author: SMITH, Presiding Justice,

text:
    J. C. PENNEY COMPANY, INC. and V. A. Taylor v. Gloria Hughes BLUSH.
    No. 50044.
    Supreme Court of Mississippi.
    March 22, 1978.

      Daniel, Coker, Horton, Bell & Dukes, John B. Clark, Jackson, for appellants.
    Upshaw, Dorizas & Ladner, Angelo J. Dorizas, Don H. Evans, Jackson, for appel-lee.
    Before SMITH, P. J., and ROBERTSON and LEE, JJ.
   SMITH, Presiding Justice,

for the Court:

J. C. Penney Company Inc. and V. A. Taylor appeal from a $5,000 judgment entered against them by the Circuit Court of the First Judicial District of Hinds County in a suit for malicious prosecution brought by Gloria Hughes Blush. There is no cross appeal.

The incident which gave rise to the suit occurred at about 5:30 in the afternoon at the J. C. Penney Store in Jackson Mall. Mrs. Blush testified that she had gone there for the purpose of buying presents for a Christmas party. She entered through the east door and stopped by the cosmetics department where she picked up two sticks of eyeliner and a stick of lip gloss. She proceeded to the purse rack located twenty or thirty steps away where she knelt down, allegedly to get her billfold out of her purse to determine whether she had enough money to buy one of the purses. She testified that she put the eyeliner and lip gloss on top of her purse and got up to walk away when V. A. Taylor, Security Guard for J. C. Penney Company, asked her to accompany him. She went with Taylor to the store office where the cosmetic items were marked for identification and the police were called. Mrs. Blush was taken to the police station and fingerprinted. After remaining in jail for about two hours bond was posted and she was released.

She was charged with the crime of shoplifting and was tried and convicted of this charge in Jackson Municipal Court. From that conviction she appealed to county court where the case was tried de novo and a jury returned a verdict of not guilty.

Mrs. Blush filed her declaration in the circuit court against appellants charging them with malicious prosecution and demanding damages. The case was submitted to a jury which returned a verdict for Mrs. Blush in the amount of $5,000 as actual damages. Although the issue was submitted, the jury declined to return punitive damages.

Of the matters assigned as error, several appear to be well taken. Upon the trial of the case, Mrs. Blush testified as a witness in her own behalf. Appellants attempted to develop from her the admission that she had been tried and convicted in municipal court on the charge of shoplifting. Upon objection, the court and counsel retired to chambers. Out of the presence of the jury counsel for Mrs. Blush stated to the trial court:

Your Honor, I believe that this line of questioning is going into the fact that Mrs. Hughes was convicted in City Court of the crime of shoplifting and that she appealed de novo to the County Court, where the jury acquitted her.

The court responded:

I’m inclined to agree with you, but not on that reason. I think the eventual outcome of the criminal matter is what determines the situation. (Emphasis added).

After further argument and submission of authorities, the court sustained the objection and said:

. [Ijt’s elemental that the County Court appeal supercedes the conviction in the City Court and completely sets it aside, and I think it would be highly improper to go into the conviction in City Court. Everyone admits that it was appealed and tried de novo in County Court, and acquitted. So the objection is sustained.

The court’s action in refusing to allow appellants to develop from Mrs. Blush the fact that she had been convicted of the charge in municipal court was error and requires reversal.

In Brooks v. Super Service, Inc., 183 Miss. 833, 183 So. 484 (1938), suggestion of error overruled, 183 Miss. 843, 185 So. 202 (1938), this Court stated:

A judgment of conviction whether reversed or not has the same evidential value on the question of probable cause for instituting the prosecution. There are three lines of cases dealing with the effect of a judgment of conviction on the question of probable cause for instituting the prosecution.
(1) It is conclusive evidence thereof. (2) It is conclusive evidence thereof unless it was obtained by fraud, perjury, or other corrupt means. This is the rule of the majority of the cases and is that adopted in 3 Rest. Tort, Section 667. (3) It is only prima facie evidence thereof and may be rebutted by any competent evidence which clearly overcomes the presumption that arises from the fact of the defendant’s conviction. The first of this line of cases we unhesitatingly decline to follow, but it will not be necessary for us to here determine with which of the other two lines of cases we will align ourselves for the case presented by the declaration will come within both.
(183 Miss, at 844-845, 185 So. at 202).

Under the principle laid down in Brooks, supra, it is clear that evidence of the conviction of Mrs. Blush in city court, although she was later acquitted in county court, was not only admissible upon the fundamental issue in the case sub judice, which was probable cause, but was prima facie evidence that probable cause existed. See also Hyde Construction Co., Inc. v. Koehring Co., 387 F.Supp. 702, 713 (S.D.Miss.1974), 52 Am.Jur.2d Malicious Prosecution, § 179 (1970).

Appellants were entitled to develop the fact of the conviction before the jury by cross-examination of the plaintiff and it was not necessary, unless she denied the conviction, to introduce a certified copy of the court record. As far as the fact of the conviction was concerned, it is not in dispute and was expressly conceded by counsel for plaintiff.

Also assigned as reversible error is the action of the trial court in refusing to grant defendant’s requested instruction D-7. This instruction was in the following language:

The court instructs the jury that the fact that the criminal prosecution against plaintiff was eventually terminated in her favor is not enough to show that the defendants acted with malice or without probable cause. The question of whether malice and a lack of probable cause existed is to be determined from a preponderance of the credible evidence in this case.

The refusal to grant this instruction was error. The issue was not whether the prosecution ultimately resulted in a verdict of acquittal in the criminal case but whether there had been probable cause for the action taken by appellants. Probable cause merely means “reasonable cause.” Black’s Law Dictionary (1968). It has been defined as a reasonable ground for belief in the existence of facts warranting the proceedings complained of. Owens v. Graetzel, 149 Md. 689, 132 A. 265, 267. In other words, the issue was whether the facts and circumstances upon which appellants acted were such as to constitute probable cause or reasonable ground for their belief that appellee was engaged in shoplifting or whether their actions were unreasonable under the circumstances and prompted by malice against Mrs. Blush.

While evidence of Mrs. Blush’s acquittal is relevant upon the issue of probable cause, it is neither exclusive nor conclusive upon that issue. The quantum of evidence required to convict in a criminal case is different and is greater than in civil proceedings. In the criminal case, proof beyond a reasonable doubt is necessary and a verdict of acquittal means no more than that the evidence did not remove from the jurors’ minds every reasonable doubt of guilt. The jury in the case now before us must reach its decision upon the basis of a preponderance of the evidence and not upon the single fact of the ultimate acquittal of appel-lee by a jury on the criminal charge. Allen v. Ritter, 235 So.2d 253 (Miss.1970).

The prevalence of shoplifting and the difficulties of the merchant in coping with it was recognized by the Mississippi Legislature in the enactment of section 97-23-49 Mississippi Code Annotated (1972):

If any person shall wilfully conceal un-purchased goods, wares or merchandise owned or held by and offered or displayed for sale by any store or other mercantile establishment, whether such concealment be on his own person or otherwise and whether on or off the premises of said store or mercantile establishment, such concealment shall constitute prima facie evidence that such person intended to convert same to his own use without paying the purchase price therefor within the meaning of section 97-23-45; and the finding of such unpurchased goods, wares or merchandise concealed upon the person of or within or among the personal effects or belongings of such person shall constitute prima facie evidence of willful concealment; and if such person conceals, or causes to be concealed, such unpurchased goods, wares or merchandise upon the person or within or among the belongings or personal effects of another, the finding of same shall also be prima facie evidence of willful concealment on the part of the person so concealing such goods, wares or merchandise.

Appellant Taylor and a Mrs. Tuberville, Security Guards for the J. C. Penney Company, testified that appellee had knelt down by the purse rack and had concealed the one stick of lip gloss and two sticks of eyeliner in her purse. Their testimony was that Taylor had Mrs. Blush under observation the entire time. They also testified that Mrs. Blush had told them that she had never done such a thing before and had asked if she might pay for the items in question. This was denied by Mrs. Blush.

For the errors mentioned above, the case must be reversed and remanded for another trial.

In addition to the above errors it is necessary to mention two other matters which occurred in connection with the trial. Appellee was allowed to introduce into evidence a letter she said she had received, purporting to be from an inmate at Parch-man. This letter stated, among other things, that the writer had read that she had been “busted” in a list of persons “busted” in the Jackson area. It purported to contain an invitation to her to go into “business” with him. This unauthentieated letter contained a great deal of other extraneous matter of a prejudicial nature. The conviction of Mrs. Blush in municipal court is an admitted fact and was a matter likely to be noted in the press. The objection to this letter should have been sustained. There was no authentication of this letter, its contents were hearsay, and whatever probative value (if any) it may have had, the irrelevant and prejudicial matter it contained far outweighed it. If this were the only error in the case it might not be necessary to reverse but it should not be permitted in evidence upon a retrial of the case.

The second incident that requires comment is that one of appellee’s attorneys telephoned V. A. Taylor, one of the appellants, and engaged him in a conversation about the case. This attorney recorded the conversation on tape without informing Taylor. When Taylor testified he was told for the first time that the conversation had been recorded. The same attorney, who was representing appellee in the trial of the case, took the stand as a witness in her behalf and testified the tape had not been altered by erasure or otherwise as Taylor claimed. He then also argued the case to the jury on behalf of plaintiff and told the jury in argument that he, not Taylor, was telling the truth about the condition of the tape. Somewhere along the line the tape seems to have been lost or destroyed and for that reason the question may not again arise. The propriety of the attorney’s action in taping the telephone conversation without informing the person called that he was doing so, and in testifying as a witness to vouch for the condition and contents of the tape and in arguing to the jury that his testimony as a witness was true, are questioned on appeal. While the exact situation does not seem to have been dealt with by this Court heretofore, a somewhat similar problem was discussed in Valley Dry Goods v. Buford, 114 Miss. 414, 75 So. 252 (1917).

In the opening argument for the plaintiff Senator Murray, one of counsel for plaintiff, stated that he believed Miss Buford was a truthful woman, believed every word she said on the witness stand, and believed she was telling the truth, which statements were objected to, and are complained of here. Whatever may be said of the propriety from an ethical standpoint of this language, we do not think that there is any error that would reverse the case. Counsel must be allowed wide latitude in their arguments. They are employed to present one side of the cause to the jury and must be allowed wide discretion as to methods in presenting their arguments. We assume the jury would expect counsel to believe his client whether the jury believed it or not. We do not think the jury would be misled by an expression of belief by an attorney in the case.
(114 Miss, at 428-429, 75 So. at 255).

