text:
    Donald Joseph Allen GONZALES v. STATE of Mississippi.
    No. 51747.
    Supreme Court of Mississippi.
    March 12, 1980.

      Fielding L. Wright, Jr., James H. Heidelberg, Pascagoula, for appellant.
    A. F. Summer, Atty. Gen. by Wayne Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, SUGG and BOWLING, JJ.
   SMITH, Presiding Justice,

for the Court:

Donald Joseph Allen Gonzales was indicted for the murder of one Robert Lizana. He was tried in the Circuit Court of Jackson County, convicted of manslaughter and sentenced to serve a term of twenty years imprisonment.

On appeal he assigns as error requiring reversal,

(1) The verdict was against the overwhelming weight of the evidence; and

(2) The trial court erred in admitting testimony of premeditation in a manslaughter trial.

At the conclusion of the State’s case in chief, a motion by the State that the charge be reduced from murder to manslaughter was made, and there being no objection, was sustained.

The evidence tended to show that, following a brutal beating of Gonzales by a person unknown, Gonzales had stated that if he could discover the identity of his assailant he would kill him. There is no evidence that Lizana had been the assailant, and on the contrary it appears that he and Gonzales were friends.

Medical evidence showed that Lizana had suffered a gunshot wound from “an extremely powerful weapon”, the bullet having pierced the left lobe of the liver, the stomach, the large blood vessel in the abdominal cavity and the vertebral bodies before it exited.

There was evidence that Lizana, on the occasion of the homicide, had been driven to a trailer home occupied by Gonzales. Liza-na had gotten out of the car and gone to the trailer where he knocked on the door. The door opened and immediately Lizana was shot and killed. There was eyewitness testimony that Gonzales had fired the fatal shot.

The only evidence offered by the defense at the trial was that of a policeman who testified as to the extent of the beating Gonzales had received on the former occasion. There was no evidence linking Lizana with this assault. Gonzales did not testify at the trial as a witness in his own defense.

We can say with confidence that, upon the record, the evidence was sufficient to have sustained a verdict for murder. In his argument on appeal it is contended that the killing was “murder or nothing” and that, the charge having been reduced, the evidence did not support the conviction of Gonzales of manslaughter.

Instructions submitted the case to the jury upon a theory of manslaughter by culpable negligence. In Bruce v. State, 349 So.2d 1068 (Miss.1977), this Court said:

In Jernigan v. State, 305 So.2d 353 (Miss.1974), a murder trial where the defendant claimed accidental discharge of a gun and a manslaughter verdict was returned, we stated, in holding that a fact question for determination on culpable negligence was presented for the jury, the following:
The evidence in this case establishes that defendant pointed a loaded gun at Clarence Bowers, and that the gun discharged, killing Bowers. Defendant’s actions unequivocally show a conscious, wanton and reckless disregard of the likely fatal consequences of his willful act which created an unreasonable risk. The evidence overwhelmingly supports the jury’s verdict of manslaughter. See Frazier v. State, 289 So.2d 690 (Miss.1974); Campbell v. State, 285 So.2d 891 (Miss.1973); Gant v. State, 244 So.2d 18 (Miss.1971). In Robertson v. State, 153 Miss. 770, 121 So. 492 (1928) this Court stated:
If the pointing of a loaded pistol at a human being is not culpable negligence, under the above definition then it would be difficult for the mind of mortal man to conceive of stronger facts which would constitute such negligence. (153 Miss. at 776, 121 So. at 493). [305 So.2d at 354] Compare Latiker v. State, 278 So.2d 398 (Miss.1973). We are of the opinion the appellant’s own testimony was sufficient to withstand a directed verdict and was likewise sufficient for the jury to determine that Bruce was guilty of wanton disregard of human life, culpable negligence, in pointing a deadly weapon at Meredith and deliberately pulling the trigger. (349 So.2d at 1071)

Gonzales was indicted for murder and the trial proceeded upon that charge. In the State’s case in chief there was evidence which, it is now argued, tended to show premeditation. Evidence of premeditation was, of course, properly admitted in a prosecution based upon an indictment for murder. It was only at the conclusion of the State’s case in chief, that the charge was reduced, on motion of the State and without objection by appellant, from murder to manslaughter. There was no motion to exclude the testimony referred to nor was there a request for an instruction directing the jury not to consider it. Under the circumstances, the trial court was not called upon to act and no error was committed. The matter may not be raised here for the first time.

We find no merit in either of the two assignments of error.

The conviction is supported by the evidence, no prejudicial error was committed in the trial and the conviction and sentence must be, and are, affirmed.

AFFIRMED.

PATTERSON, C. J., ROBERTSON, P. J., and SUGG, WALKER, BROOM, LEE, BOWLING and COFER, JJ., concur.


source: Caselaw Access Project

author: LEE, Justice,

license: Public Domain

text:
    Lola Tippitt CALLAHAN v. Roy Glenn CALLAHAN.
    No. 51692.
    Supreme Court of Mississippi.
    March 19, 1980.
    Christopher A. Tabb, Brandon, for appellant.

      McKinley, Zebert & Childre, Thomas L. Zebert, Pearl, for appellee.
    Before ROBERTSON, WALKER and LEE, JJ.
   LEE, Justice,

for the Court:

Lola Tippitt Callahan filed suit against Roy Glenn Callahan in the Chancery Court of Rankin County on July 28, 1977, seeking a divorce on the ground of uncondoned adultery. An answer to the bill of complaint was filed, together with a plea in abatement, setting up the fact that Lola Tippitt Callahan and Roy Glenn Callahan were married in the State of Arkansas June 23, 1969, that Roy Glenn Callahan was not divorced from Jere Ann Callahan, his wife, until July 5, 1969, and that Roy Glenn Callahan did not have the legal capacity to consummate a legal marriage on June 23, 1969. The plea in abatement was sustained by the lower court and, on appeal here, the judgment was affirmed for the reason that Lola Tippitt Callahan was not lawfully married to Roy Glenn Callahan and, therefore, she was not entitled to a divorce on the ground of adultery.

Subsequently, on November 28, 1978, Lola Tippitt Callahan filed an amended bill of complaint for divorce in the Rankin County Chancery Court, averring that Roy Glenn Callahan was lawfully married to another woman on June 23, 1969, and that she was entitled to a divorce from him since he was married to another person at the time of the pretended marriage of the parties (The ninth statutory ground for divorce in Mississippi).

Roy Glenn Callahan filed a plea in bar to the amended divorce complaint, the plea was sustained by the lower court and the amended bill of complaint was dismissed. Lola Tippitt Callahan has appealed and assigns the following errors:

(1) The chancellor erred in ruling that, since Roy Glenn Callahan was never legally married to Lola Tippitt Callahan, prior existing marriage is not a valid ground of divorce.

(2) The chancellor erred in not warding Lola Tippitt Callahan support from Roy Glenn Callahan.

Appellant and appellee cohabited as man and wife until March 28, 1977, when appellant was informed by appellee for the first time that he was married to another person, at the time of his marriage to appellant, and that, therefore, appellant and appellee were not legally married. No children were born of the pretended marriage. In addition to seeking a divorce in the present case, appellant seeks support from appellee.

Mississippi Code Annotated Section 93-5-1 (1972) states twelve (12) grounds for divorce, the ninth ground being “marriage to some other person at the time of the pretended marriage between the parties.”

Appellee argues in his brief:

“It is apparent and conclusively shown by competent evidence that the Appellant and Appellee did not have the legal capacity to consummate a marriage contract.
It then stands to reason that if they did not have the capacity to consummate a marriage contract and this Honorable Court ruled there was no valid marriage, then a Divorce Decree could not be rendered because there was no marriage to dissolve.”

and

“It would not be consistent with this Court’s ruling that, as it pertains to the ground(s) [sic] of adultery, there is no relief because the parties were not legally married and then turn around and say that on the ground(s) [sic] of a prior existing marriage they were married and a divorce could be granted.”

In Case v. Case, 246 Miss. 750, 150 So.2d 148 (1963), this Court said that marriage to another person at the time of a pretended marriage is a ground for divorce and annulment is not maintainable thereon. A divorce decree entered on such ground for divorce should recite that the marriage is invalid and void ab initio.

Mississippi Code Annotated Section 93-7-3 (1972) states five (5) grounds for annulment of marriages, none of which provides for annulment at the time of a pretended marriage where one person was married to another. The section concludes with the following provision:

“The causes for annulment of marriage set forth in this section are intended to be new remedies and shall in no way affect the causes for divorce declared elsewhere to be the law of the State of Mississippi as they presently exist or as they may from time to time be amended.”

We hold that the ground for divorce stated in the amended bill of complaint was a proper one and that the lower court erred in sustaining the plea in bar and in dismissing the bill of complaint.

The second question presented is whether or not appellant is entitled to support from the appellee. The amended bill of complaint sought a divorce, support from the appellee and restoration of appellant’s prior name of Lola Tippitt.

