author: EMBRY, Justice.

text:
    Fred A. WILLIAMSON v. George W. CLINE et al.
    SC 1481.
    Supreme Court of Alabama.
    June 11, 1976.

      Fred Blanton, Birmingham, for appellant.
    Willard O. Jackson, Leeds, for appellees.
   EMBRY, Justice.

Fred A. Williamson, defendant below, appeals from judgment adverse to him entered by the trial court after trial ore ten-us. That judgment granted relief to George W. Cline and wife, plaintiffs below, by reformation of deed to real estate to the Clines and one to Williamson as well as a declaration that Williamson had no right, title or interest in the real estate claimed by the Clines. We affirm.

The Facts

The genesis of this litigation was the sale of properties of Alabama Fuel and Iron Company at White’s Chapel, St. Clair County, Alabama, after that Company ceased operation of its underground coal mining operations in St. Clair County. Acmar Land Company, Inc., acquired the disputed parcels here involved, along with others, which in turn it sold to predecessor in title of Williamson and to George W. Cline. Among those parcels of real estate, with improvements thereon, which were re-conveyed were Lots A-8 and A-9. The problem, which gave rise to this litigation, arose from the fact that under lease-sale contracts the purchasers of Lots A-8 and A-9 took possession of and occupied dwelling houses on the respective lot sold to the other.

The specifics are: George W. Cline and wife, Nettie Lou Cline, entered into a lease-purchase contract on 13 February 1951 with Acmar Land Company, Inc. (Ac-mar Land hereinafter), for the purchase of House No. A-9. They immediately took possession of, and occupied, a dwelling house on Lot No. A-8. The dwelling house bore the designation “A-9” by marker attached to it. H. A. Cline, the father of George Cline, was delivered a deed to Lot A-8 from Acmar Land bearing date of 4 January 1956. He and his wife then occupied a dwelling house next door to that already occupied by George Cline. After the death of H. A. Cline, Lot A-8 was sold under decree of the Circuit Court of St. Clair County for division of the proceeds among his heirs at law, including George, who was a party respondent to the suit culminating in that sale. The purchaser of Lot A-8 at that judicial sale was Lee and Phillips Company. The conveyance by deed of the register of the court bore date of 12 May 1967. M. F. Phillips and wife entered into a lease-purchase contract with Lee and Phillips Company for the purchase of Lot A-8 on 2 June 1967. Subsequently, on 12 March 1974, the Phillips conveyed that Lot to Fred A. Williamson. The dwelling house situated on Lot A-9, in which H. A. Cline had lived and which stood thereon at the time Phillips purchased it from Lee and Phillips Company, was destroyed by fire. In March 1974, when Williamson bought after the fire of about December 1973, he understood that he was purchasing a vacant lot. At that time the George Clines were still living in the A-9 dwelling house situated on Lot A-8. About June of 1974, Williamson questioned ownership of the Clines to the house and lot they occupied.

The Case

In October 1974 the Clines filed their complaint in this case. It sought reformation of the deed from Acmar Land to the Clines by substitution of “Lot A-8” for “Lot A-9” therein and a declaration that Williamson had no right, title or interest in Lot A-8 by virtue of mutual mistake resulting in the misdescription in the deed, and title in them because of adverse possession of Lot A-8 for more than twenty years. Fred A. Williamson, Acmar Land Company, Inc., a Corporation and Marc Levine were named defendants in the complaint.

Levine answered to the effect that he had no knowledge of any mistake of description in the Cline’s deed; that Acmar Land had claimed no possessory interest in either Lot A-8 or Lot A-9 since 1951 when it surrendered possession of both under lease-sale contracts; he did not claim any interest in either lot and had never claimed any interest in same. He prayed he be dismissed as a party defendant, or the court adjudge him to have no claim or interest in, or to, either lot.

Levine, through attorneys, filed what was captioned “Motion to Quash Service.” In that motion he prayed that purported service on Acmar Land Company, Inc., a Corporation, be quashed because “many years ago” he sold his interest in that corporation; had not since been an officer or director; did not know the present owner of that company; did not know the current officers of the corporation or whether it still existed. Purported service on the corporation was had by serving Levine. The record shows the following entry on that motion:

“This motion is sustained and Acmar Land Company, Inc., must be served otherwise if possible.”

The record reveals no further or other attempted service on Acmar Land.

Williamson filed a 12 (b) 6 motion to dismiss, after the overruling of which he filed an answer that amounted to a general denial of the material allegations of the complaint. The case came on for trial before the court without a jury. Williamson conducted his own defense of the action, his counsel having previously withdrawn. The case was submitted on the complaint, answers of the defendants Levine and Williamson, oral testimony of witnesses and documentary evidence. The final decree contained findings of fact:

“The Court so finds from the evidence adduced that George W. Cline and wife, Nettie Lou Cline intended to purchase the house and property that they went into possession of; and the Court makes the specific finding from the evidence adduced that George W. Cline and wife, Nettie Lou Cline, went into possession of said house and premises under a claim of right, and said possession has been actual, exclusive, open, notorious and continuous for a period of over 20 years.
“The Court further finds from the evidence adduced at the trial that at the time the Deed to George W. Cline and wife, Nettie Lou Cline was made, that a mistake in the description on the deed was made and reformation of the deed is therefore ordered.
“The Court further makes the specific finding from the evidence that it was the intention of the Lee & Phillips Company, Inc., to purchases (sic) at the Court Sale the H. A. Cline, Sr. property which the Lee & Phillips Company, Inc. then sold to M. F. Phillips and wife, Willie Ruth Phillips, the house that burned, and which the Defendant, Fred A. Williamson, purchases (sic) from M. F. Phillips and wife, Willie Ruth Phillips.
“It is Therefore ORDERED, ADJUDGED AND DECREED, L (sic). That the deed from Acmar Land Company, Inc., to George W. Cline and wife, Nettie Lou Cline * * * and the same is hereby reformed so that the description of the land thereby conveyed shall read as follows:
Lot A-Eight (A-8) together with all improvements thereon * * *
and the Register of this Court is hereby directed to make a Deed of Correction to George W. Cline and wife, Nettie Lou Cline, correcting said description of land as above described * * *
“2. That the Register of this Court is hereby directed to make a Deed of Correction to Fred A. Williamson of that Deed * * * from M. F. Phillips and wife Willie Ruth Phillips to Fred A. Williamson, so that the description of the Lands thereby conveyed shall read as follows:
Lot Number A-Nine (A-9). together with all improvements thereon
“3. That Fred A. Williamson has no right, title or interest, either at Law or in Equity, to the lands known as Lot A-8, Acmar Land Company’s White’s Chapel Subdivision, as described above.”

The Issues

(1) Was Acmar Land Company, Inc., an indispensible party without the presence of which the trial court lacked jurisdiction to grant the relief rendered by its judgment?

(2) Was the evidence relating to the existence of a mistake in descriptions contained in the Cline and Williamson deeds sufficiently clear, exact, and satisfactory, that entry of judgment ordering reformation of those deeds was without error?

(3) Was the evidence sufficient to justify a finding that the Clines had been in adverse possession of the property claimed by them for more than twenty years and that such possession was under a claim of right ?

The Decision

We answer the questions posed in issues numbered 2 and 3 in the affirmative. Eubanks v. Richards, 294 Ala. 30, 310 So.2d 883; Cotton v. May, 293 Ala. 212, 301 So.2d 168; Jones v. Wise, 282 Ala. 707, 213 So.2d 914. We do not deem it necessary to write an opinion on these issues. Code of Ala., Tit. 13, § 66:

“§ 66. (10336) Justices to fix specifications of reports; when written opinions not required. — The chief justice and associate justices of the supreme court, or a majority of them, may fix and determine the specifications of the said reports as to contents, type, size of page, length of line, character of appearance and binding. The report of each case shall contain and be prefaced by a statement of the facts of the case and an abstract of briefs filed, with the names, volumes and page of authorities cited. The justices of the supreme court and the judges of the court of appeals shall not be required to write opinions in cases where the decisions merely reaffirm previous decisions, or relate to questions of fact only, or when the cases decided would, in their opinion, serve no useful purpose as precedents; but the title of every case decided by said courts, and not reported in full, shall be published in the reports with brief notes of the points decided or a statement of the disposition made thereof. The reports must contain the name of the judge before whom the case was tried, the names of the attorneys for appellant and appellee, and the name of the justice or judge who wrote the opinion and the names of those concurring or dissenting. (1915, p. 594; 1919, p. 533.)”

While the above cited statute authorizes disposition of issues 2 and 3 as we have done, this court has inherent power to determine what treatment is to be afforded such issues. Hanvey v. Thompson, 286 Ala. 614, 243 So.2d 748.

However, an opinion should be written on issue No. 1, as it involves interpretation of Rule 19 ARCP within the framework of the facts in this case. Rule 19 reads:

“Rule 19”
“JOINDER OF PERSONS NEEDED FOR JUST ADJUDICATION
“(a) Persons to be Joined if Feasible. A person who is subject to jurisdiction of the court shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties, or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring, double, multiple, or otherwise inconsistent obligations by reason of his claimed interest. If he has not been so joined, the court shall order that he be made a party. If he should join as a plaintiff but refuses to do so, he may be made a defendant, or, in a proper case, an involuntary plaintiff. If the joined party objects to venue and his joinder would render the venue of the action improper, he shall be dismissed from the action.
"(b) Determination by Court Whenever Joinder not Feasible. If a person as described in subdivision (a) (l)-(2) hereof cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed amont the parties before it, or should be dismissed, the absent person being thus regarded as indispensable. The factors to be considered by the court include: first, to what extent a judgment rendered in the person’s absence might be prejudicial to him or those already parties; second, the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; third, whether a judgment rendered in the person’s absence will be adequate; fourth, whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoin-der.
“(c) Pleading Reasons for Nonjoin-der. A pleading asserting a claim for relief shall state the names, if known to the pleader, of any persons as described in subdivision (a) (l)-(2) hereof who are not joined, and the reasons why they are not joined.
“(d) Exception of Class Actions. This rule is subject to the provisions of Rule 23.”

The evidence supports the conclusion that Acmar Land disclaimed any possesso-ry rights in either of the properties involved in this litigation as early as 1951. Therefore, it may not be said that in the absence of Acmar Land “ * * * complete relief cannot be accorded among those already parties, or * * * ” it “claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest. * * * ” (emphasis ours).