As to the ethical considerations involved in the secret taping of the conversation, the dual role of an attorney testifying as a witness in a case in which he was also actively engaged in representing one of the parties, plus his argument to the jury bolstering the credibility of his own testimony, we quote from Formal Opinion 337, ABA Committee On Ethics And Professional Responsibility, August 10, 1974:

. With the exception noted in the last paragraph, [extraordinary circumstances where the Attorney General or one acting under his direction may use secret recordings] the Committee concludes that no lawyer should record any conversation whether by tapes or other electronic device, without the consent or prior knowledge of all parties to the conversation.

Code of Professional Responsibility, Disciplinary Rule 7-106(C)(4), states:

In appearing in his professional capacity before a tribunal, a lawyer shall not: . (4) Assert his personal opinion as to the justness of a cause, as to the credibility of a witness, . . . (Emphasis added).

We consider the principles enunciated to be sound and suggest that, upon retrial, they be borne in mind and adhered to by counsel.

The case is reversed and remanded for a new trial.

REVERSED AND REMANDED.

PATTERSON, C. J., and ROBERTSON, SUGG, WALKER, BROOM, LEE and COF-ER, JJ., concur.

BOWLING, J., took no part.


source: Caselaw Access Project

author: JONES, Justice. MADDOX, Justice BEATTY, Justice

license: Public Domain

text:
    UNITED STATES FIDELITY & GUARANTY COMPANY, a corporation v. Robert A. JONES.
    SC 2449.
    Supreme Court of Alabama.
    Dec. 9, 1977.
    As Corrected on Denial of Rehearing April 7, 1978.
    Spain, Gillon, Riley, Tate & Etheredge and Allwin E. Horn III, Birmingham, for appellant.
    Lydia Quarles of Emond & Vines, Birmingham, for appellee.
   JONES, Justice.

This appeal brings for review the judgment of the Circuit Court of Jefferson County, the Honorable Ingram Beasley, presiding, in a personal injury suit pursuant to Tit. 26, § 312. On September 28, 1976, the jury returned a verdict against United States Fidelity & Guaranty Company for the sum of $21,425 for alleged injuries to Robert A. Jones resulting from an industrial accident proximately caused by Appellant’s negligent inspections. The trial Court granted a credit of $4,150 for workmen’s compensation benefits previously paid, thus reducing the total judgment to $17,275.

On May 1, 1974, Jones, a millwright with the Daniel Construction Company, suffered injuries when he fell from a scaffold while cleaning a turbine at the Farley Nuclear Plant near Dothan. This action is based upon Appellant’s alleged negligent inspection of that plant, and, more particularly, of the scaffold work area.

The scaffolding surroundéd the turbine at a height of eighteen feet. Jones, while cleaning the turbine with an air hose, fell through a gap in the boards which crossed the turbine from the scaffolding on one side to the other. These crossing boards were lapped and nailed together. A hole, approximately twelve inches square, remained, however; and it is through this hole that Jones fell and was injured.

As the workmen’s compensation insurance carrier for Daniel, U.S.F.&G. was authorized (but not required) to perform certain safety inspections of the job site. It is undisputed that agents of U.S.F.&G. had performed inspections, approximately monthly, for several years prior to the injury made the basis of this suit. The jury found that Jones’s injuries were proximately caused by U.S.F.&G.’s negligent inspections of the premises, and judgment was entered pursuant to the reduced verdict amount. We affirm.

U.S.F.&G. contends that the trial Court committed error by not entering a directed verdict at the end of Jones’s evidence, and, again, at the end of all the evidence. Under established Alabama law, the function of an appellate court in reviewing a motion for directed verdict is to review the tendencies of the evidence most favorably to the nonmoving party. Beloit Corp. v. Harrell, 339 So.2d 992 (Ala.1976); Alabama Power Co. v. Taylor, 293 Ala. 484, 306 So.2d 236 (1975). Thereafter, it is only where there is no evidence tending to support the plaintiff’s case that the Court may direct a verdict for the defendant. Rule 50(e), ARCP; Stonewall Insurance Co. v. Lowe, 291 Ala. 548, 284 So.2d 254 (1973); and Merchants Bank v. Cotton, 289 Ala. 606, 269 So.2d 875 (1972).

U.S.F.&G. insists that a party may be found guilty of a negligent gratuitous inspection only where compliance with the Second Restatement of Torts has been shown. It asserts that no evidence was introduced in support of either of the three types of tort found in the applicable section of the Restatement.

The Restatement of Torts, Second, § 324A, provides:

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if
(a) his failure to exercise reasonable care increases the risk of such harm, or
(b) he has undertaken to perform a duty owed by the other to the third person, or
(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.

Beasley v. MacDonald Engineering Co., 287 Ala. 189, 249 So.2d 844 (1971), cites the Restatement as authority for its holding that Alabama recognizes the tort of negligent inspection by a workmen’s compensation insurance carrier. This, however, was merely persuasive authority for its recognition that the tort had, in effect, existed at common law. Beasley, at 193-94, 249 So.2d 844. See Macke v. Sutterer, 224 Ala. 681, 141 So. 651 (1932); and H. H. Parker & Brothers v. Hodgson, 172 Ala. 632, 55 So. 818 (1911). The law, simply stated, is that one who volunteers to act, though under no duty to do so, is thereafter charged with the duty of acting with due care. Beasley, supra. The record is replete with evidence that U.S.F.&G. did inspect the premises on a periodic basis. The hole in the platform was within sight of anyone in the vicinity; therefore, there was evidence from which the jury .could infer that the inspections were negligently performed. Thus, the motion for directed verdict was properly denied.

Moreover, even should we superimpose the three subsections of § 324A onto the facts of this case (a proposition clearly not required by Beasley), a directed verdict would not be proper. Though reliance by Jones was neither plead nor proven, the other two subsections remain viable. Restatement of Torts, Second, § 324A. (Note the conjunctive use of the word “or” following both subsections “[a]” and “[b]”); Nelson v. Union Wire Rope Corp., 31 Ill.2d 69, 199 N.E.2d 769 (1964); and 3 Cum.—Sam.L. Rev. 118 (1972).

As authority for its contention that the second subsection is similarly unsupported, U.S.F.&G. cites Davis v. Liberty Mutual Insurance Co., 525 F.2d 1204 (5th Cir. 1976); Tillman v. Traveler’s Indemnity Co., 506 F.2d 917 (5th Cir. 1975); and Stacy y. Aetna Casualty & Surety Co., 484 F.2d 289 (5th Cir. 1973). These cases hold, inter alia, that, because the employer had safety personnel of its own, and conducted safety meetings, the insurer (U.S.F.&G.) could not have “undertaken to perform a duty owed by the other [Daniel] to the third person [Jones].” This, however, overlooks the maxim that parties may be jointly and severally liable. U.S.F.&G. may be held liable regardless of the liability of Daniel; and this for the reason that U.S.F.&G. may be a contributing or joint tort-feasor. It is only the Workmen’s Compensation Acts which prevent suit against Daniel. Tit. 26, § 262, et seq., Code. See Gentry v. Swann Chemical Co., 234 Ala. 313, 174 So. 530 (1937). This, however, does not prevent the liability of U.S.F.&G. Beasley, supra; and Gentry, supra. Therefore, because there was sufficient evidence to submit this issue to the jury, the motion for directed verdict was properly denied.

Appellant next contends that contributory negligence was proved as a matter of law. The burden of this plea is upon the defendant. The question is one of law for the Court only when the facts are such that all reasonable men must draw the same conclusion therefrom. It is a question for the jury when, under the facts and circumstances, reasonable minds may fairly differ upon the issue of negligence. Baptist Medical Center v. Byars, 289 Ala. 713, 271 So.2d 847 (1972); Southern Railway Co. v. Carter, 276 Ala. 218, 160 So.2d 628 (1963); and Mackintosh v. Wells, 218 Ala. 260, 118 So. 276 (1928). This, however, cannot be viewed from the vantage of hindsight. The fact that a jury did not find contributory negligence is no evidence that it was properly submitted to the jury in the first instance.

Though it is apparent that Jones had knowledge of the hole, his appreciation of the danger of that opening, the voluntariness of his encounter with the danger, and his use of due care were issues properly submitted to the jury. Beasley, supra. As to these requisites of the defense of contributory negligence, the burden of proof rests upon U.S.F.&G.; and this issue, submitted on appropriate instructions, was resolved by the jury adverse to the defendant. Beloit, supra; Alabama Power Co. v. Mosley, 294 Ala. 394, 318 So.2d 260 (1975); Kingsberry Homes Corp. v. Ralston, 285 Ala. 600, 235 So.2d 371 (1970); and Mackintosh, supra.

Appellant’s other contentions are also without merit. The fact that the trial Judge incorrectly stated that Jones had alleged reliance in his complaint does not, necessarily, mandate reversal. Precise accuracy in the analysis of some concept is not required, and no new theory of recovery was introduced. Hammett v. Birmingham Railway, Light & Power Co., 202 Ala. 520, 81 So. 22 (1919). Further errors allegedly contained in the charge must be deemed harmless because the charge, when taken as a whole, is a sound and correct statement of the law. No prejudicial harm has been shown. Rule 61, ARCP; Underwriters National Assurance Co. v. Posey, 333 So.2d 815 (Ala.1976); Taylor v. Owen, 294 Ala. 543, 319 So.2d 672 (1975); and Pybus v. McKinney, 277 Ala. 419, 171 So.2d 235 (1965).

U.S.F.&G.’s assertion that certain requested charges were improvidently refused is also fallacious. The two charges concerning reliance (Nos. 83 and 84) were properly refused because they were misleading. Louisville & Nashville Railroad Co. v. State, 276 Ala. 99, 159 So.2d 458 (1963). Reliance is not an absolute requisite of the tort. Beasley, supra. The other charges (Nos. 9, 13, 19, 20, 21, 22, 23, 28, 38, 75 and 107) were properly refused because the Court’s oral charge substantially covered these subjects. Bateh v. Brown, 293 Ala. 704, 310 So.2d 186 (1975); and Walker County v. Davis, 221 Ala. 195, 128 So. 144 (1930).