This Court held in Aldridge v. Aldridge, 116 Miss. 385, 77 So. 150 (1918), that, if a marriage is void, there is no foundation for the wife’s right to alimony. The principle was affirmed in Taylor v. Taylor, 317 So.2d 422 (Miss.1975), although under the particular facts and equities of that case, an allowance of support was approved.

If the pleadings in the case subjudi-ce were framed to present the issue of property accumulated through joint efforts of the parties, the lower court should permit introduction of evidence thereasto. Chrismond v. Chrismond, 211 Miss. 746, 52 So.2d 624 (1951).

REVERSED AND REMANDED.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, BROOM, BOWLING and COFER, JJ., concur.

      . Amended effective July 1, 1978 to include ground of irreconcilable differences.


text:
    Gary EUBANKS v. STATE of Mississippi.
    No. 51498.
    Supreme Court of Mississippi.
    March 19, 1980.
    Rehearing Denied April 2, 1980.
    H. C. Mike Watkins, Meridian, for appellant.
    A. F. Summer, Atty. Gen. by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, P. J., and WALKER and LEE, JJ.
   Appeal from Circuit Court, Neshoba County; Marcus D. Gordon, Judge.

AFFIRMED.


author: PER CURIAM.

text:
    Thomas F. HARRIS and Dorothy W. Harris v. Fred McDANIEL d/b/a McDaniel Properties, Inc.
    78-700.
    Supreme Court of Alabama.
    Feb. 29, 1980.
    Walter W. Furner of Furner Boyce & Nave, Bessemer, for appellants.
    Thomas R. McEniry of McEniry, McEniry & McEniry, Bessemer, for appellee.
   PER CURIAM.

Affirmed on the authority of Mellos v. Silverman, 367 So.2d 1369 (Ala.1979).

AFFIRMED.

TORBERT, C. J., and MADDOX, JONES, SHORES and BEATTY, JJ., concur.


text:
    Leroy ADAIR and wife, Dorothy Adair v. MORETTI-HARRAH MARBLE COMPANY, INC.
    78-405.
    Supreme Court of Alabama.
    March 7, 1980.

      John H. Lavette and Philip C. Henry, Birmingham, B. Greg Wood, of Love, Love, Lawrence & Burton, Talledega, for appellants.
    Thomas Reuben Bell, of Bell, Lang & Bell, Sylacauga, for appellee.
   PER CURIAM.

Leroy and Dorothy Adair appeal from a summary judgment granted Moretti-Har-rah Marble Company, Inc. in a personal injury action. We affirm.

Leroy Adair suffered personal injuries in the performance of employment-related duties as an employee of Moretti-Harrah on February 27, 1975. He filed suit on May 23, 1975, seeking workmen’s compensation benefits for his injuries. During discovery and the preparation for this trial it was learned that Moretti-Harrah was self-insured for the payment of workmen’s compensation benefits and conducted its own safety program. Mr. and Mrs. Adair then filed a third party action against Moretti-Harrah in its capacity as insurer, alleging that the company had negligently, wantonly, recklessly or intentionally failed to maintain an adequate safety program.

The workmen’s compensation case was tried and a final judgment was entered on October 6, 1977, awarding Mr. Adair benefits for 30% permanent partial disability. On September 14, 1978, Moretti-Harrah filed a motion for summary judgment based on §§ 25-5-52 and 25-5-53 of the Alabama Code and on the record in the workmen’s compensation case. After a hearing, the trial court entered a summary judgment for Moretti-Harrah stating that a self-insured employer- under the Workmen’s Compensation Act did not have any independent relationship toward the employee other than that of employer-employee and had no additional liability. The Adairs appeal.

The Adairs assert on appeal that an injured employee may maintain a third party action against his self-insured employer in its separate capacity as an insurer, pursuant to Alabama Code, Tit. 26, § 312 (1973 Supp.), the applicable law at the time the case was filed. They ask that this Court adopt the dual capacity doctrine of Beasley v. MacDonald Engineering Co., 287 Ala. 189, 249 So.2d 844 (1971). (See, also, United States Fidelity & Guaranty Co. v. Jones, 356 So.2d 596 [Ala.1977].)

Beasley held that a private insurer under § 25-5-8(a) could be sued for negligence in performing safety inspections; the Workmen’s Compensation Act had not abrogated the common law action against the workmen’s compensation carrier. Liberty Mutual, the insurer in that case, argued that it was immune from suit under Tit. 26, § 312, because the employer, its insured, was not liable to the employee injured as a result of the negligent safety inspection. It contended that it was “standing in the shoes of the employer.” Mr. Justice Simpson, speaking for the Court, rejected this argument, quoting Larson, Workmen’s Compensation Insurer as Suable Third Party, 1969 Duke Law Journal, 1117, 1137:

“ ‘But it is not of the essence of the compensation process that the carrier should step out of its fundamental role as financial guarantor and payor and go into the safety inspection service or medical clinic business directly. There is a big difference. If the carrier merely puts up the money and the employee obtains medical services from an independent physician or clinic, the employee in case of malpractice has someone he can sue. But, if the carrier performs the service directly and if third-party liability is destroyed [by equating the carrier with the employer], the employee has no one to sue.’ ” Beasley, supra, at 197-198, 249 So.2d at 851; bracketed material added by the Beasley court.

He stated that the same reasoning applied to the performance of safety engineering services. There was a distinction between the carrier’s function of payment for benefits and services and any function it assumed in the way of direct or physical performance of services related to the act. ' Justice Simpson characterized Liberty Mutual as “wearing two hats and performing two roles.”

“In its role of supplying of the financial responsibility required of the employer under the act, it is entitled to all of the rights of its insured under the act. In its role of safety engineer it is entitled to no more protection than the law would give to any other in that role. It certainly would have a competitive advantage over other safety engineers if it would [could] claim immunity from common-law liability simply because it also writes the workmen’s compensation coverage for the employer.” Beasley, supra, at 198, 249 So.2d at 852.

The Adairs, analogizing the dual capacity concept of Beasley, contend that Moretti-Harrah, although one legal entity, could be characterized as “wearing two hats and performing two roles.”

Any apparent measure of logic in the contention that a self-insured employer is acting in a dual capacity in performing its own safety program — and is thus amenable to third party liability — breaks down, however, in the effort to transpose the single legal entity — the “employer” — into the definition of third party under § 25-5-11, Ala. Code 1975 (old Tit. 26, § 312). Beasley and Jones are in the context of parties defendant who are in fact third parties, i. e., parties “other than the employer.”

Beasley’s holding of “dual capacity,” and its rationale, therefore, is in answer to the insurance carrier’s contention that, although it is a separate entity from the employer, it should be equated with “employer” for immunity purposes, because in making safety inspections it is performing a function which otherwise would be performed by the employer. Beasley, therefore, begins with the premise that the insurance company (compensation carrier) is a third party and concludes that, while acting in that capacity, it is not entitled to the immunity afforded the employer.

Here, we begin with the premise that the employer is not a third party. Just as the carrier cannot be the employer, the employer cannot be a party “other than the employer.” We do not believe that the totality, of the Workmen’s Compensation Act contemplates the transformation from employer to third party by its performance, or lack of performance, of work-related activities such as safety inspections.

We hold, therefore, that the employer does not lose its employer status— for immunity purposes- — by qualifying under the Workmen’s Compensation Act as a self-insurer and, in that capacity, performing or failing to perform safety inspections.

AFFIRMED.

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

BLOOD WORTH, J., not sitting.

      . Mr. Adair was injured on February 27, 1975. The 1975 amendment to Tit. 26, § 312 (now § 25-5-11) became effective in November, 1975. Thus, the 1973 amendments are applicable.