The findings of fact, conclusions of fact and law, and the judgment entered by the trial court demonstrate it considered those factors which Rule 19(b) admonish be considered when deciding whether a party is indispensable. After consideration, it is patent that the correct conclusion was reached when judgment was entered in the absence of Acmar Land. In this case, not only was no relief demanded of Acmar Land, but also, no valid service was had to effectively implead it as a party defendant. Since the complaint demanded no relief of Acmar Land, Rule 19(c) did not come into play, as’ well for that reason, as for the reason the complaint did not describe, as a matter of law, a party within the ambit of Rule 19(a) (l)-(2). Since Acmar Land was never in fact a party there was no occasion for motion or court order to drop it under Rule 21 ARCP. State ex rel. Hughes v. Hamm, 294 Ala. 584, 319 So.2d 710 (1975).

It is evident the trial court had no difficulty, under the evidence, in determining that in equity and good conscience the action should proceed among the parties before it. To thus proceed could in no wise prejudice Acmar Land, the Clines or Williamson. Judgment rendered in the absence of Acmar Land was certainly adequate. On the other hand the Clines would not have been afforded an adequate remedy had the action been dismissed for nonjoinder of Acmar Land. Rule 19(b), ARCP.

Affirmed.

HEFLIN, C. J., and BLOODWORTH, FAULKNER and ALMON, JJ., concur.


source: Caselaw Access Project

author: ALMON, Justice.

license: Public Domain

text:
    STATE of Alabama v. Florence HASTIE et al. and Tract No. 24.
    SC 1246.
    Supreme Court of Alabama.
    June 11, 1976.
    Taylor D. Wilkins, Jr., Sp. Asst. Atty. Gen., State of Ala., Bay Minette, for the State, for appellant.
    Chason, Stone, Chason & Partin, Bay Minette, for appellees.
   ALMON, Justice.

This is an appeal by the State from a judgment granting appellee’s motion for a new trial. The case arose as follows :

The State filed its petition for condemnation of certain lands owned by the appel-lees in the Probate Court of Baldwin County. The probate court granted the petition and appointed commissioners to appraise the condemned property. The commissioners filed their report and the probate court awarded damages in the amount of $27,953.00.

Upon appeal to the circuit court, the only issue presented to the jury was the amount of compensation and damages due appellees. The jury returned a verdict of $19,400.00. After a judgmént was entered on the verdict, appellees filed a motion for new trial which listed eight grounds. The circuit court set aside the judgment and verdict and granted a new trial after a hearing on the motion.

The sole question presented on this appeal is whether the trial court erred in granting the motion for new trial.

“It has long been a rule of law in this jurisdiction that the granting or refusing of a motion for a new trial is a matter resting largely in the discretion of the trial court, and its order granting a new trial will not be disturbed on appeal unless some legal right of the appellant has been abused. There is a presumption that the court’s discretion was properly exercised. The lower court will not be reversed unless the record plainly and palpably shows that the trial court was in error.” Taylor v. Brownell-O’Hear Pontiac Co., 265 Ala. 468, 470, 91 So.2d 828, 829-30 (1956) (citations omitted); Whitman v. Housing Authority of City of Elba, 272 Ala. 245, 130 So.2d 362 (1961); State v. Edmundson, 282 Ala. 293, 210 So.2d 926 (1968).

As mentioned above, there were eight grounds stated in the motion for new trial. There is no way for this court to tell from the record upon which ground or grounds the motion was granted. Therefore, the ruling must be sustained if any good ground is presented. Morgan County v. Hart, 260 Ala. 418, 71 So.2d 278 (1954).

The fourth ground in appellee’s motion for a new trial was that the court erred in granting the State’s motion to exclude one of appellees’ testimony concerning damage to the entire tract of property involved in this proceeding. We think the court did err in excluding this testimony. A landowner may properly testify as to the value of an entire tract of land before the taking and the value of the remainder after the taking. State v. Barnhill, 280 Ala. 574, 196 So.2d 691 (1967); Shelby County v. Baker, 269 Ala. 111, 124, 110 So.2d 896 (1959); Roberson v. McCarley, 259 Ala. 582, 67 So.2d 814 (1953).

Appellant does not even make an argument that it was proper to exclude this testimony but merely argues that if it was error, it was harmless error. We are unable to conclude that this error was harmless error and we think the trial court was in the best position to make that determination.

Having carefully considered all the evidence, we find ourselves unable to say that the trial court was “plainly and palpably” in error. Hence, the judgment is hereby affirmed.

AFFIRMED.

HEFLIN, C. J., and BLOODWORTH, FAULKNER and EMBRY, JJ., concur.


author: SHORES, Justice. BLOODWORTH, Justice JONES, Justice EMBRY, Justice SHORES, Justice.

text:
    Rubye Carter BERRY v. DRUID CITY HOSPITAL BOARD, etc.
    SC 1196.
    Supreme Court of Alabama.
    May 21, 1976.
    Rehearing Denied and Interest Allowed July 2, 1976.

      Callahan & Nichols, Tuscaloosa, Hogan, Smith & Alspaugh, Birmingham, for appellant.
    Roberts & Davidson, Tuscaloosa, for ap-pellee.
   SHORES, Justice.

This is a suit against a hospital, protected from tort liability be governmental immunity (granted by statute), charging it with breach of implied contract. A verdict for $45,000 was returned against the hospital. After the verdict was returned, the hospital filed a motion for judgment notwithstanding the verdict and motion for a new trial. In support of these motions, it called to the trial court’s attention the case of Hembree v. Hospital Board of Morgan County, 293 Ala. 160, 300 So.2d 823 (1974). Relying upon this case and Smith v. Houston County Hospital Board, 287 Ala. 705, 255 So.2d 328 (1971), the court granted the motion for judgment notwithstanding the verdict.

The plaintiff, Rubye Carter Berry, was taken by ambulance to the hospital after fainting while sitting in her car at Gerald’s Garage in Tuscaloosa. She was transferred from the ambulance cot to a treatment table and a nurse was informed that the patient had “blacked out.” The plaintiff testified that she was not strapped on the table; and when she raised up to look at her watch, she fainted again. When she regained consciousness, she was in a different room and experienced severe pain from her shoulder and pelvic area. Medical testimony revealed that she had suffered fractures in both areas and that she had a 75% permanent disability to her shoulder. Throughout the trial, witnesses for the hospital denied knowledge of an alleged fall in the emergency room.

The plaintiff submits:

(1)The complaint and facts of the case are within the borders of the rule of Paul v. Escambia County Hospital Board, 283 Ala. 488, 218 So.2d 817 (1969);

(2) governmental immunity will not bar an action based upon the rule of Paul;

(3) the holding of Paul has been distinguished and narrowed but not overruled; and, that

(4) the decisions of Hembree v. Hospital Board of Morgan County, supra, and Smith v. Houston County Hospital Board, supra, unduly limited the earlier holdings of Paid and Vines v. Crescent Transit Company, 264 Ala. 114, 85 So.2d 436 (1955).

Perhaps no other area of Alabama law has produced as much confusion in recent times as the governmental hospital cases involving breach of implied contract. A common thread running through the line of cases on this point is difficult, if not impossible, to find. A perusal of these cases and a review of basic contract law will be necessary to determine the state of the law in this area.

A re-examination of basic contract law may be helpful in clearing up the confusion which has resulted perhaps because of careless use of legal terms and definitions in our opinions. Before we reach the question of whether an implied contract has been breached, we should first determine what an implied contract is. There is much discussion in our hospital cases about contracts implied in law or quasi or constructive contracts. The use of these terms is unfortunate and confusing since a contract implied by law or quasi contract is not a contract at all. “A quasi contractual obligation is one that is created by the law for reasons of justice, without any expression of assent and sometimes even against a clear expression of dissent. . . .” 1 A. Corbin, Corbin on Contracts, § 19, at 46 (1963). The purpose of imposing these contractual obligations is to bring about justice. 1 S. Williston, A Treatise on the Law of Contracts, § 3A (3d ed. 1957). Moreover, these obligations are usually based on unjust enrichment or benefit; the defendant may be required to surrender the benefit he has received or even restore the plaintiff to a former status. Williston, supra, at IS. “. . . As the law may impose any obligations that justice requires, the only limit in the last analysis to the category of quasi contracts is that the obligation in question more closely resemble those created by contract than those created by tort. . . . ” Williston, supra, at 13. The duty of a hospital to use due care in the treatment of its patients is an obligation created by law; and the breach of that duty is a failure to observe a reasonable standard of due care under the circumstances which gives rise to the tort action. There exists a duty implied by law, as opposed to a contract implied by law, to exercise due care, the breach of which gives rise to an action in tort. We again affirm those decisions which refuse to imply a contract in law to impose a duty upon a hospital to use due care in the treatment of its patients. Green v. The Hospital Building Authority of the City of Bessemer, 294 Ala. 467, 318 So.2d 701 (1975); Garig v. Bast End Memorial Hospital, 279 Ala. 118, 182 So.2d 852 (1966).

It is evident, therefore, that when we speak of implied contracts within the confines of Paul v. Escambia County Hospital Board, supra, we are referring to contracts implied in fact. That is, contracts which arise by virtue of the acts or conduct of the parties rather than by express agreement. Adams v. Republic Steel Corp., 254 Ala. 620, 49 So.2d 214 (1950). The only difference between express contracts and implied contracts is the method of expressing mutual assent. It becomes obvious, therefore, that “. . . an action based on a contract implied in fact could be maintainable against a city [governmental] hospital.” Green, supra, 318 So.2d at 704.

