author: LEE, Justice,

text:
    Lee HAYDEN v. John FORYT.
    No. 52876.
    Supreme Court of Mississippi.
    Dec. 2, 1981.
    Rehearing Denied Jan. 6, 1982.

      Gillis, Walman & Gillis, Norman B. Gillis, Jr., McComb, for appellant.
    T. Mack Brabham, McComb, for appellee.
    Before PATTERSON, C. J., and SUGG and LEE, JJ.
   LEE, Justice,

for the Court:

John Foryt filed suit against Lee Hayden, Southwest Mississippi Regional Medical Center (SMRMC), and Tom Logue, administrator, in the Circuit Court of Pike County, Honorable Joe N. Pigott presiding, for damages resulting from defamation and actionable words. The jury returned a verdict in favor of Foryt in the sum of $500,000, a remittitur was entered by the circuit judge reducing the award to $75,000, which was accepted by Foryt. The suit was dismissed by the trial judge as to the hospital and the administrator. Hayden has appealed to this Court. We reverse.

We consider as one assignment whether the lower court erred in refusing to grant a peremptory instruction and motion for judgment n.o.v. on behalf of the appellant and whether the verdict was contrary to the overwhelming weight of the evidence, which questions dispose of the case.

The law of the case sub judice is stated in Benson v. Hall, 339 So.2d 570 (Miss.1976), where the Court said:

This Court is committed to the rule that although the law guards jealously the enjoyment of a good reputation, public policy, good morals, the interests of society, and sound business principles demand that an employer, or his representative, should be permitted to discuss freely with an employee charges made against an employee affecting the latter’s employment. On such occasions there is a qualified privilege, and statements made within the scope of the privilege, in good faith and without malice, are not actionable. Killebrew v. Jackson City Lines, Inc., 225 Miss. 84, 82 So.2d 648 (1955). (339 So.2d at 572)

And:

When qualified privilege is established, statements or written communications are not actionable as slanderous or libelous absent bad faith or malice if the communications are limited to those persons who have a legitimate and direct interest in the subject matter. The qualified privilege may be likened to a circle insofar as its area of protection is concerned. Depending upon the circumstances, the circle encloses those people who have a legitimate and direct interest in the subject matter of the communication, and publication to them is not actionable. If publication is made to persons outside the circle — those not having a legitimate and direct interest in the subject matter of the communication— the protection of the privilege may not be invoked. (339 So.2d at 573)

The record here consists of six volumes which we have carefully reviewed and no useful purpose would be accomplished by setting out the charges, counter charges and bickering on the part of the parties and their supporters. We approach this discussion with the principles in mind stated in Benson, supra, (1) whether or not a qualified privilege was established and (2) if so, were the statements and written communications by appellant made in good faith and without malice? Appellee’s case is based on two general incidents.

I.

Appellant was employed by the SMRMC in June of 1976 and was promoted to the rank of chief anesthetist in February 1977. There were several anesthetists employed at the center, including appellee, who had been employed as a staff anesthetist prior and subsequent to the time appellant was chosen as chief anesthetist. There was no anesthesiologist on the staff, but Dr. Ralph Dunn, a Jackson anesthesiologist, provided the department with statements of policy and procedural guidelines. The record reflects that appellee was disappointed in appellant’s appointment as chief anesthetist, superior to him, and he held resentment and ill will toward appellant. Appel-lee objected to the manner in which the work load was scheduled, which he thought to be unfair, and objected to appellant’s working as an anesthetist at the Beacham Hospital in Magnolia, Mississippi, on his days off. He accused appellant of charging the hospital for overtime that had not been worked and he accused him of stealing.

Upon selecting appellant as chief anesthetist, Thomas Logue, the executive administrator of the SMRMC, instructed and authorized appellant to bring about stability in the Department of Anesthesia, to eliminate personnel conflicts, to formulate guidelines as to what procedures and techniques should be employed, and to correct other inefficiencies in the department. Appellant prepared new and up-to-date guidelines for the staff to follow in administering anesthesia, he revised the department handbook, and the work schedules were altered in an attempt to spread out the work load more equitably among the staff. With the assistance of Dr. Dunn, the department was furnished with definite statements of policy and procedural guidelines, and the information and handbooks were distributed to each staff member, including appellee, and were put into effect during the latter part of 1977. Executive Administrator Logue instructed members of the staff to follow the new guidelines and policies or to resign.

Appellee refused to comply with the new guidelines and policies implemented by appellant and stubbornly continued to stick to his own procedures when he administered anesthesia at the hospital. He testified at trial that he would not use the new procedures prescribed in the revised department handbook because he felt that his way was just as safe, and he admitted that he never even bothered to read the new revised handbook, as requested by appellant and as instructed by the hospital administrator. Appellant met with appellee several times in informal counseling sessions in an attempt to persuade him to follow the new guidelines as other members of the staff had agreed to do. However, appellee never made any attempt to follow the guidelines and the personal relationship between the two men continued to deteriorate.

On May 6, 1977, appellant summoned ap-pellee to his office for a confidential oral counseling session. Appellant had previously filled out the standard from used by the hospital staff in such situations. The report stated appellee was arrogant and contemptuous and was attempting to disrupt the department, that he lacked qualities of a truly professional anesthetist and was allowing his personal grudge against appellant to interfere with his duties as an anesthetist and had become an artless mind in his acts to sabotage the department. He further stated that appellee followed unsafe anesthesia procedures and techniques, lacked or failed to demonstrate knowledge of physiology necessary to practice anesthesia, refused to properly chart patient’s anesthesia experience and failed to follow established departmental guidelines. This instrument, designated as Exhibit P-2, is the first basis for appellee’s suit. Appellee employed an attorney and a meeting was requested with the hospital administrator. On May 9, 1977, a conference was held in the administrator’s office and those persons present were Mr. Logue, the administrator, appellant, appellee and his attorney, the hospital’s attorney and Dr. Sanders, chief of surgery. At the request of appellee and suggestion of the hospital administrator, appellant prepared a 5-page memorandum in support of the charges stated in the Exhibit P-2. Upon the request of Dr. Sanders, appellant appeared before the monthly surgical staff meeting, attended by all members of the hospital medical surgical staff, except for one physician on leave, and reviewed the charges to them.

Later in May 1977, appellant and appellee again met with Administrator Logue, for a discussion of the matter and at the suggestion and insistence of Administrator Logue, they reached a compromise and reconciled their differences. Appellant agreed to withdraw the charges in the report, Exhibit P-2, and destroy it, and appellee agreed to abide by the new guidelines and accede to appellant’s authority. The report was never placed in appellee’s employee file, although, for some unexplained reason, the hospital attorney did retain a copy of the report.

Those persons present in the meetings involving incident No. 1 were the following:

1. Thomas O. Logue, the Hospital Administrator
2. William C. Hewitt, Assistant Administrator
3. Dr. Henry Sanders, Chief of Surgery Service
4. Dr. Gene Price, Chief of Medical Staff
5. Surgery Service Physicians and Secretary
6. Thomas Parker, President of the Board of Trustees
7. The attorneys for the parties
8. The Vice Chief of Staff

We are of the opinion that the persons present in those meetings were directly interested in the matter and that the qualified privilege prevailed on account thereof. Benson, supra.

II.

The personal conflict between appellant and appellee seemed to diminish after the last May 1977 meeting when the parties agreed to compromise and reconcile their differences. However, appellee had problems and testified that he began to drink alcohol more heavily at night and often took valium to relieve his nervous tension. Whether these things had any effect on appellee’s professional ability is not demonstrated in the record. However, in the latter part of September and the first part of October 1977, according to appellee, the second basis for his suit arose, as the result of three separate incidents. Appellant charged that (1) appellee failed to properly administer anesthesia to a patient in the operating room and the patient experienced great pain during the surgery, appellant’s chart on the patient showed the normal vital readings, but some of appellee’s entries did not correspond with the monitor readings. The incident was reported to Administrator Logue by Dr. Causey, a visiting anesthesiologist; (2) an elderly patient was admitted to the hospital for a follow-up operation, and she refused to allow appellee to administer the anesthesia, contending that appellee had failed to put her to sleep during her first operation; and (3) appellee failed to properly monitor the fluid levels of a critically ill patient and, as a result, the patient went into respiratory failure and had to be resuscitated.