      . This is not to say, of course, that we are changing or modifying the law with respect to an employee’s right of action against the employer not embraced by the Workmen’s Corn-pensation Act. See, for example, Gentry v. Swann Chemical Co., 234 Ala. 313, 174 So. 530 (1937). The instant holding is in the context of a third party action authorized by § 25-5-11.


author: C. C. TORBERT, JR. Chief Justice HUGH MADDOX Associate Justice

text:
    OPINION OF THE JUSTICES.
    No. 265.
    Supreme Court of Alabama.
    March 11, 1980.
   Members of the Senate

State Capitol

Montgomery, Alabama

Dear Sirs:

The Honorable McDowell Lee, Secretary of the Senate, forwarded to the members of the Alabama Supreme Court the following Senate Resolution No. 70:

“WHEREAS there [is] pending or [has] just been adopted in both Houses of the Legislature S.J.R. 69, which relates to the order of business of both Houses of the Legislature on the Tenth Legislative Day, and [this resolution conflicts] with provisions of the Alabama Sunset Law of 1976, as amended, Sections 41-20-1 through 41-20-16, Code of Alabama 1975, and particularly Section 41-20-10; now therefore
BE IT RESOLVED BY THE SENATE OF THE LEGISLATURE OF ALABAMA, That we respectfully request the Honorable Chief Justice and Associate Justices of the Supreme Court or a majority of them, to give this body their written opinions on the following important constitutional questions which have arisen concerning the proper procedure of the two Houses of the Legislature:
1. In view of the fact that Section 53 of the Constitution of Alabama specifically delegates to each House of the Legislature the power to prescribe the rules of its procedure, but does not stipulate the form in which such rules may be guised, does the latest expression of the Houses on the matter of rules procedure, though contained in resolution form, supersede earlier rules contained in statutory form?
2. In view of the fact that the legislative power of this state vested in the Legislature by Section 44, of the Alabama Constitution is plenary, except as limited by the state or federal constitution, and there is no limitation in Alabama’s Constitution on the form or the manner in which rules governing legislative procedure must be expressed, would the latest rule of legislative procedure supersede any rules theretofore prescribed, regardless of the form of the prescription?
RESOLVED FURTHER, That the Secretary of the Senate is hereby directed to send five true copies of the above-cited Senate [Resolution] to the Clerk of the Supreme Court of Alabama, and to trans--mit this request to the Justices of the Supreme Court forthwith upon adoption of this Resolution.”

The Joint Resolution of the Senate and House of Representatives (S.J.R. 69), seeks to alter certain procedures in Section 41— 20 — 10, Code of 1975. This section of the code is part of the Alabama Sunset Law of 1976.

The Senate, or the House of Representatives, or both houses acting jointly, has the “. . . power to determine the rules of its proceedings . . . Section 53, Constitution of Alabama. As a coordinate branch of government, the legislature’s power is plenary unless controlled or limited by other provisions of the constitution. The Courts cannot look to the wisdom or folly, the advantages or disadvantages, of the rules which a legislative body adopts to govern its own proceedings. Tayloe v. Davis, 212 Ala. 282, 102 So. 433 (1924); Opinion of the Justices No. 185, 278 Ala. 522, 179 So.2d 155 (1965).

Recognition of the principle announced in the above cases does not, however, answer the questions posed. The question remains as to whether any other provisions of the constitution inhibit the power given in Section 53.

Section 61, provides that, “No law shall be passed except by bill . . . .” If no law can be enacted except by the passage of a bill, then it is clear that no law may be amended by means other than the passage of a bill. Therefore, a joint resolution cannot be used to amend an existing statute.

We are of the opinion that for an amendment to an existing statute to be valid, it must be passed in accordance with the same constitutional requirements as were necessary to enact the original statute. See Sections 62 and 63 of the Constitution. In Tayloe, supra, the Court reasoned as follows:

The power of each house to determine its rules is the power in either house to adopt the same rules as the other, the power to make joint rules not inconsistent with the Constitution.
The point of concern in dealing with section 6 of the Budget Act, above quoted, arises upon a consideration of the rules of procedure prescribed by the Constitution itself. Section 53 must be construed in connection with other provisions. The power to make rules cannot overturn those rules relating to the course of pending legislation imbedded in the Constitution.
What are these constitutional rules? No law shall be passed except by bill, and no bill amended so as to change its original purpose. Section 61. No bill shall become a law until it shall have been referred to and acted upon by a standing committee. Section 62. Every bill shall be read on three different days in each house, the final reading to be at length, and passed by a majority vote of yeas and nays entered on the journals.
******
There are rules for the style of laws, and the form of amendments to existing laws (section 45); rules for the passage of local laws (section 106); and other rules will suggest themselves. No argument is needed to demonstrate that no rule of either house can evade or avoid the effect of these provisions. Precedents without number may be readily recalled.

Moreover, we note that Section 45 provides, among other things, that

no law shall be revived, amended, or the provisions thereof extended or conferred, by reference to its title only; but so much thereof as is revived, amended, extended, or conferred, shall be re-enacted and published at length.

Thus, statutes which are amended must be re-enacted and published at length. Clearly, the phrase “published at length” was intended to require notice to the citizens of the state. We know of no provision in the Constitution requiring public notice of legislative rules.

If the Joint Resolution dealt only with an internal rule of the legislature, not set forth in a state law, it would be a valid exercise of power. However, the Joint Resolution does not merely change a rule of procedure. In actuality, it amends a state law. Thus, the amendment process must comply with the same constitutional formalities as were necessary for the original enactment.

Therefore, we respectfully answer the questions in the negative.

Respectfully submitted,

C. C. TORBERT, JR. Chief Justice

JAMES H. FAULKNER

RENEAU P. ALMON

JANIE L. SHORES

SAM A. BEATTY

Associate Justices

I am of the opinion that Section 11 of Act No. 512, Acts, 1976 [Code 1975, § 41-20-10], is a rule of procedure, and could not bind either house of a future Legislature; therefore, I believe that the current Legislature, if it desired to do so, could follow a rule of procedure different from that specified by a prior Legislature, without having to adopt a*bill to amend that prior law.

This Court’s case of Tayloe v. Davis, 212 Ala. 282, 102 So. 433 (1924), in my opinion, is authority for the general proposition that a rule of procedure expires with the Legislature adopting it, unless readopted by future Legislatures.

In Tayloe, as I understand that case, a taxpayer brought a suit to challenge an entire Act of the Legislature creating a state budget commission (Gen.Acts. 1919, p. 33) on the ground that Sections 6 and 7 of the Act, which set up the procedure for handling budget bills were unconstitutional. This Court, in discussing the two sections, opined:

“Section 6 of the Budget Law, in so far as it requires a two-thirds vote to alter or amend a budget bill, is void. It is suggested that a taxpayer cannot raise the question; that no injury is shown by the mere promulgation of a rule which does not bind either house in future Legislatures ; and that the rule only tends to prevent increased appropriations to the hurt of the taxpayer.
“We are not prepared to assent to the proposition that a taxpayer has no interest in having appropriations made in the manner fixed by the Constitution, and the subjects as well as amounts of appropriations determined by chosen representatives charged with that duty.
“We are not unmindful of the rule that the constitutionality of a statute should not be passed upon unless duly presented and necessary to the right decision of the cause before us. Here the question is directly presented, and its decision necessary to bring under review the further question whether section 6 infects and avoids the entire Budget Act. Moreover, the question involved is one of public concern. The rule is incorporated in the statute. Future Legislatures are invited though not bound, to readopt and to adhere to it in dealing with budget bills. It concerns the maintenance of the autonomy of the co-ordinate departments of government, and maybe the validity of future legislative acts. To deal with the question we deem a part of our duty to support the Constitution.
“Section 7 of the Budget Law merely declares a rule of priority in considering budget bills over other appropriation bills. This is within the power of each house to regulate its procedure. Other provisions of section 7 give legislative recognition to the requirements of section 71 of the Constitution.
******
“. . . Section 6 deals with the action to be taken by the Legislature on pending appropriation bills. It is severa-ble from the general provisions of the bill. Being a rule of procedure it expires with the Legislature adopting it, unless readopted by future Legislatures. We may say this section severs itself by the nature of it. We cannot assume the legislative intent was that there should be no budget law unless accompanied with a surrender of legislative responsibility in dealing with pending bills. Rather do we assume that the thoughtful legislator welcomes aid in meeting the responsibility which is his in the final enactment of revenue and appropriation bills.” (Emphasis added.)

I candidly admit that this Court opined, in Tayloe, that Section 7 of the Act under consideration merely declared a rule of priority, and was “within the power of each house to regulate its procedure.” I do not admit, however, that Tayloe stands for the proposition that future Legislatures would be bound to follow a statutory procedure, unless they adopted an Act to modify or repeal that prior procedure. Tayloe does say that the Legislature can validly adopt a rule giving priority to certain types of legislation. There is no constitutional impediment to a Legislature’s adopting such a rule of procedure by statute or by rule. Any such rule of procedure would obviously be binding on that Legislature, and, if adopted by an Act of that Legislature, I think it would be binding on it until changed by statute. That’s what I think Tayloe says— that a Legislature can, by statute, prescribe a rule of procedure. I also think that Tay-loe stands for the proposition that a rule of procedure adopted by one Legislature, whether by rule or statute, “expires with the Legislature adopting it, unless readopted by future Legislatures.” As Tayloe suggests: “Future Legislatures are invited though not bound, to readopt and to adhere to it in dealing with budget bills.” (Emphasis added.)

I realize that prior Legislatures have passed many statutes which contain procedural provisions, which purport to govern legislative procedures. When a succeeding Legislature follows any procedural rules provided for by statute, without objection, the Legislature, by its very action, is adopting the statutory procedure, and no problem is created. When a succeeding Legislature, however, does not wish to adopt a statutory procedure which has been established by a previous Legislature, as is the case here, I believe that the Legislature can change that procedure without adopting a Bill.