Because the issues involved in this case were properly submitted to the jury, and because no error consists in the issues presented, the judgment of the trial Court is due to be affirmed.

AFFIRMED.

BLOODWORTH, FAULKNER, SHORES and EMBRY, JJ., concur.

TORBERT, C. J., and MADDOX, AL-MON and BEATTY, JJ., dissent.

MADDOX, Justice

(dissenting).

I respectfully dissent.

As I stated in my dissent in Beasley v. MacDonald Engineering Co., 287 Ala. 189, 249 So.2d 844 (1971), I thought that a workmen’s compensation insurer was assimilated to the employer. I still hold to that view. While this accident occurred in 1974, the legislature, in 1975, amended the definition of “employer” to leave no doubt that my interpretation in Beasley was correct. See Act No. 86, 4th Ex. Sess. 1975, p. 2729; codified as § 25-5-1, Code 1975.

I also believe the case should be reversed on the merits.

TORBERT, C. J., and ALMON, J., concur.

BEATTY, Justice

(dissenting).

I dissent.

The principal issue in this case is whether the defendant, USF&G, was negligent in its inspections of the Farley Nuclear Plant when it inspected the premises for the Daniel Construction Company. That is to say, there must have been evidence of negligent inspections.

The majority opinion states that “The record is replete with evidence that U.S. F.&G. did inspect the premises on a periodic basis. The hole in the platform was within sight of anyone in the vicinity; therefore, there was evidence from which the jury could infer that the inspections were negligently performed.” I take it that this means that because there was a hole in the platform visible to many, that the inspections were negligently performed.

I have searched the record and I do not find any evidence supporting the slightest inference that the inspections were negligently performed, and since the majority disagrees with this position, the least that should be done is to point out those parts of the record in which such an inference can be so easily disclosed.

On page 561-562 of the record the following exchange occurred:

[Testimony of Emmett George, Jr., Assistant Superintendent]:
“Q Were there any other openings in the floor of the scaffold that the men walked on?”
“A Only in the area around the rotor blades.”
“Q And, how big were those openings?”
“A I would approximate 10 or 12 inches.”
“Q Was it big enough for a man to fall through?”
“A I could probably get through it.”
“Q Was it necessary for those openings to be there ?” (emphasis added)
“A Tes.” (emphasis added)
“Q Could the size of the openings have been reduced?”
“A Do you want me to answer that?”
“Q Could the opening have been reduced?”
“Q Well, I want to know why the opening was that particular size.”
“A So that we wouldn’t have any trouble in rotating the rotor. You see, these blades on this thing were very expensive, and when you set these things, you have got to set them within a certain tolerance. They have to be welded in there. You have to grind, you have to magniflux and x-ray these things. For what he did, it was necessary.”
“Q So, you are saying that’s the absolute minimum the holes or openings could have been to serve the purpose that was needed?”
“A It could have been closer.”
“Q Could have been closer?”
“A But, under the circumstances and the way we were working, it was adequate.” (emphasis supplied)

On page 563-564 of the record the following exchange is reported:

“Q Were any complaints made to you or, if you know, to your father [the Superintendent] from anybody regarding the scaffold from which Robert Jones fell?”
“A No.”
“Q Were any written complaints made to you by anyone?”
“A No.”
“Q And no oral complaints were made?”
“A To the best of my recollection, no.”
“Q So, you are stating for the record that in regard to this particular scaffold, nobody ever made a complaint to you that it was unsafe or dangerous?”
“A No.”
“Q Do you know if anybody made such a complaint or complaints to you father?”
“A To the best of my recollection, they did not.”
“Q Now, if the scaffold that Jones was working on at that time had, in your opinion, been improperly constructed and was dangerous or unsafe, what would your duty have been as you understand your duty at that time as assistant superintendent? What would your duty have been under those circumstances?”
“A What I have done?”
“Q What would you have done if, in your opinion — ”
“A The scaffold was unsafe?”
“Q The scaffold that Jones fell from was unsafe or dangerous?”
“A I would stop the people from working on it until it was properly safe.”

I fail to see how any of this testimony establishes negligent inspections. I disagree with the majority’s conclusion on the merits and therefore I would reverse and remand for a new trial.

      . No. 86, S. 80, § 10, 1975 Ala. Acts, amends this section to exclude from liability workmen’s compensation insurance carriers. The case before us, however, arose prior to this amendment and is not governed by it.


author: EMBRY, Justice.

text:
    UNITED STATES FIDELITY AND GUARANTY COMPANY v. Rita McKINNON.
    SC 2438.
    Supreme Court of Alabama.
    Feb. 3, 1978.
    Rehearing Denied March 31, 1978.

      Barry McCrary of Dixon, Wooten, Boyett, McCrary & Thornton, Talladega, for appellant.
    Ray F. Robbins, II of Gaines, Hereford, Cleckler, Robbins & Blair, Talladega, for appellee.
   EMBRY, Justice.

Appeal by United States Fidelity and Guaranty Company from a judgment entered on a jury verdict in favor of Rita McKinnon.

Rita McKinnon filed an action against USF&G seeking damages for its denial of her claim under an uninsured motorists provision of a liability insurance policy issued to her mother, Mrs. Mary G. Haney. The complaint alleged:

Count I
“1. On or about the 30th day of March, 1975, on a public road in Munford, Talladega County, Alabama, one Gregory Gurley negligently or wantonly caused or allowed a motor vehicle to collide with a motor vehicle occupied by plaintiff, Rita McKinnon, and her husband, Johnny McKinnon.
“2. As a proximate consequence of said Gregory Gurley’s said negligence or wantonness, plaintiff was caused to suffer the following injuries and damages, to-wit:
“Plaintiff, Rita McKinnon, was bruised, contused, her leg was broken, her ankle was crushed, she was made sick and sore and she has been put to great expense and inconvenience for medical attention, doctor’s bills, hospital bills, drugs, etc., in and about her efforts to heal and cure the aforesaid injuries;
“Plaintiff’s husband, Johnny McKin-non, was bruised, contused, his leg was broken, he was made sick and sore, and plaintiff, Rita McKinnon, has been put to great expense and inconvenience for medical attention, doctor’s bills, hospital bills, drugs, etc., in and about her efforts to heal and cure the aforesaid injuries of her husband; plaintiff lost the services of her husband.
“3. At the time of the said accident said Gregory Gurley did not have a policy of liability insurance providing coverage for the automobile that he was driving. The defendant, United States Fidelity and Guaranty Company, had in full force and effect a policy of liability insurance insuring plaintiff. Plaintiff further avers that by the terms of said liability insurance policy in full force and effect which covered the plaintiff that United States Fidelity and Guaranty Company promised to pay all sums up to $10,000.00 which the insured or his legal representative, or any of his relatives shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injuries sustained by the insured or any relative caused by accident and arising out of ownership, maintenance or use of said uninsured automobile. Plaintiff avers that the said Gregory Gurley was the operator of an uninsured automobile under the terms of the policies referred to herein and that he was operating the automobile on which there was no bodily bond or insurance applicable at the time of the said accident with respect to any persons legally responsible for the use of said automobile. Plaintiff further avers that she incurred damages in great excess of $10,000.00 as a result of the above described collision of which defendant has had notice and the defendant, United States Fidelity and Guaranty Company, has failed and refused to pay the same.
“WHEREFORE, plaintiff demands judgment against defendant in the sum of $20,000.00 plus 6 percent interest accruing from the date of May 28,1975, and costs and attorney’s fee.”

USF&G answered by general denial and asserted contributory negligence as an affirmative defense. Thereafter Mrs. McKin-non amended her complaint to add Count II, which claimed:

Count II
“At all times the named insured has stood ready to pay all premiums required by the aforementioned policy and that said named insured had paid all premiums due before and after the accident of March 30, 1975. The named insured paid said premiums only after defendant and/or defendant’s agent had represented that the policy covered the plaintiff and said defendant and/or their agent continued to represent such coverage and continued to take premiums due from the named insured after the accident. Plaintiff was aware of the representations of said defendant and expected coverage as an insured under the provisions of the policy. Said plaintiff did rely on such representations on the day of the accident and thereafter. Plaintiff avers that such representations were knowingly and deceitfully false and further demands damages in the amount of $40,000.00.”

The case went to the jury on the two counts in the complaint as amended. The jury returned a general verdict in favor of Rita McKinnon in the amount of $55,000. USF&G moved for judgment notwithstanding the verdict or, in the alternative, for a new trial. The trial court conditioned granting a new trial upon Rita McKinnon’s consent to remittitur in the sum of $15,000. Mrs. McKinnon accepted the remittitur under protest and final judgment was entered in the amount of $40,000. Then this appeal.

A history of the policy is vital to an understanding of the case. USF&G had issued a Family Automobile Policy — Liability and Physical Damage to Nathaniel R. Haney (Rita McKinnon’s father). The schedule of that policy provided:

Listed as principal drivers on the agent’s worksheet made before issuance of this policy were Mr. Haney and his son, Keith. Mr. Haney died on 14 October 1973, and sometime thereafter the policy was changed to show Mrs. Haney as the named insured. The evidence shows that Mrs. Haney did not drive, and shortly after her husband’s death went to the Talladega Insurance Agency office, accompanied by her daughter, Rita McKinnon, to inquire if Rita could be added as a driver under the policy. There she conversed with Mrs. Katherine Thrasher, an employee of the agency and good friend of ten years. At trial Mrs. Haney, by deposition, gave the following account of the conversation:

“Q. Do you remember what was said in that conversation?
“A. Just that I asked if Rita could be put on as the driver because I needed her to drive and would it cover her and she said yes. And that she could be put on.”

The evidence shows Mrs. Thrasher suggested that she rate one of the two automobiles according to a premium based upon Rita McKinnon being the principal driver, in order to reduce the aggregate premium for insuring both vehicles. This was done and she was listed as such on the rate worksheet.