Appellant expressed concern for the welfare of each patient under appellee’s care and reported the incidents to Administrator Logue. At Logue’s request, Dr. Ralph Dunn, the consulting anesthesiologist, summarily reviewed the three cases and suggested that appellee be suspended pending a full investigation. Appellee was presented with the charges and was informed that, in the event the investigation supported them, he would be terminated. Rather than risk such outcome of the investigation, appellee resigned from the Department of Anesthesia at SMRMC and entered the employ of the University Medical Center in Jackson.

The three incidents set forth hereinabove were reported to persons who had a direct interest in the matter and, in our opinion, the qualified privilege existed.

III.

Since we hold that the qualified privilege was in effect at all times the alleged defamatory matters were communicated and published, the crucial question now is whether or not they were made in good faith and without malice.

The hospital rules applicable to all employees of SMRMC provide the following:

m. Insubordination or refusal to take orders from the supervisor of Department Head. This includes among other things, refusal of any employee to satisfactorily perform any task, duty or job within reason assigned to the employee by his supervisor or to disobey his supervisor’s instructions. (Employees are to follow instructions; any complaint may be taken up later as a grievance.)

It was the duty of appellant to report any matters which he considered in violation of the rules and guidelines of his department to his superiors. He apparently made a good faith attempt to support the charges in the Exhibit P-2 by preparing a 5-page memo for the benefit of appellee and the administrator. Likewise, he brought the incidents constituting ground No. 2 to the attention of the administrator, who arranged forthwith for an investigation of the matters by Anesthesiologist Dr. Ralph Dunn with the result that appellee resigned before that investigation could be made.

In Scott-Burr Stores Corp. v. Edgar, 181 Miss. 486, 177 So. 766 (1938), the Court said:

Actual or express malice, as distinguished from malice in law, in its ordinary sense denotes ill will, a sentiment of hate or spite, especially when harbored by one person towards another, and exists when one with a sedate, deliberate mind and formed design injures another, as where the person is actuated by ill will in what he does and says, with a design to willfully or wantonly injure another. Newell on Slander and Libel, 4th Ed. § 271 et seq. (181 Miss, at 503-504, 177 So. at 770).

And:

In Newell on Slander and Libel, § 292, it is stated that, “If the defendant honestly believed the plaintiffs conduct to be such as he described it, the mere fact that he used strong words in describing it is no evidence of malice. The fact that the expressions are angry and intemperate is not enough; the proof must go further and show that they are malicious.”
The following rule is announced in Ne-well on Slander and Libel, 3d Ed., § 397:
“If the evidence adduced is equally consistent with either the existence or the nonexistence of malice, there can be no recovery, for there is nothing to rebut the presumption which has arisen in favor of the defendant from the privileged communication.” Gust v. Montgomery Ward & Co., 229 Mo.App. 371, 80 S.W.2d 286; Rosenberg v. Mason, 157 Va. 215, 160 S.E. 190, 202. In the Rosenberg Case the court in dealing with a privileged occasion, said: “It is not sufficient in a case such as this that the evidence be consistent with the existence of actual malice, or even that it raise a suspicion that the defendant might have been actuated by malice or a doubt as to his good faith. It must affirmatively prove the existence of actual malice, and to do so it must be more consistent with the existence of actual malice than with its nonexistence.” (181 Miss. at 507-508, 177 So. at 771-772)

Institutions such as SMRMC were founded by the labor, contributions and sacrifices of many persons to render medical assistance for physically and mentally afflicted people without bias or prejudice to any individual. Employees and representatives of such institutions should consider them and their welfare above personal animosities and ambitions. It is unfortunate and regrettable that professional men, as in the present case, permit personal differences to become involved, which affect vital parts of a fine hospital. In such instances, discipline must be administered by those people in authority whose responsibility and allegiance are to the institution. We hold that the proof in this case, under all the evidence and circumstances, does not prove the existence of malice on the part of appellant in making the charges and reports which are the basis of the suit, and that the appellee haS not established his case against the appellant.

Therefore, the judgment of the lower court is reversed and judgment is rendered here for the appellant.

REVERSED AND RENDERED.

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

      . The learned trial judge followed the Court’s opinion in Claiborne v. Greer, 354 So.2d 1109, 1111 (Miss.1978), by submitting the case to the jury and ruling on motion for j. n. o. v. after verdict. Regardless of his ruling on j. n. o. v. the case is finally decided here.


source: Caselaw Access Project

license: Public Domain

text:
    Lamar PIERCE and Hazel R. Pierce, Individually and d/b/a Pierce’s Hardware v. BELKNAP, INC.
    No. 53216.
    Supreme Court of Mississippi.
    Dec. 9, 1981.
    Rehearing Denied Jan. 6, 1982.
    Laurel G. Weir and Thomas L. Booker, Philadelphia, for appellant.
    Witherspoon, Compton & Mason, Jerry G. Mason, Meridian, for appellee.
   Appeal from Circuit Court, Newton County; Marcus D. Gordon, Judge.

Before PATTERSON, C. J., and SUGG and LEE, JJ.

AFFIRMED.


text:
    James Emit ROGERS v. STATE of Mississippi.
    No. 53148.
    Supreme Court of Mississippi.
    Dec. 9, 1981.
    Rehearing Denied Jan. 6, 1982.
    Williams E. Andrews, Jr., and William L. Ducker, Purvis, for appellant.
    Bill Allain, Atty. Gen. by Karen Gilfoy, Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Lamar County; R. I. Prichard, III, Judge.

Before SMITH, P. J., and WALKER and BOWLING, JJ.

AFFIRMED.

PATTERSON, C. J., ROBERTSON, P. J., and SUGG, BROOM, LEE and HAWKINS, JJ., concur.


text:
    Flavis PIERCE, Jr. v. STATE of Mississippi.
    No. 52957.
    Supreme Court of Mississippi.
    Dec. 9, 1981.
    Rehearing Denied Jan. 6, 1982.
    Boyd P. Atkinson, Cleveland, for appellant.
    Bill Allain, Atty. Gen., by Mark A. Chinn, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Coahoma County; Elzy J. Smith, Judge.

Before WALKER, BROOM, and HAWKINS, JJ.

AFFIRMED.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and SUGG, LEE and BOWLING, JJ., concur.


text:
    Felix JOHNSON v. STATE of Mississippi.
    No. 52912.
    Supreme Court of Mississippi.
    Dec. 9, 1981.
    Rehearing Denied Jan. 6, 1982.
    Steven B. Muslin and Lannie A. Pollans, Chicago, Ill., for appellant.
    Bill Allain, Atty. Gen. by Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Bolivar County; Elzy J. Smith, Judge.

Before ROBERTSON, P. J., and SUGG and LEE, JJ.

REVERSED AND APPELLANT DISCHARGED.

PATTERSON, C. J., SMITH, P. J., and WALKER, BROOM, BOWLING and HAWKINS, JJ., concur.


author: MADDOX, Justice.

text:
    SAM RAINE CONSTRUCTION COMPANY, INC. v. LAKEVIEW ESTATES, INC., et al.
    80-13.
    Supreme Court of Alabama.
    Sept. 18, 1981.
    Rehearing Denied Oct. 30, 1981.

      William M. Acker, Jr., and Carleton P. Ketchum, Jr., of Dominick, Fletcher, Yeild-ing, Acker, Wood & Lloyd, Birmingham, for appellant.
    James B. Kierce, Jr., of Stone, Patton & Kierce and Norman K. Brown, Bessemer, for appellees.
   MADDOX, Justice.

This is an appeal by plaintiff Sam Raine Construction Company, Inc., (Raine) from a partial directed verdict, jury verdict and judgment thereon rendered April 29, 1980, by the Circuit Court of Jefferson County, Bessemer Division, in favor of the defendants Lakeview Estates, Inc., Gary F. Looney, Ronald Keel, Claudine Keel and D. L. Torbert. This Court previously reviewed the case on the propriety of a summary judgment rendered by the trial court in favor of Lakeview Estates, Inc. (hereinafter referred to as Lakeview). Sam Raine Construction Company, Inc. v. Lakeview Estates, Inc., 366 So.2d 1107 (Ala.1979). On January 26, 1979, we reversed the summary judgment upon determining that there existed genuine issues of material fact which merited jury attention. At trial, the issue of prescription was resolved in favor of defendant Lakeview by the jury and the trial court directed a verdict for defendant on the issue of dedication. Plaintiff appeals from the directed verdict and from the court’s sustaining defendant’s objections to the admission of several exhibits. These exhibits sought to be introduced by the plaintiff were certain survey maps, deeds, and letters. We find that the trial court erred in directing a verdict for defendants in light of the evidence presented, and also erred in failing to admit certain evidence presented by the plaintiffs.