Our line of “hospital cases” really begins with Paul v. Escambia County Hospital Board, supra. In that case, the hospital accepted the plaintiff as a maternity patient and she gave birth to a child unattended. As a result, the child was strangled to death by the umbilical cord. We observed that the complaint “. clearly state [d] that the cause of action sued on is failure of the defendant to perform its [implied] promise to attend the plaintiff in the delivery of her child and to make available to the plaintiff the facilities for childbirth which were available at the defendant hospital, all after having undertaken to do so by accepting the plaintiff as a maternity patient. . . . ” (283 Ala. at 492, 218 So.2d at 821). We then noted that the complaint was essentially the same as the one filed in Vines v. Crescent Transit Company, supra. The opinion quoted from Vines:

‘It will be observed that a negligent failure to perform a contract, express or implied * * * is but a breach of contract. But if in performing it, it is alleged that the defendant negligently caused personal injury or property damage to plaintiff, the remedy is in tort, for it is not the breach of a contract express or implied, but the breach of an implied [by law] duty to exercise due care not to injure plaintiff or her property which is the gravamen of the action.’” (283 Ala. at 492, 218 So.2d at 821)

We concluded in Paul, as quoted in Holcomb v. Escambia County Hospital Board, 291 Ala. 114, 123, 278 So.2d 699, 707 (1973):

“ ‘. . . Had the defendant in this case undertaken to perform the contract by administering to the plaintiff in the delivery of her child and performed its duty in a negligent manner, thereby causing the plaintiff injury, then the plaintiff’s cause of action based upon such negligence would have been barred under the doctrine of governmental immunity.’ ”

From these statements, unfortunately a distinction between misfeasance and nonfeasance was made in some cases to deny a plaintiff an action in contract if any attempt at performance was made by the defendant. Smith v. Houston County Hospital Board, supra. This concept was devised quite early as a line of demarcation between tort and contract, or more accurately, between tort and breach of contract. W. Prosser, Handbook of the Law of Torts, § 92, at 614, and N. 14 (4th ed. 1971). Despite considerable criticism of this approach, Dean Prosser finds the classification serves a valid purpose as have the courts in this country in general. Prosser at 614. Indeed, we have consistently applied the rule in this state to determine whether actions in tort were available to the plaintiff where he clearly had a cause of action for breach of contract. Old Southern Life Insurance Company v. Woodall, 10 ABR 441 (1976), 29S Ala. 235, 326 So.2d 726; C & C Products, Inc. v. Premier Industrial Corporation, 290 Ala. 179, 275 So.2d 124 (1972). In these cases, the misfeasance-nonfeasance dichotomy was used to determine whether the plaintiff had stated a tort claim. That he had a contract action was conceded. The Smith opinion found the antithesis of this rule to be that the dichotomy must be used to determine whether the plaintiff could state a, contract claim when he clearly had a to.rt claim. Thus, in Smith, we turned the rule over to determine the availability of a contract action, exclusively equating nonfea-sance with contract and misfeasance with tort. This restriction is unnecessarily limiting and, to that extent, we believe Smith was wrongfully decided. It has long been the rule in this state, and most others, that an action for breach of contract can arise by virtue of misfeasance. In Tennessee Coal, Iron & Railroad Co. v. Sizemore, 258 Ala. 344, 349, 62 So.2d 459 (1952), this court held:

“A complaint for the breach of a contract in not performing the obligation there expressed, or not doing it in the way specified, is not in tort . . .” (Emphasis added).

See also the dissenting opinion of Justice Jones in Hembree, supra.

An example in the extreme may be beneficial. Assume that a patient is admitted to a hospital’s maternity ward. Assume further that, due to a scheduling error, a doctor was not available when the patient was ready for delivery and an unqualified hospital employee made an effort to deliver the child, which resulted in injury to the patient. If the plaintiff alleges the existence of a contract implied in fact and alleges facts and circumstances sufficient to infer that the hospital impliedly contracted to have a physician available at the crucial time, a good claim is stated.

Thus, the same act may constitute both a breach of contract and a breach of a duty implied by law and thereby give rise to an action ex contractu and ex delicto. The aggrieved party in such a situation has previously faced an election in his pleadings between one or the other of these causes of actions. Under the Alabama Rules of Civil Procedure, Rule 8(e)(2), “A party may . . . state as many separate claims . . . as he has regardless of consistency . . . subject to the obligations set forth in Rule 11.” This rule is identical to the Federal Rule on this point, and as noted in the Committee Comments to Rule 1: “It has long been settled in this state that when the legislature adopts a federal statute ... it adopts also the construction which the courts of such jurisdiction have placed on the statute. . . .” Relying on the federal cases on this point, we find no election necessary at the pleading stage in this situation. See, e.g., Justice v. Prudential Insurance Company of America, 351 F.2d 462 (4th Cir. 1965); Israel v. Alexander, 50 F.Supp. 1007 (D.C.N.Y.1942).

Of course, in the instant case, this problem is not before us since the plaintiff made no effort to state a tort claim because it is barred by governmental immunity. The question before us is simply whether the plaintiff has stated a cause of action for breach of implied contract. The plaintiff need state only a claim for relief containing a short and plain statement of the claim showing that the pleader is entitled to relief and a demand for judgment for the relief to which he deems himself entitled. ARCP 8(a). Applying this to a breach of contract action, the plaintiff need only allege the existence of a valid and binding contract, performance by the plaintiff and breach by defendant. See 1 C. Lyons, Alabama Practice, § 8.3 (1973).

“In pleading the existence of an express written contract, plaintiff, at his election, may set it forth verbatim in the complaint, attach a copy as an exhibit, or plead it according to its legal effect. However, in an action on a contract implied ... in fact, the allegations must show the facts and circumstances from which the agreement . . . can be inferred. . . .” SC. Wright & A. Miller, Federal Practice and Procedure: Civil § 1235, at 191-92 (1969).

This is more or less the point that Justices Jones and Faulkner made in their dissent in Holcomb v. Escambia County Hospital Board, supra, interpreting Garig v. East End Memorial Hospital, supra. After finding Garig to be consistent with Paul, the dissenting opinion believed the holding of Garig to be:

. . that where a party seeks redress in contract, express or implied, specific terms of the contract out of which the duty is alleged to arise must be averred, and a general averment that the defendant impliedly contracted to exercise due care will be construed as stating a cause of action ex delicto. . . .” (Emphasis added) (291 Ala. at 123, 278 So.2d at 707)

Thus, a complaint grounded in implied contract must state facts and circumstances— the acts and conduct of the parties from which the contract alleged can be inferred.

We now turn to the complaint in the instant case. The complaint contains two counts. Count One alleges in part:

“. . . Plaintiff further alleges that defendants entered into an implied contract with the plaintiff wherein and whereby, for a consideration, the defendants impliedly contracted, undertook, promised or agreed to treat, observe and care for the said plaintiff’s condition. Plaintiff further alleges that the said defendants did not perform or fulfill its implied contract properly to treat or care for the said plaintiff or to assist in the treatment of her condition, or to give the plaintiff the required treatment and needed medication; but on the contrary, the defendants in violation of its contract allowed the plaintiff to remain in the emergency room in an unattended condition and that the plaintiff was thereby permitted to fall off the stretcher upon which she had been placed.

Count Two alleges in part:

“. . . that the defendants entered into an implied contract with the plaintiff wherein and whereby, for a consideration, the defendants impliedly contracted, undertook, promised or agreed to treat, observe and care for the said plaintiff’s sick condition. Plaintiff further alleges that said defendant after having accepted said contract did not fulfill or perform its contract to treat, nurse, observe and care for said plaintiff as impliedly agreed, or to give the plaintiff the service agreed to, but on the contrary, in violation of the terms of said contract, the defendants failed to give the plaintiff assistance, supervision and attention, and left the plaintiff on a stretcher unattended in the emergency room, all in violation of the terms of the implied contract . . .”

It is our opinion that this complaint does allege facts sufficient for the jury to find an implied contract and a breach thereof. The complaint allows the inference that the plaintiff was accepted in the emergency room for treatment and that such treatment was not forthcoming — that there was an implied contract, via the defendant’s conduct in accepting the plaintiff for treatment, to give her attention while on the stretcher, on the treatment table in the emergency room, and that the breach of this contract caused the plaintiff damage. While the complaint could have been stated in a more concise and specific fashion, it is, in our opinion, sufficient under our rules of procedure.

We feel compelled to state once again that the sufficiency of the complaint is not supplied solely because it is framed in negative language, i.e., failure to do that which was impliedly promised by the acts of the hospital. Hopefully, we have laid the misunderstanding that nonfeasance is a requirement in this area to rest. The judgment of the circuit court is, therefore, reversed and the court is instructed to reinstate the original verdict.

REVERSED AND REMANDED WITH INSTRUCTIONS.

ALMON, J., concurs.

HEFLIN, C. J., and MERRILL, BLOODWORTH, MADDOX, FAULKNER, JONES, and EMBRY, JJ., concur specially.

BLOODWORTH, Justice

(concurring specially.)

I concur in the result reached by the majority in Justice SHORES’ opinion.

Here, “count one” of the complaint averred:

“ . . . defendants entered into an implied contract with the plaintiff wherein and whereby, for a consideration, the defendants impliedly contracted, undertook, promised or agreed to treat, observe and care for the said [plaintiff] . . . that the said defendants did not perform or fulfill its implied contract

This count is almost exactly the same, word for word, as “COUNT ONE” of the complaint, in Paul v. Escambia County Hospital Board, 283 Ala. 488, 218 So.2d 817 (1969), which reads, in pertinent part, as follows:

“ . . . Plaintiff ... entered into an implied contract with the Defendant wherein and whereby, for valuable consideration, Defendant impliedly contracted, undertook, promised and agreed to nurse and care for the said Plaintiff . . . that said Defendant did not perform or fulfill its contract . . . .”

In Paul we held that the plaintiff “has a remedy for breach of contract for failure of the defendant to perform.”

This is exactly the situation in the case before us and on the authority of Paul, I concur to reverse and remand the judgment of the trial court.

It is my judgment that this is all we need to say and all we need to hold.

MERRILL, MADDOX and FAULKNER, JJ., concur.

JONES, Justice

(concurring specially).

I concur specially in order to underscore what I believe is a most significant decision of this Court. The commendable effort of Justice Shores, in the draftsmanship of this opinion, should serve as a vehicle to bring order out of chaos in this confused area of the law.

On the one hand, I agree with Justice Bloodworth that Paul is ample authority for reversal because of the striking analogy of the two cases. On the other hand, the enigma created by the subsequent case law, especially Smith and Hembree, deserves, even cries out for, a more complete and comprehensive restatement of the law governing these cases.