In May 1974, Mrs. Haney received the following schedule from USF&G attached to her policy:

Concerned whether Rita and Keith were covered under the policy, Mrs. Haney, in the presence of Rita, phoned Talladega Insurance Agency to find out why they were not listed on the schedule. Again she spoke with Mrs. Thrasher. Mrs. Haney’s testimony, by deposition, gives the following narrative of the conversation:

“Q. Did you call or make any effort to contact Talladega Insurance Agency or U.S.F.&G. to find out just what this policy covered?
“A. I called and asked if Rita and Keith were on it because it didn’t have anyone’s name on it but mine.
“Q. Who did you call?
“A. I talked to Mrs. Thrasher.
“Q. You are the one that dialed the number, do you remember how they answered the phone?
“A. They just said Talladega Insurance Agency and I asked to speak to Mrs. Thrasher.
“Q. You know Mrs. Thrasher, don’t you, she is a personal friend of yours?
“A. Yes, sir. She’s the one that has always handled our car insurance.
“Q. When you talked to Mrs. Thrasher, what if anything was said about this policy?
“A. She said that Rita and Keith were on there, both, that they were included.
“Q. You say that they were on there. Do you remember if she said whether or not they were insured by this policy?
“A. Yes, sir. — ”

Following this conversation, Mrs. Haney did not receive anything which purported to alter or amend the policy.

In May 1975, Mrs. Haney received a policy from USF&G to cover the period from 23 May 1975 to 23 May 1976. The schedule of this policy, as did the previous one, showed Mrs. Haney as the named insured:

Concerned, as before, Mrs. Haney phoned the agency and again spoke with Mrs. Thrasher. Mrs. Haney’s deposition also supplies an account of this conversation:

“Q. When you received this policy did you contact anyone concerning—
“A. I sure did. I did every time.
“Q. And who did you talk to on this occasion?
“A. I talked to Mrs. Thrasher.
“Q. And what if anything was said about who was covered?
“A. She said it was the same way that it has been all the time, that Rita and

Keith were on it. Were still covered.” Rita McKinnon was present with her mother during this conversation.

The evidence discloses that USF&G’s agent, Talladega Insurance Agency, at the very latest, before the 30 March 1975, accident involved in this litigation had knowledge that Rita McKinnon was no longer living in her mother’s, Mrs. Haney’s household. This was before the last renewal of the policy in May 1975.

There are three issues crucial to a disposition of this appeal. They are:

1. Was Rita McKinnon covered under the policy?
2. What is the extent of coverage?
3. Is the verdict self-contradictory?
I
Was Rita McKinnon Covered?

The controversy between Rita McKinnon and USF&G centers around whether Rita McKinnon was covered under the uninsured motorists provision of the policy issued to her mother at the time of the accident from which this litigation arose. Coverage under that provision depends on whether Mrs. McKinnon was an insured. “Insured” is defined as * * * the Named Insured and any relative * * “Relative” under the policy is “ * * * a relative of the Named Insured who is a resident of the same household * * *.”

Rita McKinnon insists she was covered. She contends USF&G listed her on its worksheet, calculated the premium based upon her being a principal driver, and on several occasions represented that she was insured by the policy. USF&G claims it is abundantly clear and without dispute that the policy does not, by its terms, insure Mrs. McKinnon. It further says Rita McKinnon was not a relative of Mrs. Haney, the named insured, living in the same household.

However, as noted, Rita McKinnon was known by Mrs. Thrasher to be living elsewhere than in her mother’s home before the incident giving rise to this action.

We hold: based upon facts within its knowledge (Mrs. McKinnon's residence elsewhere than in her mother’s household); the representations made that Mrs. McKinnon was covered; and reliance on those representations by both Mrs. Haney and Mrs. McKinnon, that USF&G is estopped to deny Mrs. McKinnon is insured under Mrs. Haney’s policy.

Fundamentally:

“ * * * ‘It is called an estoppel or conclusion because a man’s own acts or acceptance stoppeth or closeth up his mouth to allege or plead the truth.’ * * ” Woodmen of the World Life Ins. Soc. v. Greathouse, 242 Ala. 529, 531, 7 So.2d 89, 91 (1942).

The doctrine comes into play by the taking of a position in one instance, inconsistent with a position in another instance, to another’s prejudice. Carolina Casualty Insurance Co. v. Tisdale, 46 Ala.App. 50, 237 So.2d 855 (1970).

In Mazer v. Jackson Insurance Agency, 340 So.2d 770 (Ala.1976), this court stated:

“ ‘An estoppel . . . has three important elements. The actor, who usually must have knowledge of the true facts, communicates something in a misleading way, either by words, conduct or silence. The other relies upon that communication. And the other would be harmed materially if the actor is later permitted to assert any claim inconsistent with his earlier conduct.’ ”

The jury resolved the questions pertaining to the agency relationship between USF&G and Mrs. Thrasher, an employee of Talladega Insurance Agency, in favor of Rita McKinnon, and there is sufficient evidence for the jury to so find. Thus, the facts, known to Mrs. Thrasher were imputed to USF&G.

There can be no question of reliance upon the representations of coverage. Mrs. Haney continued to pay premiums for that coverage and Mrs. McKinnon continued to drive her mother’s car without obtaining other coverage. No one would challenge the fact that Mrs. McKinnon would be materially harmed if USF&G is permitted now to assert the defense that she was not an insured as defined in the policy: a relative of the named insured living in the same household. USF&G cannot now benefit from its former position that assured coverage; inconsistent with its now position denying coverage.

II

Extent of the Coverage

At this point, reference is made to the policy in force at the time of the accident March 1975, a pertinent part of which we have already set out. Reading the policy, it is readily clear that Mrs. Haney paid separate premiums on her two vehicles for uninsured motorists coverage, six and five dollars, respectively, under the one policy. This is often referred to as a multi-vehicle policy. The issue thus presented is whether Rita McKinnon is entitled to recover under two uninsured motorists provisions. Put simply, since two premiums were paid to insure two cars, there were two separate uninsured motorists coverages in the one policy. This is the concept known as “stacking” or “pyramiding.”

USF&G claims that since Mrs. McKinnon was not the premium paying named insured she could not stack the uninsured motorists coverages of the two automobiles owned by her mother; hence her recovery is limited to $10,000. We disagree.

USF&G’s argument is based solely upon the fact Rita McKinnon did not pay the premiums on the policy; and it attempts to analogize the situation here with the facts of Lambert v. Liberty Mutual Insurance Co., 331 So.2d 260 (Ala.1976), where this court held an employee was not entitled to stack uninsured motorists coverages under his employer’s “fleet policy.”

In Lambert, Justice Bloodworth, writing for the court, aptly distinguished the two situations:

“ * * * The status of Lambert (for purposes of uninsured motorist coverage) as an insured solely by virtue of his occupancy of the vehicle, is clearly distinguishable from the status of a named insured who is entitled to stack coverages by virtue of his personal payment of an additional premium for each vehicle insured under a multi-vehicle policy.”

In reference to personal payment, the opinion noted:

“By permitting the insured to stack his coverages, this Court has simply honored the reasonable expectation of the ‘named insured’ that his payment of an additional premium will result in increased coverage for those falling within the definition of the ‘named insured,’ * * * ” (emphasis added)

The test is whether the person attempting to “stack” coverage is a “named insured.” Our conclusion earlier answers this question. Therefore, Rita McKinnon was entitled to an aggregate coverage of $20,000; the sum of $10,000 under each of the two uninsured motorists provisions for which a premium was paid.

Ill

Is the Verdict Self Contradictory?

(Inconsistent as a Matter of Law)

We must examine the general verdict of the jury against the two theories of recovery stated in the separate counts of the complaint and under the evidence upon which the case was submitted to the jury.

Count I of the complaint declared a breach of the insurance contract of Mrs. Haney with USF&G under which Mrs. McKinnon was insured; in this instance against damages suffered as the result of the negligence of an uninsured motorist. Count II complains of fraudulent misrepresentation that Mrs. McKinnon was insured under the policy. Implicit in this is the allegation that Mrs. McKinnon was not, in fact, insured. The proof relied on in support of both counts were the same representations made with knowledge of the facts about Mrs. McKinnon’s residence being otherwise than in the same household with her mother.

USF&G claims that since the jury’s verdict was for the sum of $55,000, the jury found the issues in favor of Mrs. McKinnon under both counts of the complaint. Such a finding, it contends, is self contradictory. We agree.

May damages be recovered for breach of an existing contract and at the same time recover damages for fraud for representing there was a contract when, in fact, there was none? We think not. The theories of recovery, are factually inconsistent, therefore, the general verdict of the jury in this ease is self contradictory. It had the effect of finding both that there was a contract and that there was not.

We find no prior case where this precise situation was presented and dealt with by this court. However, the analogous reasoning in cases dealing with the inconsistencies of verdicts that find against an employer and in favor of an employee, where the employer’s liability is vicarious, is persuasive support for our holding the verdict in this case to be inconsistent as a matter of law. In Carter v. Franklin, 234 Ala. 116, 173 So. 861 (1937), the following was said:

“ * * * where employer and employee are sued in tort, the liability charged to the employer resting solely on the negligence or wanton conduct of the employee, a verdict against the employer and in favor of the employee is due to be set aside on proper motion. It is self contradictory. It says in one aspect that the employee was guilty of negligence proximately causing injury, and because of such negligence in the line and scope of his employment, his employer is liable, while in the other aspect, it says the employee was not guilty of negligence, the proximate cause of injury. Such a verdict on its face discloses that the jury has misconceived the issues, or was prompted by bias against the employer or in favor of the employee. If a proper jury case was presented in the evidence, such verdict should, on proper motions, be set aside in toto, that the cause be retried on the merits, unhampered by questions of res adjudicata. * * * ” (emphasis added)

The emphasized statement quoted above is no less illustrative of the self contradiction of the verdict in that case than, logically, it is of the self contradiction of the general verdict in this case.

In this case the proof offered would authorize submission of the case to the jury for a finding by it, if the issues were resolved against USF&G, that either there was a breach of contract and USF&G was estopped to assert an affirmative defense or there was no contract but there was fraud in representing there was one. In neither case would the evidence of record support an award of punitive damages. In fraud cases essentially based on § 108, Tit. 7, Code 1940, punitive damages are only allowed where a material misrepresentation is made knowingly and falsely, was relied on by the injured party, and the fraud was gross, malicious, oppressive, and committed with an intent to injure. Old Southern Life Insurance Co. v. Woodall, 295 Ala. 235, 326 So.2d 726 (1976); Hall Motor Co. v. Furman, 285 Ala. 499, 234 So.2d 37 (1970). We find no evidence in this record to authorize a jury to find gross, malicious, oppressive fraud committed with intent to injure. The evidence would support an award of compensatory damages only in this case. They would be the same in the event the jury found for plaintiff either on the breach of contract theory or on the fraud theory: recompense for the losses and damages suffered by plaintiff as a result of the negligence of the uninsured motorist; to the limit of the $20,000 coverage.