On September 21, 1977, Raine filed suit against Lakeview seeking damages and in-junctive relief for Lake view’s obstruction of Jefferson County Road 4087, also known as Martin Lake Road. Raine alleged that because of prescriptive use, the road is a public one while Lakeview contended that it is a private road serving the residents of the subdivision Lakeview developed. The road runs along the boundary of Lakeview Estates and a parcel of land owned by Raine.

Raine alleged that Lakeview obstructed its use of the road by placing a cattle gate across it and stationing an armed guard at the gate. The Court enjoined Raine from using the road to prevent further physical violence between the parties. As a result of the injunction, Raine’s construction equipment was stranded until a new road was cut by which to remove the equipment. Raine alleges that before a second road was cut, a $58,000 bulldozer was mysteriously destroyed.

On March 29, 1978, defendant Lakeview filed its motion for summary judgment and Raine filed a similar motion on May 9, 1978. On May 15, 1978, the trial court granted summary judgment in favor of Lakeview and dismissed the case. On appeal, this Court affirmed the order granting a preliminary injunction in favor of Lakeview, but reversed and remanded the summary judgment. Sam Raine Construction Company, Inc., v. Lakeview Estates, Inc., supra.

On November 15, 1979, Raine further amended its complaint and claimed dedication of the road to public use, because of the maintenance of the road by Jefferson County and the installation of a water main alongside the road by the Warrior River Water and Fire Protection Authority. In essence, Raine claimed that Lakeview was estopped to deny that the road was public.

The case was tried before a jury on April 21-25, 1980, upon the plaintiff’s theories that the road had become public by (1) dedication and (2) prescription. The trial court granted a directed verdict in favor of Lakeview as to all aspects of the case except prescription. Upon the issue of whether Raine had a prescriptive right to use the road, the jury found in its answers to special interrogatories and in its verdict that there was no public road within the boundaries of Lakeview Estates. Plaintiff Raine filed a motion for a new trial which was denied. Raine appeals from the judgment, the directed verdict, and the denial of a new trial.

I

The critical legal question presented by this appeal involves the question of whether there was a dedication of the subject road by estoppel or by implication.

“A public way is established in either one of three ways: (1) by a regular proceeding for that purpose, or (2) by a dedication as such by the owner of the land the way crosses, with acceptance by the proper authorities, or (3) the way is generally used by the public for twenty years.” Powell v. Hopkins, 288 Ala. 466, 262 So.2d 289 (1972).

Raine does not contend that the public nature of the road which is the subject of this controversy was established by a proceeding before the county commission. And even though Raine contended that the road had become a public one by reason of prescriptive use, the jury found against Raine on that issue. In view of this fact, the only remaining question is whether or not there was evidence to support Raine’s claim that the road had been dedicated to the public.

The Alabama law on the dedication of a public way is succinctly stated in Hall v. Polk, 363 So.2d 300 (Ala.1978):

Hall contends that the thirty-foot strip of property was not sufficiently dedicated as a public road. In Alabama, dedication of a public way may be accomplished by a statutory proceeding or, common law dedication. Witherall v. Strane, 265 Ala. 218, 90 So.2d 251 (1956). A common law dedication consists of acts indicative of the intent of the owner to dedicate property to a public use and acceptance by the public. Trustees of Howard College v. McNabb, 288 Ala. 564, 263 So.2d 664 (1972); Moragne v. City of Gadsden, 170 Ala. 124, 54 So. 518 (1911); Smith v. City of Dothan, 211 Ala. 338, 100 So. 501 (1924); Manning v. House, 211 Ala. 570, 100 So. 772 (1924); Still v. Lovelady, 218 Ala. 19, 117 So. 481 (1928). The owner must unequivocally intend to create a public right exclusive of his own. O’Rorke v. City of Homewood, 286 Ala. 99, 237 So.2d 487 (1970). Further, intent to dedicate may be shown by a deed to an individual where the owner declares part of his land reserved to a public use. Davidson v. City of Birmingham, 212 Ala. 123, 101 So. 878 (1924).

It is well established that common law dedication may be either expressed or implied. An implied dedication arises when the acts or conduct of the owner are deemed to intend a dedication to the public use, such an implication being founded on the doctrine of estoppel in pais rather than by estoppel in grant. 26 C.J.S. Dedication § 15, p. 427 (1956). Once the public accepts the dedication by its use of the land, the owner will be estopped to deny the dedication without a clear showing that his acts were erroneously construed as intending to dedicate. The doctrine, and its application, were aptly stated in Riley v. Buchanan, 116 Ky. 625, 76 S.W. 527 (1903):

If, however, there is not an express dedication, but the owner suffers the public to use the passway, knowing it is claiming it as a matter of right, the law presumes a dedication to the public, and presumes the dedicator’s intention to be in accord with the public’s use. This does not depend upon whether there has in fact been an actual dedication to the public, but it is founded upon the principles of estoppel in pais. If the real owner suffer the public generally to so use his land as a passway, under a notorious claim of right, for a great length of time, whereby others may have been induced to buy property in that vicinity relying upon the apparent right of the public to use this passway, and by which the purchase price of their lands may have been affected, it is unfair that the owner should be permitted to gainsay the truth of it.

The doctrine of estoppel as it applies to dedication of lands was conceived out of the necessity for precluding the owner from resuming any use of the dedicated land inconsistent with established public use. The basis of the doctrine lies in the precept that “to reclaim the land would be a violation of good faith to the public and to those who have acquired private property with a view to the enjoyment of the use contemplated by the dedication.” 23 Am.Jur.2d Dedication § 56, p. 50 (1965).

We now consider, in view of the principles of law above-stated regarding the law of dedication, whether there was a scintilla of evidence to support Raine’s theory of a common law dedication or dedication by estoppel or by implication.

The testimony was undisputed that the county had done maintenance work on the road in prior years. While county maintenance is not essential to the public status of a road, it is strong evidence that a road is a public one. Davis v. Linden, 340 So.2d 775 (Ala.1976). In Carter v. Walker, 186 Ala. 140, 65 So. 170 (1914), the Court held:

The establishment of a highway by prescription depends upon its continuous adverse use by the general public who have occasion to use it; and specific recognition and care of such a road by county or municipal authorities is not essential to its public character and status, although such official recognition and care would of course be strong evidence thereof. — 37 Cyc. 29 (III), and the numerous authorities cited. See, also, for general definition, Harper v. State, 109 Ala. 66, 19 South. 901; Lewman v. Andrews, 129 Ala. 170, 29 South. 692; Dunn v. Gunn, 149 . Ala. 583, 42 South. 686. [Emphasis added.]

There was also evidence that Lake-view did not pay for the public water system that was installed, that no one had ever been stopped from freely traveling Martin Lake Road, at least until Raine began to develop its land; and that the general public was never aware of any sign posted which declared that the road was a private one.

The evidence we have set out, and which was admitted, was sufficient to prevent the grant of a directed verdict on the dedication issue, but there was other relevant evidence on the dedication question which the trial court erroneously excluded, as we shall point out in Part II of this opinion. Based upon an application of the scintilla rule, and upon considering the erroneous exclusion of relevant evidence, we conclude that the trial court erred in directing a verdict on the dedication question.

II

Raine contends the trial judge committed reversible error by refusing to admit into evidence several exhibits. Raine frames the issues as follows:

Did the trial court err by sustaining Lake view’s objection to plaintiff’s exhibit 1, a survey map?

Did the trial court err by sustaining Lakeview’s objection to plaintiff’s exhibit 2, a survey map of Lakeview Estates showing County Road 4087 or Martin Lake Road, signed and certified by Lakeview as a true and correct map or plat of the land shown thereon?

Did the trial court err in sustaining Lake-view’s objections to plaintiff’s exhibits 5, 6 and 17(A), each of which is a deed from Lakeview Estates, Inc., to one of its member property owners?

We discuss each issue separately. Plaintiff’s exhibit 1 is a survey map prepared by licensed surveyor Ernest 0. Little, Jr., in March 1978, at the request of Charles Smith, one of the stockholders of Lakeview and one of the property owners in the subdivision. One of the issues in the case has been whether or not Raine’s property touches or abuts the public road. Raine suggests that apparently Lakeview commissioned this survey for the purpose of showing that Raine’s property did not abut the public road. Plaintiff’s exhibit obviously shows that Raine’s property does abut the road.

