consideration of $4,500 and which was valued at $6,000 at time of trial. There was an outstanding mortgage of $2,000 on the house which appellant was not required to pay. The evidence tends to show that both parties have made payments on the house since its purchase, but there is no way to determine with any degree of accuracy the amount which each has paid.
In determining the amount of permanent alimony there is no fixed rule, since each case must be decided upon its own relevant facts in the light of what is fair and reasonable. Steiner v. Steiner, 254 Ala. 260, 48 So. 2d 184; Phillips v. Phillips, 221 Ala. 455, 129 So. 3.
We have carefully reviewed the record in reference to all matters affecting the amount of permanent alimony. A detailed recital thereof would serve no useful purpose. We cannot say with any degree of assurance that the allowance made by the trial court was not fair and reasonable and hence we feel constrained to sustain his ruling in that respect. See Ryan v. Ryan, supra.
Attorneys for appellee are entitled to a reasonable fee for their services commensurate with their labor and skill involved, the results of the litigation, and the earning capacity of the parties. Such allowance rests in the sound judicial discretion of the trial court, which we are not willing to say was abused by the trial court in the award of $150. Ryan v. Ryan, supra.
On appeal to this court, we may in our discretion make an allowance of attorneys' fees for representing the appellee on the appeal when application is made to do so. Taylor v. Taylor, 251 Ala. 374, 37 So. 2d 645; Ryan v. Ryan, supra.
The decree of the lower court is due to be and is hereby affirmed, with additional allowance of $75 for attorneys' fees for representing appellee in this court.
Affirmed.
LIVINGSTON, C. J., and STAKELY and MERRILL, JJ., concur. | August 13, 1959 |
9e6434a1-898b-442e-a496-59a12820d896 | Mullinax v. Hufham | 113 So. 2d 671 | N/A | Alabama | Alabama Supreme Court | 113 So. 2d 671 (1959)
Wilson T. MULLINAX et al. d/b/a Rickwood Motors
v.
Mattie Lee HUFHAM.
MULLINAX et al.
v.
Donald HUFHAM, Pro Aml.
MULLINAX et al.
v.
Francis B. HUFHAM.
6 Div. 195, 196, 197.
Supreme Court of Alabama.
July 2, 1959.
W. B. Fernambucq, Huie, Fernambucq & Stewart, Birmingham, for appellant.
Beddow, Gwin & Embry, Birmingham, for appellees.
COLEMAN, Justice.
This is an appeal in three cases which were submitted to the jury on a single *672 count in each case. By consent, the cases were consolidated and tried together on substantially the same evidence. Plaintiffs are husband, wife, and a minor child suing separately for loss of services, damage to husband's automobile, and personal injuries to wife and child, all arising out of a collision of the automobile, driven by the wife, with a motor vehicle alleged to have been negligently operated or controlled by defendants. There was a jury verdict and judgment for defendants in each case.
The plaintiffs filed a motion for new trial which was granted in each case. From the judgments granting the motion defendants have appealed and have assigned those judgments as error.
The trial court did not specify the ground or grounds on which the motion for new trial was granted. Among others, the motion contained severally the grounds that the verdict is not sustained by the great preponderance of the evidence and that the verdict is contrary to the facts in the case.
In W. M. Templeton & Son v. David, 233 Ala. 616, 173 So. 231, 232, which was an action for damages for injuries to person and property in a motor vehicle collision on a highway, there was verdict for defendant, and from judgment granting plaintiffs' motion for new trial defendant appealed. In affirming the judgment granting the motion, this court said:
See also Webb v. Gay, 241 Ala. 336, 2 So. 2d 775; Lindsay Products Corp. v. Alabama Securities Corp., 247 Ala. 662, 25 So. 2d 852; Cox v. Martin, 250 Ala. 401, 34 So. 2d 463; Martin v. Birmingham Southern R. Co., 250 Ala. 583, 35 So. 2d 339; Ford v. Sellers, 257 Ala. 404, 59 So. 2d 799; Morgan County v. Hart, 260 Ala. 418, 71 So. 2d 278; King v. Skinner, 261 Ala. 9, 72 So. 2d 730; Commercial Standard Ins. Co. v. Berger Inv. Co., 264 Ala. 208, 86 So. 2d 282; and Holderfield v. Deen, Ala., 112 So. 2d 448, and authorities there cited.
Appellees have not argued in brief to sustain the trial court on the ground that the verdict is contrary to the evidence, nor have appellants insisted to the contrary, but we are not for that reason at liberty to disregard the long established rule of review of judgments which grant new trials.
The evidence has been considered with due care, but for fear its consideration on another trial may be prejudiced thereby, we forego any discussion here. German-American Wholesale Optical Co. v. Rosen, 233 Ala. 105, 106, 170 So. 211; Holderfield v. Deen, supra.
The testimony is in direct conflict as to the manner in which the collision occurred. Plaintiffs' account places liability on defendants, but defendants' version exonerates defendants. This court has said:
Reed v. Thompson, 225 Ala. 381, 382, 143 So. 559; and also:
In the case at bar, we cannot say that the evidence so plainly and palpably supported the verdict as to put the trial court in error for granting a new trial on the ground that the verdict is contrary to the evidence.
Because the action of the trial court must be sustained for the reasons already discussed, we forego determination of the sufficiency of Grounds 6 to 11 of the motion which appellants insist did not justify granting the motion. As to those grounds, appellants state in brief:
In view of appellants' concession, at least arguendo, that the matters complained of in Grounds 6 to 11 of the motion injected error into the proceedings, even if the error was cured, such matters will probably not arise on another trial.
Affirmed.
LIVINGSTON, C. J., and LAWSON, GOODWYN, and MERRILL, JJ., concur. | July 2, 1959 |
e17851ec-8dd4-4c4c-a026-fec4b7f01a18 | City of Dothan v. Wilkes | 114 So. 2d 237 | N/A | Alabama | Alabama Supreme Court | 114 So. 2d 237 (1959)
CITY OF DOTHAN
v.
S. F. WILKES et al.
4 Div. 968.
Supreme Court of Alabama.
August 13, 1959.
*239 C. R. Lewis, Dothan, for appellant.
H. K. & J. F. Martin, Dothan, for appellee Wilkes.
Lee & McInish, Dothan, for appellee Yongue.
LAWSON, Justice.
This is an appeal by the City of Dothan from a final order of condemnation of land for the construction of a highway.
The right of the City to condemn the property was conceded. The only question litigated was the amount of compensation to be awarded those affected by the taking of the property. It was agreed that the taking occurred on September 20, 1957.
The tract of land involved in this appeal was owned by the appellee S. F. Wilkes, subject to a lease to appellee Billy Yongue. At the time of the taking a little over fifteen months remained prior to the expiration of the lease, which will be set out in the report of the case.
The trial court, with the consent of the parties, instructed the jury to find and return separately the value of the estate of the lessor and the lessee and to find and return the combined value of those estates. The jury awarded the owner, Wilkes, the sum of $5,400 and awarded the lessee, Yongue, the sum of $1,800. In its verdict the jury also stated: "We find the total combined damages and compensation for said Tract 44 for the owner and the lessee at $7,200 Dollars."
In pertinent parts the judgment appealed from reads:
In Williams v. Jefferson County, 261 Ala. 76, 72 So. 2d 920, recognition was given to the rule that where leased property is acquired by eminent domain, owner and lessee both have an interest in the total award in the absence of any agreement to the contrary. See Thompson v. City of Mobile, 240 Ala. 523, 199 So. 862. In Williams v. Jefferson County, supra, it is pointed out that it is not within the province of the jury on appeal to the circuit court to make distribution of the award among the owner and other claimants (Title 19, § 26, Code of Alabama 1940); that the value of the tenant's leasehold interest is to be awarded him by the court when the total award is distributed and is to be deducted from the share of his landlord. In these respects the Williams case was not criticized in Harris v. Mobile Housing Board, 267 Ala. 147, 100 So. 2d 719.
*240 The observations in the Williams case to which we have referred are in accord with the generally recognized rule that where there are several interests or estates in a tract of land taken by eminent domain, the proper method of fixing the value of or damage to each interest or estate is to determine the value of or damage to the interests as a whole and then to apportion the gross award among the several owners according to their respective interests. State, By and Through State Highway Commission v. Burk, 200 Or. 211, 265 P.2d 783; New Jersey Highway Authority v. J. & F. Holding Co., 40 N.J.Super. 309, 123 A.2d 25; Aronoff v. City of Dallas, Tex.Civ.App., 316 S.W.2d 302; Marfil Properties, Inc. v. State, 9 Misc.2d 878, 168 N.Y.S.2d 234; City of St. Louis v. Rossi, 333 Mo. 1092, 64 S.W.2d 600.
The constitutional and statutory provisions relating to eminent domain comprehend compensation for damage to property rather than for damage to persons. Constitution of 1901, §§ 23, 235; 1940 Code of Alabama, Title 19. Of course, all persons having an interest in the land taken are entitled to share in the compensation awarded according to the adjudicated valuation of their interests, but this does not alter the fact that the ultimate question, in so far as the condemnor is concerned, is the total compensation required to be paid for the property itself. Primarily, the apportionment of the gross award is a matter of dispute between the fee owner and any lessees, mortgagees or any other persons having interests in the condemned property. Title 19, §§ 26, 27, Code of Alabama 1940; Frankfurt v. Texas Turnpike Authority, Tex.Civ.App., 311 S.W.2d 261, and authorities there cited.
In State ex rel. McCaskill v. Hall, 325 Mo. 165, 28 S.W.2d 80, 81, 69 A.L.R. 1256, the Missouri court cited as a general rule the following, which is taken from Lewis on Eminent Domain:
The same rule is laid down in 4 Nichols, The Law of Eminent Domain, 3d Ed., § 12.36[1], as follows:
To the same effect see 1 Orgel on Valuation under Eminent Domain, 2d Ed., § 107, *241 P. 455; 29 C.J.S. Eminent Domain § 197, pp. 1102-1103; 18 Am.Jur., Eminent Domain, § 239, pp. 872-873.
Under the authorities cited above the verdict of the jury in so far as it may be said to apportion the award between the lessor, Wilkes, and the lessee, Yongue, is irregular, but the appellant City makes no attack upon the form of the verdict inasmuch as it consented that the jury be instructed to return its verdict in that form. We note that the trial court actually apportioned the award between the lessor and lessee, although it followed the findings of the jury in that regard.
The appellant complains that the verdict is excessive and asserts that the excessiveness is due in large measure to the fact that the trial court erred in refusing to correctly instruct the jury as to the measure of damages for the leasehold interest which was taken.
The appellant assigns as error the refusal of the trial court to give appellant's written requested charge No. 1, which reads:
This charge was not adequately covered by the court's oral charge or by any of the written charges given at the request of the appellant. It states the law correctly in regard to a conventional short-term lease for years, such as is involved here. Yellow Cab Co. v. Howard, 243 Ill.App. 263; Pierson v. H. R. Leonard Furniture Co., 268 Mich. 507, 256 N.W. 529, 98 A.L.R. 244; In re Morgan R. & S. S. Co., 32 La.Ann. 371; Riebs v. Milwaukee County Park Commission, 252 Wis. 144, 31 N.W.2d 190; City of Baltimore v. Games & Bro., 132 Md. 290, 104 A. 429; 4 Nichols, The Law of Eminent Domain, 3d Ed., § 12.42[3], pp. 175-181; 1 Orgel on Valuation under Eminent Domain, 2d Ed., § 126, pp. 536-541; 18 Am.Jur., Eminent Domain, § 296, pp. 938-939; 29 C.J.S. Eminent Domain § 143, pp. 988-989; Annotation, 3 A.L.R.2d 286. The charge should have been given and its refusal constitutes reversible error.
The appellant also assigns as error the refusal of the trial court to give at appellant's request its written charge No. 5, which reads:
This charge states a correct principle of law. United States v. Entire Fifth Floor in Butterick Bldg., D.C.N.Y., 54 F. Supp. 258; City of St. Louis v. St. Louis, I. M. & S. R. Co., 266 Mo. 694, 182 S.W. 750, L.R.A.1916D, 713; Fiorini v. City of Kenosha, 208 Wis. 496, 243 N.W. 761; Pause v. City of Atlanta, 98 Ga. 92, 26 S.E. 489, 58 Am.St.Rep. 290; North Coast R. Co. v. A. A. Kraft Co., 63 Wash. 250, 115 P. 97; 4 Nichols on Eminent Domain, 3d Ed., § *242 13.121[1], p. 215; 1 Orgel on Valuation under Eminent Domain, 2d Ed., § 69, pp. 306-311. It was not covered by the oral charge or given charges and the court erred to a reversal in refusing to give it. The charge is not abstract.
There was evidence of the market value of the unexpired portion of Yongue's lease and the case was not tried on the theory that there was no such market value. Cf. Housing Authority of Birmingham Dist. v. Title Guarantee Loan & Trust Co., 243 Ala. 157, 8 So. 2d 835.
Error is also assigned in regard to the action of the trial court in refusing to give appellant's written requested charge No. 7, which reads:
This charge states a correct principle of law. Cobb v. City of Boston, 109 Mass. 438; Ranlet v. Concord R. R. Corp., 62 N.H. 561; In re New York, W. S. & B. R. Co., 35 Hun. 633; Chicago, R. I. & P. R. Co. v. Larwood, 175 Okl. 96, 51 P.2d 508; Reeves v. City of Dallas, Tex.Civ.App., 195 S.W.2d 575; Bales v. Wichita Midland Valley R. Co., 92 Kan. 771, 141 P. 1009, L.R.A.1916C, 1090; Banner Milling Co. v. State, 240 N.Y. 533, 148 N.E. 668, 41 A.L.R. 1019, certiorari denied 269 U.S. 582, 46 S. Ct. 107, 70 L. Ed. 423; 18 Am.Jur., Eminent Domain, § 261, p. 902; 29 C.J.S. Eminent Domain § 162, p. 1031; 4 Nichols on Eminent Domain, 2d Ed., § 13.3, pp. 253-259, § 13.31, pp. 265-266; 1 Orgel on Valuation under Eminent Domain, 2d Ed., §§ 75, pp. 325-326. See Thompson v. City of Mobile, 240 Ala. 523, 199 So. 862. It was not covered by the written charges given at appellant's request or by the court's oral charge. It is not abstract. The court permitted evidence as to the amount of money which Yongue had paid for the good will of the business which he had purchased. It is our opinion that the refusal of this charge constitutes reversible error.
For the errors pointed out the judgment of the trial court is reversed and the cause is remanded.
Reversed and remanded.
LIVINGSTON, C. J., and STAKELY and MERRILL, JJ., concur. | August 13, 1959 |
f426fe82-2b65-48e1-8cf3-cc540615a5ab | Central Aviation Company v. Perkinson | 112 So. 2d 326 | N/A | Alabama | Alabama Supreme Court | 112 So. 2d 326 (1959)
CENTRAL AVIATION COMPANY
v.
William Gordon PERKINSON, Jr., et al.
6 Div. 295.
Supreme Court of Alabama.
May 21, 1959.
*327 Mead & Norman and Marshall H. Fitzpatrick, Birmingham, for appellant.
Rogers, Howard & Redden, Birmingham, for appellee.
STAKELY, Justice.
This suit was instituted by William Gordon Perkinson, Jr., and Robert Edmund Kieran, as owners of an aircraft or plane known as Swift 80876, against Central Aviation Company, a corporation, for damages from a windstorm to the plane by reason of the failure of the defendant to keep the plane securely tied down at the Municipal Airport of Birmingham, Alabama. Trial of the case resulted in a verdict and judgment for the plaintiff for $2,350. Motion for a new trial was overruled. This appeal followed.
The case was tried on Count 1 as amended and on Count 2. The allegations of Count 1 as amended show that the cause of action expressed is one of assumpsit for breach of an agreement to keep the airplane securely tied down when it was not in use. The allegations of Count 2 of the complaint show that it is founded in negligence for breach of a contractual obligation to keep the plane tied down when it was not in use. The court overruled the demurrers to both of these counts. Count 1 as amended shows that the plaintiffs were co-owners of a certain airplane and that on and prior to August 19, 1956, the defendant, Central Aviation Company, for a consideration of $10 per month agreed to provide space for the airplane when it was not in use at the Municipal Airport in Birmingham. The count contains the following averment: "* * * and expressly or impliedly agreed to keep said Swift 80876 securely tied down when not in use. * * *" It is claimed that in the count there is a disjunctive alternative averment of the contractual obligation involved and that under the Alabama cases the count being in the alternative and in this way attempting to present two causes of action in the same count, both alternatives must present a cause of action or the count will be held to be bad. In other words, in such a case the count can be no stronger than its weakest alternative and if one of the alternatives fails to present a cause of action the other will be held to be bad. Sloss-Sheffield Steel & Iron Co. v. Sharp, 156 Ala. 284, 47 So. 279, 280; Gulf, Mobile & Ohio R. Co. v. Williams, 251 Ala. 516, 38 So. 2d 334; Peck v. Henderson, 218 Ala. 233, 118 So. 262.
There is a considerable discussion in briefs as to whether or not the count *328 is good or bad on the demurrer. We think, however, that it is sufficient to say that even if the demurrers were well taken (and we are not deciding to that effect), the overruling of the demurrers was error without injury since Count 2 of the complaint was based on the same occurrence as Count 1 and claimed the same damages. The verdict in the case was a general verdict and did not refer to the two counts separately. It is a well established rule in this jurisdiction that the overruling of a demurrer to one count of the complaint, even though the count is demurrable, where there is another sufficient count in the same complaint presenting the same claim and involving the same evidence, is error without injury where there is a general verdict referable to either count. Hamilton v. Browning, 257 Ala. 72, 57 So. 2d 530; Brush v. Rountree, 249 Ala. 567, 32 So. 2d 246. The trial court overruled demurrers to Count 2 of the complaint in the instant case and this ruling is not argued on appeal. It appears to be conceded that Count 2 is a count sufficient to sustain the verdict.
Assignment of error is based on the overruling of the defendant's motion for a new trial. A number of grounds of the motion for a new trial raise the question of the sufficiency of the evidence to support the verdict. Since all of these grounds present the same question, we will consider them together.
Verdicts are presumed to be correct and no ground for a new trial is more carefully scrutinized or more rigidly limited than the ground that the verdict is contrary to the evidence. Hamilton v. Browning, supra; Smith v. Smith, 254 Ala. 404, 48 So. 2d 546; Cobb v. Malone, 92 Ala. 630, 9 So. 738. When the trial judge overrules a motion for a new trial based on the insufficiency of the evidence to support the verdict, the presumption in favor of the correctness of the verdict is strengthened. Authorities, supra.
However, the appellant first insists that there is no evidence of any agreement between the plaintiffs and the defendant relative to the tying down of the airplane of the plaintiffs. The evidence is undisputed that the defendant was engaged in the business, among other things, of providing facilities where owners of light airplanes could park their aircraft upon the payment of certain sums to the defendant. The "parking" facilities provided by the defendant were, however, more than merely a vacant space for a plane to occupy. It was a paved surface equipped with "tiedown" rings arranged in a particular pattern. Ropes were attached to these rings, which were in turn attached to the airplanes to insure that they remain stationary while on the ground. The tie-down service was the essence of the defendant's business because without this a parking space would be of little value to the airplane owner. Airplanes, due to their nature and construction, must be moored while not attended to prevent their movement, which could be expected to produce damage to the aircraft.
The testimony of the plaintiff Kieran, which was not disputed, showed that such an arrangement as this was the usual and ordinary facility provided by businesses like the defendant operates for the parking of airplanes. According to his testimony it was shown that the aircraft was moved into place and anchored by employees of the defendant. These employees were known as "line boys." They were employed by the defendant to perform the task of tying down airplanes which were parked at the facilities of the defendant.
From the foregoing facts and circumstances it is obvious that the "tie-down" facilities were a material service the plaintiffs purchased from the defendant. We consider that from the foregoing facts there was sufficient evidence on which the jury could find a contract between the parties.
*329 It is insisted by the appellant, however, that there is no evidence of any breach of contract or negligence on the part of the defendant which occasioned the damage to the aircraft of plaintiffs. Without dispute the damage to the aircraft occurred on Sunday, August 19, 1956. The proof showed considerable damage to the plane. Prior to that time the plane had last been flown on the previous Thursday, three days before the damage occurred. On this occasion when the plane was last flown the plaintiff Perkinson brought the plane to defendant's ramp where he turned it over to the employees of the defendant for servicing and anchoring. The employees of defendant gassed the plane and pushed it to the tie-down spot and tied it down.
The aircraft was damaged on August 19, 1956, when the wind during a thunderstorm blew the plane from its mooring at the facilities of defendant. When appellees first examined the plane after the thunderstorm they found the rope attached to the right side of the plane had been broken. On the left landing gear of the plane there was attached a larger rope which had no break in it. The obvious explanation was that the knots on it had slipped. The rope attached to one side of the plane was longer than the rope attached to the other side. Both of the ropes appeared to be weatherbeaten and frazzled or frayed at the break. Charles F. Bradley, the meteorologist in charge of the United States Weather Bureau Station at the Municipal Airport in Birmingham, which station is located about one hundred yards from the premises of the defendant, testified to certain facts as disclosed by the official records of his office.
We consider from the testimony of this witness that it is apparent that the phenomenon which occurred at the Birmingham Municipal Airport on August 19, 1956, was in no sense unusual. Thunderstorms occurred at that location on an average of more than one per week during the entire year and that average was also typical of previous years. On five occasions prior to this date during the year 1956, sustained wind velocities had been recorded far in excess of the sustained wind velocity of thirty-five miles per hour on this occasion. Similar recordings had been made in three previous years, including two during the month of August. Such high winds are usually accompanied by gusts in excess of the sustained velocities. It seems to us that the defendant knew or in the exercise of reasonable diligence should have known about these wind conditions at the place where he carried on his business.
Since defendant knew or should have known of the frequency of thunderstorms and high winds at the Municipal Airport it was his duty to his customers to provide adequate facilities to protect their aircraft from damage. In the case at bar the precaution which the defendant was under a duty to take was to supply adequate ropes of sufficient strength to withstand normal and usual winds and to follow proper procedure in the use of these ropes in the knots used to insure that they would not come unfastened. It seems to us that from this evidence it is obvious that the defendant failed in his duty to protect against a foreseeable danger. It further seems to us that ropes of sufficient strength, whether from age or otherwise, and proper tying procedures were not utilized on the plane of the plaintiffs. The fact that other similar aircraft on the same line with the plaintiffs' aircraft did not break away from their moorings indicates that inadequate equipment or procedures were employed on the aircraft of the plaintiffs. This fact is illustrated by the photographs introduced in evidence by the plaintiffs showing the broken rope, the rope in which there was no knot, and the difference in length of the two ropes. In our judgment the jury could properly find that the appellant was negligent in its conduct toward the appellees and that it failed to provide the service promised.
*330 We have been unable to find in this jurisdiction a case similar to the case at bar. However, there was decided in Mississippi a case which appears to be exactly similar to the case at bar. We refer to the case of City of Jackson v. Brummett, 224 Miss. 501, 80 So. 2d 827, 829. In affirming a judgment for the plaintiff the Mississippi Supreme Court said:
Another case factually analogous to the instant case is Cachick v. United States, D.C., 161 F. Supp. 15. In that case, a case under the Federal Torts Claim Act, 28 U.S.C.A. §§ 1346, 2671 et seq., the plaintiff was injured when the stand in which she was sitting to watch the military exercise at the invitation of the defendant was blown over during a thunderstorm. The Court in that case held that the defendant was required to use reasonable care to guard against forces of nature which could have been reasonably foreseen. The evidence showed that the injury occurred in the month of July, which was the month in which thunderstorms occurred with the greatest frequency in that area. It was further shown that the winds on the particular occasion were not unusual or unprecedented for winds occurring in thunderstorms in that area. In entering a judgment for the plaintiff the Court said:
Appellant insists that the damage to the appellee's airplane was the result of an act of God. An act of God has been defined as "such an unusual and extraordinary manifestation of the forces of nature that it would not under normal conditions have been anticipated or expected." Louisville & N. R. Co. v. Finlay, 237 Ala. 116, 118, 185 So. 904, 905. In this case this court said:
As we have undertaken to point out, the occurrence involved in the case at bar was not such an unusual and extraordinary occurrence. It was not an occurrence which could not have been reasonably anticipated. The evidence shows that there was an average of sixty-six thunderstorms each year in the vicinity. It is common knowledge that thunderstorms are usually accompanied by high winds. The damage involved occurred in the month of August, when temperatures are high. High temperatures are a factor in thunderstorms. The wind velocity recorded on the particular date involved was less than wind velocities recorded on at least five other occasions in prior years. We think the proper conclusion to be drawn from a consideration of all the evidence is that the wind which caused the damage to the airplane of the plaintiffs on this occasion was a usual and ordinary occurrence which the defendant could have anticipated.
We conclude that the jury was justified in finding that the damage to the airplane of the plaintiffs was not due to *331 an act of God, but was the result of a normal and usual occurrence which the defendant could have anticipated and prevented by the exercise of due care.
One of the grounds for new trial attacks the court's ruling in sustaining the objections of the plaintiff to the hypothetical question asked the witness Bradley. This question seeks the opinion of the witness of wind velocity based upon certain damage observed in the vicinity. We find no error in this ruling. The witness had been qualified as an expert meteorologist, but the answer to this question would require expert knowledge in other fields. What force it would take to tear a piece of roofing off a building, break ropes, move blast fences, etc., would require extensive and intensive knowledge of the composition, construction and tensile strength of the items involved. It would require also a thorough familiarity with each item damaged prior to the thunderstorm. There is no proof that the witness had training in these fields, nor was he shown to have the requisite knowledge about the construction, location and composition of each item prior to the thunderstorm. It is settled that an expert may not testify to his opinion on matters outside of his field of training and experience. Capital Motor Lines v. Gillette, 235 Ala. 157, 177 So. 881; Armour & Co. v. Cartledge, 234 Ala. 644, 176 So. 334.
We see no reason to discuss other grounds on which the motion for new trial was based, as we find no merit in them.
It is our conclusion that the judgment of the lower court is due to be affirmed.
Affirmed.
LIVINGSTON, C. J., and LAWSON and MERRILL, JJ., concur. | May 21, 1959 |
0ab68e96-ac59-4c6c-8f18-d5a9d017efd1 | Simpson v. Alabama Dry Dock and Shipbuilding Co. | 114 So. 2d 918 | N/A | Alabama | Alabama Supreme Court | 114 So. 2d 918 (1959)
William S. SIMPSON
v.
ALABAMA DRY DOCK AND SHIPBUILDING COMPANY.
1 Div. 845.
Supreme Court of Alabama.
October 8, 1959.
*919 Vincent F. Kilborn, Mobile, for appellant.
W. B. Hand, Mobile, for appellee.
MERRILL, Justice.
This is a suit under the Alabama Workmen's Compensation Law, Tit. 26, § 253 et seq., Code 1940, instituted by William S. Simpson, the petitioner, against his employer, Alabama Dry Dock and Shipbuilding Company, a corporation.
Petitioner averred that the accident occurred on April 15, 1957, alleging that "At that time Petitioner was on a flat car and certain steel beams were being moved near and over the Petitioner so that Petitioner considered it was necessary for his own safety to jump from said flat car to the ground. In jumping your Petitioner broke several ribs and was rendered totally disabled for a great period of time and has sustained a permanent partial disability as a result of his injuries on said occasion."
Defendant admitted that both parties were subject to the Workmen's Compensation Laws and that petitioner was on the flat car on the date in question, but denied that petitioner broke ribs and was rendered totally disabled to work as a result thereof, and that he sustained a permanent partial disability on that occasion.
After setting out findings of fact, the trial court's conclusions of law are:
On certiorari to review judgments in compensation cases, this court will not look to the weight of the evidence as to any fact found by the trial court, but simply to see if there is any evidence to support facts found by the trial court, and this rule applies when the award or compensation is denied as well as where there has been a judgment favorable to plaintiff. Our review here on certiorari is confined to questions of law apparent upon the face of the record.
Where testimony is conflicting, but there is testimony supporting the finding of the trial court in proceedings under the Workmen's Compensation Act, such finding is conclusive. Ramey v. Gross, 264 Ala. 360, 87 So. 2d 640; Bass v. Cowikee Mills, 259 Ala. 391, 67 So. 2d 12. The burden of proof rests upon the petitioner to sustain the allegations of his petition. Alabama Textile Products Corp. v. Grantham, 263 Ala. 179, 82 So. 2d 204.
The chief conflict in the evidence was as to the broken rib or ribs. Petitioner's testimony, if believed, indicated that he possibly received his broken rib on the date alleged. The medical testimony would indicate strongly that he received a broken rib at some time subsequent to the date that he jumped or fell off the flat car. The trial court resolved the conflict in favor of appellee.
Certain it is that there was evidence to support the conclusion reached by the trial court. This disposes of this cause under the authorities cited, supra, and the authorities cited in those cases.
It follows that the judgment should be affirmed.
Affirmed.
LAWSON, STAKELY, GOODWYN and COLEMAN, JJ., concur. | October 8, 1959 |
aca987ed-185e-4ec0-8354-d010c3c0ee2b | Copeland v. Loeb | 112 So. 2d 475 | N/A | Alabama | Alabama Supreme Court | 112 So. 2d 475 (1959)
Albert W. COPELAND, as Administrator ad litem,
v.
H. B. LOEB.
3 Div. 851.
Supreme Court of Alabama.
May 28, 1959.
*476 Hill, Robison & Belser, Montgomery, for appellant.
Hill, Hill, Whiting, Harris & Pilcher, Montgomery, for appellee.
SIMPSON, Justice.
The facts giving rise to this case, as disclosed by the pleadings, are as follows: In 1950 and 1951 W. D. Lowry, Jr. and H. B. Loeb executed two promissory notes totaling $6,600 which were payable to Lowry's mother, Mrs. Lula Clyde Lowry. Mrs. Lowry died on February 27, 1953, at which time the notes were unpaid. Mrs. Lowry left a will naming her son, W. D. Lowry, Jr. as executor and making said Lowry a principal heir and legatee of her estate. On March 21, 1958 Lowry, as executor of the estate of Mrs. Lowry, filed the complaint in the instant case in the Circuit Court of Montgomery County seeking recovery on the aforesaid promissory notes and naming himself as party defendant along with the appellee, Loeb. Appellee filed a plea in abatement alleging that he was a resident of Escambia County and *477 that plaintiff had wrongfully brought this suit in the county of his own residence and had wrongfully joined himself as party defendant in an effort to evade the venue requirements of Tit. 7, § 54, Alabama Code 1940. Thereafter Lowry filed an affidavit to the effect that Lowry, the party plaintiff, and Lowry, the party defendant, were one and the same person, but that plaintiff Lowry was suing in his capacity as executor of the estate of Lula Clyde Lowry, deceased. Based upon the affidavit, the trial court appointed appellant Copeland as administrator ad litem of the estate of Lula Clyde Lowry, deceased, and as substitute party plaintiff to represent the estate upon the hearing of this suit. Appellee then amended his plea in abatement to meet this new issue and appellant demurred. The trial court thereupon overruled the amended demurrer to the amended plea in abatement; appellant took a non-suit and has brought this appeal.
The single question presented for decision is whether or not Lowry, whose residence was made determinative of the venue of the action, is a bona fide defendant.
Section 54, Tit. 7, Alabama Code 1940 provides in part as follows:
Where there are several defendants and the residence of one is made determinative of the venue of the action, the complaint must state a cause of action against the said defendant; it must show that the resident defendant has an interest antagonistic to the plaintiff and the resident defendant must be a party against whom relief is sought. Ex parte Morton, 261 Ala. 581, 75 So. 2d 500. The resident defendant must be a real and bona fide defendant whose interest in the result of the action is adverse to that of the plaintiff with respect to the cause of action against the other defendant. 56 Am.Jur., Venue, § 30; 92 C.J.S. Venue § 96.
It is a settled doctrine in this Court that when a debtor becomes executor of the estate of the creditor, his personal indebtedness to the estate is extinguished as a matter of law and is converted and transmuted for all practical purposes, from a chose in action into a chose in possession, and for which he is liable on final settlement of his administration. This rule obtains without regard to the solvency of the debtor so appointed or the duration of his administration. The fact that there is a dispute as to the existence of the indebtedness or the amount thereof does not oust the jurisdiction of the court in that one purpose of the settlement is to ascertain the assets for which the executor has become liable to account. The underlying reason supporting this rule is that the executor becomes both payor and payee; that is, the right to demand and the obligation to pay exist in the same person; the executor cannot sue himself and there is no process by which the executor can coerce a collection of himself. See Childress v. Childress, 3 Ala. 752; Purdom v. Tipton, 9 Ala. 914; Miller v. Irby's Adm'r, 63 Ala. 477; Wright v. Lang, 66 Ala. 389; Cook v. Cook, 69 Ala. 294; Arnold v. Arnold, 124 Ala. 550, 27 So. 465; Lindsey v. Lindsey, 229 Ala. 578, 158 So. 522; Faust v. Faust, 248 Ala. 660, 29 So. 2d 133; Webb v. Webb, 250 Ala. 194, 33 So. 2d 909; 8 A.L.R. 92.
The personal indebtedness of the executor to the testator-creditor whereby he might have otherwise been sued, was therefore extinguished. Thus the administrator ad litem could not maintain this action at law based upon Lowry's personal indebtedness. See Hodge v. Hodge, 90 Me. 505, 38 A. 535, 40 L.R.A. 33; Bassett v. Fidelity & Deposit Co., 184 Mass. 210, 68 N.E. 205; 21 Am.Jur., Executors & Administrators, § 194; 8 A.L.R. 92.
The administrator ad litem argues that inasmuch as he, rather than the executor, *478 is bringing the action, the reason for the rule (that an executor cannot sue himself) falls and the rule (that the debt is extinguished) should not be applied.
The only relief afforded an administrator ad litem against an executor where the latter's interest is adverse to that of the estate is for the court to require the executor to charge himself on final settlement, as executor of the estate represented by the administrator ad litem with the money or property recovered of him by the administrator ad litem. Title 61, § 169, Alabama Code 1940.
Under the rule hereinabove enunciated, application of which is objected to by the administrator ad litem, where the debtor is the executor of the estate of his creditor, the debt is extinguished and the amount thereof is chargeable, by operation of law, to the executor. Arnold v. Arnold, supra. Thus it is clear that if the rule were not applied and the administrator ad litem were allowed to maintain this action against the executor, after a hearing thereon, the relief afforded for the benefit of the estate would be the same as that provided by the rule itself. We also observe that there is no process by which the executor could be required to have an administrator ad litem appointed for the purpose of recovering a debt owed the estate by the executor. See Childress v. Childress, supra.
The propriety, validity or necessity of the appointment of the administrator ad litem to represent the estate in this proceeding is not herein challenged and we refrain from passing thereon. It might be pertinent to observe, however, that the power to appoint an administrator ad litem should be exercised only in the case of necessity and this is true notwithstanding the fact that the interest of the executor is adverse to that of the estate. The unnecessary and often very considerable expense to the estate occasioned by such an appointment should not be incurred where the court in which the estate is being administered is competent to render complete justice. Ex parte Baker, 118 Ala. 185, 23 So. 996; Ex parte Riley, 247 Ala. 242, 23 So. 2d 592.
We conclude, as heretofore stated, that the appellant, administrator ad litem, cannot maintain this action against defendant Lowry, the resident defendant. It follows that the action cannot be maintained in Montgomery County, the county of Lowry's residence, against Loeb, a non-resident of said county, and the trial court correctly sustained appellee's plea in abatement. Ex parte Morton, supra; 56 Am.Jur., Venue, § 30; 92 C.J.S. Venue § 96. Our decision is limited to this single issue.
Affirmed.
LIVINGSTON, C. J., and GOODWYN and COLEMAN, JJ., concur. | May 28, 1959 |
49679d0a-5950-4ab2-8e9d-3755b37490da | Bennett v. Jefferson County | N/A | 1150327, 1150326 | Alabama | Alabama Supreme Court | rel: 03/17/2017
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334)
229-0649), of any typographical or other errors, in order that corrections may be made
before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2016-2017
_________________________
1150326
_________________________
Jefferson County and Jefferson County Commission
v.
Taxpayers and Citizens of Jefferson County
_________________________
1150327
_________________________
Andrew Bennett, Mary Moore, John Rogers, and William
Muhammad
v.
Jefferson County and Jefferson County Commission
Appeals from Jefferson Circuit Court
(CV-15-903133)
PER CURIAM.
1150326; 1150327
Jefferson County and the Jefferson County Commission
(hereinafter referred
to
collectively
as
"the
County
parties")
appeal from the judgment of the Jefferson Circuit Court ("the
trial court") denying a petition for validation of the
warrants filed by the County parties, pursuant to § 6-6-750 et
seq., Ala. Code 1975, and opposed by the taxpayers and
citizens of Jefferson County.1 Andrew Bennett, Mary Moore,
John Rogers, and William Muhammad cross-appeal from the
portion of the trial court's judgment declining to address
alternative arguments they raised. As to the County parties'
appeal (no. 1150326), we reverse. We dismiss the cross-appeal
(no. 1150327).
I. Factual Background and Procedural History
Section 40-12-4(a), Ala. Code 1975, provides, in
pertinent part:
"In order to provide funds for public school
purposes, the governing body of each of the several
counties in this state is hereby authorized by
ordinance to levy and provide for the assessment and
collection of franchise, excise and privilege
license taxes with respect to privileges or receipts
from privileges exercised in such county, which
shall be in addition to any and all other county
taxes heretofore or hereafter authorized by law in
1Andrew Bennett, Mary Moore, John Rogers, William
Muhammad, and Keith A. Shannon each responded in his or her
capacity as an individual taxpayer and citizen of Jefferson
County.
2
1150326; 1150327
such county. ... All the proceeds from any tax
levied pursuant to this section less the cost of
collection thereof shall be used exclusively for
public school purposes, including specifically and
without limitation capital improvements and the
payment of debt service on obligations issued
therefor."
In 2004 and 2005, Jefferson County issued warrants to raise
funds to make certain grants to local boards of education to
construct school buildings and to retire other debt.2 Those
warrants are currently outstanding. All the revenue from
Jefferson County's existing 1% education sales and use taxes
levied under § 40-12-4, Ala. Code 1975, is pledged and
required to pay the debt service on the outstanding warrants
and certain related costs.
Jefferson County has experienced severe financial
difficulties in recent years that eventually resulted in the
County's filing a petition in bankruptcy. In 2009, this Court
held that Jefferson County's occupational tax, imposed since
1987, was unconstitutional. Jefferson Cty. Comm'n v.
Edwards,
32 So. 3d 572 (Ala. 2009). Even though the legislature
2Those previously issued warrants are the Limited
Obligation School Warrants, Series 2004-A, in the original
principal amount of $650,000,000; the Limited Obligation
School Warrants, Series 2005-A, in the original principal
amount of $200,000,000; and the Limited Obligation School
Warrants, Series 2005-B, in the original principal amount of
$200,000,000.
3
1150326; 1150327
attempted to pass a new occupational tax, that effort did not
survive judicial scrutiny. Jefferson Cty. v. Weissman, 69 So.
3d 827 (Ala. 2011). In 2015, Jefferson County and its
legislative
delegation proposed
local
legislation
in
an
effort
to bolster the County's finances without an occupational tax.
Jefferson County proposed a new 1% sales tax and a 1% use tax
to replace its existing 1% education sales and use taxes, the
purpose of which was to fund new warrants at lower interest
rate and a lower required debt service that would allow the
County to retire its existing warrants. Jefferson County
intended to use the replacement taxes to pay the reduced debt
service on the new warrants and to use any excess for other
purposes stated in the legislation, including additional
school funding and its general fund. The replacement sales
and use taxes for Jefferson County were proposed as House Bill
573 ("H.B. 573").
Section 71.01(C), Ala. Const. of 1901, prevents a house
of the legislature from voting on a non-appropriations bill in
a session until that house passes the basic annual
appropriations bills. Section 71.01(C) also provides,
however, that a house of the legislature may vote on a non-
appropriations bill before the basic annual appropriations
bills if that house takes an extra procedural step of passing
4
1150326; 1150327
a budget isolation resolution ("BIR") by "three-fifths of a
quorum present." Section 71.01(C) does not specify whether
"present" means present and voting or only present –- whether
voting or not. House Rule 36 interprets this constitutional
provision to require three-fifths of the members "present and
voting" to pass a BIR. Before voting on H.B. 573, the House
of Representatives passed a BIR on May 21, 2015, with 13 yes
votes and 3 no votes from the Jefferson County delegation.
The remaining members of the House either abstained or did not
vote. The House passed H.B. 573 on May 21. The Senate then
passed the bill, the Governor signed it, and on May 27, 2015,
H.B. 573 became Act No. 2015-226, levying the local sales and
use taxes at issue in this case. Act No. 2015-226 provides:
"ENROLLED, An Act,
"Relating to Jefferson County; to authorize the
Jefferson County Commission to levy and assess,
subject to the limitations set forth herein, a
privilege or license tax against retail sales of
tangible personal property and amusements (a 'sales
tax') and an excise tax on the storage, use, or
consumption of tangible personal property (a 'use
tax'); to make legislative findings; to provide for
definitions; to provide that the rate of sales and
use taxes authorized by this act shall not exceed
one
percent;
to
require
the
simultaneous
cancellation of a certain existing sales and use tax
levy in the county if the taxes authorized by this
act are levied by the county; to provide additional
restrictions; to provide that the provisions of the
state sales and use tax laws and regulations which
are not inconsistent with this act shall be
5
1150326; 1150327
applicable with respect to the taxes authorized by
this act; to provide for the continued levy of the
taxes authorized herein following the repeal of
either or both of the state sales tax or the state
use tax; to provide for the collection and
enforcement of the taxes authorized by this act; to
require the sales taxes authorized by this act to be
collected at the point of sale; to provide for the
promulgation of rules and procedures; to provide for
distribution of the proceeds of the taxes authorized
herein first to debt service and other amounts due
with respect to certain warrants issued for certain
designated public school purposes, second to the
general fund of the county, third to the Jefferson
County 2015 Sales Tax Fund, fourth to the Jefferson
County Community Service Fund, fifth to the
Birmingham-Jefferson County
Transit
Authority,
sixth
to the Birmingham Zoo, Inc., and seventh to the
general fund of the county; to create and provide
for the Jefferson County 2015 Sales Tax Fund; to
provide for distributions from the Jefferson County
2015 Sales Tax Fund to schools serving county
residents; to create and provide for the Jefferson
County Community Service Committee; to create and
provide for the Jefferson County Community Service
Fund; to provide for the expenditure of amounts
deposited in the Jefferson County Community Service
Fund by the Jefferson County Community Service
Committee upon recommendations from members of the
Jefferson County Legislative Delegation; to provide
for the termination of the taxes authorized by this
act upon the defeasance or other full payment of
refunding school warrants provided for herein; to
provide that the provisions of this act are
severable; and to provide for an effective date.
"BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:
"Section 1. This act shall only apply to
Jefferson County.
"Section 2. (a) It is the intention of the
Legislature by the passage of this act to authorize
the county to levy and provide for the collection
of, in addition to all other taxes authorized by
6
1150326; 1150327
law, except as provided in Section 4, a sales tax
and a use tax conforming with and parallel to the
state sales tax and the state use tax at a rate not
exceeding the maximum rates set forth herein.
"(b) The Legislature hereby finds and declares
that each tax authorized by this act is a sales or
use tax and is not a gross receipts tax in the
nature of a sales tax, as such term is defined in
Section 40-2A-3(8) of the Code of Alabama 1975, as
amended, and used in Section 11-51-209 of the Code
of Alabama 1975, as amended.
"(c) In view of the county’s recent financial
difficulties, the invalidation of certain taxes that
previously provided significant revenues to the
county, and the conclusion of the county's Chapter
9 bankruptcy proceedings, the Legislature hereby
finds and declares that it is necessary, desirable,
and in the best interests of residents of the county
that the Jefferson County Commission be provided
additional flexibility with respect to its revenue
sources and budget.
"(d) The Legislature hereby finds and declares
that providing additional funding for public schools
in the county will benefit the public welfare and
education of residents of the county.
"(e) This act shall be liberally construed in
conformity
with
the
intentions
and
findings
expressed in this section.
"Section 3. (a) As used in this act, the
following words, terms, and phrases shall have the
following respective meanings except where the
context clearly indicates a different meaning:
"(1) ACT 405. Act 405 of the 1967 Regular
Session of the Legislature (Acts 1967, p. 1021), as
amended.
"(2) AVERAGE DAILY MEMBERSHIP. The meaning
ascribed in Section 16-13-232, Code of Alabama 1975.
7
1150326; 1150327
"(3) COMMITTEE. The Jefferson County Community
Service Committee authorized in Section 11.
"(4) COUNTY. Jefferson County, Alabama.
"(5) COUNTY COMMISSION. The Jefferson County
Commission.
"(6) EXISTING SCHOOL WARRANTS. Collectively,
the following limited obligation warrants issued by
the county for the benefit of public schools in the
county: a. Limited Obligation School Warrants,
Series
2004-A,
b.
Limited
Obligation
School
Warrants, Series 2005-A and c. Limited Obligation
School Warrants, Series 2005-B.
"(7) JEFFERSON COUNTY LEGISLATIVE DELEGATION.
The elected members of the House of Representatives
and the Senate from districts wholly or partially
within the county.
"(8) REFUNDING SCHOOL WARRANTS. Any warrants or
other obligations of the county issued after the
effective date of this act to refinance, on such
terms as the county commission shall determine in
its discretion, either a. the existing school
warrants, or b. any warrants subsequently issued for
the purpose of refinancing such warrants. Refunding
school warrants shall be issued under the statutes
codified as Chapter 28 of Title 11, Code of Alabama
1975, as heretofore or hereafter amended, or any
other law of the state available for such purpose.
Refunding
school
warrants
shall
be
limited
obligations of the county secured by, and payable
solely from, the portion of the taxes authorized by
this act and described in Section 9(a). Refunding
school warrants shall not be payable from any other
revenues of the county and shall not constitute a
general debt or obligation of the county within the
meaning of any provision of the Constitution of
Alabama of 1901, as heretofore or hereafter amended.
"(9) STATE SALES TAX. The tax or taxes imposed
by the state sales tax statutes.
8
1150326; 1150327
"(10) STATE SALES TAX STATUTES. Division 1 of
Article 1 of Chapter 23 of Title 40, Code of Alabama
1975, as heretofore or hereafter amended, including
all other statutes of the State which expressly set
forth any exemptions from the computation of the tax
levied in the state sales tax statutes and all other
statutes of the state which expressly apply to or
purport to affect the administration of the state
sales tax statutes, and the incidence and collection
of the taxes imposed therein.
"(11) STATE USE TAX. The tax or taxes imposed by
the state use tax statutes.
"(12) STATE USE TAX STATUTES. Article 2 of
Chapter 23 of Title 40, Code of Alabama 1975, as
heretofore or hereafter amended, including all other
statutes of the state which expressly set forth any
exemptions from the computation of the tax levied in
the state use tax statutes and all other statutes of
the state which expressly apply to or purport to
affect the administration of the state use tax
statutes, and the incidence and collection of the
taxes imposed therein.
"(13) 2015 SALES TAX FUND. A governmental fund
of the county which is created hereunder and shall
be entitled 'Jefferson County 2015 Sales Tax Fund.'
"(b) Except where another meaning is clearly
indicated by the context, all definitions set forth
in the state sales tax statutes and the state use
tax statutes shall be effective as definitions of
the words, terms, and phrases used in this act. All
words, terms, and phrases used herein, other than
those hereinabove specifically defined, shall have
the respective meanings ascribed to them in the
state sales tax statutes or the state use tax
statutes and shall have the same scope and effect
that the same words, terms, and phrases have where
used in the state sales tax statutes or the state
use tax statutes.
"Section 4. (a) Subject to subsection (d) of
this section, the county commission is authorized,
9
1150326; 1150327
by resolution duly adopted, to levy, in addition to
all other taxes now imposed or authorized by law,
and to collect as herein provided, a privilege or
license tax, herein called a sales tax, against each
person making retail sales of tangible personal
property or amusements in the county at a rate not
to exceed one percent of gross proceeds of sales or
gross receipts, as the case may be, and an excise
tax, herein called a use tax, on the storage, use,
or other consumption of tangible personal property
in the county purchased at retail at a rate not to
exceed one percent of the sales price of such
property.
"(b) Any sales tax or use tax levied by the
county commission pursuant to this section shall
apply to and be levied upon every person or other
entity required to pay, or upon whom shall have been
levied, the state sales tax or state use tax.
"(c) Notwithstanding the foregoing, the taxes
authorized to be levied pursuant to this act shall
not apply to the sale or use of property or services
which are exempt under the state sales tax statutes
or the state use tax statutes and corresponding
regulations promulgated thereunder.
"(d) Upon initial levy by the county of the
taxes authorized by this act, the county commission
shall simultaneously cancel the county's existing
sales and use taxes currently being levied by the
county
under
Ordinance
1769
of
the
county
commission, as amended, that are pledged to the
existing school warrants, provided that the county
has previously or will simultaneously retire or
defease the existing school warrants. The sales and
use taxes authorized by this act and the sales and
use taxes authorized to be levied by the county
pursuant to Ordinance 1769 of the county commission
shall not both apply to any taxable sale or storage,
use, or consumption so as to result in a cumulative
tax rate from both such taxes that is greater than
one percent.
10
1150326; 1150327
"(e) In the event of the repeal of either or
both of the state sales tax statutes or state use
tax statutes, the county is authorized to continue
to levy, administer, collect, and enforce the sales
and use taxes authorized by this act.
"Section 5. Pursuant to and in conformity with
Article I of Chapter 3 of Title 11, Code of Alabama
1975, the county may, by ordinance or resolution,
administer and collect, or contract for the
collection of, the sales and use taxes authorized by
this act.
"Section 6. Each person engaging or continuing
in a business subject to the sales taxes authorized
to be levied by this act shall add to the sales
price or admission fee and collect from the
purchaser or the person paying the admission fee the
amount due by the taxpayer on account of the sale or
admission. It shall be unlawful for any person
subject to the sales taxes authorized to be levied
by this act to fail or refuse to add to the sales
price or admission fee and not collect from the
purchaser or person paying the admission fee the
amount required to be added to the sale or admission
price. It shall be unlawful for any person subject
to the sales taxes authorized to be levied by this
act to refund or offer to refund all or any part of
the amount collected or to absorb or advertise
directly or indirectly the absorption or refund of
any portion of such tax or taxes. The sales taxes
authorized by this act shall conclusively be
presumed to be a direct tax on the retail consumer,
pre-collected for the purpose of convenience only.
"Section 7. The taxes authorized to be levied by
this act shall constitute a debt due the county.
Such taxes, together with any interest and penalties
permitted by law, shall constitute and be secured by
a lien upon the property of any person from whom the
tax or taxes are due or that is required to collect
the tax or taxes.
"Section 8. All provisions of the state sales
tax statutes and state use tax statutes with respect
11
1150326; 1150327
to the payment, assessment, and collection of the
state sales tax and state use tax, making of
reports, keeping and preserving records, interest or
penalties, or both, for failure to pay such taxes or
late payment of such taxes, promulgating rules and
regulations with respect to the state sales tax and
state
use
tax,
and
the
administration
and
enforcement of the state sales tax statutes and
state use tax statutes shall apply to the taxes
authorized to be levied by this act, except for the
rate of tax and except where otherwise inapplicable
or otherwise expressly provided for by this act.
The county and any designee or agent shall have and
exercise the same powers, duties, and obligations
with respect to the taxes authorized to be levied
under this act that are provided the Department of
Revenue and the Revenue Commissioner by the state
sales tax statutes or state use tax statutes or
provided the county under Act 405. All provisions
of the state sales tax statutes and state use tax
statutes or of Act 405 that are made applicable by
this act to the taxes authorized to be levied under
this act, and the administration and enforcement of
this act, are incorporated by reference and made a
part of this act as if fully set forth herein.
"Section 9. (a) The proceeds of the taxes
authorized herein collected each month by the
county, after any deductions for cost of collection,
shall be distributed at such times as shall be
directed by the county commission in the priority
and respective amounts set forth below:
"(1) First, for so long as any refunding school
warrants are outstanding and are not defeased or
otherwise fully paid, so much of the proceeds
received during a fiscal year of the county as may
be necessary to satisfy the county's obligations
with respect to the refunding school warrants,
including payment of the principal of, premium, if
any, and interest on the refunding school warrants,
due during such fiscal year of the county, any
ongoing expenses of administration of the refunding
school warrants, amounts required to be deposited in
any debt service reserve fund for the refunding
12
1150326; 1150327
school warrants, and amounts necessary to provide
for payment of rebate, if any, or other amounts due
to the United States, shall be paid over to the
trustee or paying agent for the refunding school
warrants to be held in a fund or funds solely for
payment of such amounts due with respect to the
refunding school warrants. The portion of the taxes
authorized herein and required to be paid over to
the trustee or paying agent for the refunding school
warrants shall be segregated from all other receipts
from the taxes authorized herein, shall be devoted
solely to the payment of amounts due with respect to
the refunding school warrants, and shall not be
available to pay general governmental expenses of
the county.
"(2) Second, to the extent that there remain
additional proceeds of the taxes authorized to be
levied herein following the applications authorized
in subdivision (1), such remaining additional
proceeds, up to thirty-six million three hundred
thousand dollars ($36,300,000) per fiscal year of
the county, shall be deposited into the general fund
of the county for use and appropriation as the
county commission shall determine in its discretion.
"(3) Third, to the extent that there remain
additional proceeds of the taxes authorized to be
levied herein following the applications authorized
in subdivisions
(1) and (2), such remaining
additional proceeds, up to eighteen million dollars
($18,000,000) per fiscal year of the county, shall
be deposited into the 2015 Sales Tax Fund. Funds on
deposit in the 2015 Sales Tax Fund shall be
distributed in accordance with the provisions of
Section 10.
"(4) Fourth, to the extent that there remain
additional proceeds of the taxes authorized to be
levied herein following the applications authorized
in subdivisions (1), (2), and (3), such remaining
additional proceeds, up to three million six hundred
thousand dollars ($3,600,000) per fiscal year of the
county, shall be deposited in the Jefferson County
13
1150326; 1150327
Community Service Fund to be expended as provided in
Section 11.
"(5) Fifth, to the extent that there remain
additional proceeds of the taxes authorized to be
levied herein following the applications authorized
in subdivisions (1), (2), (3), and (4), such
remaining additional proceeds, up to two million
dollars ($2,000,000) per fiscal year of the county,
shall be paid over to the Birmingham-Jefferson
County Transit Authority for each of the first 10
fiscal years of the county following the adoption of
this act, and thereafter up to one million dollars
($1,000,000) per fiscal year of the county.
"(6) Sixth, to the extent that there remain
additional proceeds of the taxes authorized to be
levied herein following the applications authorized
in subdivisions (1), (2), (3), (4), and (5), such
remaining additional proceeds, up to five hundred
thousand dollars ($500,000) per fiscal year of the
county, shall be paid over to Birmingham Zoo, Inc.
"(7) Seventh, to the extent that there remain
additional proceeds of the taxes authorized to be
levied herein following the applications authorized
in subdivisions (1), (2), (3), (4), (5), and (6),
such
remaining
additional
proceeds,
shall
be
deposited into the general fund of the county for
use and appropriation as the county commission shall
determine in its discretion.
"(b) The amounts specified in subdivisions (1)
through (6) shall be paid and distributed in full so
long as the proceeds of the taxes authorized to be
levied herein are sufficient for such purposes.
"Section 10. (a) There is hereby created a
governmental fund of the county to be designated the
Jefferson County 2015 Sales Tax Fund. The county
commission shall maintain the 2015 Sales Tax Fund
and shall administer it according to its normal fund
administration procedures.
14
1150326; 1150327
"(b) As promptly as practicable after the end of
each fiscal year of the county, funds on deposit in
the 2015 Sales Tax Fund as of September 30 of each
year shall be distributed to the city or county
boards of education then serving students resident
in the county according to the following procedure:
"(1) Each county or city board of education
serving any portion of the county shall certify in
writing to the county commission its average daily
membership of students resident in the county, its
certified enrollment, calculated in accordance with
Article 11 of Chapter 13 of Title 16, Code of
Alabama 1975, or any successor thereto. County or
city boards of education may use their certification
to the state Department of Education under the state
Foundation Program for this purpose to the extent
such certification includes only students resident
in the county.
"(2) Upon receipt of the certified enrollment
from each board of education described in this
section, the county commission shall determine the
total number of students resident in the county and
enrolled in public schools serving the county.
"(3) As promptly as practicable thereafter, the
county commission shall distribute from the 2015
Sales Tax Fund to each board of education described
in this section an amount equal to its pro rata
share of the amount on deposit in the 2015 Sales Tax
Fund as of September 30 of the prior fiscal year of
the county, taking into account each board of
education's certified enrollment and the total
number of students resident in the county and
enrolled in public schools serving the county.
"(c)
Absent
manifest
error,
the
determination
by
the county commission of the distribution of funds
from the 2015 Sales Tax Fund shall be conclusive.
"Section 11. (a) There is hereby created the
Jefferson County Community Service Committee. The
committee shall consist of four members, one of whom
shall be elected by each of the Jefferson County
15
1150326; 1150327
Democratic House Delegation, the Jefferson County
Republican House Delegation, the Jefferson County
Democratic Senate Delegation, and the Jefferson
County Republican Senate Delegation. Members of the
Jefferson County Legislative Delegation shall not be
eligible for election to the committee. Members of
the committee shall be elected at a meeting of the
Jefferson County Legislative Delegation held in the
first year of each quadrennium of the Legislature
and shall be residents and qualified electors of the
county. The committee shall establish rules and
procedures for its proceedings and activities.
"(b) There is hereby created a public fund to be
designated the Jefferson County Community Service
Fund. The committee shall be the custodian of, and
shall be responsible for the proper expenditure of,
the Jefferson County Community Service Fund.
"(c) Funds on deposit in the Jefferson County
Community Service Fund shall be used solely for one
or more of the following purposes in the county,
provided that any use of such funds must serve a
public purpose:
"(1) To support public schools, public roads,
public museums, public libraries, public zoos,
public parks, neighborhood associations, public
athletic
facilities,
public
youth
sports
associations, public sidewalks, public trails, or
public greenways;
"(2) To support the performing arts;
"(3) To support nonprofit entities that, at the
time a recommendation for expenditure is filed with
the committee, have received funding from the United
Way of Central Alabama within the last 12 months and
are not excluded from receiving additional United
Way funding;
"(4)
To
support
police
departments,
the
county's
sheriff's office, or fire departments or districts
in the county; or
16
1150326; 1150327
"(5) To support publicly available assistance
programs established for the benefit of low income
residential
customers
of
the
county's
public
sanitary sewer system.
"(d) Subject to the provisions of this act, the
amount deposited in the Jefferson County Community
Service Fund shall be allocated equally between the
Jefferson County House Delegation and the Jefferson
County Senate Delegation. The amounts so allocated
shall be further allocated equally among the members
of the House Delegation and the Senate Delegation.