For the reasons assigned the judgment below must be reversed.

REVERSED AND REMANDED.

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


text:
    CITY OF BIRMINGHAM, a Municipal Corporation v. The STACY WILLIAMS COMPANY, INC., a corporation.
    SC 2745.
    Supreme Court of Alabama.
    Feb. 3, 1978.
    Rehearing Denied March 31, 1978.

      William C. Walker, Birmingham, for appellant.
    Thomas H. Brown, Sirote, Permutt, Friend, Friedman, Held & Apolinsky, Birmingham, for appellee.
   EMBRY, Justice.

This is an appeal by the City of Birmingham from a final judgment on the pleadings which declared Section 4(a) of the License Code of the City of Birmingham unconstitutionally discriminatory as to The Stacy Williams Company, Inc., a corporation. The judgment also declared that Section 4(a) excluded from gross receipts of Stacy Williams the Alabama Sales Tax imposed by Article 9 of Title 51, Code 1940, as amended.

We disagree with the trial court on both points and will reverse.

Section 4(a) provides:

“ * * * Where the amount of the license is based upon the gross receipts, the term ‘gross receipts,’ unless the contrary clearly appears, shall mean the entire receipts of the business, vocation, occupation or profession engaged in, including all receipts from sales regardless of the place where the sale was solicited, or place where the contract of sale was consummated or the place of delivery, and shall include the amount of any federal excise tax, or any other tax imposed on sales by retailers or wholesalers, except Alabama Sales Tax (as provided in Title 51, Article 10,1940 Code of Alabama) and Jefferson County Sales Tax (as provided by Act 387, 1965 regular legislative session and Act 405, 1967 regular legislative session) and except Birmingham ‘Sales Tax’ (as provided by Ord. Nos. 64011 and 74-115 as amended) and shall not contemplate any deductions for any purpose not specifically provided for.” (emphasis added)

The crux of the controversy is the meaning of the language: “ * * * except Alabama Sales Tax (as provided in Title 51, Article 10,1940 Code of Alabama) * * * ”, emphasized above.

To understand the controversy only a brief summary of the facts pertinent to this appeal is needed. Stacy Williams Company, Inc., a wholesaler and distributor of tobacco products, is not required to pay the general Alabama Sales Tax imposed by Title 51, Article 10. For the past several years Stacy Williams has deducted from its gross receipts, on which the city business license is computed pursuant to § 239 of the City License Code, the Alabama Sales Tax imposed by Article 9 of Title 51, Code 1940, as amended. It is Stacy Williams’ position that § 4(a) must reasonably be interpreted to include within its exception from gross receipts the Alabama Sales Tax on tobacco products imposed by Article 9. The City of Birmingham opposes that view and asserts that only the Alabama Sales Tax imposed under Article 10 is due to be exempted in computing gross receipts. It accordingly assessed back license taxes and penalties against Stacy Williams for the tax years 1972 through 1976.

Stacy Williams filed this declaratory judgment action to have § 4(a) construed to entitle it to be permitted to deduct the tax paid under Article 9. The complaint, as amended, charged the City’s interpretation of § 4(a) was erroneous, unreasonable, arbitrary and unconstitutionally discriminatory. The City denied this. Stacy Williams then filed its motion for judgment on the pleadings. The trial court held in its judgment on the pleadings:

“(1) The defendant’s position with respect to Section 4(a) of the License Code of the City of Birmingham, Alabama, is declared erroneous, arbitrary, unreasonable and unconstitutionally discriminatory-
“(2) Section 4(a) of the License Code of the City of Birmingham, Alabama, is declared to intend to, and does, in fact, pursuant to its explicit terms, exclude from the license tax based on gross receipts, imposed by Section 239 of the said License Code, the Alabama Sales Tax as codified in Subdivisions 1, 3, 4, 5, 6 and 7 of Article 9 of Title 51, Code of Alabama, Recompiled 1958, as amended, re-codified, or re-adopted.
“(3) The plaintiff is declared not liable to the City for any alleged back license taxes or penalties for the years 1972 through 1976.
“WHEREFORE, It is hereby ORDERED, ADJUDGED AND DECREED that Declaratory Judgment on the Pleadings be and the same is hereby ordered for the plaintiff.”

From the entry of the judgment the City perfected this appeal.

The crucial issue presented is whether § 4(a) of the License Code, as written, excepts the sales tax on tobacco imposed by Title 51, Article 9, Code 1940, as amended, from gross receipts. We conclude it does not.

Our conclusion is based on general principles of statutory construction. When construing a city ordinance courts apply the same rules of construction to municipal ordinances as they do to statutes. American Bakeries Co. v. Opelika, 229 Ala. 388, 157 So. 206 (1934); S & S Distributing Co. v. Town of New Hope, 334 So.2d 905 (Ala.1976). That is they attempt to determine the intention of the municipal legislative body and apply the ordinance in conformity with its intention. The task is to ascertain and effectuate the intent of the legislature expressed in the statute. Tillman v. Sib- bles, 341 So.2d 686 (Ala.1977) and Bagley v. City of Mobile, 352 So.2d 1115 (Ala.1977). This court has said:

“ ‘ * * * . “When the language as used by the lawmakers is plain, it is the duty of the courts to obey; no discretion is left; and courts should not stray into by-paths or search for reasons outside of the plain letter of the law upon which to rely for the purpose of giving a different meaning or interpretation, for ‘when the language is plain it should be considered to mean exactly what it says.’ Little v. Foster, 130 Ala. 154, 163, 30 So. 477. * * * ” ’ Ex parte Bozeman, 183 Ala. 91, 99, 63 So. 201, 203.” Kimbrell v. State, 272 Ala. 419, 132 So.2d 132 (1961).

After a careful examination of the language of § 4(a), we find it to be plain and unambiguous. Under such circumstances the express intent conveyed by these words must be given effect. That intent being that only the “ * * * Alabama Sales Tax (as provided in Title 51, Article 10, 1940 Code of Alabama) * * * ” is excepted from gross receipts; not the sales tax on tobacco provided for in Article 9 (emphasis added).

Stacy Williams does not disagree with the principles of statutory construction enunciated, however, it would take issue with the conclusion that the language of § 4(a) is unambiguous. It argues the parenthetical remark: “ * * * (as provided in Title 51, Article 10, 1940 Code of Alabama * * * ”, creates an ambiguity because at the time it was inserted in § 4(a), Article 10 of the 1940 Code had been expressly repealed; therefore, the parenthetical statement is a nullity. In brief, Stacy Williams cites several cases supporting the proposition that ambiguities in taxing statutes must be interpreted most favorable to the taxpayer. This is correct but inapt.

Although Title 51, Article 10, Code 1940, as formerly written was superseded; the Sales Tax Act of 1959:

“ * * * reenacted section by section, the substance of the then existing sales tax provisions of earlier Acts as embodied in See. 752 et seq. [Article 10], Tit. 51 of Alabama code of 1940, and in virtually identical language.” Haden v. Lee’s Mobile Homes, Inc., 41 Ala.App. 376, 136 So.2d 912 (1961).

The Sales Tax Act took effect on 1 October 1959. Therefore there was in existence an “ * * * Alabama Sales Tax (as provided in Title 51, Article 10, 1940 Code of Alabama) * * * ”, at the time the parenthetical statement was inserted in § 4(a). This is evidenced by the designation of the Sales Tax Act as Title 51, Article 10, in the 1973 Cumulative Supplement to the Code.

Before concluding, we are compelled to address the constitutional issue implicit in the trial court’s judgment: whether the city’s position with respect to § 4(a) denied Stacy Williams equal protection of the laws.

The essence of the theory of equal protection of the laws is that all similarly situated be treated alike. City of Hueytown v. Jiffy Chek Co., 342 So.2d 761 (Ala.1977). The same principal controls under licensing statutes; equal protection is satisfied when all persons of the same class are fairly made subject to the same amount and terms imposed by such tax laws. Smalley v. City of Oneonta, 253 Ala. 663, 46 So.2d 201 (1950).

Here, the class composed of wholesale tobacco merchants is not denied equal protection of laws because the class as a whole is treated fairly alike; no member of the class is allowed to deduct the sales tax on tobacco as provided in Article 9 from its gross receipts under § 4(a). We find nothing constitutionally offensive about the City’s position.

Accordingly, the judgment of the trial court is reversed and remanded with directions to that court to enter a judgment in conformity with this opinion.

REVERSED AND REMANDED.

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


author: PER CURIAM. JONES, Justice

text:
    GENERAL TELEPHONE COMPANY OF the SOUTHEAST, a corp. v. ALABAMA PUBLIC SERVICE COMMISSION et al.
    SC 2761.
    Supreme Court of Alabama.
    Feb. 17, 1978.
    Rehearing Denied April 7, 1978.
    Robert C. Black of Hill, Hill, Carter, Franco, Cole & Black, Montgomery, and William C. Fleming, Durham, N. C., for General Tel. Co. of the Southeast.
    Oliver W. Brantley, Troy and Maurice F. Bishop, Birmingham, for appellees.
   PER CURIAM.

This case seeks review of an award of attorneys’ fees from a supersedeas bond created in a utility rate case involving the Appellant, General Telephone Company of the Southeast. We reverse and render.

On September 13, 1973, GTSE filed an application with the Alabama Public Service Commission seeking an increase in its rates and charges. Maurice Bishop and Oliver Brantley, attorneys at law, intervened in this cause on behalf of their clients, the Governor of Alabama and the State of Alabama, and some fourteen municipalities, respectively.

The rate increase was refused by the Public Service Commission and GTSE appealed to the Montgomery County Circuit Court. Pursuant to Tit. 48, § 81, Code, the utility superseded the Commission’s order, by creating a supersedeas bond, and collected charges at the proposed increase rate. The Circuit Court affirmed the Commission and, pursuant to Tit. 48, § 90, Code, an appeal was filed in this Court. We remanded the case for further determination as to the utility’s return on equity under the proposed rate. See Gen. Tel. Co. of the S. E. v. Alabama Publ. Serv. Com’n., 335 So.2d 151 (Ala.1976). Subsequently, the Commission issued an order setting rates which produced the desired return on equity. This Court affirmed that order in Gen. Tel. Co. of the S. E. v. Alabama Publ. Serv. Com’n., 340 So.2d 1118 (Ala.1976).