I feel that one point in particular is worthy of reemphasis: The integrity of the law of contracts and the doctrine of election of remedies, as those principles evolved through over 100 years of case law development, have been preserved and applied (and hopefully clarified) by this opinion. I reemphasize this point in order to reply to those who erroneously (in my opinion, that is) believe that the effect of Paul was to create some new exception in the law of contracts to accommodate the harshness of the governmental immunity defense applicable to public or quasi-public hospitals.

In other words, there seems to have been a common reaction of bench and bar to Paul which may be summarized like this: The Alabama Supreme Court, while adhering to governmental immunity, recognized its harshness when applied to public hospitals and, in order to allow recovery for personal injury resulting from the violation of duties arising out of the hospital-patient relationship, created an exception to the general law of contracts and allowed a suit for breach of the implied terms of the agreement of the parties to which the governmental immunity defense is inapplicable. Indeed, the very Court that sired Paul was not immune to this same reaction which formed the premise of the error manifested in Smith — placing the test of the remedy (whether tort or contract) in the method of the breach as opposed to the source of the duty. No great imagination is needed to “hear” Smith saying, “The ‘exception’ allowed in Paul was probably a mistake in the first place; at any rate, we will not extend its application beyond the narrow factual context in which it found its expression.”

Let’s put Paul in proper perspective. If Paul had not allowed recovery on the theory of implied contract, not only would it have overruled existing case law (as culminated in Vines), it would have created an exception theretofore unknown to the law of contracts — the public hospital exception, if you please. Stated otherwise, Paul avoided, rather than created, an exception.

The law of contracts governs the implied terms of many varied relationships of many varied parties. A few examples of other implied obligations may be helpful: In the absence of an express agreement, the terms of the assent between the doctor and his patient, the automobile owner and the ga-rageman, the garment owner and the dry-cleaning establishment (and the list could go on and on) are governed by the law of implied contracts. To be sure, the law imposes (or may impose), arising out of such relationships, a legal duty, the breach of which gives rise to an action ex delicto; but the election of remedies doctrine gives the claimant his option to proceed either in tort or contract where the duties are dually imposed. It follows, then, that to hold a hospital not liable in contract for the breach of a duty contractually imposed is to carve out of the law of contracts an exception to general contract law. Mr. Justice Simpson, in writing for the Court in Paul, simply declined to make an exception for one particular class of defendants; rather, he applied the same law to public hospitals as to anyone else where the claimant alleges injury and damages resulting from the breach of implied terms and conditions arising from the mutual assent of the parties.

Another common fallacy that seems to have crept into the legal thinking of these cases is that there is some significant distinction between express and implied contracts. It should be remembered that the only distinction between these two types of contracts lies in the quality and quantity of proof of their consummation and terms. It is the method of expressing assent that marks the only distinction between express and implied contracts. Ordinarily, an express contract is more susceptible to proof, both as to its consummation and terms; but the legal incidents of the law of contracts are no less operative as to implied contracts subject, of course, to allegations and proof of the specific terms of the agreement assented to by the parties, as that proof may be aided by the relationship of the parties.

One concluding observation: Where the governmental immunity provision is not contained in the legislative act creating these public hospitals, there will, of course, be fewer occasions for electing the contract remedy. (Other considerations, however, such as statutes of limitation, the defense of contributory negligence, and measure of proof may still influence this choice.) But some Hospital Board Acts still contain a governmental immunity provision, and in these cases the claimant is never afforded the luxury of election. He must sue in contract. In other words, the governmental immunity cases (Jackson v. City of Florence, 294 Ala. 592, 320 So.2d 68] and Lorence) may have reduced, but they did not eliminate, actions sounding in contract against public hospitals.

I caution the reader, bench and bar, that what I am about to say now is a purely personal observation and reflects only my best efforts to understand what I believe the majority is saying in this type of case. If I were a circuit judge with a motion to dismiss or a motion for summary judgment where the complaint purported to sound in contract against a public hospital, I would grant the motion unless I could answer affirmatively each question in the following check list:

1. Does the complaint clearly aver that the hospital-patient relationship existed between the party alleged to have suffered injury and the hospital?

2. Are the terms of the alleged agreement specified?

3. Do the terms and conditions of the contract, as specified, come within the contemplation of the parties; that is, does the agreement fall within the reasonable contemplation of the parties when tested by a hospital-patient relationship?

4.Are the terms alleged to have been breached medically (that is, hospital treatment) oriented? In other words, do the specified terms of the agreement relate to the purpose for which the patient was admitted to the hospital? In answering this question, keep in mind that this Court has held that sexual assault and carelessly and unintentionally permitting a door to close on a patient’s finger fell outside the ambit of the implied agreement as contemplated by the parties. Admittedly, not every fact situation will pose a purely legal question for the trial judge. In any given case, the pleadings and the proof as to the existence vel non 'of an implied contract may present a jury question.

The foregoing list will not answer every question that may arise, but it should serve as a premise to test the averments of a complaint, not from a technical pleading point of view, rather from a perspective of evaluating whether the pleading states a legal claim on which relief can be granted.

EMBRY, Justice

(concurring specially):

I concur in the opinion of Justice Shores except I vigorously disagree with what is said in Justice Shores’ opinion about quasi, constructive, or contracts implied in law. To say that the law refuses to imply a contract in law (quasi or constructive contract) which imposes a contractual duty upon a hospital to use due care in the treatment of its patients is simply erroneous. My views on this subject are expressed in my dissents in Green v. Hospital Building Authority of City of Bessemer, 294 Ala. 467, 318 So.2d 701, and Lorence v. Hospital Board of Morgan County, 294 Ala. 614, 320 So.2d 631.

Under such implied contracts the hospital does have a duty to use due care.

“ * * * This is a duty implied apart from the express contract between patient and hospital, or from one implied in fact based on the conduct of the parties (actual or tacit consent). * * *” Green, supra.

The failure of the majority to recognize a contract implied in law which imposes a duty of due care upon the hospital clearly suggests that such decision was made without consideration of certain legal duties which, though not based on consent, are of a contractual nature; a fortiorari, the presence of such duties, contractual in nature, demands availability of remedies adequate to compensate the injured party for breach thereof.

HEFLIN, C. J., concurs.

ON REHEARING

SHORES, Justice.

The appellee has filed an application for rehearing, which the court has carefully considered. It is overruled.

The appellant has filed a motion to allow interest from the date of the jury verdict under Rule 37, ARAP. The appel-lee contests this motion.

Rule 37, ARAP, provides:

“INTERESTS ON JUDGMENTS
“Unless otherwise provided by law, if a judgment for money in a civil case is affirmed or the appeal is dismissed, whatever interest is provided by law shall be payable from the date the judgment was entered in the trial court. If a judgment is modified or reversed with a direction that a judgment for money be entered in the trial court, the certificate of judgment shall contain instructions with respect to allowance of interest.”

In the instant case, the trial court granted the defendant’s motion for a judgment notwithstanding the jury verdict in favor of the plaintiff. The plaintiff appealed, and the cause was reversed and the trial court was instructed to reinstate the jury verdict.

Title 9, § 63, Code of Alabama 1940, provides :

“Judgments and decrees for the payment of money, other than costs, bear interest from the day of rendition.”

The question is whether the plaintiff is entitled to interest from the date of the jury verdict. We hold that she is. Several jurisdictions have so held, reasoning that when the delay in entering judgment on the verdict was occasioned by the party against whom it was rendered, the successful party, on appeal, is entitled to interest from the date of the verdict. See Annot., 1 A.L.R.2d 479 (1948). In Hewitt v. General Tire and Rubber Company, 5 Utah 2d 379, 302 P.2d 712, 713 (1956), the Supreme Court of Utah, having previously reversed a judgment setting aside a jury verdict in the same case (3 Utah 2d 354, 284 P.2d 471), said:

“. . . The court’s order entering judgment for the defendant was in error and abortive, and when this court issued its mandate ordering the judgment for defendant vacated and the judgment on the verdict for plaintiff reinstated, it vitalized that judgment to the same extent and with the same force as though the trial court had never entered the abortive and erroneous judgment for defendant.”

We can see no good reason why the plaintiff should not be allowed interest from the date of the jury verdict. When a defendant appeals from a judgment entered in favor of the plaintiff, and the same is affirmed, the judgment bears interest from the date of rendition. Why should the rule be different when the trial court, on motion of the defendant, sets aside a verdict in favor of the plaintiff, who is then compelled to appeal, if he is successful in having the original verdict reinstated ?

The appellant’s motion to allow interest from the date of the jury verdict is hereby granted.

'OPINION EXTENDED.

MOTION TO ALLOW INTEREST GRANTED.

APPLICATION FOR REHEARING OVERRULED.

All the Justices concur.

      . This comment is not to be understood as expressing any opinion on the constitutionality of these immunity provisions in view of the disparity among the various acts.

      . Lorence v. Hospital Board of Morgan County, 294 Ala. 614, 320 So.2d 631 (1975).

        . Green v. Hospital Buildling Auth. of City of Bessemer, 294 Ala. 467, 318 So.2d 701 (1975). See also Hall v. City of Huntsville, 291 Ala. 124, 278 So.2a 708 (1973).


author: PER CURIAM. JONES, Justice

text:
    Horace PARKER v. STATE.
    SC 987.
    Supreme Court of Alabama.
    May 14, 1976.
    Rehearing Denied July 2, 1976.
    Rogers, Howard, Redden & Mills, and William N. Clark, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and William M. Bowen, Jr., Asst. Atty. Gen., for the State, appellee.
   PER CURIAM.

This is an appeal from a judgment of impeachment of the Treasurer of Jefferson County, Horace Parker.

The question presented is whether an office holder may be impeached for an offense involving moral turpitude which occurred prior to his assumption of office. We hold that he cannot and reverse.

It should be noted at the outset that we are not dealing with a situation where an office holder is indicted, convicted and sentenced for a crime, and is then removed from office by virtue of that sentence. Tit. 41, § 162, Code of Alabama 1940, Recompiled 1958. Instead, this is a situation where one is sought to be impeached (removed from office only) for an offense committed by him before he took office.

On December 7, 1973, the grand jury of Jefferson County returned a report recommending that appellant be impeached.

On March 29, 1974, the State of Alabama, through Attorney General William J. Baxley, filed an information of impeachment and prayer for ouster in the Circuit Court. The charges in the information were essentially identical to those in the grand jury report but were amended several times prior to trial. What remained was charge one and specification three.