From the amounts so allocated to them, the members
of the House and Senate Delegations may recommend
one or more expenditures from the Jefferson County
Community Service Fund for purposes described in
subsection (c). Such expenditures shall be made
from revenues derived from the taxes authorized
herein for the prior fiscal year of the county and
deposited in the Jefferson County Community Service
Fund.
"(e) The
committee shall consider and
approve or
deny each recommended expenditure pursuant to its
rules for review and approval of disbursements from
the Jefferson County Community Service Fund.
"(f) Any amounts derived from the taxes
authorized herein during the prior fiscal year of
the county remaining on deposit in the Jefferson
County Community Service Fund on September 30 of any
year shall be paid over to the county for deposit
into the general fund.
"Section 12. The taxes authorized to be levied
by this act shall be levied only for so long as any
refunding school warrants are outstanding and are
not defeased or otherwise fully paid, and when all
refunding school warrants have been fully paid in
accordance with the terms thereof, the levy of the
taxes authorized by this act shall terminate unless
extended by law.
"Section 13. The provisions of this act are
severable. If a court of competent jurisdiction
17
1150326; 1150327
adjudges invalid or unconstitutional any clause,
sentence, paragraph, section, or part of this act,
the judgment or decree shall not affect, impair,
invalidate, or nullify the remainder of this act,
but the effect of the decision shall be confined to
the clause, sentence, paragraph, section, or part of
this act adjudged to be invalid or unconstitutional.
"Section 14. This act shall become effective
immediately following its passage and approval by
the Governor, or its otherwise becoming law."
On July 20, 2015, Bennett, Moore, Rogers, and Muhammad
(hereinafter "the class plaintiffs") filed in the Jefferson
Circuit Court a class action against Jefferson County on
behalf of a purported class composed of "persons or entities
who pay or are otherwise subject to franchise, excise, and
privilege license taxes ('sales and use taxes') on receipts
from sales made within Jefferson County," challenging the
constitutionality of Act No. 2015-226. On August 13, the
County adopted a resolution levying sales and use taxes
pursuant to Act No. 2015-226 authorizing the County to
implement the taxes, to issue approximately $595 million in
warrants, and to pledge a portion of the taxes to pay the cost
of servicing the debt created by the issuance of the warrants.
On the same day, pursuant to § 6-6-751, Ala. Code 1975, the
County parties filed in the trial court a petition, seeking to
validate the proposed issuance and sale by the County of its
limited-obligation refunding warrants,
the
sales
and
use
taxes
18
1150326; 1150327
levied by the County pursuant to the resolution adopted by the
Commission on August 13 and Act No. 2015-226, and the pledge
of the proceeds of the sales and use taxes for the payment of
the warrants.3
On September 10, the class plaintiffs appeared at the
hearing in the validation action held pursuant to § 6-6-753,
Ala. Code 1975, and filed a motion requesting the trial court
"to deny [the] Validation Petition" and "to transfer the case"
to the judge hearing their class action. On September 11,
Keith Shannon, a taxpayer and citizen of Jefferson County,
filed a separate response to the validation action. On
September 12, the class plaintiffs joined the responses filed
by the district attorney (see supra note 3) and Shannon. On
September 14, the trial court denied the class plaintiffs'
motion to have the validation action consolidated with the
class action. The class plaintiffs then dismissed their
action. Shannon and the class plaintiffs will hereinafter
sometimes be referred to jointly as "the taxpayers."
3The trial court ordered the publication of a notice of
the hearing to be held on the validation proceeding "to the
taxpayers and citizens of Jefferson County, Alabama." In
accordance with § 6-6-752(d), Ala. Code 1975, the notice was
published once a week for three consecutive weeks in a
newspaper of general circulation in Birmingham. Pursuant to
§ 6–6–752(c), Ala. Code 1975, the Jefferson County District
Attorney was served with the petition and filed an answer.
19
1150326; 1150327
At the bench trial held by the trial court in the
validation proceeding, the taxpayers raised four arguments
against the validity of Act No. 2015-226 and Jefferson
County's resolutions approving the taxes and issuance of the
new warrants: (1) that the vote on the BIR for H.B. 573,
which became Act No. 2015-226, did not comply with § 71.01(C),
Ala. Const. of 1901 (quorum provisions); (2) that Act No.
2015-226 violates § 105, Ala. Const. of 1901 (local law
subsumed by general law); (3) that Act No. 2015-226 violates
§ 104, Ala. Const. of 1901 (bar on certain types of local
laws); and (4) that the County's resolutions violate §
45-37-162.03,
Ala.
Code
1975
(Local
Laws,
Jefferson
County)(requiring the County to hold a public hearing before
issuing debt). On December 14, 2015, the trial court entered
a judgment denying the County parties' validation petition on
the basis that the BIR adopted by the House to enable H.B. 573
to be considered before the annual appropriations bills was
not passed in compliance with § 71.01(C). The trial court
held that H.B. 573 was passed out of order in violation of §
71.01(C)
and,
therefore,
that
Act
No.
2015-226
was
unconstitutional. The trial court declined to reach the other
arguments raised by the taxpayers. The County parties
appealed, and the class plaintiffs cross-appealed.
20
1150326; 1150327
On August 26, 2016, while these appeals were pending, the
legislature, at a Special Session, passed a proposed
constitutional amendment to add a subsection (G) to § 71.01,
Ala. Const. of 1901 (proposed amendment no. 14), as follows:
"(G) Notwithstanding any provision of this
amendment,
any
resolution
authorizing
the
consideration of a bill proposing a local law
adopted before November 8, 2016, that conformed to
the rules of either body of the Legislature at the
time it was adopted, is ratified, approved,
validated, and confirmed and the application of any
such resolution is effective from the date of
original adoption."
Act No. 2016-430, codified as § 71.01(G), Ala. Const. 1901.
The purpose of proposed amendment no. 14 was to retroactively
validate BIRs underlying local laws that were adopted before
November 8, 2016, and that conformed to the rules of either
house at the time they were adopted. Proposed amendment no.
14 was placed on the ballot for the November 8, 2016, general
election, and the people of Alabama ratified proposed
amendment no. 14 by a vote of 69%-31%.
II. Standard of Review
"In Monroe v. Harco, Inc., 762 So. 2d 828, 831
(Ala. 2000), this Court restated the long-standing
rules governing review of acts of the Legislature
under constitutional attack:
"'"In
reviewing [a
question
regarding]
the constitutionality of a statute, we
'approach
the
question
with
every
presumption and intendment in favor of its
21
1150326; 1150327
validity, and seek to sustain rather than
strike down the enactment of a coordinate
branch of the government.'" Moore v.
Mobile Infirmary Ass'n, 592 So. 2d 156, 159
(Ala. 1991) (quoting Alabama State Fed'n of
Labor v. McAdory, 246 Ala. 1, 9, 18 So. 2d
810, 815 (1944)). Moreover, "[w]here the
validity of a statute is assailed and there
are two possible interpretations, by one of
which
the
statute
would
be
unconstitutional
and by the other would be valid, the courts
should adopt the construction [that] would
uphold it." McAdory, 246 Ala. at 10, 18
So. 2d at 815. In McAdory, this Court
further stated:
"'"[I]n
passing
upon
the
constitutionality
of
a
legislative
act,
the
courts
uniformly approach the question
with
every
presumption
and
intendment
in
favor
of
its
validity, and seek to sustain
rather
than
strike down
the
enactment of a coordinate branch
of the government. All these
principles are embraced in the
simple statement that it is the
recognized duty of the court to
sustain the act unless it is
clear beyond reasonable doubt
that it is violative of the
fundamental law."
"'246 Ala. at 9, 18 So. 2d at 815 (citation
omitted). We must afford the Legislature
the highest degree of deference, and
construe its acts as constitutional if
their language so permits. Id.'"
Rice v. English, 835 So. 2d 157, 163-64 (Ala. 2002).
III. Retroactive Application of § 71.01(G)
22
1150326; 1150327
In their initial brief on appeal, the County parties
first argued that this Court should reverse the trial court's
judgment either because the issue presented a nonjusticiable
political
question
or,
alternatively, because
Act
No.
2015-226
was not unconstitutional in that the BIR that enabled the
House to consider H.B. 573 was passed in accordance with a
long-standing internal rule of the House. The taxpayers urged
this Court to decide the issue, i.e., it did not present a
nonjusticiable political question, and argued that we should
affirm the trial court's judgment because, they argued, Act
No. 2015-226 was unconstitutional in that the BIR that allowed
the House to consider H.B. 573 out of order was not passed in
accordance with the quorum requirements of § 71.01(C). After
amendment no. 14 passed in the November 8 general election,
this Court requested briefs from the parties on the issue
whether the passage of amendment no. 14 retroactively
validated Act No. 2015-226 and therefore rendered the BIR
issue moot.
The County parties argue that § 71.01(G) expressly
applies retroactively and validates the BIR underlying Act
No.
2015-226 because that BIR was passed in accordance with House
Rule 36. Therefore, the County parties argue, the basis for
23
1150326; 1150327
the trial court's judgment in this case is no longer valid and
the judgment should be reversed.
The County parties first contend that § 71.01(G) is
retroactive by its terms and by its remedial nature. "When a
new law makes clear that it is retroactive, an appellate court
must apply that law in reviewing judgments still on appeal
that were rendered before the law was enacted, and must alter
the outcome accordingly." Plaut v. Spendthrift Farm, Inc.,
514 U.S. 211, 226 (1995). The County parties note that
Section 71.01(G) expressly applies retroactively to "any
resolution authorizing the consideration of a bill proposing
a local law adopted before November 8, 2016," including the
BIR underlying Act No. 2015-226. Citing United States v.
Schooner Peggy, 5 U.S. (1 Cranch) 103 (1801), the County
parties contend that the application of a new law intended to
be retroactive to cases pending on appeal has been a sound
principle of appellate review for centuries. In Schooner
Peggy, discussing the applicability of a treaty signed during
the pendency of an appeal, Chief Justice Marshall explained:
"It is in the general true that the province of
an appellate court is only to enquire whether a
judgment when rendered was erroneous or not. But if
subsequent to the judgment and before the decision
of the appellate court, a law intervenes and
positively changes the rule which governs, the law
must be obeyed, or its obligation denied. If the
24
1150326; 1150327
law be constitutional, and of that no doubt in the
present case has been expressed, I know of no court
which can contest its obligation. ... In such a
case the court must decide according to existing
laws, and if it be necessary to set aside a
judgment, rightful when rendered, but which cannot
be affirmed but in violation of law, the judgment
must be set aside."
5 U.S. (1 Cranch) at 110. In Ex parte Luker, 25 So. 3d 1152,
1155 (Ala. 2007), this Court stated the principle as follows:
"'[T]his Court has often noted that "retrospective
application of a statute is generally not favored,
absent an express statutory provision or clear
legislative
intent
that
the
enactment
apply
retroactively as well as prospectively." This
general rule is, however, subject to an equally
well-established
exception,
namely,
that
"[r]emedial
statutes ... are not within the legal [concept] of
'retrospective
laws,'
...
and
do
operate
retroactively, in the absence of language clearly
showing a contrary intention." In other words,
"[r]emedial statutes--those which do not create,
enlarge, diminish, or destroy vested rights –- are
favored by the courts, and their retrospective
operation is not obnoxious to the spirit and policy
of the law." Remedial statutes are exemplified by
those that "'impair no contract or vested right, ...
but preserve and enforce the right and heal defects
in existing laws prescribing remedies.'" Such a
statute "may be applied on appeal, even if the
effective date of that statute occurred while the
appeal was pending, and even if the effective date
of the statute was after the judgment in the trial
court."'"
(Quoting Ex parte Bonner, 676 So. 2d 925, 927 (Ala. 1995)
(citations omitted).)
The County parties contend that § 71.01(G) is remedial in
that it "heals defects in existing laws," if any, by providing
25
1150326; 1150327
that BIRs authorizing the consideration of local laws passed
before November 8, 2016, such as the one at issue here, are
"ratified, approved, validated, and confirmed." Therefore,
the County parties argue, Act No. 2015-226 was properly passed
and "the newly ratified amendment, on its face, definitively
disposes of the issues raised by the trial court's opinion in
this case." County parties' supplemental brief, at 6.
The
County
parties
next
argue
that
retroactive
application of § 71.01(G) to this case is appropriate because
the trial court's judgment is not the Judicial Department's
final word on the issue here--this Court has not spoken.
Although future changes in the law cannot alter the outcome of
a truly final judgment, the County parties argue, there is a
difference between a final judgment for the purpose of
applying a retroactive law and a final judgment for the
purpose of being appealable. Retroactive laws, they contend,
may be applied to judgments that are pending on appeal, but
such laws cannot be applied to judgments that are final in the
sense that all appellate rights have been exhausted. In Ex
parte Jenkins, 723 So. 2d 649, 656 (Ala. 1998), this Court
explained that "'"a judicial Power" is one to render
dispositive judgments.'" (Quoting Plaut, 514 U.S. at 219
(quoting, in turn, Easterbrook, Presidential Review, 40 Case
26
1150326; 1150327
W. Res. L. Rev. 905, 926 (1990)) (emphasis omitted).) This
Court further stated in Jenkins that there are types of
legislation that infringe upon judicial power:
"Under the federal constitution, the Supreme
Court of the United States has held that three types
of legislation violate the separation-of-powers
principle by encroaching on the judicial power.
Plaut v. Spendthrift Farm, Inc., 514 U.S. 211,
218-19 (1995). First, legislation that prescribes
rules of decision for the Judiciary is, under
certain circumstances, unconstitutional. Id. at 218
(citing [United States v.] Klein, 80 U.S. (13 Wall.)
128, 20 L.Ed. 519 [(1871)]. Second, legislation
that requires the review of judicial decisions by
the other branches of government is impermissible.
Plaut, 514 U.S. at 218 (citing Hayburn's Case, 2
U.S. (2 Dall.) 408 (1792)). Third, legislation that
would change the law incorporated into a final
judgment rendered by the Judiciary violates the
separation-of-powers principle. Plaut, 514 U.S. at
218-19."
723 So. 2d at 655. The Jenkins Court then discussed the
United States Supreme Court's explanation in Plaut as to when
retroactive application of law infringes on the judicial
power:
"'It is the obligation of the last court in
the [Article III] hierarchy that rules on
the case to give effect to Congress's
latest enactment, even when that has the
effect of overturning the judgment of an
inferior court, since each court, at every
level, must "decide according to existing
laws."
...
Having
achieved
finality,
however, a judicial decision becomes the
last word of the judicial department with
regard to a particular case or controversy,
and Congress may not declare by retroactive
27
1150326; 1150327
legislation that the law applicable to that
very case was something other than what the
courts said it was.'
"Plaut, 514 U.S. at 227 (emphasis in original)
(citations omitted). Thus, the core judicial power
is the power to declare finally the rights of the
parties, in a particular case or controversy, based
on the law at the time the judgment becomes final."
Ex parte Jenkins, 723 So. 2d at 656. Here, the County parties
argue, because this case remains on appeal from the trial
court's judgment, a new law such as § 71.01(G) that is
intended to be retroactive must apply to that judgment and
have retroactive effect on this appeal.
The taxpayers argue that § 71.01(G), passed after the
trial court declared Act No. 2015-226 unconstitutional for
lack of a proper BIR, cannot be used to revive a statute
already determined to be unconstitutional.
"At this point we note that Amendment No. 375 to
the Constitution amended § 110 upon its ratification
in 1978 and changed the definition of a local law to
'a law which is not a general law or a special or
private law.' This amendment was not in effect,
however, at the time Act 689 was passed. Therefore,
the classification of the Act is to be determined
under the definitions in the quoted portion of the
original 110."
Jefferson Cty. v. Braswell, 407 So. 2d 115, 117 (Ala. 1981).
The taxpayers also argue that §§ 13 and 95, Ala. Const.
of 1901, prohibit retroactive application of § 71.01(G) to
their vested rights and the trial court's final judgment,
28
1150326; 1150327
which, they argue, are afforded protection under the Alabama
Constitution. McCullar v. Universal Underwriters Life Ins.
Co., 687 So. 2d 156, 165 (Ala. 1996) ("A cause of action has
vested if it has accrued at the time of the legislation or the
judgment. It accrues 'when a person sustains a legal injury
upon which an action can be maintained.'"); Mayo v. Rouselle
Corp., 375 So. 2d 449, 451 (Ala. 1979) (holding that the right
to bring an action can be modified, limited, or repealed as
the legislature sees fit, except where such action has already
accrued).
Section 13, Ala. Const. of 1901, guarantees "[t]hat all
courts shall be open; and that every person, for any injury
done him, in his lands, goods, person, or reputation, shall
have a remedy by due process of law; and right and justice
shall be administered without sale, denial, or delay." The
taxpayers argue that § 13 prohibits the retroactive
application of § 71.01(G) because, they say, § 13 preserves a
remedy for their cause of action, which they say as accrued
and their right vested. Alabama courts must follow the
mandate of § 13, they argue, regardless of the intent or
motives of the legislature. Lankford v. Sullivan, Long &
Hagerty, 416 So. 2d 996, 1000 (Ala. 1982) ("'Where legislation
infringes upon a right protected by § 13, however, we are
29
1150326; 1150327
dealing with a limitation on the power of the legislature. By
determining the validity of such legislation, we do not pass
judgment on its wisdom, but follow our own supreme mandate to
uphold the constitution of this state.'"(quoting Fireman's
Fund American Ins. Co. v. Coleman, 394 So. 2d 334, 353 (Ala.
1980)(Shores, J., concurring in the result))).
The taxpayers rely on United Companies Lending Corp. v.
Autrey, 723 So. 2d 617, 624 (Ala. 1998), in which this Court
stated:
"'[Section 13] of the Constitution provides
"that every person, for an injury done him, in his
lands, goods, person, or reputation, shall have a
remedy by due process of law." It will be noticed
that this provision preserves the right to a remedy
for an injury. That means that when a duty has been
breached producing a legal claim for damages, such
claimant cannot be denied the benefit of his claim
for the absence of a remedy. But this provision
does not undertake to preserve existing duties
against legislative change made before the breach
occurs.'"
(Quoting Pickett v. Matthews, 238 Ala. 542, 545, 192 So. 261,
263 (1939)(emphasis added in Autrey).) The taxpayers then
argue that § 13 prohibits taking away rights that vested
before a lawsuit is filed. In this case, they say, the County
parties sued seeking to validate Act No. 2015-226 and the new
taxes levied therein. In defense of that action, the
taxpayers state, the taxpayers argued that Act No. 2015-226
30
1150326; 1150327
was unconstitutional because of the legislature's failure to
pass a proper BIR. For purposes of § 13, the taxpayers argue,
their defense accrued and right to a remedy vested as of the
date of the enactment of Act No. 2015-226 and before the
legislature exercised its power to propose amendment no. 14;
therefore, they contend, applying § 71.01(G) retroactively
would violate their rights under § 13.
The taxpayers also argue that § 95, Ala. Const. of 1901,
preserves their existing defenses. Section 95 provides:
"There can be no law of this state impairing the
obligation of contracts by destroying or impairing
the
remedy
for
their
enforcement;
and
the
legislature shall have no power to revive any right
or remedy which may have become barred by lapse of
time, or by any statute of this state. After suit
has been commenced on any cause of action, the
legislature shall have no power to take away such
cause of action, or destroy any existing defense to
such suit."
The taxpayers, citing Jefferson County Commission v. Edwards,
49 So. 3d 685, 691 (Ala. 2010), maintain that this Court has
held that § 95 prohibits "the legislature from acting on
matters that are within the breast of the judicial system by
taking away a cause of action" after a lawsuit has been filed.
Section 95, the taxpayers argue, prohibits any legislative
encroachment upon a right asserted in a pending case. Ex
parte Alfa Fin. Corp., 762 So. 2d 850, 852 (Ala. 1999)(holding
31
1150326; 1150327
that § 95 prevented the legislature from taking away existing
claim where suit had been filed before enactment of statutory
amendment); United Cos. Lending Corp. v. Autrey, 723 So. 2d at
622 (concluding, in considering whether amended Code section
should be afforded retroactive effect to bar plaintiffs'
claims and damages, that right to recovery had vested within
the meaning of § 13 of the Constitution, and any attempt to
reduce the damages recoverable in the action would violate the
last sentence of § 95).
The County parties argue that no other constitutional
provision can bar retroactive application of § 71.01(G) to
this case. Section 71.01(G), they argue, is now itself a
provision of the Alabama Constitution; therefore, they argue,
it is entitled to the deference afforded all other
constitutional provisions, which is that it should not be read
to violate other provisions of the Alabama Constitution or
read in ways that would make the Alabama Constitution
self-contradictory. Any such reading, the County parties
contend, violates two well settled canons of construction: (1)
Laws "'"must be construed in pari materia in light of their
application to the same general subject matter. ... Our
obligation is to construe [the] provisions 'in favor of each
other to form one harmonious plan,' if it is possible to do
32
1150326; 1150327
so."'" Brandy v. City of Birmingham, 73 So. 3d 1233, 1242
(Ala. 2011) (internal citations omitted), and (2) "[w]hen
there is a conflict, or apparent conflict, between sections of
the Constitution, the more specific will prevail as against a
more general statement pertaining to the same subject matter."
Jefferson Cty. v. Braswell, 407 So. 2d 115, 119 (Ala. 1981).
The County parties insist that § 71.01(G) is the more specific
provision when compared to the other constitutional sections
argued by the taxpayers. By its very terms, they say, §
71.01(G) applies only to BIRs underlying local laws passed
under the procedure stated in § 71.01(C) before November 8,
2016. Baldwin Cty. v. Jenkins, 494 So. 2d 584, 588 (Ala.
1986)("[I]n cases of conflicting statutes on the same subject,
the latest expression of the legislature is the law.").
The County parties argue that retroactive application of
§ 71.01(G) does not violate § 13 because no one has a vested
right in the House's voting procedure on BIRs. Section
71.01(G), they argue, applies retroactively to this case
because, they say, no person has a "vested right" to sue based
on the voting procedure used in the House to pass BIRs. "[N]o
person has a vested right in a particular remedy ... or in
particular modes of procedure." Perdue v. Green, 127 So. 3d
343, 390 (Ala. 2012) (internal quotation marks omitted).
33
1150326; 1150327
Section 71.01(G) expressly applies retroactively to "any
resolution authorizing the consideration of a bill proposing
a local law adopted before November 8, 2016." The County
parties maintain that the reach of § 71.01(G) includes BIRs
underlying local acts involved in cases still pending before
the State's trial courts and on appeal, as well as BIRs that
have not been the subject of litigation. Those parties with
actual vested rights, the County parties say, would be local
governments like Jefferson County, hospital boards, and
schools that constructed courthouses, hospitals, and school
buildings
in
reliance
on
the
local
acts
that
were
retroactively validated by § 71.01(G).
The
County
parties
also
argue
that
retroactive
application of § 71.01(G) does not violate § 95 because, they
argue, the constitutional amendment is an act of the people of
Alabama, not an act of the legislature purporting to take away
a cause of action; § 95, they argue, bars legislation, not
constitutional amendments. The County parties note that this
Court held in Jefferson County Commission v. Edwards, supra,
that § 95 barred the retroactive application of a new statute
that attempted to cure an old tax statute because the new
statute took away a cause of action. "But a proposal to amend
the Constitution is not an act of legislation." Bonds v.
34
1150326; 1150327
State Dep't of Revenue, 254 Ala. 553, 554, 49 So. 2d 280, 281
(1950). Because § 95 does not apply to constitutional
amendments, the County parties argue, § 71.01(G) applies
retroactively to cure any defect in Act No. 2015-226.
The taxpayers maintain that the County parties' § 13
argument is wrong for two reasons. First, they argue, they
did not sue the County parties; the County parties sued
taxpayers and citizens of Jefferson County in a validation
proceeding, and the taxpayers defended the case based in part
on the legislature's failure to pass a constitutionally
adequate BIR before passing H.B. 573, which became Act No.
2015-226. Second, they argue, insisting that the legislature
comply with the voting requirements of § 71.01(C) of the
Alabama Constitution is not a matter of "remedy" or even a
"mode of procedure." The taxpayers maintain that the voting
requirements in § 71.01(C) were a constitutionally imposed
gate the legislature needed to unlock before it could consider
a bill without passing the basic appropriations bills. The
taxpayers contend that a constitutional guarantee cannot be
retroactively disregarded after the issue has been raised in
a lawsuit and proceeded to a final judgment in the trial
court.
35
1150326; 1150327
The taxpayers also argue that the County parties' § 95
argument is wrong for two reasons. The County parties, the
taxpayers say, contend that § 71.01(G) does not violate § 95
because (1) it is an "act of the people, not an act of the
Legislature taking away a cause of action," and, therefore,
(2) § 95 applies only to actions of the legislature resulting
in "statutes," not constitutional amendments. The taxpayers
insist that § 95 places a constitutional check upon all
"power" of the legislature, not solely upon the legislative
power to enact statutes.
The taxpayers further argue that their defenses and
judgment
are
property
rights
warranting
due-process
protection. An accrued cause of action or defense to a claim,
they say, is "constitutional" property, a vested property
right, because "the holder has a legitimate expectation that
state law will recognize the claim or defense." Shannon's
supplemental brief, at 17. Once a lawsuit is filed, the
taxpayers argue, subsequent action by the state does not
interfere with rights that might accrue in the future, but
with existing expectations and rights that have already
accrued. To the extent that § 71.01(G) could apply to this
case, the taxpayers conclude, it was enacted to eviscerate
36
1150326; 1150327
their vested rights and defenses and violates their
constitutional right to due-process protection.
Finally, the taxpayers argue that the constitutional
right to have the annual budgets passed before other bills is
a substantive, not a remedial, vested right of which citizens
can be deprived only prospectively, citing Ex parte Bonner,
676 So. 2d 925, 926 (Ala. 1995), in which this Court stated:
"'[R]emedial statutes ... are not within the legal
[concept] of "retrospective laws," ... and do
operate retroactively, in the absence of language
clearly showing a contrary intention.' Street v.
City of Anniston, 381 So. 2d 26, 29 (Ala. 1980).
... In other words, 'remedial statutes--those which
do not create, enlarge, diminish, or destroy vested
rights –- are favored by the courts, and their
retrospective operation is not obnoxious to the
spirit and policy of the law.'"
The extension of the sales and use taxes in Act No. 2015-226,
the taxpayers argue, will produce over $100 million a year for
approximately 23 years. Therefore, they argue, they have a
vested interest in the trial court's judgment declaring Act
No. 2015-226 unconstitutional.
This Court has previously held that "there is no reason
why a constitutional amendment cannot by the use of express
and clear terms validate and confirm an act of the legislature
previously enacted but invalid on account of a failure to
observe provisions of the State Constitution." Bonds, 254
37
1150326; 1150327
Ala. at 555, 49 So. 2d at 282. See also Ex parte Southern
Ry., 556 So. 2d 1082, 1090 (Ala. 1989) ("We have been cited to
Alabama cases recognizing two exceptions to the general rule
that subsequent amendments to a constitution cannot revive a
statute that is ineffective because of constitutional
deficiencies that existed when the statute was passed. The
first
exception
is
applicable
where
the
subsequent
constitutional amendment by clear and express terms validates
and confirms the statute that had been invalid on account of
its failure to comply with constitutional provisions that
existed at the time of its passage. Bonds v. State Dep't of
Revenue, 254 Ala. 553, 49 So. 2d 280 (1950)."). Because
amendment no. 14, now § 71.01(G), Ala. Const. of 1901, used
"clear and express terms" to validate and confirm the
procedure used to pass BIRs underlying local bills before
November 8, 2016, we agree with the County parties, and we
hold that § 71.01(G) can properly be applied retroactively to
cure the argued constitutional deficiency affecting Act No.
2015-226. Our holding that § 71.01(G) applies retroactively
to Act No. 2015-226 does not, however, dispose of this case.
We now must address the alternative arguments made by the
taxpayers challenging the constitutionality of Act No. 2015-
226.
38
1150326; 1150327
IV. The Taxpayers' Alternative Constitutional Challenges
The taxpayers argue that the trial court had before it
alternative grounds –- other than the non-retroactivity of §
71.01(G) –- for declaring Act No. 2015-226 invalid and that
those alternative grounds provide separate and independent
reasons aside from the BIR issue on which this Court can
affirm the trial court's judgment. We now address these
alternative grounds.
A. Section 105, Ala. Const. of 1901
Section 105 prohibits local laws that create variances
from general laws:
"No special, private, or local law, except a law
fixing the time of holding courts, shall be enacted
in any case which is provided for by a general law,
or when the relief sought can be given by any court
of this state; and the courts, and not the
legislature, shall judge as to whether the matter of
said law is provided for by a general law, and as to
whether the relief sought can be given by any court;
nor shall the legislature indirectly enact any such
special, private, or local law by the partial repeal
of a general law."
The taxpayers contend that Act No. 2015-226 is void under §
105 because, they argue, it is a local law that conflicts with
general laws.
The taxpayers first argue that § 105 voids Act No. 2015-
226 because the matter of Act No. 2015-226 is subsumed by §
40-12-4, Ala. Code 1975. "A matter is 'provided for by a
39
1150326; 1150327
general law' within the meaning of § 105 if the 'subject [of
the local act] is already subsumed by [a] general statute."
City of Homewood v. Bharat, LLC, 931 So. 2d 697, 701 (Ala.
2005)(quoting Peddycoart v. City of Birmingham, 354 So. 2d
808, 813 (Ala. 1978)). "'The subject of a local act is deemed
to be "subsumed" in a general law if the effect of the local
law is to create a variance from the provisions of the general
law.'" Bharat, 931 So. 2d at 702 (quoting Opinion of the
Justices No. 342, 630 So. 2d 444, 446 (Ala. 1994)(emphasis
added in Bharat)).
The taxpayers argue that § 40-12-4 is the only general
law that provides counties with the authority to impose sales
and use taxes for educational-funding purposes. They state
that counties have no general authority to levy, impose, or
collect privilege taxes in the nature of sales taxes without
express authority from the legislature. Jefferson Cty. v.
Johnson, 333 So. 2d 143, 145 (Ala. 1976). However, they say,
§ 40-12-4 authorizes the levy of such privilege taxes in the
nature of sales taxes but contains significant restrictions on
the counties' use of educational-funding taxes, specifically,
all the proceeds of such taxes must be used solely for
educational purposes. Under § 40-12-4(a), for example, "[a]ll
the proceeds from any tax levied pursuant to this section less
40
1150326; 1150327
the cost of collection thereof shall be used exclusively for
public school purposes, including specifically and without
limitation capital improvements and the payment of debt
service on obligations issued therefor." Similarly, the last
sentence of § 40-12-4(b) dictates that moneys distributable to
school systems operating within a county must be distributed
according to the "Foundation Program" protocol for local
boards of education within the county.
The taxpayers state that this Court has held that local
laws that attempt to fund local school systems in counties
outside the restrictions of § 40-12-4 violate § 105. In
Opinion of the Justices No. 311, 469 So. 2d 105, 107-08 (Ala.
1985), a proposed local law authorized Madison County to levy
and collect sales and use taxes in areas served by the Madison
County School System, the proceeds of which were to be
distributed solely to that school system. This Court
unanimously held that the proposed local law violated § 105:
"Both § 40-12-4 and H.B. 704 authorize the
governing body of Madison County to levy sales or
use taxes in order to generate revenue for the
Madison County School System. They differ only in
that § 40-12-4 authorizes a county-wide tax to
generate revenue for all school systems within the
county (including the Madison County School System),
while H.B. 704 authorizes a tax only in those areas
of the county served by the Madison County School
System, with the revenues generated to be given only
to the Madison County School System. The subject
41
1150326; 1150327
matter of H.B. 704 is already subsumed by § 40-12-4
and therefore § 105 prohibits its enactment."
The taxpayers argue that Act No. 2015-226 is a more overt
violation of § 105 than the proposed local law in Opinion of
the Justices No. 311, in which all the money was at least
being used for educational purposes consistent with the
requirements of § 40-12-4. However, the taxpayers argue,
because the restrictions in § 40-12-4 were not being followed,
the proposed law was invalid because the local act created a
variance from § 40-12-4. In this case, they contend, the
sales and use taxes authorized by Act No. 2015-226 contravene
§ 40-12-4 in at least two distinct ways.
First, the taxpayers say, $42.4 million of the annual
distributions of the sales and use taxes authorized by Act No.
2015-226 are to be paid to noneducational recipients, in
direct
contravention
of
the
educational-exclusivity
requirements of § 40-12-4. Second, they say, even the money
earmarked for educational purposes is not to be distributed
according to the "Foundation Program" as required by §
40-12-4(b)
but,
rather,
according
to
a
freestanding
methodology contained in § 10 of Act No. 2015-226.
The taxpayers maintain that a direct conflict is not
required for a local law to violate § 105. If the local law
42
1150326; 1150327
addresses a "subject matter" already addressed in the general
law, the taxpayers argue, that local law is "subsumed" by the
general law and is void under § 105. Opinion of the Justices
No. 311, 469 So. 2d at 107-08. Here, the taxpayers say, the
§ 105 problem is all the more obvious because there is direct
conflict between the local law and the general law, conflict
that is even more striking in this case, they argue, because
the new warrants are to replace the existing school warrants.
In fact, the taxpayers state, Act No. 2015-226 provides that
the tax authorized therein cannot be imposed unless the
existing tax imposed under § 40-12-4 is canceled. The very
purpose of Act No. 2015-226 then, the taxpayers argue, is to
create an exception to the exclusivity provisions of § 40-12-4
with respect to the education-sales tax currently in place.
The taxpayers next argue that the County parties have not
demonstrated any local need. The County parties, citing
Miller v. Marshall County Board of Education, 652 So. 2d 759,
761-62 (Ala. 1995), argued that Act No. 2015-226 could be
sustained based on the "demonstrated local need" exception to
§ 105. In Miller, this Court sustained a local act that
authorized Marshall County to impose a sales tax in portions
of the county not served by the municipal systems, with the
proceeds to be provided solely to the county system. The
43
1150326; 1150327
defenders of the local act developed an extensive evidentiary
record demonstrating that over time, the three municipal
school systems in Marshall County had siphoned off large
numbers of students, leaving the Marshall County school system
"having to operate a primarily rural school system with a
greatly diminished tax base." Miller, 652 So. 2d at 761. In
addition, a Public Affairs Research Council of Alabama report
noted that, in the relevant time frame, the Marshall County
School System was last in Alabama in local per child
expenditures. Under those circumstances, the Court held that
Marshall County "had a demonstrated local need that was not
provided for by the general law." 652 So. 2d at 762. Miller
does not apply to this case, the taxpayers argue, because the
County parties did not demonstrate in the record a local need.
The taxpayers argue that Miller is distinguishable on its
facts. Here, they say, the County parties offered no evidence
of a local need that was not provided for by general law. The
County parties' current educational-funding needs are, in
fact, being met, the taxpayers say, because the existing
school warrants are being paid through the proceeds of the
education-sales tax currently in place. Moreover, the
taxpayers argue, the County parties have pointed to no record
evidence concerning any alleged need to refinance the
existing
44
1150326; 1150327
school warrants or that such refinancing is economically
desirable.
Finally, the taxpayers argue that, even if the County
parties had demonstrated a local need, § 105 has been
violated.
The
taxpayers contend
that
the
"demonstrated-local-
need" line of cases is unmoored from § 105 and, they argue,
should be overruled. The taxpayers say that this Court's last
decision addressing the "demonstrated-local-need" exception
was 16 years ago in Walker County v. Allen, 775 So. 2d 808,
812 (Ala. 2000), in which this Court made it clear that a
local-need argument would not prevail where the use of such an
argument is at total variance from the intent of the general
law. The Court stated:
"Walker County contends[] Act No. 97-903 was enacted
in order to finance the construction and operation
of a mandated county jail and to fund recurring
general operations. We note however, that Act No.
97-903 provides that the proceeds from the tax or
fee levied shall be deposited into the Walker County
general fund. Unlike the local act in Miller, which
provided that the tax was levied for a specific
purpose (the support of Marshall County schools in
areas not served by city school systems), Act No.
97-903 does not specify what the tax is to be used
for. In addition, both the general law and the
local law involved in Miller levied taxes to support
school systems. In the present case, the local law
permitting the levy of license taxes 'on engaging in
or carrying on any business' has no relation to the
construction of a new county jail. If local need
were the sole criterion for determining the
constitutionality of a local law, then probably no
45
1150326; 1150327
local act imposing a tax could ever be successfully
challenged, because every county in the State could
probably show it has a need for more funds."
775 So. 2d at 812-13.
The taxpayers maintain that there is a fundamental
problem of constitutional misinterpretation with Miller's
"demonstrated local need" exception to § 105: They allege that
it is grounded in no constitutional language whatsoever.
Decisions on constitutional law must be grounded in the
constitutional text itself, and, the taxpayers argue, there is
no textual basis within § 105 or any other provision of the
Alabama Constitution that recognizes a "demonstrated-local-
need" exception to a variance from the general law created by
a local law. The taxpayers insist that § 105 establishes a
bright-line rule: Local laws cannot create exceptions from
general laws. They argue that Miller and the "demonstrated-
local-need" exception are unsound and lack any basis in the
context of § 105, and they ask this Court to overrule Miller
and the demonstrated-local-need line of cases.
In response, the County parties first argue that Act No.
2015-226 is not subsumed by § 40-12-4 and does not violate §
105 because it is a nonexclusive act that meets specific local
needs. The County parties state that the taxpayers argued in
the trial court that Act No. 2015-226 violated § 105 on two
46
1150326; 1150327
grounds. First, the County parties say, the taxpayers argued
that § 40-12-4, a general law, is the exclusive authority
under which a county may levy sales and use taxes. Second,
the County parties say, the taxpayers argued that Act No.
2015-226 is subsumed by § 40-12-4.
The County parties argue that § 40-12-4 is a general law
authorizing counties to levy sales and use taxes for the
support of all county public-school systems but that it is not
the exclusive authority for such taxes. The County parties
contend that § 40-12-4(a) states that the taxes authorized
therein "shall be in addition to any and all other county
taxes heretofore or hereafter authorized by law in such
county." The County parties argue that that language does not
reflect an exclusive authorization, but requires the County to
terminate the levy of the 2004 education-sales tax upon
initial levy of the new sales and use taxes, and does not
prohibit the County from levying taxes under § 40-12-4 in the
future.
Second, the County parties argue, this Court has held
that "local legislation reflecting responses to local needs
may be enacted. It is only when those local needs already
have been responded to by general legislation that § 105 of
our state Constitution prohibits special treatment by local
47
1150326; 1150327
law." Peddycoart, 354 So. 2d at 815. Moreover, the County
parties state, a court looks to the goal of a local law, and
not its generic subject matter, when determining whether § 105
has been violated. Thus, where a local act "represents the
Legislature's response to demonstrated local needs of
Jefferson County which had not previously been addressed by
the general law, [the Court will] find no constitutional
infirmity in the Act." State Bd. of Health v. Greater
Birmingham Ass'n of Home Builders, Inc., 384 So. 2d 1058, 1062
(Ala. 1980). In this case, the County parties argue, Act No.
2015-226 provides for the levy of sales and use taxes to
support educational and noneducational purposes. Section
40-12-4 does not authorize a county to levy sales and use
taxes for general-fund purposes or any of the other
noneducational purposes provided for in Act No. 2015-226.
Therefore, they argue, Act No. 2015-226 is not subsumed by §
40-12-4. Furthermore, the County parties state, the
legislature made findings in §§ 2(c) and (d) of Act No.
2015-226 describing the demonstrated local needs of Jefferson
County, which clearly cannot be addressed by a tax levied
under § 40-12-4 because, they argue, § 40-12-4 provides no
authority for the County to levy taxes for noneducational
purposes. If the taxpayers believed those findings were
48
1150326; 1150327
erroneous, the County parties argue, they could have presented
evidence to the contrary in the trial court, but they did not.
The County parties argue that Act No. 2015-226 does not
violate § 105 because it represents the legislature's response
to demonstrated local needs of Jefferson County that are not
provided for by general law.
We agree with the County parties that Act No. 2015-226 is
not subsumed by § 40-12-4 and that it does not violate § 105.
Although the taxpayers argue that the County parties did not
demonstrate local need, the County parties pointed out that
Act No. 2015-226 was supported by legislative findings of
special local needs, both educational and noneducational,
which cannot be addressed by § 40-12-4, findings that were
made before Act No. 2015-226 was enacted. We further decline
to
overrule
either
Miller
or
the
demonstrated-local-needs line
of cases.
B. Section 104, Ala. Const. of 1901
Section 104 states, in pertinent part:
"The legislature shall not pass a special,
private, or local law in any of the following cases:
"....
"(15) Regulating either the assessment or
collection of taxes, except in connection with the
readjustment, renewal, or extension of existing
municipal
indebtedness
created
prior
to
the
49
1150326; 1150327
ratification of the Constitution of eighteen hundred
and seventy-five;
"....
"(17) Authorizing any county, city, town,
village, district, or other political subdivision of
a county, to issue bonds or other securities unless
the issuance of said bonds or other securities shall
have been authorized before the enactment of such
local or special law, by a vote of the duly
qualified electors of such county, township, city,
town,
village,
district,
or
other
political
subdivision of a county, at an election held for
such purpose, in the manner that may be prescribed
by law; provided, the legislature may, without such
election, pass special laws to refund bonds issued
before the date of the ratification of this
Constitution;
"....
"(19)
Creating,
extending,
or
impairing
any
lien
...."
The taxpayers contend that Act No. 2015-226 is void under §§
104(15), (17), and (19) because, they argue, it is a local act
touching upon subjects forbidden by those provisions.
The taxpayers first argue that Act No. 2015-266 violates
§ 104(15). They state that § 4(e) of Act No. 2015-226
provides that if either or both of the State sales-tax
statutes or State use-tax statutes are repealed, Jefferson
County is nonetheless authorized to continue to levy,
administer, collect, and enforce the sales and use taxes
authorized by Act No. 2015-226. The taxpayers argue the
50
1150326; 1150327
sections of Act No. 2015-226 regulating "collection" violate
the prohibition in § 104(15) against a local law "regulating
either the assessment or collection of taxes." The taxpayers
contend that this Court has recognized that the purpose of §
104(15) is to provide uniform laws for the assessment and
collection of taxes. The taxpayers contend that the sales tax
authorized to be levied under Act No. 2015-226 is like the
type of privilege taxes in § 40-12-4 that are both assessed
and collected. The taxpayers argue that the County parties'
argument that § 104(15) does not apply to the levy,
assessment, and collection of the sales tax involved in this
case completely disregards the language of § 40-12-4 stating
that sales taxes are both assessed and collected just like
property taxes. In this case, the taxpayers contend, the
"manifest injustice" of not assessing property taxes in a
single property-tax bill is equally applicable to "point of
sale" retail sales taxes where a different set of local-law
collection regulations for sales taxes would be unworkable.
The taxpayers maintain that local laws creating a non-uniform
assessment and collection system for a portion of the sales
tax are the type of taxes that violate the requirement in §
104(15) for uniform general law.
51
1150326; 1150327
The taxpayers next argue that Act No. 2015-266 violates
§ 104(17). They argue that Act No. 2015-226 is a local law
that purports to empower Jefferson County to issue new
refunding warrants, which were subsequently authorized in the
principal amount of $595 million, even though there has been
no County election regarding the matter. Warrants, the
taxpayers say, are a form of indebtedness covered by §
104(17). As this Court stated in Newton v. City of
Tuscaloosa, 251 Ala. 209, 216, 36 So. 2d 487, 492 (1948):
"The term 'bonds or other securities' [in §
104(17)] of course comprehends warrants, too, and
the intention is plain that the purpose of this
constitutional proscription was to inhibit such
local legislation as is intended by the act now
under consideration without the matter first being
authorized by a majority vote of the duly qualified
electors of the county."
Because there was no election regarding the issuance of new
warrants before the enactment of Act No. 2015-226, the
taxpayers argue, it violates § 104(17).
The taxpayers also argue that the purpose of § 104(17) is
to prohibit local-law statutes authorizing refunding warrants
because, they say, the general law in § 11-28-4, Ala. Code
1975, subsumes the field. The taxpayers contend that Act No.
2015-226 provides that there can be no tax levy without a
prior or simultaneous issuance of refunding warrants to
52
1150326; 1150327
refinance the existing warrants, but, they say, a local-law
authorization to issue debt is prohibited by § 104(17). If
Jefferson County were relying on general law as its sole
authority to issue the refunding warrants, the taxpayers say,
no detailed language would be necessary defining, discussing
the terms and conditions of, and mandating how proceeds of
refunding warrants would be used to defease the existing
warrants.
Finally, the taxpayers argue that Act No. 2015-266
violates § 104(19). They argue that Act No. 2015-226 imposes
a lien in connection with the authorized taxes. Section 7 of
Act No. 2015-226 states that all taxes, interest, and
penalties "shall constitute and be secured by a lien upon the
property of any person from whom the tax or taxes are due or
that is required to collect the tax or taxes." The taxpayers
argue that Act No. 2015-226 is a "plain English violation" of
§ 104(19), which prohibits a local law "creating, extending or
impairing any lien." Under § 104(19), the creation of a lien
must be a general law, and, the taxpayers argue, it is
impossible to say the language "creating a lien" is not
violated by the clear language of Act No. 2015-226.
The County parties argue that Act No. 2015-226 does not
violate any provisions of § 104. They first contend that §
53
1150326; 1150327
104(15) bars local laws that impose property taxes, but that
Act No. 2015-226 authorizes sales and use/privilege taxes.
The County parties maintain that, although on its face §
104(15) might appear to broadly cover all local taxation, this
Court has long held that § 104(15) relates only to property
taxes, not to privilege taxes like the sales and use taxes
authorized in Act No. 2015-226. See Bedingfield v. Jefferson
Cty., 527 So. 2d 1270, 1274 (Ala. 1988).
The County parties next contend that, although § 104(17)
prohibits local laws "[a]uthorizing any county, city, town,
village, district, or other political subdivision of a
county,
to issue bonds or other securities," Act No. 2015-226 does not
authorize the County to issue any debt. Instead, the County
parties argue, Act No. 2015-226 authorizes the County, upon
compliance with certain conditions, to levy the sales and use
taxes and to pledge the proceeds thereof as security for
obligations issued under other provisions of Alabama law to
refinance the outstanding school warrants.
Finally, the County parties argue that § 104(19) bars
local laws that establish non-tax liens. The County parties
state that Act No. 2015-226 authorizes only a tax lien. The
County parties argue, however, that numerous local acts have
authorized counties to levy sales and use taxes that expressly
54
1150326; 1150327
provide for a lien to secure the collection of such taxes
because this Court has held that § 104 does not prohibit the
legislature from making local sales and use tax laws complete
by providing for the collection of such taxes in the local
law, and because a lien to secure the collection of county
sales and use taxes is either authorized by or created under
general law by §§ 11-3-11.2 and -11.3, Ala. Code 1975. The
County parties argue that § 104 does not prohibit the levy or
authorization to levy sales and use taxes by local act, nor
does it prohibit the legislature from including provisions for
the collection of such taxes. If a local act is to levy a
tax, the County parties argue, the governmental entity must be
able to collect the tax, or the purpose of the act is
frustrated.
The County parties contend that this Court has long held
that "[e]ach section of the Constitution must necessarily be
considered in pari materia with all other sections."
Jefferson Cty. v. Braswell, 407 So. 2d 115, 119 (Ala. 1981).
The County parties maintain that this Court's holding in
Standard Oil Co. v. Limestone County, 220 Ala. 231, 124 So.
523 (1929), that the legislature has essentially unabridged
power to provide for local levy of privilege taxes, clearly
indicates that § 104 was not intended to hinder the
55
1150326; 1150327
legislature's authority to provide for the levy and
collection
of privilege taxes by local law. Moreover, the County parties
argue, the legislature has provided by general law broad
powers to counties with regard to the administration and
collection of sales and use taxes, powers that clearly include
the authority to impose tax liens to enforce the collection of
taxes levied. Ignoring those provisions of general law, the
County parties argue, would retroactively invalidate numerous
local acts.
Section 11-3-11.2(b) provides:
"Any county commission which elects to administer
and collect, or contract for the collection of, any
local sales and use taxes or other local taxes,
shall have the same rights, remedies, power and
authority, including the right to adopt and
implement the same procedures, as would be available
to the Department of Revenue if the tax or taxes
were being administered, enforced, and collected by
the Department of Revenue."
In
describing these powers and limitations, the County parties
argue, § 11-3-11.3(a) provides:
"Any county ... tax levy administered and collected
by the Department of Revenue ... shall parallel the
corresponding state tax levy, except for the rate of
tax, and shall be subject to all ... regulations ...
as applicable to the corresponding state tax, except
where otherwise provided in this section, including
provisions for the enforcement and collection of
taxes."
56
1150326; 1150327
By the express terms of § 11-3-11.3(a), the County parties
argue, the provisions for the enforcement and collection of
the State sales and use taxes must be incorporated into the
county tax levy in order for the Department of Revenue to be
authorized to administer and collect the taxes. Because, they
say, § 11-3-11.2(b) provides that the County "shall" have the
same authority with regard to enforcement and collection as
would the Department of Revenue, the provisions for the
enforcement and collection of the State sales and use taxes
must be incorporated into Act No. 2015-226. Those
requirements, the County parties argue, are part of the
general laws of the State.
Sections 40-1-2 and 40-29-20, Ala. Code 1975, provide
that there shall be a lien to secure the payment of certain
State taxes on all property of a person liable for such taxes.
Under § 11-3-11.3(a), given that such a lien provision is
applicable to the enforcement and collection of State sales
and use taxes, such a provision must also apply to the levy of
a local tax if the tax is to be eligible for collection by the
Department of Revenue. For a county commission or any other
administrator of the local tax to have the same powers as the
Department of Revenue, it follows that a parallel provision
establishing a lien must be incorporated into the levy of the
57
1150326; 1150327
tax, regardless of who administers it. Therefore, the County
parties conclude, the provision in Act No. 2015-226 providing
for the establishment of a lien is either declarative of
general law applicable to the County or is required by general
law to be expressly incorporated into the Act. In either
case, the County parties conclude, Act No. 2015-226 does not
violate § 104(19).
After reviewing the various detailed provisions of Act
No. 2015-226, we see no merit to the taxpayers' arguments that
any of the provisions of § 104 render Act No. 2015-226
unconstitutional.
C. §§ 45-37-162.02 and .03, Ala. Code 1975
(Local Laws, Jefferson County)
The taxpayers argue that Act No. 2015-226 and the
County's implementing resolutions violate §§ 45-37-162.02 and
.03, Ala. Code 1975 (Local Laws, Jefferson County), which
require that before the County issues new debt, it must
provide notice concerning the terms of the debt and hold a
public hearing. The taxpayers state that the County parties'
answer to this argument is that, because the County has not
yet entered into any "binding agreement" to issue debt, the
time for notice or a hearing has not yet come. The problem
with the County parties' position, the taxpayers argue, is
58
1150326; 1150327
that a judgment in a validation proceeding under § 6-6-750 et
seq., Ala. Code 1975, forecloses any right of a taxpayer to
contest any aspect of the proposed indebtedness.
The County parties indeed contend that they have not
failed to hold the hearing provided for in § 45-37-162.03
because, they argue, no such hearing is required to be held at
this time. The County parties state that the taxpayers fail
to note that the hearing is required to be held 3 to 10 days
before entering into a "binding agreement to issue debt." The
term "binding agreement," the County parties state, clearly
contemplates an agreement or contract with a purchaser to whom
the debt will be issued. This concept, they state, includes
contracts or agreements such as a warrant purchase agreement
between the County and an underwriter, a loan agreement with
a commercial bank buying the debt, or an implicit contract
arising from a notice of sale distributed by the County to
potential purchasers of debt at a public bid. The County
parties state that Jefferson County has not entered into any
such agreement; thus, they argue, this requirement has not
been violated. The notice requirement in § 45-37-162.03 ties
to the public hearing; therefore, the County parties argue,
that statute has not been violated either. The County parties
59
1150326; 1150327
state that they are well aware of these requirements and will
satisfy them at the appropriate time.
We see no merit to the taxpayers' argument that the
notice and hearing requirements in §§ 45-37-162.02 and .03
have any effect upon the constitutionality of Act No. 2015-
226.
V. The Cross-Appeal
The County parties filed a motion to dismiss the
cross-appeal because, they argued, the class plaintiffs were
not aggrieved by the judgment on which the taxpayers prevailed
–- the trial court's denial of validation. Alcazar Shrine
Temple v. Montgomery Cty. Sheriff's Dep't, 868 So. 2d 1093,
1094 (Ala. 2003) ("Only a party prejudiced or aggrieved by a
judgment can appeal."). The County parties pointed out that,
as appellees, the class plaintiffs could, in their appellate
brief, argue that this Court should affirm the trial court's
judgment for any reason without the necessity of filing a
cross-appeal. In Municipal Workers Compensation Fund, Inc. v.
Morgan Keegan & Co., 190 So. 3d 895, 908 (Ala. 2015), this
Court stated:
"'"[A]n appellee, though he files no
cross-appeal or cross-petition, may offer
in support of his judgment any argument
that is supported by the record, whether it
60
1150326; 1150327
was ignored by the court below or flatly
rejected. ..."
"'....'
"... Here, MAM and Morgan Keegan prevailed in
the trial court and do not seek to have an
'alteration of the judgment to enlarge [their]
rights.' [McMillan, Ltd. v. Warrior Drilling &
Eng'g Co., 512 So. 2d 14, 25 (Ala. 1986)]. They
simply argue for affirmance of the trial court's
order on an alternative ground that was presented to
the trial court but that was not relied upon by the
trial court. Accordingly, MAM and Morgan Keegan
were not required to file a cross-appeal in this
case in order to challenge the denial of their
motion to strike the Fund's evidentiary materials."
(Quoting 9 J. Moore and B. Ward, Moore's Federal Practice ¶
204.11[2] (2d ed. 1985).) We agree with the County parties
that the cross-appeal is due to be dismissed.
VI. Conclusion
We conclude that by its express terms § 71.01(G) applies
retroactively to this action. We further find no merit in the
alternative grounds on which the taxpayers argue that Act No.
2015-226 is unconstitutional. We therefore reverse the trial
court's judgment declaring Act No. 2015-226 unconstitutional
on the basis that the proper quorum was not present pursuant
to § 71.01(C) when the BIR underlying H.B. 573 was enacted.
1150326 -- REVERSED.
1150327 -- APPEAL DISMISSED.
Stuart, Bolin, Main, and Wise, JJ., concur.
Shaw, J., concurs in the result.
61 | March 17, 2017 |
de4214e7-960e-4bb4-a92b-17c5bbc94ef0 | Strickland v. State | 114 So. 2d 407 | N/A | Alabama | Alabama Supreme Court | 114 So. 2d 407 (1959)
Madison STRICKLAND, alias, etc.
v.
STATE of Alabama.
5 Div. 712.
Supreme Court of Alabama.
August 13, 1959.
Rehearing Denied September 17, 1959.
*408 Walker & Walker, Opelika, and R. C. Wallace, LaFayette, for appellant.
MacDonald Gallion, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.
MERRILL, Justice.
Appellant was convicted of murder in the first degree and was sentenced to life imprisonment in the penitentiary. The deceased, Charles Gordon Crenshaw, was fourteen years of age and the evidence is undisputed that he had no altercation with appellant when he was killed and was only trying to lift his mother, who had fainted and had been shot by appellant. A motion for a new trial was overruled.
The trial consumed three days and on the morning of the third day, appellant moved for a mistrial on the ground that the jury had been taken out of Chambers County both the preceding nights and lodged at a hotel at Opelika in adjoining Lee County. After the motion and a stipulation that the ground of the motion was true, the following occurred:
Appellant argues that this amounted to a separation of the jury, and a separation being shown, the burden is on the State to affirmatively establish that the separated juror or jurors were subjected to no influence or contacts that might have influenced their verdict. But no separation was shown, either in travel to or from the hotel or at any time while the jury was absent from the courthouse in Chambers County. We do not think the taking of the jury by the court appointed bailiff to suitable accommodations in Lee County amounted to a technical separation. The case of Hannah v. State, 212 Ga. 313, 92 S.E.2d 89, 93, can be distinguished in at least two particulars: there, the jury was actually and physically separated during the night, which was spent at a motel in another county, while here, there was no such evidence; there, it did "not appear that the jury was given any instructions by the court not to consider the case while they were out of the county, and until they had returned to the courtroom," while here, the trial court gave the jury explicit directions not to talk about the case among themselves or to anyone else when court recessed each of the two nights in question. The motion for a mistrial was properly overruled.
Appellant earnestly insists that the court erred in permitting the solicitor to cross-examine his own witnesses, three brothers, Byron, Thomas and Bobby Crenshaw, all of whom were present at the time their brother, Charles Gordon Crenshaw was killed.
The tendencies of the evidence are that appellant, although a married man and father of a child, had been going with Myrtis Crenshaw Doler for two and a half years and on the night of August 30, 1958, he was looking for her. He went to her mother's home around 9:00 P.M. inquiring for her but was told she had gone to Atlanta, Georgia. He left with Thomas Crenshaw, Myrtis' brother, and they went to an aunt's house looking for Myrtis but she was not there. Then he and Thomas parked near the aunt's house and waited. Around midnight, the Crenshaw car passed. Bobby Crenshaw was driving, his sister Myrtis was to his right and to her right was their mother, Catherine Crenshaw. Three Crenshaw brothers were sitting on the rear seat, Byron, a cripple, sat behind Bobby, Charles, the deceased, sat in the middle, and James, a blind brother, sat on the right. Myrtis' two small children were also in the back.
When the Crenshaw car passed, appellant, with Thomas in his automobile, turned around and sought to overtake the Crenshaw car. Each passed the other two or three times and finally appellant's car blocked the road to the extent that the Crenshaw car could not pass. Appellant got out of his car and came back to the Crenshaw car and told Myrtis to get out of the car because he wanted to talk with her. From that point on, the testimony was in sharp conflict, but shortly thereafter, Catherine was pushed, pulled or fell from the car and she fainted. Charles was down on his knees trying to help his mother, who was on the ground. Appellant began firing his pistol, shooting Catherine twice in the back, shooting Charles fatally, and Myrtis was shot more than once. Appellant left in his car and later surrendered to the Sheriff of Chambers County. The dead and wounded Crenshaws were taken to a hospital at Roanoke in Randolph County.
Byron, Thomas and Bobby Crenshaw were called as witnesses for the State in *410 that order. Each had previously been called before the circuit solicitor and made a sworn statement as provided for by Act No. 818, Acts of Alabama 1951, p. 1451, Pocket Part, Tit. 13, § 229(2). They had made the same statement to the grand jury. But at the trial, they testified that some strange man they did not know did the shooting and ran away and that they did not see appellant shoot anyone. They also swore that they had not told the truth in their statements to the solicitor and to the grand jury. The solicitor pleaded surprise and the court then allowed him to lead and cross-examine the three witnesses as to what they had previously told the solicitor or the grand jury. It is this action of which appellant complains. Appellant states in brief that "at no time did the solicitor claim surprise at any part of the testimony of Thomas Crenshaw." However, the record discloses that on his direct examination the solicitor stated, "If the court please, I am pleading surprise on him, too."
It is not necessary to discuss in detail the objections raised by appellant to the action of the court in permitting the State to cross-examine these three witnesses called by the solicitor. They were taken into custody on the afternoon of the first day of the trial, and they asked to be recalled as witnesses. They were recalled the second day and they then testified that they had not told the truth on the stand the day before.