Little testified that the map was correct in all respects and represented the measurements made by him on the ground and the location of the objects marked thereon. The map, taken in conjunction with Little’s testimony, obviously sheds light on one of the major issues between the parties. That fact, coupled with Little’s authentication, was sufficient predicate for its admission into evidence, and if for no other purpose, it was admissible in evidence to explain and elucidate Little’s testimony to the jury. See Humes v. Bernstein, 72 Ala. 546 (1882).

While in a given case, it might be within the discretion of the trial judge to reject a map, the trial court’s action on this map, when coupled with his rejection of other maps or surveys offered by Raine, constituted an abuse of the trial court’s discretion, which was compounded when it is considered that the court allowed in evidence a map prepared in anticipation of trial by one of the defendants. Additionally, Little testified that the map was prepared for Lake-view; consequently, it was proper to come into evidence without the necessity of any other proof, as an admission against interest.

Just as with plaintiff’s exhibit 1, plaintiff’s exhibit 2 was due to come into evidence for the purpose of throwing light on the location and boundaries of the land in controversy. Additionally, even though surveyor Little did not prepare the map himself, he testified that it correctly represented the location of the objects marked on it and the measurement of distances represented on the map.

Plaintiff’s exhibit 2 included the following certificate:

We, the undersigned, W. M. Douglas, a surveyor, and Lakeview Estates, Inc., by John R. Luckado, its President, as owner, hereby certify that this is a true and correct map or plat of the land shown hereon, showing the streets, avenues, roads and/or other public ways by name, width and location, and that the iron pipe markers have been set at the corners of each lot, and elsewhere as shown and designated by small open circles, and each lot has been numbered and the dimensions of each lot shown in their relationship as platted to the government survey of Sections 2 and 11, Township 19 South, Range 5 West, in Jefferson County, Alabama.
In witness whereof, we have hereunto set our hands this 20th day of September, 1961.
LAKEVIEW ESTATES, INC.
(Owner)
/s/ W. M. Douglas ' By: /s/ John R. Luckado W. M. Douglas, John R. Luckado,
Surveyor, Reg. No. 1759 President
STATE OF ALABAMA )
JEFFERSON COUNTY j
I, E. J. Smithson, a Notary Public in and for said county and state, hereby certify that W. M. Douglas, whose name is signed to the foregoing certificate as Surveyor, and John R. Luckado, whose name is signed as President for Lakeview Estates, Inc., as Owner, who are known to me, acknowledged before me on this date that they executed the same voluntarily, with full authority for and as the act of such individuals and officers.
Given under my hand and official seal this 20th day of September, 1961.
/s/ E. J. Smithson
E. J. Smithson,
Notary Public
(Emphasis supplied)

Raine contends that the map, with its certification by Lakeview, was not offered in evidence as a muniment of title and that Raine did not expect to prove common law dedication or dedication by estoppel by the use of this document a lone. Raine argues in brief: “... [T]aken by itself, it constitutes evidence of great probative value as to the character of the user of the road in dispute. Clearly, the map carries with it the inference that the public user of the road was adverse to the ownership interest of Lakeview and not permissive or by revocable license only. To reiterate, Raine did not offer the unrecorded map as a muniment of title or conclusive proof of its claim but merely as an admission against interest.”

We agree with Raine that plaintiffs exhibit 2 should have been admitted into evidence in this case.

Plaintiff’s exhibits 5, 6 and 17(A) are deeds from Lakeview Estates, Inc., to its member property owners. Each of the exhibits was certified by the Probate Judge as a true and correct copy of those instruments as they appear of record in the Probate Office of Jefferson County, Bessemer Division. No issue was made as to the authenticity of any of these deeds or the corporate authority of Lakeview to execute and deliver them.

The deeds were executed in 1966, 1969 and 1977, respectively. In each instance, the property conveyed by the deed is described with reference to the road in question, and the road in question is designated as a “public road” or a “county road.” In two of the deeds, there is also a reference to the “right-of-way” of said public or county road. On the issue of dedication, the recitals in the deeds were patently relevant as to whether or not the public user was adverse to Lakeview rather than permissive or by revocable license only.

Lakeview, in brief, admits that the grantees under the deeds “might have been entitled to urge them as evidence of a dedication by estoppel, but a stranger to the transaction, and a stranger who had no awareness of those deeds when the suit was filed or when it acquired its property, certainly cannot take any advantage.”

We think the rule of admissibility is otherwise.

An original deed to realty, which is relevant to the issues in an action and is in all respects regular, is generally admissible in evidence in an action between the parties thereto, or their privies, or in favor of a party claiming under the deed. Insofar as a deed contains admissions of facts amounting to declarations of a pecuniary or proprietary nature against the interest of the maker, it is admissible in evidence by a stranger, whether the plaintiff or the defendant, against all the other parties to the suit who have a joint interest with the party making the admissions.

29 Am.Jur.2d Evidence § 861, p. 963 (1967). Recitals in a deed to which the defendant is a party and the plaintiff a stranger are admissible in evidence as simple admissions only, made by the party by whom the deed was executed. Franklin v. Dorland, 28 Cal. 175 (1865).

We agree with Lakeview that to constitute a dedication at common law, there must of course be an intention of the owner to dedicate the property and an acceptance by the public or by some authorized person or body of persons acting in its behalf. See Trustees of Howard College v. McNabb, 288 Ala. 564, 263 So.2d 664 (1972).

Raine did not and does not claim that these deeds are necessarily conclusive on the issue of common law dedication, dedication by estoppel or the issue of whether Raine’s property abuts the road. Raine does contend that these deeds do contain evidence of probative value. We agree and conclude that the trial court’s refusal to allow them in evidence was prejudicial to Raine’s case.

The judgment of the trial court is due to be reversed and the cause remanded.

REVERSED AND REMANDED.

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

      . Lakeview argues in brief, on appeal:
      Now, if all of the arguments previously made in this brief by defendants fail, there is still one hurdle, at least 18 inches wide, that the plaintiff cannot jump. The plaintiff does not have standing in court to maintain this action, because it does not have a special interest over and above that of the public. The key to whether a special interest exists must be determined by the use of the land sought to be served by the alleged public road.


author: HUGH MADDOX JAMES H. FAULKNER RICHARD L. JONES JANIE L. SHORES OSCAR W. ADAMS, Jr. Associate Justices. C. C. TORBERT, Jr. Chief Justice. RENEAU P. ALMON Associate Justice.

text:
    OPINION OF THE JUSTICES.
    No. 286.
    Supreme Court of Alabama.
    Nov. 30, 1981.
    John G. Harrell and Alan K. Zeigler of Bradley, Arant, Rose & White, Birmingham, and Jeffrey W. Blitz of Rushton, Stakely, Johnson & Garrett, Montgomery, for amicus curiae, Alabama Housing Finance Authority.
    Charles A. Graddick, Atty. Gen., and Susan Beth Farmer, Asst. Atty. Gen., for ami-cus curiae, Attorney General’s Office.
   To the Honorable Members of

the Senate of Alabama

State Capitol

Montgomery, Alabama

Gentlemen:

We are in receipt of Senate Resolution 13, received November 10, 1981. It requests our opinion as to questions posed regarding the constitutionality of Senate Bill 46, which is as follows:

“A BILL

“TO BE ENTITLED

“AN ACT

“To appropriate six million five hundred thousand dollars ($6,500,000) from the general fund of the State, for the fiscal year ending September 30,1982, for the purpose of paying costs incurred by the State in providing services to the Alabama Housing Finance Authority in connection with the issuance of bonds by said authority prior to January 1, 1982, and to provide that the moneys so appropriated shall be certain moneys derived by the State from the leasing of rights to explore and drill for or to produce oil, gas and other hydrocarbon minerals in any area on the water side of the high water mark of Mobile Bay or in any other offshore area.

“BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:

“Section 1. Legislative Findings and Declarations. The Legislature hereby finds and declares:

“(a) that there is a critical shortage of funds available for the financing of mortgage loans secured by single and multifamily residential property located in the State;
“(b) that the Legislature in Act No. 80-585 enacted at the 1980 Regular Session of the Legislature authorized the creation of the Alabama Housing Finance Authority and empowered said authority to issue its bonds for the purpose of making funds available in the State for mortgage loans secured by mortgages on single and multi-family residential property at interest rates sufficiently low to facilitate the financing of safe and sanitary housing units for citizens of this State with low or moderate incomes;
“(c) that, under present federal law, the interest income on bonds issued by the Alabama Housing Finance Authority prior to January 1, 1982, in a principal amount not exceeding $200,000,000 shall be exempt from federal income taxation;
“(d) That, because of changes in federal law enacted since the creation of the Alabama Housing Finance Authority, it will be necessary for the State to make available to said authority professional and other services and bond insurance in order to enable said authority to issue and sell its bonds;
“(e) that the State received certain advance rentals after January 1, 1981, and before May 21, 1981, from the leasing of rights to explore and drill for or to produce oil, gas and other hydrocarbon minerals in certain areas of Mobile Bay and other offshore areas and that the moneys so received are presently held in the general fund of the State; and
“(f) that a portion of the aforesaid advance rentals and the income from the investment thereof should be expended by the State to enable the Alabama Housing Finance Authority to issue its bonds in a principal amount not exceeding $200,000,000 prior to January 1, 1982, and to otherwise perform the functions for which it was organized.
“Section 2. Appropriation. The sum of six million five hundred thousand dollars ($6,500,000), or so much thereof as may become available for the purposes described herein, is hereby appropriated from the general fund of the State (the moneys subject to such appropriation to be determined in accordance with the provisions of Section 3 of this Act) for the fiscal year of the State ending September 30, 1982, for the purpose of paying costs incurred by the State in providing services to the Alabama Housing Finance Authority to enable said authority to issue its bonds subsequent to the effective date of this Act and prior to January 1, 1982. The fees, expenses and other costs which may be paid with the moneys so appropriated shall include, but shall not be limited to, (i) fees charged by lending institutions and other financial institutions for services provided in connection with the financing of certain mortgages, including, but without limitation thereto, fees for placing, servicing and administering mortgages and trust funds, fees for acting as paying agent, and fees and charges for providing commitments to refinance mortgage loans initially' financed with proceeds from the sale of bonds of the Alabama Housing Finance Authority, (ii) charges of rating agencies and printing expenses, (iii) underwriting, accounting, legal and administrative expenses, (iv) costs of insurance and performance bonds, (v) fees and charges for feasibility and mortgage market studies and (vi) other costs of issuance of bonds of the Alabama Housing Finance Authority and costs of other services provided by the State to said authority.
“Section 3. Source of Appropriation. For the purpose of the appropriation made in this Act, the advance rentals received by the State at any time after January 1,1981, and before May 21,1981, from the leasing of rights to explore and drill for or to produce oil, gas or other hydrocarbon minerals in any area on the water side of the high water mark of Mobile Bay or in any other offshore area and the income from the investment and reinvestment of such moneys (including income from the investment and reinvestment of previously derived income) shall be considered as a separate fund within the general fund of the State. The moneys appropriated herein shall consist of moneys in the said separate fund, to the extent that such moneys are available for such appropriation. Any provision of law requiring the transfer of the moneys in the said separate fund from the general fund of the State to a permanent trust fund to the contrary notwithstanding, the moneys in the said separate fund which are herein appropriated shall be held apart from such permanent trust fund and not included with the moneys transferred thereto. If for any reason moneys in the aforesaid separate fund are not available for the appropriation made in this Act, the moneys so appropriated shall come from the general fund of the State.
“Section 4. Disbursement of Appropriated Moneys. The moneys herein appropriated shall be disbursed only upon the delivery to the State Comptroller of requisitions signed by the chairman of the board of directors of the Alabama Housing Finance Authority and the Governor. Each such requisition must state the fees, charges and other expenses to be paid pursuant thereto, the persons, firms and corporations to whom such fees, charges and other expenses are owed and the amount payable to each of such persons, firms and corporations. Upon the receipt of a requisition containing such information and signed as aforesaid, the State Comptroller shall draw warrants in such amounts and payable to such persons, firms and corporations as shall be necessary to provide for the payment of all the fees, charges and other expenses described in such requisition.
“Section 5. Termination of Appropriation. If no bonds are issued by the Alabama Housing Finance Authority prior to January 1, 1982, or if, in the event that bonds of said authority are issued prior to said date, the Director of Finance of the State shall determine that, taking into account any moneys which may have been made available to said authority from another source, the disbursement of all of the moneys appropriated herein is not required to enable said authority to issue such bonds, then, in either of such events, the appropriations made herein shall terminate and any moneys subject to such appropriations which have not been disbursed prior to such termination shall remain in the general fund of the State. Any provision of this Act to the contrary notwithstanding, in the event that the moneys considered as a separate fund within the general fund of the State under the terms of Section 3 of this Act shall be transferred by law to a permanent trust fund, then any moneys initially subject to the appropriation made herein which are not disbursed pursuant thereto as the result of the termination of such appropriation shall not be held apart from such permanent trust fund, but shall be included with the moneys transferred thereto.
“Section 6. Severability. The provisions of this Act are severable. If any part of this Act is declared invalid or unconstitutional, such declaration shall not affect the part which remains.
“Section 7. Effective Date. This Act shall become effective immediately upon its passage and approval by the Governor, or upon its otherwise becoming a law.” The first questions posed are:
“(1) Whether the appropriation of the funds by, and the use thereof for the purposes set forth, in Senate Bill No. 46 are invalid under Section 93 of the Constitution of Alabama of 1901, as amended, as authorizing the State (i) to engage in works of internal improvement or to lend money or its credit in aid of such, or (ii) to be interested in any private or corporate enterprise, or (iii) to lend money or its credit to any individual, association or corporation?”

We answer each of these questions in the negative. In Edmonson v. State Industrial Development Authority, 279 Ala. 206, 184 So.2d 115 (1966), this Court held, speaking through Justice Merrill, that there are five principle prohibitions in Section 93:

“The State is forbidden (1) to engage in works of internal improvement, (2) to lend money in aid of such, (3) to lend its credit in aid of such, (4) to be interested in any private or corporate enterprise, and (5) to lend money or its credit to any individual, association, or corporation.”

279 Ala. at 209, 184 So.2d 115.

Nothing in Senate Bill 46 violates any of these prohibitions. It does not authorize the State to engage in works of internal improvement, or to lend its money in aid of such, or to lend its credit in aid of such. The fourth prohibition, to be interested in any private or corporate enterprise, has been construed to mean that the State may not engage, alone or in concert with others, in business of a type generally characterized as private enterprise. State ex rel. Wilkinson v. Murphy, 237 Ala. 332, 186 So. 487 (1939). Senate Bill 46 does not authorize the State to engage in any private enterprise. It simply appropriates moneys derived from leases authorizing oil and gas exploration for the purpose of paying costs incurred by the State in providing services to the Alabama Housing Finance Authority, a public corporation. In several cases, this Court has held that Section 93 does not relate to lending either money or credit to a public corporation. Edmonson, supra, which relied upon Rogers v. City of Mobile, 277 Ala. 261, 169 So.2d 282; State ex rel. Austin v. City of Mobile, 248 Ala. 467, 28 So.2d 177; Alabama State Bridge Corp. v. Smith, 217 Ala. 311, 116 So. 695.

We conclude that Senate Bill 46 does not violate Section 93 of the Constitution.

The next and final question posed is as follows:

“(2) Will the appropriation of the said funds by, and the use thereof for the purposes stated in, the said Senate Bill No. 46 result in bonds issued by the said Authority with respect to which the appropriation contained in Senate Bill 46 is made being deemed an indebtedness of the State under Section 213 of the Constitution of Alabama of 1901, as amended?”

We answer this question in the negative.

Again, we conclude that Edmonson v. State Industrial Development Authority, supra, is dispositive of this question. There we held that:

“Bonds issued by a public corporation that is a separate entity from the State will not constitute a new debt of the State within the meaning of Section 213, as amended. We have specifically said that bonds issued by public corporations of the State do not fall within the prohibition of that section of the Constitution. Opinion of the Justices, 264 Ala. 176, 85 So.2d 391; In re Opinion of the Justices, 256 Ala. 170, 54 So.2d 68. And we have held that the bonds of a public corporation do not constitute a debt of the State. Rogers v. Garlington, 234 Ala. 13, 173 So. 372; Scott v. Alabama State Bridge Corp., 233 Ala. 12, 169 So. 273; Alabama State Bridge Corp. v. Smith, 217 Ala. 311, 116 So. 695. To the same effect are our opinions in Opinion of the Justices, 263 Ala. 174, 81 So.2d 699; Opinion of the Justices, 254 Ala. 506, 49 So.2d 175; In re Opinion of the Justices, 225 Ala. 460, 143 So. 900.”