In short, I think Tayloe is authority for the proposition that rules of procedure expire with the Legislature adopting them, unless readopted by future Legislatures. Tayloe has been cited as authority for this proposition. See 81A C.J.S. States § 52, p. 400; Town of Exeter v. Kenick, 104 N.H. 168, 181 A.2d 638 (1962). I also believe that a substantial majority of the precedents of the House of Representatives suggest that the House, in its procedure, is not bound by a law passed by a former Congress. See 4 Hinds, Precedents of the House of Representatives, §§ 3298, 3579; 5 Hinds, Precedents of the House of Representatives, §§ 6002, 6743-6747.

HUGH MADDOX

Associate Justice


author: C. C. TORBERT, Jr., Chief Justice

text:
    OPINION OF THE JUSTICES.
    No. 266.
    Supreme Court of Alabama.
    March 12, 1980.
   Members of the Senate

State Capitol

Montgomery, Alabama

Dear Senators:

The Honorable McDowell Lee, Secretary of the Senate, forwarded to the members of the Alabama Supreme Court the following Senate Resolution No. 71 and the Bill attached:

BE IT RESOLVED BY THE SENATE OF THE LEGISLATURE OF ALABAMA, That we respectfully request the Honorable Chief Justice and Associate Justices of the Supreme Court, or a majority of them, to give this body their written opinions on the following important constitutional questions which have arisen concerning the pending bill, S.B. 320, as substituted and amended, a copy of which is attached to this resolution and made a part hereof by reference:
1. Does Section 1 of S.B. 320, as substituted and amended, contain more than one subject and as a result conflict with Article IV, Section 45 of the Constitution of Alabama of 1901?
2. Does Section 1 of S.B. 320, as substituted and amended, change the original purpose of the original S.B. 320 and as a result conflict with Article IV, Section 61 of the Constitution of Alabama of 1901?

RESOLVED FURTHER, That the Secretary of the Senate is hereby directed to send sufficient copies of the pending S.B. 320 with the Substitute and Amendment to the Clerk of the Supreme Court of Alabama, and to transmit the request to the Justices of the Supreme Court forthwith upon adoption of this Resolution. Subs for S.B. 320

Proctor

SYNOPSIS: This bill provides further for the funds for cost-of-living increases for teachers and state employees, and for certain other Medicaid emergencies.

A BILL

TO BE ENTITLED

AN ACT

To provide further for the funds to pay the cost-of-living increase for certain education personnel as authorized under Act No. 79-540, adopted at the 1979 Regular Session and for state employees and officials authorized under Act No. 79-724, adopted at the 1979 Regular Session, and for Medicaid'emergency use and to appropriate the estimated ending balance in the Alabama Special Educational Trust Fund provided for in Section 1 of Act No. 79 — 540, adopted at the 1979 Regular Session.

BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:

Section 1. It is the intention of the legislature to make available the sum of $11,447,537 provided as unappropriated ending balance in Act 79-540 to be used and is hereby appropriated for' payment of the cost-of-living increase for the fiscal year ending September 30, 1980, in accordance with the provision of Act No. 79-540. It is further the intention of the legislature and hereby appropriated to the extent necessary as authorized by Act No. 79-724 from the General Fund of Alabama or from any departmental budgets from which state employees are paid such amounts as are necessary for state employee pay increases as authorized by Act No. 79-724 of the 1979 Regular Session.
Section 2. For the purpose of providing funds for emergency payment to Medicaid through the fiscal year ending September 30,1980, the legislature authorizes and hereby appropriates from such reserves as may accrue from the General Fund of the state of Alabama and from such reserves as may exceed the amounts required by law for the state Insurance Fund, such amounts as are available and as may be determined by the Governor to be necessary for the operation of Medicaid through September 30, 1980. In the event that the available balances in the General Fund of Alabama and the state Insurance Fund should be insufficient, the Governor shall have the power to use and there is hereby appropriated other state funds including any Trust funds except those which had a zero balance on September 30, 1979, for the purpose of fully funding Medicaid through September 30,1980, up to the sum of $28 million.
Section 3. All laws or parts of laws which conflict with this Act are hereby repealed.
Section 4. The provisions of this Act are severable. If any part of the Act is declared invalid or unconstitutional, such declaration shall not affect the part which remains.
Section 5. This Act shall become effective immediately upon its passage and approval by the Governor, or upon its otherwise becoming a law.
The answer to question # 1 is in the affirmative.

The answer to question # 2 is in the affirmative.

In reaching an opinion on whether substitute for S.B. 320 violates § 45 or § 61 of the Constitution, the Justices have referred to the Journals of the Alabama State Senate. Alabama State Bridge Corporation v. Smith, 217 Ala. 311, 116 So. 695 (1928). From the Journals of the Alabama Senate, which were furnished to the Court by the Honorable McDowell Lee, Secretary of the Senate, some of the following facts concerning S.B. 320 appear:

Senate Bill 320 was introduced on the fifth legislative day and was referred to the Finance and Taxation Committee. The Finance and Taxation Committee favorably reported a Finance and Taxation Committee substitute for S.B. 320, with amendment. The Finance and Taxation Committee substitute for S.B. 320, as amended, received its second reading in the Senate. On the ninth legislative day, the Proctor substitute for S.B. 320, the subject of your advisory request, was introduced.

The title to S.B. 320, as originally introduced, reads as follows:

“To transfer funds from the state insurance fund to the credit of the state general fund to be used only for medicaid purposes; and to further provide for the transfer back of said funds from the state general fund to the state insurance fund by the state finance director with approval of the Governor.”

The title to the Finance and Taxation Committee Amendment to substitute for S.B. 320 reads as follows:

“To transfer funds from the state insurance fund to the credit of the state general fund to be used only for medicaid and investigation of welfare fraud purposes; and to further provide for the transfer back of said funds from the state general fund to the state insurance fund and the attorney general’s office by the state finance director with approval of the Governor.”

The title to the Proctor substitute for S.B. 320 reads as follows:

“To provide further for the funds to pay the cost-of-living increase for certain education personnel as authorized under Act No. 79-540, adopted at the 1979 Regular Session and for state employees and officials authorized under Act No. 79-724, adopted at the 1979 Regular Session, and for Medicaid emergency use and to appropriate the estimated ending balance in the Alabama Special Educational Trust Fund provided for in Section 1 of Act No. 79-540, adopted at the 1979 Regular Session.”

The purpose of S.B. 320, as originally introduced, was to transfer funds from the state insurance fund to be earmarked for medicaid purposes. As originally introduced, S.B. 320 was not an appropriation bill, but merely earmarked money to be expended on due appropriation. Nachman v. State Tax Commission, 233 Ala. 628, 173 So. 25 (1937).

The Finance and Taxation substitute for S.B. 320 did not, in our opinion, change the original purpose of S.B. 320. The Finance and Taxation Committee substitute for S.B. 320 did add an additional earmarking provision to provide that the transferred funds could be used for “. . . investigation of welfare fraud . . but we think that the Finance and Taxation Committee substitute was sufficiently germane and cognate to the original purpose of S.B. 320 and that the Finance and Taxation Committee substitute does not violate § 61 of the Constitution. As six justices opined in Opinion of Justices, 361 So.2d 536, 538 (Ala.1978):

“Section 61 provides that ‘no bill shall be so altered or amended on its passage through either house as to change its original purpose.’ The ‘purpose’ of a bill within this section is its general purpose, not mere details through which its purpose is manifested and effectuated. State Docks Commission v. State ex rel. Jones, 227 Ala. 521, 150 So. 537 (1933).”

The Proctor substitute for the Finance and Taxation Committee substitute for S.B. 320, however, presents a serious constitutional question. It not only changed the purpose of original S.B. 320, but also changed the nature of the bill from one earmarking funds to be expended on appropriation into one which actually makes an appropriation. In fact, the title to the Proctor substitute states that its purpose is to provide funds to pay cost-of-living increases, previously authorized by law, for certain education personnel and for state employees and officials. The Proctor substitute also would appropriate “from such reserves as may accrue from the General Fund of the state of Alabama and from such reserves as may exceed the amounts required by law for the state Insurance Fund, such amounts as are available and as may be determined by the Governor to be necessary for the operation of Medicaid through September 30, 1980 . . .,” and “. . . other state funds including any trust funds except those which had a zero balance on September 30, 1979 . . .,” yet, there is nothing in the title which suggests that the “insurance fund” and “other state funds including any trust funds” might be affected.

It is apparent that the Proctor substitute for- S.B. 320 changed the general purpose of S.B. 320 from one which had as its general purpose the transfer of certain state funds to the General Fund to meet specified needs to one which appropriated certain funds, without mentioning those funds in the title. Cf. Alabama Education Association v. Board of Trustees of University of Alabama, 374 So.2d 258 (Ala.1979). The Proctor substitute for S.B. 320, therefore, would violate both Sections 45 and 61 of the Constitution of Alabama.