The effect of their testimony was that when appellant came up to the Crenshaw car, he ordered Myrtis to get out and when she did not, he pulled her out and, in so doing, Mrs. Catherine Crenshaw was pulled out and fell on the ground in a fainting condition; that the deceased was trying to help his mother while appellant and Myrtis were arguing; that appellant pulled his pistol and started shooting, and that there was no strange or unknown man present with a gun. They also testified that they had received $1,275 for a release of their civil claims and that except for an attorney's fee of $25, the five heirs of deceased received $250 each. Two of the brothers also testified that Owen Strickland, a brother of appellant, gave them $50 to sign an affidavit to the same effect as their testimony on the first day of the trial which they repudiated on the second day. In view of these circumstances, the jury had both versions of their testimony and could decide which, if either, was to be believed. Each witness was cross-examined as to each version and the action of the court with regard to these witnesses properly served the interests of justice.
Appellant contends that the court erred in permitting Sheriff Abney to testify to a statement by defendant that he had had to shoot some of the Crenshaws, when the corpus delicti had not then been proved. Assuming, without deciding, that this was error, it was cured by the subsequent testimony of defendant that someone had hit his hand and his pistol had fired and that he had shot some of the Crenshaws. Hardie v. State, 260 Ala. 75, 68 So. 2d 35; Dyer v. State, 241 Ala. 679, 4 So. 2d 311; 7 Ala. Dig. Criminal Law Moreover, any possible error was cured by the testimony of subsequent witnesses, including the defendant, proving the corpus delicti. Cooley v. State, 233 Ala. 407, 171 So. 725; Phillips v. State, 248 Ala. 510, 28 So. 2d 542.
There also was no error in failing to exclude Sheriff Abney's testimony as to the puddles of blood, the bullet and cartridge hulls he found at the place of the shooting because he had been told by Bobby Crenshaw where the shooting took place. No citation of authority is necessary to support the ruling of the trial court. It is obvious that persons not present on the scene must be directed to it before they can testify as to the physical facts. This also applies to the ruling on the testimony given by Deputy Herman Williams.
Appellant argues that his motion for a mistrial should have been granted because State's witness, Cranford Cox, testified as to something Thomas Crenshaw *411 told him after the shooting. The questions and answers, omitting the objections and rulings, read:
That was as far as the witness got. The court sustained appellant's objection and instructed the jury not to consider the statement. As can be seen, the statement was not completed and no substantial right of appellant was injuriously affected.
It is next argued that the admission into evidence of the release of civil liability signed by Bobby Crenshaw, as administrator of the estate of Gordon Crenshaw, acknowledging the receipt of $1,275 from Madison Strickland, and ratified by the other Crenshaws, was error. When introduced, one of appellant's counsel stated there was no objectionthe other did object. Assuming, without conceding, that the court erred, the error was cured under the rule that erroneous admission of evidence is not ground for reversal if the facts testified to were subsequently proved by similar evidence produced by defendant. Hamlett v. State, 19 Ala.App. 218, 96 So. 371; 7 Ala. Dig. Criminal Law Later in the trial, appellant introduced a duplicate release, which was admitted into evidence, with the following statement:
Moreover, in view of the peculiar circumstances of this case, this testimony was admissible as affecting the credibility of the witnesses. The Crenshaws were testifying that their previous sworn testimony was false and it was relevant to show financial inducement in the form of payment of damages where neither a claim nor a suit had been filed. The situation in Helms v. State, 35 Ala.App. 187, 45 So. 2d 170, was vastly different than the one here.
Another alleged error is concerned with the testimony of Sheriff Gunn of Randolph County, a witness for the State. The witness Gunn testified on cross-examination that the reputation of Bobby Crenshaw for truth and veracity was bad and that he would not believe the witness Bobby Crenshaw on oath in a court of justice. On redirect, the following occurred:
Not only does this answer not make sense, but no prejudice resulted to appellant because the witness had already testified that he would not believe Bobby Crenshaw on oath.
It is next urged that the cross-examination of appellant was conducted in such *412 a manner as to constitute reversible error. The questions complained of are numbered:
"(1) And you were the cock of the walk down there in that neighborhood, wasn't you?" Objection to this question was sustained.
"(2) You were the whip boy in that community, wasn't you?" (No answer).
"(3) And you couldn't stand anybody refusing you, could you?" (No answer).
"(4) You don't allow people in your community down there to refuse you, do you?" (No answer to the question).
"(5) And you were the satchel boy in that neighborhood down there, too, wasn't you?" (Objection sustained).
"(6) Mr. Strickland, you coudn't stand for any woman to refuse you, could you?" (No answer).
"(7) And Myrtis Crenshaw refused you there at that time, didn't she?"
Answer: "Myrtis Crenshaw has never refused to go anywhere with me."
We consider most of these questions to be nonsensical forensics on the part of the solicitor. Neither the court nor counsel for the defense knew what "whip boy" or "satchel boy" meant. Presumably, there was no local connotation to the expressions because the trial court and one of appellant's attorneys reside in Chambers County. In any event, the rule is that improper questions not answered are harmless. Coats v. State, 253 Ala. 290, 45 So. 2d 35; Wimberly v. State, 204 Ala. 629, 86 So. 900.
Appellant argues that the court erred in refusing to give twelve requested written charges. These charges are not subject to our review. The reason is stated in Turner v. State, 266 Ala. 250, 96 So. 2d 303, 304:
The motion for a new trial included many of the questions raised on this appeal. The evidence sustained the verdict of the jury and the motion for a new trial was properly overruled.
The judgment is affirmed.
Affirmed.
LIVINGSTON, C. J., and LAWSON and STAKELY, JJ., concur. | August 13, 1959 |
eac39c75-ef77-4d27-8db8-35f3663a893d | Duff v. State | 111 So. 2d 627 | N/A | Alabama | Alabama Supreme Court | 111 So. 2d 627 (1959)
Jewel Pearl DUFF
v.
STATE.
6 Div. 375.
Supreme Court of Alabama.
March 26, 1959.
Rehearing Denied May 14, 1959.
DeGraffenried, deGraffenried & deGraffenried, Tuscaloosa, for petitioner.
John Patterson, Atty. Gen., and Jas. W. Webb, Asst. Atty. Gen., opposed.
STAKELY, Justice.
Petition of Jewel Pearl Duff for certiorari to the Court of Appeals to review and revise the judgment and decision of that Court in Duff v. State, 111 So. 2d 621.
Writ denied.
LIVINGSTON, C. J., and LAWSON and MERRILL, JJ., concur. | March 26, 1959 |
466119bb-17fd-4d27-b875-6f8a0f09c9c3 | BROWNELL-O'HEAR PONTIAC COMPANY v. Taylor | 112 So. 2d 463 | N/A | Alabama | Alabama Supreme Court | 112 So. 2d 463 (1959)
BROWNELL-O'HEAR PONTIAC COMPANY, Inc.,
v.
Lewell TAYLOR, pro aml.
6 Div. 266.
Supreme Court of Alabama.
May 21, 1959.
*464 London, Yancey, Clark & Allen, Geo. W. Yancey and Jas. E. Clark, Birmingham, for appellant.
Hal W. Howard and D. G. Ewing, Birmingham, for appellee.
STAKELY, Justice.
This is a suit instituted by Lewell Taylor, a minor who sues by his next friend, Leofice Taylor, against Brownell-O'Hear Pontiac Company, Inc., Ralph W. Ritchie, W. L. Montgomery and Crawford Johnson & Company, Inc., as defendants, for damages alleged by the plaintiff to have been suffered by him in an automobile accident on October 12, 1952. It is alleged that the plaintiff at the time of the accident was a minor under the age of seven years and that on that date he was injured as a proximate consequence of the negligence of the defendants in the operation and control of a motor vehicle at a certain point on Second Avenue, North, between Seventh and Eighth Streets in the City of Birmingham, Alabama.
When the case came on for trial all the defendants were stricken except Brownell-O'Hear Pontiac Company. On the first trial, the jury being unable to agree, there was a mistrial. The case came on for trial the second time and the jury returned a verdict in favor of plaintiff against the defendant in the sum of $7,500. On motion for a new trial the verdict of the jury and the judgment of the court thereon was set aside and an appeal resulted in which the ruling of the lower court was affirmed. See Taylor v. Brownell-O'Hear Pontiac Company, Inc., 265 Ala. 468, 91 So. 2d 828.
Later on the cause was again reached for a third trial on the same pleadings, namely, plaintiff's complaint charging simple negligence as proximately causing his injury, to which defendant pleaded the general issue in short by consent. On this trial the jury returned a verdict in favor of the plaintiff and against the defendant for the sum of $10,000 and judgment was rendered by the court thereon. There was a motion for a new trial, which the trial court overruled. This appeal followed.
Tendencies of the evidence showed substantially in part the following: On the day of the accident the plaintiff, a small boy five years of age, was attending a kindergarten which was then being operated and had been operated for approximately fifteen years or more prior to the accident in the basement of a brick church called Mt. Calvary Baptist Church. He had been allowed to leave the kindergarten by the teacher at lunch time to go home and get some money to pay for his lunch. The accident occurred at 11:30 A.M., the lunch hour being from 11:30 A.M. to 12:30 P.M. At the time of the accident there were about thirty-five to forty pupils attending this school. All were little tots between the ages of three and six years. The accident happened on October 12, 1951, on Second Avenue, North, in the City of Birmingham, Alabama, between Seventh and Eighth Streets. Second Avenue runs generally east and west in the City of Birmingham. At the time of the accident defendant's driver was operating its automobile traveling in an easterly direction on Second Avenue. It was conceded that the car of the defendant was driven at a speed between twenty-five and thirty miles per hour. As the car approached the buildings located at 717 and 719 Second Avenue on the south side of Second Avenue, the plaintiff came from behind a truck which was parked in front of the building located at 719 Second Avenue and out into the path of the automobile driven by the defendant's agent. The automobile struck the boy, causing the injuries sued for. The building located on the south side of Second Avenue and described as No. 717 was fifty and one-half feet wide, extending right up to the sidewalk. The building No. 719 was twenty-three and one-half feet in width *465 and extended nearly, if not, flush to the paved portion of the sidewalk.
After the court had charged the jury and the jury had deliberated for some time, the jury returned to the courtroom and requested further instructions from the court as to the city ordinance governing the speed limit at the time and place of the accident. When this occurred the trial judge furnished the jury with a copy of Ordinance No. 850-F amending § 1239 of the General City Code of Birmingham of 1944. Subdivision (a) of the ordinance appears to be almost identical with subdivision (a) of § 5, Title 36, Code of 1940. Likewise subdivision (b) of the ordinance and subdivision (b) of § 5, Title 36, Code of Alabama of 1940, appear to be almost identical. This ordinance was taken back into the jury room and was with the jury during the remainder of its deliberations. The court also on this occasion gave at the request of the plaintiff written charge No. 20, which is the basis of appellant's assignment of error No. 14. We set out charge No. 20 as follows:
The foregoing ordinance sets forth under subsection (a) through subsection (c) certain speed limitations. Subsection (a) makes it unlawful for any person to drive any vehicle upon any street in the City of Birmingham at a rate of speed greater than thirty miles an hour, subject to certain exceptions which are not involved in the case here. Subsection (b) provides that it shall be prima facie lawful for the operator of a vehicle to drive the same at certain speeds under certain conditions and subject to the provisions of subsection (a). These "prima facie" lawful speeds in the City of Birmingham range from fifteen miles per hour in school zones and at blind intersections to twenty miles per hour on any street in the business district where traffic is controlled at intersections by traffic officers or stop and go signals, and up to twenty-five miles per hour in a residence district. Subsection (c) states that it shall be prima facie unlawful for any person to exceed any of the foregoing speed limitations herein mentioned.
The appellee takes the position that the violation of a state statute or city ordinance constitutes negligence as a matter of law and, therefore, the giving of Charge 20 was proper. In support of this position the appellee cites the following Alabama authorities: Watts v. Montgomery Traction Co., 175 Ala. 102, 57 So. 471; Alabama Lumber & Building Material Ass'n v. Mason, 230 Ala. 168, 160 So. 232; Newell Contracting Co. v. Berry, 223 Ala. Ill, 134 So. 868; Cooper v. Agee, 222 Ala. 334, 337, 132 So. 173; Dowdell v. Beasley, 17 Ala.App. 100, 82 So. 40.
We consider, however, that the fallacy in the position of appellee is that sufficient consideration is not given to the particular ordinance involved in this case. The effect *466 of Charge 20 is a general affirmative instruction in favor of the plaintiff to the effect that the operation of the automobile at a speed in excess of twenty miles per hour by the defendant on the occasion of the accident constitutes negligence as a matter of law. Similar charges dealing with prima facie speed limits under the Rules of the Road of the State of Alabama have heretofore been condemned as removing the flexibility of such statutes or ordinances, and further as depriving the jury of its right to determine whether under particular circumstances and conditions the operation of an automobile in excess of a prima facie lawful speed constitutes negligence as a matter of law.
The latest expression by this court is in the case of Frith v. Studdard, 267 Ala. 315, 101 So. 2d 305, 308-309. Referring to the refusal of certain of the defendant's written charges which apparently attempted to invoke an instruction that violation of certain prima facie lawful speeds was negligence as a matter of law, the court said:
In Ditsch v. Baggett Transportation Co., 258 Ala. 26, 61 So. 2d 98, 99, this court held that the giving of Charge 57, which is as follows: "The Court charges you that if you believe the evidence in this case, Mr. Copeland was not exceeding the speed limit as a matter of law," was erroneous, and in this connection said:
"Counsel for Mrs. Ditsch contend that the giving of the charge [No. 57] constitutes error to reverse for the following reasons: (1) Because it amounts to the general charge as to whether Copeland, the driver of the truck, was complying with the speed regulations of the state; * * *.
In Utility Trailer Works v. Phillips, 249 Ala. 61, 65, 29 So. 2d 289, 292, where an ordinance limiting speed of motor vehicles in a business district was under consideration, this court said:
In Roberts v. McCall, 245 Ala. 359, 17 So. 2d 159, 160, in referring to charge No. 7, which is as follows: "The court charges that if you believe from the evidence the plaintiff was driving at a greater speed than 15 miles per hour as he approached the intersection of the road testified about, then he was guilty of negligence," this court in condemning this charge wrote:
*467 In McCaleb v. Reed, 225 Ala. 564, 565, 144 So. 28, this court said:
In Brown Hauling Co. v. Newsome, 241 Ala. 300, 302, 2 So. 2d 782, 783, this court said:
See also Tyler v. Drennen, 255 Ala. 377, 51 So. 2d 516; Decatur Transit v. Jennings, 253 Ala. 322, 45 So. 2d 13; Seitz v. Heep, 243 Ala. 372, 10 So. 2d 148; Mobile Cab & Baggage Co., Inc. v. Akridge, 240 Ala. 355, 199 So. 486.
In the case at bar the plaintiff contends that twenty miles per hour was the speed limit at the time and place of the accident and that the operation of a vehicle in excess thereof would conclusively amount to negligence on the part of the driver. The ordinance relied upon, however, refers to "prima facie" limits only and so it was error for the court to give Charge 20, which charged that the operation of the car in excess of twenty miles per hour was negligence as a matter of law.
Since the case must be tried again, we see no point in discussing other assignments of error which may not present questions on another trial of the case.
Reversed and remanded.
LIVINGSTON, C. J., and LAWSON and MERRILL, JJ., concur. | May 21, 1959 |
ed693597-35f5-49d5-9696-69b899412838 | Cotney v. Eason | 113 So. 2d 512 | N/A | Alabama | Alabama Supreme Court | 113 So. 2d 512 (1959)
W. A. COTNEY
v.
A. D. EASON.
5 Div. 707.
Supreme Court of Alabama.
June 25, 1959.
*513 Cocke & King, Alexander City, for appellant.
Wm. I. Byrd, Alexander City, and Sam W. Oliver, Dadeville, for appellee.
MERRILL, Justice.
Appellee Eason filed an action for a declaratory judgment to construe the will of A. L. Adams, deceased, and to declare appellee the owner of certain property which he had purchased from the widow and heirs of A. L. Adams.
The respondents were Lillian R. Beasley, a stepdaughter of A. L. Adams, and appellant Cotney, to whom Lillian R. Beasley had sold a life interest devised to her in certain lands by the will of A. L. Adams, deceased. A decree pro confesso was entered against Lillian R. Beasley.
All of A. L. Adams' property was left to his wife and children, except a life estate devised to Lillian R. Beasley, in the following language:
It is stipulated that the widow dissented from the will and became entitled to dower and homestead, and it is also stipulated that through mesne conveyances the appellee, A. D. Eason, purchased whatever right, title and interest the widow and children of A. L. Adams, deceased, obtained under the will of A. L. Adams and the dissent of the widow.
A. L. Adams died in 1920 and his will was duly admitted to probate. In 1942, Lillian Beasley deeded her life estate to appellant Cotney, who went into possession but did not record his deed until 1957. It was stipulated that appellant had regularly assessed and paid taxes on a part of the lands, known as the Slaughter place, since 1942, and that appellee and his predecessors in title had regularly assessed and paid taxes on the other part of the lands since the death of A. L. Adams.
Both appellant and appellee agree that the case was tried in the lower court on two issues, which they pose in the form of questions:
The trial court found in favor of appellee, the effect of the decree being to answer the first question in the affirmative, and number two in the negative.
Appellant contends that the conveyance from Beasley to Cotney did not work a forfeiture, or even if it did, appellant had a fee-simple title to the Slaughter place by adverse possession.
The authorities support the following statements found in 160 A.L.R. 640 II:
"The general rules can be stated as follows:
In addition to the eight text books there cited, see 2 Powell on Real Property, § 208; 33 Am.Jur., Life Estates, § 43; 96 C.J.S. Wills § 980(b).
The great weight of authority supports the view that a limitation over or provision for cesser or forfeiture in a devise or conveyance of a legal life estate, to take effect upon voluntary alienation, is valid and effective where, upon the happening of such contingency, the life estate terminates or passes to someone else, and the life tenant ceases to enjoy the same. 160 A.L.R. 655 IV; Am.Law Inst. Restatement, Property, Vol. 4, § 409. In Camp v. Clearly, 76 Va. 140, the court, speaking of a legal life estate, said:
Our case of Libby v. Winston, 207 Ala. 681, 93 So. 631, 632, in holding certain conditions in a deed valid, quotes the following from Gray v. Blanchard, 8 Pick., Mass., 284, with approval:
This court further said: "The grantor's intent to convey a defeasible estate only is clear and unequivocal. His language leaves no doubt of his purpose in that respect."
In H. H. Hitt Lumber Co. v. Cullman Coal & Coke Co., 200 Ala. 415, 76 So. 347, 348, it was said that a condition in a deed to standing timber was not void where "the intent of the grantor to make a conditional estate is otherwise clearly and unequivocably indicated."
It is "clear and unequivocal" that A. L. Adams intended that Lillian R. Beasley hold the life estate subject to the condition that she should not voluntarily convey it. It is undisputed that she did attempt to convey it to appellant in 1942. Under the authorities cited supra, we hold that this conveyance worked a forfeiture of the life estate interest of Lillian R. Beasley in the lands, and such interest was vested in the heirs at law of A. L. Adams and their successors in title.
Appellant's claim of adverse possession to the Slaughter place must be denied. True, he has been in possession since 1942 and has paid the taxes since that time as prescribed by Tit. 7, § 828, Code 1940. But the element of hostility of his claim or possession is absent. The conveyance under which he went into possession purported to convey only a life estate. But the conveyance was not recorded until 1957.
Appellant testified that it was his intention to claim only a life estate, that he recognized the fee-simple title of those holding under the A. L. Adams' heirs, and that he "didn't notify anybody" of his adverse claim.
"The ten-year statute of limitations as to real actions and the statute of adverse possession are to the same end and purpose," Drummond v. Drummond, 232 Ala. 401, 168 So. 428, 430; or to express it another wayadverse possession is based upon the running of the statute of limitation of ten years.
The statute of limitation never runs against the remainderman or reversioner during the existence of the life estate for the reason that no cause or compelling right of action is in the remainderman or reversioner, nor can there be any adverse possession to him. Bishop v. Johnson, 242 Ala. 551, 7 So. 2d 281.
A remainderman not in possession is under no duty to maintain a bill to remove a cloud from his remainder estate pending a life estate, but there are circumstances which require him to act pending the particular estate in order that he may escape the charge of laches. Ward v. Chambless, 238 Ala. 165, 189 So. 890; Teal v. Mixon, 233 Ala. 23, 169 So. 477. "A *516 person cannot be said to be guilty of laches until he has knowledge of the facts which entitles him to relief and thereafter manifests a want of diligence in asserting his rights," Hagood v. Knight, 257 Ala. 64, 57 So. 2d 616, 618; or unless he has knowledge of his rights or the claim of the opposing party or was possessed of such information as would put a person of ordinary prudence and diligence on inquiry which, if followed up, would reasonably lead to discovery of the situation. Pittman v. Pittman, 247 Ala. 458, 25 So. 2d 26.
In our recent case of Stewart v. Childress, Ala., 111 So. 2d 8, 12, we said:
Here, the life estate in Lillian R. Beasley terminated when she attempted to convey it to appellant, but the undisputed evidence is that no notice of this conveyance came to the remaindermen. They knew that the will gave Lillian R. Beasley the life estate; she had a right to rent the premises; she or her tenant was responsible for the payment of the taxes; appellant gave no notice that he was claiming adversely; he recognized the fee-simple title in appellee or his predecessors; and he did not record his deed until he had made an oral claim for the first time in 1957. The evidence is overwhelming that appellee's predecessors in title had no notice that appellant was claiming the life estate interest until 1957. The instant suit was filed July 10, 1958.
It follows that appellant's claim of title by adverse possession cannot avail because it was neither hostile nor adverse for the statutory period.
The decree of the lower court is affirmed.
Affirmed.
LAWSON, STAKELY and GOODWYN, JJ., concur. | June 25, 1959 |
140ce010-32cb-4318-b8ce-c03915d06781 | Lacey v. Edmunds Motor Company | 113 So. 2d 507 | N/A | Alabama | Alabama Supreme Court | 113 So. 2d 507 (1959)
James LACEY
v.
EDMUNDS MOTOR COMPANY, Inc. et al.
6 Div. 239.
Supreme Court of Alabama.
June 25, 1959.
Kingman C. Shelburne, Birmingham, for appellant.
Dempsey F. Pennington, Birmingham, for appellee Edmunds Motor Co.
*508 Deramus, Fitts, Johnston & Mullins, Birmingham, for appellee Universal C. I. T. Credit Corp.
STAKELY, Justice.
In this case a bill in equity was filed by James Lacey (appellant) against Edmunds Motor Company, Inc., a corporation, and Universal C. I. T. Credit Corporation, a corporation (appellees). The bill was amended several times and demurrers were sustained by the court to the bill each time it was amended and to the bill as last amended. Thereupon the court dismissed the bill. The appeal here is from the final decree dismissing the bill.
The appellant, James Lacey, sought by his bill of complaint to rescind a contract of sale of an automobile on the ground that the contract was induced by fraud of the appellee, Edmunds Motor Company, Inc., and the contents of the contract were misrepresented to the complainant. According to the allegations of the bill, a salesman of Edmunds Motor Company agreed on the sale of the 1955 Ford owned by the complainant, it being specifically agreed, "that the indebtedness against said 1955 Ford car would be transferred to said 1956 Ford car and that there would be added to said indebtedness the sum of $400.00 making a total of $1926.00, the complainant in addition to pay $100.00 cash directly to respondent Edmunds Motor Company." The complainant then asked the salesman to telephone Associates Discount at its Birmingham office and get the manager on the telephone and introduce the complainant to the person answering the call. The complainant stated who he was and wanted to know what it would cost to finance an automobile in the amount of $1,923, explaining that he was buying a car from Edmunds Motor Company, Inc., a 1956 Ford Victoria Sedan. He was told by the party on the other end of the line that they could finance it on the basis of $83.37 per month, the payments to be for 30 months. The salesman for Edmunds Motor Company then filled out a printed form bearing the name of "Edmunds Mtr. Co.Retail buyer's order" showing the details of the entire price that the complainant would be obligated to pay Associates Discount, Inc.
It was further alleged that the salesman handed to complainant a blank form and told complainant to sign his name at the bottom of same saying that said salesman would then give this to one of the stenographers of Edmunds Motor Company to insert by typewriter the proper figures showing amount payable by complainant, that the stenographers were busy on other matters at that time and that he would see that there was correctly transcribed on said form what was agreed on. It is then alleged that the complainant refused to sign his name on said form until the correct figures were written on said form. There was some discussion about filling out the form and then the manager of Edmunds Motor Company stated: "Whatever is on the paperwe will stand behind that." Thereupon the manager told said salesman and agent to write such a statement and give it to complainant. Complainant then signed his name on the blank financial form where he was told to sign it and took possession of said 1956 Ford automobile and drove it off.
It is further alleged that before the complainant took possession of the 1956 Ford he paid Edmunds Motor Company, Inc. the sum of $100 and was given a receipt for it.
It is further alleged that without the knowledge or consent of the complainant, the agent or agents of Edmunds Motor Company within the line and scope of their employment, fraudulently "inserted or caused to be inserted in and on said paper, that complainant had signed in blank at the request and direction of said agent and salesman of respondent Edmunds Motor Company, figures and information to the effect that the payments to the finance company would be $111.21 per month for a period of 30 months and that the total *509 amount payable to the finance company would be $3,336.30 and then in complete disregard of the instructions of the complainant gave, while acting within the line and scope of their employment, said paper to the Universal C. I. T. Corporation."
It is further alleged that the acts and doings of said agents or agent of respondent Edmunds Motor Company were false and fraudulent and known by them to be so, the written showing or statement given by the said agent showing on its face that the payments of complainant were to be $83.37 per month for a period of 30 months or a total of $2,501.10, instead of $3,336.30.
It is further alleged that about two weeks thereafter complainant received through the United States mail a notice in writing from the Universal C. I. T. Corporation advising him that said company had financed complainant's 1956 Ford car. In this notice it was shown that the number of installments were 30 and the amount of each installment was $111.21. The total amount due to Universal C. I. T. Corporation was shown to be a total of $3,336.30.
It is further alleged that upon receipt of said notice to complainant from Universal C. I. T. Corporation complainant went to the manager of Edmunds Motor Company in Birmingham and told him that he wanted the matter straightened out so that the finance contract would speak the truth and that the complainant's instructions about the placing of the finance contract with Associates Discount had been disregarded by Edmunds Motor Company. Edmunds Motor Company refused to do anything about it and complainant then went to the office of Universal C. I. T. Corporation at Birmingham and made the same complaint there and contended that he only owed on his car $83.37 per month. Universal C. I. T. Corporation refused to give complainant any help except to tell him that they would sell the 1956 Ford car and apply the proceeds to the amount of their contract price.
It is further alleged that "Thereafter and before the filing of this suit complainant tendered to the respondent and each of them the said 1956 Ford automobile and demanded that the money that complainant had paid respondent Edmunds Motor Company namely $100 be returned to him and that he be given back all the papers that he, the complainant had signed and given to Edmunds Motor Company and also that he be given the said 1955 Ford automobile that he had traded to Edmunds Motor Company heretofore alleged."
We will not set out in detail the several amendments to the bill, it being sufficient to say that in the first amendment the complainant alleged that through a course of dealing that he was spelling out in detail in the amendment Edmunds Motor Company was acting as an agent for Universal C. I. T. Corporation in the transactions that it had with Lacey, complainant.
In the second amendment to the bill complainant alleged that "the said actions and doings of salesman or agent of said Edmunds Motor Company were done without his knowledge; that the same were done without his consent and by someone or more persons not authorized by Complainant so to do and that Complainant had never consented to or ratified the said alleged acts and doings of said agents or agent of Edmunds Motor Company."
The last amendment to the bill alleged, "in the alternative," that "the contract now existing between the complainant and the respondent is usurious * * *."
The appellees demurred to the bill as a whole and then, specially to several alleged aspects of the bill. The court ruled generally on the demurrers, sustaining them without setting out which grounds were apt. The effect of such a ruling was a ruling on the demurrer to the bill as a whole, for where a bill sets up several distinct equities, a decree sustaining a demurrer generally and making no reference to grounds of demurrer going to a part or aspect of the bill will be referred to the *510 grounds of demurrer addressed to the bill as a whole. On appeal here only the grounds going to the sufficiency of the bill as a whole will be considered. City of Talladega v. Ellison, 262 Ala. 449, 79 So. 2d 551, and cases cited therein.
It is a well-established principle in Alabama that a buyer alleging that he was induced by fraud to enter into a contract may rescind by restoring benefits and recover payments, or affirm, retain benefits, and sue in deceit for damages (Southern Building & Loan Ass'n v. Argo, 224 Ala. 611, 141 So. 545; Day v. Broyles, 222 Ala. 508, 133 So. 269) or he, the defrauded party, when sued by the party who perpetrated the fraud, may by appropriate plea set up such fraud as a defense to defeat the action (Southern Building & Loan Ass'n v. Bryant, 225 Ala. 527, 144 So. 367). However, the buyer must elect between his remedies and may not combine them. Glass v. Cook, 257 Ala. 141, 57 So. 2d 505; Tollett v. Montgomery Real Estate & Ins. Co., 238 Ala. 617, 193 So. 127. It is also true that a court of equity has concurrent jurisdiction with a court of law to annul or rescind a contract induced by fraud. King v. Livingston Mfg. Co., 192 Ala. 269, 68 So. 897.
In this case appellant, James Lacey, chose to file his bill in equity to rescind the contract alleged to have been induced by fraud. Our decisions require that allegations of fraud in a pleading, to be sufficient, must positively set forth the facts constituting the fraud so that the court can clearly see that fraud has intervened. Terrell v. Marion County, 250 Ala. 235, 34 So. 2d 160; Hyman v. Langston, 210 Ala. 509, 98 So. 564.
We have carefully set out the material facts alleged in the bill. We believe those facts alleged fraud with sufficient certainty, with the exception to which we shall hereinafter refer. In substance, it is alleged that complainant and Edmunds Motor Company entered into the sale of a 1956 Ford automobile, that the terms of the sale were agreed on and further payments were to be made by complainant to Edmunds Motor Company at the rate of $83.37 per month for a period of thirty months. It is further alleged, however, that without the knowledge and consent of the complainant, Edmunds Motor Company falsely and fraudulently inserted in the contract the amount of the monthly payments to be $111.21 for a period of thirty months making a total of $3,336.30, instead of $83.37 per month for thirty months making a total of $2,501.10. It is further alleged that this contract was turned over by Edmunds Motor Company to Universal C. I. T. Credit Corporation.
Many of the grounds of demurrer take the position that the bill fails to allege sufficiently tender by the complainant of the property received by him under the contract. Both appellees, Edmunds Motor Company and Universal C. I. T. Credit Corporation, insist in brief that in an action to rescind a contract induced by fraud of the seller, the purchaser must return the subject of the sale or offer to return it and if refused by the seller the purchaser must either leave such property on the premises of the seller or if he retains possession, must hold it as a bailee and may not use it for his own purposes. Appellees further insist that a failure to allege such tender in the bill of complaint renders the bill demurrable.
The bill does allege that before the filing of the suit, the complainant made tender of the 1956 Ford automobile and demanded the return of the money which he had paid out and the return of the 1955 Ford automobile which he had traded in. It is true that the complainant did not leave the automobile on the premises of the seller or hold it as a bailee. In this connection, we should keep clearly in mind that the instant case is in a court of equity and not in a court of law. There is a substantial difference between rescission in a court of equity and rescission in a court *511 of law In a court of law the action proceeds on the theory that a rescission had previously been made but in equity the suit seeks a decree of the court rescinding the contract and advising the parties as to what their further acts must be.
Royal v. Goss, 154 Ala. 117, 122, 45 So. 231, 232.
In the case of Garner, Neville & Co. v. Leverett, 32 Ala. 410, 413, it is stated:
It is, therefore, not essential to the maintenance of a bill in equity for the rescission of a contract on the ground of fraud, that there be an allegation of a restoration or offer of restoration by the purchaser of what he has received under the contract. Garner, Neville & Co. v. Leverett, supra; Martin v. Martin, 35 Ala. 560; Miller v. Louisville & Nashville Railroad Company, 83 Ala. 274, 4 So. 842; Perry v. Boyd, 126 Ala. 162, 28 So. 711. Of course, the trial court will not grant the relief prayed for, without requiring the complainant to do equity.
Several of the grounds of demurrer are to the effect that the bill failed to allege that complainant, Lacey, had actually sustained any injury as a result of the alleged fraud; that only prospective damages were alleged.
Under our decisions, it is not necessary that actual present damage result to the complainant because of fraud practiced upon him, but if injury is to accrue in the future that is sufficient. Kelly v. McGrath, 70 Ala. 75: Van Antwerp v. Van Antwerp, 242 Ala. 92, 5 So. 2d 73; Gray v. Gray, 246 Ala. 627, 22 So. 2d 21; Smith v. Smith, 266 Ala. 118, 94 So. 2d 863.
The allegations of the bill clearly indicate that had the alleged fraud not been practiced the total amount owed by the complainant under the contract sought to be rescinded by this action would have been $2,501.10 instead of $3,336.30. If complainant is to be bound by said contract he will obviously suffer damages.
There is one feature of the bill, however, which requires further discussion. In American Life Ins. Co. v. Powell, 260 Ala. 574, 71 So. 2d 872, 873, it is said:
See also Ellis v. Stickney, 253 Ala. 86, 42 So. 2d 779.
In the case at bar the bill was demurred to on the ground that, "For aught that appears complainant relied upon his own knowledge and not upon any representation made by the respondent in consumating the transaction complained of." It appears that no effort was made to amend the bill so as to include within the bill allegations showing that the complainant relied on the representations made to him. In this respect we think the bill is fatally defective.
In Tillis & O'Neal v. Austin, 117 Ala. 262, 22 So. 975, Judge Brickell, writing for the court, said:
See also Prestwood v. Carlton, 162 Ala. 327, 50 So. 254; Regional Agricultural Credit Corporation of Washington, D. C. v. Hendley, 251 Ala. 261, 37 So. 2d 97.
In the absence of allegations showing that the complainant relied on the representations made to him, we do not think that he states a good cause of action for relief.
We conclude that the lower court acted correctly in sustaining the demurrer to the bill as amended and acted correctly when it dismissed the bill as amended when the complainant failed to plead further.
Affirmed.
LAWSON, MERRILL and GOODWYN, JJ., concur. | June 25, 1959 |
2e00a4df-63c7-4683-9e64-5bd678c83248 | Sims v. Callahan | 112 So. 2d 776 | N/A | Alabama | Alabama Supreme Court | 112 So. 2d 776 (1959)
J. H. SIMS
v.
Alston CALLAHAN.
6 Div. 290.
Supreme Court of Alabama.
May 21, 1959.
*778 Whitmire, Morton & Coleman, Birmingham, for appellant.
Spain, Gillon & Young, Cabaniss & Johnston, Ralph B. Tate, Foster Etheridge and Leigh M. Clark, Birmingham, for appellee.
STAKELY, Justice.
This is an appeal by the plaintiff from the verdict and judgment rendered in the case of J. H. Sims, Plaintiff, v. Dr. Alston Callahan, Defendant. The case was submitted to the jury on Count A, which claims damages sustained by the plaintiff as the result of fraud and deceit of the defendant. The defendant pleaded in short by consent the general issue as to Count A. At the conclusion of the trial there was a verdict in favor of the defendant and thereupon the judgment was rendered by the court for the defendant and against the plaintiff. There was a motion for a new trial, which was overruled by the court. This appeal followed.
In Count A, upon which the case was tried and submitted to the jury, the plaintiff avers in substance the following: On July 25, 1955, while the relationship of patient and physician existed between the plaintiff and the defendant, a specialist engaged in the treatment, care and surgery of the eye, "defendant did willfully and falsely represent to plaintiff, with the intent to injure plaintiff, that plaintiff should undergo immediate surgery to remove cataracts and other growth from his eyes, else run the risk of blindness or great loss of vision, which said representation was false, and the falsity of said representation was unknown to the plaintiff; that said representation was made by defendant to induce plaintiff to undergo said surgery as a patient of defendant in order that defendant might collect from plaintiff a fee for performing said surgery and the plaintiff in reliance upon said representation, and believing the same to be true, but which was untrue, and known by defendant to be untrue, consented and agreed to allow defendant to perform surgery on plaintiff's eyes to remove said cataracts and other growth from his eyes. * * *
"* * * And plaintiff in reliance upon said representation of defendant and believing the same to be true did, * * * enter the Jefferson-Hillman Hospital, in the City of Birmingham, Jefferson County, Alabama, on, to-wit, July 30, 1955, and became a patient therein of defendant for the purpose of having defendant perform said surgery upon plaintiff's eyes; that plaintiff, after entering said hospital on, towit, said date, and while being made ready to undergo said surgery, by the nurses and other personnel, of said hospital, learned that said representation of the defendant was false. That the plaintiff upon learning that said representation of the defendant was false left said hospital before defendant performed said surgery and returned to his home.
"And plaintiff avers that said representation of defendant was false, in that plaintiff did not need to undergo said surgery or run the risk of blindness or great loss of vision; that to the contrary had plaintiff undergone said surgery he would have sustained substantial loss of vision all to his great loss and damage.
"And the plaintiff avers that he in reliance upon said representation of defendant and believing the same to be true, but which was untrue * * *," sustained the injuries and damages set forth in his complaint.
This appeal presents three principal questions:
The first is the admission in evidence, over the objection of counsel for plaintiff, *779 of testimonials in behalf of defendant by a series of witnesses called to the witness stand by defendant, who claimed to have been former patients of defendant, upon whom, so the witnesses were allowed to testify, the defendant had performed cataract surgery with results most satisfactory to said witnesses.
The second is the ruling of the trial court in sustaining the objection of counsel for defendant to the introduction in evidence of a certified copy of the record of the United States of America, Plaintiff, v. Alston Callahan, Defendant. In that record the defendant Dr. Alston Callahan pleaded guilty to the criminal act denounced by U. S. C. A., Title 18, Section 1461, of depositing for mailing and delivery by the post office department of the United States a package containing obscene, lewd, lascivious, and filthy pictures or color film, a further description of which, so the information alleges, is too obscene, lewd, lascivious, and filthy to be spread upon the records of the court.
The third is the action of the trial court in giving and reading to the jury a series of charges, requested in writing by defendant, in which the jury was instructed, in substance, that if Dr. Callahan "honestly" stated to plaintiff the condition of plaintiff's eyes, as Dr. Callahan "believed" the same to exist, the plaintiff cannot recover, and in charging the jury in other charges requested by defendant that the jury could not return a verdict for plaintiff, unless the jury was reasonably satisfied from the evidence that Dr. Callahan "knew" that his representations to plaintiff were "false," and that the representations were made to plaintiff with the "deliberate" intent to "deceive" plaintiff.
The appeal also presents for review other rulings of the court below in the admission and rejection of other evidence and the order of the trial court sustaining the demurrer of defendant to Count Two and Count B of plaintiff's complaint.
Tendencies of the evidence showed in substance the following: The plaintiff, a retired workman, who on the date of the trial of this case was seventy-eight years old, became a patient of defendant, Dr. Alston Callahan, an eye specialist, in August, 1948. Plaintiff had previously read articles in the paper about defendant and knew that he was on the faculty and board of the hospital. On the occasion when plaintiff was first attended by Dr. Callahan, the doctor examined plaintiff's eyes and tested them to see how well plaintiff could see. On that occasion Dr. Callahan did not prescribe any change in the glasses plaintiff was then wearing. At that time plaintiff told defendant that a doctor had previously informed him that he had cataracts. On this the first visit of plaintiff to defendant's office, Dr. Callahan examined plaintiff's eyes thoroughly. In the course of the examination defendant told plaintiff that he couldn't improve on plaintiff's glasses. Defendant was very nice to plaintiff and said to him, "See you again in about sixty days."
About sixty days thereafter the plaintiff went again to the defendant's office. On that occasion the defendant again examined the plaintiff's eyes. He put a light on the chart and asked plaintiff to read the various lines. Defendant also handed plaintiff a little booklet and asked him to read it. On this occasion the plaintiff was attended by defendant, but defendant did not prescribe any change in plaintiff's glasses. He stated to plaintiff that he "couldn't better" plaintiff's glasses.
In March, 1949, plaintiff was again attended by the defendant who, upon completion of the examination, did not prescribe any change in plaintiff's glasses, but asked the plaintiff to return again for further examination at a stated time. Plaintiff did not return to defendant's office at the time suggested by defendant. Some time later plaintiff broke one of the lenses in his glasses and made an appointment with defendant and went to his office and defendant gave him a prescription with which to replace the broken lens.
*780 Plaintiff had the prescription for the broken lens filled as directed by defendant. Plaintiff did not find that lens to be as satisfactory as the broken lens. Consequently he carried the broken lens to an optical company and had a lens like the broken one ground, with which he replaced the one prescribed by defendant.
Plaintiff did not see Dr. Callahan again until July 25, 1955. Immediately prior to July 25, 1955, the plaintiff called defendant's office by telephone and made an appointment. On that occasion he inquired as to the amount of defendant's fee for an eye examination and was advised that the fee was $15. Previously his fee had been $10. On July 25, 1955, plaintiff went to defendant's office to keep the appointment. Shortly after he arrived he was directed by someone in the defendant's office other than Dr. Callahan into an examining room where his eyes were examined by a lady instead of Dr. Callahan. When Dr. Callaham came into the examining room plaintiff said to Dr. Callahan that he wanted him to examine his eyes. Dr. Callahan did not examine the plaintiff's eyes. He did not, as he had done on previous occasions, ask plaintiff to read letters on a chart or to read from the "little booklet." The plaintiff described what took place between Dr. Callahan and himself on that occasion and in brief the plaintiff claims that he said to Dr. Callahan, "I see too well for an operation," to which Dr. Callahan replied, "No, you can't see at all," and "he told me if I didn't have an operation at once I would be blind."
In this conference the plaintiff agreed to go to the hospital and undergo the surgery suggested.
When plaintiff agreed to go to the hospital Dr. Callahan asked if July 30, 1955, was agreeable to the plaintiff. The date being agreeable to plaintiff, it was agreed that on that date the plaintiff would enter the hospital. Thereupon arrangements were made for the plaintiff to enter the hospital on that date. At the time the plaintiff agreed to undergo cataract surgery Dr. Callahan told him to employ other physicians to ascertain his general condition, to see if he could withstand or undergo the surgery. Pursuant to these plans, the plaintiff entered the hospital on July 30, 1955.
When the defendant advised the plaintiff that he should undergo cataract surgery Dr. Callahan did not explain to the plaintiff the nature of cataract surgery, nor did he explain to plaintiff that cataract surgery was not always successful or that after cataract surgery plaintiff would have to wear glasses with heavy lenses.
When the plaintiff arrived at the hospital he went through the regular routine of entering and was assigned a room in the hospital. Upon reaching his hospital room two nurses came in and asked the plaintiff what he was there for. The plaintiff replied, "for an eye operation, a cataract operation," and asked the nurses what he was to do. The nurses replied, "Put on your pajamas, do anything you want to do, go to bed, sit down or walk around." Plaintiff asked one of the nurses if he might have a newspaper. She replied that she didn't know, but would find out. The nurse left the room and brought Dr. Nelson, whom plaintiff believed to be an intern, but who was in fact the resident physician in the eye department of the hospital. Dr. Nelson asked plaintiff what he was doing there. Plaintiff told him that Dr. Callahan had sent him over for a cataract operation. Dr. Nelson looked in plaintiff's eyes and walked away.
In the meantime, one of the nurses came in plaintiff's room with a sheet of paper and said, "Here is your do's and don't's. Can you read?" Plaintiff replied, "Sure I can read," and he read it. The do's and don't's to which the plaintiff referred were typewritten sheets of instructions prepared by Dr. Callahan for patients upon admission to the hospital for cataract surgery.
From a reading of the do's and don't's plaintiff learned something of the nature of cataract surgery. Plaintiff thought all he had to do was to get the things off. When he read the do's and don't's he learned that *781 the doctor was to put a towel across his eyes that day and the next morning and give him two shots, one that night and one Sunday morning, and the card went on to say that after the operation he would have to lie flat on his back for eight hours and not move or touch his hand to his eyes at all and if the pain got serious for him to call one of the nurses who would give him a sedative. During this interval Dr. Nelson came back into the hospital room and swabbed plaintiff's eyes with a piece of cotton.
Plaintiff asked Dr. Nelson for his opinion as to whether he should undergo the surgery, but Dr. Nelson did not answer. Dr. Nelson then took plaintiff to an examining room in the hospital and examined plaintiff's eyes. The results of Dr. Nelson's examination were written on plaintiff's hospital chart. The chart was introduced in evidence. It showed the following result of the examination of plaintiff's eyes by Dr. Nelson:
Plaintiff told Dr. Nelson that he was going to leave the hospital. After some routine required of plaintiff by hospital personnel, he left the hospital on July 30, 1955, and returned to his home. Shortly after plaintiff returned to his home he called Dr. Callahan by telephone and told him that he had left the hospital and was not going to have the operation. During this conversation Dr. Callahan said to plaintiff, "You should have stayed for the operation. It is necessary to have it or you will go blind." The next day Dr. Callahan called the plaintiff by telephone and told the plaintiff that he was surprised plaintiff left the hospital and that he should have the operation "to keep from being blind." In that conversation Dr. Callahan said he would call plaintiff again in about ten days or two weeks. On about August 3 plaintiff received a letter from the Department of Public Safety, a copy of which was introduced in evidence by the plaintiff. In substance the letter stated that information had been received in the Director's office "which leads the Director to believe that it would be in the best interest of Public Safety to inquire [sic] that you appear before our drivers license examiner and take the eye test."
About the latter part of August plaintiff received two additional telephone calls from Dr. Callahan's office, in which the plaintiff was asked to come to his office. Plaintiff declined the invitations.
Upon receipt of the foregoing letter from the Department of Public Safety plaintiff made an appointment to have his eyes examined by Dr. Joe Dixon, an eye specialist in the city of Birmingham. Dr. Dixon reported his visual acuity test of the plaintiff's eyes as follows: "Right eye 20/40; left eye 20/25-1; both eyes 20/25-1."
In the latter part of August, 1955, plaintiff carried the letter, together with the completed report, to the driver's license examiner at Birmingham. At that time the driver's license examiner gave plaintiff the usual eye test given by that department. Plaintiff passed the test and his driver's license was not revoked.
I. The plaintiff put up as witnesses a number of experts on eye cataracts and cataract surgery. The first of these experts was Dr. Dixon. We see no reason to set out the discussion of cataract surgery as testified to by Dr. Dixon. Suffice it to say that at the conclusion of his testimony he testified that in his professional opinion it was clear from an ordinary examination of plaintiff's eyes that cataract surgery should not be performed on plaintiff's eyes.
The procedure used by Dr. Dixon in the examination of plaintiff's eyes was followed by the procedure of other doctors who examined plaintiff's eyes in consultation. For *782 example, the opinion of Dr. Turnbull, an eye specialist who examined plaintiff's eyes on two occasions, was that the plaintiff would sustain a substantial loss of vision if he underwent cataract surgery. To the same general effect was the testimony of Dr. Frank H. Clements, an eye specialist, and also the testimony of Dr. John Hall Nelson. Dr. Ralph B. Burroughs, an eye specialist and a witness for the plaintiff, testified in effect that when he saw him cataract surgery if successful would have been bad for him and to the same effect was the testimony of Dr. Oscar Dahlene, an eye specialist.
Of course, Dr. Callahan in his testimony took issue as far as the condition of Mr. Sims was concerned that it was wise for him to undergo cataract surgery. His opinion was supported by the record of Dr. Howard Smith, an optometrist. We believe that a careful examination will disclose that in each instance where a physician has testified in effect that no honest physician would have operated on Mr. Sims or that there was no professional or medical basis for such operation on him, the testimony is based on a different postulate from that existing as of the time he was in Dr. Callahan's office. By Mr. Sims' own testimony and by the record of Dr. Howard Smith, an optometrist, who had nothing to do with this controversy and took no part whatever in the prosecution or the defense of Dr. Callahan, the vision of Mr. Sims "comes and goes." Mr. Sims himself says that while he was over in the hospital and after the seed of distrust had been sown in his heart he could then see better than he had ever seen before. We believe that the medical aspects of this case present a clash between two opposing schools of thought in opthalmology, especially in regard to operations for cataracts. Perhaps this difference may be accentuated by some bitterness on the part of a few doctors. In other words, one school of thought believes in waiting longer than the other. But just exactly where the line of demarcation is, is not definitely ascertainable except that some seem to think it is generally, though not always, 20/70 visual acuity or less. Dr. Callahan does not believe in waiting that long. Neither does Dr. McCoy. In connection with the thought of some that 20/70 or less is a good rule, though not subscribed to by others, the appellant attempts to make capital by a reference to the Journal of the American Medical Association as follows:
But it is to be observed that what the author was there referring to is expressly stated as a monocular cataract. A monocular cataract is obviously and according to medical dictionaries one "concerning or affecting but one eye." But this is not applicable to the condition of Mr. Sims. Mr. Sims had binocular cataracts. He had cataracts in both eyes at the time he was seen by Dr. Callahan in July, 1955, and had had cataracts in both eyes for many years. We do not believe that it would be proper to say that because the result of the test was different on one occasion from that reported on another, though closely related in time, the other report was presumptively or necessarily false.
Dr. Dixon testified "that most anybody's vision will vary from one time to another. Sometimes when they come in the office and you will check it it will vary one hour later." According to him there could be a variation in the same day in different offices from 20/30 to 20/50 and it might vary from 20/40 to 20/60. Dr. Dixon found 20/60 in both eyes March 26, 1957, but 20/40 minus 2 and 20/30 on May 1, 1957. Six months later, in October, the vision had decreased 20/60 or a little better in the right eye and *783 to 20/40 in the left, while the following month in consultation with Dr. Turnbull the vision had decreased from 20/40 to 20/50 in one eye and had increased from 20/60 to 20/50 in the other.
According to the tests in Dr. Callahan's office on the date involved they were 20/60 minus. A few days later, according to Dr. Nelson, they were 20/40 and 20/30 minus. In other words, if Dr. Nelson's testimony is accurate, it cannot be said that the tests made in Dr. Callahan's office were not correct. Certainly it cannot be said that they were knowingly and corruptly false.
As we read this testimony, there seems to have been a heated controversy between two medical schools of thought and nothing more. The difference seems to be that at the time Dr. Callahan advised the operation plaintiff desired it. When the other doctors examined him he didn't want it. The attitude of the patient is a factor as to which there is no dispute. For instance, Dr. Clements said:
The law does not permit a physician to be at the mercy of testimony of his expert competitors, whether they agree with him or not. In the case of Jackson v. Burton, 226 Ala. 483, 485, 147 So. 414, 416, this court said:
As to the effect of all the testimony against Dr. Callahan, we quote from the case of Staloch v. Holm, 100 Minn. 276, 111 N.W. 264, 9 L.R.A.,N.S., 712, which was approved in Carraway v. Graham, 218 Ala. 453, 118 So. 807, 814, as follows:
We come now to deal directly with the grounds on which reversal is sought. First of all is the admissibility of testimony of former patients of Dr. Callahan as to the results of cataract operations upon them in rebuttal of evidence offered by plaintiff and admissible for that reason. We certainly agree with the general proposition that evidence of transactions between the defendant and third parties with which the plaintiff has had no connection is not ordinarily admissible against a plaintiff. But that is true only in those cases where the evidence is incompetent, irrelevant or immaterial. We think the evidence is competent in this case because of the fact that the appellant opened the door for its admission by the testimony of his own witnesses.
The plaintiff's second witness on the trial of the case was Dr. Frank Clements. On direct examination Dr. Clements testified as an expert in operating on cataract patients, *784 but the plaintiff appears not to have been contented with that testimony. Dr. Clements further testified in detail as to his own personal experience as a patient of another physician when he himself had been operated on for cataracts. He was thereby doing exactly that which the plaintiff now says defendant had no right to do, that is, prove by individual experiences the result of an operation. It would have been unjust for the court to have allowed that evidence to remain in the case and have the jury affected by that sort of a description by a patient of the results of a cataract operation without allowing defendant to show the experiences of patients whose overall results from and reactions to the operation were entirely different. In other words, the broad proposition is asserted that the testimony of the various witnesses was not admissible by reason of its alleged incompetency. If one party offers such evidence he cannot thereafter complain even though there is much evidence to the contrary. We have examined the evidence from this standpoint very carefully and do not think it necessary to set out the evidence on this point.
It is well established in this state that a party cannot justly complain of evidence offered in rebuttal of evidence which he himself presented. In Lockridge v. Brown, 184 Ala. 106, 112, 63 So. 524, 526, this court expressly held: "* * * A party cannot complain of the admission of illegal evidence, in rebuttal of illegal evidence introduced by himself."
In Royal Ins. Co. v. Robertson, 242 Ala. 460, 465, 6 So. 2d 880, 884, this court said:
We need not go into any further detail in this connection except to say that plaintiff's attorney went into detail, particularly from his first two witnesses, in an effort to show ill effects upon the patients of cataract operations in the reduction of vision.
In the case of Baird v. Chicago, M., St. P. & P. R. Co., 179 Minn. 127, 228 N.W. 552, there had been opinion evidence of expert witnesses for the plaintiff to the effect that with the loss of certain fingers on his hand he was unable to do the work of a switchman. Defendant introduced evidence of switchmen with similar or worse injuries who testified that they did and were able to do the work of switchmen. In holding that such evidence was admissible the court said:
In conclusion it is sufficient to say that there was no error in the ruling of the court allowing witnesses who were former patients of Dr. Callahan to testify as to the result of cataract operations upon them in rebuttal of evidence offered by the plaintiff and admissible for that reason
*785 II. It is claimed that the trial court erred when during the trial of the case objections were sustained to the following question propounded by the plaintiff to the defendant on cross-examination of the defendant as a witness. The purpose of the question, of course, was to attack the credibility of Dr. Callahan as a witness. We set out the question as follows:
In answer to the proposition that a violation of 18 U.S.C.A. § 1461, inhibiting the act of placing in the mail obscene, lewd, lascivious and filthy pictures, is a crime involving moral turpitude, in Ex parte Marshall, 207 Ala. 566, 93 So. 471, 25 A.L.R. 338, this court, in defining the phrase "moral turpitude," said:
There is no showing in the record that the act done by Dr. Callahan was inherently immoral. The following is a statement of offenses which do not involve moral turpitude and cases which discuss such offenses:
We see no reason to analyze each of these cases. They speak for themselves. This court has said that moral turpitude implies something immoral in itself, regardless of its being punishable by law, so that an offense for conviction of which a witness' credibility is lessened must be mala in se and not mala prohibitum. Pippin v. *786 State, 197 Ala. 513, 73 So. 340; Ex parte Marshall, 207 Ala. 566, 93 So. 471, 25 A.L.R. 338.
The court considered the matter in the absence of a jury and considered that the cases and authorities reached the conclusion that the offense was one that did not involve moral turpitude. We find that the decision of the court was correct and that his judgment should not be disturbed.
III. Appellee's given charges stated correct principles of law and the trial court committed no error in giving these charges to the jury.
By this assignment appellant seeks a decision of this court on the correctness of some written charges requested by appellee and given to the jury by the trial court. In order to pass on these charges, we should look to Count A of the complaint to see what allegations are made against Dr. Callahan. As here pertinent Count A reads:
The foregoing excerpt from Count A charges that Dr. Callahan (1) willfully made a false representation to plaintiff, (2) with intent to injure him, and (3) that Dr. Callahan knew the representation was false and untrue. In this was the appellant has charged Dr. Callahan with making a known false representation with intent to injure him. Accordingly cases like Munroe v. Pritchett, 16 Ala. 785, and Cartwright v. Braly, 218 Ala. 49, 117 So. 477, and similar cases cited in appellant's brief are not in point. In those cases it was not alleged in the complaint that the defendant had made a known false statement to plaintiff with intent to injure him.
It appears that the appellant now wishes to have this case reviewed and treated as if the cause of action had been stated under the alternative provisions of § 108, Title 7, Code 1940, defining legal fraud as "misrepresentations of a material fact, made * * * recklessly without knowledge, and acted on by the opposite party, or if made by mistake and innocently, and acted on by the opposite party, * * *." or under the provision of § 110, Title 7, Code 1940, defining deceit and providing that "a fraudulent or reckless representation of facts as true, which the party may not know to be false, if intended to deceive, is equivalent to a knowledge of the falsehood." But the complaint was not framed under these provisions. Instead, the complaint was framed and tried on the first alternative of § 108: "Misrepresentations of a material fact, made wilfully to deceive * * * and acted on by the opposite party * * *." The charges in the instant case should be considered in the light of the allegations of the complaint. These allegations are similar to the allegations in the cases of Clayton v. Glasscock, 221 Ala. 3, 127 So. 538, and Clayton v. Quiatto, 221 Ala. 677, 130 So. 395. In the Glasscock case the complaint charged defendant with making false representations to the plaintiff which "* * * were made by him with full knowledge on his part that they were not true, and were made for the purpose of deceiving the plaintiff and did deceive her to her damages as aforesaid." [221 Ala. 3, 127 So. 539.]
*787 Charge 2 requested by the defendant in that case and refused reads as follows:
Further in that case the trial court charged the jury as follows:
In reversing the trial court for failure to give Charge 2 and in orally charging the jury as it did, this court said:
To the same effect is Clayton v. Quiatto, supra. The defendant's refused charge reads as follows:
To summarize the situation, in our judgment the Glasscock and Quiatto cases justly sustain the action of the trial court in giving the charges here complained of by appellant. As stated above, we find no error in this ruling of the court.
IV. The demurrer to Count 2 was properly sustained.
Count 2 attempts to set up a cause of action for malpractice. For the purposes of present discussion the count alleges:
It is evident from the entire count that the plaintiff has not alleged that defendant unskillfully and negligently treated plaintiff's eyes nor has he charged that defendant unskillfully and negligently cared for plaintiff's eyes. All that he has undertaken to charge is that the defendant made an unskillful and negligent diagnosis. Here is the key averment:
For aught appearing from the allegations of the foregoing count, Dr. Callahan's diagnosis was true and correct and the advice given plaintiff was right and proper and plaintiff should have undergone immediate surgery
On demurrer allegations of a complaint are to be construed most strongly against the pleader. Pleadings are required to be certain and specific in their allegations of the material facts on which the right to relief depends so that the charge need not be left to inference merely what those facts are. Richards v. Richards, 98 Ala. 599, 12 So. 817, quoted with approval in Smith v. Smith, 216 Ala. 570, 114 So. 192.
The making of a diagnosis by a physician is a lawful act and it is only when a lawful act is done negligently or improperly and thereby causes injury that there arises a cause of action. Construing the allegations of Court 2 most strongly against the pleader, it cannot be said that the diagnosis was incorrect or wrong and that the advice given plaintiff was incorrect.
There was no error in sustaining the demurrer to Count 2 of the complaint.