Shortly thereafter, Bishop and Brantley filed in the Circuit Court a Petition for Determination and Allowance of Reasonable Attorneys’ Fees. These fees were sought from the supersedeas bond created by the utility when it appealed the original Commission order.

Petitioners contend that their services created a common fund from which attorneys’ fees are permitted within the discretion of the trial Court. In support of this contention, they cite Tit. 46, § 63, Code. This section provides, inter alia:

In all suits and proceedings in the probate courts and circuit courts and other courts of like jurisdiction, where there is involved the administration of a trust . or where there is a partition in kind of real or personal property between tenants in common, the court having jurisdiction of such suit or proceeding may ascertain a reasonable attorney’s fee, to be paid to the attorneys or solicitors representing the trust ... or common property . . . which is to be paid when collected as the other costs in the proceeding to such attorneys or solicitors as may be directed or ordered by the court .

It is clear that Petitioners’ assertions must fail for two reasons. First, the statute does not cover the situation before us. It is not the administration of this fund for which Petitioners seek compensation. Furthermore, the fund is not “common” in the sense alluded to in the statute; instead, it is in the nature of a judgment with a specific, ascertainable portion being payable to each subscriber.

The intent of the Legislature in passing this statute clearly does not encompass the situation at bar. The legislative history of this section shows its remedial nature in that it was passed to rectify the situation whereby certain trusts were created at one’s own expense so that others could share therein. (The best example of such trusts arises with regard to estate matters.) See Penney v. Pritchard & McCall, 255 Ala. 13, 49 So.2d 782 (1950). No case cited to this Court is persuasive that this statute should be applied here, however; and this for the reason that each is distinguishable in that, in each, the trial Court exercised unbridled equity powers. For the reasons enunciated below, this is not possible in the instant action.

This brings us to the second major reason why attorney’s fees are not recoverable in cases such as this. It is well settled that the Circuit Court’s jurisdiction in such causes is strictly statutory and, thus, severely limited. Ex parte Alabama Public Service Commission, 268 Ala. 322, 106 So.2d 158 (1958); and 73 C.J.S. Public Administrative Bodies §§ 7, 8. In Birmingham Electric Co. v. Alabama Public Service Commission, 254 Ala. 119, 47 So.2d 449 (1950), we held:

“It is familiar law that when special statutory authority in derogation of the common law is conferred on courts of general jurisdiction, such a court of general jurisdiction becomes quoad hoe a court of inferior or limited jurisdiction. State v. Mobile & G. R. Co., 108 Ala. 29, 18 So. 801; Goodwater Warehouse Co. v. Street, 137 Ala. 621, 34 So. 903; Gunn v. Howell, 27 Ala. 663, 62 Am.Dec. 785; Martin v. Martin, 173 Ala. 106, 55 So. 632; Ex parte Pearson, 241 Ala. 467, 3 So.2d 5; Truett v. Woodham, 98 Ala. 604, 13 So. 519.” 254 Ala. at 125, 47 So.2d at 452.

Consequently, because these sections are in derogation of the common law, and there is no present statutory authority for the award of attorney’s fees from the fund, the Circuit Court is without jurisdiction to make such an award.

Moreover, it is the presumed intent of the Legislature that such an award not be granted. Tit. 48, § 93, Code, specifically authorizes certain persons (“who shall sustain any loss, injury, or damage by reason of the suspension of the rate or orders . .”) to sue on the bond. The recovery of attorney’s fees, however, is not mentioned. Therefore, it must be presumed that such recovery was not intended and, accordingly, should not be permitted. See Adams v. Mathis, 350 So.2d 381 (Ala.1977).

The obvious conclusion, then, is that such fees are not recoverable in an action of this type. Thus, the judgment of the trial Court is due to be reversed, the petition is dismissed, and this cause is rendered.

REVERSED AND RENDERED.

TORBERT, C. J., and BLOODWORTH, MADDOX, ALMON, SHORES, EMBRY and BEATTY, JJ., concur.

FAULKNER and JONES, JJ., concur specially.

JONES, Justice

(concurring specially).

I concur in the holding of the Per Curiam opinion which denies attorneys’ fees to these Petitioners. I believe, however, that before dealing with the merits of this appeal, this Court, upon its own motion, should initially analyze the posture of this case. The anomaly created by the curious posture of this proceeding is dramatized by the Petitioners’ motion to dismiss this appeal. Petitioners contend that, because the Appellant (GTSE) “can take no manner of benefit from a reversal or modification of the decree”, it has no standing to raise this appeal. Because their fees, say the Petitioners, are ordered to be paid from the fund secured by the supersedeas bond (all of which in any event is included in the order of refund), the outcome of the appeal is immaterial to Appellant.

At first blush, this argument would appear to have merit. On more thorough analysis, however, I would hold that a consideration of the motion to dismiss is itself premature. In order to proffer the motion to dismiss, Petitioners assume that each of them has standing as a proper party to this action and that all necessary parties are properly before the Court. As will be shown, because of the absence of necessary parties, if the Petitioners’ motion to dismiss were granted, the proceeding would then be rendered totally ex parte. In other words, it is the position of Petitioners that they are entitled to an award of attorneys’ fees and expenses in the sum of $75,000 (to be paid “off the top” of the fund secured by the supersedeas bond), granted in a proceeding in which they, as Petitioners, were the only proper and necessary parties before the Court. That insurmountable due process problems are raised by the case as presently postured seems undebatable; and, thus, in my opinion, the motion to dismiss is rendered moot.

Title 48, § 65, Code, provides:

Every person, firm, corporation, copart-nership, association, or organization affected thereby may by petition intervene and become a party to any proceeding before the commission. (Emphasis added.)

From this naked assertion, it would appear that both Bishop and Brantley are proper parties before us. In my considered opinion, however, such is not the case.

As stated, Maurice Bishop represented both the Governor and the State of Alabama. The interest of these parties in this litigation is somewhat nebulous. The Governor is neither a subscriber nor a competitor of GTSE. He can derive no direct personal or financial benefit from this suit. Similarly, the State has no direct interest which it is seeking to protect. Therefore, as shown by their Petitions for Intervention, both parties intervened merely to protect the interests of the consuming public— i. e., GTSE’s subscribers.

Though commendable, I would hold that such intervention is not proper. The words “affected thereby” in § 65, emphasized above, refer to some “ ‘personal interest in the subject-matter, and not a mere public interest, in common with the general public.’ ” See M. W. Smith Lumber Co. v. Alabama Public Service Commission, 247 Ala. 318, 321, 24 So.2d 409 (1946). See also Edward Hines Yellow Pine Trustees v. United States, 263 U.S. 143, 44 S.Ct. 72, 68 L.Ed. 216 (1923) (which refused to allow intervention before the Interstate Commerce Commission unless some legal injury was threatened or incurred); and 73 C.J.S. Public Administrative Bodies and Procedure, § 119. The reason for the rule in cases such as this is manifest in that “the interests of the public [are] represented by the commission.” Ex parte City of Birmingham, 199 Ala. 9, 16, 74 So. 51 (1917); and 73 C.J.S. Public Utilities § 50. The only other cases which have considered this statute reflect similar requirements. See Mobile County Gas District v. Mobile Gas Service Corp., 284 Ala. 664, 227 So.2d 565 (1969); Alabama Power Co. v. Alabama Public Service Commission, 278 Ala. 597, 179 So.2d 725 (1965); and Tit. 48, § 65, Code.

Mobile County Gas and Alabama Power held that § 65 was a mere enactment of common law intervention by interested parties. Therefore, the same requirements as at common law must be met before intervention is possible. The Court in Alabama Power permitted intervention only after a preliminary showing of some direct personal or financial interest. This case was cited with approval in Mobile County Gas and reflects the Court’s application of similar general requirements. See Tit. 7, § 247, Code; and Pruett v. Ralston Purina Co., 273 Ala. 594, 143 So.2d 309 (1962).

It is apparent that the general rule, as presently declared in Rule 24, Intervention, ARCP, must be applied. When this is done, even with the relaxed requirements noted in the Committee Comments, it appears that neither the Governor nor the State of Alabama may intervene in this cause. The case cited in the Comments as authority for the present permissive intervention policy (Cascade Natural Gas Corp. v. El Paso Natural Gas Co., 386 U.S. 129, 87 S.Ct. 932, 17 L.Ed.2d 814 (1967)) still required the presence of some special interest in the proceedings before the State of California was permitted to intervene. No such special interest may be discerned in the case at, bar.

Under the view thus expressed, Bishop would be foreclosed from any recovery. By representing a party not properly before the Court, he can partake of no benefit thus derived. This is not to say that Maurice Bishop, one of Alabama’s outstanding lawyers, did not have the right to appear on behalf of the Governor and the State of Alabama as amicus curiae. Indeed, the professionalism of his advocacy, and his legal expertise in the public utility field, both at the trial as well as the appellate stages of the case, served as an invaluable assist in the resolution of this complex litigation. But the standing of an amicus, with its attendant duties and rights, is far different from that of a party litigant and does not include any interest or claim upon the funds from which the attorneys’ fees are sought.

The other party before the Court, Brant-ley, represented fourteen communities, each of which had some immediate interest in the proceeding. Therefore, they were proper intervening parties. In this action, however, Brantley is not seeking compensation from his clients or from a percentage of the refund due them. Instead, he seeks his fees from the total fund created to supersede the rate ordered by the Commission and, thus, his clients would only share proportionately in his total fee.

Even though Brantley’s clients were proper intervenors, the procedure utilized in this subsequent proceeding, to determine and obtain his fees, is, in my opinion, constitutionally inadequate. Initially, it must be recognized that constitutional safeguards and due process of law apply in administrative proceedings. Voigt v. Webb, 47 F.Supp. 743 (E.D.Wash.1942); State, ex rel. Steele v. Board of Education of Fairfield, 252 Ala. 254, 40 So.2d 689 (1949); 16A, C.J.S. Constitutional Law § 628; and 73 C.J.S. Public Administrative Bodies § 60. These standards are somewhat lessened, however, because all that is necessitated are the “rudimentary requirements of fair play.” Morgan v. United States, 304 U.S. 1, 15, 58 S.Ct. 999, 82 L.Ed. 1129 (1938); and 73 C.J.S. Public Administrative Bodies §§ 60, 130.