Although you did not request our opinion on whether the Proctor substitute to S.B. 320 would violate Section 71 of the Constitution, we respectfully call Section*71 of the Constitution to your attention, especially in view of the fact that the Proctor substitute appropriates state funds.

Respectfully Submitted,

C. C. TORBERT, Jr., Chief Justice

HUGH MADDOX

JAMES H. FAULKNER

RENEAU P. ALMON

JANIE L. SHORES

T. ERIC EMBRY

SAM A. BEATTY

Associate Justices


author: FAULKNER, Justice.

text:
    James W. BROWN and United States of America v. BILLY MARLAR CHEVROLET, INC., a corp., et al.
    78-212.
    Supreme Court of Alabama.
    March 14, 1980.
    James A. Turner, of Turner, Turner & Turner, Tuscaloosa, for appellants.

      John A. Owens, of Phelps, Owens, Jenkins, Gibson & Fowler, Tuscaloosa, for James Orville Scott, appellee.
   FAULKNER, Justice.

This is an appeal from a jury verdict, and judgment for Billy Marlar Chevrolet and James Orville Scott, resulting from a suit for personal injuries received by James W. Brown in an automobile accident. We affirm.

After a domino game with friends in Reform, Brown, receiving a ride from Dewey Bonner, returned to his home on U. S. Highway 82 in Pickens County. Upon his arrival, Brown disembarked from Bonner’s automobile on the opposite side of the highway. He started across the highway— looked to his left, saw approaching cars— looked to his right, saw no moving vehicles. He proceeded to cross the road, and while crossing, a car on his left passed him. When he reached the center of the road, he hurried — shooing his dog from ' there. When he reached the apron, he was hit by a car owned by Billy Marlar Chevrolet, and driven by James Scott. He was knocked 25 feet east of the highway into a ditch. Brown’s injuries included severance of his right foot, his right leg broken in 5 places— requiring amputation — and a broken pelvis.

In his complaint against Scott and Mar-lar, Brown asserted a claim for the use and benefit of the United States with its expressed consent under T. 42, § 2651 — § 2653, U.S.C., for past and future treatment of his injuries.

The trial proceeded on an answer of contributory negligence, and at its conclusion, the trial court directed a verdict for Billy Marlar Chevrolet, and submitted the case to the jury on the issue of Scott’s liability. The jury returned a verdict for Scott. Brown filed a motion for new trial asserting trial court errors, and for the first time, challenged the master jury list. The motion was denied.

The principal issues presented to this Court for review are: the challenged master jury list, the sufficiency of Scott’s plea of contributory negligence, the refusal of the trial court to permit the exhibition of a prosthetic device, and the court’s charge of the duty of a pedestrian when crossing a roadway other than at an intersection or crosswalk.

Jury List Challenge

Because Brown waited until after the trial to challenge the master jury list, we hold that, under the facts of this case, he has now waived that right. This Court held in Williams v. State, 342 So.2d 1328 (Ala.1977) that:

“ . . . henceforth a failure by the defendant in a criminal case to raise proper objection to the composition of a grand or petit jury, including, but not limited to, the constitutional ground of the jury selection process, before entering upon the trial of the case on its merits, constitutes a waiver of his right to do so, subject, of course, to the recognized exceptions of fraud and as to matters which were not known, or by the exercise of due diligence, could not have been known, before trial.”

Even though Williams was a criminal case, we opine that the rule announced there is also applicable in a civil case. Cf. Fulwider v. Jacob, 221 Ala. 124, 127 So. 818 (1930).

Without setting it out, the evidence clearly shows that Brown’s counsel, with due diligence, could have found out how the master jury list was compiled. Moreover, after reviewing the testimony of the jury commission clerk and other members of the jury commission, we conclude that there was no fraud involved in compiling the jury list by the commission.

Contributory Negligence Plea

In his answer, Scott pleaded the affirmative defense of contributory negligence. In one instance, he stated that “plaintiff was guilty of negligence which proximately contributed to this accident” — in another, he stated that “plaintiff was guilty of contributory negligence.” Brown challenges the sufficiency of those allegations to raise the affirmative defense of contributory negligence. He excepted to the court’s oral charge, and the requested written charges on contributory negligence given by the court, on the same grounds stated here on appeal — i. e., no specific allegations.

While Rule 8(c) ARCP provides that, “In pleading to a preceding pleading, a party shall set forth affirmatively . contributory negligence . . . we opine that extensive factual allegations of contributory negligence need not be set out in an answer. The answer here in general terms is sufficient under the Rule. Cf. American Motorists Ins. Co. v. Napoli, 166 F.2d 24 (5th Cir. 1948). See also 5 Wright & Miller, Federal Practice and Procedure, Civil, § 1274.

Admissibility of Prosthetic Device

Brown says that the trial court abused its discretion by prohibiting him from demonstrating to the jury how his artificial leg functioned, and the means by which it was attached to his body. Prosthetic devices are admissible in evidence in the discretion of the trial judge, provided that they are not unduly inflammatory, or offensive, and do not unjustly arouse sympathy for or prejudice against a party. See 29 Am.Jur.2d § 772, p. 842; 83 A.L.R.2d 1273, Annotation § 3; Cf. McElroy, The Law of Evidence in Alabama, Vol. 2, § 207.01(5) (exhibiting injury to the jury).

Prom our examination of the evidence, it appears that Brown showed the jury about everything there was to show regarding his artificial leg. For example, part of Brown’s testimony included:

“Q. Now, you are now wearing an artificial leg? Was that artificial leg part of the treatment you received from this accident?
“A. Yes.
# ¡}í sf: *
“Q. Mr. Brown, now you wore this leg down here on Monday, did you not?
“A. Yes.
“Q. And I noticed yesterday you were not wearing the leg. Will you explain that to the jury?
“A. They got a thing on here that’ll bend and told me to wear I got a belt that fastens to my belt and I had to work with my knee and sometimes it hurts me to sit in these chairs on the back of my leg.
“Q. Is that the reason you did not wear your leg yesterday and today?
“A. That’s the reason I didn’t wear my leg.
“Q. Will you pull up your britches leg now and let’s show the jury this leg? How it works? You mind if we take your shoe off? Now, do you have anything in the ankle that moves?
“A. Unh unh.
“Q. There’s no joint in the ankle, that’s what I was wondering about.
“A: No joint.
“Q. And it moves in the knee joint?
“A. In the knee.
“Q. Now, pull the britches leg on up there and let’s see what we can see. Can you stand up on it without a shoe on?
“A. Yeah, I can stand up.
“Q. Now, how far does it come? Show the jury. Comes on up to the hip, right?
“A. Yes.
“Q. Is it uncomfortable?
“A. Well, not too bad, and that pain
“Q. Now, when you say it pains you, what do you mean, describe that to the jury.
* * * * * *
“Q. What holds it to your body?
“A. A belt.
“Q. Is that belt comfortable?
“A. No.
* * * * * *
“Q. Yes, sir. All right, sir. You know how much that leg weighs?
“A. Nine and a half pounds.
“Q. Do you find it difficult to walk any distance with that leg?
“A. Yes, I do.”

We think that Mr. Brown got his full measure of demonstration across to the jury. We find this contention to be without merit.

Jury Charges

At the request of Scott, the trial court gave this charge:

“9. The Court charges the jury that, under the laws of the State of Alabama, James W. Brown, as a pedestrian crossing the roadway at a point other than within a marked crosswalk or within an unmarked crosswalk at an intersection, was required to yield the right-of-way to the vehicle being driven by James Orville Scott.”

Brown excepted to the charge on the ground it was misleading. Moreover, he contends that the trial judge erred in giving the charge because he did not instruct the jury with respect to § 32-5-273, Code 1975, providing that:

“Notwithstanding the provisions of sections 32-5-270 through 32-5-272 every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian upon any roadway and shall give warning by sounding the horn when necessary and shall exercise proper precaution upon observing any child or any confused or incapacitated person upon a roadway. (Acts 1949, No. 516, p. 740, § 17.)”

In our opinion, the trial judge properly instructed the jury of the duty of a driver under § 32-5-273, when he said this:

“The driver of a motor vehicle must keep a lookout for those who are also using the highway and must exercise due care to anticipate the presence of others on the highway. A motor vehicle driver is chargeable with the knowledge of what a prudent, vigilant operator would have seen and it is negligence if he fails to discover a traveler he could have discovered in time to avoid the injury. The driver is also negligent if he sees a person located in a dangerous situation on a highway and does not then exercise due care to avoid such injury.”

We do not find the charges misleading, and we do not find any error in the court’s oral charge and the given requested charges.

Thé judgment of the trial court is affirmed.

AFFIRMED.

TORBERT, C. J., and ALMON and EM-BRY, JJ., concur.

JONES, J., concurs in the result.


author: FAULKNER, Justice. MADDOX, Justice

text:
    Shirley Lewis RUMLIN v. D. C. LEWIS et al.
    78-635.
    Supreme Court of Alabama.
    March 14, 1980.