V. There was no error in sustaining the demurrer to Count B. As here material Count B alleges:
In Count B the effort is made to charge wantonness, but it is fatally defective for two reasons: (1) The averments "And the defendant knew or in the exercise of ordinary care and diligence ought to have known that plaintiff did not need to undergo said surgery * * * the defendant knew or in the exercise of ordinary care and diligence ought to have known that, said surgery if successful[ly] performed would have resulted in plaintiff sustaining a substantial loss of vision," will not support a wanton count because of the alternative averment concerning knowledge which has been underscored.
*789 In Central of Georgia Ry. Co. v. Chambers, 183 Ala. 155, 62 So. 724, 726, the wanton count in a railroad crossing case averred: "* * * defendant knew or by the exercise of reasonable care should have known that this plaintiff was crossing said railroad * * * and with such knowledge the defendant's agents and servants, * * * willfully, wantonly, and negligently * * *." did certain acts and omitted to do certain acts as to injure plaintiff.
In holding that the counts were not sufficient as to wanton counts, the court said:
See also Francis v. Imperial Sanitary Laundry & Dry Cleaning Co., 241 Ala. 327, 2 So. 2d 388; Griffin Lumber Co. v. Harper, 247 Ala. 616, 25 So. 2d 505; Southern Ry. Co. v. Bunt, 131 Ala. 591, 32 So. 507.
Other insufficiencies in the count could be pointed out, but the foregoing is sufficient to show that the court was not in error in sustaining the demurrer to Count B of the complaint.
VI. There was no error in admitting in evidence defendant's Exhibit 18. This exhibit is a copy of the medical record on the plaintiff as kept by the defendant, the original having been lost through no neglect of the defendant.
Secondary evidence becomes admissible where the writing containing or constituting the primary evidence of the fact to be proved is satisfactorily shown to have been lost or destroyed without the fault of the party desiring to prove the fact and where, in the case of a lost instrument, the party has made a proper search for the instrument. 32 C.J.S. Evidence, § 823.
Preliminary proof of the loss or destruction of primary evidence is addressed solely to the trial court and its sufficiency is a question for the court and not for the jury. The sufficiency of evidence on the preliminary proof rests in the sound discretion of the trial court. Sorrell v. Scheuer, 209 Ala. 268, 96 So. 216. See also J. R. Watkins Co. v. Goggans, 242 Ala. 222, 5 So. 2d 472. It may be added that the appellant did not before its admission interpose any grounds of objection to the genuineness of the copy, its correctness and the location of the original. He did not complain that it was not the best evidence. He interposed no objection that it contained conclusions and opinions. He waived all such grounds and he cannot now complain. We find no error in this ruling of the court.
This case seems to us to be unprecedented in this state so far as we can tell. A surgeon is being sued for deliberate fraud in recommending an operation which he never performed, an operation which the undisputed evidence shows he was capable of performing. His qualifications have never been questioned. Obviously, the defendant was at a disadvantage in attempting to defend that kind of a charge. The defense was solely not guilty. In the final analysis, in our judgment there was no way for the case to be tried any better than it was tried and it seems to us that the jury rendered a just and righteous verdict which should not be disturbed.
Affirmed.
LIVINGSTON, C. J., and LAWSON and MERRILL, JJ., concur. | May 21, 1959 |
07d14b21-e45b-400a-adce-db931542be52 | Russell v. Relax-A-Cizor Sales, Inc. | 147 So. 2d 279 | N/A | Alabama | Alabama Supreme Court | 147 So. 2d 279 (1962)
Julia Walker RUSSELL
v.
RELAX-A-CIZOR SALES, INC., et al.
6 Div. 773.
Supreme Court of Alabama.
July 12, 1962.
Rehearing Denied December 20, 1962.
*280 Rives, Peterson, Pettus & Conway and J. Kirkman Jackson, Birmingham, for appellant.
Frank M. Young, S. R. Starnes and Spain, Gillon & Young, Birmingham, for appellees.
HARWOOD, Justice.
This is an appeal from a jury verdict and judgment in favor of the defendants, and from an order overruling appellant's motion for a new trial.
Appellant sued the manufacturer of an electric reducing machine, known as a Relax-A-Cizor, and the saleswoman who demonstrated it. The case was submitted to the jury on Count A, which charged substantially that:
The defendants were engaged in the business of manufacturing, assembling or selling a device under the trade name of "Relax-A-Cizor" which was sold and distributed by the defendants for use by the public as a reducing machine and muscle conditioner; that defendants sold the daughter of the plaintiff one of said devices to be used by her and members of her family; and that the device was not reasonably safe for use by the public but was imminently dangerous when used for the said purpose in that the device introduced into the human body dangerous amounts of electrical current when used in the prescribed manner; that such danger was known or by the exercise of reasonable diligence should have been known by the defendants but was not known to the plaintiff or her daughter and was not revealed to them by the defendants; that on November 10, 1957, plaintiff was using the device as directed by the defendants, when the device began suddenly to function in an imminently dangerous manner and proximately caused plaintiff to suffer severe and permanently crippling injury and damage; that the defendants negligently caused or allowed the plaintiff to use the device without having exercised reasonable diligence to notify the plaintiff that the device was imminently dangerous to human life and limb; and that plaintiff's injuries and damages were proximately caused by such negligence.
Each of appellant's two married daughters purchased a machine after demonstrations by the defendant, Mrs. McDowell. One of the daughters loaned her machine *281 to appellant, together with some of the advertising material and a book of instructions. On Sunday morning, November 10, 1957, appellant connected the machine to her body with a pad on her stomach and smaller pads on either arm. She reclined on a chaise lounge and turned on the machine, which, by electrical impulses, contracted muscles of the body for three-quarter second intervals and ceased the electrical impulses and allowed the muscles to relax for three-quarter second intervals after which the cycle of impulse and relaxation would continue.
The machine was on a coffee table beside appellant and while she was so connected up with it, she increased the electrical current into her body by increasing the regulatory dial setting of the machine. Immediately after doing this, she suddenly felt her arms being thrown over her head during the impulse interval and she felt her arms drop back into her lap during the relaxation interval. This flailing of her arms caused severe pain in her shoulders and lasted from 5 to 10 minutes while she screamed for help. She was unable to turn off the machine and she could not pull the plug of the machine out of the wall socket.
Her husband, who was taking a bath and had the water running in the tub, finally heard her screams, ran to her rescue and pulled the plug from the wall. The culmination of appellant's injuries was the insertion of a metal joint into her shoulder after the removal of a fractured bone.
The machine was later demonstrated by Mrs. McDowell and it was tested by Southern Research Institute. It was also examined and tested by a physiologist on the staff of the Medical College of Alabama. The demonstration and the test by everyone, except Dr. Emerson, was uneventful but the physiologist testified that in his opinion, the machine was unsafe for use on the human body. It was shown that over a period of 9 years, more than 300,000 of the machines had been manufactured and distributed with no complaints about fractures or dislocations of bones, and this particular machine had worked properly on every occasion before the accident and had worked properly after the accident.
The defendant pleaded in short by consent, which included the general issue and contributory negligence.
Appellant concedes that the sufficiency of the evidence is not an issue on this appeal.
The four argued assignments of error are concerned with two charges and two instances where the appellees' witness, Druz, was permitted to testify as an expert.
Appellant contended at trial that the machine which she was using suddenly produced strong electrical impulses which caused her arms to flail violently and her injuries resulted therefrom. Appellees contended that appellant turned the machine's current regulator too high, or else fell from the lounge on which she was reclining, and that her injuries were due to an intervening cause. The appellees requested charge 66, which was given by the court reads:
Appellant contends that this charge is not a correct statement of the law because it disregards those requirements of an intervening cause, namely (1) of independence, (2) of being an efficient cause within itself, (3) that the intervening agency not be reasonably anticipated or foreseen.
We agree that this charge does not fully state the law in relation to an intervening cause, but this identical charge has formerly been held good by this court. The charge is a literal copy of the second headnote in Garrett v. Louisville & Nashville R. Co., 196 Ala. 52, 71 So. 685, but it was argued in Clendenon v. Yarbrough, 233 Ala. 269, 171 *282 So. 277, that it was not a correct statement of the law. This court, after a full discussion, said:
We note that the trial court properly defined actionable negligence in this case in his oral charge by saying, "In order for negligence to be actionable, the injury must follow the negligence in the natural and probable sequence, unbroken by any independent, intervening, efficient cause, so that but for the negligence complained of, the injury would not have occurred."
We would not hold a court in error for refusing to give charge 66, but under the authority of Clendenon v. Yarbrough, supra, we will not reverse the judgment because the charge was given.
It is also argued that the court erred in giving appellees' requested written charge 52, which reads:
Appellant argues that this charge is confusing and misleading and also incorrect. We have repeatedly held that if a charge is deemed misleading, an explanatory charge should be requested, and the giving of a misleading charge does not necessitate a reversal. Blakeney v. Alabama Power Co., 222 Ala. 394, 133 So. 16; Ray v. Richardson, 250 Ala. 705, 36 So. 2d 89; First National Bank of Mobile v. Ambrose, 270 Ala. 371, 119 So. 2d 18.
We have also held that giving of an erroneous charge does not necessarily mean a reversal of the trial court. In International Union, etc. v. Russell, 264 Ala. 456, 88 So. 2d 175, 62 A.L.R.2d 669, we said:
The trial court gave a comprehensive oral charge on negligence and fully covered the subject both as to commission and omission. Conceding only for the sake of argument that the charge was erroneous, we think what we said in Morgan County v. Hill, 257 Ala. 658, 60 So. 2d 838, is applicable:
The two other assignments of error are concerned with the overruling of objections to two different questions propounded to appellees' witness, Druz, who testified as an expert. The two instances follow:
Appellant contends that the witness should not have been allowed to testify to his opinion on these matters because they were outside his field of training and experience. This contention is based largely upon the following part of the cross-examination of the witness:
The witness Druz, called as an expert witness for appellees, was Division Engineer in the Research Division of Zenith Radio Corporation and had been employed by that company for eleven years. His particular field was electronics. He served as a consulting engineer to the manufacturer of the machine in question, Eastwood Industries, for around three years and was familiar with every detail of this machine. Within the framework of the Institute of Radio Engineers, of which Druz was a senior member, there are separate professional groups who have an interest in a narrow specialized field. Druz is a member of the group on Medical Electronics. Medical Electronics is concerned with problems which arise in medicine which have to do with body processes that are electronic, or instrumentation of an electronic nature for studying various body reactions, or body effects or controls of the body. It involves the contraction of muscles as a result of some external stimuli. It involves a study of most parts of the body and a study of the excitement of muscles by stimulation, the effects and results. Also, the current produced by the heart, brain and nerves and various other currents produced by the body or which may be applied to the body are studied by this group on medical electronics. Witness Druz participated in a study made by the Psychology Department of the Illinois Institute of Technology pertaining to muscle stimulation wherein a machine was designed and constructed to produce any *284 conceivable known type of stimulation. He also had assisted the Head of the Psychology Department of the Illinois Institute of Technology and was in fact in charge of the construction of the instrumentation for measurement of reaction time and electrical stimulation of the nervous system. This machine designed by witness Druz is used at the present time in the Clinical Psychology Section of the Illinois Institute of Technology. Druz was also a member of Sigma Zi, which is a Research Scholastic Society of the equivalent of the Academic Fraternity of Phi Beta Kappa. Witness Druz was familiar in detail with the machine used by appellant and had seen the machine tested on various people eighty or ninety times and had tested the machine on himself, and that he personally had felt the effect or reaction of the stimulation produced by the machine. According to Druz, the machine was of excellent workmanship and was made of good material. Witness Druz had made tests on the very machine that appellant was using on the occasion of her alleged injury. Druz was familiar with the effect of stimulation produced by the machine on the human body. After describing the component parts of the machine, including transformers, the resister, the condenser, and other parts of the machine, as well as the turn-off switch, and after his testimony concerning his intimate familiarity with the machine in question, including the tests which had been made on the machine, Druz testified that the machine was safe for the use for which it was manufactured. When the machine is in use, the arms are caused to flex inward and relax outward. The Relax-A-Cizor machine, the very machine which appellant used, utilized power about 50 times less than a flashlight bulb consumes. When the machine is in use for three-quarters of a second, it is producing this current and then for three-quarters of a second, the current is off. The peak voltage produced by the machine existed for an infinitesimal amount of time and could not cause any contraction of the muscles. The average value of the current is only about 3 per cent of the peak voltage. The machine is under the safe maximum.
On cross-examination, Druz testified that he knew that there were electrocytes present in the lymph system of the body; that the time duration of a given amount of current has something to do with muscle contraction; that nerve fibres respond to current of much shorter duration than do muscle fibres; that some tissues are slow in action; others fast; a graded series of excitabilities may be found with the muscles at one extreme, and large nerve fibres at the other; that the greater number of amps that are applied to a muscle or fibre, the shorter the length of time it will take to excite that nerve or muscle fibre.
The competency of a witness to testify as an expert is addressed to the sound discretion of the trial court, whose decision on the evidence will not be disturbed on appeal except for palpable abuse. Dorsey Trailers, Inc. v. Foreman, 260 Ala. 141, 69 So. 2d 459; Nash v. Nash, 38 Ala.App. 682, 94 So. 2d 217, cert. denied, 266 Ala. 698, 94 So. 2d 223.
The criterion for admission of expert testimony is that the witness by study, practice, experience or observation as to a particular subject or field should have acquired a knowledge beyond that of the average layman. Police & Fireman's Ins. Ass'n v. Mullins, 260 Ala. 173, 69 So. 2d 261; Hicks v. State, 247 Ala. 439, 25 So. 2d 139. We think the witness met the test.
The witness had previously, on direct examination, without objection, testified that he was "familiar with the effect of the stimulation produced by this machine on the human body." We also note that immediately preceding his testimony that he did not know what this machine did to the muscle tissue, he was asked if he knew what this machine did to the muscles and his answer was: "I doubt if anybody does."
In Blakeney v. Alabama Power Co., 222 Ala. 394, 133 So. 16, it was held that, "A *285 witness who, as a sheet metal worker, is shown to have experience with electric current every day for years, and frequent shock from contacts therewith, was competent to testify as an expert whether a current of 120 volts will kill a human being."
In Dorsey Trailers, Inc. v. Foreman, supra, we held that a safety inspector for the State could testify that the conditions under which the defendant had its trailers painted were unsafe for the employees doing the painting. The inspector was not a physician nor was it shown that he had any substantial knowledge of the working of the human body. But he was qualified as a safety inspector.
We find no reversible error in any of the argued assignments of error, and the judgment is due to be affirmed.
Affirmed.
LIVINGSTON, C. J., and SIMPSON and MERRILL, JJ., concur. | July 12, 1962 |
94feaefe-6646-4bde-ab9e-c242987ae3a7 | Liberty Mutual Ins. Co. v. Lockwood Greene Engineers | 140 So. 2d 821 | N/A | Alabama | Alabama Supreme Court | 140 So. 2d 821 (1962)
LIBERTY MUTUAL INSURANCE COMPANY
v.
LOCKWOOD GREENE ENGINEERS, INC., et al.
6 Div. 653.
Supreme Court of Alabama.
March 29, 1962.
Rehearing Denied May 17, 1962.
Henry E. Simpson, Wm. L. Clark and Lange, Simpson, Robinson & Somerville, Birmingham, for appellant.
Joe R. Wallace and Davies, Williams & Wallace, Birmingham, for appellee Lockwood Greene Engineers.
Deramus, Fitts & Johnston, Birmingham, for Bagby Elevator & Electric Co.
SIMPSON, Justice.
This case comes before the court on appeal by appellant from a judgment of nonsuit entered on its motion resulting from the lower court sustaining separate demurrers of appellees to the several counts of appellant's complaint.
Appellant as the Workmen's Compensation insurance carrier of Beaunit Mills, Inc. brought the action to recover for the death of J. D. Nicholson, who was electrocuted while performing his duties as an employee of Beaunit Mills in the latter's mill at Coosa Pines, Alabama.
In 1951 appellee, Lock wood Greene, contracted with Beaunit to construct a permanent *822 mill including supervision over installation of electrical systems. Appellee, Bagby, contracted to install the electrical systems under the supervision of Lockwood Greene.
Generally, all counts of the complaint charge that appellees knew that if the electrical systems were not properly installed they would be imminently dangerous to Beaunit's employees. That appellees knew that the outlet in question would be used by employees under circumstances of damp quarters, and that users would be subjected to a lethal electric shock if the outlets were connected to cause neutral wires to be energized with electric current when put into operation. Also, that appellees negligently installed the electric systems in a dangerous and defective condition, in that wires connected to the outlets, not visible without inspection, were so connected as to cause electric current to be upon a wire that should have been neutral, thereby causing the shell of the electric light socket to be energized, that as a proximate consequence the death of decease was caused when he received a shock undertaking to replace a light bulb in the socket of an extension light used by him.
Appellant filed the complaint pursuant to § 312, Title 26, Code 1940. It is advanced by appellees that there is a question whether there had accrued to appellant, at the time of filing the complaint, any cause of action, for it is contended as shown by complaint, that the dependents of the deceased were the sole and exclusive owners of the alleged cause of action, and that such alleged right of action could not be assigned or waived in favor of appellant. The negligent acts are alleged to have occurred in 1952; the injury on 18 February, 1957, and suit brought on 13 August, 1958, five days short of eighteen months after death of deceased. Appellees contend that from § 312, Title 26, and § 123, Title 7, the dependents of deceased could bring the action and it was within their exclusive control within a period of two years following the death of the deceased; that if this right is not exercised by said dependents, the insurance carrier of the employer, or the employer, is vested with a statutory right of subrogation which entitles either to maintain an action only if the dependents do not file an action for wrongful death within two years; that, under these circumstances, the insurance carrier should bring the suit within the six months, i. e., between the 24th and 30th months following death. Therefore, appellees claim appellant's suit is premature, and the purported assignment or waiver by the dependent widow of deceased was ineffectual to confer on appellant any right of action against these appellees.
If this position is well taken by appellees, there was no error in sustaining the demurrers interposed to the complaint, and we are not called upon to go into the merits of the action, viz.: Whether an electrical contractor, or electrical engineer, can be held liable in tort for the death of an employee of the owner of a building where the death is the proximate consequence of negligence of the contractor and engineer, and where death occurs after the completion of the work and after acceptance of the building by the owner, and to whom there was no privity of contract.
Section 312, Title 26, Code of Alabama 1940, provided in pertinent part as follows:
The question of what statute of limitation applies to actions by subrogees under the Workmen's Compensation Acts of the various states has frequently arisen in courts throughout the country. The decisions on the question are not uniform, however, as noted at page 1045, § 2, 41 A.L.R. 2d:
This court is committed to the majority rule on this question. In Metropolitan Casualty Ins. Co. of New York v. Sloss-Sheffield Co., 241 Ala. 545, 3 So. 2d 306, in speaking of the right of subrogation given by the statute (before its amendment in 1957), this court said:
The statute of limitation of one year is applicable to actions for injury to the person. Title 7, § 26, Code of 1940; Williams v. Alabama Great Southern Ry. Co., 158 Ala. 396, 48 So. 485, 17 Ann.Cas. 516; Larue v. C. G. Kershaw Contracting Co., 177 Ala. 441, 59 So. 155; Alabama Great So. Railroad Co. v. Hawk, 72 Ala. 112, 47 Am.Rep. 403.
The statute of two years is applicable to actions for wrongful death. Title 7, § 123, Code. It follows then, that there is only one statute of limitations applicable to actions for wrongful death and this is the two-year statute. To hold otherwise would be to provide a two-year statute of limitations for wrongful death in certain classes of cases and a one-year statute of limitation for wrongful death in cases of this class arising under said § 312. We do not believe the legislature intended to produce such an anomaly by enacting the statute. The Workmen's Compensation Act of Alabama provides that the dependants of the deceased employee have the time allowed by law in which to bring the action. Their failure to do so within the time allowed by law then gives rise to the statutory right of the subrogee to bring an action. The right of subrogation depends entirely upon the statute and cannot otherwise be created. See 40 A.L.R.2d 500.
From appellant's brief it would seem that it has misconceived the provision of § 312, authorizing the employer or insurance carrier to bring the action if the dependents of the deceased employee do not bring the suit for wrongful death within the time allowed by law, as creating a new cause of action and, therefore, governed by the one-year statute of limitations. The current of opinion runs to the contrary. The compensation act merely creates a right of compensation against the employer on account of the death of an employee arising out of and in the course of employment. But it does not purport to create a cause of action for wrongful death against any other person. It is only because the wrongful death act creates such an actionable claim that the provisions for election and subrogation of the employer are operative at all. There is only one cause of action for wrongful death, not two, and this arises under the wrongful death statute and of consequence the statute of limitations provided by the wrongful death statute (two years) governs. See: Georgia Casualty Co. v. Haygood, 210 Ala. 56, 97 So. 87; Fidelity & Casualty Co. of New York v. St. Paul Gas & Light Co., 152 Minn. 197, 188 N.W. 265; Webster v. Clodfelter, 76 U.S.App.D.C. 171, 130 F.2d 434, 143 A.L.R. 280 (1942); Fidelity & Casualty Co. of New York v. Miller, 111 Ind. App. 308, 38 N.E.2d 279 (1942); Goldschmidt v. Pevelry Dairy Co., 341 Mo. 982, 111 S.W.2d 1 (1937); London Guarantee & Acc'd. Co. v. Wisconsin Public Service Corp., 228 Wis. 441, 279 N.W. 76 (1938); 41 A.L.R.2d 1044.
*824 To avert the operation of the two-years statute of limitation appellant procured from the widow an assignment or waiver for herself and her minor children, of the right to sue and authorized the appellant to sue. Such assignment or waiver was totally ineffectual to confer on appellant any right of action not granted by the statute and no such right was thus granted. Primary rights cannot be created by waiver even if the surviving widow were empowered under the act to renounce the right for herself and minor dependents. Mutual Savings Life Ins. Co. v. Hall, 254 Ala. 668(5), 49 So. 2d 298.
Section 312, as amended, conferred no such right on the widow and only by the subrogative provisions therein would appellant have any right to maintain the action at all. And to avail itself of this right it must bring itself precisely within its terms, i. e., after dependents have failed to bring action within the time allowed them by law (two years from the death of decedent). See Patterson v. Sears-Roebuck Co., 196 F.2d 947 (5th Cir.); Smith v. Southern Railway Co., 237 Ala. 372, 187 So. 195; Employers Mutual Liability Ins. Co. of Wisconsin v. Ford Motor Co., 335 Mass. 504, 140 N.E.2d 634, 637; Marmet v. Rankins, 4 A.D.2d 485, 167 N.Y.S.2d 194 (1957), app. dism., 5 N.Y.2d 782, 180 N.Y.S.2d 305, 154 N.E.2d 562; Millican v. Home Stores, Inc., 197 Tenn. 93, 270 S.W.2d 372.
Moreover, the right in the dependents of the deceased employee to maintain an action for wrongful death under said § 312 within the time provided by law could not be assigned by the widow to the appellant. A right of action for wrongful death is not assignable. Holt v. Stollenwerck, 174 Ala. 213, 56 So. 912; City of Birmingham v. Walker, 267 Ala. 150, 101 So. 2d 250, citing with approval Mercer Casualty Co. v. Perlman, 62 Ohio App. 133, 23 N.E.2d 502.
We think it clear, then, that this action was begun prematurely and that the trial court ruled correctly in sustaining the demurrers interposed to the complaint. Finding no error in this ruling, there is no necessity to consider the merits of the case.
Affirmed.
LIVINGSTON, C. J., and GOODWYN and COLEMAN, JJ., concur. | March 29, 1962 |
81186b1f-41cc-4511-a455-0cfd47f7f936 | Dockery v. State | 114 So. 2d 394 | N/A | Alabama | Alabama Supreme Court | 114 So. 2d 394 (1959)
Edwin Ray DOCKERY, alias,
v.
STATE of Alabama.
8 Div. 971.
Supreme Court of Alabama.
June 25, 1959.
Rehearing Denied September 17, 1959.
*395 Calvin, Gilchrist & Murphree, Decatur, for appellant.
MacDonald Gallion, Atty. Gen., and Geo. D. Mentz, Asst. Atty. Gen., for the State.
MERRILL, Justice.
Appellant was convicted of murder in the first degree and was sentenced to death by electrocution. His appeal is here under the automatic appeal statute. Act No. 249, approved June 24, 1943, p. 217; Code 1940, Tit. 15, § 382(1), et seq., 1955 Cum. Pocket Part.
Willie Heatherly, age twenty-seven, was last seen alive in Cullman, on the afternoon of August 9, 1958, in his black, 4-door 1958 Chevrolet. He was discovered dead on the afternoon of August 12, his hands tied behind his back with rubber tubing and a leather belt twisted tightly around his neck, in Morgan County about fifty yards north of the Cullman County line. His death was the result of strangulation from the belt applied around the neck, which broke the trachea. The body was badly decomposed when found.
There was an abundance of evidence which placed the appellant, who was from Fayette, in the vicinity of where the body was discovered, and put him in the automobile of the deceased after the crime was committed.
*396 The State also showed inculpatory statements or confessions by appellant as follows:
1. Statement to Kathleen Nabors on August 12, 1958, that he had to leave Fayette because he had killed a man and he had to get out of town", that he had tied his hands behind his back, put a belt around his neck and drug him into the woods;
2. Statement to Martha Murphy on August 11 that he had a fight with a man whom he had left on the side of the road with a belt around his neck;
3. Showing Howard D. Morris the article in the Birmingham newspaper regarding death of deceased and appellant later telling him that "I am the man that killed him;"
4. Detailed statement to Lt. Richard F. Jordan on August 13 and 14 that he killed the man and looped the belt over his neck and drug him out of the car into the woods face up;
5. Statements to R. W. Godwin on August 15, August 16 and August 17 regarding appellant's connection with the choking and killing of deceased.
Evidence for the State further tended to show that appellant was picked up by a motorist in Warrior around 4:00 P.M. on Saturday, August 9, brought to Cullman and that he was then wearing a white cotton sling with no blood on it.
According to some of his statements to the officers, the deceased later picked him up in Cullman, they rode around a while, then drove off on a dirt road, that after both of them had gotten out of the automobile, the deceased made perverted sexual advances on appellant, whereupon, appellant knocked him down, and in an ensuing fight, appellant chocked him until he was dead. He then removed deceased's belt and shoes, looped the belt around his neck, tied his hands behind his back with a rubber tube, took what money deceased had and left the body in the woods.
It was further shown that appellant drove the automobile of deceased into a filling station as Hartselle at 3:00 A.M., August 10, that the automobile was found in a parking lot in Birmingham on the morning of August 11, that appellant's fingerprints were on the automobile, and that a white cotton sling with blood stains of Type O on it was found in the automobile. It appears that appellant went back to Fayette on Sunday, the 10th, was picked up while hitchhiking west of Birmingham by Sgt. Howard D. Morris on Wednesday, August 13, who was en route from Fort Sill, Oklahoma, to Fort Dix, New Jersey, via Atlanta, Georgia. Appellant was apprehended in or near Atlanta. The record is not clear but the inference from the testimony is that he was taken to a hospital in Atlanta in an ambulance and from the hospital to the jail by Atlanta police.
The appellant did not take the stand but witnesses were introduced in his behalf to show that he was of unsound mind in support of his plea of not guilty by reason of insanity. He was ably represented at the trial and on this appeal by court appointed counsel.
Appellant contends that the court erred in three instances in admitting evidence which tended to prove the commission of other separate crimes or offenses by appellant.
The State called Donald Bullard as a witness. He testified that appellant drove the automobile of the deceased into the filling station where he worked at Hartselle, on August 10 at 3:00 A.M. He made positive identification of appellant. The solicitor asked this question: "What position were your hands in at the time the defendant left?" The objection was sustained. Appellant contends that this was the solicitor's way of letting the jury know that appellant had robbed the filling station, and that if the answer had been permitted, the witness would have testified that his hands were above his head.
*397 But there is nothing in the record to support this contention and the objection to the question was sustained. An appellate court can only look to the record and not to the briefs to ascertain the facts, Walker v. State, 223 Ala. 294, 135 So. 438, or as stated in Christian v. Reed, 265 Ala. 533, 92 So. 2d 881, 885, "Argument reciting matters not disclosed by record cannot be considered."
The next instance was in connection with the testimony of Sgt. Howard D. Morris, who testified that after he picked up appellant between Tuscaloosa and Birmingham, appellant asked him three or four times to read a newspaper article about the death of a man in Alabama. (This was the account of Heatherly's death, his body having been discovered on the 12th, the day before.) Being sleepy, Morris allowed appellant to drive and he went to sleep around 8:30 P.M., somewhere between Birmingham and Atlanta. He testified that he later awoke, the car was stopped and when asked where appellant was, he answered that appellant "was leaning over me with a knife in his hand." After objection was overruled, the following then occurred:
Appellant contends that this was evidence of an assault on Morris, a separate and distinct offense. But the statements attributed to the appellant by the witness were admissible under the rule that the accused's acts, declarations and conduct against interest are competent. Blackwell v. State, 264 Ala. 553, 88 So. 2d 347, and cases there cited. We have held that proof of the circumstances attending the narration of inculpatory statements or confessions which establish the voluntary nature of such statements is admissible. Drake v. State, 257 Ala. 205, 57 So. 2d 817; Tillison v. State, 248 Ala. 199, 27 So. 2d 43. The statements of appellant would hardly have made sense without the explanation of the circumstances under which they were uttered.
"Evidence which is relevant to establish some element of the offense, or material as to some issue in the case, is not rendered inadmissible by the fact that it also tends to show another offense committed by defendant." Snead v. State, 243 Ala. 23, 8 So. 2d 269, 270, and authorities there cited. There was no reversible error in this instance.
The third occasion occurred a few questions later in the questioning of the same witness:
"Q. You didn't leave that spot where this defendant stopped and got on you with a knifeyou didn't leave that spot in your own car?
Appellant contends that this evidence was admitted to show that appellant stole the automobile belonging to witness Morris. True, the witness testified that appellant stole the car, but the court sustained the objection, excluded the statement and, on motion of appellant, instructed the jury not to consider it. The court ruled with appellant and did everything that appellant asked to be done. Each ruling was favorable to appellant and there is nothing for us to review, except the question, under the automatic appeal statute, of whether this testimony and the court's action pertaining to it "was seriously prejudicial to the rights of the appellant."
This instance is similar to that described in Sims v. State, 253 Ala. 666, 46 So. 2d 564, 565, where the death penalty was imposed for murder in the first degree. A witness for the State was asked:
The witness later made a reference to the "first arrest" which was not on the murder charge. Each time the defendant objected and moved for a mistrial. Each time the court excluded the statements and instructed the jury not to consider them, but overruled the motion for a mistrial. This court held that the testimony about "the former arrest came out incidentally, not in response to a question which directly called for it," and that no prejudice resulted to the defendant. Here also, the charge of a separate offense came out incidentally. The question was"What happened to your car?" This question did not call for the answer"This man stole it." As already shown, the court then sustained the objection, excluded the answer and instructed the jury not to consider it. We conclude that this was not seriously prejudicial to the rights of the defendant. Sims v. State, supra; Wyatt v. State, 35 Ala.App. 147, 46 So. 2d 837; Henley v. State, 31 Ala.App. 433, 18 So. 2d 98; Lumpkin v. State, 19 Ala. App. 272, 97 So. 171; and Mosely v. State, 19 Ala.App. 335, 97 So. 247. To hold otherwise would establish a precedent by which an interested adroit witness could volunteer some similar objectionable statement and thereby stop the trial and defeat the progress of any case.
Appellant next contends that the State attacked his character when it had not become an issue in the case.
State's witness, Cletus Brown, testified that he picked appellant up in Warrior and carried him to Cullman on the afternoon of August 9th; that appellant had a sling on one of his arms and carried a pasteboard sign with the words "Fort Knox" written on it. He testified that appellant said he was in the Army; was returning to Fort Knox, after a visit to see his girl friend in Mobile, and that he had been in a wreck, torn up his automobile, had been released from the hospital that day and that he had been raised in Michigan. Appellant says that all of these statements were lies, that the jurors knew they were lies and that the testimony could have served only one purpose, which was to prove to the jury that the appellant was a chronic liar. *399 Whether the jury knew these statements were untrue is matter dehors the record and is not for our consideration. Walker v. State, 223 Ala. 294, 135 So. 438; Christian v. Reed, 265 Ala. 533, 92 So. 2d 881. Some of this evidence was not particularly relevant, but we are unable to say that it was prejudicial to appellant. By his own confession, appellant later that same day was riding as a hitchhiker in the car of the deceased shortly before he killed him. We think it helped to explain the pattern of appellant's operations in catching rides with motorists and gaining their confidence. Under the automatic appeal statute, we consider all testimony whether objection or exception was made thereto, Alberson v. State, 254 Ala. 87, 47 So. 2d 182, 186, but we cannot say that this testimony "was seriously prejudicial to the rights of the appellant."
Appellant also urges that the court erred in allowing the State to introduce the original, recorded honorable discharge of the deceased into evidence, after deceased's mother had identified his signature on it. The purpose stated by the solicitor was to show that the deceased had blood Type O which was the same type blood found on the sling in deceased's car which had presumably been worn by appellant when he got in the car prior to the time he killed deceased. Appellant urges that the real purpose was to bolster the character of the deceased in order to show that he was not a sexual pervert as the appellant had claimed in some of his confessions. In homicide cases, character reputation of the deceased is not ordinarily an issue and proof relevant thereto is generally inadmissible and constitutes reversible error. Williamson v. State, 258 Ala. 24, 61 So. 2d 1; Webster v. State, 207 Ala. 668, 93 So. 545. Under these authorities, it would have been error to admit any evidence as to the character reputation of deceased, there being no evidence of self-defense.
But this case is largely based upon circumstantial evidence, and when so, "testimony may permissibly take a wide range and any fact from which an inference may be drawn relating to the crime is competent evidence." Green v. State, 258 Ala. 471, 64 So. 2d 84, 88. It has also been held that any testimony tending reasonably to establish the probability or improbability of the fact in controversy is admissible in evidence. Hunter v. State, 38 Ala.App. 351, 83 So. 2d 737; Holland v. State, 25 Ala.App. 147, 142 So. 112.
Here, appellant was first seen wearing a clean sling on the afternoon of the murder. Later, a bloodstained sling was found in the car of the deceased, which had admittedly been driven by appellant after the murder. The blood on the sling was Type O. The discharge showed the blood of the deceased to be Type O. We think these facts presented a situation where the discharge was admissible to show the type blood of deceased. That is the basis on which the trial court allowed its introduction. Appellant could have had it limited for that purpose had he requested the court to so instruct the jury. Moreover, the discharge is dated 25 February 1954, some four and one-half years prior to deceased's death. We can see no probative value as to his reputation in a document so remote in time from the date of the crime; and as already noted, it was admissible to show his blood type, not to show that he had previously served in the Army.
Title 60, § 52, Code 1940, provides that a recorded honorable discharge, or a certified copy thereof, "shall have the same standing and be governed by the same laws of the State of Alabama as now pertain to the admissibility in evidence in courts of this state of recorded deeds and mortgages and other recorded instruments." See also, Wigmore on Evidence, Third Edition, § 1675a.
We have spoken of the honorable discharge as one paper. Actually, two different pieces of paper comprise the exhibit (No. 18). The first is WD AGO Form 55, the "Honorable Discharge" which, of *400 course, carries no information as to blood type. The other sheet of the exhibit is the Report of Separation, DD Form 214, which was recorded with the honorable discharge. We have treated these two papers as an entity as they were so treated in the court below.
In accordance with our duty in cases of this character, we have examined the record for any reversible error, whether pressed upon our attention or not. We find no reversible error in the record and the judgment is due to be and is affirmed.
Affirmed.
All the Justices concur. | June 25, 1959 |
aa39aef1-cc25-420c-b284-6dc1b75feb5a | Lauderdale County Board of Education v. Alexander | 110 So. 2d 911 | N/A | Alabama | Alabama Supreme Court | 110 So. 2d 911 (1959)
LAUDERDALE COUNTY BOARD OF EDUCATION et al.
v.
W. W. ALEXANDER et al.
8 Div. 963.
Supreme Court of Alabama.
April 9, 1959.
*913 E. B. Haltom, Jr., and Bradshaw & Barnett, Florence, for appellants.
Pounders & Wilson, Florence, for appellees.
MERRILL, Justice.
This appeal is from two decrees of the Law and Equity Court of Lauderdale County, in Equity. The first decree is an interlocutory decree overruling respondents' separate and several motions to dissolve the temporary injunction theretofore issued in the cause ex parte without hearing, and is appealed from by all the respondents. An appeal from this decree is allowed by Tit. 7, § 757, Code 1940, and was the method used in Corte v. State, 259 Ala. 536, 67 So. 2d 782.
The second decree is an interlocutory decree rendered by the court overruling the demurrers of two of the seven respondents to the bill of complaint as a whole and to certain named aspects thereof, separately and severally, and the appeal is authorized by Tit. 7, § 755, Code 1940. This decree is appealed from by the Lauderdale County Board of Education and Allen Thornton, Superintendent of Education of Lauderdale County.
Since all the respondents demurred "separately and severally", the lower court could sustain the demurrer to some *914 of the respondents and overrule it as to the others. There may be two or more decrees in a suit, each of which is final for the purposes of an appeal, Wynn v. Tallapoosa County Bank, 168 Ala. 469, 53 So. 228, and it is permissible for two of the seven respondent-appellants to appeal from the additional decree.
The original bill of complaint was brought by the twelve complainants against the Lauderdale County Board of Education, Allen Thornton, Superintendent of Education, and five additional respondents. It alleges that the complainants are all owners of certain described real estate in Lauderdale County, Alabama, and that all complainants, except two, either reside on or have erected new and modern homes on these lands. The bill further alleges that prior to August, 1958, the residential section in which they reside had no manufacturing or industrial plants or businesses located therein, except the Florence Fairgrounds, and that the lands have been zoned by the City of Florence as a residential section and that in reliance on this classification, the complainants have built and purchased their homes. The bill avers further that since August 1, 1958, the respondents have commenced to build immediately behind or adjoining to their homes and properties a "County Barn", wherein the respondents seek to store school buses, coal supplies, school supplies, and establish a repair and maintenance shop for the Lauderdale County, Alabama, school system. It is further averred that respondents have possession and control of a certain tract of land for public school purposes, that the land is within the corporate limits of the City of Florence and that the respondents, on or about August 6, 1958, commenced erecting a fence around the lands. The bill of complaint then alleges "upon information and belief" that the "County Barn" is to consist of a storage area for 92 school buses, a large coal storage area to supply the county schools, and a large repair and maintenance shop for the purpose of maintaining the 92 buses. It is alleged that in the operation of such business, there will be constantly created noises of such a volume and character as to materially distress or cause discomfort to the complainants in their enjoyment and use of their properties as residences. It is averred that the value of complainants' property will be materially diminished.
It is further alleged that respondents had knowledge or notice of the injury or damage that such use of the property would cause to the complainants, that respondents were requested to relocate the "County Barn" and that, nevertheless, respondents have commenced to build. In addition, the bill avers that the business upon the premises will be ugly and unsightful, that unreasonable, intolerable, harsh, loud, constant and discomforting noises will occur, and that the business will detract from the desirability of the section as one in which to live and that if the conditions are allowed to continue, complainants will suffer irreparable injury. The bill further alleges the inadequacy of a remedy at law and prays for a temporary injunction restraining the respondents from constructing the "County Barn" or from extending or continuing the construction already begun on the premises, pending further orders of the court. In addition, there is a prayer that upon final hearing the court will adjudge and decree the business attempted to be placed on the land to constitute a nuisance and by proper decree abate it, and the bill concludes with a prayer for general relief.
On the same day the bill was filed, the court entered an order for the issuance of the temporary writ of injunction, as prayed for in the bill of complaint, upon complainants entering to a $1,500 injunction bond to be approved by the Register. The bond was filed, approved and the writ issued by the Register that same day. On September 10, 1958, respondents filed their separate and several motions to dissolve the temporary injunction, assigning as the sole grounds therefor that there was no *915 equity in the bill of complaint. These motions to dissolve the temporary injunction are the proper procedural steps for testing the right of the complainants to the temporary injunction. Barran v. Roden, 263 Ala. 322, 82 So. 2d 401. At the same time, respondents demurred separately and severally to the bill of complaint as a whole and to six-named aspects of the bill of complaint. No questions are here presented relating to these several aspects.
On September 26, 1958, the court entered the two decrees, as noted supra. The first decree overruled respondents' separate and several motions to dissolve the temporary injunction. The second decree sustained the demurrers of five of the respondents because of the failure of the bill to show that each of the five respondents was a proper party; but overruled the demurrers of the remaining two respondents, Lauderdale County Board of Education and Allen Thornton, Superintendent of Education. The general demurrers were properly overruled if the bill contains any equity. Long v. Monroe County Bank, 226 Ala. 26, 145 So. 471. The bill was later amended to show the five respondents to be proper parties.
Counsel for appellants concede that the issue they seek to raise on this appeal is whether equity is stated in the bill of complaint. If the bill is without equity, it will not support an injunction and the lower court, therefore, erred in overruling the various motions to dissolve the temporary injunction and in overruling the demurrers assigning as grounds that the bill contained no equity. Gibson v. Elba Exchange Bank, 264 Ala. 502, 88 So. 2d 163; Williams v. Still, 263 Ala. 214, 82 So. 2d 230, Kimbrough v. Hardison, 263 Ala. 132, 81 So. 2d 606. If, to the contrary, the bill does contain equity, we should affirm the two decrees of the court below, thus allowing the parties to plead further if they desire and the suit to proceed to a hearing and to the taking of evidence. This is in order that the court below may either vacate the temporary injunction should the proof and pleadings demand it, or enter an order for the issuance of a permanent writ of injunction should the complainants make out their case.
Before proceeding to a consideration of the allegations of the bill of complaint, we note that the general demurrers to the bill for want of equity under Equity Rule 14, Tit. 7, Appendix, Code 1940, test "defects in substance, and all proper amendments are considered to have been made," Terry v. Town of Hanceville, Ala., 109 So. 2d 842, 844; Wood v. Burns, 222 Ala. 650, 133 So. 696, and that it is immaterial whether the nuisance is private or public in its character. Radney v. Town of Ashland, 199 Ala. 635, 75 So. 25, L.R.A. 1917E, 366.
Title 7, § 1081, Code 1940, provides:
This definition of a nuisance is declaratory of the common law and does not supersede it as to the other conditions and circumstances constituting a nuisance under common law. Duncan v. City of Tuscaloosa, 257 Ala. 574, 60 So. 2d 438; Milton v. Maples, 235 Ala. 446, 179 So. 519. And as stated in 66 C.J.S. Nuisances § 13, "* * * There are some nuisances in which the act complained of may be wrongful, but constitutes a nuisance only by reason of its location; and there may be an act or condition that is rightful, or even necessary, but may become a nuisance by reason of its location. What might be a nuisance in one locality might not be so in another; and, conversely, what might not *916 be a nuisance in one place may become a nuisance in another. Thus, business which might be perfectly proper in a business or manufacturing neighborhood may be a nuisance when carried on in a residential district; and, conversely, a business which with its incidents might well be considered a nuisance in a residential portion of a city or village may not be subject to complaint when conducted in a business or manufacturing locality."
The case of Jackson v. Downey, 252 Ala. 649, 42 So. 2d 246, 247, is analogous and in point. In that case, citizens of Birmingham in a residential area sought an injunction against members of the Park and Recreation Board of the City of Birmingham, the Superintendent of Parks and against the members individually, from the development of a portion of a city park into a baseball diamond for the purpose of playing night hard baseball games. The trial court sustained demurrers to the bill of complaint and the residents appealed. In reversing this decree, we said:
In the case of Bloch v. McCown, 219 Ala. 656, 123 So. 213, 215, an injunction was sought to restrain the construction of a gasoline filling station and tire repair shop in a residential section on the ground that it would become a nuisance. The lower court sustained a demurrer to the bill of complaint and complainants appealed. In reversing and remanding, we said:
* * * * * *
We have carefully considered the allegations of the bill of complaint in the instant case and think that they adequately set out a case for injunctive relief. The "location" of the lands in question is meticulously set out in the bill by descriptions not unlike those found in deeds of conveyance. Certainly the court below has a "common knowledge" of the "inevitable consequences" to follow upon the conduct of the business of servicing, maintaining and storing 92 school buses, and supplying the county schools with coal.
Some of these facts are averred "upon information and belief" and one of the contentions of counsel for appellants is that an averment on information and belief in such form has been held to be bad pleading, not putting the facts in issue. Cullman Property Co. v. H. H. Hitt Lumber Co., 201 Ala. 150, 77 So. 574, 578. Such an averment is bad. The correct form of averment is:
But, as noted supra, on an appeal from a decree overruling a general demurrer for want of equity, all proper amendments of procedural form are considered to have been made since the general demurrer tests only defects in substance. Wood v. Burns, supra; Terry v. Town of Hanceville, supra.
Appellants neither cite nor argue in brief such cases as City of Bessemer v. Abbott, 212 Ala. 472, 103 So. 446; Densmore v. City of Birmingham, 223 Ala. 210, 135 So. 320, and City of Bessemer v. Chambers, 242 Ala. 666, 8 So. 2d 163, but concede in brief "that a county board of education, its members, and the county superintendent of education, can be restrained by injunctive process of a court of competent jurisdiction from constructing or managing and operating a nuisance to the hurt, inconvenience or annoyance of others even though such construction or such function is in furtherance of their statutory duties to maintain and promote the public educational system of the county." The last cited cases have no application to the instant case in its present statusthat of the overruling of a demurrer to the bill, where the facts alleged must be treated as true. The distinction is aptly pointed out in the first paragraph quoted supra from Jackson v. Downey, 252 Ala. 649, 42 So. 2d 246, which follows City of Selma v. Jones, 202 Ala. 82, 79 So. 476, L.R.A.1918F, 1020. The bill in the instant, case contains equity and the motions to dissolve the temporary injunctions were properly overruled.
The final question is whether a county board of education actively engaged in the pursuance of the construction of a "County Barn" is subject to a zoning ordinance of a municipal corporation. Appellants contend that the zoning ordinances of a municipal corporation cannot be enforced to prohibit them from constructing and operating the facility in question in the zoned residential district. We agree with this contention. The zoning ordinance in the instant case may, or may not, be evidence of the nature of the locality involved.
We have held that when a city is engaged in a proprietary business, it is subject to its own zoning regulations; but *918 that when engaged in a governmental function, it is not subject to its own zoning regulations. Jefferson County v. City of Birmingham, 256 Ala. 436, 55 So. 2d 196; Alabama Alcoholic Beverage Control Board v. City of Birmingham, 253 Ala. 402, 44 So. 2d 593. See 62 C.J.S. Municipal Corporations § 226(16) (c); 58 Am.Jur., Zoning, § 120. We have said that the county board of education is acting in a quasi-legislative capacity when it locates consolidated schools and provides for the transportation of pupils as a part of the system. Shores v. Elmore County Board of Education, 241 Ala. 464, 3 So. 2d 14. If a city engaged in a governmental function is not subject to its own zoning regulations, certainly a county engaged in a governmental function is not subject to a city's zoning regulations. The construction and operation of a "County Barn" as heretofore described is a governmental function of a county board of education.
It, therefore, follows that the trial court correctly overruled the motion to dissolve the temporary injunction and the demurrer to the bill on the ground that there was no equity in the bill.
Affirmed.
LIVINGSTON, C. J., and LAWSON and STAKELY, JJ., concur. | April 9, 1959 |
5215970e-f56f-4db3-833d-5d61d3ff1d30 | O'BAR v. Town of Rainbow City | 112 So. 2d 790 | N/A | Alabama | Alabama Supreme Court | 112 So. 2d 790 (1959)
Ann O'BAR
v.
TOWN OF RAINBOW CITY et al.
7 Div. 426.
Supreme Court of Alabama.
May 28, 1959.
Arthur Burns, Gadsden, for appellant.
Geo. Murphy and Jas. B. Waid, Gadsden, for appellees.
*791 SIMPSON, Justice.
This is an appeal by Ann O'Bar, operator and owner of the Skyline Club, from a decree of the trial court declining to order and direct appellees, the Town Council and Mayor of Rainbow City, to rescind their revocation of the license of appellant to operate a night club and cafe in the town of Rainbow City.
The single issue presented by the pleadings is whether or not the action of the appellees in revoking appellant's license was arbitrary and an abuse of their discretion.
From the evidence which was heard ore tenus by the trial court it appears that on March 30, 1958 appellant was given written notice that at the regular meeting of the Town Council on April 4, 1959 and at a specified place, the Council would consider and vote upon the revocation of her license upon the ground that the public safety, peace, good order, or decency require it.
The hearing of the Town Council was held on April 4, at which time appellant was present and was represented by counsel. It further appears that witnesses appeared on behalf of appellant, as well as appellees, and a full hearing was had. After hearing the evidence, the Town Council unanimously voted to revoke appellant's license.
The evidence offered at the hearing in support of the revocation of appellant's license showed that upon a complaint being filed, two deputy sheriffs of Etowah County went to the Skyline Club, appellant's place of business, on December 6, 1957 and thereupon found two pints of vodka in appellant's hands. It further appears that Etowah County is a "dry" county. Evidence was also adduced that the Skyline Club was objectionable to residents of the community who lived in the vicinity of said club because of the loud music which is played there until two or three o'clock a. m., loud talking, hollering, and general boisterous disturbances.
Section 752, Tit. 37, Alabama Code 1940 provides that a city or town council shall have the right and power to revoke any and all licenses issued to any house of public entertainment when, in their judgment, the public safety, peace, and good order or decency may require it.
There is no contract, vested right or property in a license as against the power of a state or municipality to revoke it in a proper case. The license cannot, however, be arbitrarily revoked. Cavu Club v. City of Birmingham, Ala., 110 So. 2d 307; City of Birmingham v. Bollas, 209 Ala. 512, 96 So. 591; Richardson v. Reese, 165 Tenn. 661, 57 S.W.2d 797; Friedland v. Ingersoll, 249 App.Div. 623, 291 N.Y.S. 32; 33 Am.Jur., Licenses, § 65; 53 C.J.S. Licenses § 42; 18 Ala.Lawyer 132, 137; 3 McQuillin, Mun.Corp., 2d Ed., 1108.
With respect to judicial review of the action of the official body intrusted with the duty of the revocation of licenses, its action should not be disturbed except for clear and manifest abuse of discretion. State ex rel. Bluemound Amusement Park v. Mayor of City of Milwaukee, 207 Wis. 199, 240 N.W. 847, 79 A.L.R. 281; 33 Am. Jur., Licenses, § 67; 53 C.J.S. Licenses § 44.
And where there is substantial evidence to support the action of the city governing authorities in the revocation of the license, it cannot be said that they acted arbitrarily or abused their discretion. Cavu Club v. City of Birmingham, supra; City of Chicago, Ill. v. Kirkland, 7 Cir., 79 F.2d 963.
Upon a review of the record we conclude that the action of the Town Council in revoking appellant's license was not without substantial evidence. See Cavu Club v. City of Birmingham, supra see also Little Man's Club v. Schott, Fla.1952, 60 So. 2d 624.
*792 Appellant's application for rehearing was denied by the trial court and in said application appellant, for the first time, raised the question of the constitutionality of § 752, Tit. 37, Alabama Code 1940. Appellant, in brief, also urges that the statute is unconstitutional. It is clear that no appeal will lie from an order of the trial court on an application for rehearing in equity unless it modifies the final decree. Equity Rule 62, Tit. 7, Alabama Code 1940. And the decree overruling an application for rehearing is not subject to review by an assignment of error made on appeal from the final decree. Whitman v. Whitman, 253 Ala. 643, 46 So. 2d 422; McNeil v. Hadden, 261 Ala. 691, 76 So. 2d 160. We, therefore, pretermit any review of the question of the constitutionality vel non of said statute for that such question will be considered on appeal only when it is properly presented. See Coleman v. Mange, 238 Ala. 141, 189 So. 749; Lane v. Bruner, 236 Ala. 269, 182 So. 5; City of Talladega v. Ellison, 262 Ala. 449, 79 So. 2d 551; Cooper v. State ex rel. Hawkins, 226 Ala. 288, 147 So. 432; Donaghey v. Owen, 259 Ala. 376, 66 So. 2d 895.
Appellant also urges error on the part of the trial court in excluding certain evidence. We conclude that any error in the rejection of said evidence is error without injury. McGifford v. Protective Life Ins. Co., 227 Ala. 588, 151 So. 349; Monogram Hardware Co. v. Louisville & N. R. Co., 6 Ala.App. 629, 60 So. 949; Bryant v. Southern Railway Co., 137 Ala. 488, 34 So. 562; Lee v. Raiford, 171 Ala. 124, 54 So. 543; Armstrong v. Sellers, 182 Ala. 582, 62 So. 28.
No error is made to appear in the proceedings below.
Affirmed.
LIVINGSTON, C. J., and GOODWYN and COLEMAN, JJ., concur. | May 28, 1959 |
27a399e1-ff98-4f00-ba83-03b9a22b1d19 | Mabry v. State | 110 So. 2d 260 | N/A | Alabama | Alabama Supreme Court | 110 So. 2d 260 (1959)
Jessie W. MABRY
v.
STATE of Alabama.
6 Div. 408.
Supreme Court of Alabama.
March 12, 1959.
Griffin & Wilson, Birmingham, for petitioner.
MacDonald Gallion, Atty. Gen., and John F. Proctor, Asst. Atty. Gen., opposed.
MERRILL, Justice.
The Attorney General has filed a motion to dismiss the petition for certiorari because it was filed too late. The record shows that the defendant's application for rehearing was overruled by the Court of Appeals on February 10, 1959. The petition for writ of certiorari was not "filed with the clerk of this court within fifteen days after the action of said court of appeals upon the said application for rehearing," as required by Supreme Court Rules, rule 39, Code 1940, Tit. 7 Appendix.
The motion to dismiss the petition must be granted. Ex parte Taylor, 211 Ala. 282, 100 So. 331; Robinson v. Beale, 219 Ala. 154, 121 So. 428; Morgan Plan Co. v. Beverly, 255 Ala. 235, 51 So. 2d 179.
Petition dismissed.
LIVINGSTON, C. J., and LAWSON and STAKELY, JJ., concur. | March 12, 1959 |
8264e027-19ad-4afe-ace9-fba8238f5448 | Jeffries v. Boyd | 112 So. 2d 210 | N/A | Alabama | Alabama Supreme Court | 112 So. 2d 210 (1959)
Dovie Eriene Bice JEFFRIES
v.
Jean Bice BOYD.
5 Div. 668.
Supreme Court of Alabama.
May 21, 1959.
A. B. Foshee, Grady Reynolds and Reynolds & Reynolds, Clanton, for appellant.
R. Lea Harris, Montgomery, for appellee.
LIVINGSTON, Chief Justice.
Isaac Lee Bice departed this life, testate, on July 18, 1956, leaving certain personal property and real estate located in Chilton County, Alabama. Bice was married twice and left surviving him three adult daughters by the first marriage. His second wife was living at the time Bice died but had divorced him and married one Jeffries.
Laying to one side other arguments for a reversal, the principal question presented by this record is whether or not the second wife of Bice is entitled to letters testamentary on his estate.
In short, the material facts presented by the record are substantially as follows:
On January 15, 1948, Bice and his second wife, Dovie Erlene Bice, executed joint wills. By the will of Isaac Lee Bice, he bequeathed to his then wife, Dovie Erlene Bice, certain personal property and also devised certain real estate to her for her lifetime. The will then contained the following:
On the 20th day of October 1954, Isaac Lee Bice and Dovie Erlene Bice were divorced. Later, as stated above, Dovie *211 Erlene Bice was married to one Jeffries. On October 2, 1956, the will of Isaac Lee Bice was duly admitted to probate and record, without contest, by the Probate Court of Chilton County, Alabama. On October 8, 1956, Dovie Erlene Bice Jeffries filed her petition in the Probate Court of Chilton County, Alabama, seeking letters testamentary of the estate of Isaac Lee Bice, deceased. On November 28, 1956, Jean Bice Boyd, a daughter by the first marriage of the deceased, filed her petition in the Probate Court of Chilton County, Alabama, seeking to be appointed "either administrator or executrix of the estate of Isaac Lee Bice, deceased." On December 19, 1956, the Probate Judge of Chilton County entered an order setting both petitions for a hearing on January 4, 1957. On January 12, 1957, the Probate Judge entered an order denying the petition of Dovie Erlene Bice Jeffries and granting the petition of Jean Bice Boyd. Mrs. Jeffries appealed.
Section 1 of Act No. 287, p. 572, Acts of Alabama 1951 (Reg.Sess.), provides:
In consequence of the foregoing Act, Mrs. Jeffries admits that she can take nothing under the will of Isaac Lee Bice, but does insist that she is entitled to administer the estate of the deceased under the above-quoted provisions of the will.
We do not agree.
The above-quoted provisions of the will of Isaac Lee Bice, deceased, nominates "my wife" as executrix of his last will and testament, but Dovie Erlene Bice Jeffries was not the testator's wife at the time of his death on July 18, 1956.
A will speaks as of the date of testator's death, and will be construed as operating according to then existing conditions, unless a contrary intent is shown, Caldwell v. Caldwell, 204 Ala. 161, 85 So. 493; Crawford v. Carlisle, 206 Ala. 379, 89 So. 565, and the language of a will, in the absence of a manifest intention to the contrary, speaks as of the testator's death. Allen v. Maxwell, 249 Ala. 655, 32 So. 2d 699; Werneth v. Hanly, 262 Ala. 219, 78 So. 2d 299.
None but the naive could believe that it was the intention of the testator that his divorced wife should act as the executrix of his estate. Unless the instrument clearly imports such intention, as it does not, the law should not operate to that result. The provision of the will here under consideration does not name Dovie Erlene Bice (now Mrs. Jeffries) as the executrix of his will, but does name "my wife," and imports consideration of the marital relation, and clearly contemplates the wife to be in lawful wedlock with him at his death. The divorce between the parties severed the marriage relation, and thereafter Dovie Erlene Bice (Mrs. Jeffries) was no longer the wife of Isaac Lee Bice. In contemplation of law, each was then a single person and she could never thereafter (except by a subsequent valid marriage with him) have been his wife at his death. Goodman v. McMillan, 258 Ala. 125, 61 So. 2d 55. Therefore, it is clear that she is not entitled to letters testamentary on the estate of Isaac Lee Bice.
Other questions argued in brief are of no moment under the above holding and are not considered.
Affirmed.
LAWSON, STAKELY and MERRILL, JJ., concur. | May 21, 1959 |
d0b2c829-d21e-4c9b-874a-38a303cf2e8f | Alabama Public Service Com'n v. Southern Ry. Co. | 111 So. 2d 214 | N/A | Alabama | Alabama Supreme Court | 111 So. 2d 214 (1959)
ALABAMA PUBLIC SERVICE COMMISSION
v.
SOUTHERN RAILWAY COMPANY.
3 Div. 840.
Supreme Court of Alabama.
April 9, 1959.
John Patterson, Atty. Gen., Roy W. Kimbrough, Sp. Asst. Atty. Gen., Wm. C. Younger, Asst. Atty. Gen., and Wm. F. Black, Montgomery, of counsel, for appellant.
*215 Jos. F. Johnston, Meade Whitaker and Cabaniss & Johnston, Birmingham, for appellee.