Charge one alleged that appellant had committed an offense or offenses involving moral turpitude during his present term of office, or committed under color thereof, or connected therewith. Specification three averred that appellant did unlawfully and corruptly incite Jack Edward Pratt 'and Beverly R. Pratt to commit the felony of the corrupt offering, promising, or giving of a bribe.

The substance of the State’s case was that appellant told Jack Pratt and Beverly Pratt that he would appoint Beverly Pratt to the office of Deputy-Treasurer of Jefferson County if she would agree to give him some $2,000.00 annually from her salary.

The -State’s case rested on the testimony of the Pratts and a tape recording of an alleged telephone conversation between Mrs. Pratt and appellant. Appellant denied asking the Pratts, or either of them, to give him any money in exchange for appointing Mrs. Pratt to the deputy treasurer post. He denied ever having offered her the job.

There are numerous assignments of error. Since we are reversing on one of those assignments, it will be unnecessary to discuss the others.

It is undisputed that appellant was elected to the office of Treasurer of Jefferson County in the general election held November 7, 1972; that he signed an official bond to secure his faithful performance in office on December 19, 1972; that he signed an oath of office dated December 19, 1972; and that he was installed and actually took office on January 15, 1973. According to the evidence, the alleged incitement occurred on January 10, 1973. This was after appellant had been elected but before he had assumed the office of County Treasurer. Appellant contends that a public officer may not be impeached for acts which occurred prior to the actual commencement of his term and prior to the actual assumption of his duties. It is upon this ground that appellant submits that the information charging him with having committed an offense involving moral turpitude “during his present term of office,” “under color of holding said office,” or “connected with the holding said office,” was faulty and subject to his motion to quash and demurrer.

Section 173, Article 7, of the Constitution of Alabama, 1901 provides that certain state officers may be removed from office “for willful neglect of duty, corruption in office, incompetency, or intemperance in the use of intoxicating liquors or narcotics to such an extent, in view of the dignity of the office and importance of its duties, as unfits the officer for the discharge of such duties, or for any offense involving moral turpitude while in office, or committed under color thereof, or connected therewith.”

Section 175, Article 7, declares that various county officers, including county treasurers, “may be removed from office for any of the causes specified in section 173 of this Constitution.” Tit. 41, § 178, Code of Alabama, 1940, Recompiled 1958, provides that a county treasurer may be impeached and removed from office for “any offense involving moral turpitude while in office, or committed under color thereof, or connected therewith.”

An impeachment proceeding under our Constitution is a criminal prosecution. State ex rel. Attorney General v. Buckley, 54 Ala. 599; State ex rel. Attorney General v. Tally, 102 Ala. 25, 15 So. 722; State ex rel. Attorney General v. Robinson, 111 Ala. 482, 484, 20 So. 30; Batson v. State, 216 Ala. 275, 113 So. 300; State ex rel. Knight v. deGraffenreid, 226 Ala. 169, 146 So. 531. Constitutional and statutory provisions in such cases are to receive strict construction in favor of the accused. Nelson, et al., Jury Corns, v. State, ex rel. Blockwell, 182 Ala. 449, 62 So. 189.

In State ex rel. Attorney General v. Hasty, 184 Ala. 121, 63 So. 559 (1913), this court held that acts of a previous term cannot be made the basis of charges for impeachment. The court adopted as one of the bases for its holding the so-called “con-donation theory.” Simply stated, the “con-donation theory” is that re-election to an office operates as a condonation of the officer’s conduct during the prior term.

The officer in Hasty was charged with willful neglect of duty, incompetency and corruption in office. Although the court omitted the “connected therewith” language of § 173, in its references to that section, it was in the Constitution at that time. And the court made no suggestion that had the information charged an offense involving moral turpitude, evidence of offenses during the prior term would have been grounds for impeachment.

The other basis for the court’s decision was § 176 of the Constitution, which limits the punishment upon impeachment to removal from office and disqualification from holding office for the term for which the officer was elected or appointed.

The court in Hasty, in concluding that all grounds of impeachment based upon the conduct of Hasty during his previous term should be stricken, stated as follows:

“It seems to be the policy of our Constitution to make each term independent of the other and to disassociate the conduct under one term from the qualification or right to fill another term, at least so far as the same may apply to impeachment proceedings, and as distinguished from the right to indict and convict an offending official.” 184 Ala. 125, 63 So. at 561.

Thus, while it is clear that an officer cannot be removed from office for conduct which occurred during a prior term, the question for consideration here is whether a public officer may be impeached for acts which occurred prior to the actual commencement of his term and prior to the actual assumption of his duties. We do not think the law provides for impeachment for such acts.

In State ex rel. Mullis v. Mathews, 259 Ala. 125, 66 So.2d 105 (1953), the Sheriff of Russell County was charged with willful neglect of duty. The court cited Hasty with approval and said:

“The acts of a respondent during a previous term may be considered as evidential facts, in so far as they are connected with or bear upon, the respondent’s general course of conduct during the second term, for the limited purpose of inquiring into the motive and intent of the respondent as to the acts and omissions charged to him during the second term, but an official cannot be removed because of his conduct during a previous term. State ex rel. Attorney General v. Hasty, 184 Ala. 121, 63 So. 559, 50 L.R.A.,N.S., 553. The present term of office of the respondent began on January 15, 1951, and this information against him was filed in this court on July 1, 1952. Consequently, the only acts of omission or commission which may be made the basis of removal from office are those committed by respondent during that period of time.” 259 Ala. at 140, 66 So.2d at 118.

Although the court in Mathews was not concerned with the period after election and prior to taking office, it suggested that acts occurring during that period could not be considered in an impeachment proceeding.

In the present case, the alleged incitement occurred prior to appellant’s taking office, and appellant never hired Mrs. Pratt. Thus, none of the acts complained of occurred during appellant’s term of office.

Appellee contends that the acts for which appellant was impeached were committed “under color of” the office of county treasurer or “connected therewith.” We cannot agree.

In Mobile County v. Williams, 180 Ala. 639, 61 So. 963 (1913), the court accepted the definition of “color of office” set forth in Bouviers Law Dictionary: Color of office is “where a wrong is committed by an officer ‘under the pretended authority of his office.’ ” 180 Ala. at 650, 61 So. at 967. The court also gave the following example:

“ . . .Of course, if one who has been an officer should, after the expiration of his term as a public official and after he had ceased to act as such official, lay claim to a fee to which he was not legally entitled and should collect the fee, he could not be said to have made that claim and collection under color of his office, for in such a case, when he made the illegal claim and collection, he held no office which could give color to his act.” 180 Ala. at 652, 61 So. at 967.

In this case, Parker was not in office at the time of the alleged act and therefore it cannot be said that he committed the act “under color of” the office.

We have found no cases in Alabama or in any other jurisdiction which have construed the words, “connected therewith,” in the context found here. However, we cannot see how an individual’s acts could possibly be connected with an office which he did not hold either de jure or de facto at the time the alleged acts were committed.

Any other construction of the two phrases, “under color thereof,” or, “connected therewith,” would be at variance with prior holdings of this court.

The judgment is due to be and is hereby reversed and the cause is remanded.

REVERSED AND REMANDED.

MERRILL, BLOODWORTH, MADDOX, FAULKNER, ALMON, SHORES and EMBRY, JJ., concur.

JONES, J., with whom HEFLIN, C. J., concurs, dissents.

JONES, Justice

(dissenting):

I do not agree with the majority opinion that the offense charged was not “connected” with the office of County Treasurer. The constitutional phrase “or connected therewith” must be given an interpretation according to its plain and obvious meaning. Rules of constitutional and statutory construction abhor redundancy. See Carroll v*Alabama Public Service Commission, 281 Ala. 559, 206 So.2d 364 (1968). The majority opinion renders “connected therewith” a total redundance. Parker’s conduct in offering the deputation to Mrs. Pratt was directly in connection with the office of County Treasurer to which he had been elected and sworn his oath to. If “connected therewith” has any meaning or purpose whatsoever, that meaning and purpose must be given effect in the context of these particular facts.

The only statement of the majority, found near the end of the opinion, which addresses itself to the words “connected therewith,” is “[W]e cannot see how an individual’s acts could possibly be connected with an office which he did not hold either de jure or de facto at the time the alleged acts were committed.” This statement, in my opinion, totally disregards the existence of all language beyond the phrase “while in office.” It seems obvious to me that the plain meaning of the constitutional language — “ . . . for any offense involving moral turpitude while in office, or committed under color thereof, or connected therewith” — was intended to categorize as impeachable any conduct amounting to an offense involving moral turpitude connected with the misuse of the office. The fact that the alleged conduct here occurred five days before his term of office began makes the offense no less “connected” with the office.

Ordinarily, the constitution is thought of in the context of personal guarantees which are invoked for the protection of the criminally accused or for the upholding of individual rights; but its application is not so limited. I believe that any erosion of our organic law, however slight, and in whatever context, serves ultimately to threaten individual liberty. Where constitutionally mandated, the protection of society as a whole is but the aggregate of individual protection. Strict construction of the constitution is the only guideline for that high degree of vigilance so indispensable to its preservation — the only foundation of a government of laws and not of men.

In registering this dissent, I wish to make clear that I have limited my consideration of this case to the only point addressed in the majority opinion. Appellant insists that there are at least two additional substantive issues which, independent of the “term of office” issue, merit a reversal of his conviction. In view of the holding of the majority, which has the effect of rendering this cause, I perceive no purpose that would be served by expressing an opinion as to whether the defendant’s conviction is reversible on other grounds; therefore, I have pretermitted any consideration of those issues not addressed by the majority.

HEFLIN, C. J., concurs.


author: JONES, Justice. MERRILL, Justice

text:
    Ben ERDREICH and Chriss Doss, as members of the Jefferson County Commission, etc. v. Melvin BAILEY, as Sheriff of Jefferson County, Alabama.
    SC 1555.
    Supreme Court of Alabama.
    April 16, 1976.
    Rehearing Denied July 2, 1976.