It has long been recognized that adequate notice is a constitutional requirement of procedural due process. See Covey v. Town of Somers, 351 U.S. 141, 76 S.Ct. 724, 100 L.Ed. 1021 (1956); Bolte v. Schmale, 258 Ala. 373, 62 So.2d 797 (1952); and 16A, C.J.S. Constitutional Law § 619. When this requirement is applied to administrative hearings, however, a certain dichotomy arises because it is not every administrative act which requires due process. The necessity of notice in an administrative proceeding depends upon the character of the proceeding and the circumstances involved. Ordinarily, it is only when the proceedings are judicial or quasi-judicial in nature that notice is constitutionally mandated. Morgan, supra; and 73 C.J.S. Public Administrative Bodies § 130.

We are not presently confronted with the question of the necessity or desirability of notice at the initial rate hearings themselves. The present petition for attorneys’ fees, however, must be deemed adversary and judicial in nature. Thus, because Brantley sought fees from the fund set aside for the subscribers (each of whom had an ascertainable, pecuniary interest therein), notice must be given these parties.

It cannot be denied that originally the proceedings were merely legislative-type hearings which were not adversary in nature. See City of Birmingham v. Southern Bell Telephone and Telegraph Co., 234 Ala. 526, 176 So. 301 (1937). Therefore, notice given at that time could not adequately inform the subscribers of possible adversary proceedings in the future. The subscribers were either to be charged a higher rate or they were not. Once a fund was created and payable to them, however, the proceeding became adversary when Brantley sought to obtain fees therefrom. The ex parte nature of these proceedings requires notice before such cause deprived the subscribers of certain property rights without notice; and, thus, violated the mandate of procedural due process. See generally, Vaughn v. State, 17 Ala.App. 35, 81 So. 417 (1919).

For the reasons set forth herein, and for the further reasons contained in the Per Curiam opinion, I would dismiss the petition and render the cause.

FAULKNER, J., concurs.

      . § 37-1-125, Ala.Code 1975.

      . § 37-1-132, Ala.Code 1975.

      .§ 34-3-60, Ala.Code 1975.

      . Several other states do allow recovery of attorney’s fees from supersedeas bonds created in circumstances similar to those before us. It should be noted, however, that this recovery is specifically authorized by statute in those states. See Joseph Denunzio Fruit Co. v. Crane, 79 F.Supp. 117 (S.D.Cal.1948) (applying Tit. 7, U.S.C.A., § 499g(c)); and 73 C.J.S. Public Administrative Bodies § 255.

      . § 37-1-135, Ala.Code 1975.

      . § 37-1-87, Ala.Code 1975.

      . Rule 24, ARCP.

      .It is not to be understood that I would hold that Bishop may not recover his fees from his clients. It is only the recoverability of this fee from the supersedeas fund with which I now deal.

      . Brantley’s original contract has already been honored by his individual clients and the fees for his legal services, in accordance therewith, have been paid in full.


text:
    OPINION OF THE JUSTICES.
    No. 241.
    Supreme Court of Alabama.
    Feb. 21, 1978.
   To the Members of the House of Representatives

State Capitol

Montgomery, AL 36130

Dear Sirs and Mesdames:

We acknowledge receipt on late yesterday of House Resolution No. 406, adopted February 16, 1978, requesting our written opinions as to the meaning of that part of Section 11 of Act No. 512 of the 1976 Regular Session of the Legislature, page 640, vol. 1, Acts of Alabama, Regular Session 1976 (the “Sunset” Act), which reads in pertinent part as follows:

“. . . voting in the respective houses of the legislature on the joint committees’ recommendations shall commence and thereafter continue from day to day until voting on all the recommendations with respect to each agency are completed, as the first order of business.”

You have asked us the following question, viz.:

“Does this language permit either house, after it has voted on all such recommendations before it, to resume normal legislative activities, including consideration of unfinished business or bills on its regular or special order calendar, even though the other house may not have completed consideration of the said recommendations?”

You asked for our prompt reply to this urgent question because you state that “the validity of any further action taken, or bills passed, by this House hinges upon your reply.” We answer with alacrity because of your expressed concern.

Section 12-2-10, Code 1975, provides as follows:

“The governor, by a request in writing, or either house of the legislature, by a resolution of such house, may obtain a written opinion of the justices of the supreme court of Alabama or a majority thereof on important constitutional questions.” [Emphasis supplied.]

We must respectfully point out that the question you pose is a legal question, not an important constitutional question, the latter being the only questions we are permitted to answer. Opinion of the Justices, 336 So.2d 164 (Ala.1976); Opinion of the Justices, 336 So.2d 175 (Ala.1976).

It is, therefore, that we must respectfully decline to render our written opinions in this instance.

Respectfully submitted,

C. C. TORBERT, Chief Justice

JAMES N. BLOODWORTH

HUGH MADDOX

JAMES H. FAULKNER

RENEAU P. ALMON

JANIE L. SHORES

ERIC EMBRY

SAMUEL A. BEATTY

Justices.


author: ALMON, Justice.

text:
    In re Directive of Judge Kenneth F. INGRAM. Ex parte Douglas BUNN, Larry Martin, Hubert Hope, S. D. Jeanah, Jr., and Herbert Javis, Petitioners.
    SC 2641.
    Supreme Court of Alabama.
    Feb. 24, 1978.

      Arthur D. Shores, of Shores & Larkin, Birmingham, for petitioners.
    William J. Baxley, Atty. Gen., and Sarah M. Greenhaw, Asst. Atty. Gen., for respondents.
   ALMON, Justice.

This is a mandamus proceeding. The petitioners are five Constables from Shelby County. They seek to compel the Honorable Kenneth F. Ingram, Presiding Judge of the Eighteenth Judicial Circuit, to rescind a “directive” issued by him to the clerk of the Circuit Court of Shelby County. The directive requires that all civil process be delivered to the sheriff for service. The directive follows:

IN THE CIRCUIT COURT OF SHELBY COUNTY, ALABAMA

DIRECTIVE TO THE CLERK OF THE CIRCUIT COURT REGARDING CERTAIN PROVISIONS OF RULE 4.1(b)(1), ALABAMA RULES OF CIVIL PROCEDURE

Under Rule 4.1(b)(1), Alabama Rules of Civil Procedure, provision is made for civil process to be served by the sheriff or by constable. The language of this rule seems to indicate to the Court that discretion is allowed either to the clerk of court or to the presiding circuit judge to designate who shall serve civil process.

This Court has been informed that some controversy has developed in this circuit court relative to the serving of such process. At the instance of the circuit clerk, and the probate judge, this Court met with constables Hope and Dunn, probate judge Snowden, Circuit court judge Sharbutt, sheriff Walker and clerk Lansford for the purpose of a discussion and determination of this question.

At this meeting, constables Hope and Dunn insisted that they should be allowed to serve some of the civil process in this county. On the other hand, the sheriff stated that he felt that his office could best perform this service as has been the procedure for many years.

The Court took the matter under advisement and upon consideration of the matter, is of opinion that it is presently in the best interest of the Court that there be uniformity of procedure in the service of civil process as far as practicable under the rule hereinabove stated.

The sheriff is staffed with the personnel and transportation facilities necessary to perform this service in the future as he has done in the past. His office has the communications facilities, when coupled with an orderly dispatch of deputies within the county, to expeditiously serve process as required by this rule. Additionally, the sheriff and/or his deputies are in regular attendance at court and subject to the Court’s immediate directives in conjunction with the Court’s business relative to service of process or otherwise.

In consideration of the above, the Court publishes this directive.

1. The clerk of this court is directed to deliver all civil process to the sheriff of this county for service under the provisions of Rule 4.1(b), (1), as above cited.

2. The clerk of this court is directed to send a copy of this directive, by ordinary mail, postage prepaid, to each constable who presently holds such office in Shelby County, to the sheriff, the probate judge and to the circuit judge and district judge of this circuit and county.

Done at Chambers this 18th day of May, 1977.

s/ Kenneth F. Ingram
PRESIDING CIRCUIT JUDGE OF THE EIGHTEENTH JUDICIAL CIRCUIT OF ALABAMA

The petitioners claim Judge Ingram has prevented them from performing their statutory and constitutional duties. They assert his action is contrary to Rule 4.1 ARCP. The answer of respondents contains the following:

“8. In addition, Respondents show the following additional factual matters in answer to the Petition:
“a. Prior to the publishing of the directive by Respondent Ingram, there was a serious dispute resulting in a critical situation in Shelby County, Alabama, concerning service of civil process, which impeded, obstructed and hindered the orderly operation, functions and proceedings of the judicial system in that county.
“b. The Sheriff of the county declined to serve civil process and the clerk declined to designate who would serve civil process.
“c. Under Rule 4.1(b)(1), Alabama Rules of Civil Procedure, the clerk of the court has discretion to direct either the sheriff or constable to serve civil process.
“d. Due to the situation existing in Shelby County, Respondent Lansford was not able to reach a decision and relinquished and waived his right to direct who shall serve civil process and deferred the matter to Respondent Ingram.
“e. Under 4.1(b)(2) ARCP, and Act No. 1205, Section 1205, Section 2-102, Regular Session 1975 (Title 13, Section 172, 1975 Interim Supplement, Code of Alabama 1940, Recompiled 1958), Respondent Ingram has the authority to direct and designate who shall make civil service and also has the responsibility to supervise the clerk and other officers and employees in his circuit.
“f. At the request of Respondent Lansford after Respondent Lansford had relinquished his right to direct who would serve civil process and referred the matter to Respondent Ingram, under the broad powers and responsibilities vested in Respondent Ingram to supervise and administer the orderly process, operations and functions of the court, Respondent Ingram made a determination as to who would serve civil process and issued a directive.
“g. Respondent Ingram in his judicial discretion determined that it was in the best interest of the court to direct the Sheriff to serve civil process to prevent an obstruction to the orderly operations and functions of the court system in Shelby County.”

The office of constable is no longer a constitutional creature. Article VI, § 168, of the Alabama Constitution which established the office of constable was repealed by Constitutional Amendment No. 328, ratified on December 27, 1973. Section 6.20(c) of Amendment No. 328 mentions the position of constable relative to constitutional restrictions on holding two public offices, and their receipt of fees. This section cannot be construed to thereby re-create the office of constable as one constitutional in nature.