SIMPSON, Justice.
This is an appeal from a decree of the Circuit Court, in Equity, of Montgomery County, setting aside an order of the Alabama Public Service Commission and granting appellee the right to discontinue operation of passenger trains 19 and 20.
The suit originated when the Southern Railway Company applied to the Alabama Public Service Commission on November 8, 1956, for permission to discontinue its intrastate passenger trains Nos. 19 and 20 operating between Birmingham and Mobile via Selma. Formal hearing on the petition was held in Selma, Alabama, and the Commission denied the petition and concluded its order in part as follows: "We are of the opinion that a public need exists for the service and that the need outweighs the losses being sustained by petitioner. We, therefore, find that the public convenience and necessity require the continued operation of passenger trains numbers 19 and 20 between Birmingham and Mobile, Alabama." An appeal to the Circuit Court of Montgomery County was perfected and, after hearing that court entered its decree setting aside the Commission's order and granting Southern's petition, from which decree this appeal is taken.
An ancillary proceeding out of this same suit involving the validity of an order of the Circuit Court granting a supersedeas of the Commission's order also came here by a petition for a writ of mandamus to review the Circuit Court's order granting supersedeas. That proceeding culminated in our decision that the lower court was without jurisdiction to supersede the order of the Commission and that the peremptory writ of mandamus should issue. Ex parte Alabama Public Service Commission, Ala., 106 So. 2d 158.
The trains herein concerned consist of a combination baggage, mail, and express car, and one partitioned coach, pulled by a diesel 1500 horsepower all-purpose road switcher engine. The total distance of the route traveled is approximately 264 miles. These trains have been operating between said points for more than 50 years with varying schedules from time to time. Seventy-eight stations are presently served by these trains between Birmingham and Mobile. Number 19 leaves Birmingham at 8:00 A.M. and arrives at Mobile at 5:00 P.M. Train Number 20 leaves Mobile at 7:10 A.M. and arrives at Birmingham at 3:20 P.M. These trains constitute the only passenger service operated by appellee between Birmingham and Mobile and furnish the only rail passenger service along the route, Birmingham-Selma-Mobile.
The power and duty of the circuit court on appeal from an order of the Publice Service Commission is controlled by Title 48, Section 82, Code 1940. Alabama Public Service Commission v. Atlantic Coast Line R. Company, 253 Ala. 559, 45 So. 2d 449. This statute provides that the Commission's order "shall be taken as prima facie just and reasonable" and authorizes the court to set aside the Commission's order if it finds that the Commission prejudicially erred "in its application of the law" or that the order "was based upon a finding of facts contrary to the substantial weight of the evidence."
The issues before us for decision on this appeal, therefore, are whether the Commission erred in applying the law to the facts found or whether the order was based on a finding of facts contrary to legal evidence of substantial weight. Alabama Public Service Commission v. Atlantic Coast Line R. Co., supra; Alabama Public Service Commission v. Southern Bell Telephone & Telegraph Co., 253 Ala. 1, 42 So. 2d 655; Title 48, § 82, Code 1940. And a duty rests on this Court to examine the order of the Alabama Public Service Commission and to exercise its independent judgment on both the facts and the law involved. Alabama Public Service Commission v. Southern *216 Bell Telephone & Telegraph Co., supra. And we have done so.
Applicable principles of law in a case of this nature were clearly announced in Alabama Public Service Commission v. Atlantic Coast Line R. Co., supra [253 Ala. 559, 45 So. 2d 450], which is regarded as a leading case and upon which both appellant and appellee heavily rely. We quote therefrom these preliminary rules, opinion by our late lamented associate, Mr. Justice Foster:
It will be noticed that the Atlantic Coast Line case makes a clear distinction between the imperative duty doctrine and the relative duty doctrine, the latter being the law in Alabama.
In Chesapeake & Ohio Railway Co. v. Public Service Commission of State of West Virginia, 242 U.S. 603, at pages 607 and 608, 37 S. Ct. 234, at page 236, 61 L. Ed. 520, the United States Supreme Court stated:
And we again quote from Alabama Public Service Commission v. Atlantic Coast Line R. Co., supra:
With these rules in mind, we have carefully reviewed the record, which is quite voluminous (over 750 transcript pages), and by our findings the Commission's order must be tested. The correctness of that order depends upon the background of facts contained in the record.
We will now proceed to analyze those facts, developing them according to the several criteria above mentioned. No attempt will be made to elaborate further than to set out what we deem to be the most pertinent and forceful evidence presented.
The 264 mile route of passenger trains 19 and 20 traverses eleven Alabama counties, namely, Jefferson, Shelby, Bibb, Chilton, Autauga, Dallas, Marengo, Wilcox, Clarke, Washington, and Mobile, and, as already stated, serves 78 stations or stops. In general, with the exception of the Jefferson and Mobile County areas, the region is primarily agricultural, but the evidence tends to show that there is a steady increase of industrialization in this section. There is some testimony in the record obviously aimed at indicating a need for continuing passenger service in order to further such industrial progress. However, such evidence is largely indirect, inconclusive, and lacking in persuasiveness. To the contrary, it seems that the weight of the testimony, taken as a whole, deemphasizes the significance of passenger service in holding and attracting industry. The total population of the eleven counties traversed by the two trains, as shown by the 1950 Federal Census report, is 1,034,890. This represents a sizeable increase from 801,266 in 1930. The total population of communities, including or adjacent to railroad stations or stops, is 544,244, but excluding the Birmingham-Bessemer area and Mobile, the population is approximately 76,762. The population of the 32 communities so included which have no other common carrier service except these passenger trains is shown to be 4,206. It thus appears that less than 1% of the total population of the communities served by the railroad will not have bus service readily available.
The record contains the testimony of a number of witnesses who testified that at times they had been passengers upon the two trains and that so far as they were concerned the passenger service was needed and most convenient. However, the number and cumulative effect of such witnesses so testifying was not so impressive as to merit an immediate conclusion that passenger service on this route was in fact necessary or that public patronage warranted it. The use of the railroad made by a good many of these witnesses was somewhat sporadic and the length of their trips was of the short-haul type, covering very small distances. Moreover, many of these witnesses testified that they had access to automobiles or that bus service was available nearby. The total number of passengers carried by trains 19 and 20 during the first ten months of 1956 was 17,276. *218 And for the entire previous year the number was 23,159. The figures for the preceding years create a striking picture. They are as follows: 1948126,096; 1949 89,871; 195057,099; 195152,181; 195244,246; 195337,502; and 195428,754. Naturally, the revenue from passenger receipts declined during these years in correspondence to the declining number of passengers. Total passenger revenue for the twelve month period, November, 1955 through October, 1956, was $32,416.42. This figure can be compared with the total wages paid to the train crews operating these two lines during the same period of $137,764.56. The train crew consisted of five men, plus a mail messenger except on Sunday, and an express messenger, except on Saturday and Sunday, a total of seven service personnel for five days each week. During the twelve month period, beginning in November, 1955 and running through October, 1956, there was an average of 6.4 passengers per train mile. The comparison of the number of passengers to crewmen displays an unusual situation. Statistics also show that the average passenger rode approximately only 1/5 of the distance of the whole line. The average number of passengers per trip dropped from 172 in 1948 to 28.32 during the first ten months of 1956. And these passengers, as shown, did not ride the entire distance. Compared with 6.4 passengers per train mile on trains 19 and 20 are the corresponding figures of 37.2 for the state and 65.2 for the entire company system.
There was also quite a bit of testimony by merchants and other business men and professional persons relative to the need for continued express service. Indeed, some necessity was shown by many of those who so testified. The effect of the evidence was to show that inconvenience will be caused to many who now use the express service. Express on this line is now handled in a railway express car with an express manager as a part of the regular train complement. There are a number of express agencies between Selma and Mobile, but only three intermediate points between Selma and Birmingham now have express service, viz., Maplesville, Plantersville, and Wilton. Appellee proposes to handle through express between Birmingham and Selma in sealed freight cars, or alternately through Mobile in a regular express car with messenger when necessary. Express for or from Plantersville will be handled according to appellee's proposed plan, in a box car hauled by a local freight and set out for loading. The Wilton-Montevallo area will be served similarly by a freight car on a freight train out of Anniston, Alabama. Maplesville express will be handled by a motor express truck operated by the Gulf, Mobile and Ohio Railroad. On the other hand, between Selma and Mobile, a regular express car with an express messenger will be hauled by local freights which have substantially the same schedules as trains 19 and 20. Appellee points out that the Commission in its order determined that the only change in the type of express handled will be the elimination of live express at Wilton and Plantersville.
Review of the record shows that many of the witnesses testifying on the subject of express service were unfamiliar with the proposed new express service. Several of these witnesses did not testify directly as to the insufficiency of the proposed service, and the evidence aimed towards establishing the unsatisfactory character of the proposed service, although evincing hardship in isolated cases, is not probatively convincing. It must be expected that the removal of the express service as presently operated will work hardship and inconvenience in certain individual instances. The record here, and its overall picture in this respect, reflects no general public need for the express service exactly as it is carried on today and suggests that actual need and convenience require the present setup in individual situations only.
Freight service along these lines will remain unchanged. Express service will be *219 altered only in the respects heretofore described. However, if appellee discontinues its passenger trains, all of the intermediate parts between Birmingham and Mobile will be left without passenger train service.
Evidence relative to transportation by air in the record is negligible, and the air traffic factor in this case is minuscule.
Of the seventy-eight stations presently served by these trains between Birmingham and Mobile, forty-six are located on or immediately adjacent to good highways, with competing common carrier bus service. Approximately 540,000 people live in the 46 communities adequately served by the competing bus service. As already pointed out, only about 4,000 persons who live in the remaining 32 communities will not have bus service readily available.
The highways in this area served by these trains are good. Appellee has adduced testimony showing that the ratio of persons per registered passenger automobile in the eleven counties through which these trains run is 3.6, as compared to the state average of 4. On the other hand, the ratio of total registered motor vehicles to persons in the eleven counties is 3, which is the same as the state of Alabama. For the period 1941 through 1955, the state showed the fourth highest percentage increase in passenger car registrations of the nation, although during the same period, the state had only a 6.7 percent increase in population. Many of the protestants who testified revealed that they came to the Commission hearing by automobile or other type of conveyance, and not by train. Such testimony was interspersed by references to the witnesses' use of means of transportation other than the appellee's passenger trains within the area.
Comparison of Operation Expense with Revenue
Total revenues for the twelve month period November, 1955 through October, 1956 were $105,956.46, broken down as follows: Passenger, $32,416.42; Mail, $60,302.41; Express, $13,165.92; and Miscellaneous, $71.71. There was no disagreement between the parties to this dispute as to the revenue figures.
Great difficulty, however, was experienced in agreeing upon amounts allocable to expense in the operation of passenger trains 19 and 20.
Appellee's petition filed with the Commission showed direct expenses for the operation of said trains from March 1, 1955 through February 29, 1956, at $308,899.44. In its original computation, at the hearing, appellee showed these expenses at $321,660.70. However, realizing that due to the terrain, the train fuel expense included seemed high, appellee conducted an actual test on the route, the results of which caused appellee to adjust the train fuel cost by taking only about one-half of the original figure included, thereby reducing the total direct expenses assigned to passenger trains 19 and 20 to the amount of $298,005.30. Since appellee proposed at the hearing to render express service along the route of trains 19 and 20 by operating express cars on freight trains, it then submitted another computation showing direct expenses, giving effect to the continuance of express connection with the operation of express service, and this resulted in another slight reduction in the cost figure. According to the latter computation, which results in the smallest figure arrived at by the appellee, direct expenses were in excess of revenues in the amount of $186,564.59.
On the other hand, the Commission found, as shown in the order, from its calculation of revenues received and direct expenses rendered that the excess of total expenses over revenue would be in the amount of $138,631.83. The Commission went further and asserted that the net income which would have resulted to appellee as a result of their discontinuance would only be $66,543.28, after deduction of federal taxes (petitioner was shown to be in the 52% corporate income tax bracket) on the immediate savings thus realized.
*220 The gist of the disagreement between the Commission and the company as to the method of computation of direct expenses lies in the Commission's refusal to accept the formula recommended by a committee of the National Association of Railroad and Utilities Commissioners (often referred to as NARUC), of which the Commission is a member. The Commission did not feel bound to follow the NARUC formula in classifying expense items between those accepted as "wholly unavoidable" and those not definitely so established, viz., those determined on an average unit cost basis. We can see no point in discussing the NARUC formula in extenso or render a decision either accepting or rejecting it. It would serve no useful purpose here to act as arbiter between the Commission and the circuit court, which did expressly accept the formula. We would observe, however, as did the court in Illinois Central R. Co. v. Illinois Commerce Commission, 410 Ill. 77, 101 N.E.2d 588, 591, that the "cost, therefore, should properly include a just proportion of the expenses incurred for all facilities of which that in question forms a part", and that in "determining the true cost, all the outlays which pertain to the service in question should be considered".
It suffices to say that the figure derived from either of the computations is quite unreasonable, unjust, and burdensome on the appellee and such loss should not be allowed to continue, unless the particular line is required for public need and convenience.
Appellant earnestly insists that the earnings of Southern Railway on its entire intrastate business in Alabama and from its system as a whole must be taken into consideration, and that if gain is shown and the earnings have not been impaired by losses incurred in the particular branch line or operation, then the discontinuance must be disallowed. And evidence in the record does in fact show that appellee has profited quite well on its state and interstate systems on the whole. But we do not feel that the applicable law accentuates this one factor into such a prominent position in relationship to the other factors and criteria to be considered in such cases.
Appellant has relied upon the authority of remarks made by Justice Frankfurter in his concurring opinion, which was joined in by Justice Jackson, to the opinion of Chief Justice Vinson in the case of Alabama Public Service Commission v. Southern Railway Co., 341 U.S. 341, 71 S. Ct. 762, 95 L. Ed. 1002. It would seem that the remarks in the concurring opinion were obiter dicta, as the court did not reach the merits of the case in coming to its decision.
In Atlantic Coast Line R. Co. v. Public Service Commission of South Carolina, supra [77 F. Supp. 686], it was held that an order of the South Carolina Public Service Commission requiring the continued operation of two intrastate passenger trains at a substantial loss could not be sustained even if the railroad system as a whole was being run at a profit. The court there observed that the power of the Public Service Commission of South Carolina to regulate the services and facilities of common carriers with reference to the security and accommodation of the public is not unlimited but is circumscribed by the federal constitution and the property of a carrier may not under the guise of such regulation be taken by requiring it to furnish services or facilities no longer reasonably necessary to serve the public. The court went on farther to say that in adverse circumstances it is the duty of a carrier to seek, and of regulatory agencies to permit, the elimination of those services and facilities that are no longer needed nor used by the public to any substantial extent. "Even where a carrier's operations as a whole are reasonably profitable it has been held in various cases that it should not be required to continue the operation of passenger trains that show such disproportionate losses as to indicate that they are not substantially used or needed by the public."
*221 We think the quoted portion above from the Alabama Public Service Commission v. Atlantic Coast Line R. Co. case expresses quite clearly the Alabama law on this point and impels against the contention of the Commission.
There is no merit in appellant's argument that the failure of appellee's original petition to allege facts concerning the overall profits of the carrier and its subsequent omission to introduce full and complete evidence on this subject were fatal to their case.
It is apt to mention in this opinion that the record reveals that this was the second proceeding before the Commission on these same trains. Upon a showing of substantial loss in the prior case, the Commission likewise denied the company's petition to discontinue the trains. No appeal was taken from that order; rather, appellee elected to comply with certain requirements and suggestions set out by the Commission and to make some effort to regain public use of the service. The record in the instant case recites certain efforts of the company to improve the public use. The results were unavailing, as the facts heretofore set out plainly demonstrate.
The court below held that the Commission erred in its application of the law to the facts and that such findings of fact as were made by the Commission were contrary to the substantial weight of the evidence. Notwithstanding, the presumption in favor of the Commission's order and the burden resting on the appellee to overturn that presumption, we find ourselves in agreement with the court below. We conclude that whatever inconvenience and injury to the public will result from the discontinuance of these trains will not offset the very heavy burden which the present operation imposes on the appellee. Alabama adheres to the relative doctrine, and negligible use of the trains at a few small communities can hardly warrant a finding that public necessity for the trains exists or that their removal would entail substantial public inconvenience. The true interests of the general public, therefore, are best served by the elimination of uneconomic services if that can be done without unduly impairing transportation facilities in the territory served. Illinois Central R. Co. v. Illinois Commerce Commission, supra. The problems raised by the discontinuance of trains numbers 19 and 20 depend largely upon the predominantly local factor of public need for the service rendered. Alabama Public Service Commission v. Southern Railway Co., supra [341 U.S. 341, 71 S. Ct. 766].
In that last cited case this court stated: "State and federal regulatory agencies have expressed concern over the chronic deficit arising out of passenger train operations as a threat to the financial security of the American railroads and have recommended drastic action to minimize the deficit, including the discontinuance of unpatronized and unprofitable service". Railroads no longer have a monopoly in the transportation field. Illinois Central R. Co. v. Illinois Commerce Commission, supra. "The court can not close its eyes to conditions as they exist and which are well known to everyone." Atlantic Coast Line R. Co. v. Public Service Commission of South Carolina, supra. The law must not allow itself to become bound to purely local, sentimental feelings attached to a once useful institution now, to some extent, fading. Alignment with modern trends of economic policy in the field of railroad transportation militates against the prolonged survival of such local, short hauls for passenger purposes when its usefulness therefor has been shown to be not in the public interest, as in the case in hand.
Affirmed.
LIVINGSTON, C. J., and GOODWYN and COLEMAN, JJ., concur. | April 9, 1959 |
c2bfdfac-dd7a-49ae-828e-cfa683d980d2 | Tennessee Coal & Iron Div., US Steel Corp. v. Hubbert | 110 So. 2d 260 | N/A | Alabama | Alabama Supreme Court | 110 So. 2d 260 (1959)
TENNESSEE COAL & IRON DIVISION, UNITED STATES STEEL CORPORATION
v.
Margaret HUBBERT.
6 Div. 198.
Supreme Court of Alabama.
March 19, 1959.
*261 Burr McKamy, Moore & Thomas, Birmingham, for appellant.
Cooper, Mitch & Black, Birmingham, for appellee.
GOODWYN, Justice.
This is a workmen's compensation case tried in the circuit court of Jefferson County and brought here by certiorari.
On October 29, 1954, Richard Hubbert, the husband of plaintiff in this proceeding, entered into a workmen's compensation settlement agreement with his employer, petitioner herein, pursuant to the Alabama Workmen's Compensation Law as it then existed, Code 1940, Tit. 26, §§ 253-325, as amended to said date, particularly §§ 278 (as amended by Act No. 661, § 3, appvd. July 10, 1940, Gen.Acts 1939, p. 1036) and 279 (as amended by Act No. 563, § 1, appvd. Aug. 29, 1951, effective Oct. 28, 1951, Acts 1951, p. 978). The settlement, approved by the circuit court on the same date pursuant to § 278, as amended, supra, provided for payment of compensation of $9.49 per week for 300 weeks, the installments totaling $2,847. Hubbert died on September 13, 1955, from causes other than the work-connected injury (silicosis) made the basis of the compensation award. Up to the time of his death he had received a total of $1,742.87 leaving the balance of the award at $1,104.13. Included in the payments were several advance payments agreed upon and approved by the circuit court.
Hubbert, at the time he received the injury on which the compensation award was based, had dependent on him for support, his wife (the plaintiff) and 6 children under 18 years of age. The plaintiff was still dependent on him when he died.
The parties to the proceeding now before us are in agreement that the question of primary concern is whether or not plaintiff has a right, either for her individual benefit or for the benefit of herself and those of Hubbert's children who may from time to time still be under the age of 18 years, to that part of the compensation award which had not accrued at the time of Hubbert's death.
Bearing on this question is an amendment to § 279(F) which became effective on September 7, 1955 (Act No. 355, appvd. Sept. 7, 1955, Acts 1955, p. 853), after Hubbert's injury and the award of compensation but prior to his death. The amendment added to § 279(F) the following provision:
There is no question that, in the absence of the September 7, 1955, amendment, there would be no right in the widow and dependent children to the installments accruing after Hubbert's death. We have so held. United States Steel Corporation v. Baker, 266 Ala. 538, 97 So. 2d 899; Woodward Iron Co. v. Horton, 267 Ala. 449, 103 So. 2d 717. The precise point at issue, then, is whether the 1955 amendment gives them such right.
Plaintiff insists that the 1955 amendment goes to the remedy; that it is retrospective as well as prospective, covering not only cases where injuries were suffered and awards made after its passage but also cases where injuries were suffered and awards made prior thereto. We are unable to agree. Clearly, it seems to us, the amendment created new substantive rights in favor of the widow and dependent children, on the one hand, by giving them a right to money which they did not theretofore have and, on the other hand, by adding to the employer's obligation a requirement that it pay money which theretofore it was not obligated to pay to anyone.
The employer takes the position that to construe the 1955 amendment so as to require payment of the installments accruing after Hubbert's death would render the amendment unconstitutional for the following reasons: It would (a) impair the obligations of a contract, (b) impair the obligations of a judgment, (c) deprive defendant of property without due process, (d) impute to the legislature the usurpation of judicial power, (e) apply the amendment retrospectively, although the title to the amendatory act did not state that it was to be retrospective, as the Constitution of Alabama requires of such legislation, and (f) disturb an existing defense to a suit after suit has been commenced. We find it necessary to deal only with ground (a).
It is our view that the amendment, if construed so as to give plaintiff the right to the unaccrued installments, would contravene provisions of the State and Federal Constitutions forbidding legislation impairing the obligations of contracts. Section 22, Alabama Constitution 1901 (cf. § 95); § 10, Art. 1, Constitution of the United States; Phillips v. City of West Palm Beach, Fla., 70 So. 2d 345; Salmon v. Denhart Elevators, 72 S.D. 110, 30 N.W.2d 644; In re Beausoleil's Case, 321 Mass. 344, 73 N.E.2d 461; Warner v. Zaiser, 184 Minn. 598, 239 N.W. 761; Yaeger v. Delano Granite Works, 250 Minn. 303, 84 N.W.2d 363; Preveslin v. Derby & Ansonia Developing Co., 112 Conn. 129, 151 A. 518, 70 A.L.R. 1426; McClung v. National Carbon Co., 190 Tenn. 202, 228 S.W.2d 488; State ex rel. Conley v. Pennybacker, 131 W.Va. 442, 48 S.E.2d 9; Washabaugh v. Bartlett Collins Glass Co., 177 Okl. 159, 57 P.2d 1162; Swatek Const. Co. v. Williams, 177 Okl. 305, 58 P.2d 585; Thomas v. Crummies Creek Coal Co., 297 Ky. 210, 179 S.W.2d 882; General Refractories Co. v. Henderson, 313 Ky. 613, 232 S.W.2d 846; 12 Am.Jur., Constitutional Law, § 389, p. 18 (Notes 1 and 2); 16A C.J.S. Constitutional Law § 349, p. 19 (Note 10), § 418, p. 108.
The applicable principle is thus stated in 12 Am.Jur., Constitutional Law, § 389, supra:
* * * * * *
In 16A C.J.S. Constitutional Law § 349, p. 19, supra, it is said that
The Florida Supreme Court, in Phillips v. City of West Palm Beach, supra [70 So. 2d 346], had this to say:
The question was thus dealt with by the Supreme Court of South Dakota in Salmon v. Denhart Elevators, supra [72 S.D. 110, 30 N.W.2d 648], viz.:
The Massachusetts Supreme Judicial Court discussed the question in Re Beausoleil's Case, supra [321 Mass. 344, 73 N.E.2d 464], as follows:
In Warner v. Zaiser, supra [184 Minn. 589, 239 N.W. 761], the Supreme Court of Minnesota had this to say:
* * * * * *
* * * * * *
In the later case of Yaeger v. Delano Granite Works, supra [250 Minn. 303, 84 N.W.2d 366], the Minnesota Court held as follows:
The Supreme Court of Errors of Connecticut in Preveslin v. Derby & Ansonia Developing Co., supra [112 Conn. 129, 151 A. 522], had this to say:
It follows from what we have said that the judgment under review is due to be reversed. It is so ordered.
Reversed and rendered.
LIVINGSTON, C. J., and SIMPSON and COLEMAN, JJ., concur. | March 19, 1959 |
b0c9e842-2ad4-4bf6-82fb-9395230921e9 | Alabama Farm Bureau Mutual Cas. Ins. Co. v. Teague | 110 So. 2d 290 | N/A | Alabama | Alabama Supreme Court | 110 So. 2d 290 (1959)
ALABAMA FARM BUREAU MUTUAL CASUALTY INS. CO., Inc.
v.
Charlie TEAGUE et al.
4 Div. 954.
Supreme Court of Alabama.
March 26, 1959.
*291 Thos. F. Parker, J. Thaddeus Salmon and J. O. Sentell, Jr., Montgomery, and Lee & McInish, Dothan, for appellant.
John W. Rish and W. G. Hardwick, Dothan, for appellees.
STAKELY, Justice.
Alabama Farm Bureau Mutual Casualty Insurance Company (appellant) hereinafter referred to as the insurance company, filed its original bill in the circuit court in equity against Charlie Teague and Quay M. Fortner, as administrator of the estate of Luella Teague, deceased, for a declaratory judgment to determine whether or not under the terms and provisions of a liability insurance policy issued by the insurance company to Charlie Teague, covering the operation by Charlie Teague of a half ton pickup Chevrolet truck, owned and operated by Charlie Teague and described in the aforesaid policy of insurance, the insurance company is legally bound to defend the suit now pending in the circuit court at law in which Quay M. Fortner as administrator of the estate of Luella Teague, deceased, is plaintiff, and the insured in the aforesaid policy, Charlie Teague, is defendant. The basis of the suit at law is the death of Luella Teague, resulting from an accident involving the aforesaid pickup truck while it was being operated by Charlie Teague in which deceased at the time was riding as a guest. The court ordered a temporary injunction pending the final disposition of the instant case enjoining the further prosecution of the suit of Quay M. Fortner, as administrator, etc., against Charlie Teague.
The court adjudged that the insurance company is legally bound by the aforesaid liability insurance policy to defend in behalf of Charlie Teague the law suit which has been referred to and is bound to pay *292 any judgment that may be rendered in the aforesaid suit against Charlie Teague not exceeding $5,000, the amount of the policy coverage. The court further dissolved the temporary injunction issued against the prosecution of the suit hereinabove referred to.
Upon application of the insurance company the court issued an order reinstating the temporary injunction restraining the prosecution of the case at law mentioned above pending this appeal.
I. The insurance company insists that there is no legal liability on its policy because the insured Charlie Teague failed to notify the insurance company in writing of the alleged accidental death of Luella Teague as required by Condition "2" under the general head of "Conditions" as set forth in the policy.
Condition 2 reads as follows:
The evidence shows that on May 29, 1956, following the accident and the death of Luella Teague on May 26, 1956, Charlie Teague went to the office of the agent of the insurance company and reported the accident to the secretary of the agent of the insurance company, Annie Grace Alley. The secretary testified that she filled out the regular accident report according to the company's usual procedure from information given her by Charlie Teague in answer to her questions. When asked to sign the report Charlie refused saying that he could not read and did not want to sign something he did not understand.
The evidence further shows that on July 1, 1956, Charlie Teague went back to the office of the agent of the insurance company and had a conference with J. P. Walton, the adjuster for the insurance company. At that time Charlie Teague gave the adjuster a statement in detail of the occurrence that resulted in the death of Luella Teague. The adjuster wrote the detailed statement down in longhand as Charlie Teague answered his questions. Upon completing the statement the adjuster read it to Charlie Teague who raised no objections. However, Charlie Teague refused to sign this statement.
Our cases hold that if the policy of insurance provides that notice of loss must be in writing, as where it stipulates for written notice, the requirement is binding upon the insured and the notice must be in writing at least in the absence of waiver or estoppel. Continental Insurance Co. v. Parkes, 142 Ala. 650, 39 So. 204; American Insurance Co. v. Porter, 25 Ala. App. 250, 144 So. 129.
It is argued by appellee that there was compliance with the condition requiring written notice of loss in the light of the undisputed evidence which showed that on two separate occasions, Charlie Teague gave information amounting to notice of loss to an agent of the insurance company, which information was reduced to writing, once by the secretary of the agent on a regular form for report of an automobile accident, and again by the adjuster who took the information down in longhand. Both of these writings were forwarded to the insurance company by its agent.
We call attention to the fact that there is nothing in the policy of insurance which requires the written notice to be signed by Charlie Teague, the insured.
Condition 2, which has been set out hereinabove, requires that written notice shall be given the company by or on behalf of the insured. In 7 Couch on Insurance, § 1526, it is stated:
It has been stated that the object of the notice of loss is to acquaint the insurance company with the occurrence of a loss so that it may make proper investigation and take such action as may be necessary to protect its interest. Equitable Life Assurance Society v. Foster, 230 Ala. 209, 160 So. 117; 45 C.J.S. Insurance § 981, p. 1182.
The statements of Charlie Teague, the insured, taken and reduced to writing by the agents of the insurance company and forwarded to the insurance company certainly fulfill this object. We conclude that the insured, Charlie Teague, adequately complied with Condition 2 of the policy which required written notice of the accident and loss.
II. It is further insisted by the appellant that the court erred in not finding that Charlie Teague had breached or failed to discharge the duties imposed upon him by Condition 12 of the policy of insurance, which condition reads as follows:
Our cases hold that what constitutes a failure of co-operation by the assured, under a policy containing a provision such as the one set out above, is a question of fact. Metropolitan Casualty Ins. Co. of N. Y. v. Blue, 219 Ala. 37, 121 So. 25; Employers Ins. Co. of Alabama v. Brock, 233 Ala. 551, 172 So. 671.
The testimony in this case was taken before a commissioner and submitted to the trial court. Accordingly, we must weigh and consider the evidence de novo and arrive at a conclusion without the aid of any presumption in favor of the findings of the trial court on the issues of fact presented. Foster v. Foster, 267 Ala. 90, 100 So. 2d 19; Dunn v. Cambron, Ala., 109 So. 2d 561.
In the case of George v. Employers' Liability Assurance Corp., 219 Ala. 307, 122 So. 175, 176, 72 A.L.R. 1438, this court said.
On the evidence before us we do not think that there was a failure of insured, Charlie Teague, to co-operate with the insurance company in any substantial or material respect. He reported the accident and death very soon after their occurrence. He went to the office of the adjuster of the insurance company on two different occasions for the purpose of reporting the accident and on each occasion gave details of the accident freely in answer to questions asked him. The only request of the insurance company with which Charlie Teague refused to comply was the request that he sign the accident report statements. He gave as his reason for so refusing the fact that he couldn't read and he wanted to talk to some one and have the statements explained. As we have heretofore pointed out, the requirement for "written notice of loss" contained in the policy was sufficiently complied with by the insured, Charlie Teague. Accordingly, his refusal to sign the statements would be an immaterial fact.
III. It is further insisted that the insured breached the co-operation clause *294 of the policy in that "he sought and followed the advice of the attorney for the adverse party." In the absence of any evidence of collusion, we do not consider that the mere fact that Charlie Teague sought the advice of an attorney representing the opposing party should be held a breach of the "co-operation clause" of the policy. In referring to the attorney Charlie Teague testified, "He didn't tell me anything, only don't sign nothing that you don't know." We do not consider that there was any proof of any collusion on the part of the insured, Charlie Teague, and the attorney for the plaintiff.
It is also argued that the fact that the insured, Charlie Teague, was admittedly sympathetic to the opposing party in the suit at law against him and that he evinced the hope that the opposing party would recover, amounted to a breach of the "co-operation clause." The proof showed that Luella Teague, who was killed in the accident, was the wife of the son of Charlie Teague, who was not able to bury his wife and that Charlie Teague borrowed $468.10 from his landlord to pay for the funeral of his son's wife and that Charlie Teague thought that under the policy he was entitled to be reimbursed for that sum. His inherent sympathy with the plaintiff is not controlling. State Farm Mutual Auto Ins. Co. v. Sharpton, 259 Ala. 386, 66 So. 2d 915. As we have shown there must be a lack of co-operation in some substantial and material respect.
This court in the case of Employers Ins. Co. v. Brooks, 250 Ala. 36, 33 So. 2d 3, 5, said:
Our case of George v. Employers Liability Assur. Corp., 219 Ala. 307, 122 So. 175, 72 A.L.R. 1438, shows a desire to give a reasonable construction to the conduct of insured in that respect. To the same effect are our cases: Metropolitan Casualty Ins. Co. v. Blue, 219 Ala. 37, 121 So. 25; Employers Ins. Co. v. Brock, 233 Ala. 551, 172 So. 671; Indemnity Ins. Co. v. Luquire Funeral Homes Ins. Co., 239 Ala. 362, 194 So. 818. There is a very full annotation on the subject in 72 A.L.R., beginning at page 1448. It is there pointed out, on page 1487, that it has been held that it is not a violation of the clause because the assured `evinced the hope' to the attorney for the insurer that the injured party would recover, Riggs v. New Jersey Fidelity & Plate Glass Co. of Newark, N. J., 126 Or. 404, 270 P. 479; and in another case that the fact that insurers' counsel from assured's conversations and actions concluded that assured was hostile to insurer's interest, and was in collusion with the injured person, would not be admissible as tending to prove a failure to co-operate. United States Fidelity & Guaranty Co. v. Williams, 148 Md. 289, 129 A. 660. See other cases noted in 72 A.L.R. 1488 and 1455 and 1477; 98 A.L.R. 1469; 139 A.L.R. 780."
We conclude from the foregoing that Charlie Teague, the insured, did not breach the conditions of the policy so as to allow the insurance company to withdraw from the defense of suit filed against him by Quay M. Fortner, as administrator of the estate of Luella Teague, deceased, which has been heretofore referred to.
It results that the decree of the lower court was correct and should be affirmed.
Affirmed.
LIVINGSTON, C. J., and LAWSON and MERRILL, JJ., concur. | March 26, 1959 |
610c700b-83d3-4fc8-8f9c-a61b248351f5 | Cox v. Cox | 109 So. 2d 703 | N/A | Alabama | Alabama Supreme Court | 109 So. 2d 703 (1959)
Edwon Lee COX
v.
Stella Culver COX.
7 Div. 402.
Supreme Court of Alabama.
February 19, 1959.
*704 Pope L. Moseley, Sylacauga, for appellant.
Otis R. Burton, Jr., Talladega, for appellee.
STAKELY, Justice.
This is an appeal from a decree of the equity court sustaining the demurrer to a bill in equity. The bill was filed by Edwon Lee Cox (appellant) against Stella Culver Cox (appellee) for a divorce on the ground of voluntary abandonment. Stella Culver Cox being insane was represented by a guardian ad litem appointed by the court.
We quote the allegations of the bill as follows:
Section 20, Title 34, Code of 1940, 1955 Cumulative Pocket Part, provides in pertinent part as follows:
*705 In Knabe v. Berman, 234 Ala. 433, 175 So. 354, 355, 111 A.L.R. 864, this court said:
Accordingly the abandonment must continue willful or intentional for the full statutory period. An insane person cannot be said to have or maintain such an intention. Furthermore if the insane person became sane during the statutory period, he might have repented and returned before the termination of the statutory period. 4 A.L.R. at page 1333 and authorities cited therein; 17 Amer.Jur., § 97, p. 318; Walker v. Walker, 140 Miss. 340, 105 So. 753, 42 A.L.R. 1525; 27 C.J.S. Divorce § 55, p. 597; Nelson Divorce and Annulment, Vol. i, p. 355; Hartwell v. Hartwell, 234 Mass. 250, 125 N.E. 208.
It is obvious from the allegations of the bill that for about ten months prior to the time the bill was filed, which was on January 29, 1958, the respondent was sane. She then became insane and was confined for about a year in the Bryce Hospital. She then regained her sanity for a period of about five and one-half months. If these two periods of sanity could be taken together, the allegations of the bill would show that since the abandonment the respondent was sane for more than one year prior to the filing of the bill.
But the statute to which we have referred expressly requires that the voluntary abandonment shall be for one year next preceding the filing of the bill. "Next preceding" has been defined by this Court to mean the year nearest to the time of the filing of the bill. Winning v. Winning, 262 Ala. 258, 78 So. 2d 303. It therefore clearly appears that the respondent was insane during the year next preceding the filing of the bill. In other words, the respondent was not sane during the full year required for divorce on the ground of voluntary abandonment.
It results that the court acted correctly in sustaining the demurrer to the bill and dismissing the bill.
Affirmed.
LAWSON, MERRILL and GOODWYN, JJ., concur. | February 19, 1959 |
954d8193-c931-4a7f-be52-649b0d2e89ac | Southern Electric Generating Co. v. Leibacher | 110 So. 2d 308 | N/A | Alabama | Alabama Supreme Court | 110 So. 2d 308 (1959)
SOUTHERN ELECTRIC GENERATING COMPANY
v.
J. H. LEIBACHER, Sr.
7 Div. 394.
Supreme Court of Alabama.
March 12, 1959.
*311 Karl C. Harrison, Columbiana, and Martin & Blakey, John Bingham and Harold A. Bowron, Jr., Birmingham, for appellant.
Frank Bainbridge, Birmingham, and Handy Ellis, Columbiana, for appellee.
LAWSON, Justice.
This is a condemnation proceeding brought by Southern Electric Generating Company, a corporation, in the Probate Court of Shelby County against J. H. Leibacher, Sr., and other property owners to condemn certain lands to be used in the construction and operation of a steam *312 electric generating plant. As to Leibacher's land, the award of the commissioners in the probate court was $4,000. An order of condemnation was entered accordingly. Leibacher appealed to the Circuit Court of Shelby County and requested trial by a jury. The jury returned a verdict, fixing the amount of Leibacher's compensation at $11,000. Judgment followed the verdict. After a judgment was entered overruling its motion for a new trial, Southern Electric Generating Company, sometimes referred to hereinafter as Southern Electric, appealed to this court.
In the circuit court Leibacher denied that Southern Electric had the right to condemn his property and took the position that the determination of that question was for the jury.
On an appeal to the circuit court from an order of condemnation entered in the probate court the trial is de novo. § 17, Title 19, Code of 1940. The condemnor's right to condemn as well as the amount of damages and compensation may be put in issue in the circuit court. The right to condemn is to be determined by the court without the aid of a jury, while the amount of damages and compensation to be assessed is for the jury, where a jury trial is properly requested. § 235, Constitution of 1901; City of Birmingham v. Brown, 241 Ala. 203, 2 So. 2d 305; Alabama Power Co. v. Thompson, 250 Ala. 7, 32 So. 2d 795, 9 A.L.R.2d 974; Moore v. City of Mobile, 248 Ala. 436, 28 So. 2d 203.
The trial court correctly ruled that the question as to Southern Electric's right to condemn was for the court's determination and that Southern Electric had the right to condemn the property here involved. Those rulings are not challenged here by cross appeal or cross-assignments of error.
Over objection the trial court required Southern Electric to present its proof as to its right to condemn in the presence of the jury. This action of the trial court is assigned as error.
Southern Electric's right to condemn was a preliminary question which the trial court should have determined outside of the presence of the jury. There was no such preliminary determination and the evidence as to Southern Electric's right to condemn was presented to the jury along with the evidence bearing on the amount of compensation to which Leibacher would be entitled. After the conclusion of the presentation of the evidence relating to both issues, the trial court instructed the jury that the court had concluded that Southern Electric was entitled to condemn and then instructed the jury that the amount of compensation to be awarded was for its determination.
The Leibacher tract here involved contains 44 acres of unimproved, woodland situated on the outskirts of Wilsonville in Shelby County. There is only one house on the property. Leibacher built the house and occupies it from time to time. He does not reside on the property. Yellow Leaf Creek, a stream which seems to be of considerable size, runs along or through some of the land. As far as this record discloses the 44 acre tract is all of the land owned by Leibacher.
Leibacher was entitled to the fair or reasonable market value of his land as of the day of its taking based on the use to which it could be most advantageously put. Blount County v. McPherson, Ala., 105 So. 2d 117. For present purposes the parties agreed that the taking occurred on June 6, 1957. The fact that the land had been used for one purpose only, the growing of timber, did not prevent Leibacher from showing the adaptability of the land for other uses including the building and operation of fishing camps. He offered evidence going to show that the best use to which the land could be put was for the operating of fishing camps of the kind shown to be operated rather generally throughout the area.
*313 In cases of this kind, the narrow issue for the jury's determination, the amount of the award to the landowners, should not be broadened nor the verdict of the jury influenced by the interjection of immaterial matters, especially matters calculated to be prejudicial. Whether or not the property is necessary or advisable, or whether more property is taken than necessary, and whether or not it is ever paid for or who pays for it, are not questions for the jury to consider nor to be brought before it in any way.
In the case now before us we can conceive of no reason for placing before the jury the fact that at the time the condemnation proceeding was commenced, Southern Electric's total authorized capital stock was $2,000,000; that on towit August 17, 1956, Southern Electric sold for a cash consideration of $100 per share a total of 2500 shares of common stock to Alabama Power Company and 2500 shares of such stock to Georgia Power Company and had previously paid to Alabama Property Company (its agent for acquiring land options, etc.), over $200,000 for acquisition of plant sites and coal reserves; that a capital expenditure budget aggregating $1,324,349 had been adopted. Nor do we see why the jury should have been advised as it was on the cross-examination of Southern Electric's secretary, the connection between Alabama Power Company, Georgia Power Company, Alabama Property Company, Southern Services, Inc., Southern Electric and The Southern Company. Yet those matters came to the jury's attention as a result of the requirement that Southern Electric present before the jury its evidence going to show its right to condemn. Most of the facts referred to above were included in documents which Southern Electric was called upon to produce in order to show its right to condemn.
Some of the documents were read to the jury by counsel for Leibacher with the consent of counsel for Southern Electric. Such consent is said to constitute a waiver of any error in requiring such evidence to be presented before the jury. We cannot agree. The documents were, in effect, required to be placed in evidence before the jury and Southern Electric would have been in a difficult position with the jury if its counsel had refused the request made upon them by counsel for Leibacher for the contents of the documents to be read to the jury.
It is argued by appellee that because the amount of the award was well within the range of the evidence, no injury can be said to have resulted to appellant as a result of such matters being introduced in evidence at the jury trial.
The award of $11,000 was less than the values fixed by Leibacher and his witnesses. Leibacher testified that the fair market value of his 44 acres of land was $22,000. The values fixed by his other witnesses ranged from $35,000 down to $15,400.
On the other hand, the jury's award was considerably in excess of the highest estimate of value placed on the Leibacher tract by appellant's witnesses, $4,400.
The appellant was naturally interested in getting as large an award for his land as possible, land which he did not seem anxious to lose. All of his witnesses except one owned property which was subject to condemnation by Southern Electric for the purpose of building the same generating plant. The witness who was the one exception estimated the value of the Leibacher lands at $35,000. As to this witness we have some doubt as to the correctness of the court's ruling that he was shown to possess sufficient familiarity with the land and its value to express an opinion as to its value.
In view of the nature of the opinion evidence offered by Leibacher concerning the value of his land we are unable to affirm that the evidence going to show the size, ownership, financial worth and corporate affiliation of Southern Electric and the *314 amount of money set aside for obtaining its property was without injury to appellant.
This court recognizes what every trial lawyer knows, i. e., that it is highly prejudicial to a defendant for the members of a jury to be improperly informed that a defendant is really a very wealthy person or that some wealthy corporation would have to pay the verdict rather than defendant, and thus invite them to be liberal with someone else's money. We think the same is true in a case of this kind.
When a case is tried by a jury, the members of the jury are entitled to receive for their consideration the relevant evidence offered by all the parties. They should not receive any irrelevant or illegal evidence.
The evidence in regard to the right to condemn was entirely irrelevant to the issue for the jury's determination, namely, the amount of the just compensation to be awarded Leibacher. As we have indicated, we cannot say it was not prejudicial. True it was introduced by appellant or was elicited from appellant's secretary on cross-examination. But it was placed before the jury only because of the requirement of the trial court that evidence concerning appellant's right to condemn had to be presented before the jury which was to fix the amount of the award. We are constrained to the conclusion that appellant's assignments of error 1 and 2 are well taken and that the judgment of the trial court must be reversed.
Dewey Bolton, a witness for the plaintiff, testified that in his opinion the reasonable market value of the condemned lands was $3,300. On cross-examination he was permitted to say without objection that in fixing that value he had not taken into consideration any taxes the property owner might have to pay to the Federal government as a result of the sale of the property.
On redirect-examination counsel for Southern Electric asked Bolton the following question: "Q. Mr. Bolton, Mr. Bainbridge asked you if you took into consideration how much tax Mr. Leibacher would have to pay on what he received from this property, did you take into consideration he bought it for $1200.00?" Leibacher's objection to this question was sustained and that action of the court is made the basis of assignment of error No. 3. The trial court did not commit reversible error in this ruling. If not objectionable otherwise, the question to which objection was sustained assumed a fact not in evidence, the price which Leibacher had paid for the land. Brannan v. Henry, 142 Ala. 698, 39 So. 92; Alabama Lumber Co. v. Cross, 152 Ala. 562, 44 So. 563; Allen v. State, 26 Ala.App. 218, 155 So. 894; Cox v. State, 25 Ala.App. 38, 140 So. 617. The rule that irrelevant, incompetent and illegal evidence may be admitted without error to rebut evidence of like character does not operate to put the trial court in error in sustaining the objection to the question asked the witness Bolton on redirect-examination. See Bank of Phoenix City v. Taylor, 196 Ala. 665, 72 So. 264.
Sammy McEwen, a witness for Southern Electric, testified as to the fair or reasonable market value of the suit property. On cross-examination he stated that he had no interest in the case; that he had no interest in the Alabama Power Company or in the Southern Electric Generating Company although he had sold them property. Thereupon counsel for Leibacher on further cross-examination asked the following question: "What property did you sell them?" Southern Electric's objection to this question was overruled and such action of the court is the foundation of assignment of error No. 4. In regard to this assignment of error, we think it sufficient to say that the question was not answered. See Gilliland v. Dobbs, 234 Ala. 364, 174 So. 784; Allison v. Owens, 248 Ala. 412, 27 So. 2d 785; Dorsey Trailers, Inc. v. Foreman, 260 Ala. 141, 69 So. 2d 459.
*315 The trial court admitted in evidence the deed under which Leibacher obtained title to the suit property and thereafter on Leibacher's motion, the deed was excluded, after it was made known to the court that Leibacher admitted ownership of the property. The exclusion of the deed is made the basis of assignment of error No. 5. Since Leibacher admitted ownership of the lands in question, we can see no prejudicial error in excluding the deed which had been admitted originally in connection with the duty on Southern Electric to show its right to condemn the lands which were alleged to belong to Leibacher. Hogg v. Frazier, 211 Ala. 218, 100 So. 95; Stewart v. Weaver, 264 Ala. 286, 87 So. 2d 548.
The trial court overruled appellant's objection to the following question asked Leibacher's witness David A. Denham on direct examination: "Mr. Denham, do you know what fishing camp sites along the water, or may be off the water of the Coosa River, anywhere in that area, were selling for the last several years?" This question was never answered and the court's ruling on the objection thereto cannot be said to constitute reversible error. We hold, therefore, there is no merit in assignment of error No. 6. There was no objection to the question: "What were lots selling for?", which the witness answered, "Lots would sell for $500.00 or better than that."
In view of another trial we call attention to the fact that in the recent case of Davis v. Reid, 264 Ala. 560, 88 So. 2d 857, it was said that Alabama has adopted the general or majority rule, known as the "Massachusetts" Rule, which is to the effect that in cases involving the sale of lands, evidence as to the sales price of other lands which were sold voluntarily is admissible, if the conditions surrounding the two tracts of land are similar and if the sale was neither too remote in point of time nor of such a character as to indicate that it did not represent the true value of the property. See 118 A.L.R. 869, 870. The rule is otherwise as to forced sales. See Housing Authority of Phenix City v. Harris, 241 Ala. 419, 3 So. 2d 54; Pickens County v. Jordan, 239 Ala. 589, 196 So. 121; Blount County v. McPherson, supra.
In making the foregoing observation in regard to voluntary sales, we do not want to be understood as holding that the record in this case shows such similarity between the land sold and that condemned as to justify the admission over timely and proper objection of evidence as to the sale price of the lots sold for camp sites in the general area of the condemned property. We recognize the fact that much must be left to the discretion of the trial court on the question of similarity. But here the condemned lands had not been divided into lots and, in our opinion, the evidence is otherwise scant in respect to similarity.
We call attention to the fact that the courts of some other states have held that a sale of non-platted lots cannot be used as evidence to determine the value of platted lots or vice versa, even though both parcels are in the same vicinity. Martin v. Chicago & M. Electric Ry. Co., 220 Ill. 97, 77 N.E. 86; Chicago N. S. & M. R. Co. v. Chicago Title & Trust Co., 328 Ill. 610, 160 N.E. 226; Forest Preserve Dist. of Cook County v. Chilvers, 344 Ill. 573, 176 N.E. 720; County Board of School Trustees of Macon County v. Batchelder, 7 Ill. 2d 178, 130 N.E.2d 175; Vann v. State Highway Dept., 95 Ga.App. 243, 97 S.E.2d 550; and see State Roads Commission of Maryland v. Wood, Court of Appeals of Maryland, 207 Md. 369, 114 A.2d 636; Forest Preserve District of Cook County v. Wing, 305 Ill. 194, 137 N.E. 139.
Mrs. Mabel C. Denham, the wife of David A. Denham, was also called as a witness on behalf of the defendant. During the course of the examination of this witness the following transpired:
Assignment of error No. 8 is to the effect that the trial court erred in overruling the objection to the first question set out above which was not answered. The answer to the second question was excluded. Reversible error is not made to appear by this assignment of error. Central of Georgia Ry. Co. v. Grover, 218 Ala. 290, 118 So. 506; Alabama Power Co. v. Edwards, 219 Ala. 162, 121 So. 543; Reese v. Mackentepe, 224 Ala. 372, 140 So. 550.
In its brief appellant has argued assignment of error No. 8 with assignments of error No. 12 and 18. We doubt if these assignments of error are sufficiently related to escape the rule that where unrelated assignments of error are argued together and one is without merit, the others will not be considered. Thompson v. State, 267 Ala. 22, 99 So. 2d 198, and cases cited. However, we find no merit in either of the last mentioned assignments of error.
Assignment of error No. 12 is in substance that the trial court erred in overruling appellant's objection to the following question asked appellee's witness Lance on direct examination: "What in your judgment, was that land worth per acre, over a whole, the reasonable market value, on June 6, 1957?" The question in this form was never answered. See the Gilliland, Allison and Dorsey Trailer cases, supra. In commenting on assignment of error No. 12 in this manner, we do not want to be understood as indicating that the objection to the question was erroneously overruled.
Assignment of error No. 18 reads:
"That the trial court erred in permitting appellee's witness, Mr. Lance, to give his opinion as to the value of appellee's property when divided into lots when there was no evidence that appellee's property had ever been divided into lots, to which action of the trial court appellant duly excepted. (Tr. pp. 182-185)." This assignment of error is too general. Jackson Lumber Co. v. Butler, 244 Ala. 348, 13 So. 2d 294; Hall v. Pearce, 209 Ala. 397, 96 So. 608. We are unable to find on the pages of the record referred to in the assignment of error where the witness expressed an opinion "as to the value of the appellee's property when divided into lots."
The refusal of the trial court to permit Mrs. Denham to testify as to how much money she and her husband had paid for the land which they purchased across the creek from the suit property is made the basis of assignment of error No. 9.
Mrs. Denham testified on direct examination that in her opinion Leibacher's land was worth $25,000. She also testified as to the development of the property which she and her husband had owned across the creek from the Leibacher property and which was shown to have been condemned. She gave no testimony which, in our opinion, entitled Southern Electric to show the amount which she and her husband had paid for their property. Appellant *317 cites no authority in support of its insistence other than cases which are to the effect that on cross-examination a party may make such interrogation of a witness as would tend to test his interest, bias or prejudice or to impeach the accuracy of his testimony. In any event much must be left to the discretion of the court in the matter of cross-examination. Pryor v. Limestone County, 230 Ala. 295, 160 So. 700. We find no reversible error in the ruling as to the cross-examination of Mrs. Denham.
J. M. Walton, a witness for Leibacher, was permitted to express the opinion that the reasonable market value of the Leibacher land at the time of taking was $35,000. As we have heretofore indicated, we are not satisfied from a reading of his testimony that he possessed sufficient qualifications to give opinion evidence as to the value of the property. However, the reception of opinion evidence as to the value of the realty and the sufficiency of the foundation therefor are matters largely addressed to the discretion of the trial court and we are unwilling to say that the trial court committed reversible error in permitting Walton to express his opinion as to the value of the property. We hold that assignments of error No. 10 and No. 11 do not present cause for reversal.
On cross-examination of Leibacher, Southern Electric sought to show the price which he paid for the suit property when he bought it in April of 1947. The trial court sustained an objection to the question seeking to bring out that fact and this action of the trial court is made the basis of assignment of error No. 13.
In Thornton v. City of Birmingham, 250 Ala. 651, 35 So. 2d 545, 546, 7 A.L.R.2d 773, it is said:
On the question of the remoteness of time of the purchase of the property by the owner, much is left to the discretion of the trial court. Thornton v. City of Birmingham, supra; and cases cited. See Davis v. Reid, 264 Ala. 560, 88 So. 2d 857.
We are unwilling to say that the trial court abused its discretion in refusing to permit Southern Electric to show the price Leibacher paid for the land approximately ten years prior to the time of taking. Leibacher received his deed on May 3, 1947, and as we have heretofore pointed out, the parties agreed that for the purpose of fixing value the time of taking is to be considered as June 6, 1957.
Assignments of error No. 14 and 15 relate to the trial court's action in overruling appellant's objection to questions propounded its witness Bolton on cross-examination as to whether one of the attorneys for appellant had told the witness the valuation which the appraiser for appellant had placed on the Leibacher lands. The answers of the witness to these questions were to the effect that he had no recollection of any such information from the attorney. We are unable to see any possible injury to appellant from the rulings made the basis of these assignments of error.
Assignment of error No. 16 is to the effect that the trial court erred to a reversal in overruling the plaintiff's objection to the following question asked the witness Bolton on cross-examination: "Now, do you know whether or not that *318 land was adaptable as land for a site for a steam electric generating plant?" After the objection was overruled, the witness replied, "Well, I would say I don't know because I never have built a generating plant." An owner is not entitled to show the valuation of the property as enhanced by the contemplated improvement. Housing Authority of Birmingham District v. Title Guarantee Loan & Trust Co., 243 Ala. 157, 8 So. 2d 835. The question here under consideration did not seek to elicit such information and certain it is that the answer gave no such estimate of value. We are unable to see any prejudice to the appellant by the ruling of the court made the basis of assignment of error No. 16.
Assignments of error 7 and 17 are expressly waived.
Because of the error noted in assignments of error 1 and 2 the judgment of the trial court is reversed.
Reversed and remanded.
LIVINGSTON, C. J., and STAKELY and MERRILL, JJ., concur. | March 12, 1959 |
8f6e36a3-f96b-41f6-887b-126ea03121a4 | Gilmore v. Roberson | 139 So. 2d 604 | N/A | Alabama | Alabama Supreme Court | 139 So. 2d 604 (1962)
C. H. GILMORE, Administrator,
v.
Clifford ROBERSON et al.
4 Div. 86.
Supreme Court of Alabama.
March 22, 1962.
*605 C. R. Lewis, Dothan, for appellant.
J. Theodore Jackson, Dothan, for appellees.
LAWSON, Justice.
Emma Roberson died intestate on or about April 14, 1959, seized and possessed of twenty-one acres of land in Houston County, where she had resided.
She was survived by a son, Clifford; by a daughter, Mrs. McGinty; and by four grandchildren, children of a deceased daughter. The son and daughter are residents of Houston County. The grandchildren are all nonresidents.
During the last part of October and the first few days of November, 1959, C. H. Gilmore, who owns land adjacent to the Roberson land, acquired quitclaim deeds from the grandchildren, whereby he became the owner of an undivided one-third interest in the Roberson land.
On November 10, 1959, C. H. Gilmore, who is not related to the Robersons, paid to Ward-Wilson Funeral Home in Dothan the sum of $389.38, which Ward-Wilson claimed was the balance due it for services rendered in connection with Mrs. Roberson's funeral. Contemporaneously with that payment, Ward-Wilson assigned to C. H. Gilmore its claim against the estate of Mrs. Roberson, "together with all of its right of action, lien, and any other right it might have to enforce said claim against the estate of Mrs. Emma Robinson [sic], and any other person."
On the same day, November 10, 1959, C. H. Gilmore filed in the Probate Court of Houston County his application for appointment *606 as administrator of the estate of Emma Roberson, deceased, wherein he alleged that he was the "largest creditor" of the estate. He was immediately appointed administrator and on the same day, November 10, 1959, he filed a claim against the estate in the amount of $389.38.
On November 14, 1959, the administration of the estate of Emma Roberson, deceased, was removed to the Equity Court of Houston County on the application of C. H. Gilmore.
Thereafter, on November 17, 1959, C. H. Gilmore filed his petition in the equity court wherein he prayed that the twenty-one acres of land of which Emma Roberson had died seized and possessed be sold for the purpose of paying the debts of the decedent.
Clifford Roberson and Mrs. McGinty filed an answer to Gilmore's petition to have the land sold for payment of debts, wherein they did not deny the averment of that petition to the effect that the personal property of the decedent was insufficient to pay her debts and funeral expenses. However, they averred in their answer, in effect, that it was not necessary to sell the land for the purpose of paying the debts and funeral expenses and tendered to the register the sum of $332.11, the sum alleged to be still due on the Ward-Wilson claim, which had been assigned to Gilmore. In their answer Clifford Roberson and Mrs. McGinty averred that they had paid the other debts owed by their mother at the time of her death, including taxes on the suit property.
Clifford Roberson and Mrs. McGinty made their answer a cross bill, wherein they prayed among other things that the twenty-one acres of land be divided in kind and for an accounting. In the alternative, they prayed that the land be sold for division if the court should decree that it could not be equitably divided in kind.
After C. H. Gilmore filed his answer to the cross bill, testimony was taken before a commissioner.
Following submission for final decree, the trial court decreed that C. H. Gilmore, as administrator of the estate of Emma Roberson, deceased, was not entitled to have the land sold for payment of debts as prayed for in his petition and further decreed that Clifford Roberson and Mrs. McGinty were entitled to relief under their cross bill and divided the twenty-one acres of land into three separate and distinct tracts, awarding Tract A to C. H. Gilmore, Tract B to Clifford Roberson and Tract C to Mrs. McGinty. The trial court further decreed that C. H. Gilmore was entitled to be paid the sum of $257.43 from the funds paid to the register by Clifford Roberson and Mrs. McGinty in satisfaction of the claim assigned to him by Ward-Wilson Funeral Home.
From that decree C. H. Gilmore has appealed to this court.
The right of C. H. Gilmore to administer the estate of Emma Roberson did not rest on the assignment taken by him from Ward-Wilson Funeral Home. By failing to apply for letters of administration within forty days after the death of intestate, persons entitled to the administration according to the first three subdivisions of § 81, Title 61, Code 1940, as amended, waived all rights of preference to the issuance of letters of administration and the appointment of Gilmore as administrator was justified under subdiv. 4 of § 81, supra, which reads: "Such other person as the judge of probate may appoint."