      Cooper, Mitch & Crawford, Birmingham, for appellants Birmingham Labor Council, AFL-CIO, and United Steelworkers of America, AFL-CIO.
    Thomason, Furner & Boyce, Bessemer, for American Federation of State, County, and Municipal Employees Union, AFL-CIO, Local No. 2557.
    William M. Acker, Jr. and Ezra B. Perry, Jr., Birmingham, for appellee Melvin Bailey, as Sheriff of Jefferson County, Alabama.
    John J. Coleman, Jr., Birmingham, for Tom Gloor, President, Jefferson County Commission, amicus curiae.
    Drayton N. Hamilton, Montgomery, for Alabama League of Municipalities, as ami-cus curiae.
   JONES, Justice.

This is an appeal by a majority (two of three) of the members of the Jefferson County Commission and certain labor union intervenors from an adverse decree granting the declaratory and injunctive relief sought by Melvin Bailey, as Sheriff of Jefferson County, Alabama.

A single issue is presented: Can Jefferson County through its governing body, the County Commission, at the request of the Sheriff’s deputies, deduct union dues from their salaries? Or, stated within the context in which this case arose: Given the proposition that the Sheriff’s deputies are legally members of a labor union and request the County Commission to checkoff union dues from their salaries and a majority of the Commission’s members agree to honor such request, can the County Commission effect the checkoff agreement over the objection of the Sheriff?

We answer the question, as alternatively posed, affirmatively. Therefore, the judgment below declaring that the County Commission is without legal authority to agree to deduct the county employees’ union dues from their pay checks and enjoining such deductions is reversed and the cause is rendered.

FACTS

The facts were stipulated as follows:

(1) The status and character of the parties as described in the pleadings are' admitted.

(2) Payment of salaries or wages of employees in the Sheriff’s Department of Jefferson County is made by the Comptroller of the County after certification by the Sheriff of entitlement and approval by the Personnel Board.

(3) The Comptroller arranges for voluntary deductions from such wages or salaries by arrangement with and by authority given by the County Commission. The Comptroller, as a matter of practice, deals with the President of the County Commission in arranging for such deductions. The Sheriff of Jefferson County does not participate in arranging for such deductions.

(4) The Sheriff encourages employees to participate in various deductions programs, such as United Way, but the actual arrangement for deduction from wages or salaries is made and authorized by the Comptroller and the County Commission. Employees of the Sheriff’s Department have executed and presented to the County Commission voluntary requests for checkoffs such as the United Way, Credit Union, U.S. Treasury Bonds and the request for the checkoff involved in this action. The County Commission has honored and complied with the requests for each checkoff mentioned in the next foregoing sentence except the checkoff involved in this action.

CONTENTIONS OF THE PARTIES

We have been favored by excellent briefs by the parties including the dissenting member of the County Commission, appealing amicus curiae in support of the Sheriff. A capsule of these contentions, taken directly from their respective briefs may be helpful as a prelude to our discussion.

County Commission: “From the cited statutes it results that the County and not the Sheriff is the Sheriff’s employees’ debtor as regards the said employees’ County wages . . . The partial assignment of a debt is enforceable if consented to by the debtor [and] . . . [a]n assignment of the part of an employee’s wages is valid if the one indebted for the wages consents to the partial assignment.”

Birmingham Labor Council, etc. (intervenors-defendants/appellants) : “Indisputably, the Commission is the paymaster of the county. In that role the Commission has preemptive authority to arrange for voluntary checkoffs from wages of county employees. The parties have so stipulated . . . [PJublic officials, under their general powers in their official capacities have the power and authority to enter into a memorandum relative to wages and working conditions of employees under their supervision. Nichols v. Bolding [291 Ala. 50, 277 So.2d 868 (1973)]. A fortiori, if a voluntary overall agreement is legally possible with respect to the entire spectrum of wages and working conditions, a voluntary arrangement between public officials and public employees upon the limited matter of voluntary deduction of union dues passes muster.”

Sheriff: “Subject to the provisions of the Jefferson County Civil Service System, §§ 645, et seq., Appendix, Code, Bailey, as Sheriff of Jefferson County, has ultimate supervisory power over the terms and conditions of employment of the employees of the Jefferson County Sheriff .... Employees of the Jefferson County Sheriff have no right to collective bargaining, and union dues check off is inextricably intertwined with the collective bargaining process .. . [C]heck off of union dues for public employees [is] against the public policy of Alabama . . . ”

Commissioner Tom Gloor, as Amicus Ctiriae (originally a defendant, but upon his motion, dismissed as an appellant) : “ . . . Check off by definition involves a commitment to a labor union and is inextricably part of the collective bargaining process . . . Alabama public policies of long standing prohibit public employers from entering into a check-off with a labor organization in the absence of express statutory authority . . . The existing Alabama policy against the check-off rests upon a sound predicate which, in the public interest, should not be disturbed in the absence of comprehensive legislative study and action.”

Alabama League of Municipalities, as Amicus Curiae: “[N]o statute . . . mandatorily requires any sheriff of this state, including Sheriff Bailey, to check off or deduct any sums of money from the salaries of their employees (except taxes) and, specifically, we reject the notion that by action of the County Commission such deductions could be made from the salaries of the sheriff’s employees.”

It is essential to a proper understanding of our holding that the issue here presented be carefully and precisely defined : May the County Commission reach an agreement with the deputies’ union that, so long as the parties are willing, individual county employees may have union dues deducted from their pay ? Perhaps the narrowness of the issue may be best brought into focus by defining what we are not asked to decide.

First, we are not asked to extend or restrict our holding in Nichols v. Bolding, 291 Ala. 50, 277 So.2d 868 (1973). There we hold, under the firefighters statute, that public officials have the general authority to memorialize employee requests and to formulate voluntary understandings reached upon matters of wages and conditions of employment. In other words, whether the holding of Nichols necessarily rests upon a statutory grant is not before us because all of the parties proceed- (below and here) on the premise that the deputies are lawfully members of the labor union. Their right of union membership and the concomitant rights assured by Nichols are not disputed.

Second, we are not asked to decide whether the Commission could be ordered against its will to deduct union dues in light of its permissive deductions for United Way, Blue Cross, etc. We repeat: All that is in issue is the existence of the power of the Commission to permit, at the Commission’s will, a checkoff from wages.

To deny the Commission’s authority to honor a request for checkoff from wages would be tantamount to nullifying and rendering futile the initial right of the employees to present requests to the public employer respecting wages and conditions of employment. If the employees have this right — which right is not here contested— and the public employer has the obligation to receive, and consider in good faith, such requests, it must necessarily follow that the employer has the legal authority to assent to such requests. The legal efficacy of the power of the Commission to decline the deputies’ request for a checkoff from wages can be meaningful only in the context of the comparable power of the Commission to assent.

REVERSED AND RENDERED.

HEFLIN, C. J., and BLOODWORTH, MADDOX, FAULKNER, ALMON, SHORES and EMBRY, JJ., concur.

MERRILL, J., dissents.

MERRILL, Justice

(dissenting).

The Sheriff of Jefferson County has ultimate supervisory power over his deputies and they are subject to his orders and directions. He, unlike other county officers, is liable for mistakes, negligence, etc. of his deputies and I do not think they should be involved in collective bargaining so long as they are involved in law enforcement activities.

I respectfully dissent.

      . Section 3 of the Act No. 468 of the Regular Session of the Legislature of 1915, Local Acts of Alabama of the Regular Session of 1915, p. 374; Section 7 of Act No. 120 of the Regular Session of the Legislature of 1923, Ala.Acts, 1923, p. 94; Section 148, Title '62, Ala.Code of 1940.

      . This is the issue decided favorably to the union by the Fourth Circuit Court of Appeals in Local 660, Int’l. Ass’n of Firefighters, et al. v. City of Charlotte et al., 518 F.2d 83 (1975), in which certiorari was granted, and which was recently argued before, but not yet decided, by, the United States Supreme Court.


author: FAULKNER, Justice.

text:
    John T. JOHNSON et al. v. Elisha D. BRIDGES et al.
    SC 1601.
    Supreme Court of Alabama.
    June 11, 1976.

      Love, Love & Lawrence, Talladega, for appellants.
    Otis R. Burton, Jr., Talladega, for appel-lees.
   FAULKNER, Justice.

This is an appeal from a judgment of the Circuit Court of Talladega County, quieting title to certain land in W. H. Mathis and Sam Carpenter. We affirm.

J. Taylor Johnson allegedly conveyed a certain tract of land to his son, John F. Johnson and minor grandchildren, John Terry Johnson and Johnny Mack Johnson, by a deed dated August 2, 1968. Johnson’s testimony tended to show that after signing the deed, J. Taylor Johnson gave it to John Terry Johnson, who gave it to his father, John F. Johnson. The deed was never recorded. Subsequently, the deed was returned to J. Taylor Johnson by his son. After gaining possession of the deed, J. Taylor Johnson marked through the names of the minors, leaving only the name of his son as grantee. He testified that he thought he could not deed the land to minors. He recorded the altered deed on November 3,1969.

The evidence further showed that John F. Johnson and wife reconveyed the land to J. Taylor Johnson, who then attempted to sell it to William Payton, on September 8, 1972. A title examiner advised Payton against buying the property, and Payton and J. Taylor Johnson exchanged money and a deed to the property. Now Johnson had Payton’s deed reconveying the land to him, and Payton had his money returned. After receiving the deed from Payton, Johnson sold the property to William J. Gardner on March 31, 1974. This deed was recorded on April 19. Gardner conveyed the land to Mathis and Carpenter by deed dated April IS, that was recorded April 22, 1974.

Meanwhile, a deed from J. Taylor Johnson to the minor grantees dated September 7, 1972, was recorded May 30, 1974. During the time Johnson allegedly had conveyed the land to the minor grantees, it appears he continued to assess the property in his name, pay the taxes thereon, and exercise dominion over the property. Furthermore, he never offered to return the money received from the sale to Gardner.

The Johnsons contend the principal issue for review is: “Where several grantees are named in a deed properly executed and delivered by the grantor to one of the grantees and the grantor, subsequent to execution and delivery of the deed, reacquires possession of the deed and ‘marks out’ or ‘marks over’ the names of some of the grantees without their knowledge or consent, are those grantees divested of their interest in the property conveyed by the deed?” On the contrary, Mathis and Carpenter contend there was no valid delivery of the deed to the Johnsons. The trial court agreed with them, and found there was never an unconditional conveyance, nor delivery of the deed from J. Taylor Johnson to any minor grantee.