279 Ala. at 210-211, 184 So.2d 115.

Respectfully submitted,

HUGH MADDOX

JAMES H. FAULKNER

RICHARD L. JONES

JANIE L. SHORES

OSCAR W. ADAMS, Jr. Associate Justices.

It is our considered opinion that the provisions of Senate Bill 46 violate § 93 of the Constitution of 1901, as amended. Therefore, we must respectfully disagree with the five justices who opine to the contrary. Section 93 of Article IV, of the Constitution of 1901, as last amended by Amendment No. 58, provides in pertinent part as follows:

The state shall not engage in works of internal improvement, nor lend money or its credit in aid as such, except as may be authorized by the Constitution of Alabama or amendments thereto; nor shall the state be interested in any private or corporate enterprise, or lend money or its credit to any individual, association or corporation, except as may be expressly authorized by the Constitution of Alabama, or amendments thereto.

Senate Bill 46 appropriates money directly from the general fund to pay certain operational costs and expenses of the Alabama Housing Finance Authority. The Authority is given broad powers to effectuate its purposes, some of which are set out as follows:

(7) To purchase mortgage loans from mortgage lenders;
(8) To contract with mortgage lenders for the origination of, or the servicing, of mortgage loans to be made by such mortgage lenders and the servicing of the mortgages securing such mortgage loans;
(9) To make loans to mortgage lenders, provided that (i) the proceeds of such loans shall be required to be used by such mortgage lenders for the making of mortgage loans, and (ii) the mortgages in connection with the mortgage loans so made, together with any additional security required by the authority, shall be mortgaged, pledged, assigned or otherwise provided as security for such loans to mortgage lenders;
(10) To exercise any and all rights accorded to the owner and holder of a mortgage under and in accordance with the terms of said instruments and the applicable laws of the state with respect to the mortgaged property, directly or through mortgage lenders or others acting on behalf of the authority or on behalf of the holder of its bonds, including, but without limitation, the power to foreclose, to sell the equity of redemption, to purchase the equity of redemption and otherwise sell and dispose of the mortgaged property, all as shall seem in the best interests of the authority and the holders of its bonds;
(11) To sell and issue bonds in order to provide funds for any corporate function, use or purpose ....

Code 1975, § 24-1A-5 (Act 80-585, approved May 28, 1980).

There are five principal prohibitions in § 93. The State is forbidden: (1) to engage in works of internal improvement, (2) to lend money in aid of internal improvement, (3) to lend its credit in aid of internal improvement, (4) to be interested in any private or corporate enterprise; and (5) to lend money or its credit to any individual, association, or corporation. Edmonson v. State Industrial Development Authority, 279 Ala. 206, 184 So.2d 115 (1966). In Edmonson, the Court stated that the prohibition contained in § 93 that the State can not be interested in any private or corporate enterprise has been construed to mean that the State may not engage, alone or in concert with others, in business of a type generally characterized as private enterprise. Although Edmonson involved the creation of the State Industrial Authority and the source of funds to pay off the bonds issued by the Authority, the Court held: “No part of the taxes presently paid into the general fund of the State can be used to service the bonds authorized to be issued by the Authority” (emphasis added).

Section 2 of Senate Bill 46 specifically provides for an appropriation from the general fund of the state to aid the Housing Finance Authority in the issuance of bonds. Even though the oil lease money is intended to be kept separate from the general fund, it is still general fund money. This bill further provides that should the money from the oil leases that is in the general fund, not be sufficient or available for this appropriation, then additional general fund money can be used without limitation.

It takes no citation of authority to reach the conclusion that engaging in the money lending business and taking a mortgage as security, is clearly private enterprise. As such, it has not been a function of our state government since 1901. Indeed, it was the unfortunate experience of our state when it was engaged in the business of banking that prompted the inclusion of § 93 into our Constitution of 1901.

State v. Murphy, 237 Ala. 332, 186 So. 487 (1939), best states our view as follows:

Defendant further argues that the words, “nor shall the state be interested in any private * * * enterprise,” mean merely that the State shall not be interested with individuals, associations or corporations in the operation of a private or corporate enterprise, and was not intended to prevent the State itself from engaging in a private enterprise.
But we think this too narrow a construction of the Constitution, and clearly out of harmony with the motivating cause of the inclusion of this prohibition in our organic law. The interest referred to is a pecuniary interest in any private or corporate enterprise, and this prohibition was, we think inserted in our organic law as a limitation upon the power of the legislature to again place our State in business enterprises and in competition with private individuals or corporations; or to undertake those things which ordinarily might, in human experience, be expected to be undertaken for profit or benefit to private promoters.

237 Ala. at 335, 186 So. 487.

Attorneys representing the Alabama Housing Finance Authority have filed an amicus curiae brief, and at the request of the Court, the Attorney General also filed a brief. Both briefs support the position of the five justices who are of the opinion that the pertinent provisions of Senate Bill 46 violate neither § 93 of the Constitution, as amended, nor § 213 of the Constitution. As to § 93, both briefs and the five justices place great weight upon the proposition that since the Alabama Housing Finance Authority is a separate public corporation the limitations and restrictions of § 93 do not apply; that is, a separate public corporation is not the state. While we recognize statements to this effect in our cases and in some previous Opinions of the Justices, this proposition of law is of great concern to us and simply cannot be a controlling principal of Alabama constitutional law.

For this proposition to stand unchallenged, there remains no constitutional limitation upon our lawmakers to establish separate “public corporations” to engage in any private enterprise or business (e.g., banking, farming, manufacturing, or merchandising) and then appropriate public funds to pay the operational expenses therefor — all in direct competition with individual or private corporate organizations engaged in such business activities. While we may have permitted the state to engage in and regulate the sale and distribution of alcoholic beverages under its police power, State v. Murphy, 237 Ala. 332, 186 So. 487; and finance the preparation of industrial sites for industry by grants to local public authorities, Edmonson v. State Industrial Development Authority, 279 Ala. 206, 184 So.2d 115; this Court should never give its approval (absent constitutional authorization ) to finance from public funds the operational expenses of lenders of money. While it may be popular and good at the present time to come to the aid of our ailing housing industry and supporting lending institutions, the opinion of the majority of this Court today nevertheless sets a precedent which would permit future legislatures to obligate our taxpayers to compete with any private enterprise when economic conditions are unfavorable.

As was stated by the Kansas Supreme Court in State v. Kelly, 71 Kan. 811, 81 P. 450 (1905) and adopted by this Court in Opinion of the Justices, No. 52, 237 Ala. 429, 187 So. 244 (1939):

It has been the policy of our government to exalt the individual rather than the state. * * * Our Constitution was framed and our laws enacted with the idea of protecting, encouraging, and developing individual enterprise.

Respectfully submitted,

C. C. TORBERT, Jr. Chief Justice.

RENEAU P. ALMON Associate Justice.

      . Both the amicus curiae and the Attorney General inform us in brief that there is also pending before the legislature Senate Bill 41 which proposes a constitutional amendment to authorize the appropriation of public funds for the purposes enumerated in Senate Bill 46. Obviously, some members of the legislature or others were of the opinion that formal constitutional sanction was necessary to authorize the proposed expenditure of these public funds. To like affect, it is significant to observe the various amendments to § 93 authorizing the construction and developments of public roads, bridges and highways, harbors and seaports, and public airports. See Amendments No. 1 and 12 to said § 93.


author: BRADLEY, Judge.

text:
    Pamela Sue HANLON (Sullivan) v. William Joe MOONEY and Jean Mooney. (In re Adoption of Julia Ann Hanlon).
    Civ. 2454.
    Court of Civil Appeals of Alabama.
    Jan. 28, 1981.
    Rehearing Denied Feb. 25, 1981.

      Kay S. Kelly and W. Eugene Rutledge, Birmingham, for appellant.
    Conrad Fowler, Jr., of Wallace, Ellis, Head & Fowler, Columbiana, for appellees.
   BRADLEY, Judge.

This is an adoption case.

The Probate Court of Shelby County, Alabama entered a final decree of adoption on February 14, 1980 declaring that the infant daughter of Pamela Sue Hanlon (Sullivan) was the legally adopted child of William Joe and Jean W. Mooney. The mother appeals; we affirm.

Appellant is a seventeen year old minor residing in Seymour, Indiana. In December 1978 she gave birth in a Seymour Hospital to a baby girl, Julia Ann Hanlon. Appellant was not married to the putative father of the child at the time of its birth but has since married another man and continues to reside in Indiana. Mrs. Sullivan was not aware that she was pregnant with Julia Ann until July 1978 when she was so informed by her physician, Dr. Martin Maa-sen.