Emma Roberson left no personal estate of any substantial value. Section 244, Title 61, Code 1940, provides: "In case of intestacy, lands may be sold by the administrator for the payment of debts, when the personal estate is insufficient therefor." We have said: "When there are debts of an estate and the personalty is insufficient to satisfy said debts, it is mandatory that the administrator sell the lands of the estate to pay said debts."Smith v. Smith, 266 Ala. 118, 124, 94 So. 2d 863, 868. The administrator cannot be controlled by *607 the heirs, nor take orders from them. The duty and responsibility is upon the administrator.Boyte v. Perkins, 211 Ala. 130, 99 So. 652.
But under the circumstances of this case, we are unwilling to say that the trial court erred in not decreeing the sale of the subject lands for payment of the debts of the intestate. There was no necessity for such a sale. At the time of the submission of the cause for final decree, the appellees, a son and a daughter of the intestate, had paid all that their mother owed at the time of her death, the staggering sum of $76.41. They did not want reimbursement from their mother's estate.
The only other claim against the estate was the funeral home bill, which Gilmore purchased in an effort to acquire all of the suit property.Kennedy v. Parks, 217 Ala. 323, 116 So. 161. Appellees deposited with the register, prior to trial, more than enough to pay Gilmore the amount still due him, including interest, and such payment was ordered by the trial court.
Gilmore was not entitled to be reimbursed for that part of the funeral home bill which was based on the furnishing of an "extra vault lid for another grave." That item was not a charge against the estate of Emma Roberson. The record does not disclose who authorized the funeral home to furnish the "extra vault lid."
It is clear from this record that no administration of the estate of Emma Roberson would have been necessary had not Gilmore intervened. His motive is crystal clear. He wanted to get his hands on all of the lands of which Emma Roberson died seized and possessed.
To decree a sale of the land under the circumstances here presented would be unconscionable. It is no part of the policy of our laws concerning the administration of estates to encourage unnecessary and oppressive interference with the rights of heirs and the courts should not allow such laws to be so used.Owens v. Childs, 58 Ala. 113.
In regard to the sale of lands for payment of debts, an administrator or executor has only a bare power over the lands. While by no act of the heir or devisee can the power be frustrated, the existence of the power itself depends upon the existence of the necessity for its exercisethe payment of debts of the testator or intestate. When the necessity does not exist, as where the heirs are willing to pay all of the debts or charges against the estate, it would be unconscionable to allow the personal representative to disturb the possession of the heir or of the devisee or of the alienee of the one or of the other. A just and prudent personal representative would not assert the power. See Lee's Adm'r v. Downey, 68 Ala. 98.
We hold that the trial court did not err in refusing to order the land sold for payment of debts as sought by the administrator, Gilmore, in his petition.
The appellant contends in brief that the trial court erred in ordering the land divided in kind and in not declaring that it be sold for division of proceeds among the tenants in common. Appellant insists that there is a want of proof that the property could be equitably partitioned without a sale.
In Compton v. Simmons, 223 Ala. 352, 353, 135 So. 570, 571, we said:
*608 We cannot take judicial cognizance of the fact that partition in kind is impossible simply because the land involved consists of only twenty-one acres.
All of the land has been under cultivation except approximately two acres in Tract C, which was awarded to the appellee Mrs. McGinty.
Appellant was awarded his proportionate acreage in one body adjacent to other lands owned by him. From the land awarded to him he has access to a public road through his other land. The evidence, in our opinion, fully supports the finding of proportionate value and that the partition decreed is in all things equitable.
The decree of the trial court is affirmed.
Affirmed.
LIVINGSTON, C. J., and MERRILL, J., concur.
COLEMAN, J., concurs in the result. | March 22, 1962 |
189fda5d-b178-4e9e-ad9a-46e12b156ad2 | Ellis v. Black Diamond Coal Mining Company | 109 So. 2d 699 | N/A | Alabama | Alabama Supreme Court | 109 So. 2d 699 (1959)
Nellie ELLIS, as Administratrix,
v.
BLACK DIAMOND COAL MINING COMPANY.
6 Div. 244.
Supreme Court of Alabama.
February 19, 1959.
*700 Lipscomb & Brobston, Bessemer, Wm. Mitch and D. G. Ewing, Birmingham, for appellant.
Lange, Simpson, Robinson & Somerville, Birmingham, Huey, Stone & Patton, Bessemer, for appellee.
MERRILL, Justice.
This is an appeal by appellant, plaintiff below, from a judgment of voluntary nonsuit taken because the court overruled plaintiff's demurrer to defendant's plea seven, and is the third appeal in this case.
On the first appeal, Black Diamond Coal Mining Co. v. Ellis, 256 Ala. 72, 53 So. 2d 593, the cause was reversed and remanded on the authority of Woodward Iron Co. v. Craig, 256 Ala. 37, 53 So. 2d 586.
The second appeal was taken when the plaintiff suffered a non-suit after the court below had sustained demurrers to each count of the complaint as amended. We reversed and remanded in Ellis v. Black Diamond Coal Mining Co., 265 Ala. 264, 90 So. 2d 770, saying that in an action under the homicide statute, the defense that the one year statute of limitations had run against plaintiff's intestate could not be raised by demurrer. The suit was brought under the homicide statute, Tit. 7, § 123, Code 1940, which provides that a cause of action may be prosecuted in the name of the personal representative of one whose death is caused by the wrongful act, omission or negligence of a defendant; and it also provides that the action must be brought within two years after the death of the intestate, and the cause of action must be one which gives rise to an action which the intestate could have maintained if it had not caused death.
Count one of the complaint alleges that defendant operated a coal mine known as *701 Blue Creek Mine from March 26, 1941, to July 6, 1945, and that plaintiff's intestate worked in the mine during this period and was exposed to silica dust, and that due to this exposure he contacted silicosis, anthracosis or pneumonoconiosis and died from this disease on February 16, 1949. The count further alleges that defendant negligently failed to provide her intestate with a safe place in which to work. Count two adopts count one and further alleges that plaintiff's intestate was not informed that he had silicosis until October, 1948, when he was examined by a physician. Count three adopts count two and alleges further that defendant knew that plaintiff's intestate had silicosis before July 16, 1945, and had a duty to inform him of this fact, but fraudulently concealed it from him until the statute of limitations had run, thereby preventing plaintiff's intestate from suing the defendant. The count further alleges that a physician in the employ of the defendant examined him and informed him that he was suffering from pulmonary tuberculosis, which was untrue, and which advice so misled him that he was lulled into inactivity until October 20, 1948.
The appellee, defendant below, demurred to the complaint and to each of the counts, separately and severally, and the trial court sustained the demurrer. As noted, supra, plaintiff then took a non-suit and appealed and we held in Ellis v. Black Diamond Coal Mining Co., supra, that the defense that the one year statute of limitations had run against plaintiff's intestate could not be raised by demurrer. Thereupon, defendant filed seven pleas and plaintiff demurred to all these pleas except pleas one and two which were pleas of the general issue. The court sustained plaintiff's demurrer to pleas three, four, five and six, but overruled plaintiff's demurrer to plea seven. Plaintiff again took a non-suit and now seeks a review of the adverse ruling on the demurrer to plea seven, which reads:
Notwithstanding that it is not in Code form, this is a plea of the statute of limitations of one year found at Tit. 7, § 26, Code 1940; Ellis v. Black Diamond Coal Mining Co., 265 Ala. 264, 90 So. 2d 770.
Appellant's primary contention is that the case of Woodward Iron Co. v. Craig, 256 Ala. 37, 53 So. 2d 586, should be overruled. The rule in the Craig case is that under Tit. 7, § 123, Code 1940, there is no cause of action created at the death of an injured party, if at the time of death, the injured party was unable to maintain a suit for personal injuries because the claim was barred by the statute of limitations. Appellant argues that the law should be that if the injured person could have maintained an action when the injury occurred, then his personal representative ought to be able to maintain an action after his death, provided that the action was commenced within two years after the death, as provided for in the Act, even though the death occurred more than one year after the injury and even though the injured person began no action within one year after such injury.
Appellee says that it does not argue with the cause of action, but that plea seven sets up a defense to the cause of action and that we have held that a defendant may avail himself of the defense of the statute of limitations if that defense were available against the decedent had he brought the action.
Appellant has cited to us the cases of Smith v. Lilley, 252 Ala. 425, 41 So.2d *702 175; Parker v. Fies & Sons, 243 Ala. 348, 10 So. 2d 13; Breed v. Atlanta, B. & C. R. Co., 241 Ala. 640, 4 So. 2d 315; Gentry v. Swann Chemical Co., 234 Ala. 313, 174 So. 530; and South & N. A. R. Co. v. Sullivan, 59 Ala. 272. All these cases were cited, discussed or distinguished in the Craig case and we do not see that we need to further discuss them here.
The Craig case has since been followed in Black Diamond Coal Mining Co. v. Ellis, supra, and Moore v. Stephens, 264 Ala. 86, 84 So. 2d 752, 759. In the latter case, plaintiff's intestate was injured in an automobile accident with defendant's intestate. The defendant's intestate died on the date of the accident. Plaintiff's intestate did not institute suit while she was living, and she died more than six months after the death of defendant's intestate. Plaintiff's intestate's cause of action was thus barred by the statute of nonclaim, Tit. 61, § 211, Code 1940, before she died. The question before the court was whether the plaintiff could initiate suit after her death under Tit. 7, § 123, Code 1940. We said, after quoting from the Craig case:
The pleadings in the instant case reveal that plaintiff's intestate was last exposed to silica dust on July 16, 1945, and that he died on February 16, 1949, not having filed suit against the defendant. By plea seven, the defendant raised the one year statute of limitations found at Tit. 7, § 26, Code 1940, as this court, in Ellis v. Black Diamond Coal Mining Co., supra, stated that it should be raised. (The one year statute of limitations relating to pneumonoconiosis in the Cumulative Pocket Part and listed as Tit. 26, § 313(10), has no application here).
We consider it settled in Alabama that under Tit. 7, § 123, Code 1940, there is no cause of action created at the death of the injured party, if at that time the injured party was unable to maintain a suit for personal injuries because the claim was barred by the statute of limitations. Moore v. Stephens, supra; Black Diamond Coal Mining Co. v. Ellis, supra; Woodward Iron Co. v. Craig, supra; 13 Alabama Lawyer 50, (article by Honorable W. E. Brobston, one of the able attorneys of record in the instant case). Although this may not be in accord with the weight of authority, note, 72 A.L.R. 1313, the present tendency is to so limit the action, note, 99 A.L.R. 259. The English rule is in accord with the rule in Alabama. Williams v. Mersey Docks & Harbour Bd. [1905] 1 K.B. 804-C.A.; British Electric R. Co. v. Gentile [1914] A.C. 1034-P.C. Thus, it logically follows that there was no error in overruling plaintiff's demurrer as directed to plea seven as an answer to count one of the complaint.
Appellant's assignment of error number 2 insists that the trial court committed error in overruling appellant's demurrer to appellee's plea seven as an answer to count two of the complaint as last amended. As previously noted, count two adopts count one and alleges that plaintiff's intestate did not know that he was suffering from silicosis until October, 1948. However, since assignments of error 1 and 2 are argued together, and they raise the same questions, no separate discussion of assignment of error 2 is necessary or required.
Appellant's last assignment of error, number 3, states that the trial court *703 erred in overruling appellant's demurrer to appellee's plea seven as an answer to count three of appellant's complaint as last amended. Count three, as already stated, adopts count two and alleges that defendant knew that plaintiff's intestate had silicosis before July 16, 1945, and had a duty to inform him of this fact; but fraudulently concealed it from him until the statute of limitations had run, thereby preventing plaintiff's intestate from suing the defendant.
These additional allegations in count three anticipate the defense of the statute of limitations which is pleaded in plea seven. "It is a general principle, both under the common-law practice and under modern procedural statutes and rules of practice, that a plaintiff's initial pleading need not, and should not, by its averments, anticipate a defense thereto and negative or avoid it, or negative the existence of defensive matters, or anticipate and negative matters which should come more properly from the other side; * * *." 71 C.J.S. Pleading § 84, p. 198. This rule has been expressed by this court in Meharg v. Alabama Power Co., 201 Ala. 555, 78 So. 909, 910, as follows:
It is true that in actions seeking relief on the ground of fraud where the statute has created a bar, the cause of action must not be considered as having accrued until the discovery by the aggrieved party of the fact constituting the fraud, after which he must have one year within which to prosecute his suit. Tit. 7, § 42, Code 1940. But this matter should be raised by special replication to plea seven and not by demurrer. See Tit. 7, § 234, Code 1940. In the case of Maxwell v. Lauderdale, 200 Ala. 648, 77 So. 22, the plaintiff alleged in his complaint that defendant had fraudulently misrepresented the boundaries of a piece of land to him. The defendant pleaded the statute of limitations. We said:
It follows that the lower court did not commit error when it overruled plaintiff's demurrer to defendant's plea seven as directed to count three.
The judgment of the lower court is due to be affirmed.
Affirmed.
LAWSON, STAKELY and GOODWYN, JJ., concur. | February 19, 1959 |
3f65ee18-dbe1-427b-a0d0-8ffd422cea69 | Orr v. State | 111 So. 2d 639 | N/A | Alabama | Alabama Supreme Court | 111 So. 2d 639 (1959)
C. W. ORR
v.
STATE of Alabama.
8 Div. 960.
Supreme Court of Alabama.
February 26, 1959.
Rehearing Denied May 14, 1959.
*640 John Patterson, Atty. Gen., and Paul T. Gish, Jr., Asst. Atty. Gen., for the petition.
Powell & Powell, Decatur, opposed.
LAWSON, Justice.
C. W. Orr, alias Clinton W. Orr, was convicted in the Circuit Court of Morgan County of the offense of transporting prohibited liquor or beverages in quantities of five gallons or more. Section 187, Title 29, Code 1940. Orr appealed to the Court of Appeals and that court reversed the judgment of the trial court. Its application for rehearing being overruled by the Court of Appeals, the State of Alabama filed in this court a petition for writ of certiorari to review and revise the judgment and decision of the Court of Appeals.
We granted the prayer of the petition and ordered the issuance of the writ of certiorari. The writ was duly issued and counsel for the parties were notified that "the cause shall stand for resubmission on briefs, and likewise oral argument, if so desired, as provided by Rule 39 of the Revised Rules of the Supreme Court of Alabama [Code 1940, Tit. 7 Appendix] * * *."
Neither side requested oral argument or filed additional briefs; therefore, the cause was resubmitted on brief of the State of Alabama filed in support of its petition for the writ. No brief has been filed in this court by counsel for Orr. See Duncan v. City of Scottsboro, 267 Ala. 259, 104 So. 2d 447.
After further consideration of the Alabama cases cited in the opinion of the Court of Appeals, particularly the case of Gidley v. State, 19 Ala.App. 113, 95 So. 330, we find ourselves in agreement with the conclusion reached by that court to the effect that the conjunction of "(1) a spontaneous communication by the court to the jury at the beginning of a court day, apparently following deliberations by the jury on the prior afternoon for some three or four hours, (2) an emphasis on the public expense, (3) a statement that the court expects a verdict, (4) a statement that the taxpayers (a term which could also mean the `people') expect a verdict, and (5) a statement that the taxpayers do not expect an exhibition of obstinancy," [Ala.App., 111 So. 2d 639] requires the reversal of the judgment of the trial court.
The judgment of the Court of Appeals is affirmed.
Affirmed.
LIVINGSTON, C. J., and STAKELY and MERRILL, JJ., concur. | February 26, 1959 |
5abfbf8f-e819-4ce1-816e-1524eb5e0536 | Department of Industrial Relations v. Walker | 109 So. 2d 135 | N/A | Alabama | Alabama Supreme Court | 109 So. 2d 135 (1959)
DEPARTMENT OF INDUSTRIAL RELATIONS et al.
v.
Homer B. WALKER and Samuel Danzy.
6 Div. 42.
Supreme Court of Alabama.
February 12, 1959.
*136 Cooper, Mitch & Black, Birmingham, for petitioners.
J. Eugene Foster and Richard S. Brooks, Montgomery, for Dept. of Ind. Relations.
E. L. All, Jas. C. Blair and White, Bradley, Arant, All & Rose, Birmingham, for Stockham Valve & Fittings, opposed.
GOODWYN, Justice.
We granted certiorari to review the decision of the Court of Appeals in Department of Industrial Relations v. Walker, 109 So. 2d 131. The case involves the claims of Walker and Danzy, employees of Stockham, for unemployment compensation.
The Court of Appeals, after summarizing the tendencies of the evidence, held as follows:
The question presented is whether the Court of Appeals' holding, based on its findings from the evidence, is contrary to the provisions of § 214, Subdiv. A, Tit. 26, Code 1940, as amended by Act No. 565, appvd. August 31, 1951, Acts 1951, p. 990. (Section 214 was also amended by Act No. 360, appvd. Sept. 7, 1955, Acts 1955, p. 875, but no change was made affecting Subdiv. A.) Section 214, Subdiv. A, as amended, supra, provides as follows:
Petitioners take the position that their unemployment "was ordered by their employer directly because of the employer's `apprehension' of possible untoward results that might have occurred if a strike or failure to extend the then existing contract took place subsequent to petitioners' lay-off."
It seems to us, from the evidence as found by the Court of Appeals, that *137 the closing down of the Company's plant was the direct result of the labor dispute then in progress between petitioners' union and the Company. To hold that the unemployment, under the facts as found by the Court of Appeals, was "directly due" to the closing of the plant and not "directly due" to the labor dispute would be contrary to the clear purpose of the statuteto deny compensation when the unemployment is the direct result of a labor dispute. We find no error in the Court of Appeals' holding that the direct cause of the unemployment was the labor dispute. Nor do we find error in the holding that "under the evidence," the employer "was authorized, in anticipation of a strike, to take proper measures for the protection of its property from damage during the pendency of the strike." Department of Industrial Relations v. Savage, 38 Ala.App. 277, 82 So. 2d 435. Cf. Brechu v. Rapid Transit Company, 20 Conn.Sup. 210, 131 A.2d 211; Bako v. Unemployment Compensation Board of Review, 171 Pa.Super. 222, 90 A.2d 309; Climax Fire Brick Co. v. Unemployment Compensation Board of Review, 166 Pa.Super. 481, 72 A.2d 300; Saunders v. Maryland Unemployment Compensation Board, 188 Md. 677, 53 A.2d 579; Chrysler Corporation v. Review Board, 120 Ind.App. 425, 92 N.E.2d 565; American Steel Foundries v. Gordon, 404 Ill. 174, 88 N.E.2d 465; Carnegie-Illinois Steel Corporation v. Review Board, etc., 117 Ind.App. 379, 72 N.E.2d 662.
It should be noted that the case of Usher v. Department of Industrial Relations, 261 Ala. 509, 75 So. 2d 165, has no application here. In that case the claimant was in no way involved in the labor dispute causing his unemployment. In the instant case the claimants were members of the union engaged in a labor dispute with their employer.
Petitioners insist that "the opinion of the Court of Appeals in this case and in the case of Department of Industrial Relations v. Savage, 38 Ala.App. 277, 82 So. 2d 435 [supra], are squarely in conflict with the case of Gulf Atlantic Warehouse Company v. Bennett, 36 Ala.App. 33, 51 So. 2d 544, * * *." In Savage [82 So. 2d 438] the Court of Appeals noted that there was "no evidence of an intervening independent agency," as in Bennett. In the Bennett case it was held that, where a public warehouse company, in apprehension that its employees might walk out or create a work stoppage at expiration of their collective bargaining contract, notified its customers to that effect, and customers ceased shipments to the warehouse, the resulting unemployment was directly due to the misapprehension of the customers, as an intervening agency independent of the labor dispute, and, therefore, the unemployment was not directly due to a labor dispute within the disqualification provisions of § 214, Subdiv. A, supra. Clearly, that case is distinguishable from the one now before us and also the Savage case.
Petitioners complain that "the Court of Appeals has reviewed the evidence, which was in conflict as to the circumstances and cause of petitioners' unemployment, and has substituted its appraisal of the facts for that of the learned Circuit Judge." That is an argument which could have been appropriately addressed to the Court of Appeals during its consideration of the case. It is not appropriate here.
The petitioners also, in their petition for certiorari and in their briefs, make reference to and discuss evidence which is not included in the Court of Appeals' opinion. On certiorari to that Court we do not go to the record and consider all the evidence anew and determine, as a reviewable proposition, whether the factual findings and conclusions are sufficiently supported by the evidence or are against the great weight and preponderance of the evidence. Nor will we examine the record and determine whether the Court of Appeals failed to give proper consideration to the rule of review that a trial court's findings from evidence taken orally before it is "to be given the effect of a jury *138 verdict and is not to be disturbed when there is evidence to support it." It must be remembered that the Court of Appeals is a court of final appellate jurisdiction in this state and its decisions are reviewable by us only by certiorari. Our review is confined to the opinion, although at times we examine the record for a better understanding of the court's holding.
Affirmed.
All the Justices concur. | February 12, 1959 |
0a1a8a95-4180-4e8b-8e19-ecdbf8db04bf | Adams Supply Co. v. United States Fidelity & Guar. Co. | 111 So. 2d 906 | N/A | Alabama | Alabama Supreme Court | 111 So. 2d 906 (1959)
ADAMS SUPPLY CO.
v.
UNITED STATES FIDELITY & GUARANTY CO. et al.
3 Div. 805.
Supreme Court of Alabama.
March 26, 1959.
Rehearing Denied May 14, 1959.
*907 Knabe & Nachman and Jack Crenshaw, Montgomery, for appellant.
Rushton, Stakely & Johnston, Montgomery, for appellee.
LAWSON, Justice.
On, to-wit, June 29, 1950, Dallas Homes, Inc., Clover Homes, Inc., and Happiness Homes, Inc., hereafter referred to as owners, entered into contracts with Folmar-Flinn Corporation as general contractor, hereafter referred to as Folmar-Flinn, for the construction of a large number of dwellings in the City of Montgomery.
On July 25th and 27th, 1950, Folmar-Flinn as general contractor entered into subcontracts with J. B. Whitehead, doing business as Whitehead Plumbing and Heating Company, hereafter referred to as Whitehead, for the plumbing and heating work required under Folmar-Flinn's contracts with the owners. These subcontracts contain the following provisions, among others:
On the same days that the subcontracts were entered into United States Fidelity and Guaranty Company, a corporation, hereafter referred to as U.S.F. & G. executed bonds as surety for Whitehead as principal with Folmar-Flinn as sole obligee. Those bonds were not conditioned as provided in the subcontracts, but were conditioned as follows:
Adams Supply Company, a corporation, hereafter referred to as Adams, supplied Whitehead with the plumbing and heating equipment which Whitehead used in attempting to perform his subcontracts with Folmar-Flinn. Folmar-Flinn was aware of the fact that Adams was supplying Whitehead as early as August of 1950.
On October 14, 1950, Whitehead wrote Folmar-Flinn, with copy to Adams, a letter in pertinent part as follows:
At the time the above quoted letter was presented to Folmar-Flinn, Adams claimed Whitehead owed it the sum of $11,887. Thereafter Folmar-Flinn paid to Adams and Whitehead jointly the sum of $9,692.87 which amount Adams claimed to be $2,194.13 less than the amount which Whitehead owed Adams on October 14, 1950.
Whitehead was unable to completely perform his subcontracts with Folmar-Flinn and subsequently went into bankruptcy.
In June of 1951, Adams filed its bill in the circuit court of Montgomery County, in equity, against U.S.F. & G. The bill sought declaratory relief only and prayed that the court declare that U.S.F. & G. was liable to Adams for the sum of $15,545.69 with interest from October 25, 1950, which sum represents the entire amount which Whitehead owed Adams on supplies furnished and used in carrying out Whitehead's subcontracts. The bill further prayed as follows:
A demurrer interposed by U.S.F. & G. was sustained to the bill filed by Adams. Thereafter Adams filed a bill wherein the original bill was completely redrafted and Folmar-Flinn and Whitehead were added as parties respondent. The substituted bill *909 like the original bill sought only declaratory relief. U.S.F. & G. interposed a demurrer to the substituted bill which the trial court and counsel for all parties treated as having been filed on behalf of Folmar-Flinn and Whitehead, as well as U.S.F. & G. The demurrer contained grounds addressed to the bill as a whole and to certain so-called aspects. The demurrer was sustained to the bill as a whole and to the several aspects which the demurrant conceived the bill to encompass. Adams appealed to this court. The averments of the substituted bill are fully set out in the opinion written on that appeal. We reversed and remanded. Adams Supply Company v. United States Fidelity & Guaranty Co., 265 Ala. 178, 90 So. 2d 284. Our reversal was predicated on the ground that the substituted bill showed a justiciable controversy which the respondents did not want settled on demurrer.
After remandment the respondents, U.S. F. & G. and Folmar-Flinn, answered the substituted bill. Adams later filed two amendments. U.S.F. & G. and Folmar-Flinn answered the substituted bill, as amended.
Following a hearing wherein the testimony was taken in the presence of the trial court, the final decree was entered, the declarations of which are adverse to Adams. From that decree Adams has appealed to this court.
The decree of the trial court, including the court's findings as to the facts, reads as follows:
"This case coming on to be heard was submitted for final decree upon the Bill of Complaint as last amended and the answer of the Respondents, Folmar-Flinn Corporation and United States Fidelity & Guaranty Company, as last amended, the Exhibits and the testimony taken orally before the Court, and upon consideration of the same, the Court finds as follows:
"1. That Respondent, Folmar-Flinn Corporation, in 1950 as general contractor entered into contracts with Dallas Homes, Inc. for the construction of 50 housing units, with Clover Homes, Inc. for the construction of 41 housing units and with Happiness Homes, Inc. for the construction of 55 housing units, all in the City of Montgomery, Alabama. That on July 25, 1950, the Respondent J. B. Whitehead doing business as J. B. Whitehead Plumbing & Heating Company entered into three (3) subcontracts with the Respondent Folmar-Flinn Corporation for the plumbing and heating work in said housing units, and that said subcontracts contained among others the following clauses:
"That on, to-wit, July 25, 1950, the said three (3) subcontracts being signed by Respondents Folmar-Flinn Corporation and J. B. Whitehead, and while still executory, were modified by the mutual assent of said Folmar-Flinn Corporation and J. B. Whitehead so as to require the Respondent *910 Whitehead to furnish to the Respondent Folmer-Flinn Corporation bonds on each of the said three (3) subcontracts with Respondent United States Fidelity & Guaranty Company as surety on its bond form `Contract 12-14'.
"That the Respondents J. B. Whitehead and the Respondent Folmar-Flinn Corporation, pursuant to their said subcontracts as modified, requested that the Respondent United States Fidelity & Guaranty Company issue its bonds on its bond form `Contract 12-14' covering each of the said subcontracts, and that the Respondent United States Fidelity & Guaranty Company did issue its bonds on its bond forms `Contract 12-14' which were conditioned as follows:
"That the said bonds as issued were accepted as being the bonds required by the said subcontracts as modified.
"2. That the Complainant, Adams Supply Company, a corporation furnished materials to the Respondent J. B. Whitehead Plumbing & Heating Company which were used by him in the performance of his subcontracts, but that the Complainant Adams Supply Company did not rely upon the said subcontracts executed by the Respondents Folmar-Flinn Corporation and J. B. Whitehead in extending credit to the Respondent J. B. Whitehead for materials, or in furnishing materials for use in the performance of said subcontracts. Nor did the Complainant Adams Supply Company rely upon any representations with reference to the said subcontracts, or to the type of bonds furnished by the Respondent United States Fidelity & Guaranty Company in extending credit for or furnishing said materials. That no representations were made by the Respondents to the Complainant that any bonds had been executed for Complainant's benefit and protection in furnishing materials to J. B. Whitehead Plumbing & Heating Company.
"3. That Complainant Adams Supply Company, a corporation, did not comply with the requirements of Title 33, Section 37 et seq., Code of Alabama of 1940, relating to Mechanics and Materialmen's liens.
"4. That the suretyship obligations undertaken by the Respondent United States Fidelity & Guaranty Company were solely for the named obligees and provided no rights of recovery to Complainant thereunder.
"It is, therefore,
"Ordered, Adjudged and Decreed and Declared by the Court as follows:
"1. That the bonds executed by the Respondent United States Fidelity & Guaranty Company as surety for the Respondents, Folmar-Flinn Corporation and J. B. Whitehead were not for the benefit of Complainant Adams Supply Company, but were for the sole indemnity and benefit of the named obligees therein; that the Complainant Adams Supply has no right of recovery against the Respondents Folmar-Flinn Corporation and United States Fidelity & Guaranty Company thereon.
"2. That the Complainant Adams Supply Company has no lien on the premises of Dallas Homes, Inc., Clover Homes, Inc. nor Happiness Homes, Inc.
"3. That the Respondents Folmer-Flinn Corporation and United States Fidelity & Guaranty Company are not indebted to the Complainant Adams Supply Company.
"4. That the costs to be taxed by the Register be paid by Complainant Adams Supply Company, for which execution may issue.
*911 "Done this the 5 day of April, 1957."
In the brief filed on behalf of appellant, it is said in part:
Adams was not entitled to a declaration to the effect that it has a lien on the property of Dallas, Clover and Happiness Homes. Those corporations are the owners of the property against which Adams says it is entitled to a lien. They are not parties to this litigation. In Statutory actions to enforce mechanics' liens this court has held that the owner of the property against which the lien is sought to be enforced is a necessary party. Roman v. Thorn, 83 Ala. 443, 3 So. 759; Hughes v. Torgerson, 96 Ala. 346, 11 So. 209, 16 L.R.A. 600, 38 Am.St.Rep. 105; Sorsby v. Woodlawn Lumber Co., 202 Ala. 566, 81 So. 68. Section 166, Title 7, Code of 1940, provides in part as follows:
We do not want to be understood as entertaining the view that Adams would have been entitled to a favorable declaration in this respect under the pleadings and proof even if the owners had been parties.
The letter of October 25, 1950, did not constitute an assignment and Folmer-Flinn was entitled to withhold from Whitehead an amount necessary to complete the plumbing and heating after Whitehead failed to fulfill his subcontract. See Standard Sanitary Mfg. Co. v. Aird, 221 Ala. 520, 129 So. 285.
The bonds here involved are conditioned so differently from the bond involved in Fidelity & Deposit Co. of Baltimore, Md. v. Rainer, 220 Ala. 262, 125 So. 55, 77 A. L.R. 13, as to make the holding in that case inapplicable. In the Rainer case, supra, Condition Five of bond was as follows: "Shall pay all persons who have contracts directly with the principal for labor and material, then this obligation shall be null and void; otherwise it shall remain in full force and effect."
All other insistencies for reversal are dependent on a holding by this court that the trial court erred in its findings of fact. We cannot so hold.
For emphasis, we refer to the favorable presumption of correctness attending the trial court's conclusion on issues of fact where the evidence is taken in the presence of the court. Under such circumstances we will not disturb the trial court's conclusion on issues of fact unless palpably erroneous and against the great weight of the evidence; and it is not necessarily what view the appellate court might have of the evidence, but if under any reasonable aspect the decree below is fairly supported by credible evidence, it is our duty to affirm. Lane v. Bruner, 236 Ala. 269, 182 So. 5; Penny v. Penny, 247 Ala. 434, 24 So. 2d 912. Aided by this presumption it is clear the decree must be affirmed.
Affirmed.
LIVINGSTON, C. J., and STAKELY and MERRILL, JJ., concur. | March 26, 1959 |
06747120-3779-40ff-9cfd-a7448caefcd8 | State v. Moore | 110 So. 2d 635 | N/A | Alabama | Alabama Supreme Court | 110 So. 2d 635 (1959)
STATE of Alabama
v.
George MOORE.
5 Div. 695.
Supreme Court of Alabama.
March 12, 1959.
*636 J. Sydney Cook, Jr., Special Asst. Atty. Gen., Auburn, and Ruth S. Sullivan, Opelika, for appellant.
Walker & Walker, Opelika, for appellee.
STAKELY, Justice.
This is a proceeding begun in the Probate Court of Lee County, Alabama, by the State of Alabama (appellant) to condemn for highway purposes certain property of George Moore (appellee). The amount of the award in the Probate Court to George Moore was $21,902. This amount was paid into the Probate Court and an order of condemnation was there entered. The property owner (George Moore) took an appeal to the circuit court and demanded a trial by jury in the circuit court.
As required by statute, Code 1940, Tit. 19, § 18, the State on April 22, 1957, filed with the clerk of the circuit court a supersedeas bond in the amount of $43,805 and entered into possession of the condemned property. The trial before a jury in the circuit court resulted in a verdict and judgment for George Moore for $40,750. The State filed a motion for a new trial in the circuit court. On January 17, 1958, the clerk of the court paid to George Moore the amount of the original deposit of $21,902. This was by agreement of the parties made in open court. As will be hereinafter pointed out, the appellee, therefore, claims interest on $18,848 from the time of the judgment, November 7, 1957. The motion for new trial was overruled and this appeal followed.
Tendencies of the evidence showed in part the following. At the time these proceedings were instituted, the appellee George Moore owned a 535 acre tract of land in one body on Moore's Mill Road, a paved road extending southeasterly from Auburn. This place was partly within the southeasterly limits of the City of Auburn. Buildings had been erected out to the city limits and one witness testified that the place of George Moore was suitable for subdivision for residential lots. Buildings on the place were estimated by three of the State's witnesses to be worth $20,000. A. M. Wright, a witness for the appellee, valued the home residence on the place at $15,000 and the tenant house at $8,000 and there were other valuable improvements.
On the south side of Moore's Mill Road the property of George Moore fronted at least 2,000 feet and he had a larger frontage on the north side of that road of 2,500 or 2,600 feet, making a total frontage of about 4,640 feet. It is sufficient to say that the evidence for both the appellant and the appellee showed that the place of George Moore was valuable property before the taking.
The condemnation doubly severed the property of George Moore. The State has condemned a 300 foot wide non-access highway running northeasterly through the property of George Moore. This property is designated in the petition to condemn as Parcel No. 2 of Tract 31, which contains 20.38 acres. This non-access right of way intersects the existing Moore's Mill Road at right angles. It is proposed that Moore's Mill Road will pass over the new highway by a bridge, thus necessitating the raising of Moore's Mill Road through the property of George Moore to a maximum of 20 feet. This requires the widening by condemnation *637 of Moore's Mill Road from its present width of 80 feet to 120 feet, which is 20 feet on each side through the Moore property. These two twenty foot strips contain in the aggregate 1.21 acres and are described in the petition to condemn as Parcel No. 1 of Tract 31.
Before the condemnation 150 or 160 acres of the property of George Moore lay in one body north of and fronting on Moore's Mill Road. As shown by maps in evidence, an odd shaped 60 acre tract of this property now lies north or northwesterly of the new non-access highway, entirely separated from George Moore's other property and with a frontage on Moore's Mill Road of only 30 to 60 feet, according to the estimates of various witnesses who knew the premises. In any event, according to tendencies of the evidence, whether the frontage of this odd shaped 60 acre tract on Moore's Mill Road is 30 or 60 feet, the non-access highway ruined the value of this property for subdivision or other purposes.
I. The record shows that only a notice of appeal was given. No bond or security for costs was given. The appellee insists that the appeal should be dismissed by this court ex mero motu. It is claimed that § 23, Title 19, Code of 1940, controls. This statute reads as follows:
The argument is made that the giving of bond or security for costs is jurisdictional and where no bond or security for costs was given, the appeal must be dismissed. Conceding without deciding that the aforesaid statute, § 23, Title 19, Code of 1940, is the applicable statute and that § 72, Title 7, Code of 1940, is not here applicable, we still do not agree that the appeal must be dismissed.
Upon submission of the cause in this court no motion to dismiss the appeal of the State was submitted or other objection interposed to its prosecution of the appeal without giving bond or security for costs. The appeal, however, was taken within the time allowed by law and conceding that a bond or security for costs should have been given, this was nothing more than a defect in the manner of taking the appeal. We consider that the appellee could and did waive the failure to give bond or security for costs by not interposing a motion or other objection upon submission. Walker v. Harris, 235 Ala. 384, 179 So. 213; Humphrey v. Lawson, 256 Ala. 198, 54 So. 2d 439.
II. The appeal in this case is only from the ruling and judgment of the trial court of April 4, 1958, overruling the appellant's motion for a new trial. This is, of course, permissible. § 764, Title 7, Code of 1940, as amended, 1955 Cumulative Pocket Part. Where the appeal is from the ruling on a motion for new trial, the ruling on the motion for new trial is the only matter which is subject to review on the appeal and therefore only matters assigned in the motion for new trial are subject to review. Self v. Baker, 266 Ala. 572, 98 So. 2d 10.
It is sought to be argued that the verdict is contrary to the great weight and preponderance of the evidence. The appellant appears to concede that there is sufficient evidence to support the jury's verdict of damages. In brief the appellant sets out a summary of appellee's witnesses as to damages as follows: $60,980, $52,780, $53,540.50, $52,775, $54,762 and $58,925. Thereupon the appellant asserts: "However, it is the appellant's view that the evidence given by each of the witnesses for the Appellee, including the Appellee himself, is improper and based on erroneous information in that none of said witnesses had actual knowledge of the true facts of the tract of land remaining after the taking."
*638 W. Harvey Boggs was a witness for the State. As an engineer "he worked on the acquisition of the right of way on the project" here involved. It is argued that because the testimony of some of the witnesses for the appellee was in contradiction of the testimony of the witness Boggs, we should hold that these witnesses were incompetent to testify, although the trial court without objection permitted them to testify. It is not entirely clear to us that there is a conflict in the evidence. What Mr. Boggs said was, "well that is my thought, is that it is about fifteen feet" from the margin of the condemned right of way up to the Moore residence. "Yes, sir, stakes were put in there" at or near the residence.
With reference to the width of the frontage of the odd-shaped 60 acre tract on Moore's Mill Road just northwest of the overhead bridge, Mr. Boggs readily admitted that there was a "black space" on the map from which he was testifying "where he put down a figure that I had to change, and I just inked through it." The jury had a right to find that the figure was "30" instead of "60". So George Moore testified.
With reference to the testimony as to the distance of the new right of way from the residence of George Moore, the witness Boggs testified that the stakes were there. The witnesses for the appellee, Gentry, Wright and Clements said the stakes were within 6 or 7 feet from the residence. These witnesses raise an issue of fact with Bogg's testimony, but this does not disqualify them from testifying.
The testimony of other witnesses for the appellee appears to be in keeping with that of the witness Boggs. The other witnesses for the State do not corroborate Boggs that the frontage of the odd-shaped 60 acre tract was 60 feet. Likewise they make no statement as to the distance of the residence of George Moore from the new right of way. But all this did nothing more than present issues for the jury to decide. The appellant did not on the trial assert by objection or motion that the testimony of appellee's witnesses was "improper or based on erroneous information." On the contrary, the appellant appears to concede that the witnesses of the appellee were competent to testify as to values and made no motion to exclude their testimony.
It is claimed by the appellant that certain of the witnesses for the appellee did not have "sufficient knowledge of the tract remaining after the taking to qualify them to testify as to the amount of damages." This point was not made in the court below. There is no assignment of error to that effect and if there was, it would be ineffective since the point was not made below. Webb v. Gentle, 39 Ala.App. 357, 100 So. 2d 36.
The determination of the qualifications of a witness to testify as to value is for the trial court. The credibility of a witness permitted by the trial court to testify is for the jury and where a witness testifies that he knows the property and he knows its value, he is qualified to state that value. Housing Authority of City of Decatur v. Decatur Land Co., 258 Ala. 607, 64 So. 2d 594; American Ins. Co. of Newark, N. J. v. Fuller, 224 Ala. 387, 140 So. 555; Ensign Yellow Pine Co. v. Hohenberg, 200 Ala. 149, 75 So. 897; Bates v. Chilton County, 244 Ala. 297, 13 So. 2d 186.
As we have heretofore stated, our examination of the record shows that there was ample evidence to sustain the verdict. Every presumption is indulged in favor of the verdict of a jury and that presumption is strengthened by the overruling of the motion for new trial. New York Life Ins. Co. v. Turner, 213 Ala. 286, 104 So. 643; Smith v. Smith, 254 Ala. 404, 48 So. 2d 546.
In concluding their brief the attorneys for the appellee ask that the judgment *639 of the circuit court be affirmed with interest from its date, November 7, 1957, at six percent per annum on the judgment for $40,750 with credit of interest from January 17, 1958, on the $21,902 paid by the clerk to the appellee on that date. In support of this request the case of Jefferson County v. Adwell, 267 Ala. 544, 103 So. 2d 143, is cited. We have reluctantly concluded that the request for interest cannot be granted. This is a matter which should be referred to the legislature.
There is nothing in the case of Jefferson County v. Adwell, supra, which authorizes the allowance of interest on a condemnation award. That case does repeat the often previously stated rule of this court that a personal judgment cannot be rendered in a case of this kind. To the same effect see also Calhoun County v. Logan, 262 Ala. 586, 80 So. 2d 529, and State of Alabama v. Carter, 267 Ala. 347, 101 So. 2d 550.
Interest on a judgment is provided where a judgment is for the payment of money, §63, Title 9, Code of 1940. It is obvious that this statute does not apply in the instant case since as we have said a judgment in a condemnation case is not a personal judgment for the payment of money but only an order of condemnation. We do not think that § 506, Title 7, Code of 1940, which deals with judgments for "debt, damages, or costs" has any application to the present case. As pointed out, the judgment in the present case is only an order of condemnation and is not necessarily subject to being executed upon until the matter of compensation is finally adjudicated and the rights of the taker finally vest. § 24, Title 19, Code of 1940.
See 47 C.J.S. Interest § 21, p. 33.
We will say again that it is with great reluctance that we deny the right of the appellee to interest on the award. Southern Electric Generating Co. v. Lance, Ala., 110 So. 2d 627.
It results that the judgment of the lower court must be affirmed.
Affirmed.
LIVINGSTON, C.J., and LAWSON and MERRILL, JJ., concur. | March 12, 1959 |
d45db645-3dca-4568-8118-073f1687a7a5 | Brandwein v. Elliston | 109 So. 2d 687 | N/A | Alabama | Alabama Supreme Court | 109 So. 2d 687 (1959)
Sam BRANDWEIN, d/b/a Brandy's
v.
Dorothy ELLISTON.
1 Div. 719.
Supreme Court of Alabama.
February 19, 1959.
*688 Johnston, McCall & Johnston, Mobile, for appellant.
M. A. Marsal, Mobile, for appellee.
GOODWYN, Justice.
This is a personal injury action brought in the circuit court of Mobile County by Dorothy Elliston (appellee) against Sam Brandwein, doing business as Brandy's (appellant). From a judgment rendered on a jury's verdict for $15,000 in favor of plaintiff, defendant brought this appeal after his motion for a new trial was overruled.
Defendant operated a ladies ready-to-wear store in Mobile. Plaintiff, while in the store as a customer, slipped and fell on the floor, thus causing her alleged injuries and damages. The complaint charges that her injuries and damages "were caused as a proximate consequence of the negligence of the defendant, in this: Defendant negligently maintained said floor at the place where plaintiff slipped and fell in an unsafe condition for the use of customers in the said store." There was evidence tending to show that the floor was "highly polished" and "slick as glass" from waxing. Plaintiff relies on this condition, plus evidence that her dress was stained with wax when she fell, to establish defendant's negligence in maintaining the floor. Plaintiff insists that the wax on the dress resulting from the fall is sufficient to show that an excessive amount of wax was applied to the floor and that the wax was still wet at the time of the fall, thus establishing defendant's negligence in maintaining the floor. There is evidence that the floor was waxed on the Saturday night preceding plaintiff's fall on Monday.
The defendant interposed pleas of "not guilty" and "contributory negligence." No witnesses were called by the defendant.
Defendant charges the trial court with error in the following respects:
I. In qualifying the jury as to whether any of them was an employee or stockholder of, or had any interest in, the Abe Gulp Insurance Agency. (Although the record does not disclose it, it appears from the parties' briefs that defendant's insurance coverage involved in this case was issued through this agency.)
II. In denying defendant's motion for a mistrial after plaintiff, in testifying, said that "the insurance adjuster came up" to her after she arrived at the hospital.
III. In denying defendant's request for the general affirmative charge with hypothesis.
IV. In denying defendant's motion for a new trial on the ground of excessiveness of the verdict.
The following occurred while the jury was being qualified by the trial court, viz.:
We find no reversible error in the action of the trial court in qualifying the jury. Code 1940, Tit. 30, § 52; Hudson v. Stripling, 261 Ala. 196, 201, 73 So. 2d 514; Avery Freight Lines, Inc. v. Stewart, 258 Ala. 524, 526, 63 So. 2d 895; Vredenburgh Saw Mill Co. v. Black, 251 Ala. 302, 306-307, 37 So. 2d 212; Gammill v. Culverhouse, 217 Ala. 65, 66, 114 So. 800; Citizens' Light, Heat & Power Co. v. Lee, 182 Ala. 561, 581, 62 So. 199. In the Avery Freight Lines case it is stated [258 Ala. 524, 526, 63 So.2d 896]:
The following occurred on plaintiff's direct examination, viz.:
"Mr. McCall: Does your Honor deny my motion for a mistrial?
Whether or not the exclusion of plaintiff's unresponsive answer concerning the insurance adjuster removed its hurtful consequences, or, notwithstanding the trial court's prompt and positive instructions to the jury, it influenced the jury's verdict, *690 was a question presented to the trial court on the hearing of the motion for a new trial. We are unable to affirm on this record that reversible error was committed in overruling the motion for new trial on this ground. Clark v. Hudson, 265 Ala. 630, 633, 93 So. 2d 138; Thorne v. Parrish, 265 Ala. 193, 195, 90 So. 2d 781; Wagnon v. Patterson, 260 Ala. 297, 306-307, 70 So. 2d 244; Cannon v. Scarborough, 223 Ala. 674, 676, 137 So. 900.
Defendant contends that there is absolutely nothing in the record to show wherein the defendant was guilty of negligence, and that the trial court committed reversible error in refusing to give his requested general charge with hypothesis. We are unable to agree. After examining the record, it seems to us it was an issue for the jury's determination whether defendant was negligent in maintaining the floor, and, if so, whether such negligence was the proximate cause of plaintiff's injury; also, whether plaintiff was guilty of negligence proximately contributing to her injury. Our view is, from a careful consideration of all the evidence, that we would not be warranted in disturbing the jury's resolvement of these issues in favor of the plaintiff. We think there is at least a "scintilla" of evidence supporting plaintiff's charge that defendant negligently maintained the floor in an unsafe condition for the use of his customers. As stated in Alabama Great Southern Railroad Company v. Bishop, 265 Ala. 118, 123, 89 So. 2d 738, 743, the rule in Alabama is that "in civil cases the question must go to the jury if the evidence or the reasonable inferences arising therefrom furnish `a mere "gleam," "glimmer," "spark," "the least particle," the "smallest trace""a scintilla" in support of the theory". See also: J. C. Byram & Co. v. Livingston, 225 Ala. 442, 445, 143 So. 461; Norwood Hospital v. Brown, 219 Ala. 445, 446, 122 So. 411; Pelzer v. Mutual Warehouse Co., 217 Ala. 630, 117 So. 165; Kalevas v. Ferguson, 216 Ala. 625, 627, 114 So. 292.
Plaintiff's hospital, medical and drug expenses came to about $1,480. She was in the hospital for 57 days for the purpose of undergoing an operation on her hip (the base or neck of the femur was broken). Before being hospitalized her doctor put her "in traction" in an effort to correct the bone displacement, but this was not successful. In operating on the hip it was necessary to do a bone graft by taking bone from another part of her body. Plaintiff testified that, prior to the accident, she was earning $175 per month as a saleslady and had been unable to work since the accident. However, her doctor testified she had made a satisfactory recovery and when he last saw her (about 11 months before the trial) he considered that "she could do most anything that she wanted to." From the time of her injury to the date of trial was approximately 19 months. The loss of salary during that period was about $3,300. Recapitulating, plaintiff's claimed expenses approximated $4,780. The question is whether the balance of the verdict (approximately $10,000), as compensatory damages for her injury, pain and suffering, is excessive.
When there is before us a question of excessiveness of a jury's verdict there are certain well-established rules of review to be considered. As said in Louisville and Nashville Railroad Co. v. Tucker, 262 Ala. 570, 581, 80 So. 2d 288, 298:
See, also, Firestone Tire and Rubber Company v. Nixon, 264 Ala. 433, 435, 87 So. 2d 829; Hudson v. Stripling, 261 Ala. 196, 203, 73 So. 2d 514; Alabama Great Southern R. Co. v. Baum, 249 Ala. 442, 449, 31 So. 2d 366, 372. In the last cited case it was said:
As to the fixing of damages for pain and suffering, this court, speaking through Mr. Justice Sayre in Whitman's Fifth Ave. Garage Co. v. Ricks, 211 Ala. 527, 529-530, 101 So. 53, 55, had this to say:
"Remembering that the authority vested in courts to disturb the verdict of a jury on the ground of excessive damages is one which should be exercised with great caution" (Louisville & Nashville Railroad Co. v. Tucker, supra), we are constrained to hold that the trial court's refusal to set aside the verdict on the ground of excessiveness should not be interfered with. We are unable to say that the amount of the verdict is the result of passion, prejudice, partiality or corruption on the part *692 of the jury, especially in view of the trial court's refusal to set the verdict aside after hearing the evidence.
There being no error to reverse, the judgment is affirmed.
Affirmed.
LIVINGSTON, C. J., and LAWSON, STAKELY and MERRILL, JJ., concur. | February 19, 1959 |
a1aa0ced-36fb-4431-8534-623127e3f339 | City of Decatur v. Parham | 109 So. 2d 692 | N/A | Alabama | Alabama Supreme Court | 109 So. 2d 692 (1959)
CITY OF DECATUR
v.
Estelle PARHAM.
8 Div. 910.
Supreme Court of Alabama.
February 19, 1959.
*693 Julian Harris, Norman W. Harris, Philip Shanks, Jr., and John A. Caddell, Decatur, for appellant.
Powell & Powell, Decatur, for appellee.
LAWSON, Justice.
This is a suit by Estelle Parham against the City of Decatur to recover damages for personal injuries which are alleged to have resulted from an electric shock that she received on the afternoon of July 24, 1956, when her right arm came in contact with an electric hair dryer affixed to a wall in a dressing room in a bathhouse owned *694 and maintained by the City of Decatur in connection with its operation of a municipally owned swimming pool.
The plaintiff's amended complaint, on which the cause went to the jury, consisted of six counts, numbered 1, 2, 4, 5, 6 and 7. The defendant pleaded the general issue in short by consent in the usual form. The jury found for the plaintiff on Counts 1, 2, 4 and 7. The amount of the verdict was $10,000 and judgment for that amount was rendered for the plaintiff and against the City. Its motion for a new trial having been overruled, the City appealed to this court.
The swimming pool and bathhouse were under the control and direction of the Park and Recreation Board of the City of Decatur, to which agency the City had entrusted the general supervision, operation and control of the parks, places of recreation and playgrounds owned by the City. Ordinance No 561, adopted April 3, 1950.
The City of Decatur also owned and operated an electric distribution system which was under the control and management of another agency of the City, the "Municipal Utilities Board of Decatur, Morgan County, Alabama," created by Local Act approved March 3, 1939. Act No. 89, Local Acts 1939, p. 47.
The Municipal Utilities Board furnished and sold electricity to the Park and Recreation Board for use in connection with the operation of the swimming pool and bathhouse. The electricity was delivered by the facilities and system under the control and management of the Municipal Utilities Board to a metering point outside the pump house of the swimming pool. From that metering point electricity was conducted to the hair dryer in the bathhouse by a wiring system which was a part of the bathhouse property and which was under the control of the Park and Recreation Board.
As shown above, the jury in its verdict specified that it found for the plaintiff on Counts 1, 2, 4 and 7. No reference was made to Counts 5 and 6, which also went to the jury. The effect of this verdict was a finding for the defendant as to Counts 5 and 6, so no further reference need be made to those counts. Central of Georgia Ry. Co. v. Corbitt, 218 Ala. 410, 118 So. 755. See Gibson v. Elba Exchange Bank, 266 Ala. 426, 96 So. 2d 756.
In none of the counts of the complaint did plaintiff base her right to recover on the theory of negligence of the servants, agents or employees of the City in the construction or maintenance of the bathhouse or of any appliance therein. No recovery could have been had under such a count, for it is well established that a municipal corporation is ordinarily not liable for injuries which result from the negligent performance of a governmental function of a municipality. Parr v. City of Birmingham, 264 Ala. 224, 85 So. 2d 888; City of Bay Minette v. Quinley, 263 Ala. 188, 82 So. 2d 192; Williams v. City of Birmingham, 219 Ala. 19, 121 So. 14. And it is well established that the operation of a swimming pool and bathhouse and similar recreational facilities are governmental functions. Mathis v. City of Dothan, 266 Ala. 531, 97 So. 2d 908, and cases cited. The holding in the case last cited is in accord with the prevailing view. See Annotation, "Municipal operation of bathing beach or swimming pool as governmental or proprietary function, for purposes of tort liability," which begins on page 1434 of 55 A.L.R.2d.
In Counts 1, 2, and 7 plaintiff bases her right to recover on allegations to the effect that either the bathhouse or the defective hair dryer installed therein was a nuisance and that the plaintiff was injured as a proximate consequence of the negligent maintenance or negligent operation of such nuisance.
Those counts were drafted, no doubt, in the light of the holding of several of our cases to the effect that a City is liable *695 for negligently causing or creating a nuisance, whether or not in so doing it is performing a governmental function. Downey v. Jackson, 259 Ala. 189, 65 So. 2d 825; City of Bessemer v. Chambers, 242 Ala. 666, 8 So. 2d 163; Densmore v. City of Birmingham, 223 Ala. 210, 135 So. 320; City of Bessemer v. Abbott, 212 Ala. 472, 103 So. 446. In Town of Vernon v. Wedgeworth, 148 Ala. 490, 42 So. 749, 750, the plaintiff sued the town for the maintenance of a nuisancea privy kept open for public usenear his dwelling house. In the opinion in that case it was stated that "no authority can be produced holding that negligence is essential to establish a cause of action for injuries of the character complained of here." But our later cases are to the effect that negligence is necessary to charge the City with liability where the act complained of is carried on under legislative authority. Downey v. Jackson, supra; City of Bessemer v. Chambers, supra; City of Bessemer v. Abbott, supra. See Wheeler v. River Falls Power Co., 215 Ala. 655, 111 So. 907; § 502, Title 37, Code 1940.
In no case which has come to our attention have we held a City liable for personal injuries resulting from a nuisance negligently created or maintained in the course of the performance of a governmental function except where such injuries were caused by vile and offensive odors which emanated from an incinerator, garbage dump, trash pile or similar operation maintained by the City in close proximity to the plaintiff's place of abode. City of Birmingham v. Prickett, 207 Ala. 79, 92 So. 7; City of Bessemer v. Pope, 212 Ala. 16, 101 So. 648. See City of Birmingham v. Ingram, 20 Ala.App. 444, 103 So. 595.
The case of Downey v. Jackson, supra, was on the equity side of the court and involved an injunction against an agency of the City of Birmingham. In City of Bessemer v. Chambers, supra, the plaintiff claimed damages resulting from the operation by the City of Bessemer of a garbage dump which the evidence tended to show "burned throughout the day and night resulting in offensive odors and smoke blowing in and about the homes of the plaintiffs with much offense and annoyance to them. * * *" The damages there sought were for an invasion of private property rights. The same is true in the case of City of Bessemer v. Abbott, supra, from which we quote:
In Densmore v. City of Birmingham, supra, the plaintiff sued the City to recover damages for personal injuries resulting from a collision between the automobile in which plaintiff was riding and a street sweeper. There is language in the opinion relative to our holding in City of Bessemer v. Abbott, supra [223 Ala. 210, 135 So. 321], but the opinion shows that "no count of the complaint is expressly predicated upon the creation of a nuisance." The conclusion reached was that the court properly sustained demurrers to all of the counts of the complaint. That case is not considered by us as extending to injuries of the kind there under consideration the rule of the Abbott case, supra.
We are not willing to entend the rule of the cases cited and from which we have quoted above to a factual situation such as is presented in this case. Before coming to that conclusion we have read cases from *696 many other jurisdictions and in many of them is language to the effect that municipality may be found liable for injuries to the person resulting from a nuisance created or maintained by the municipality in the exercise of governmental functions, although such injuries were not caused by noxious odors, smoke or fumes blowing in and about the homes of the plaintiffs from incinerators, garbage dumps, and the like.
But these cases are so beset with qualifications, limitations and restrictions as to add only one more confusion to the classic confusion relating to distinctions between governmental and proprietary functions. The practical effect of the rule, even in jurisdictions broadly recognizing its application to cases of all types of personal injuries, is often severely limited by the circumstances and strict definition of "nuisance" within the meaning of the rule. The reasoning of courts in refusing to apply the rule to tenuous cases of nuisance is often very similar to the reasoning of those courts which entirely withhold recognition of the rule on the ground that the accepted doctrine of immunity from torts in the exercise of governmental functions may not be evaded merely by calling negligence by another name. See 56 A.L.R.2d 1416, 1418.
The difficulty in determining whether the negligence of the City's servants becomes so outrageous as to amount to a nuisance has led the courts to some surprising conclusions. In Hoffman v. City of Bristol, 113 Conn. 386, 155 A. 499, 75 A.L.R. 1191, it was held that the erection of a diving board over shallow water in a public pool is a nuisance. Conversely, in the case of Selden v. City of Cuyahoga Falls, 132 Ohio St. 223, 6 N.E.2d 976, it was held that a diving board was not a nuisance although perhaps negligence. In the case of Melker v. City of New York, 190 N.Y. 481, 83 N.E. 565, 16 L.R.A., N.S., 621, a fireworks display was held not to constitute a nuisance; but when the proper precautions were not taken to avoid injury to citizens, the same court held that a fireworks display was a nuisance. Speir v. City of Brooklyn, 139 N.Y. 6, 34 N.E. 727, 21 L.R.A. 641.
We have consistently adhered to the principle that legislative action is required to make a municipal corporation responsible for personal injuries or death caused by the negligence of its servants, agents or employees while engaged in governmental functions and we think it unsound to extend the nuisance exception to cover such injuries, thereby requiring the City to defend every personal injury negligence action and the law of nuisance would be further confused by attempts to force a coverage of the individual case.
Although, as we have observed, some courts engage in chipping away bit by bit at the doctrine of governmental immunity from one point of view or another where distinctions, defensible or indefensible, are seen, the general doctrine is so firmly embedded in our jurisprudence that we entertain the view that correction, if needed, must come from the legislature. Only the legislature can provide the regulations and limitations necessary to protect the public interest and provide the fiscal basis for payment of such claims.
In view of the foregoing, we hold that the defendant City was entitled to the general affirmative charge as to Counts 1, 2 and 7, which charges were duly requested in writing.