This court said in Gulf Red Cedar Lumber Co. v. O’Neal, 131 Ala. 117, 30 So. 466 (1901):

“It is well settled in this state, whatever may be the rule elsewhere, that whenever a deed has been fully executed and delivered, it passes title to the grantee therein, which cannot thereafter at law be divested by a mere change in the deed itself, with or without the consent of the grantee; and that when, after due signature and attestation of a conveyance the grantor files it in the prohate office for record, this constitutes a sufficient delivery, completing the execution and delivery of the instrument.” (Emphasis added.)

This court spoke to the question of delivery of a deed in Gulf Red Cedar Co. v. Crenshaw et al., 169 Ala. 606, S3 So. 812 (1910), saying:

“It is an elementary principle that a deed does not become operative until a delivery, notwithstanding it may be signed and attested or acknowledged. There are also various and sundry ways of making a delivery. No formality, no particular words, no certain acts, are essential to a valid delivery of a deed. The fact rests in intention, and is to be collected from all the acts and declarations of the parties having relation to it. It may be actual, by a transfer of the conveyance, signed and attested, or acknowledged, from the manual possession of the grantor, to the manual possession of the grantee, though not a word is spoken, or it may be by saying something and doing nothing. No particular words are essential if they signify the grant- or’s intention to part with the dominion over it, and to pass it to the grantee. ‘Whenever there is a clear manifestation of the intention of the grantor in a deed, in all other respects properly executed, to part with the possession and dominion of it, and to transfer it to the grantor [sic, grantee], the delivery is complete.’ ” (Emphasis added.)

The trial judge heard the evidence ore tenus, and stated in the order overruling the motion for new trial, “[T]he evidence . . . convinced the Court and the Court so found that there was never an unconditional conveyance nor delivery of a deed from J. Taylor Johnson to the land in question to any minor grantee . . . ” We have reviewed the evidence, and from it, we cannot say the decree is plainly and palpably wrong, and it should not be disturbed. McClurkin v. McClurkin, 206 Ala. 513, 90 So. 917 (1921).

AFFIRMED.

HEFLIN, C. J., and BLOODWORTH, ALMON, and EMBRY, JJ., concur.


text:
    UNDERWRITERS NATIONAL ASSURANCE COMPANY, a corporation, v. Carl Preston POSEY.
    SC 1394.
    Supreme Court of Alabama.
    June 11, 1976.

      James L. Hunt, Tuscumbia, for appellant.
    Charles D. Rosser, Tuscumbia, for appel-lee.
   EMBRY, Justice.

Underwriters National Assurance Company (Underwriters), a Corporation, defendant below, appeals from judgments on jury verdicts in favor of Carl Preston Po-sey (Posey), plaintiff below, in two separate suits consolidated for trial. We affirm.

Case

Posey filed two actions against Underwriters, claiming damages, under the complaints as amended, in the amounts of $9,400 and $9,539 respectively. Posey alleged the monies were due under two insurance policies, each providing for disability income and “accident-medical benefits.” His claim is based on the allegation that his losses were the result of injuries suffered in an “accident.”

The actions were consolidated for trial. The jury returned a verdict for Posey in the amount of $9,400 in the first action and $4,000 in the second. Judgments were entered accordingly. Underwriters’ motion for a new trial was denied.

Facts

In 1968 Posey purchased two insurance policies from Underwriters. Each policy provided three types of benefits relative to this case. Each policy provided for disability income, in the amount of $200 monthly, for a period of twenty-four months where disability resulted from sickness and for life where such disability was the result of an accident. Each provided a $5,000 benefit for the loss of sight, and of both eyes, up to $1,000 for actual medical expense (“accident-medical benefits”). The second policy, however, contained a special endorsement precluding duplication of “accident-medical benefits” under the two policies.

During the years 1969 and 1970 Posey was involved in three automobile accidents. In each, Posey suffered injury above or around one of his eyes, in addition to being rendered unconscious on one of the occasions. After the first accident, Posey was fitted for, and wore eye glasses, for the first time. Some time after the third accident he began to lose his vision and eventually lost the sight of both eyes. By February of 1971, he was unable to drive his auto or operate his cotton picking machine. At that time Underwriters began paying $200 disability income benefits on a monthly basis. It continued to do so for twenty-four months. It discontinued those payments in February of 1973 coptending that loss of sight by Posey was due to a disease rather than from “an accident.”

From a time just after the first accident, in 1969, until initiation of these actions, Posey was examined by eight physicians from three states. Evidence (testimony of a Dr. Hightower) was presented by Posey to the effect that his loss of sight was the result of optic atrophy precipitated by injuries incurred in the three auto accidents. Underwriters presented evidence indicating that Posey’s loss of sight was not caused by injuries from “accident,” but was caused by disease.

Issues

(1) Did plaintiff’s redirect examination of Dr. Hightower cause illegal evidence to be admitted that entitled defendant to rebut with further illegal evidence ?

(2) Were the verdicts rendered by the jury inconsistent and irreconcilable so that a new trial is required ?

(3) Did the trial court err to the prejudice of defendant by not instructing the jury in its oral charge that:

“ * * * If on the other hand, you are not reasonably satisfied of the truth of the plaintiff’s claim, you should find for the defendant, * * * ” ?

Decision

(1) We answer number one (1) in the negative. The evidence admitted amounts merely to reiteration on redirect examination by Posey, of Dr. Hightower’s opinion as to the cause of plaintiff’s loss of vision. Moreover, the record shows no objection by Underwriters to any of the questions put to Dr. Hightower on redirect examination. Neither does the record reveal any objection to Underwriters’ questions, put to the doctor on recross, nor was its recross examination restricted in any way by the trial court. No error occurred relating to issue (1) posed by appellant. Since appellant raises these questions for the first time on appeal, even had there been error, it could not be the basis of reversal. McDuffie v. Hooper, 294 Ala. 293, 315 So.2d 573; Fountain v. Vredenburgh Saw Mill Co., 279 Ala. 68, 181 So.2d 508.

(2) Appellant contends the jury verdicts are inconsistent and irreconcilable, therefore the judgments should be reversed. The inconsistency complained of lies in the discrepancy in the amount of money damages awarded by the verdicts. The two suits brought by plaintiff are identical; are based on insurance policies providing for identically the same benefits, except by endorsement to the second policy duplication of “accident-medical benefits” is precluded.

When two actions are tried together, and inconsistent verdicts are rendered, sound practice requires that both verdicts be set aside without attempt by analysis of the evidence to determine which result the jury intended. This rule of law is based upon the principle that, where verdicts are inconsistent on their face the jury has misconceived the issues presented, or was prompted by bias. Smith v. Richardson, 277 Ala. 389, 171 So.2d 96; Sibley v. Odum, 257 Ala. 292, 58 So.2d 896; Carter v. Franklin, 234 Ala. 116, 173 So. 861. Here the verdicts are consistent on their face. The rule enunciated in the cited cases is therefore not applicable to this case.

Here the only difference between the verdicts is in the amount of damages awarded the plaintiff by each. The in-tendments of the jury are clearly ascertainable from each verdict. In both cases the jury found for the plaintiff and against the defendant. The amount of damages awarded in each action differed, but, that does not indicate the jury misconceived the issues. There were no inconsistencies which indicated the jury either misconceived the issues or that bias prompted the verdicts.

(3) Underwriters contends the trial court gave undue emphasis to plaintiff’s case by instructing the jury:

“ * * * If you are reasonably satisfied from the evidence in this case that they (sic) plaintiff’s claim is true, then you should find for the plaintiff under his claim in each case. * * * ”

It argues that giving this portion of the oral charge without stating the contrary proposition was misleading and should have been clarified by the trial court when exception was taken.

Under Rule 51, ARCP, reversible error occurs only where that error is prejudicial, when the trial court’s instructions are viewed as an entity. Dumas v. Dumas Brothers Manufacturing Co., Inc., 295 Ala. 370, 330 So.2d 426; Taylor v. Owen, 294 Ala. 543, 319 So.2d 672; Alabama Power Co. v. Tatum, 293 Ala. 500, 306 So.2d 251. In this case the trial court instructed the jury that the burden was on plaintiff to prove, to the reasonable satisfaction of the jury, all of the material allegations in his claim. The quoted portion of the court’s oral charge was not misleading. It was a correct statement of plaintiff’s burden of proof, too axiomatic to call for citation of authority. To require the trial court to instruct that plaintiff’s failure to carry this burden requires finding for defendant denigrates the intelligence of the jury.

The contentions of appellant fail to convince us there exists, either in the complained of “admissions of evidence” or in the trial court’s oral charge, any prejudicial error. Furthermore, the jury verdicts are not inconsistent. For these reasons, the judgments from which Underwriters has taken this appeal are due to be affirmed.

AFFIRMED.

BLOODWORTH, FAULKNER, AL-MON and BEATTY, JJ., concur.


author: WRIGHT, Presiding Judge.

text:
    STATE of Alabama v. Morris S. DEES, Jr., d/b/a M & M Enterprises.
    Civ. 602.
    Court of Civil Appeals of Alabama.
    March 31, 1976.
    Rehearing Denied May 5, 1976.

      William J. Baxley, Atty. Gen., William H. Burton, Acting Chief Counsel, Dept, of Revenue and Asst. Atty. Gen, and Herbert I. Burson, Jr., Asst. Counsel, Dept, of Revenue and Asst. Atty. Gen., for the State.
    J. Doyle Fuller, Montgomery, for appel-lee.
   WRIGHT, Presiding Judge.

The State appeals from an order of the Montgomery County Circuit Court holding void a $1,660.12 assessment against taxpayer for use tax. Affirmed.

The State contends taxpayer owes use tax on an airplane purchased for $95,000.00 in Montgomery, in 1969. Taxpayer posted a notice at the Montgomery airport that he desired to purchase a plane. He was subsequently contacted by a representative of Jack Adams Aircraft Sales, Inc., of Walls, Mississippi. A plane was later brought to Montgomery for taxpayer’s viewing. After discussion and bargaining, an agreement for purchase was reached. The purchase was completed and delivery accepted in Montgomery.

Several days later taxpayer received documents from the seller designating the transaction as an interstate sale. Taxpayer refused to sign these documents. His position at trial and on appeal is that the sale was made in Montgomery — an intrastate sale, and was subject to sales tax rather than use tax.