Nevertheless, the office of constable has not been abolished. It remains as a creation of the Alabama Legislature. Title 54, § 28, Code of Alabama 1940, Recompiled 1958 (§ 36-23-1, Code of Alabama 1975).

The duties of a constable are found in Title 54, § 33, supra:

“His duties are:
“1. To attend the circuit court of the county when summoned by the sheriff for that purpose.
“2. To execute and return all summons, executions, and other process to him directed by any lawful authority.
“3. To pay over moneys collected by virtue of his office to the person entitled thereto.
“4. To attend the sessions of the justices’ courts in his precinct.
“5. To perform such other duties as are, or may be, required of him by law.”

The duty of Constables to execute and return civil process is conditioned upon such direction by lawful authority.

The clerk of the court is the lawful authority by which constables are directed to serve civil process. Rule 4.1(b)(1), ARCP, provides:

“When process issued from any court subject to the provisions of these rules is to be delivered personally, the clerk of the court shall deliver or mail the process and sufficient copies of the process and complaint, or other documents to be served, to the sheriff or constable of the county in which the party to be served resides or may be found.”

Rule 4.1(b)(1) is applicable to district courts as well as to Circuit Courts. This Rule was enacted by this court pursuant to its power to make and promulgate rules governing and administration of all courts and rules governing practice and procedure in all courts. Const. Amend. No. 328, § 6.11. The clerk of the court is thus obligated to deliver civil process for service in accordance with the rules of this court. Tit. 13, § 198(a)(20).

The clerk of the court has the discretion of whether to direct the sheriff or a constable to serve civil process. However, such discretion is not unbridled. Both the constables and the sheriff have a clear legal right to have official recognition in the execution of civil process without arbitrary discrimination. Woods v. Wood, 219 Ala. 523, 122 So. 835 (1929). Just as the clerk of the court cannot arbitrarily discriminate in favor of or against the sheriff or constable in delivering civil process for execution, neither can the circuit judge. Mathews v. Stephenson, 242 Ala. 406, 6 So.2d 483 (1942). The authority and duty to deliver process for. service lies in the clerk.

On the other hand, presiding judges may exercise general supervision of clerks and sheriffs to see that they attend strictly to the prompt and diligent discharge of their duties. Tit. 13, § 172, Code of Alabama 1940; § 12-17-24, Code of Alabama 1975.

This statute does not however authorize the presiding judge to exercise the duties placed by law upon the clerk. Yet the presiding judge has the duty and responsibility to see that the circuit court functions properly. If a clerk fails to perform his or her duties placed upon him or her by law, mandamus or other proper remedy will lie to compel his action. In the absence of the court “directive” here in question such remedy directed to the clerk would have been proper.

The record does not totally advise us of the exact nature of the controversy. The record is clear however that no legally sufficient reason was given to preclude constables from serving any civil process. Thus, it would appear that the directive was to this extent arbitrary.

On this point, certain observations in Woods, supra, are pertinent:

“Dealing with the discretion vested in the judge of the Gadsden inferior court, the law intends to make available more than one officer to the end that process may be promptly executed. In emergency cases special constables may be appointed. The justice or judge invested with like powers is the judge of such emergency in so far as relates to the legality of the appointment and the official acts of the appointee. Noles v. State, 24 Ala. 672. Many contingencies may be imagined wherein the prompt and effective administration of justice may suggest that process be turned over to one officer rather than another.
“This court would not set such bounds upon the discretion given by law in such cases as to defeat the- purposes of such discretion.
“But we are not prepared to say the discretion here involved is an arbitrary power to determine who shall be the lawful executive officers of the court. To say one of the officers named by law shall have none of its process which he is competent, ready, and willing to serve is to arbitrarily deprive him of the emoluments thereof; is to abolish an office created by law in so far as made an officer of that court. ■
“In thus construing his legal discretion, the judge of that court misconceives his legal duty. We think the constable has a clear legal right to have official recognition in the execution of process without arbitrary discrimination.
“Can this error be remedied by mandamus? The general rule is recognized that mandamus is the appropriate remedy to effect the performance of one specific act, where there is a clear legal right. The supervision of a continuous course of official conduct, speaking broadly, is not within the remedy by mandamus.
“But in Jeter v. State, supra [218 Ala. 12, 117 So. 460], this court did not refuse the remedy on such ground. In view of constitutional and statutory duty of higher courts to supervise by appropriate remedial writs the doings of inferior jurisdictions, only the strongest reasons should impel the court to deny such relief, where the inferior tribunal has misconceived the legal principles governing the course pursued and led to a denial of a clear legal right for which no other remedy exists.
“Notwithstanding some difficulty in framing a writ of mandamus so as to correct the abuse of discretion without denying an advised and just exercise of discretion in keeping with the purposes for which it is given, we think it should not be denied in cases such as this.
“As suggested in the Jeter Case, public officials who pursue a wrong course because of error in conceiving their legal duties are presumed to welcome correction, and to speedily set themselves on a proper official course when made known to them. No continuing supervision is necessary.”

From what we have said it is clear that the duty to deliver process for service is with the clerk. In the exercise of that duty the clerk should not be arbitrary. If the clerk fails in his or her duty, remedies are available to compel his or her obedience to the law.

We do not wish to be understood, however, as holding that a presiding circuit judge cannot supervise court personnel to see that the business before the court is properly disposed of.

Nothing in this opinion should be construed as criticism of Judge Ingram’s method of handling this matter. We have no reason to believe that he was motivated by other than an honest desire to maintain the efficient operation of the courts. To this end, his directive was made in good faith, and no doubt in the belief that such was within his lawful authority.

We are hopeful that the duties of the clerk are more clearly defined. If upon notification of this decision, the circuit court does not set aside the directive, then a writ will issue upon the request of the petitioner.

WRIT GRANTED CONDITIONALLY.

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

      . Even when the office of constable was a constitutional one, the duties of the office were a matter of legislative discretion. Henry v. Waldrop, 206 Ala. 135, 89 So. 371 (1921).

      . § 12-17-94(a)(5), Code of Alabama 1975, specifically requires the clerks of the circuit court (who are also ex-officio clerks of the District Court, Acts 1975, No. 1205, § 7-105(a)) to exercise such duties as are conferred upon them by law, including administrative rules promulgated by order of this court.


author: FAULKNER, Justice.

text:
    Stanley HARRIS v. STATE of Alabama.
    SC 2733.
    Supreme Court of Alabama.
    Feb. 24, 1978.
    James E. Hedgspeth, Jr. of Floyd, Keener & Cusimano, Gadsden, for appellant.
    William J. Baxley, Atty. Gen., Vanzetta Penn Durant, Asst. Atty. Gen., for the State.
   FAULKNER, Justice.

This is an appeal from a jury verdict, and judgment of the court, finding, and decreeing Stanley Harris to be the father of an illegitimate child, and ordering him to pay child support. We affirm.

In March, 1970, Harris, an adult single man, went to Bayou Coiffeur in Alabama City to get a haircut. There he met Mary Moore, an adult single woman. About two weeks later, he asked Mary for a date. They began dating, and a few months later they engaged in sexual intercourse, first at her apartment, then at other places, Birmingham, Atlanta, Miami, the beach at Panama City, and, Mary became pregnant. The pregnancy was aborted, and they resumed their sexual intimacies, once a week, sometimes twice on the weekends, and Mary became pregnant again. Harris asked her to abort. Mary refused, and a child was born unto her on June 30, 1973. After that Harris lost interest in Mary, but Mary did not lose interest in Harris. She would call him at home — sometimes late at night — at his job. She would follow him with or without his new girl friend; she would bang on the apartment door of Harris’ friend when he was there; she would blow her automobile horn in the apartment complex when Harris was visiting his girl friend, and in general, harassed Harris as much as she could. Finally, the tempest subsided. She married and he married.

In a paternity proceeding Stanley Harris was determined to be the father of Mary’s child, and ordered by the court to pay child support. The sole issue raised on appeal is the overruling of Harris’ motion to dismiss the State’s complaint. Harris contends that Alabama’s paternity determination proceeding statutes deny the father of an illegitimate child equal protection of the laws. In short, Harris says that because Mary did not consent to have an abortion when he requested her to do so, coupled with the fact that he agreed to pay for the abortion, he has been denied any decision as to the birth of the child; therefore, he is not liable for the child’s maintenance, care and education.

In Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976) the United States Supreme Court was presented the question of the constitutionality of a Missouri statute requiring the husband’s written consent of a wife seeking an abortion during the first 12 weeks of pregnancy, unless the abortion is certified by a licensed physician to be necessary in order to preserve the life of the mother. The appellants, there, contended that the statute afforded the husband the unilateral right to prevent or veto an abortion whether or not he is the father of the fetus. The court held that the State may not constitutionally require the consent of the spouse as a condition of abortion during the first 12 weeks of pregnancy. The court stated:

“We recognize, of course, that when a woman, with the approval of her physician but without the approval of her husband, decides to terminate her pregnancy, it could be said that she is acting unilaterally. The obvious fact is that when the wife and the husband disagree on this decision, the view of only one of the two marriage partners can prevail. Since it is the woman who physically bears the child and who is the more directly and immediately affected by the pregnancy, as between the two, the balance weighs in her favor.”

The court concluded that the section of the statute requiring the spouse’s consent to abort was unconstitutional.

While in Planned Parenthood of Central Missouri the court dealt with the consent of the husband, and his veto power on abortion, this case presents the question of whether an unmarried man may unilaterally require his unmarried paramour to abort the fetus which he fathered, and, if he cannot, he is not liable for the child’s support after its birth. We hold that he cannot, and that he is. Once the reputed father of an illegitimate child is found guilty, and adjudged its father, he is liable for the care, maintenance, and education of the child, and to all penalties for failure to perform those obligations, the same as a father of a legitimate child. T. 27, § 12-4, Code of Alabama, 1940. Moore v. LeFlore, 288 Ala. 315, 260 So.2d 585 (1972). Obviously, the father of a legitimate child could not forsake his obligations to his child just because his wife failed to honor his request to abort the fetus.

We hold that the decision not to have an abortion was that of Mary Moore, and hers alone, and by not having one at the request of Harris, Harris cannot now shirk his obligations to the child as required by the statute. We find no constitutional infirmities in the paternity determination proceedings statutes.

AFFIRMED.

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