Count 4, the remaining count on which the jury based its verdict, reads in pertinent part as follows:
As we come to consider the sufficiency of the evidence to support this count, we think it well to emphasize that the gravamen of the count is the negligence of the City in furnishing and supplying electricity to the bathhouse, not in the negligent construction or maintenance of the hair dryer as a part of the facilities of the bathhouse.
The rule is settled that when a municipality engages in the business of furnishing electricity, lights, water, etc., to the public, it is not then discharging or exercising governmental functions or powers, but is exercising proprietary or business powers and as to such business it is governed by the same rules of law which are applicable to ordinary business corporations and is therefore liable for the negligence of its servants, agents or employees while acting within the line and scope of their authority. Darby v. City of Union Springs, 173 Ala. 709, 55 So. 889; Town of Athens v. Miller, 190 Ala. 82, 66 So. 702. See Brown v. Tuskegee Light & Power Co., 232 Ala. 361, 168 So. 159; Montgomery v. City of Athens, 229 Ala. 149, 155 So. 551; City of Birmingham v. Lake, 243 Ala. 367, 10 So. 2d 24; City of Bessemer v. Whaley, 8 Ala.App. 523, 62 So. 473.
What are the duties owed by a private power company to its customers relative to furnishing of electricity for the operation of electric appliances?
It is the general rule, deduced from the authorities, that where electrical appliances on private property are owned or controlled by the owner or occupant of the premises, a company which merely furnishes electricity for such appliances is not responsible for their condition and is not liable for injuries, caused by a defective condition, to the owner or occupant or to third persons on the premises. No duty of inspection rests on the one supplying the electricity from the mere fact of rendering such service to the customer owning or controlling the equipment. Where the one supplying the electricity has no control over the appliances and has no actual knowledge of the defective and dangerous condition thereof, his responsibility ends when connection is properly made under proper conditions and the current of electricity is delivered in a manner which will protect both life and property. Alabama Power Co. v. Jones, 212 Ala. 206, 101 So. 898; Alabama Power Co. v. Emens, 228 Ala. 466, 153 So. 729; Johnson v. Alabama Power Co., 230 Ala. 91, 159 So. 695; Milligan v. Georgia Power Co., 68 Ga.App. 269, 22 S.E.2d 662; Lawson v. City of Chattanooga, 37 Tenn. App. 309, 263 S.W.2d 538; Carroway v. Carolina Power & Light Co., 226 S.C. 237, 84 S.E.2d 728; Baker's Adm'x v. Kentucky & West Virginia Power Co., 290 Ky. 38, 160 S.W.2d 360; Oesterreich v. Claas, 237 Wis. 343, 295 N.W. 766, 134 A.L.R. 499; 18 Am.Jur., Electricity, § 102; 29 C.J.S. Electricity § 57. In Baker's Adm'x v. Kentucky & West Virginia Power Co., supra, it was held that where a private power company by service wire furnished electricity from its transmission line to electric wires at privately owned bathhouse and swimming beach which had been installed by owner, such wires were in the exclusive control of owner of premises and power company had no duty to inspect them nor liability for their negligent maintenance, thereby precluding recovery against power company for death of bather electrocuted when charged wire came in contact with cable used by patrons of bathhouse and beach.
*698 But where the company which furnishes the electricity owns or controls the defective appliance or has knowledge of a defect in the appliance, it has the duty to stop and not to transmit its deadly current to the defective appliance. If it does so after knowledge of said defect, it is liable for injuries to persons caused by this breach of duty. Alabama Power Co. v. Jones, supra; Alabama Power Co. v. Emens, supra; Johnson v. Alabama Power Co., supra.
In considering the question of liability of the City under Count 4, we think it legally correct to view the situation in the manner it would be judged if it had been a private power company, rather than the City of Decatur, which was engaged in the supplying of electricity to the bathhouse and if the suit had been against such private power company alleging negligence in such distribution. We think the fact that the City is immune from liability for its negligence in the operation of the bathhouse, but is liable for any negligence which may have resulted in the distribution of electricity, dictates that Count 4 be considered in that light.
The hair dryer was installed by an independent contractor and the evidence tends to show that there was negligence in its installation in that it was not grounded. There is no evidence tending to show that any employee or official of the City had actual knowledge of the fact that the hair dryer had not been properly installed. Although there was evidence tending to show that employees of the Park and Recreation Board were aware of the fact that the hair dryer did not operate properly in that it did not shut itself off automatically, as it was designed to do, there is no evidence tending to show that any of those employees had knowledge of the fact that the hair dryer would produce an electric shock when touched or was otherwise dangerous.
The evidence is without dispute, as we understand it, that no person connected with the Municipal Utilities Board was aware that the hair dryer did not work properly and, in fact, there is no evidence going to show that any employee of that Board knew of the existence of the hair dryer.
The knowledge of the employees of the Park and Recreation Board of the defective condition of the hair dryer did not operate to make the City liable on the theory that it breached a duty to desist from furnishing electricity to that appliance. Sullivan v. Alabama Power Co., 246 Ala. 262, 20 So. 2d 224; MacDermid v. City of Seattle, 93 Wash. 167, 160 P. 290; Cook v. City of Anamosa, 66 Iowa 427, 23 N.W. 907; City of Indianapolis v. Ray, 52 Ind.App. 388, 97 N.E. 795; Collins v. Lyons, 9 La.App. 736, 120 So. 418. See City of Birmingham v. McKinnon, 200 Ala. 111, 75 So. 487.
The learned trial judge entertained the same view, as is demonstrated by the giving of written charges 15 and 16 at the request of the City, which charges read:
We are of the opinion that where liability of a City is sought to be predicated on its negligence in the furnishing or supplying of electricity to a defective appliance, whether on property of the City or of the private individual, the notice of defect must come to some officer or agent of the department or agency of the City directly connected with the distribution of electricity, or to some officer or agent having a duty or responsibility to report to or supervise the officers and agents of that department or agency.
We are unable to see where the doctrine of res ipsa loquitur can be said to aid plaintiff in so far as Count 4 is concerned. But in any event, if it be said that that doctrine does apply in a case of this kind, it would have only placed upon the City the duty of going forward with the evidence to the extent of showing no negligence in so far as the furnishing of electricity. We think the City met this burden. There is absolutely no evidence to show that there was any defect in any appliance which acted to conduct the electricity to the metering point or that the amount of electricity which reached the metering point and thereafter was conducted to the electric appliance here under consideration was in excess of the amount for which the wiring and equipment was designed.
This case has presented somewhat novel questions and its solution has not been without difficulty. It has received our careful and studied consideration and we are of the opinion that the defendant was entitled to the affirmative charge as to each count of the complaint upon which the jury rested its verdict. In view of this conclusion it is unnecessary for us to consider the other assignments of error.
The judgment of the trial court is reversed and the cause is remanded.
Reversed and remanded.
SIMPSON, STAKELY, MERRILL and COLEMAN, JJ., concur. | February 19, 1959 |
192450b1-70e1-4866-b388-1bcff98633ba | Southern Electric Generating Company v. Lance | 110 So. 2d 627 | N/A | Alabama | Alabama Supreme Court | 110 So. 2d 627 (1959)
SOUTHERN ELECTRIC GENERATING COMPANY
v.
Clarence C. LANCE et al.
7 Div. 396.
Supreme Court of Alabama.
March 12, 1959.
*628 Karl C. Harrison, Columbiana, and Martin & Blakey, John Bingham, and Harold *629 A. Bowron, Jr., Birmingham, for appellant.
Handy Ellis, Columbiana and Bainbridge & Mims, Birmingham, for appellees.
MERRILL, Justice.
This appeal is from a judgment of condemnation and an award by the jury of $38,000 to appellees. The proceedings in probate court had resulted in an award of $21,095.50. Appellees appealed from that judgment and the cause was tried to a jury in circuit court. A motion for a new trial was overruled.
Appellant states in brief that "the sole issue for the jury in this case was the valuation issue, viz., determination of the fair market value of appellees' land on June 13, 1957. All errors argued herein deal with the exclusion or admission of valuation evidence or statements of counsel to the jury on matters of valuation." Assignments of error are listed and numbered as they are argued in brief.
Assignment of error 11 charges that the court erred in overruling appellant's objection to the following question asked appellant's witness McEwen on cross-examination: "What did you sell it to the Southern Electric Generating Company for?", and in permitting the witness to answer the question. McEwen had bought 122 acres of land in 1954 and sold it to appellant in 1957 to become a part of the plant site for which appellees' land was being condemned.
We have consistently held that in a condemnation proceeding, the price paid by the condemnor for other lands which are to be used for the same purpose as the lands being condemned is inadmissible, and its admission is reversible error. Blount County v. McPherson, Ala., 105 So. 2d 117; Housing Authority of Phenix City v. Stillwell, 241 Ala. 420, 3 So. 2d 55; Pickens County v. Jordan, 239 Ala. 589, 196 So. 121; Leahy v. State, 214 Ala. 107, 106 So. 599; Alabama Power Co. v. Sides, 212 Ala. 687, 103 So. 859. But McEwen had testified on direct as to his opinion of the value of the property, he had made a trip to Florida to try to get appellee Lance to sell the property to appellant, he was then selling materials to appellant and he had paid $7,500 for the 122 acres in 1954 and had sold it to appellant for $15,000 three years later. When appellant objected to the question, the basis of this assignment of error, the court stated: "It is limited for shedding light on the question of interest of the witness." We think the trial court ruled correctly. We have held that it is always permissible to cross-examine a witness to ascertain his interest, bias, prejudice, social and business relations with and friendship for the party who calls him to testify. Housing Authority of City of Decatur v. Decatur Land Co., 258 Ala. 607, 64 So. 2d 594; Mobile City Lines v. Alexander, 249 Ala. 107, 30 So. 2d 4; Louisville & Nashville R. Co. v. Martin, 240 Ala. 124, 198 So. 141. In the Alexander case, we said [249 Ala. 107, 30 So. 2d 10]:
There is no conflict in this holding and the holding in the Stillwell case, supra. There, the attempt was to show bias of the commissioners by showing amounts of awards they had made for other lands. A person who had sold lands to the condemnor to be used for the same purpose as condemned lands would not be qualified to be a commissioner in condemnation proceedings. McEwen could not have been a commissioner because he was not disinterested, *630 and he could not have made the oath required of commissioners by Tit. 19, § 11, Code 1940. The evidence in the instant case was admissible for the limited purpose for which the trial court restricted it.
Assignment of error 12, relating to the specific price per acre requested by McEwen for his land and paid by appellant, is answered by the same authorities as cited in the discussion of Assignment No. 11.
Assignment 15 charges error in the overruling of appellant's objection to the question asked appellant's witness Bolton on cross-examination: "Did any of them (appraisers for appellant) discuss with you the valuation they placed on the Wolf property right next to it?" (also property making up the site and next to the suit property). Conceding, without deciding, that the question was improper, the ruling was rendered harmless by the answer of the witness, who replied, "I don't remember, I don't recall talking to me about the valuation of Wolf property." In Tankersley v. Webb, 263 Ala. 234, 82 So. 2d 259, 260, we said:
Assignments of error 2 and 3 are argued together. Assignment 2 reads: "That the trial court erred in overruling appellant's objection to a remark by appellees' counsel in his opening statement concerning what would be the valuation testimony by certain witnesses who had not been served." This is not the proper way to call attention of the lower court to argument of counsel or to assign same as error on appeal. Prior to the court's ruling, there was no record of the objectionable statement of counsel either quoted or in substance or effect. We have said that "where the argument of one's counsel passes beyond the bounds of legal propriety, it is the duty of opposing counsel to object specifically, and point out substantially the language deemed objectionable; and the record should disclose with reasonable certainty what was said in the court below, in order that the appellate court may review it." Flowers v. State, Ala., ___ So.2d ___. Neither the assignment of error nor page 24 of the transcript points out substantially the language deemed objectionable, and we find no merit in assignment 2. Assignment 3 is likewise without merit. It is argued that counsel for appellees had "no reason to `expect' any $300 per acre appraisal testimony." But two witnesses did put that exact valuation on the suit property.
Assignment 21 reads: "That the trial court erred in denying appellant's motion to exclude the testimony of appellees' witness Mark J. Williamson as to the value he put on the river front property of appellees' land." The witness had just testified that he estimated the river front property as 58 lots, 100 by 200 feet, at $500 each. Appellant moved to exclude this testimony and the motion was granted. The witness then stated his valuation of the river front property was $14,000. Even though there was no reference to the 58 lots, appellant again asked for and was granted an exclusion as to the 58 lots. The motion was then made "to exclude the value he put on the river property." The witness had testified that he placed a value of $500 per acre on the 26 acres of river front property and thereby reached a value of $14,000. (A correct multiplication would show $13,000). The witness had qualified as an expert and had been over the property inspecting and appraising it. Laying to one side the indefiniteness of the motion to exclude the "value" the witness had put on the river front property, we find no error in the ruling *631 of the trial court. A similar situation was considered in Alabama Power Co. v. Berry, 222 Ala. 20, 130 So. 541, 544, where it was said:
"The witness qualified under section 7656 of the Code 1923 [Code 1940, Tit. 7, § 367], and the fact that, in forming his opinion, he considered some irrelevant matters, goes to the credibility of his testimony, and not to its admissibility. Gossett v. Morrow, 187 Ala. 387, 65 So. 826. The rule is different where the opinion is predicated wholly upon immaterial matters. Winter & Co. v. Burt, 31 Ala. 33."
The record shows convincingly that the opinion of the witness Williamson was not "predicated wholly upon immaterial matters."
Assignment 7 reads: "That the trial court erred in overruling appellant's objection to the following question asked appellant's witness Grady Weaver on cross-examination: Q. `But suppose you had a camp site on Coosa River on the Lance property fifty feet by sixty feet deep fronting on Coosa River what would you say that would be worth?' and in permitting such witness to answer such question." Again conceding, without deciding that the question was improper, the error was rendered harmless by the answer of the witness, "I couldn't say." Tankersley v. Webb, 263 Ala. 234, 82 So. 2d 259.
Assignments of error 17, 18 and 19 charge error in the sustaining of appellees' objections to the offer in evidence by appellant of the deeds by which appellee Lance took title to the property being condemned. The offer was made, according to appellant's counsel, "for the purpose of proving title in the respondent" (Lance). The court said: "It is undisputed, the title has been admitted in the record, the title is in this man and was on the date of the condemnation. The Court sustains the objection." This is supported by the record. Previously, the following had transpired:
The trial court did not err in sustaining the objections to the deeds. The stated purpose was to prove the title was in Lance, and that fact had been admitted and was not disputed. If the deeds were admissible for the purpose indicated, there was no prejudice in excluding them. Ray v. Fowler, 265 Ala. 65, 89 So. 2d 573.
Assignments of error 23 and 24 are concerned with the court's sustaining objections to questions asked appellee Lance on cross-examination in reference to what he had paid for his property. Lance had testified that his property, 217.6 acres, was worth $360 per acre. He had acquired one parcel in 1940, the other in 1947. In Thornton v. City of Birmingham, 250 Ala. 651, 35 So. 2d 545, 546, 7 A.L.R.2d 773, we said:
The trial court sustained objections on the ground that the sale was too remote. We cannot say that the trial court abused its discretion in holding as too remote transactions made seventeen and ten years prior to the valuation date.
Assignment 13 is without merit. It complains of a ruling on a question. Actually, no question was asked, even though the trial court called it a "question" in sustaining the objection to the statement of counsel. The trial court recognized it for what it wasanother attempt to get the deeds to the property in evidence.
Assignment 8 presents no prejudicial error. Conceding that the question was improper, the answer of the witness to the question was that he did not know. Tankersley v. Webb, supra.
Assignment 16 complains of the action of the trial court in overruling objection to a question propounded to appellant's expert appraiser on cross-examination. The question was "Can you answer this: Give the jury your best judgment as to the reproduction cost, total reproduction cost of all those buildings, and the market value of the same at the time you appraised them?" Irrespective of whether the question was improper, the answer was not prejudicial. The witness answered, "I think about $6800.00." On direct examination in answer to this question, "I will ask you to give me from the figures you have given the total value of the buildings that entered into your appraisal on this property," the witness answered, "$6830.00." Thus, his figure for reproduction cost of the buildings was actually lower than the total value he had placed on them, and the answer was favorable to appellant. We are not to be understood as approving the question or the answer.
Assignment 9 complains of the sustaining of an objection to a question, whereas, the record does not show such action by the trial court, nor does it show any answer by the witness.
Assignment 10 reads: "That the trial court erred in sustaining appellees' objection to the following question to appellant's witness J. M. Batson on redirect examination: Q. `I will state the question this way: If you know state what it sold for?'." The reference was to the Walton land which adjoined the river as did some of the Lance property. The witness had testified that he did not know of any river front property that had been sold, again that he did not know what the Walton land sold for, and the next day in answer to the question quoted in Assignment of error 10, the following occurred:
There was no evidence in the record that the Walton property had ever been sold. In this state of the record, we find no reversible error in the ruling of the trial court.
Assignment 20 complains of the following which occurred during the direct examination of appellees' expert witness Williamson, who was testifying as to his knowledge of sales of farms in the vicinity, and he had specifically referred to it as "the Jackson sale.":
Appellant argues here that the answer invaded the province of the jury. But, it will be noted that the objection was on the ground that it was hearsay. In Louisville & Nashville R. Co. v. Scott, 232 Ala. 284, 167 So. 572, 577, we said:
Appellant was not prejudiced by the ruling of the trial court.
Assignments of error 4, 5 and 6 are without merit. Even though they are argued together, we consider them separately because they are closely related, and we have held that related or kindred assignments of error may be argued together and that practice has been commended. Southern Railway Co. v. Cates, 211 Ala. 282, 100 So. 356; Polytinsky v. Johnston, 211 Ala. 99, 99 So. 839. The rule that we consider no assignments of error when more than one are argued together and one is without merit applies only when they are not kindred or related. In Thompson v. State, 267 Ala. 22, 99 So. 2d 198, 200, we said: "When unrelated assignments of error are argued together and one is without merit, the others will not be considered." In Hartford Fire Ins. Co. v. Clark, 258 Ala. 141, 61 So. 2d 19, 27, we said:
There is a discussion of this point in White Dairy Co. v. Sims, 230 Ala. 561, 161 So. 812[2]. See also, Socier v. Woodard, 264 Ala. 514, 88 So.2d 783[8].
The three assignments, 4, 5 and 6 complain that the court overruled objections to questions tending to show that the lands sought to be condemned were suitable for the purpose for which they had been condemned. Such evidence has been held inadmissible. Housing Authority of Birmingham Dist. v. Title Guarantee Loan & Trust Co., 243 Ala. 157, 8 So.2d 835[6]. But in the instant case, the objection to the question, the basis of assignment 4, was withdrawn. After the objection, counsel for appellant stated: "I think we will let the witness answer the question." This was invited error and appellant cannot now avail itself of the error. Ellerbee v. Atlantic Coast Line R. Co., 258 Ala. 76, 61 So. 2d 89. Assignment 5 complains of the answer to a similar question, but the answer was essentially the same as the answer to the first question, the objection to which was withdrawn. This, if error, was not prejudicial. Mobile City Lines, Inc. v. Hardy, 264 Ala. 247, 86 So. 2d 393. To the question the basis of assignment 6, the witness stated that he could not answer it. The overruling of the objection to this question was rendered harmless. Tankersley v. Webb, supra. We further observe that the trial court correctly gave five written charges requested *634 by appellant to the effect that Lance was not entitled to any increased value for his land on account of the proposed improvements on or uses of the land in contemplation of its use as a generating plant site.
Assignment 22 charges error in connection with the motion to exclude witness Cather's testimony as to the value of the timber on the condemned lands. The witness testified that the timber was worth $4,300. It developed that he had not looked at the timber himself but had employed timber cruisers to cruise it. The motion was: "I move to exclude the value he put on the timber." It is sufficient to say that there is no error in overruling a motion to exclude answers from evidence where no grounds are stated therefor. Alabama Securities Co. v. Dewey, 156 Ala. 530, 47 So. 55; Slaughter v. Green, 205 Ala. 250, 87 So. 358.
Assignment 1 charges error in overruling the motion for a new trial. The question of value was in conflict and was for the jury to decide. Five witnesses for appellant placed the value of the lands from $18,000 to $26,000. Six witnesses for appellees ranged in testimony from $42,000 to $78,000. The only grounds of the motion argued here are concerned with the weight of the evidence. The motion was properly overruled.
Both parties to this appeal conclude their briefs with discussions about penalty and interest. We would prefer to award these items on appeal, but we think we must await authority from the Legislature before doing so.
The ten percent penalty is provided for in Tit. 7, § 814, Code 1940, as amended. It applies where a supersedeas bond is or could be made. But, as shown in Ex parte Lance, 267 Ala. 639, 103 So. 2d 753, Tit. 7, § 760, Code 1940, does not permit the superseding of a judgment on appeal where the compensation award and the costs of court are paid into court, and a bond in double the amount of damages is given.
Interest on judgments is also governed by statute. Interest on a judgment is provided where a judgment is for payment of money. Tit. 9, § 63, Code 1940. But, we have held that a judgment and assessment of damages rendered in a condemnation proceeding is not a personal, moneyed judgment. Ex parte Lance, supra; State v. Carter, 267 Ala. 347, 101 So. 2d 550; Calhoun County v. Logan, 262 Ala. 586, 80 So. 2d 529; Mobile & Ohio R. Co. v. Hester, 122 Ala. 249, 25 So. 220. Nor does Tit. 7, § 506, Code 1940, apply. As stated in the Hester case [122 Ala. 249, 25 So. 222], supra, "It was never within the contemplation of the statute that a monied judgment should be rendered, as in debt or assumpsit, as was here done, on which an execution should issue." It follows that neither penalty nor interest may be awarded on appeal in condemnation cases. See State of Alabama v. Moore, Ala., 110 So. 2d 635.
Appellees submitted on a motion to dismiss the appeal on the ground that prior to the appeal appellant took possession of the property under the judgment and commenced the erection of its steam electric generating plant and has continued in possession of the property since. The proposition of law cited is from a headnote in Russell v. Bush, 196 Ala. 309, 71 So. 397, which states: "Where the party condemning takes possession and pays the award, he is estopped from objecting to the proceedings, and waives his right of appeal." It is sufficient to state that in that case the condemnation proceedings had been instituted by the United States and prosecuted to a final decree condemning the property and "paid the damages therefor as determined by the rules of law governing such cases, and the defendant owner had received said damages so assessed for the condemned property." The court held that thereafter the United States had no right of appeal or of review, and no right of rescission, and in fact, no effort was being made by the United States to disturb the *635 enjoyment of the proceeds of the condemnation proceedings.
In the instant case, the owner has not yet received the damages assessed. Ex parte Lance, 267 Ala. 639, 103 So. 2d 753. That is why the cited case is not apt authority here. The motion to dismiss is denied.
The judgment of the lower court is affirmed.
Affirmed.
LIVINGSTON, C. J., and LAWSON and STAKELY, JJ., concur. | March 12, 1959 |
b9db1dcb-6dc5-4419-93fb-6de05951413f | GILLILAND & ECHOLS FARM SUP., ETC. v. Credit Equip. Corp. | 112 So. 2d 331 | N/A | Alabama | Alabama Supreme Court | 112 So. 2d 331 (1959)
GILLILAND & ECHOLS FARM SUPPLY & HATCHERY
v.
CREDIT EQUIPMENT CORPORATION.
7 Div. 433.
Supreme Court of Alabama.
May 21, 1959.
*332 W. M. Beck, Fort Payne, for appellant.
W. W. Watson and John C. Wear, Fort Payne, for appellee.
MERRILL, Justice.
This is an appeal from a final judgment in favor of the plaintiff, in the Circuit Court of DeKalb County, in a suit on two trade acceptances. A trade acceptance is a *333 draft or bill of exchange drawn by a seller on the purchaser of goods sold, and accepted by the purchaser. Its purpose is to make the book account liquid and permit the seller to raise money on it before it is due under the terms of sale. Legal Discount Corporation v. Martin Hardware Co., 199 Wash. 476, 91 P.2d 1010, 129 A.L.R. 420; Bartoshesky v. Houston Trading Corporation, 9 W.W.Harr. 310, 39 Del. 310, 198 A. 697. When properly drawn, it is negotiable paper and its use results in advantages to both the purchaser and the seller. Properly used, it represents current merchandise transactions only, and in this respect, it is different from an ordinary promissory note which may be given for a past due account, borrowed money or for any other consideration. The principal function of a trade acceptance is to take the place of selling goods on an open account. State Trading Corporation v. Jordan, 146 Pa.Super. 166, 22 A.2d 30.
The complaint contains two counts. Count one alleges that the plaintiff is a corporation, duly organized and existing pursuant to the laws of the State of New York, with power to do business and to sue and be sued in its corporate name and capacity. It claims of the defendant $376.67 alleged to be due on a trade acceptance drawn by Carbozite Protective Coatings, Inc. on May 8, 1952, in the sum of $376.67 upon the defendant and accepted by him, payable to Carbozite Protective Coatings, Inc. on August 10, 1952, which trade acceptance, before maturity, was endorsed to the plaintiff. Count one also avers that the trade acceptance was presented for payment on the due date and that it was not paid, wherefore, the plaintiff claims interest on the sum from that date. Count two is the same as count one except the due date is September 10, 1952.
The case was submitted to the jury on both counts of the original complaint, on defendant's plea F and on plaintiff's replication number 1 to plea F. Plea F sets out that the trade acceptances were executed by the defendant and delivered to the Carbozite Protective Coatings, Inc., a foreign corporation, organized and existing under the laws of the State of Pennsylvania, and that they were delivered to this corporation within the State of Alabama in connection with an agreement entered into between the defendant and the corporation for the exclusive franchise of a product known as "Carbozite Coatings." Plea F further avers that this contract and the trade acceptances were executed in Fort Payne, Alabama, and that the defendant and the corporation both signed the trade acceptances and that they were delivered at the defendant's place of business in Fort Payne. It is further alleged that all these dealings were within the corporate acts of Carbozite Protective Coatings, Inc. and that they have never qualified to do business within the State of Alabama. Hence, defendant avers that the plaintiff ought not to recover on the trade acceptances since the same are void under provisions of Tit. 10, § 191, Code 1940, which provides, inter alia, that all contracts or agreements made or entered into in Alabama by foreign corporations, which have not qualified to do business in Alabama, shall be held to be void at the suit of such foreign corporation, or any one claiming through or under such foreign corporation, by virtue of the void contract or agreement. Replication number 1 to plea F is a plea of the general issue. The evidence was undisputed that the Carbozite Protective Coatings, Inc. has never qualified to do business in the State of Alabama. The jury found the issues in favor of the plaintiff and assessed its damages at $1,024.54, whereupon, the court entered a judgment for the plaintiff in this amount, plus costs. It is from this judgment that the appeal is prosecuted.
Assignment of error number 1 states that the lower court erred in giving plaintiff's charge "X-3," which reads:
The defendant-appellant contends that the giving of this charge is error because the court below gave defendant's charge stating that the plaintiff could not recover under its replication number 2. Plaintiff's replication number 2, in answer to pleas E and F, states that the Carbozite Protective Coatings, Inc. was engaging in or transacting business of interstate commerce only within the State of Alabama at the time complained of. Appellant argues that since the court gave its requested charge charging out appellee's replication number 2, it was error to then give plaintiff's requested charge "X-3," supra, which was in substance the same as plaintiff's replication number 2. Appellant contends that this constituted reversible error for three reasons: (1) The court gave conflicting instructions, citing Terry v. Nelms, 256 Ala. 291, 54 So. 2d 282; (2) the question of interstate commerce was not an issue and the instruction submitting it as a defense was erroneous, citing Gulfport Fertilizer Co. v. Jones, 15 Ala.App. 266, 73 So. 148; (3) an instruction not within the issues raised by the pleadings is erroneous, citing Central of Georgia Ry. Co. v. McNab, 150 Ala. 332, 43 So. 222, and other cases listed in 18A Ala. Digest, Trial, 251(1). But, we have also held that trial courts will not be reversed for refusing abstract charges or charges not covered by the pleadings, although they assert the law correctly; and neither will they be reversed for giving such charges, unless it appears that injury was sustained. Central of Georgia Ry. Co. v. Hyatt, 151 Ala. 355, 43 So. 867.
Charge X-3 does state a correct principle of law and could perhaps be considered abstract under the pleadings, but the question becomes one of whether injury was sustained by appellant in the giving of the charge. We have held that a transaction involving no more than a sale, transportation and delivery of out-of-state goods by a nonresident to a local party on orders taken in Alabama would be an act of interstate commerce to which the laws of this state are not and could not be applicable. Loudonville Milling Co. v. Davis, 251 Ala. 459[3], 37 So. 2d 659, and cases therein cited. In the last cited case, we held that the selling of flour and other cereal products, delivered in 100 barrel lots, under a previously executed consignment contract to an Alabama distributor, constituted interstate commerce and was not the subject of state regulation even though the foreign corporation employed a full-time agent in Alabama, stored the flour in an Alabama warehouse, and had the flour consigned to it and entrusted to its agent for delivery and proper receipt of the goods. See also, Watkins Co. v. Goggans, 242 Ala. 222, 5 So. 2d 472.
There was evidence from which the jury could have found the transaction between the Carbozite Protective Coatings, Inc. and the appellant to have been interstate commerce only. Both of the trade acceptances indicate prima facie that they were drawn in New York, since they were both headed "Carbozite Protective Coatings, Inc., 101 Cedar St., New York 6, N.Y." Dundee Mortgage & Trust Investment Co. v. Nixon, 95 Ala. 318, 10 So. 311. Both indicate prima facie that they were accepted by the drawee, appellant, at Fort Payne, Alabama. The franchise agreement executed between the Carbozite corporation and the defendant is also headed as are the two trade acceptances. It provides, inter alia, for the shipment of the goods F. O. B., Chicago, Illinois, to the appellant in Fort Payne. In the absence of evidence of further transactions of the Carbozite corporation within the state, we are constrained to say under the Loudonville Milling Co. and Watkins Co. cases, supra, that the selling of its products to the defendant, the execution of the franchise agreement and the acceptance of the two trade acceptances *335 by the drawee-defendant constituted engaging only in interstate commerce within the state and thus is not the subject of state regulation or restriction. The mere fact that the trade acceptances were executed, or accepted in Alabama, does not alter this conclusion. The promissory notes in question in Loudonville Milling Co. v. Davis, supra, were also executed in Alabama. See Loudonville Milling Co. v. Davis, 248 Ala. 202, 27 So. 2d 6, [first appeal].
As already noted, plaintiff's replication 1 to plea F was the general issue. This raised the question of whether appellee was doing business in Alabama without qualifying as required by law. If the jury believed that appellee's business was intrastate, then it should and would have found for appellant. The transaction had to be either in intrastate or interstate commerce. Part of the court's oral charge was:
When charge X-3 is considered with the evidence and the entire oral charge of the court, "it appears quite clear that the jury were not misled thereby certainly not to the prejudice of this appellant." Brewer v. Varner, 207 Ala. 466, 93 So. 448, 450. We, therefore, hold that appellant sustained no injury in the giving of the charge. Moreover, we think charge X-3 was within the scope of the plea of the general issue and was not outside the issues raised by the pleadings and the court did not err in giving it, even though the court could more properly have submitted replication 2 to the jury also.
Assignment of error 2 charges that the court erred in charging the jury that it could not find for the defendant under defendant's plea E. Assignments 3 and 4 state that there was error in refusing the defendant's requested charges for the general affirmative charge and the general affirmative charge with hypothesis. All three assignments are argued together and since they are related or kindred, we consider them separately. Southern Electric Generating Company v. Lance, Ala., 110 So. 2d 627; Southern Railway Co. v. Cates, 211 Ala. 282, 100 So. 356; Polytinsky v. Johnston, 211 Ala. 99, 99 So. 839. Defendant's plea E avers, inter alia, "* * * that the said Carbozite Protective Coatings, Inc., were at the time of execution of the contract and trade acceptances; soliciting business for said corporation in DeKalb County, Alabama, and were engaged in selling the produce known as Carbozite Coatings from defendants' place of business in Fort Payne, Alabama in connection with said contract of prospective purchasers in DeKalb County, Alabama, by and through the agents of said corporations, taking order for said product and delivering same from defendants' place of business in Fort Payne, Alabama, to customers in DeKalb County, Alabama, *336 * * *." There was no evidence introduced to sustain the above allegations of defendant's plea E. It, therefore, became the duty of the court to instruct the jury without hypothesis that it could not find for the defendant under that plea. Louisville & Nashville R. Co. v. Perkins, 152 Ala. 133, 44 So. 602; Tobler v. Pioneer Mining & Mfg. Co., 166 Ala. 482, 52 So. 86; Stowers v. Dwight Mfg. Co., 202 Ala. 252, 80 So. 90. It follows that there was no error in giving the affirmative charge without hypothesis as to defendant's plea E.
Assignments 3 and 4 are without merit. We concluded in our consideration of assignment of error 1 that a jury question was presented. Concerning the refusal of the trial court to give the general affirmative charge without hypothesis, it is stated in McElroy, The Law of Evidence in Alabama, § 449, "No party is entitled to a direction of a finding or verdict in his favor if the evidence is sufficient to warrant a finding or verdict in favor of the other party; nor is the movant for such a direction entitled thereto upon oral undisputed testimony which if believed entitled him to a verdict in his favor, as in such a case the credibility of the testimony must be submitted to the jury. [Citing cases]. * * * The general affirmative charge with hypothesis should be given only if all of the evidence considered most unfavorably against the party requesting such a charge shows undisputedly that the party is entitled to a verdict." See Morris v. Hall, 41 Ala. 510; Shipp v. Shelton, 193 Ala. 658, 69 So. 102; Owen v. State, 240 Ala. 582, 200 So. 412. Obviously, the defendant was not entitled to the general affirmative charge with hypothesis and the trial court properly refused to give it.
The remaining assignments of error argued in brief are concerned with the overruling of appellant's motion for a new trial on the ground that the verdict of the jury was contrary to the great weight of the evidence. We think the motion was properly overruled as to the ground stated. It follows that the judgment of the lower court is due to be affirmed.
Affirmed.
LIVINGSTON, C. J., and LAWSON and STAKELY, JJ., concur. | May 21, 1959 |
490d5e43-273b-4181-aeec-b3d6540e77fc | Shelby County v. Baker | 110 So. 2d 896 | N/A | Alabama | Alabama Supreme Court | 110 So. 2d 896 (1959)
SHELBY COUNTY
v.
Claire M. BAKER, as Admrx., et al.
7 Div. 386.
Supreme Court of Alabama.
April 9, 1959.
*900 Maurice F. Bishop, Birmingham, and Handy Ellis, Columbiana, for appellant.
Wales W. Wallace, Jr., and Karl C. Harrison, Columbiana, for appellees.
SIMPSON, Justice.
This cause comes to this court on appeal from the Circuit Court of Shelby County from a jury verdict and judgment thereon and the overruling of appellant's motion for a new trial in an eminent domain proceeding instituted by Shelby County to acquire land for public highway purposes under § 1 et seq. of Title 19, and § 25 of Title 23, Code 1940.
The only question involved on trial was the amount of damages and compensation to which the owners were entitled. The jury returned a verdict for $8,000. From that verdict, the judgment thereon, and the denial of its motion for a new trial, the county has taken this appeal.
The questions presented on this appeal concern what appellant alleges were various erroneous rulings on the evidence, improper argument, and ineradicably prejudicial statements made by counsel for appellees during the course of the trial. Appellant asserts that those errors lead to a reversal of the case. Appellant does not contend that the amount of the award was excessive, but we assume it implies that the alleged erroneous rulings in some way affected the valuation fixed by the jury.
Appellant has assigned thirty separate grounds as error, but has argued them in groups, so as to make available to this Court application of the rule that where assignments of error not kindred in nature are argued together and one of them is without merit, the others in the group will not be examined. Housing Authority of City of Decatur v. Decatur Land Co., 258 Ala. 607, 64 So. 2d 594; Taylor v. Taylor, 251 Ala. 374, 37 So. 2d 645; Moseley v. Alabama Power Co., 246 Ala. 416, 21 So. 2d 305. However, many of the assignments seem to be somewhat kindred, and, in deference to counsel, we will consider them.
Assignments 1, 23, and 28 were not argued in brief by the appellant and are waived. Rule 9 of the Supreme Court Rules of Practice, Appendix, Pocket Part, Title 7, Code 1940.
We will first consider Assignments 2 and 3. After the Court had qualified the venire *901 by inquiring, among other things, whether any member of the jury was employed by or otherwise connected with the petitioner, Shelby County, or was employed by the State of Alabama, the following colloquy occurred:
Appellant insists that the trial court erred in overruling its motion for a mistrial based upon the allegedly prejudicial statements of counsel for the appellees made during that colloquy referring to the federal government and the suggested payment by it of any award. Appellant also urges that error was committed at that point during the voir dire examination of the prospective jurors when the court failed to grant a mistrial based upon the reference to the subject of liability insurance by counsel for the appellees.
Either party in both civil and criminal cases "shall have the right to examine jurors as to their qualifications, interest, or bias that would affect the trial of the case, and shall have the right, under the direction of the court, to examine said jurors as to any matter that might tend to affect their verdict." Title 30, § 52, Code 1940. Under this statute it has been held that the rights thereby given are to be exercised within the sound discretion of the court. The inquiry permitted should be liberal and extend to any and all matters touching the qualification, interest, or bias of prospective jurors. This code section "gives to parties having respective peremptory challenges or the right to a struck jury, the right within the limits of propriety and pertinence to reasonably propound questions to jurors to enable such party or his counsel to intelligently exercise that right, though the matters of which inquiry is made are not a disqualification." Dyer v. State, 241 Ala. 679, 4 So. 2d 311, 313; Cox v. Bennott, 250 Ala. 698, 36 So. 2d 86; Redus v. State, 243 Ala. 320, 9 So. 2d 914; Rose v. Magro, 220 Ala. 120, 124 So. 296. "The right of inquiry under the statute is a broad right just so it is not exercised in bad faith or merely designed to prejudice the case." Cox v. Bennett, supra [250 Ala. 698, 36 So. 2d 88]; Duke v. Gaines, 224 Ala. 519, 140 So. 600.
Close scrutiny of the statements made during this voir dire colloquy fail to impress us that counsel for appellees exhibited bad faith or attempted to, or did, prejudicially influence the case in either of the respects urged by the appellants. A proper subject of inquiry on voir dire examination is whether any of the jurors were city employees in a matter in which that municipality is or was interested. Rose v. Magro, supra; Nix v. City of Andalusia, 21 Ala.App. 439, 109 So. 182; City of Birmingham v. Lane, 210 Ala. 252, 97 So. 728. By analogy, if the federal government had an interest in the suit which might have some bearing upon the bias of a juror by virtue of its program of assistance *903 to the states in the construction of roads, then such relationship would be a legitimate subject of inquiry.
See also Housing Authority of City of Decatur v. Decatur Land Co., supra, which involved a proceeding for condemnation of realty by the housing authority of the city of Decatur, where we held that evidence that money for the project would be obtained from the federal government would have value on cross-examination bearing on the credibility of the opinion of a witness relative to the cost of a drainage project.
We are also persuaded that appellees were not trying to inject the question of insurance into the case, as appellants claim. The remarks of counsel for appellees concerning insurance were undoubtedly analogizing the legal problem raised by appellant's objection against asking the jurors about any employment relationship with the federal government to the familiar question of voir dire inquiry concerning interest in liability insurance companies. We take judicial notice of the numerous cases in this jurisdiction bearing upon that latter subject. Thus those remarks were in the nature of argument before the trial judge pertaining to a legal issue compounded by the appellants. Moreover such remarks could have had no misleading effect, as there was no question about insurance involved in the case. The better practice would probably have been to exclude the jury from such an argument between counsel over the propriety of the question demanded, and appellant could have made such a request. But as stated, examination of prospective jurors is within the court's control and discretion, and in the instances noted we cannot say that that discretion was abused.
Assignment 4 is as follows:
Apart from the fact that this assignment throws upon the Court the burden of searching through twenty-one pages of the transcript for the alleged prejudicial statements mentioned, the assignment itself is much too general to invite our review of the error thus assigned. Hornaday v. First Nat. Bank of Birmingham, Inc., 259 Ala. 26, 65 So. 2d 678; Alabama Chemical Co. v. Hall, 212 Ala. 8, 101 So. 456; Globe & Rutgers Fire Ins. Co. v. Jones, 213 Ala. 656, 106 So. 172; Rule 1, Supreme Court Rules of Practice, Appendix, Pocket Part, Title 7, Code 1940.
The next three assignments of error attack what appellant considers to be improper statements, prejudicial and ineradicable in the minds of the jury, made by the counsel for the appellees in his oral argument to the jury. Reference to the record reveals that only the following portion of the proceeding pertaining to the first of these three assignments has been transcribed:
"By the Court: I will sustain the objection to that.
"By Mr. Wallace: We except."
Appellant charges that appellee's counsel thus made, in the quoted part, a prejudicial comparison of our eminent domain proceedings with the government of Russia. However, such fragmentary record of the proceeding at that point does not sufficiently set out the statement of the attorney in its context or show just what preceded or followed the expression in order to command review. Housing Authority of City of Decatur v. Decatur Land Co., supra; Alabama Great Southern R. Co. v. Baum, 249 Ala. 442, 31 So. 2d 366; Crotwell v. Cowan, 236 Ala. 578, 184 So. 195; White v. State, 236 Ala. 124, 181 So. 109; Birmingham Loan Co. v. Klinner, Ala.App., 95 So. 2d 402; Page v. Harris, 32 Ala.App. 232, 24 So. 2d 268, certiorari denied 247 Ala. 323, 24 So. 2d 269; Gray v. State, 19 Ala.App. 550, 98 So. 818.
Furthermore, it appears from the record that the appellant's objection was sustained to the argument found objectionable, and so far as we can determine, this rectified any injury incurredif so.
Assignment 6 claims error in the comparison of the subject proceedings to those involving a "Mrs. Williams on U. S. Highway 31" when there was no evidence regarding the other proceedings in the record. The transcript contains only the following with respect to this assignment:
It is noted that appellees' counsel did not insist on whatever statement was made; the Court ruled it withdrawn and we fail to see any prejudicial error here.
Assignment 7 avers error in the trial court's failure to sustain appellant's objections on two separate occurrences during appellees' argument to the jury which appear in the record as follows:
It is likewise clear, just as with Assignment 5, that Assignments 6 and 7 do not merit consideration for the reason that the parts of the record upon which they are founded are too fragmentary.
Assignment 8 deals with the refusal of the trial court to permit the Resident Engineer of the State Highway Department to testify that the state planned to make Alabama Highway 91 a four lane highway through Shelby County. The exact questions to which appellees' objections were sustained are the following:
*905 Appellant contends that the questions asked were confined to present plans of the Highway Department and that the proposed construction would be an improvement and should result in some enhancement to the subject property. For these reasons it is urged that the testimony sought to be elicited was admissible. The authority which he cites to support this proposition, however, merely holds that in eminent domain proceedings the plans, specifications, or stipulations of the condemnor as to the nature of the improvements to be constructed on or about the premises sought to be condemned, or the use to be made of such premises, are admissible in evidence to enable the jury to fix the damages of the owner of the premises with more precision. East Peoria Sanitary Dist. v. Toledo, P. & W. R. R., 353 Ill. 296, 187 N.E. 512, 89 A.L.R. 870; 29 C.J.S. Eminent Domain § 269, p. 1252. This same rule obtains in this state, as it is applied in the case of Pearson v. Central of Georgia Ry. Co., 215 Ala. 239, 110 So. 5, which appears in the note at 89 A.L.R. 879. But this rule cannot be extended to warrant the admission of plans of the condemnor pertaining to work remote either as to proximity to the subject tract or as to time in the future when further construction is anticipated. If it were otherwise, a condemnor could introduce evidence in mitigation of the damages to which a condemnee was entitled by showing plans and surveys of work the completion of which might be speculative or contingent. Cf. State v. Carter, 267 Ala. 347, 101 So. 2d 550, where the court charged the jury that it could take into consideration upon the market value of the property under the circumstances there shown the effect of proposed sanitary sewerage improvements to be constructed by the City of Gadsden which were to serve the lots there sought to be condemned, and where apparently the project had reached further than the mere planning stage.
Assignment 9 asserts error in the ruling of the court excluding testimony of the Resident Engineer as to the control point of the highway at the time of trial and, apparently, also at the time of condemnation. The statement excluded is the following:
A reading of this testimony in the context in which it was made reveals that it served to place the location of the control point with reference to the project about one mile south of the subject property. It is difficult to perceive what relevance this matter has to any issue in the case, except possibly to shed some light upon whatever enhancement effect upon condemnee's remaining land a contemplated future extension of the construction project might have. For the reasons already stated in the discussion on Assignment 8 the exclusion of such testimony was without error.
Assignment 10. Reversible error is claimed when counsel for appellees inquired three successive times as to who would pay for the right of way sought to be acquired, with objections thereto being repeatedly sustained by the trial court, and then stated:
We can find only two such questions on the record pages referred to by the assignment, not three. And one question relates to payment for construction of those highways, while the other concerns payment for the right of way being obtained. It is not necessary to determine the propriety of those questions, as the trial court sustained appellant's objections to both. We cannot say prejudice was created in the minds of the jury by posing these inquiries. The statement which followed indicated that counsel was exercising the well recognized *906 right to inform the court just what facts he expected to prove by the witness interrogated in order to preserve error for appeal in the event of an adverse ruling. Fikes v. State, 263 Ala. 89, at page 98, 81 So. 2d 303, at page 311, reversed and remanded on other grounds 352 U.S. 191, 77 S. Ct. 281, 1 L. Ed. 2d 246; Burnett v. Garrison, 261 Ala. 622, 75 So. 2d 144; Stallings v. State, 249 Ala. 580, 32 So. 2d 236; Roberts v. McCall, 245 Ala. 359, 17 So. 2d 159; Flowers v. Graves, 220 Ala. 445, 125 So. 659; Bryer v. State, 34 Ala.App. 561, 42 So. 2d 496; Spurlock v. State, 17 Ala.App. 109, 82 So. 557. Moreover, it seems unnecessary to pass upon the propriety of that remark or the admissibility of the testimony for the purpose stated in the absence of either an objection or motion to exclude timely made and an adverse ruling by the trial judge. Dorroh v. Jefferson County, 264 Ala. 335, 87 So. 2d 619; Troy Laundry Mach. Co. v. Joyce, 229 Ala. 331, 157 So. 214; Metropolitan Life Ins. Co. v. Carter, 212 Ala. 212, 102 So. 130; Western Union Telegraph Co. v. Howington, 198 Ala. 311, 73 So. 550; Sloss-Sheffield Steel & Iron Co. v. O'Neal, 169 Ala. 83, 52 So. 953; Clark v. Hudson, 265 Ala. 630, 93 So. 2d 138. The requisite objection and ruling cannot be read into the following discourse, which immediately followed the remark:
Appellant has not sustained the burden upon him of not only showing error, but also showing that he has probably been prejudiced by the error. Berry v. Dannelly, 226 Ala. 151, 145 So. 663; Dorough v. Alabama Great Southern R. Co., 221 Ala. 305, 128 So. 602.
Assignment 11 reads as follows:
This assignment is entirely too general to invite a review.
Assignment 12 is no more than identical with the previous assignment except that it applies only to page 105 of the transcript. What was said above suffices to dispose of this assignment.
It was not error, as charged in Assignment 13, for the court to refuse to allow into evidence a sheet of paper containing figures related by the witness John D. Chichester reflecting his opinion of the market value of the subject property. This evidence was somewhat analogous to the use of a blackboard for the purpose of illustrating testimony, held to be within the sound discretion of the trial court. Clark v. Hudson, supra; Nelson v. Johnson, 264 Ala. 422, 88 So. 2d 358; Crocker v. Lee, 261 Ala. 439, 74 So. 2d 429. But, as pointed out in Nelson v. Johnson, supra, such media of illustration are not evidence. They may be demonstrated in the presence of the jury during the trial and final argument within the sound discretion of the trial court. Clark v. Hudson, supra; Crocker v. Lee, supra.
Assignment 22 is directed to the admission into evidence of an alleged traffic count in front of the subject property, when such traffic count was never established and when no person having any knowledge of any such traffic count was made available *907 for examination. The following passage in the record relates to this assignment:
Appellant urges that obvious hearsay testimony was thereby admitted over his objection. But the recitation shows no adverse ruling. In fact, the only ruling of the court is one sustaining the objection of appellant and hence this assignment avails nothing. Dorroh v. Jefferson County, supra.
Assignment 14 charges that the trial court erred in admitting in evidence during cross-examination of appellant's expert witness, over the objection of appellant, testimony relating to the value after construction of the project of contiguous properties involved in condemnation proceedings for construction of the same road project. The assignment calls the Court's attention to pages 58, 70-72, and 91 of the transcript. A reading of page 58 reveals no connection with the generally alleged error. Page 91 does not show that the witness responded to the inquiry to which objection was made and overruled, but in fact answered that he did not recall. Whatever error might have occurred on pages 70-72, where it is shown that the court overruled appellant's objections and an answer was finally elicited about the witness' expert appraisal of the little triangular piece of land contiguous to that of appellees, was cured by what was next brought out in the following colloquy:
Appellant argues that the questions dealt with the value of the property after condemnation of the subject tract and had no relation to the market value at the time of taking or to the "before and after" value of the subject parcel. But, as we understand the passage recited above, and the portion preceding, which is rather vague, the appraisal data sought to be elicited was that made at the time of the taking of the contiguous property by a different condemnation proceeding filed at the same date with the instant proceeding. This must have been clearer to those present at the trial than it is to us, for the trial judge seemed to comprehend. At any rate, if our view is correct, no reversible error is present because of the curative effect. The trial judge was on the scene, and his ruling cannot be held to be an extreme abuse of his sound judicial discretion with regard to the latitude and extent of cross-examination. It has been held that such cross-examination may even pertain to irrelevant and immaterial matters as bearing on the memory, accuracy, credibility, interest or sincerity of the witness. Housing Authority of City of Decatur v. Decatur Land Co., supra, and cases therein cited. See also Pryor v. Limestone County, 230 Ala. 295, 160 So. 700.
Assignment 15 relates to the action of the court in allowing a witness for the appellee to testify, over the objection and exception of appellant, to the reasonable market value of the 8.03 acres being taken. The evidence shows that the witness had been in the real estate and insurance business since 1946 with experience in Shelby County and other parts of the state and that he was familiar with the market value of land around Highway 91 in Shelby County. The witness had been over the property and other adjacent land for appraisal purposes. He was therefore shown to be qualified.
For the same reasons appellant cannot avail by Assignment 19, which raises the same objection as number 15 except as to another witness. The witness was property and sufficiently qualified to testify as to this matter, and the testimony, as shown above, was admissible. He was a property owner in Shelby County, having lived on the Florida Short Route near Chelsea for twenty years. He was familiar with various sales and offers for sale of property in and around Shelby County, and he knew the value of lands in and around the subject property. He had known the subject property for twenty years, having passed it frequently. And he testified that he knew the reasonable market value of the subject property.
Assignments 16, 17, and 18 all concern the alleged absence of a showing that certain witnesses of appellee called to testify as to market values of the property in question were qualified to do so. We have examined the record carefully and conclude that enough was adduced to satisfy that requirement. The general rule applicable here is that the test of qualification has been prima facie met when it is proved that the witness testifies he knows the property and the market value of the same. Housing Authority of City of Decatur v. Decatur Land Co., supra; American Ins. Co. of Newark, N. J. v. Fuller, 224 Ala. 387, 140 So. 555; 159 A.L.R. 30. Of course, the weight and credibility to be attributed to each expert witness was for the jury. Alabama Power Co. v. Henson, 237 Ala. 561, 187 So. 718.
The import of Assignment 20 is that the trial court erroneously permitted the appellee, Jack Baker, to testify to the market value of the property on the sole basis that he was the owner of the property. This was not error. An owner of land, by virtue of his ownership, may testify as to its value. Alabama Great Southern R. Co. v. Russell, 35 Ala.App. 345, 48 So. 2d 239, and authorities there cited.
*909 Assignment 25 takes the position that the trial court erred in overruling appellant's motion to exclude a voluntary statement of the witness Joe Roden as to unsupported values of property "adjoining the Montgomery highway". The objection was phrased, "I move to exclude all that statement about the Montgomery Highway". Unless the evidence is manifestly irrelevant and illegal, error will not be predicated on the action of the court in overruling a general objection. Johnston v. Isley, 240 Ala. 217, 198 So. 348; Burgin v. Stewart, 216 Ala. 663, 114 So. 182; Grissom v. Dahart Ice Cream Co., Inc., 34 Ala.App. 282, 40 So. 2d 333, certiorari denied 252 Ala. 235, 40 So. 2d 339; Dunaway v. Roden, 14 Ala.App. 501, 71 So. 70; Alabama City G. & A. Ry. Co. v. Ventress, 171 Ala. 285, 54 So. 652. The statement made by the witness was:
We cannot say that this statement was manifestly irrelevant or illegal.
Assignment 24 charges that the trial court erred in permitting the witness Alvin Stinson to testify that a service station on U. S. Highway 31, located some distance away, suffered a forty per cent loss of business after construction of a four lane highway.
It is not clear to which question the court referred as the one originally asked or whether that, in fact, was the one asked next by counsel. Nevertheless, no timely objection or motion to exclude was interposed, and there is nothing to review. Appellant's other objections raised during that interlude were sustained.
Assignments 26 and 27 relate to the action of the court in admitting in evidence, and overruling appellant's objections and motions to exclude thereto, the testimony of Robert Powers to the effect that his volume of sales decreased after a four lane highway was constructed near his service station and that the amount of this decrease was approximaetly forty per cent. As noted in the discussion on Assignment 25, the objections and motions to exclude were all general. One motion was stated, "We move to exclude the answer on the same grounds". But no grounds had been previously specified. We cannot say that the testimony thus adduced was clearly incompetent, irrelevant, immaterial, or illegal. Witness Chichester for the appellant had stated on direct examination that one of the tests of establishing value of a piece of property was the income which it produced. He further testified that the new four lane highway would enhance the value of the property. It was further shown by witnesses for the appellee that prior to the institution of the condemnation proceedings that the land being taken was suitable for a filling station site. Appellant argues that the courts have universally held that an owner may not receive compensation for *910 any loss of business, as evidence of speculative and contingent damages is wholly inadmissible. But the tendency of the testimony in question was evidently not for this purpose. The evidence clearly showed that at the time of the taking of the property, it was producing no income. The testimony now in question would furnish some support to the theory of the appellees that the location would be suitable for service station purposes and that the four lane highway would be a detriment rather than an enhancement to the property. In the absence of a specific objection, therefore, error can not be pronounced in this ruling.
Assignment 29 is that the trial court erred in receiving in evidence, over appellant's objections, a title insurance policy on the subject property. It is our understanding of this assignment, without more specificity, that the appellant objects to the introduction into evidence of the policy itself. The transcript, however, reveals that after the policy was marked "Defendant's Exhibit No. 4", and a few preliminary questions were asked, and counsel for appellees finally offered the policy by saying, "We introduce this in evidence", no objection was made by appellant and consequently no ruling was had. This assignment is not open for review for another reason. The policy was not transcribed into and made a part of the record, but in lieu thereof apparently the original copy of the policy has been attached to the margin of page 220 of the record, with the statement in parentheses on that page, presumably by the clerk of the court, as follows:
Supreme Court Rule 41 (Old Rule 47) has not been complied with in this respect. Starkey v. Bryant, 257 Ala. 557, 59 So. 2d 796. See also Calvert v. Calvert, 265 Ala. 529, 92 So. 2d 891. There is still another reason why we think this assignment must fall. It is true, as appellant contends, that the amount for which property is insured does not afford a test of value of sufficient probative effect to be admissible. Alabama Great Southern Railroad Co. v. Loveman Compress Co., 196 Ala. 683, 72 So. 311; City of Dothan v. Thomley, 220 Ala. 618, 127 So. 193; 31 C.J.S Evidence § 182, p. 885. But there was another purpose for which the policy could have been admissible. Appellant had produced during their cross-examination of appellee, Jack Baker, the deed by which the appellee had obtained title to the subject property. The deed was admitted into evidence, and it was further elicited from the appellee, as the face of the deed bears out, that the recited consideration therefor was $12,000. Appellee's testimony throughout the trial was that he paid $25,000 for the land. By the introduction of the title insurance policy on the land on the re-direct examination of the appellee, it was the obvious purpose of counsel for appellees to show the true consideration of the deed and to corroborate the testimony of appellee as to what he had in fact paid for the land. This is supported by the fact that the evidence shows that the policy was a part of the whole transaction negotiated by Baker's lawyers. It is well settled that the consideration stated in a deed is only prima facie, and the true consideration may be found from the acts, words, and writing of the parties. Pruett v. First Nat. Bank of Anniston, 229 Ala. 441, 157 So. 846; Union Bank & Trust Co. v. Royall, 226 Ala. 670, 148 So. 399; Gilliland v. Hawkins, 216 Ala. 97, 112 So. 454; Harris v. Geneva Mill Co., 209 Ala. 538, 96 So. 622; Harraway v. Harraway, 136 Ala. 499, 34 So. 836. And the general rule prohibiting the variance of a writing by parol evidence also does not exclude such evidence in an action between a party to the instrument and a stranger, nor is it binding upon either of the parties in their controversies with third persons. Harris v. Geneva Mill Co., supra; Jones v. First Nat. Bank of Greensboro, 206 Ala. 203, 89 So. 437. Furthermore, the appellant, in *911 cross-examining the appellee Baker, questioned him regarding a closing statement of the transaction, showing how much was paid and any expenses in connection with the purchase, furnished him by his attorneys in Birmingham. It further elicited testimony from appellee as to a bill for the services from his attorneys. The title insurance policy was part of the transaction negotiated by the attorneys. So it would seem that this line of inquiry had been opened by the appellant itself.
Assignment 30 asserts that error was committed when counsel for appellees was permitted, over appellant's objections, to read in the presence of the jury the amount and substance of a mortgage on the subject property. The assignment seems to be too general in that particular objections and rulings intended on the several appearing on the page in the record mentioned are not specified. The record shows that the court sustained appellant's objection to the introduction of the mortgage. Appellees then renewed their offer to introduce the mortgage, but were interrupted with an objection, which was overruled. The completed offer is no more than the following:
Appellant then requested the court to instruct the jury that the offer was not evidence and should not be considered by them. The court complied with this request and reminded the jury that the objection to the introduction of the mortgage had been sustained. An objection by appellant to a further offer by appellee to introduce a mortgage release was sustained. We can find no error in this transaction.
Appellant assigns as error in Assignment 21 that the trial court erred in denying appellant's motion for a new trial due to repeated statements by counsel for appellees regarding an alleged $25,000 mortgage on the subject property and the issuance of a title insurance policy in the same amount. The motion appellant made, as shown in the record on page 60, was not for a new trial but for a mistrial. Overlooking this defect, we conclude that there is no merit in this assignment.
We are not prepared to say that the various statements throughout the trial individually assigned as being prejudicially erroneous are, in their cumulative effect, so infectious as to require reversal of the case as argued by the appellant on the authority of such cases as Blue v. State, 246 Ala. 73, 19 So. 2d 11.
Affirmed.