Dr. Maasen became acquainted with Mr. and Mrs. Mooney while he was a resident physician at the University of Alabama in Birmingham and over the course of his residency had developed a close friendship with them. Appellees are, and have been for some time, residents of Pelham, Alabama. Mr. Mooney manages a service station business and owns and operates a lawn service business. His combined yearly income from these businesses is approximately $70,000. Mrs. Mooney is not presently employed and is thus able to devote full time to the care of her fifteen year old son by a former marriage and Julia Ann.

In September of 1978 Fred DeMarco, a former assistant to Dr. Maasen, informed Mr. and Mrs. Mooney that the doctor might be able to procure a child for them which they could adopt. Mr. Mooney thereafter telephoned Dr. Maasen who told him that he knew of a young lady who would by willing to give up her child for adoption.

From July to October of 1978 appellant and Dr. Maasen discussed what was to be done with the baby after its birth. It appears from the record that Dr. Maasen encouraged appellant to place the child for adoption. His theory was that appellant, because of the manner in which the child was conceived, would not love the child and as a result would not properly care for it. Appellant’s mother testified that she tried to convince appellant that the doctor’s statements were not necessarily true and that she might want to keep the child.

On October 28, 1978 appellant signed a written consent to adoption in Seymour, Indiana whereby she consented to the adoption of her then unborn baby by appel-lees upon its birth. Paragraph six of this consent form stated that:

I [i.e. appellant] do hereby give my complete consent to the adoption of my child by William Joe Mooney and wife, Jean W. Mooney, in accordance with and with the effect given by the laws of the State of Alabama pertaining thereto, and I further consent and request that the Judge of Probate of Shelby County, Alabama, make all such orders and decrees as may be necessary or proper to effectuate said adoption.

When appellant gave birth to her baby daughter in December 1978, Dr. Maasen notified appellees of the birth. Appellees immediately travelled to Indiana, obtained physical possession of appellant’s daughter, and returned with her to Alabama. Several weeks after giving birth to her daughter, appellant informed Dr. Maasen that she wanted her child back. Dr. Maasen replied that appellant’s chances of obtaining the custody of her daughter were very slim.

On January 29, 1979 appellees filed a petition for adoption of the child with the Probate Court of Shelby County, Alabama.

On March 7,1979 appellant filed a motion with the court seeking to revoke her consent to appellees’ adoption of her child. After an ore tenus hearing on the merits of the petition for adoption that same day, the probate court, on March 26, 1979, entered an interlocutory order disallowing appellant’s attempted revocation of her consent to the adoption of her child by appellees and directing the adoption proceedings continue under the laws of Alabama.

In refusing to allow appellant to revoke her consent, the court found as a fact that she voluntarily signed the written consent to adoption and that such was not obtained through the use of fraud, coercion, mistake, misrepresentation or undue influence. This finding was incorporated into the court’s February 14, 1980 final decree of adoption declaring that appellant’s child should thenceforth be legally recognized as appel-lees’ child and that her name should be changed to Melana Susan Mooney.

On March 17, 1980 appellant, pursuant to Rule 59 of the Alabama Rules of Civil Procedure, moved the probate court to vacate, alter, and amend its interlocutory and final orders in this case on the ground, inter alia, that the findings upon which it based these orders were contrary to the applicable law. The probate court never ruled on this motion. Accordingly, it was denied on June 16, 1980, ninety days after it was originally filed with the court. ARCP, Rule 59.1. Appellant filed a timely notice of appeal with this court.

The first issue raised in brief to which we will direct our attention concerns appellant’s contention that the validity of her consent to the adoption of her child be decided according to Indiana law rather than Alabama law.

Initially we note that appellant did not notify appellees in her pleadings or in any other written memoranda prior to entry of a final decree by the probate court of her intent to contest the court’s subject matter jurisdiction over this cause on the basis of a foreign law, i.e. its authority to decide the validity of the consent to adopt on the basis of Indiana law. Ordinarily, the giving of such notice would be a condition precedent to the maintenance of a defense grounded upon foreign law to appellees’ petition for adoption pursuant to the laws of this state. Semo Aviation, Inc. v. Southeastern Airways Corp., Ala., 360 So.2d 936 (1978); ARCP 44.1. Although appellant did not notify appellees prior to the final adoption decree of her intent to rely on Indiana law to void her consent to the adoption, she did tangentially inform appel-lees of this intent in her motion to vacate, alter or amend the final decree. Nevertheless, absent other compelling circumstances, appellant should be precluded from raising for the first time on appeal the validity of the adoption proceedings on the ground that her consent to the adoption was null and void according to Indiana law. See Unwed Father v. Unwed Mother, Ind.App., 64 Ind.Dec. 8, 379 N.E.2d 467 (1978); Ind. Code § 31-3-1-6 (1980). We believe, however, that such a compelling circumstance does exist and thus we are required to consider appellant's argument.

Appellant’s contention that Indiana law should determine the validity or invalidity of her consent to adoption is in effect a suggestion that the trial court was without subject matter jurisdiction to decide the adoption request, for we have held that where a mother has not consented to the adoption of her child an Alabama court has no jurisdiction to permit that child to be adopted. See Davis v. Turner, Ala.Civ. App., 337 So.2d 355, cert. denied Ala., 337 So.2d 362 (1976); Code of Alabama 1975, § 26-10-3, ARCP 12(h)(3).

Of course, the lack of subject matter jurisdiction may be raised at any time before or during the trial or even on appeal by any party or by the court before which the case is being tried or to which an appeal has been taken. Norton v. Liddell, 280 Ala. 353, 194 So.2d 514 (1967); Wells v. Wells, Ala.Civ.App., 376 So.2d 750 (1979); ARCP 12(h)(3). Should it appear that a court before which a case is being heard lacks subject matter jurisdiction, its disposition on the merits must be set aside. See generally Pacific National Insurance Co. v. Transport Insurance Co., 341 F.2d 514 (8th Cir. 1965), cert. denied, 381 U.S. 912, 85 S.Ct. 1536, 14 L.Ed.2d 434 (1965). Thus, the adoption decree in the case at bar would have to be set aside if the trial court was without subject matter jurisdiction as suggested by appellant.

All of the events surrounding appellant’s execution of the consent to adoption occurred in Indiana and the consent was, in fact, given in Indiana. However, the validity of a consent to an adoption is generally determined by reference either to the laws of the state in which the adoption proceedings are commenced or the laws of that state in which, according to the consent form such proceedings will be initiated or by which the form indicates that its validity will be judicially determined. See In re Adoption of a Minor Child, 127 F.Supp. 256 (D.D.C.1954); Matter of Appeal in Pima County Juvenile Action, 118 Ariz. 437, 577 P.2d 723 (Ariz.App.1977), aff’d, 118 Ariz. 428, 577 P.2d 714 (Ariz.1978); Susko Adoption, 363 Pa. 78, 69 A.2d 132 (1949).

The consent form signed by appellant clearly shows that the consent being given by appellant was for an adoption to take place in Alabama. Appellant knew from the beginning that appellees were residents of Alabama and were going to take the child to Alabama where they would institute adoption proceedings. Furthermore, the consent form provided that appellant was giving her consent to the adoption of her child in accordance with the laws of Alabama. Based on these circumstances we believe that the validity of appellant’s consent should be determined according to Alabama law.

Adoption of a child in this state is purely statutory and such statutes must be strictly adhered to. Davis v. Turner, supra. Section 26-10-3 of the Code of Alabama 1975 requires the consent of the parents in order for an adoption to be effectuated. However, if the child is illegitimate, the mother’s consent will suffice if her parental rights have not been terminated, except that the unwed father must be given notice and an opportunity to be heard where paternity has been established, or where his name and address appear on the petition, or where the name and address of the father are otherwise known to the court.

It is undisputed that the child was illegitimate, that the natural mother’s parental rights had not been terminated, that the child’s paternity had not been established, that the name and address of the father were not shown on the petition, and that the father’s name and address were not otherwise known to the court. Under these circumstances appellant’s consent to the adoption of her child was sufficient to permit the trial court to go forward with the adoption proceedings. Whether appellant gave her consent orally or in writing, before or after the birth of the child, even though she was a minor at the time of the consent does not militate against this conclusion. See Davis v. Turner, supra. Thus appellant’s consent to the adoption was presumptively valid from the moment she signed it unless such presumption can now be rebutted.