Simply stated the State’s position is that it was entitled to collect use tax on the airplane. If the seller had been a use tax collector, the tax would have been collected from the seller. As the seller was not a use tax collector, the State chose to collect the use tax from taxpayer.

The seller, though selling aircraft through representatives coming into this state from Mississippi, did not maintain a place of business in Alabama, nor was it a retailer authorized by the Department of Revenue to collect use tax under Title 51, Section 788 of the Code of Alabama (1940). Most of the seller’s business dealings in Alabama were wholesale sales to Alabama retailers. However, there were exhibits tending to show that in years prior to the instant sale Adams had made retail sales in Alabama to users and consumers. Assessments for use tax as a collector had been made against Adams by the Department of Revenue, but such tax was never collected.

The State assessed use tax against the taxpayer under the provisions of Title 51, Section 788(c) which provides the following:

“An excise tax is hereby imposed on the storage, use or other consumption in this state of any automotive vehicle . . purchased at retail . . . for storage, use or other consumption in this state at the rate of one and one-half percent of the sales price .
“Every person storing, using or other-vlise consuming in this state tangible personal property purchased at retail shall be liable for the tax imposed by this article, and the liability shall not be extinguished until the tax has been paid to this state; provided, however, that a receipt from a retailer maintaining a place of business in this state or a retailer authorized by the department, under such rules and regulations as it may prescribe, to collect the tax imposed hereby and who shall for the purpose of this article be regarded as a retailer maintaining a place of business in this state, given to the purchaser in accordance with the provisions of section 791 of this title, shall be sufficient to relieve the purchaser from further liability for tax to which such receipt may refer.”

Though on the face of the transaction and under the statute it would appear that taxpayer is liable for the tax upon the use and consumption of the airplane purchased, such is not the case. Why so ? Because the section following, Section 789, provides:

“The storage, use or other consumption in this state of the following tangible personal property is hereby specifically exempted from the tax imposed by this article: (a) Property, the gross proceeds of sales of which are required to be included in the measure of the tax imposed by the provisions of article 10 of this chapter.”

The Supreme Court of Alabama in the case of Layne Central Co. v. Curry, 243 Ala. 165, 8 So.2d 839, said that the above provision of Section 789 means that the use tax does not apply to sales effected within the State of Alabama, but only to sales effected in interstate commerce. That statement was repeated and reinforced by further amplifications by the court in the decision of Paramount-Richards Theatres v. State, 256 Ala. 515, 55 So.2d 812. In that decision the court said:

“Alabama is one of the states which has adopted two separate acts for the purpose of imposing a tax upon, or with respect to, or measured by, the retail sale of tangible personal property. .
“The Sales Tax Act applies to retail sales within the state. The Use Tax Act is designed to apply only to sales (or purchases) made in interstate commerce, or sales (or purchases) made outside of the state of goods thereafter brought into the state for use by the purchaser.”

Though Adams Aircraft is a Mississippi Corporation, does not maintain a place of business in Alabama and is not licensed under the provisions of the Sales Tax Act, it nevertheless, at least on the occasion of this transaction, engaged in the business of selling an airplane in this state at retail to a resident of the state. By doing so it fell squarely within the terms of the Sales Tax Act and specifically, Section 753 of Title 51. The sale of property at retail within the state of Alabama being subject to sales tax, its use or consumption is exempt from the provisions of the Use Tax Act. Section 789(a), Title 51, Code. It was stipulated in the trial court that the negotiation of sale was begun and concluded in Alabama. The price was paid and delivery made in Alabama. The sale was made directly for the use or consumption of the purchaser. It was a retail sale subject to sales tax upon the gross sales price. Construing the Sales Tax Act in para materia with the Use Tax Act, the sale was subject to sales tax. The use or consumption of the property was exempt from use tax.

The judgment of the trial court was correct and we affirm.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: SHORES, Justice.

text:
    In re STATE of Alabama v. Morris S. DEES d/b/a M & M Enterprises. Ex parte State of Alabama.
    SC 1852.
    Supreme Court of Alabama.
    July 2, 1976.
    William J. Baxley, Atty. Gen., Willard W. Livingston, Chief Legal Counsel, Dept, of Revenue, and Asst. Atty. Gen., and Herbert I. Burson, Asst. Counsel, Dept, of Revenue, and Asst. Atty. Gen., for petitioner, the State.
    None for respondent.
   SHORES, Justice.

Petition of the State of Alabama for Certiorari to the Court of Civil Appeals to review and revise the judgment and decision of that Court in State of Ala. v. Dees, d/b/a M&M Enterprises, 57 Ala.App. -, 333 So.2d 818.

WRIT DENIED.

HEFLIN, C. J., and MADDOX, JONES and BEATTY, JJ., concur.


text:
    Bedford H. CLARY et al. v. The CENTRAL FOUNDRY CO., and Tom J. Ventress.
    Civ. 620.
    Court of Civil Appeals of Alabama.
    Dec. 10, 1975.
    Kehearing Denied Jan. 7, 1976.
    Drake & Knowles, University, for appellants.

      Hubbard, Waldrop & Jenkins, Tuscaloosa, and Richard S. Brooks, Asst. Gen. Counsel, The Dept, of Industrial Relations, Montgomery, for appellees.
   WRIGHT, Presiding Judge.

Claimants appeal from judgment in circuit court denying unemployment compensation.

Claimants are members of two unions: Local 311 of the International Molders and Allied Workers, and Local 199 of the Office and Professional Employees International Union. Claimants filed individual claims for compensation with the Alabama Department of Industrial Relations, acting as class or test claimants for all other similarly situated members of their respective unions. After denial of their initial claims a hearing was held by an appeals referee. Extensive testimony was taken before the referee. The referee denied the claims. In subsequent review the Board of Appeals affirmed. Appeal from the decision of the Board of Appeals was filed in the Circuit Court of Tuscaloosa County. Such appeal by statute, Title 26, Sec. 221, is by trial de novo. The appeal was filed as a class action under Rule 23, ARCP. By agreement the matter was presented to the trial judge upon the certified transcript of the proceedings before the appeals referee and a stipulation. It was stipulated that the action was a proper class action under Rule 23, ARCP and that all requirements of a proceeding under the rule had been met and satisfied.

Upon consideration of the testimony and stipulation, the trial court found for the defendant and claimants appeal.

The claims for unemployment compensation arose on December 11, 1973 when members of the Machinists Union at Central Foundry in Tuscaloosa went on strike and set up picket lines at the entrances to the plant. Though the plant was open and supervisory personnel and others were working, claimants did not cross the picket lines and work. Their claims for compensation were denied because their unemployment was directly due to a labor dispute in progress at their place of employment.

Title 26, Sec. 214, Code of Alabama (1940) provides as follows:

“An individual shall be disqualified for total or partial unemployment:

“A. For any week in which his total or partial unemployment is directly due to a labor dispute still in active progress in the establishment in which he is or was last employed; . . . .”

To the disqualification provided by the statute, the Supreme Court of Alabama by construction has established an exception. That exception is founded upon the proposition that an employee who does not participate in the strike and does not cross a picket line because he has a reasonable fear of violence is not unemployed voluntarily. The Supreme Court said in Ex parte McCleney, 286 Ala. 288, 239 So.2d 311 as follows:

“We think that the ‘violence exception’ is reasonable and that the legislature never intended that an employee be denied unemployment benefits if his unemployment was involuntary because he was prevented by personal violence or a well-grounded fear of same from entering the premises of his employing establishment.”

Having established the violence exception to the statute, the court specified that the exception was to be “narrowly restricted.” It cast the burden of proof upon the claimant to bring himself within the exception. The court further specifically set out the elements of proof necessary to establish the right to the violence exception. In doing so the court said as follows:

“To qualify for unemployment compensation, the burden of proof is on the claimant to show (1) that he was willing to cross a peaceful picket line . . .; (2) that he made a reasonable attempt to cross the picket line in question; (3) that claimant’s sole reason for failing to cross the picket line was a well-founded and reasonable apprehension of violence to his person. . . . We use the word ‘sole’ as contrasted with refusing to cross a picket line because of union beliefs, sympathy with other strikers, pangs of conscience, or adherence to union principles. (Citations omitted.) Ex parte McCleney, supra, p. 292, 239 So.2d p. 315.

In a previous case, Holmes v. Rice, 49 Ala.App. 219, 270 So.2d 92, involving a strike in 1969 by the same union as here, this court attempted to apply the elements of proof set out in McCleney other than conjunctively. We were quickly corrected on certiorari by the Supreme Court. Ventress v. Rice, 289 Ala. 631, 270 So.2d 100 (1972). It was made plain in the opinion of the Supreme Court that the requirements of McCleney quoted hereinabove were each necessary to be proved conjunc-tively in order to establish the violence exception. We are bound by that decision.

We have carefully examined the testimony of the claimants in this case in light of the requirements of proof established by Ex parte McCleney, supra, and restated in Ventress v. Rice, supra. It is our conclusion that the claimants failed to meet the burden of proof to establish the violence exception to the provisions of Title 26, Sec. 214A.

Of the various claimants who testified, none stated that he attempted to cross the picket line. Some of the claimants never came to the plant during the strike. There was no testimony of violence on the picket line. There was only one instance of alleged violence occurring away from the picket line, and the instigators of that instance were not identified as strikers. One claimant stated he came to the plant entrance on December 12, 1973 and told a picket he was going to work. He stated the picket told him, “I’ll tell you one damn thing, you ain’t going to come out.” He made no effort to cross the picket line. Each of the claimants said they did not work because of fear of violence. Such fear was largely stated to be founded upon occurrences of violence in prior strikes of 1962 and 1969. Some claimants stated they refused to cross the picket line because of a clause in their union contract permitting them to refrain from crossing a lawful picket line established by another union. One claimant contacted his International representative and was advised not to cross the picket line on account of bodily harm.

The testimony failed to show any mass picketing or any violence occurring on the line until nearly two months after the strike began.

In the absence of any finding of fact or conclusions of law in the judgment of the trial court, we are compelled to conclude that the court deemed the evidence insufficient to support the burden cast upon claimants to prove they were entitled to compensation under the “violence exception” to the statute. Our review of the evidence supports the judgment of the trial court. Therefore, on authority of the decisions in Ex parte McCleney, supra, and Ventress v. Rice, supra, we affirm.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.