LIVINGSTON, C. J., and GOODWYN and COLEMAN, JJ., concur. | April 9, 1959 |
71d1313f-dda8-4e62-bf04-3206522e1d63 | Smith v. Dunlap | 111 So. 2d 1 | N/A | Alabama | Alabama Supreme Court | 111 So. 2d 1 (1959)
Harry H. SMITH
v.
D. R. DUNLAP et al.
1 Div. 777.
Supreme Court of Alabama.
April 9, 1959.
*3 Cunningham & Wilkins and Harry H. Smith, Mobile, for appellant.
Chas. B. Arendall, Jr., T. E. Twitty, Jos. M. Hocklander, Hand, Arendall, Bedsole, Greaves & Johnston, Inge & Twitty and D. R. Coley, Jr., Mobile, for appellees.
SIMPSON, Justice.
This is a derivative stockholder's suit; the appeal is taken by complainant below from the ruling of the trial court sustaining the demurrer to the bill of complaint as amended. Complainant, a minority stockholder in the respondent corporation, Alabama Dry Docks and Shipbuilding Company, Inc., seeks to recover, on behalf of the corporation, certain funds allegedly due said corporation and misappropriated by the individual respondents, officer-directors of said corporation. It appears from the bill that complainant has made demands on the directors and stockholders to take the necessary steps to recover for the corporation the sums allegedly due but that they have failed and refused.
Some of the wrongs complained of for which complainant seeks relief are the payment of compensation to the individual respondents as officers of the corporation, which sums were allegedly so excessive that they bore no reasonable relation to the value of the services rendered by said respondents and the payment of certain sums of money from the earnings of the corporation into an incentive or bonus fund for employees of said corporation, from the distribution of which fund the individual respondents benefited. We treat these propositions in order.
It appears from the averments of the bill that the directors of the respondent corporation in June, 1948 adopted a bonus or incentive plan providing for additional compensation to officers and certain other employees based upon a percentage of the corporation's earnings. Complainant questions the reasonableness of the total compensation, that is, salary and bonus, paid to the individual respondents.
In the leading case of Rogers v. Hill, 289 U.S. 582, 53 S. Ct. 731, 77 L. Ed. 1385, cited by this Court in Edmonson v. First National Bank of Birmingham, 256 Ala. 449, 55 So. 2d 338, the rule was enunciated that where the amount of a bonus payment to officers of a corporation has no reasonable relation to the value of service for which it is given, it is in reality a gift and the majority stockholders have no power to give away corporate property against the protest of a minority stockholder.
*4 A long line of Alabama cases recognizes the general rule that where officers of a corporation appropriate assets of the corporation to their own use, equity will intervene on behalf of a minority stockholder who is unable to obtain relief within the corporation. See Decatur Mineral & Land Co. v. Palm, 113 Ala. 531, 21 So. 315; Donald v. Manufacturers' Export Co., 142 Ala. 578, 38 So. 841; Glass v. Stamps, 213 Ala. 95, 104 So. 237; Holcomb v. Forsyth, 216 Ala. 486, 113 So. 516; Gettinger v. Heaney, 220 Ala. 613, 127 So. 195; First Nat. Bank of Birmingham v. Forman, 230 Ala. 185, 160 So. 109. See also Edmonson v. First Nat. Bank of Birmingham, supra. The foregoing cases are illustrative of the principle that the receipt of excessive compensation by the officers of a corporation is manifestly an appropriation of corporate assets by said officers to their own use. See also Textile Mills v. Colpack, 264 Ala. 669, 89 So. 2d 187; Bronaugh v. Evans, 204 Ala. 153, 85 So. 556.
The question of whether the compensation is so excessive that it bears no reasonable relation to the value of services rendered is a question of fact to be resolved on final hearing. It was observed in Gallin v. National City Bank of New York, 152 Misc. 679, 273 N.Y.S. 87, 114; 155 Misc. 880, 281 N.Y.S. 795, that "To come within the rule of reason the compensation must be in proportion to the executive's ability, services and time devoted to the company, difficulties involved, responsibilities assumed, success achieved, amounts under jurisdiction, corporate earnings, profits and prosperity, increase in volume or quality of business or both and all other relevant facts and circumstances; nor should it be unfair to stockholders in unduly diminishing dividends properly payable." See also Decatur Mineral & Land Co. v. Palm, supra; Clamitz v. Thatcher Mfg. Co., 2 Cir., 158 F.2d 687, 692, certiorari denied 331 U.S. 825, 67 S. Ct. 1316, 91 L. Ed. 1841; Winkelman v. General Motors Corp., D.C., 44 F. Supp. 960, 969; 5 Fletcher Cyc. of Corporations, §§ 2133, 2143; 13 Am.Jur. Corporations, §§ 1037, 1039; 27 A.L.R. 300; 40 A.L.R. 1438; 88 A.L.R. 755; 164 A.L.R. 1125.
In the case at bar, there are twelve directors of the respondent corporation, four of whom were also officers of the corporation during the period complained of. These four officer-directors are made parties respondent.
After careful study and analysis of the leading cases, text writers, and student comment in law reviews, and after reconciling some of the inconsistencies therein, we conclude that the following principles govern cases of this nature: The amount of compensation to be paid to an officer of a corporation is, in the first instance, within the business discretion of the corporation's board of directors and with this discretion the courts are loath to interfere; generally the decision of the directors as to the amount of such compensation is final; where it appears, however, that the directors have not acted in good faith or that the compensation fixed by them is so excessive that it bears no reasonable relation to the services for which it is given, courts of equity have the power to inquire whether and to what extent payment to the officers constitutes misuse and waste of corporate assets; the power to inquire will, therefore, be exercised by the courts upon a clear showing of excessiveness of compensation or bad faith on the part of the directors; but courts are reluctant and will proceed with great caution in exercising the power to "prune" the payments since it is not intended that a court should be called upon to make a yearly audit and adjust salaries; nor is such an inquiry merely to substitute the court's discretion for the discretion of the directors if that has been honestly and fairly exercised. Rogers v. Hill, supra; Winkelman v. General Motors Corp., supra; Gallin v. National City Bank of New York, supra; McQuillen v. National Cash Register Co., D.C., 27 F. Supp. 639, affirmed 4 Cir., 112 F.2d 877; Heller v. Boylan, Sup., 29 N.Y.S.2d 653, affirmed 263 App.Div. 815, 32 N.Y. *5 S.2d 131, appeal denied 263 App.Div. 852, 32 N.Y.S.2d 1011; Diamond v. Davis, Sup., 38 N.Y.S. 103; Darmana v. New Orleans Stock Yard, Inc., 226 La. 897, 77 So. 2d 528; 5 Fletcher Cyc. of Corporations, §§ 2122, 2133, 2138, 2143; 13 Am.Jur. Corporations, §§ 1027, 1039; 27 A.L.R. 300; Washington, "Executive's Living Wage", 54 Harvard L.Rev. 733; Washington, "The Corporate Executive and His Profit Sharing Contract", 50 Yale L.J. 35; 38 Cal.L.Rev. 906; see also Alabama cases, supra.
We conclude that complainant, a minority stockholder, has sufficiently stated a case for the intervention of equity on behalf of the corporation to inquire as to whether the compensation received by the individual respondents is so excessive that it bears no reasonable relation to the value of the services performed by them. This does not mean, however, that the compensation is per se so excessive; it is a question of fact and the compensation having been regularly fixed by the directors, the burden of proving that it is so excessive is on complainant. Darmana v. New Orleans Stock Yards, Inc., supra; 5 Fletcher Cyc. of Corporations, § 2181; 13 Am.Jur. Corporations, § 1039.
Respondents contend that the action of the board of directors and the majority stockholders in refusing to sue precludes or bars complainant, a minority stockholder, from bringing this action.
It is a universal rule that neither the board of directors nor the majority stockholders can, over the protest of a minority stockholder, give away corporate property. Textile Mills v. Colpack, supra; Bronaugh v. Evans, supra; McQuillen v. National Cash Register Co., supra; Heller v. Boylan, supra. And where the amount of compensation paid to an officer of a corporation has no reasonable relation to the value of the services rendered therefor, it is in reality a gift. Diamond v. Davis, and other cases, supra. It follows that the action of the majority stockholders and the directors in refusing to bring suit or in ratifying the alleged excessive compensation cannot, on proper allegations, preclude intervention by a court of equity to inquire into the reasonableness, vel non, of said compensation at the instance of a minority stockholder. Rogers v. Hill, supra; Collins v. Hite, 109 W.Va. 79, 153 S.E. 240; Toebelman v. Missouri-Kansas Pipe Line Co., 3 Cir., 130 F.2d 1016; Darmana v. New Orleans Stock Yard, Inc., supra; Decatur Mineral & Land Co. v. Palm, supra; Gettinger v. Heaney, supra; First Nat. Bank of Birmingham v. Forman, supra; Fletcher, Cyc. of Corporations, Vols. 5 and 13, §§ 2122, 2143, 5832.
American Life Ins. Co. v. Powell, 262 Ala. 560, 80 So. 2d 487 should not be interpreted as holding that majority stockholders by refusing to bring for or by ratifying a gift of corporate assets by the officers thereof can preclude a minority stockholder from seeking on behalf of the corporation, the recovery of said assets from the recipient officers. The holding of the American Life Ins. Co. v. Powell case, supra, was that the complainant, a minority stockholder, should have made an appeal to the stockholders before resorting to equity and that such an appeal was necessary without regard to the nature of the acts complained of.
In Continental Securities Co. v. Belmont, 206 N.Y. 7, 99 N.E. 138, 51 L.R.A.,N.S., 112, 113, cited by the court in the American Life case, supra, it was observed that some courts have drawn a distinction between acts that are and those that are not capable of ratification and, where the acts are not capable of being ratified, that is, where the refusal to bring suit on account of such acts by majority stockholders does not preclude a minority stockholder from so doing, no appeal to the stockholders is necessary. But, as was pointed out in the Annotation, the Alabama courts have not made this distinction, and the rule in this jurisdiction is that as a predicate for a minority *6 stockholder's derivative suit, an appeal to the stockholders is necessary, no sufficient excuse for not so doing being shownand this without regard to the nature of the subject matter of the suit. The requirement of an appeal to the stockholders as a prerequisite for a minority stockholder's derivative suit has long been the prevailing rule in this jurisdiction. By continuing this requirement in the American Life case, supra, this Court was merely following the principle of stare decisis. Such resort to the stockholders is necessary, as heretofore pointed out, without regard to the acts complained of, that is, those that are, and those that are not, capable of ratification. And, as was also observed in the American Life case, that even where fraud is charged, an appeal to the stockholders before bringing suit has long been required in this jurisdiction. It was not the intention of this Court to hold that a majority of the stockholders could by ratifying fraudulent acts or by refusing to seek redress for such acts thereby preclude a minority stockholder from bringing suit.
In 13 Fletcher Cyc. of Corporations, § 5822, cited by this Court in the American Life case, the general rule is enunciated that the refusal of the stockholders to sue may constitute a noninterferable act of discretion or a breach of trust; it turns on the circumstances. Mr. Fletcher, in another section states that "the Courts have no power to interfere with the action of the stockholders or directors in fixing compensation unless there is injustice, oppression, or circumstances amounting to fraud, or a clear abuse of power. However, the courts will take a hand in the matter at the instance of the corporation or of stockholders in extreme cases. * * * Minority stockholders may question such illegal acts, even though ratified by the majority of the stockholders." 5 Fletcher, Cyc. of Corporations, § 2122, pp. 518, 519, 520, 522.
In Kessler & Co. v. Ensley & Co., C.C., 129 F. 397, also cited by this Court in the American Life case, refusal of the directors to bring suit was, under the facts there presented, held to be a breach of trust and not binding on the dissenting stockholders. Judge Jones, writing for the court, observed that the directors under no circumstances have the right to gratuitously and capriciously abandon or give away the rights of the corporation, either to a stockholder or to a stranger and, where it appears that they have done so, a clear breach of trust is shown and the courts will disregard such action.
Errors in Computing Payments Into Incentive (Bonus) and Pension Funds.
Complainant avers that the incentive or bonus plan providing for the payment by the corporation of additional compensation to officers and certain other employees was to be based upon the earnings of the corporation. He further avers that the individual respondents, officers of the corporation, calculated the amount of the contribution to be made to the bonus fund by the corporation and in so calculating included certain items that could not be interpreted as earnings under the written terms of the plan. It also appears from the bill that said respondents did not disclose to the directors or to any one the amount contributed or how they arrived at said amount but maintained complete secrecy with respect thereto. It further appears that the respondents benefited from the distribution of the fund.
One of the alleged mistakes in calculating about which complainant complains arises out of the sale in 1955 of a capital asset of the respondent corporation, that is, the sale of the stock of Waterman Steamship Corporation which stock was purchased by the respondent corporation in 1931. It appears that respondents in computing the contributions to the incentive and pension funds treated the profits realized therefrom, $433,000, as earnings of the respondent corporation with the result that $59,634.20 of said profit was contributed to the incentive fund and $199,720 was contributed to the pension fund.
*7 It also appears that party respondent Dunlap in a letter to the stockholders stated as follows: "I also wish to call to your attention in the statement the increase in the amount of `Income from Investments and Rents'. This amount includes proceeds from the sale of an investment in Waterman stock, which netted a profit of approximately $433,000.00 after federal and state income taxes. Such stock was purchased at the time of the formation of that company in order to help build up the commerce and development of the port. This money also will be retained in the capital of the company for future investment in similar enterprises which help the growth of our business and the Port of Mobile".
The purpose of the incentive plan of additional compensation as declared in said plan was: "Purpose: To provide for the continuation of an annual incentive fund, based on earnings for the payment of additional compensation to officers and other employees as a reward for results accomplished and an incentive to further efforts toward increasing the profits of the corporation." (Emphasis supplied.)
The plan also provides, "Computation of Amount To Be Distributed: When the estimated earnings of the company in any fiscal year amount to $500,000.00 or more there shall be made available for the purpose of the payment of additional compensation to officers and employees elligible to participate in the plan, a sum equal to:
"* * * For the purpose of additional compensation, `Earnings' shall mean the net income of the company before division of profits under contract with Todd Shipbuilding Corporation * * *."
Complainant also sets out the pertinent provisions of the pension plan of the respondent corporation calling for contribution to the pension fund by the corporation of a specified percentage of the corporation's "net profit after taxes". It is also averred that a copy of the pension fund plan was sent to each of the participants and as a part thereof, there was a letter addressed to the employees of the corporation from the president of the corporation in which it was stated: "* * * Your attention is called to the fact that this being a profit sharing plan, the company must realize profits from its operations in order to make contributions to the Trust Fund, therefore, it is to your advantage to put forth your best efforts, since the retirement income payable to employees qualifying under the plan depends upon the amount of contributions made by the company out of profits." (Emphasis supplied.)
Where "earnings", "net income" or "profit" is used as the basis for the calculation of bonus compensation and the process for the ascertainment of such "earnings", "net income" or "profit" is also described in the plan adopted, and where it is clear and complete, the directions therein will govern. Where the plan or contract is ambiguous or incomplete, construction according to the general rules of construction of contract, becomes necessary. The Court will in such latter case attempt to ascertain the intention of the parties which intention is to be determined from the plan or contract interpreted in the light of surrounding circumstances, that is, those surrounding the adoption of the plan or the making of the contract; previous interpretation by the parties thereto; and the ends sought to be subserved by the plan or contract. See Bigbee & Warrior River Packet Co. v. Moore, 121 Ala. 379, 25 So. 602; Navco Hardwood Co. v. Becks, 222 Ala. 631, 134 So. 4; Harvey v. Missouri Valley Elec. Co., Mo., 268 S.W.2d 820, 49 A.L.R.2d 1124; 13 Am.Jur., Corps., § 1037 (Pocket Part); 73 C.J.S. Profit p. 1; "Computation of Net Profits in Contingent Compensation Arrangements", 51 Col.L.Rev. 867.
Guided by the foregoing principles we conclude that upon the facts averred "earnings", "net income" and "profit" as used in the Retirement and Bonus or Incentive *8 Plans herein cannot be construed to include or anticipate profits from the sale of a capital asset. Heller v. Boylan, supra; Associated Elec. Co. v. United States, 97 F. Supp. 821, 119 Ct.Cl. 675; Arey v. George Associates, Inc., 299 Mass. 130, 12 N.E.2d 84, 86; 28 C.J.S. Earnings p. 611; 49 A. L.R.2d 1131; 51 Col.L.Rev. 867.
It is established that the court has the power to hold the recipient officers liable for the amounts erroneously received as a result of miscomputation where such interested officers supervise the computing of the amounts payable by the corporation to an incentive fund, the amount of the bonuses to be paid thereunder, and participate in the amount distributed thereby. Winkelman v. General Motors Corp., supra; 44 F. Supp. 960; 39 F. Supp. 826; 48 F. Supp. 485; Alexander v. Anderson, Sup., 48 N.Y.S.2d 102; Heller v. Boylan, supra; Mann v. Luke, Sup., 44 N.Y.S.2d 202; 5 Fletcher Cyc. of Corp. § 2143; see also Gallin v. National City Bank of New York, supra.
Upon the principles and authorities in support thereof addressed to the foregoing discussion of "Ratification", we conclude that on the allegations made, the action of the stockholders and the board of directors in refusing to seek recovery of these amounts does not preclude complainant, minority stockholder, from testing in equity the right of recovery on behalf of the corporation, on this aspect. See Winkelman v. General Motors Corp., supra; Heller v. Boylan, supra.
The defense of laches is not, against the bill as a whole, well taken. Where, as here, "the wrongful acts complained of in the bill extended through a series of years down to within a short time of the filing of the bill; and even though, as to some of the acts complained of, having occurred more than six years prior to the commencement of the suit, and therefore barred by the statute, still this would not defeat the complainants in having an accounting on all matters not within the bar of the statute". Montgomery Light Co. v. Lahey, 121 Ala. 131, 25 So. 1006, 1009; 19 C.J.S. Corporations § 829. This case is not governed by Blythe v. Enslen, 203 Ala. 692, 85 So. 1, where the directors, charged with negligence, could avail themselves of the one year Statute of Limitations. Here, complainant charges the officer-directors with conversion of corporate funds to their benefit.
From the foregoing it results as our view that the learned trial court was in error in sustaining the demurrer to the bill as amended.
Reversed and remanded.
LIVINGSTON, C. J., and GOODWYN and COLEMAN, JJ., concur. | April 9, 1959 |
7db3805c-587b-419a-8ea9-2434d3fe5b2e | Gambrell v. Gambrell | 110 So. 2d 248 | N/A | Alabama | Alabama Supreme Court | 110 So. 2d 248 (1959)
Cuba William GAMBRELL
v.
Geneva E. GAMBRELL.
6 Div. 331.
Supreme Court of Alabama.
March 19, 1959.
Roger F. Rice, Birmingham, for appellant.
Huey, Stone & Patton, Bessemer, for appellee.
GOODWYN, Justice.
On August 13, 1956, the circuit court of Jefferson County, Bessemer Division, in equity, rendered a decree of divorce in favor of Geneva E. Gambrell (appellee) against Cuba William Gambrell (appellant). The decree ordered appellant to pay to appellee "the sum of $250 per month, in advance, beginning on September 1, 1956, and on the first day of each month thereafter, as alimony for complainant and for the support and maintenance" of the parties' four minor children, viz.: Loretta, 15 years of age; Ronnie, 7 years of age; Donnie, 5 years of age; and Sandra, 3 months old, whose custody was awarded to appellee. On June 5, 1958, appellant filed a petition seeking a modification of the alimony and maintenance award. The petition for modification is based on an alleged material reduction in appellant's income; that when the award was made "he was employed by two companies, viz.: T. C. I. and Veitch Machine Company, and that his average earnings per month were approximately $1,000"; that at the present time "his average monthly earnings approximate less than $400 in that he has been laid off from Veitch Machine Co., and is only working part time for the T. C. I."
Testimony on the petition was taken orally before the trial court. The parties were *249 the only witnesses. It developed in the testimony that the oldest child, although not quite 17 years of age, had married and was not living with appellee. The decree on the petition, rendered on July 25, 1958, recites that "the court is of the opinion that the prayer for relief in the petition should be granted due to a material change in the circumstances since the rendition of the final decree on August 13, 1956". It then provided for amendment of the decree of August 13, 1956, by reducing from $250 to $225 the amount of monthly payments to be made by appellant "as alimony for complainant and for the support and maintenance of the three minor children that are now in the custody of the complainant."
Although appellant secured a reduction in the amount of the monthly payments, he insists that the reduction is insufficient to meet the change in his financial circumstances. Although the petition alleges that his average monthly earnings have decreased from $1,000 to less than $400, this allegation is not supported by the evidence. For the six months period of January through June, 1958, it clearly appears from the evidence that appellant's earnings from the Tennessee Coal and Iron Division of United States Steel Corporation ($3,182.36) and the Veitch Machine Company, Inc. ($1,139.17) totalled $4,321.53. After certain payroll deductions the net amount paid to appellant by these two companies for the six months period immediately prior to the decree was $3,777.34. Accordingly, the monthly net earnings approximated $630. In addition, appellant receives income of about $425 a year by way of interest on his savings of $10,000. There is also evidence showing that appellant has recently received cost of living increases in his pay.
We have held that the granting or denying of an application for modification of a decree for alimony or maintenance on the ground of a change in the financial circumstances or needs of a party rests in the sound discretion of the trial court. Stewart v. Stewart, 261 Ala. 374, 375-376, 74 So. 2d 423; Hartsfield v. Hartsfield, 261 Ala. 386, 387, 74 So. 2d 420; Jones v. Jones, 251 Ala. 179, 181, 36 So. 2d 310, 312.
Considering all of the evidence in the case, taken orally before the trial court, as already noted, we cannot say that there has been an abuse of discretion in not granting a more substantial reduction in the monthly payments. As said in Jones v. Jones, supra:
The trial court ordered appellant to pay a fee of $75 to appellee's attorney for representing her in the "litigation involving the two petitions to modify the final decree of divorce." (On June 6, 1957, appellant filed a petition for modification of the decree of August 13, 1956, with respect to his right of visitation and also for modification of the award of alimony and support and maintenance. A decree was rendered on June 26, 1957, further defining appellant's right of visitation and without any affirmative action being taken on the prayer for modification of the monetary award. It is apparent that the principal relief there sought concerned appellant's right of visitation.) Appellee has filed a petition here praying that this court allow her a reasonable fee for her solicitors of record for representing her on this appeal. We think it appropriate, under the circumstances of this case, that an additional allowance of $100 be awarded appellee for payment to her counsel for services in representing her on this appeal. See: Ryan v. Ryan, 267 Ala. 677, 104 So. 2d 700, 704(14); Keith v. Paden, 255 Ala. 294, 298, 51 So. 2d 9; Steiner v. Steiner, 254 Ala. 260, 266(9), 48 So. 2d 184; Sims v. Sims, 253 Ala. 307, 311-312(5), 45 So. 2d 25, 15 A.L.R.2d 1246; Walling v. Walling, 253 Ala. 337, 340(6), 45 So. 2d 6; Ex parte Taylor, *250 251 Ala. 387, 389(2), 37 So. 2d 656; Windham v. Windham, 234 Ala. 309, 311, 174 So. 500.
The decree appealed from is affirmed, with an allowance of an additional fee of $100 for appellee's counsel.
Affirmed, and allowance made for an additional solicitor's fee.
LIVINGSTON, C. J., and SIMPSON and COLEMAN, JJ., concur. | March 19, 1959 |
91e25091-5d63-4f55-9e8b-d4569e3fb799 | Blount County v. Campbell | 109 So. 2d 678 | N/A | Alabama | Alabama Supreme Court | 109 So. 2d 678 (1959)
BLOUNT COUNTY et al.
v.
Lonnie CAMPBELL.
6 Div. 249.
Supreme Court of Alabama.
February 19, 1959.
*680 Nash & NeSmith, Oneonta, for appellants.
Rogers, Howard & Redden and Wm. H. Mills, Birmingham, for appellee.
STAKELY, Justice.
This is a condemnation proceeding instituted by Blount County to acquire certain lands owned by the respondent Lonnie Campbell for a public highway.
The proceedings were commenced in the Law and Equity Court of Blount County by petitioner Blount County. The land sought to be taken was an 8.33 acre portion of Lonnie Campbell's tract of some 80 acres. A hearing was held and the court ordered the petition granted. Three Commissioners were appointed to assess the damages and compensation due to the respondent. The Commissioners reported that the respondent was entitled to $1,800 as damages and compensation. The report of the Commissioners was confirmed by the court.
The petitioner took an appeal from the Law and Equity Court of Blount County to the Circuit Court, it being stipulated in effect by the parties that the appeal is in proper form and that the only question involved is the value of the land taken and the amount of damages sustained by the owner of the land by the taking of his access rights to the highway. After hearing the evidence the jury returned a verdict awarding to the respondent, Lonnie Campbell, the sum of $2,500 for his damages and compensation.
A motion for a new trial was filed by Blount County which was overruled. This appeal followed.
The new proposed highway for which the appellee's land was taken replaces U. S. Highway 31 at the point where the land was taken. The land was condemned for the construction of a limited access highway. This highway will run across the entire east side of appellee's property. The land of the appellee did not abut Highway 31 before the taking nor was there any direct access from the appellee's land to Highway 31. There were two roads passing through the appellee's land which furnished two routes of indirect access to Highway 31. One of these roads was to be closed due to the taking of access rights along the new road. As to the other road, in order for respondent to go to Hanceville, which is north of respondent's farm, he would have to travel 3½ miles more by the new road than he has to travel by the old Highway 31.
I. It is earnestly insisted in several assignments of error that the trial court erred in certain portions of its oral charge to the jury. The parts of the oral charge which are claimed to be erroneous all deal with the question of whether the respondent was entitled to damages for what the appellant labels "loss of indirect access."
It is argued by the appellant that there could be no damages or compensation awarded to the appellee for loss of indirect access to Highway 31 occasioned by the closing of one of the roads which passed through appellee's land and that the trial court erroneously charged the jury that they should consider such damages and compensation. The theory of appellant is that § 23 of the Constitution of Alabama limits the compensation for property which is taken and applied to public use by the state and that a property owner is not entitled to damages for loss of access where his property did not abut a highway before the property was acquired by the State for highway purposes.
At the outset we mention briefly the recent case of Blount County v. McPherson, Ala., 105 So. 2d 117. It is not exactly in point but by analogy it supports our views in the instant case. In that case the landowner had considerable property on the old highway and could go to it directly from his property. But after the taking he had no frontage on the new access controlled route. It was held that the landowner was entitled to have compensation for his loss *681 of direct access rights when such rights were sought to be condemned along with his land for the right of way of the highway. In the instant case there was no loss of direct access, since the landowner had no frontage on the old highway. His loss was indirect access.
The well-established general rule of compensation in a condemnation proceeding where only a part of a tract is taken is that the owner is entitled to the difference between the value of the entire tract immediately before the taking and the value of the part of the tract remaining after the taking. Morgan County v. Hill, 257 Ala. 658, 60 So. 2d 838; Pryor v. Limestone County, 222 Ala. 621, 134 So. 17; McRea v. Marion County, 222 Ala. 511, 133 So. 278. In determining the value of the property after the taking the jury should consider any factor or circumstance which would depreciate the value in any way. Pike County v. Whittington, 263 Ala. 47, 81 So. 2d 288; McRea v. Marion County, supra. This includes any effect that the completed project for which the land is condemned may produce on the remaining tract. Pike County v. Whittington, supra; Hatter v. Mobile County, 226 Ala. 1, 145 So. 151; McRea v. Marion County, supra; Hooper v. Savannah & M. R. Co., 69 Ala. 529.
In the case at bar as a result of the taking of a portion of appellee's land and the closing of one of the two roads running through appellee's remaining land, the remaining portion has been made less accessible. We consider that this circumstance should certainly render the remaining land less valuable and hence under the case of Pike County v. Whittington, supra, and the cases cited and discussed therein, is a circumstance of which the jury should be informed and the question left to its decision.
In the case of Hooper v. Savannah & M. R. Co., supra, this Court, in a case involving damages caused by the construction of a railroad across part of a tract of land, said:
In McRea v. Marion County, supra, land was condemned for the construction of a road which ran some distance from the old road where the owner's business and other improvements owned by him were located. In discussing the compensation to which the owner was entitled this Court said:
In the case of Pike County v. Whittington, supra, land was condemned for the construction of a road which ran behind the defendant's service station, whereas the old road had run in front of it. This Court held in that case that the fact that the owner's business was made less accessible to the highway, because of the changed route, was a circumstance to be considered in assessing his damages.
II. It is further insisted that the trial court erred in refusing petitioner's requested *682 written Charge No. 3, which reads as follows:
As we have pointed out, if such loss of indirect access affects the value of the remaining land the jury should consider this factor in fixing damages. Authorities, supra. This charge then is incorrect in that it suggests that the jury cannot consider loss of indirect access. The court was not in error in refusing Charge No. 3.
III. Citing the case of Chichester v. Kroman, 221 Ala. 203, 128 So. 166, the appellant insists that respondent is not entitled to damages by reason of closing one of the roads passing through his place to old U. S. Highway No. 31, since other reasonable means of access are available.
The foregoing case involved the vacation of a dedicated alley. It is not a condemnation case and did not discuss the question of compensation to a landowner for property taken under the power of eminent domain. That part of the oral charge which is assigned as error merely instructs the jury that they may consider the fact that appellee's property will be sealed off in arriving at the amount of their verdict. Or in other words, they may consider inconvenience to the remaining tract resulting from the condemnation. Our cases fully support the charge of the court. Pike County v. Whittington, supra; Hatter v. Mobile County, supra; Pryor v. Limestone County, supra; McRea v. Marion County, supra; Hooper v. Savannah & M. R. Co., supra.
IV. It is argued that the court committed reversible error in overruling appellant's objections to questions asked appellant's witness E. E. Shelton by appellee on cross examination relative to the value he placed on land adjoining appellee's land, viz.:
We add that in the cross examination of witnesses a wide latitude is allowed resting in the sound discretion of the trial court and unless the discretion of the court is grossly abused, the ruling of the court will not be overturned. Kervin v. State, 254 Ala. 419, 48 So. 2d 204; Reeder v. State, 210 Ala. 114, 97 So. 73.
V. It is further insisted that the court was in error in sustaining an objection to the following question propounded to E. E. Shelton on direct examination, namely: "Did you and Mr. Chichester prepare these figures as submitted jointly?"
It is sufficient to say that it appears from the record that the witness answered the question in the affirmative before any objection or ruling thereon. Supreme Court Rule 45, Code 1940, Tit. 7, Appendix.
We find no error in this ruling.
Appellant insists that the trial court erred to a reversal in permitting several *683 witnesses to testify over appellant's objection as to the value of appellee's property. Title 7, § 367, Code of Alabama of 1940, provides:
The question of whether or not the witness has had an opportunity for forming a correct opinion is a preliminary question to be passed upon by the court and is largely within its discreton. This discretion will not be reviewed except in cases where it is clearly made to appear that the ruling was unjust and worked an injury to appellant's cause. Morris v. State, 25 Ala. App. 494, 149 So. 359.
The record shows that each of several witnesses had some knowledge of the property and some opportunity to form an opinion. The degree of opportunity that the witness may have had for forming an opinion goes to the weight of the evidence and not to its admissibility. Bates v. Chilton County, 244 Ala. 297, 13 So. 2d 186; Union Fire Ins. Co. of Paris, France v. Ryals, 25 Ala.App. 300, 145 So. 503. We find nothing to indicate that the trial judge violated his discretion in allowing these witnesses to testify.
VII. The appellant contends that the trial court committed reversible error in overruling appellant's motion to exclude the testimony of Charles E. Tavell. That witness testified with reference to value of the property that, "I arrived at it by using an estimated basis that the State has appraised people's land adjoining." The appellant contends that all of the testimony of this witness should have been excluded because his opinion was based on irrelevant material. The record shows that this witness had previously testified to a knowledge of the property which would give him a basis for forming a correct opinion of the value of the property. The fact that, in forming his opinion, the witness considered some irrelevant matters, goes to the credibility of his testimony, and not to its admissibility. Alabama Power Co. v. Berry, 222 Ala. 20, 130 So. 541.
We conclude that the judgment of the lower court should be affirmed.
Affirmed.
LAWSON, MERRILL and GOODWYN, JJ., concur. | February 19, 1959 |
66cf7a06-6a13-4ace-80ee-9c4e07a64c7d | Ex parte Caremark Rx, LLC | N/A | 1151160 | Alabama | Alabama Supreme Court | REL: 02/24/2017
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2016-2017
____________________
1151160
____________________
Ex parte Caremark Rx, LLC, formerly known as MedPartners,
Inc., and Caremark, Inc.
PETITION FOR WRIT OF MANDAMUS
(In re: James Taff
v.
Caremark Rx, LLC, formerly known as MedPartners, Inc., and
Caremark, Inc.)
(Franklin Circuit Court, CV-00-72)
STUART, Justice.
1151160
In June 2000, the Franklin Circuit Court ("the trial
court") entered a final judgment approving a settlement
agreement in Taff v. Caremark, Inc., a class-action lawsuit
against the corporate predecessor of the petitioner, Caremark
Rx, LLC ("Caremark). Approximately 16 years later, in July
2016, Taff class counsel moved the trial court to enter an
order requiring Caremark to produce for them certain
information regarding the members of the Taff class so that
Taff class counsel could notify those members of a proposed
settlement in a separate class-action lawsuit pending against
Caremark in the Jefferson Circuit Court, Johnson v. Caremark
Rx, LLC, in which some of the members of the Taff class might
be able to file claims. The trial court ultimately granted
Taff class counsel's request and ordered Caremark to produce
the requested information. Caremark now petitions this Court
for a writ of mandamus directing the trial court to vacate
that order. We grant the petition and issue the writ.
I.
On
September
15,
1997,
MedPartners,
Inc.,
a
physician-practice-management/pharmacy-benefits-management
corporation that was the predecessor in interest to Caremark,
Inc., and Caremark, began issuing to investors a type of
2
1151160
convertible security known as threshold-appreciation-price
securities, or TAPS. TAPS holders were entitled to receive
interest payments through the final settlement date, August
31, 2000, at which time they would receive a yield-enhancement
payment and all their TAPS would be converted into shares of
MedPartners common stock. The funds received by MedPartners
in exchange for the TAPS were to be held in escrow until the
final settlement date, when they would be released to
MedPartners;
however,
if
certain
"termination
events"
indicating that MedPartners had become financially distressed
occurred before August 31, 2000, TAPS holders were entitled to
an immediate payment.
In March 1999, a California state agency appointed a
conservator over a MedPartners subsidiary operating in
California;
that
conservator
subsequently
initiated
bankruptcy
proceedings on behalf of the subsidiary. In March 2000,
certain TAPS holders initiated the Taff action in Franklin
County to resolve the issue whether the bankruptcy of the
California
subsidiary
constituted
a
termination
event
entitling them to an immediate payment. A settlement was
quickly reached and, on June 9, 2000, the trial court entered
a final judgment approving the terms of that settlement and
3
1151160
further stating, as relates to the case presently before this
Court:
"The court hereby reserves and maintains
continuing jurisdiction over all matters relating to
the settlement agreement or the consummation of the
settlement, the validity of the settlement, the
construction and enforcement of the settlement and
any orders entered pursuant thereto; and the entry
and enforcement of this final judgment, including,
in the event of reversal, vacation, or modification,
jurisdiction to revoke this order and final judgment
in its entirety and to reinstate all claims
dismissed or released; to discipline class members,
parties or attorneys who do not comply with the
terms of this final judgment; to provide an award of
attorneys fees; to tax court costs; and to all other
matters pertaining to the settlement agreement, its
implementation, and enforcement."
There is no evidence in the record indicating, nor has there
been any allegation, that the parties in Taff did not abide by
the terms of the June 2000 final judgment.
During this same period, MedPartners was embroiled in
other litigation. In 1998, approximately 21 separate lawsuits
were filed against MedPartners in various state and federal
courts alleging that MedPartners had, in connection with a
planned merger with Phycor Inc., made false and misleading
statements to both the public and the Securities and Exchange
Commission concerning its financial condition and anticipated
future performance. Some of those lawsuits asserted claims on
4
1151160
behalf of TAPS holders based on their general status as
holders of MedPartners-issued securities; however, none of
those lawsuits was specifically related to TAPS or implicated
the issues subsequently addressed in the Taff action. Those
various cases were ultimately consolidated in the Jefferson
Circuit Court and, in 1999, a global settlement was reached.
This Court subsequently described the details of that
settlement –– along with a subsequent attempt to reopen the
settlement based on allegations that MedPartners and its
insurer had fraudulently suppressed information regarding
MedPartners' insurance coverage –– in CVS Caremark Corp. v.
Lauriello, 175 So. 3d 596, 598-99 (Ala. 2014):
"Based on the alleged financial distress and limited
insurance
resources
of
MedPartners,
the
1998
litigation was concluded in 1999 by means of a
negotiated 'global settlement,' pursuant to which
the claims of all class members were settled for $56
million –– an amount that, according to the
representations
of
MedPartners,
purportedly
exhausted
its
available
insurance
coverage.
Purportedly based on representations of counsel that
MedPartners lacked the financial means to pay any
judgment in excess of the negotiated settlement and
that the settlement amount was thus the best
potential recovery for the class, the trial court,
after a hearing, approved the settlement and entered
a judgment in accordance therewith.
"Thereafter,
however,
MedPartners,
now
Caremark,
allegedly disclosed, in unrelated litigation, that
it had actually obtained –– and thus had available
5
1151160
during the 1998 litigation –– an excess-insurance
policy providing alleged 'unlimited coverage' with
regard to its potential-damages exposure in the 1998
litigation –– the existence of which it had
purportedly concealed in negotiating the class
settlement. As a result, in 2003, [a member of the
class that was subject to the 1999 settlement] ...
again sued Caremark and the insurers in the
Jefferson Circuit Court, pursuant to a class-action
complaint
alleging
misrepresentation
and
suppression
–– specifically, that Caremark and the insurers had
misrepresented the amount of insurance coverage
available to settle the 1998 litigation and that
they also had suppressed the existence of the
purportedly unlimited excess policy ...."
(Footnotes omitted.) For the next several years, the involved
parties –– class members in the Jefferson County action,
Caremark, its insurer, and various attorneys who had at one
time or were now representing class members –– litigated
various matters not directly related to the ultimate issue
whether the settlement that ended the 1998 litigation had been
procured by fraud. That litigation resulted in multiple
appeals to this Court. See Lauriello; McArthur v. Yearout &
Traylor, P.C., 34 So. 3d 737 (Ala. 2008) (table); and Ex parte
Caremark RX, Inc., 956 So. 2d 1117 (Ala. 2006).
On August 15, 2012, the Jefferson Circuit Court certified
the fraud claims asserted against MedPartners and its insurer
based on the settlement of the 1998 litigation as being
appropriate for class-action treatment, and it also defined
6
1151160
the applicable class to include, among other holders of
MedPartners securities, "[a]ll persons who ... purchased
MedPartners [TAPS] in the September 15, 1997, offering or
thereafter through January 7, 1998." This Court affirmed the
August 15, 2012, order of the Jefferson Circuit Court in
Lauriello, 175 So. 3d at 614, and the Jefferson Circuit Court
thereafter ordered that notice of the class action be provided
to all potential class members. Over 99,000 notices were
subsequently mailed out to parties previously identified as
owners of record or beneficial owners of MedPartners
securities, as well as to over 250 brokerages, custodial
banks, and other financial institutions that may have held
MedPartners securities on behalf of others. Notice was also
published in the The Wall Street Journal. No objections were
made claiming that those methods of notice were inadequate.
The Jefferson County action was ultimately restyled as
Johnson v. Caremark Rx, LLC, and, on June 1, 2016, the
Jefferson Circuit Court gave preliminary approval to a $310
million settlement agreement. Pursuant to the terms of that
settlement, class members had to affirmatively file a claim to
receive any portion of the settlement fund. In giving
preliminary approval to the settlement, the Jefferson Circuit
7
1151160
Court also approved the
parties' plan for publishing, mailing,
and distributing settlement notices and claim forms to
potential claimants, ordered that any objections to the
proposed settlement be filed by July 22, 2016, scheduled a
final fairness hearing for August 8, 2016, and set a deadline
of September 30, 2016, for class members to file claim forms.
At some point after the Jefferson Circuit Court entered
its June 1, 2016, order in Johnson, Taff class counsel decided
to contact the members of the Taff class to notify them that
they might be able to receive funds from the settlement of the
Johnson case if they filed a timely claim. However,
Taff class counsel did not have a complete list identifying
the members of the Taff class with contact information and
details of their securities holdings; accordingly, on July 22,
2016, Taff class counsel moved the trial court, pursuant to
Rule 60(b)(6), Ala. R. Civ. P., to reopen the Taff action ––
which appears to have seen no activity since it was settled in
June 2000 –– and to order Caremark to provide Taff class
counsel with information regarding the members of the Taff
class. That motion stated, in relevant part:
"Plaintiff and class counsel seek to assist
class members in participating in a related class
action case pending in Jefferson County, Alabama,
8
1151160
Johnson v. Caremark Rx, LLC, CV-03-6630-PJB. As the
class representative and class counsel, movants have
an obligation to zealously represent the members of
this certified and settled class. In order to do
so,
however,
class
counsel
needs
information
concerning the members of the class and each of
their purchases and sales of MedPartners-related
securities,
including,
without
limitation,
purchases
and sales of MedPartners common stock, purchases and
sales of options of MedPartners common stock, and
purchases
and
sales
of
MedPartners
[TAPS].
Plaintiff and class counsel seek this relief because
the proposed settlement reached [in the] Jefferson
County action, if approved, will provide additional
compensation to all of the class members in this
class, all of whom were purchasers or sellers of
MedPartners TAPS securities, the subject matter of
this action. Members of the certified class in this
case are also members of the preliminarily-certified
class in the Jefferson County action. The proposed
Jefferson
County
settlement
is
a
claims-made
settlement, and plaintiff and class counsel have an
obligation to make sure that the class members in
this case have a full and fair opportunity to
participate in and receive benefits from that
settlement.
"....
"Plaintiff
and
class
counsel
were
never
provided
with the list used to generate the class notice in
this case. MedPartners, either itself or through
the claims administrator that MedPartners hired to
administer the settlement, is in possession of this
information as well as additional information about
the class members.
"Accordingly, in order for plaintiff and class
counsel to fulfill their duties to zealously
represent the class, movants request the court to
order MedPartners, either itself or through its
claims administrator, to provide the following as to
each class member: full name; mailing address; email
9
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address; home, work, and mobile telephone numbers;
trades and holdings in MedPartners common stock,
stock options, and TAPS."
Caremark opposed Taff class counsel's request and filed
a response, arguing, among other things, that Taff class
counsel's invocation of and reliance upon Rule 60(b)(6), Ala.
R. Civ. P., was inappropriate and that the trial court lacked
jurisdiction to grant the requested relief. Caremark also
alleged that it had conducted preliminary searches and did not
even have most of the information being requested, supporting
this assertion with the affidavit of a corporate officer
indicating that only three documents relevant to the request
of Taff class counsel had been identified, two of which had
already been filed with the Jefferson Circuit Court in Johnson
and were thus presumably publicly available. The third
document was described as "a listing of names and addresses
for TAPS holders that pre-dates the Master List contained in
the court file in this case."
The trial court thereafter conducted a hearing on Taff
class counsel's motion and requested proposed orders from the
parties. In their proposed order, Taff class counsel withdrew
their request for relief pursuant to Rule 60(b)(6) and instead
requested that the trial court order Caremark to provide the
10
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requested information on the basis that the court had, in its
June 2000 final judgment approving the Taff settlement, stated
that it was "reserv[ing] and maintain[ing] continuing
jurisdiction over all matters relating to the settlement
agreement." On August 1, 2016, the trial court denied Taff
class counsel's request for Rule 60(b)(6) relief but
nevertheless granted them the relief they ultimately sought,
stating:
"Upon consideration of [Taff class counsel's]
motion and its premises, and having heard and
considered
the
written
submissions
and
oral
arguments from counsel for the parties, the court
hereby denies the motion in its entirety. However,
the filings in this case have brought to the court's
attention that the court file does not contain
information identifying the class members in this
case who are bound by the judgment. The court
further notes that according to [Caremark's] filings
[Caremark] [has] information in [its] possession
that
could
assist
in
that
identification.
Therefore, the court orders under its retained
jurisdiction that [Caremark] file with the court on
or before August 31, 2016, all documents in [its]
possession or [to which it has] reasonable access
that identif[y] class members who received notice,
or who held TAPS, and the number of TAPS or other
MedPartners securities held by them."
The trial court also specifically stated that Caremark was
required to produce the list of names and addresses described
in the affidavit submitted in conjunction with Caremark's
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initial motion opposing the Taff class counsel's Rule 60(b)(6)
motion.
On August 11, 2016, Caremark petitioned this Court for a
writ of mandamus directing the trial court to vacate its
August 1 order. Caremark thereafter moved this Court to stay
the trial court's August 1 order and, on August 25, 2016, we
granted the motion to stay and ordered Taff class counsel to
file an answer responding to Caremark's petition. Johnson
class counsel subsequently moved this Court for permission to
file an amicus curiae brief in support of Caremark arguing
that Taff class counsel was attempting to interfere in their
attorney-client
relationship
with
the
members
of
the
Johnson class; that motion was ultimately granted as well.
II.
The standard of review applied to a petition seeking the
issuance of a writ of mandamus is well settled:
"Mandamus is a drastic and extraordinary writ,
to be issued only where there is (1) a clear legal
right in the petitioner to the order sought; (2) an
imperative duty upon the respondent to perform,
accompanied by a refusal to do so; (3) the lack of
another adequate remedy; and (4) properly invoked
jurisdiction of the court."
12
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Ex parte Integon Corp., 672 So. 2d 497, 499 (Ala. 1995). In
this case, Caremark argues that we should grant its mandamus
petition for two reasons. First, Caremark alleges that the
trial court lacked jurisdiction to enter the August 1 order,
and, second, Caremark alleges that the ordered relief is
unreasonable and excessively burdensome, and that the trial
court exceeded its discretion in ordering it. This Court has
previously indicated that both arguments are appropriate
subjects for mandamus review. See, e.g., Ex parte Hampton,
189 So. 3d 14, 16 (Ala. 2015) ("The narrow exceptions when
mandamus review is available include when the petitioner
challenges the subject-matter jurisdiction of the trial court
...."), and Ex parte Loube Consulting Int'l, Inc., 45 So. 3d
741, 748 (Ala. 2010) (recognizing that a party may seek
mandamus review of a trial court's order requiring it to turn
information over to the opposing party if the production of
that information would be "unduly burdensome and costly").1
1While Ex parte Loube Consulting and similar cases in
which this Court has considered arguments that the production
of documents would be overly burdensome and costly typically
involve discovery disputes, see, e.g., Ex parte Guaranty Pest
Control, Inc., 21 So. 3d 1222 (Ala. 2009), and Ex parte
Dillard Dep't Stores, Inc., 879 So. 2d 1134 (Ala. 2003), their
reasoning is equally applicable in the instant case, where the
trial court has ordered the petitioner to find and disclose
13
1151160
We further note that Caremark's mandamus petition is timely
and that it complies with the requirements of Rule 21, Ala. R.
App. P. Accordingly, the remaining issue before this Court is
whether Caremark has a clear legal right to an order directing
the trial court to vacate its August 1 order.
III.
We first consider Caremark's argument that the trial
court lacked jurisdiction to enter the August 1 order
requiring Caremark to produce certain information regarding
the members of the Taff class 16 years after the trial court
entered its final judgment in the case. The June 2000 final
judgment entered by the trial court approved the parties'
settlement and resolved all the issues and claims that had
been raised in the Taff case. For all that appears, no
postjudgment motions invoking Rule 59, Ala. R. Civ. P, were
filed after the judgment was entered. If no Rule 59 motion is
filed after a judgment is entered, the trial court that
entered the judgment generally loses jurisdiction to amend the
judgment 30 days after the judgment is entered.2 Pierce v.
information 16 years after a final judgment was entered.
2Of course, Rule 60(b), Ala. R. Civ. P., provides a
mechanism by which a trial court can provide relief beyond
14
1151160
American Gen. Fin., Inc., 991 So. 2d 212, 215 (Ala. 2008).
However, a trial court nevertheless continues to hold
"residual jurisdiction" even after that 30-day period expires
such that it can still take any steps that are necessary to
enforce its judgment. See, e.g., George v. Sims, 888 So. 2d
1224, 1227 (Ala. 2004) (explaining that "a trial court has
'residual jurisdiction or authority to take certain action
necessary to enforce or interpret a
final judgment'") (quoting
Helms v. Helms' Kennels, Inc., 646 So. 2d 1343, 1347 (Ala.
1994)). The trial court specifically noted in the June 2000
judgment that it would continue to retain this residual
jurisdiction when it stated that "[t]he court hereby reserves
and maintains continuing jurisdiction over all matters
relating to the settlement agreement or the consummation of
the settlement." The question thus becomes whether it was
within the trial court's residual jurisdiction to issue the
August 1 order requiring Caremark to produce the requested
that 30-day period in certain extraordinary circumstances not
present in this case. See Simmons v. Walker, 194 So. 3d 243,
246 (Ala. Civ. App. 2015) ("[R]elief under Rule 60(b) is an
extreme remedy that is to be granted only in extraordinary
circumstances.").
15
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information. For the reasons that follow, we conclude that it
was not.
Although it is true that the trial court's statement of
retained jurisdiction might be read in a manner that would
allow the trial court to require Caremark to now disclose the
information sought by Taff class counsel –– inasmuch as the
identities of the Taff class members is in some way "related"
to the settlement agreement –– the trial court's residual
jurisdiction cannot be extended that far. A court cannot
broaden by mere declaration the residual jurisdiction it
necessarily holds to allow it to interpret or enforce its
judgments. In Schramm v. Spottswood, 109 So. 3d 154 (Ala.
2012), this Court confronted a similar issue when the cross-
appellants argued that the trial court could revisit a
judgment entered in a boundary-line dispute finalized almost
five years earlier. Specifically, they argued that their
approximately five-year-late motion "was nevertheless timely
and appropriate because the trial court stated in [its final
judgment] that it would retain jurisdiction over the case to
determine any 'subsequent issues' that arose regarding the
boundary lines." 109 So. 3d at 162. Notwithstanding the
court's broad claim of residual jurisdiction, we rejected the
16
1151160
cross-appellant's argument, recognizing that the final
judgment previously entered was, in fact, final, and that the
trial court had no jurisdiction to revisit the judgment,
regardless of any claim to retained jurisdiction over the
issue the cross-appellants sought to raise. Id.
The Missouri Court of Appeals' analysis of this issue is
also instructive. In State ex rel. Abdullah v. Roldan, 207
S.W.3d 642 (Mo. Ct. App. 2006), that court considered an
argument that the trial court that had presided over the
settlement
of
a
class-action
lawsuit
had
exclusive
jurisdiction to decide a subsequent dispute between class
counsel and other attorneys regarding the payment of a
referral fee:
"Class
Counsel
essentially
argues
that
Paragraph
16 of the [October 4, 2005] Judgment allows the
[trial court] to retain jurisdiction over this
attorney fee dispute. Paragraph 16, in relevant
part provides:
"'Without affecting the finality of this
Judgment in any way, this Court hereby
retains continuing jurisdiction over ...
(b) further proceedings, if necessary, on
applications
for
attorneys'
fees,
expenses,
and costs in connection with the Litigation
and the Settlement;.... Among other
things, this Court retains continuing
jurisdiction
over
the
Litigation
to
enforce
Defendants'
obligations
under
the
Agreement
... and [to] pay Plaintiffs' Counsel and
17
1151160
Plaintiffs' Class Counsel any award of
attorneys'
fees
and
reimbursement
of
expenses made by the Court ....'
"Class Counsel cites federal case law in support of
this contention. However, it is important to note
that 'Missouri Rule 75.01 has no exact counterpart
in the Federal Rules.' Pirtle [v. Cook], 956 S.W.2d
[235,] 242 [Mo. 1997)].
"As previously discussed, under Rule 75.01[,
Missouri Supreme Court Rules,] a 'trial court
retains jurisdiction for thirty days following the
entry of its judgment to take corrective action.'
Lacher v. Lacher, 785 S.W.2d 78, 80 (Mo. 1990). In
the absence of any authorized trial motions, 'the
trial court loses jurisdiction at the expiration of
thirty days.' Id. As the Missouri Supreme Court
has also noted, '[w]e know of no lawful method which
would authorize the trial court to "hold in
abeyance" the judgment which had become final.' Id.
(quoting Camden v. St. Louis Pub. Serv. Co., 239 Mo.
App. 1199, 206 S.W.2d 699, 703 (1947)). Class
Counsel also does not cite any Missouri precedent
supporting the [trial court's] attempt to retain
jurisdiction past the thirty days mandated in Rule
75.01.
"In accord with the Missouri Supreme Court's
holding in Lacher, '[t]he trial court's attempt to
retain jurisdiction over this final decree is
contrary to Rule 75.01 and is without effect.' Id.
at 81. 'Where the trial court includes language in
a judgment that attempts to improperly expand its
jurisdiction, the language of the trial court
purporting to allow the court to retain jurisdiction
is "without effect" and, as a practical matter, is
simply treated as excess language.' Holifield v.
Holifield, 109 S.W.3d 711, 716 (Mo. App. W.D. 2003)
(citing T.L.I. v. D.A.I., 810 S.W.2d 551, 554 (Mo.
App. E.D. 1991)). Regardless of what the Judgment
says in Paragraph 16, the [trial court] lost
jurisdiction over the Judgment on November 3, 2005.
18
1151160
The language in the Judgment attempting to retain
jurisdiction is clearly able to be stricken without
affecting the remainder of the Judgment. See
T.L.I., 810 S.W.2d at 554.
"Class Counsel also argues that since under
Missouri law 'courts have inherent power to enforce
their own judgments,' the [trial court] had the
power to grant the Motion to Enforce. Class Counsel
is correct that '"[c]ourts have inherent power to
enforce their own judgments and should see to it
that such judgments are enforced when they are
called upon to do so."' Lake Thunderbird Prop.
Owners Ass'n, Inc. v. Lake Thunderbird, Inc., 680
S.W.2d 761, 763 (Mo. App. E.D. 1984) (quoting 46
Am.Jur.2d Judgments § 898 (1969)). It is also true
that 'Rule 75.01 serves merely as a bar to the
court's right to alter, modify, or change its
judgment, but it does not prevent the court from
enforcing its judgment as originally entered.'
Multidata Sys. Int'l Corp. v. Zhu, 107 S.W.3d 334,
339 (Mo. App. E.D. 2003).
"'However,
this
power
has
significant
limitations.' SD Invs., Inc. v. Michael–Paul,
L.L.C., 157 S.W.3d 782, 786 (Mo. App. W.D. 2005).
'The trial court's inherent enforcement power
applies to the judgment as originally rendered; the
trial court's power to modify a judgment ceases when
the judgment becomes final.' Mo. Hosp. Ass'n v. Air
Conservation Comm'n of State of Mo., 900 S.W.2d 263,
267 (Mo. App. W.D. 1995).
"Just because a pleading is titled as a 'Motion
to Enforce' does not mean that it is in fact a
motion to enforce. Based on the record before us,
it appears that the Defendants in the underlying
class action have either already paid the $6 million
as required by the Judgment or are in the process of
fulfilling the order. Therefore, there is no need
for the Judgment as originally rendered to be
enforced.
19
1151160
"As the full title of the Motion to Enforce
suggests, what this 'Motion to Enforce' really is,
is a motion to declare and interpret rights and
obligations couched in terms of a motion to enforce.
In fact, what the Class Counsel asks for in the
Motion to Enforce cannot be read to be a request for
the Judgment to be enforced. Instead, what Class
Counsel is asking for is that the [trial court]
modify his original Judgment in order to clarify who
the award of attorneys' fees should be paid to and
to make factual and legal determinations that were
presented to the [trial court] for the first time.
However, as discussed above, the [trial court's]
jurisdiction to modify or clarify the Judgment
expired on November 3, 2005. The [trial court] only
has the power to enforce the judgment as originally
entered. Since based on the record before us there
is no need for the Judgment to be enforced against
the defendants as originally entered, the [trial
court] does not have jurisdiction over this matter."
207 S.W.3d at 646-47 (footnote omitted).
As was the case in Roldan, there is no real dispute here
that is directly related to the final judgment entered by the
trial court. Indeed, the terms of the settlement the trial
court approved in the June 2000 final judgment were fulfilled
by the parties, and there is no question regarding whether any
specific individual was a class member covered by the
settlement. Neither the terms of the June 2000 final
judgment, nor the terms of the settlement agreement itself,
nor the requirements of Rule 23, Ala. R. Civ. P., which
governs class-action lawsuits in Alabama, nor any statute that
20
1151160
has been identified by the parties required Caremark or its
predecessors to file with the trial court –– during the
pendency of the class action, upon its settlement, or at any
time thereafter –– the information now being requested.
Taff class counsel could have sought to make MedPartners
disclose that information as a condition of settlement;
however, they did not do so. Accordingly, there is no basis
for the trial court to impose that requirement upon Caremark
now and it, in fact, lacks the jurisdiction to do so. The
trial court's August 1 order is not merely interpreting or
enforcing its
June 2000 final judgment; rather, it essentially
seeks to modify or amend that final judgment to impose new
obligations upon Caremark, even though the trial court's
jurisdiction to modify or amend the judgment expired 30 days
after the June 2000 judgment was entered. Accordingly, the
August 1 order is due to be vacated.3
IV.
3Inasmuch as we have held that Caremark is entitled to the
relief it seeks on the basis of its first argument regarding
the trial court's lack of jurisdiction to enter the August 1
order, it is unnecessary to consider Caremark's other argument
that the relief granted Taff class counsel in that order is
unreasonable and places an excessive burden upon Caremark. It
is likewise unnecessary to consider the arguments made by
Johnson class counsel in their amicus curiae brief.
21
1151160
Caremark petitions this Court for a writ of mandamus
directing the trial court to vacate its August 1 order
requiring Caremark to disclose certain information regarding
the Taff class members to Taff class counsel 16 years after a
final judgment was entered in Taff. We grant the petition and
issue the writ. The jurisdiction retained by the trial court
after it entered its final judgment in Taff is limited to
interpreting or enforcing that final judgment; the trial court
could not extend its jurisdiction over any matter somehow
related to the June 2000 final judgment in perpetuity by
simply declaring it so. See Holifield v. Holifield, 109
S.W.3d 711, 716 (Mo. Ct. App. 2003) ("Where the trial court
includes language in a judgment that attempts to improperly
expand its jurisdiction, the language of the trial court
purporting to allow the court to retain jurisdiction is
'without effect' and, as a practical matter, is simply treated
as excess language."). The August 1 order was effectively a
modification of the June 2000 final judgment; however, the
trial court lost jurisdiction to amend or modify the June 2000
judgment 30 days after it was entered. Accordingly, the trial
court is hereby directed to vacate the August 1 order, which
it was without jurisdiction to enter.
22
1151160
PETITION GRANTED; WRIT ISSUED.
Bolin, Shaw, Main, Wise, and Bryan, JJ., concur.
Parker, J., concurs in the result.
23 | February 24, 2017 |
Subsets and Splits