      Joel W. Ramsey, of Ramsey & Baxley, Dothan, for appellant.
    C. R. Lewis, Dothan, for appellees.
   FAULKNER, Justice.

This is an appeal from an order dismissing a petition filed by Shirley Lewis Rumlin praying for a sale of land, and division of the proceeds. We affirm.

To get the facts of this case in proper perspective, they must be stated in chronological order.

First, the maiden name of the mother of Shirley Lewis Rumlin was Lillie Mae Edwards. She was born in 1919. In 1939 or 1940 Lillie Mae married Willie Smith, and they lived together as man and wife in Tampa, Florida for about one year. The death of Smith terminated this marriage.

Second, Lillie Mae left Tampa, and on January 22, 1945, married Leroy Gainey, Jr., in Dothan, Alabama. They lived together in Dothan and Hattiesburg, Mississippi. Gainey, a soldier, was sent to the Pacific Theatre of War by the U. S. Army. He was there on V.J. Day, and shortly thereafter, returned to the States. When he returned, as Lillie Mae testified, “he went one way and I went another.”

Third, although Lillie Mae never divorced Gainey, she did remarry — a John Victor Reese of Donaldsville, Georgia, on August 19, 1949. Meanwhile, on January 31, 1949, Lillie Mae gave birth to a child — Shirley, the appellant here.

Shirley alleges that she is the daughter of Clarence W. Lewis, who.died intestate on December 25, 1974, owning the property sought to be sold. The defendants’ motion to dismiss the petition was granted by the trial court.

Her documentary evidence to establish that she was the child of Clarence W. Lewis includes (1) a copy of a birth certificate dated June 24, 1949, showing her name— Shirley Faye Lewis, date of birth — January 31, 1949, father — Clarence W. Lewis, mother — Lillie Mae Edwards Gainey; (2) a copy of a declaration of paternity signed by Clarence W. Lewis, witnessed by J. A. Logue, Judge of Probate, and A. E. Johnston, dated and notarized by Evelyn Buie on June 17, 1949. While this declaration was filed with the Department of Health, Bureau of Vital Statistics, it was not spread upon the minutes of the Houston County Probate Court. Live testimony to prove that Shirley’s father was Clarence W. Lewis came from her mother, Lillie Mae Kimball. Other than her testifying about her many marriages, and the homecoming of Gainey, she testified that Clarence W. Lewis was Shirley’s father.

The law concerning the presumption of legitimacy of a child born of a married woman, and rebutting that presumption, has been adequately, stated in Leonard v. Leonard, 360 So.2d 710 (Ala.1978). It would serve no useful purpose to restate that law in this case. There was no evidence introduced to show that Gainey could not have been Shirley’s father. Lillie Mae’s testimony is insufficient to rebut the presumption of legitimacy. Her testimony that Lewis was the father of Shirley was inadmissible. See Leonard at p. 713.

We are left with the question of the effect of the birth certificate and the declaration of paternity. And, in our opinion, they have no effect in the decision of this case. Unlike the situation in Leonard, the declaration of paternity was not spread upon the minutes of the probate court. That is a statutory requirement of § 26-11— 2, Code of Ala.1975. But, even so, if this case were one involving the legitimation of a bastard child, rather than one to rebut the presumption of legitimacy, we would not consider that failure to spread to be fatal. Here the Department of Health certified that “the attached Declaration of Paternity is an exact copy of the record filed in this office on June 24,1949.” We do not believe the Department would certify a record that was not filed with it. Moreover, the declaration was witnessed by the probate judge. So, something must have gone awry in the probate office of Houston County.

We conclude by holding that the evidence here is insufficient to rebut the presumption of legitimacy, and affirm the trial court’s order of dismissal on the authority of Leonard.

AFFIRMED.

TORBERT, C. J., and BLOODWORTH, JONES, SHORES and BEATTY, JJ, concur.

MADDOX, ALMON and EMBRY, JJ, dissent.

MADDOX, Justice

(dissenting).

With the presentation of this case, this Court was given the opportunity to reconsider its opinion in Leonard v. Leonard, 360 So.2d 710 (Ala.1978). In that case, I voiced my disagreement with the Court’s treatment of the very same issue which confronts us now, viz., what effect will the law give to the common-law presumption that children born during coverture are presumed to be the lawful issue of the husband. Unfortunately, the Court’s treatment of this issue has not changed in the nearly two years which have elapsed since Leonard; neither has my view that Leonard is wrong. Yet, in light of the serious constitutional ramifications involved, I feel compelled to reassert, with greater force and against a backdrop of recent decisions which guarantee equal protection of the law to illegitimates, my deep concern over the Court’s determination.

Realistically speaking, this case requires for its adjudication the resolution of a single question of fact. That question is, was the decedent, Clarence W. Lewis, the father of the petitioner, Shirley Lewis Rumlin? If it is found that he was her father, the petitioner will be fully entitled to partake in the assets of his estate. If it is found that he was not her father, the petitioner is as a stranger and her claim is without merit. Thus, upon the resolution of this single issue of fact rests the entire merits of the petitioner’s claim.

In support of her claim and in an effort to sway the resolution of the factual issue in her favor, the petitioner presents some compelling evidence. The most cogent piece of evidence presented was a document which purported to be a certified copy of a declaration of paternity, signed by the putative father, acknowledged by two witnesses, and filed with the Bureau of Vital Statistics. It is absolutely clear that this document was executed by the putative father for the express purpose of legitimating the petitioner under Ala.Code, Tit. 27, § 11 (1958), now Code 1975, § 26 — 11—2; however, since the declaration was not spread upon the minutes of the Houston County Probate Court, it did not meet all the statutory requirements, and, therefore, did not have the effect of legally legitimating the petitioner. Nevertheless, the document stands as an important piece of evidence bearing upon the factual issue of Mr. Lewis’ parentage.

The petitioner also presented other less reliable forms of evidence. She presented her birth certificate upon which Mr. Lewis was listed as her father. Likewise, she offered the testimony of her mother, Lillie Mae Kimball, who testified that Mr. Lewis was the petitioner’s natural father. Mrs. Kimball also testified to the effect that she had not seen the petitioner’s presumed father (Mrs. Kimball’s husband at the time) since he returned from overseas duty during World War II. Taken as a whole, this evidence is substantial and highly persuasive.

In responding to these facts, the respondents do not offer any substantive evidence. Instead, they rely wholly upon a common-law presumption, a presumption whose operative effect would have the petitioner presumed to be the daughter of her mother’s husband. It is not disputed that this presumption is still adhered to in Alabama, the most recent expression of its vitality being found in Leonard, supra; however, the presumption no longer carries the conclusive effect it once enjoyed under the common law. Its effect has been gradually diminished as more and more courts have come to recognize the archaic mold into which it is cast. As far as its effect in Alabama is concerned, the presumption is not conclusive and may be rebutted upon the introduction of proper evidence. Carnegie v. Carnegie, 261 Ala. 146, 73 So.2d 556 (1954); Arthur v. Arthur, 262 Ala. 126, 77 So.2d 477 (1955). The question then becomes, is the proper evidence presented here?

As noted by this Court in its decision in Bullock v. Knox, 96 Ala. 195, 11 So. 339 (1892), the question of paternity is one of fact, not law; and, as fact, it can be established by clear and conclusive evidence. The majority, in relying on Leonard, equates clear and conclusive evidence with evidence establishing natural, physical or scientific impossibility. Such has long been abolished as the proper rule. Chief Justice Marshall espoused the following as early as 1825:

“The presumption of law is in favor of the legitimacy of a child born in wedlock, but . . this presumption may be rebutted by other testimony, which does not go to the full extent of absolute impossibility.” Stegall v. Stegall, 2 Brock 256, Fed.Cas.No.13,351 (1825).

I believe the necessity of showing impossibility is an unfortunate antiquated holdover from the common-law rule. When followed it operates to accomplish the assertion of legalistic form over practical fact. I, therefore, cannot agree with the majority that such is the proper test to be applied.

The majority’s decision today becomes even more troubling when it is considered in light of recent Supreme Court decisions establishing the constitutional rights of ille-gitimates. At common law, the illegitimate was without numerous substantive rights. He was considered nullius filius, one without kindred and without any ancestor from whom he could derive inheritable blood. This position gradually changed as courts came to recognize the severe inequities involved in its application. In its stead grew beliefs that illegitimates were like any other human being, entitled to the same rights and privileges which others enjoyed. Such beliefs prompted the Court in Levy v. Louisiana, 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436 (1968), to hold:

“We start from the premise that illegitimate children are not ‘nonpersons.’ They are humans, live, and have their being. They are clearly ‘persons’ within the meaning of the Equal Protection Clause of the Fourteenth Amendment.
******
“Why should the illegitimate child be denied rights merely because of his birth out of wedlock? He certainly is subject to all the responsibilities of a citizen, including the payment of taxes and conscription under the Selective Service Act. How under our constitutional regime can he be denied correlative rights which other citizens enjoy?”

The answers to these questions were clear. A person’s family status is purely irrelevant as far as the 14th amendment is concerned. Thus, the petitioner, as an illegitimate, is entitled to the exact same privileges enjoyed by others, and, as recently asserted by the Court in Trimble v. Gordon, 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977), this includes the right to inherit property from the person known and proved to be the illegitimate’s father.

Levy and Trimble represent the culmination of a very gradual and slow process whereby the constitutional rights of illegiti-mates came to be recognized; however, by the majority’s holding today, the illegitimate is effectively deprived of these rights through the rigorous application of an outmoded common-law presumption, a presumption which was clearly rebutted by compelling facts in this case. The majority, however, refuses to accept any facts on this issue until the petitioner rebuts the presumption by showing that it was impossible for her mother’s husband to have been her father. In taking this position, I think they err. As applied by the majority, the presumption is being used to deny the petitioner her constitutional right to inherit from one shown to be her father. In this way, she is being denied the equal protection of the law.

These constitutional ramifications cannot be ignored, and because of their existence, I must respectfully dissent from the majority opinion.

ALMON and EMBRY, JJ., concur.


text:
    SPRING HILL LIGHTING & SUPPLY, INC., a corp. v. BETHANY BAPTIST CHURCH et al.
    78-781.
    Supreme Court of Alabama.
    March 14, 1980.
    Augustine Meaher, III, of Lyons, Pipes & Cook, Mobile, for appellant.
    Billy C. Bedsole, of Stockman & Bedsole, Mobile, for appellees.
   FAULKNER, Justice.

This is an appeal from an order denying Spring Hill Lighting recovery on a claim for an alleged sale of lighting equipment. We affirm.

This suit resulted when the Chairman of Deacons of Bethany Baptist Church notified Spring Hill that the church would not buy 8 decorative chandeliers. The trial judge heard the case ore tenus and, with findings of facts, found that the Church had cancelled the contract and that the Church was not liable for any alleged damages to Spring Hill. We have reviewed the evidence and find it sufficient to support the judgment. See Stevens v. Thompson, 279 Ala. 232, 184 So.2d 140 (1966).

On the issue of damages, we find that Spring Hill Lighting & Supply did not introduce any credible evidence to support its claim for damages. The only evidence found in the record on the question of damages is hearsay. So, even had we disagreed with the trial judge on the issue of breach of contract, we would have had to uphold his judgment because of Spring Hill’s failure to offer competent proof of damages. Cf. Crommelin v. Montgomery Independent Telecasters, Inc., 280 Ala. 391, 194 So.2d 548 (1967).

AFFIRMED.

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


text:
    Ex parte the GRASSROOTS COALITION, in the person of John C. Harris, Chairman. In re Jerry HUFF and the City of Birmingham v. John DOE, Richard Rowe, and any and all persons picketing, gathering, or otherwise unlawfully assembling at the place of business known as Jerry’s Convenience Store located at 4930 10th Avenue North, Birmingham, Jefferson County, Alabama.
    78-867.
    Supreme Court of Alabama.
    March 14, 1980.
    David Gespass, Birmingham, for petitioner.
    Charles T. Bradshaw, Asst. City Atty., Leo E. Costello, Fred Blanton, Birmingham, for respondents.
   FAULKNER, Justice.

On June 22, 1979, a young person was shot and killed by a police officer at a business establishment located in the City of Birmingham. The owner of the business was not involved in any way with the officer; he was not present at the time of the shooting, and he knew nothing of the tragedy until he was told of it on a later date. Upon learning of the death of the victim, numerous persons gathered in front of the business with signs protesting the killing. They allegedly threatened the operation of the business, threatened the customers of the business, broke out plate glass windows in the building from which the business was operated, used profane and offensive language to persons attempting to enter the business, and threw garbage upon the premises of the business. The business, because of these actions, had to be closed. After the closing, the protesters moved their demonstrations to another business operated by the same owner, at a different location.

When the demonstrations did not stop, the owner filed a complaint seeking a temporary restraining order against the demonstrators’ activities. A T.R.O. was granted by Judge Barber on June 28. It was extended indefinitely by him on July 6, and on that date, Judge Barber permitted the City of Birmingham to intervene as a party plaintiff. On August 3, the Grassroots Coalition moved to intervene and moved to dissolve the T.R.O. On August 22, Judge Barber orally granted Grassroots’ motion to intervene, but he did not rule on the motion to dissolve. On August 27, Grassroots renewed its motion to dissolve. Judge Barber denied the motion and backdated his order to August 22, the date he orally permitted Grassroots to intervene. On August 30, Grassroots filed its petition for writ of mandamus in the Court of Civil Appeals, praying for a judgment to have Judge Barber dissolve his orders forthwith. Lacking jurisdiction, the Court of Civil Appeals transferred the case to this Court. We ordered the Judge and the City of Birmingham to file their answers to the petition.

Their answers say that (1) Grassroots did not comply with Rule 65(b) ARCP, and (2) mandamus will only issue in cases where the “petitioner has a clear, specific legal right to the thing requested,” and that Grassroots had no clear legal right to have its motion to dissolve granted without notice, and a hearing. We agree with them on both points and deny the petition for writ of mandamus.

Rule 65(b) provides for injunctive relief known as a temporary restraining order, without notice to the adverse party. Once granted, a T.R.O. may be attacked by a motion to dissolve or modify after giving 2 days’ notice, or a shorter time if the court prescribes, to the party who obtained the T.R.O. After notice, the rule mandates that the court hear and determine the motion as expeditiously as the ends of justice require.

In this case there was no notice given to its adversaries by Grassroots before it filed its motion to dissolve. Moreover, it did not present any reason to the court as to why the 2 days’ notice should be shortened.

We hold that Grassroots has not complied with Rule 65(b) ARCP.

Despite its non-compliance with Rule 65(b) Grassroots has petitioned this Court to order Judge Barber to dissolve the injunction. We refuse. Grassroots has not complied with the Rule, and has not shown that Judge Barber abused his discretion, and it has not shown that it has a clear legal right to mandamus.

In Alcoholic Beverage Control Board v. Taylor, 339 So.2d 66 (Ala.1976), this Court stated:

“In the exercise of its supervisory power, the appellate courts may issue writs of mandamus to lower courts to compel the latter to entertain and exercise the jurisdiction entrusted to them, to correct any abuse of jurisdiction, and to enforce the performance by them of purely ministerial duties. But petitions for writs of mandamus cannot be substituted for appeal to review adverse legal rulings of lower courts.”

The petition for writ of mandamus is denied.

WRIT DENIED.

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


author: WRIGHT, Presiding Judge.

text:
    Ray P. DAVIS v. Armon CHILDERS, d/b/under the Trade Name and Style of C-Way Contractors.
    Civ. 1595.
    Court of Civil Appeals of Alabama.
    Nov. 7, 1979.
    Rehearing Denied Dec. 12, 1979.

      James M. Holmes, Birmingham, for appellant.
    Sherman B. Powell, Sr., Decatur, for ap-pellee.
   WRIGHT, Presiding Judge.

Plaintiff brought suit jointly against defendant Davis and defendant Davis Construction Co., Inc., upon common counts. The evidence disclosed that plaintiff negotiated a contract with defendant and appellant Ray P. Davis. There was evidence that appellant negotiated the contract without disclosing to plaintiff that he was in fact acting as agent for Davis Construction Co., Inc., a Corporation.

After hearing the testimony the court, sitting without a jury, entered judgment against both defendants. Defendant Davis appeals. Defendant corporation does not.

The issue presented on appeal is stated to be “where plaintiff has knowledge prior to filing suit that defendant was acting as agent for co-defendant principal, and plaintiff brings suit jointly against both agent and principal, may judgment be awarded against both or must plaintiff elect between defendants?”

Before addressing the stated issue, it is appropriate that we state the principles of law applicable to the rights of a third party after entering into a contract with one who is in fact acting as agent for an undisclosed principal. Generally when an agent, acting within his real or apparent authority, enters a contract on behalf of his principal, only the principal is bound and subject to suit on the contract. However, where the agent fails to disclose the fact that he acts for a principal or fails to disclose the identity of his principal, both the agent and the principal may be bound. Wood v. Brewer, 73 Ala. 259 (1882). The person contracting with an agent for an undisclosed principal cannot recover from both, but upon demand must elect which one to hold liable.

There appears to be no decision of precedent in Alabama upon the question of when the election to recover from either agent or undisclosed principal should be made. However, there are ample decisions from other jurisdictions. Having carefully considered the decisions, we find and state the law of Alabama to be that suit on a contract entered into by a person with an agent for an undisclosed principal may be brought jointly against both agent and principal. Such action is authorized by Rules 20 and 21 of the Alabama Rules of Civil Procedure. The fact that such person, prior to filing suit gains knowledge of the existence and identity of a previously undisclosed principal does not require an election of remedy against agent or principal. There should be no requirement of election until after the issue of agency has been determined. To do so would require an election of parties before it is determined there exists a remedy against both.

After agency is established, either by admission or by the evidence, plaintiff may be required prior to judgment to elect whether to hold liable the agent or the principal. Though the right of election belongs to the plaintiff, it operates in favor of the defendants. It therefore should be their responsibility to demand it by motion or some appropriate pleading. We hold that if such demand to elect is not made and plaintiff does not of his own accord elect before entry of judgment, it may be considered waived, though we do not say it would come too late if presented by timely motion for new trial.

We do hold that if demand for election is not made during the trial or in a motion for new trial under Rule 59, ARCP, it is waived and may not be presented as an issue for the first time upon appeal. The record indicates that appellant Davis did not move for election nor present the issue by Rule 59 motion. He therefore waived the requirement of an election of judgment by plaintiff. However, clearly the joint judgment we now sustain may support only one recovery.

In support of our decision we cite the cases of Craig v. Buckley, 218 Cal. 78, 21 P.2d 430 (1933); McEwen v. Taylor, 106 Cal.App.2d 25, 234 P.2d 754 (1951); Klinger v. Modesto Fruit Co., Inc., 107 Cal.App. 97, 290 P. 127 (1930).

The judgment of the trial court is affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: TORBERT, Chief Justice.

text:
    Ex parte Ray P. DAVIS. In re Ray P. Davis v. Armon Childers, d/b/under the Trade Name and Style of C-Way Contractors.
    79-250.
    Supreme Court of Alabama.
    March 28, 1980.
   TORBERT, Chief Justice.

WRIT DENIED.

MADDOX, JONES, SHORES and BEAT-TY, JJ., concur.


author: TYSON, Judge.

text:
    Barry Wade ALFORD, alias v. STATE.
    3 Div. 958.
    Court of Criminal Appeals of Alabama.
    Nov. 20, 1979.
    Rehearing Denied Jan. 22, 1980.
    Larry Waites, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Thomas R. Allison, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

Barry Wade Alford was indicted by the grand jury for attempting to obtain controlled substances (dilaudid and prednisone) “by the forgery of a prescription in writing.” The jury found the defendant “guilty as charged,” and the trial court set sentence at eight years imprisonment in the penitentiary.

On July 19, 1977, at about 6:30 p. m., appellant and a young woman (later determined to be his wife, Ginger P. Alford) entered a drugstore on Federal Drive in Montgomery, Alabama. The owner and pharmacist of the drugstore, Robert Mallet, testified that appellant and the woman walked to the prescription counter and handed two prescriptions to his clerk, Vic Koehnlein. The clerk handed the prescriptions to Mr. Mallet. The prescriptions, bearing the name of Ronald A. Shaw and written on a University of Alabama Medical Center pad, were made out to Mrs. Maxine Parker, listed a Montgomery address, and were for dilaudid and prednisone. These prescriptions were admitted into evidence at trial as State’s Exhibits One and Two.

J. R. Llyde of the Montgomery Police Department testified that he went to Mr. Mallet’s drugstore on July 19, 1977, in response to a radio call. He had a conversation with Mr. Mallet, then approached the woman, addressed her as Mrs. Parker and asked her where her doctor was located. The woman told him her doctor was in Birmingham. Appellant walked up at that time and asked what the problem was.

Corporal David Green of the Montgomery Police Department testified that he also • investigated the alleged attempt to obtain drugs by fraud at Mallet’s Pharmacy. He stated that upon request the young woman produced a driver’s license which identified her as Ginger P. Alford. Corporal Green thereupon arrested appellant and his female companion and immediately advised them . of their Miranda rights.

Michael M. Farrier of the Montgomery. Police Department testified that he was present when Corporal Green advised the two suspects of their constitutional rights and that he (Farrier) transported them to the police station. Officer Farrier stated that, after they were again advised of their constitutional rights, appellant indicated that the white Grand Prix automobile parked outside Mallet’s Pharmacy was the car they came in. Detective Farrier ran a check on the registration of this automobile and discovered that the tag was registered under the name of Ginger P. Alford. Appellant and his wife both stated later that they were addicted to morphine and were using dilaudid to satisfy their habits.

Thereafter, Detective Farrier had the automobile taken to police headquarters where he observed a Physician’s Desk Reference and a telephone book opened to the yellow pages inside the car. The car was searched pursuant to a search warrant (defendant’s Exhibit One), and a spoon, four syringes, advertisements from a Hoover, Alabama, drugstore, and a Montgomery telephone book were found inside the vehicle. These items (except for the physician’s desk reference and the telephone book) were admitted into evidence at trial over defense objections.

Dr. Ronald A. Shaw, an emergency room physician employed by Baptist Medical Center in Birmingham, testified that the prescription presented at Mallet’s Pharmacy was neither written nor signed by him.

The appellant did not testify or present any evidence at trial.

I

Appellant first contends that the evidence adduced at trial was insufficient to present a prima facie case and, therefore, the trial court committed reversible error in submitting the case to the jury.

The Code of Alabama, 1975, § 20-2-70, provides in pertinent part as follows:

“. . . [A]ny person who obtains or attempts to obtain by fraud, deceit, misrepresentation or subterfuge or by the forgery or alteration of a prescription or written order or by the concealment of material fact or by use of false ■name or giving a false address controlled substances enumerated in schedules I, II, III, IV and V is guilty of a felony and, upon conviction, for the first offense may be imprisoned for not less than two nor more than 15 years and, in addition; may be fined not more than $25,000.00 . . .”

The State, in the present case, presented evidence at trial which showed that appellant was present at Mallet’s Pharmacy on July 19, 1978; that either appellant or his companion presented State’s Exhibits One and Two to the pharmacist to be filled; that the prescriptions were not signed by the doctor whose name they bore and were apparently made out to a fictitious person; and further the prescriptions called for controlled substances.

Thus, a prima facie case of attempting to obtain controlled substances was presented, and, therefore, the trial court correctly submitted the case to the jury. Arnold v. State, Ala.Cr.App., 340 So.2d 873, cert. denied, Ala., 340 So.2d 877 (1976).

II

Appellant next asserts that there was insufficient probable cause to support the search of Ginger P. Alford’s automobile. Section 15-5-3, Code of Alabama, 1975, states as follows:

“A search warrant can only be issued on probable cause, supported by an affidavit naming or describing the person and particularly describing the property and the place to be searched. . . .”

Sufficient evidence must be stated in the affidavit to support a finding of probable cause for issuing the search warrant. Tyler v. State, 45 Ala.App. 155, 227 So.2d 442 (1969); Brandies v. State, 44 Ala.App. 648, 219 So.2d 404 (1968). The affidavit must state specific facts or circumstances which support a finding of probable cause, otherwise the affidavit is faulty and the warrant may not issue. Tyler, supra; Brandies, supra, Brown v. State, 42 Ala.App. 429, 167 So.2d 281 (1964).

In the present case, the affidavit in support of the search warrant stated that Detective Farrier and an Officer Laing had probable cause to believe that the automobile in question contained dilaudid and drug paraphernalia; that Ginger P. Alford and Barry Wade Alford were arrested for attempting to obtain dilaudid by a forged prescription; that after being informed of her constitutional rights, Ginger P. Alford stated to the affiants that she and her husband had gone to Mallet’s Pharmacy in her Grand Prix automobile; that both Ginger P. and Barry Wade Alford stated to affiants that they were addicted to morphine and were both using dilaudid to satisfy their addiction; that upon emptying Ginger P. Alford’s purse following her arrest, fifty-three dilaudid tablets were found; and that affiants observed in plain view in the back seat of said automobile a 1975 Physician’s Desk Reference.

We therefore hold that this affidavit was sufficient for the issuance of the search warrant of Ginger P. Alford’s automobile. Waters v. State, Ala.Cr.App., 357 So.2d 368, cert. denied, Ala., 357 So.2d 373 (1978), is directly on point and is controlling on this issue.

Ill

Appellant also avers that even if the search was proper, the admission into evidence of the articles found in the automobile was erroneous and constituted prejudicial error. This argument is without merit.

The syringes and the large spoon were competent and relevant evidence bearing on appellant’s culpability for the offense charged. Thus, the trial court correctly admitted these items into evidence. Waters v. State, supra, and cases therein cited:

We have carefully examined this record and find no error therein. The judgment is therefore

AFFIRMED.

All the Judges concur.


author: SHORES, Justice.

text:
    Ex parte Barry Wade ALFORD. In re Barry Wade Alford, alias v. State.
    79-346.
    Supreme Court of Alabama.
    March 28, 1980.
   SHORES, Justice.

WRIT DENIED.

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