Under Alabama law, an otherwise valid consent to an adoption may be revoked only for “legal cause.” Davis v. Turner, supra. Obtaining the consent of a mother to the adoption of her child by fraud, mistake, coercion or undue influence can be “legal cause” for the revocation of her consent to the adoption. Williams v. Pope, 281 Ala. 416, 203 So.2d 271 (1967), appeal after remand, 284 Ala. 456, 225 So.2d 861 (1969); Davis v. Turner, supra. By the same rationale, a decision by the trial court that the child’s best interests would be served by being returned to its natural mother could also be “legal cause” for revoking the mother’s consent to adoption. Wiliams v. Pope, supra. Based on the record evidence in this case, we cannot say that the trial court’s conclusion that the appellant voluntarily consented to the adoption and that such adoption would be in the child’s best interests is so erroneous as to require a reversal of its decree. Walker County Department of Pensions & Security v. Mason, Ala.Civ.App., 373 So.2d 863 (1979).

Appellant’s next contention is that the decree of adoption should be set aside because the child was brought into Alabama in violation of § 38-7-15 and § 44-2-20, Code of Alabama 1975.

Section 38-7-15 does prohibit a person from bringing a child into Alabama for its adoption without first obtaining the consent of the Department of Pensions and Security. However, for a violation of this law only a criminal penalty is provided. § 38-7-16, Code of Alabama 1975. There are no provisions in said section requiring the adoption proceedings to be set aside for a violation thereof, although such a result might be required under the provisions of § 44-2-20 of the Code. However this section of the Code did not become effective until January 1, 1980. All court orders and proceedings in the case at bar had been issued and completed in 1979 except the final adoption decree which was rendered on February 14, 1980.

In Smith v. Smith, Ala.Civ.App., 365 So.2d 88 (1978), we said:

Whether a statute operates prospectively or retrospectively is a matter of legislative intent. Statutes generally will be held to operate prospectively unless the purpose and intention of the legislature to give them a retrospective effect clearly appears. Fuqua v. Fuqua, 268 Ala. 127, 104 So.2d 925 (1958); Bell v. Mar-Mil Steel & Supply Co., 54 Ala.App. 432, 309 So.2d 471 (1975).

After a careful review of § 44-2-20, we are unable to discern any intent that its provisions be applied retrospectively. For the enumerated reasons, we conclude that §§ 38-7-15 and 44-2-20 cannot be used to invalidate the trial court’s final decree of adoption.

Appellant’s final contention is that the trial court erred by not according an Indiana decree of February 29, 1980 declaring the consent to the adoption of her child null and void full faith and credit in accordance with article IV, § 1 of the United States Constitution. We disagree.

A final decree of adoption was rendered by the trial court on February 14, 1980, fifteen days before the Indiana decree was handed down. Hence, there was no final decree of an Indiana court for the trial court to give full faith and credit to when it entered its final judgment of adoption. In Pruitt v. Key, 281 Ala. 433, 203 So.2d 450 (1967) the Alabama Supreme Court observed:

The full faith and credit clause of the United States Constitution does not compel a court to set aside a judgment rendered in an action involving the same issue which is subsequently adjudicated with a different result by a court of a sister state. To so conclude would result in giving greater faith and credit to the judgment of the other state than to the judgment duly entered in the court of the state rendering the first judgment. Hammell v. Britton, 19 Cal.2d 72, 119 P.2d 333.

The failure of the trial court to accord full faith and credit to the Indiana decree does not amount to reversible error.

Finding no error in the judgment of the probate court, its final decree of adoption is affirmed.

AFFIRMED.

WRIGHT, P. J., and HOLMES, J., concur.


author: PER CURIAM.

text:
    (Ex Parte Pamela Sue Hanlon SULLIVAN. In re Pamela Sue HANLON (Sullivan) v. William Joe MOONEY and Jean Mooney).
    80-409.
    Supreme Court of Alabama.
    Aug. 21, 1981.
    As Corrected on Denial of Rehearing Sept. 18, 1981.

      W. Eugene Rutledge and Kay S. Kelly of Rutledge & Yearout, Birmingham, for petitioner.
    Conrad M. Fowler, Jr., of Wallace, Ellis, Head & Fowler, Columbiana, for respondent.
   PER CURIAM.

We granted the petition for certiorari in this case because it is a case of first impression in several particulars. It is an adoption case. The Court of Civil Appeals affirmed the judgment of the probate court. We reverse and remand with directions.

The facts are not materially disputed. They do portray a picture of human tragedy and call for the Court to perform one of its most difficult and delicate functions.

In March of 1978, Pamela Sue Hanlon, who lived with her parents in Seymour, Indiana, became a rape victim at the age of seventeen. She learned for the first time in May of that year that the rape had resulted in pregnancy. She was informed of this fact by Dr. Maasen, an obstetrician-gynecologist. From the time Dr. Maasen learned of the circumstances resulting in Pamela’s pregnancy, he counseled that it would be best for the child if she allowed its adoption. He told her that because the pregnancy resulted from a rape, she would more than likely beat and abuse the child. He repeated this opinion on each visit. Pamela’s mother offered contrary advice, but testified that Pamela was finally persuaded by Dr. Maasen that she might harm the child if she kept it. He also told her that “If you get married, no boy is going to want to take that baby.” Dr. Maasen told Pamela that he knew some people who would make a nice home for the baby.

The evidence shows that the people to whom Dr. Maasen referred were Mr. and Mrs. Joe Mooney, who live in Pelham, Alabama. Dr. Maasen met the Mooneys during his residency at the University of Alabama Medical School. Mr. Mooney runs a service station and apparently Dr. Maasen met him there. Joe Mooney is 43 years of age. His wife is 35. They have both been married previously. Mrs. Mooney has a teenaged son. Mr. Mooney is childless.

The Mooneys had sought to apply for adoption of a child with the Alabama Department of Pensions and Security (DPS), but their application was unacceptable under DPS regulations because that department does not accept applications from persons of the Mooneys’ age.

In September, 1978, the Mooneys received a telephone call from one Fred DeMarco, who had been an assistant to Dr. Maasen and who was acquainted with the Mooneys. He advised that Dr. Maasen might have a child available for adoption. Mr. Mooney called his friend Dr. Maasen, who explained the situation with regard to Pamela, and was told “it might be a natural tie in and he would see if he could get it.”

The Mooneys again contacted DPS to inquire as to the proper procedure for bringing a child into the State of Alabama for adoption. They were informed of the proper method and were cited to § 38-7-15, Ala.Code 1975. They were also advised to seek an attorney’s advice. The statute to which they were referred requires the consent of DPS prior to bringing a child into the state, and DPS may, as a condition precedent to bringing a child into the state, require an authorized agency in the state from which the child is brought to interview the natural parent or parents of the child. The Mooneys neither sought nor received the consent of DPS. Instead, a few days later they traveled to Seymour, Indiana, with “Consent to Adoption” forms prepared for Pamela's signature. Although the documents stated that she was acquainted with the Mooneys, all parties agree that this was untrue, and they had never met. They met Pamela’s mother in Dr. Maasen’s office, but did not see Pamela. The forms were signed by Pamela and her mother on October 28, 1978. They were subsequently notarized outside Pamela’s presence. The Mooneys returned to Alabama with the consent forms.

Pamela gave birth to a baby girl on December 3, 1978, in Scaneck Hospital in Seymour, Indiana. She was discharged from the hospital six hours after the delivery and never saw the baby. Dr. Maasen immediately telephoned the Mooneys in Alabama to inform them of the birth of the baby. The Mooneys traveled to Indiana, and Dr. Maasen delivered the days old infant to them. The Mooneys returned to Alabama with the baby and on January 26, 1979, filed a petition for adoption of the child in the probate court of Shelby County. Meanwhile, Pamela kept asking Dr. Maasen about the baby and “kept on after him telling him [she] wanted [her] baby back.” Maasen told her there was “not a snowball’s chance in hell for [her] to have [her] baby.” Pamela and her mother came to Shelby County and testified at a hearing held on March 7, 1979, on the Mooneys’ petition to adopt the baby. Both Pamela and her mother filed in open court a revocation of their alleged consent to the adoption of the child.

On March 26, 1979, the probate judge, a non-lawyer, entered an interlocutory order which ordered the adoption proceedings to proceed according to law. This order was served on DPS so that that agency could conduct an investigation of the prospective adoptive parents as required by § 26-10-2, et seq., Ala.Code 1975. In its report to the court, DPS advised that although the Moo-neys had been advised of the necessary procedure in bringing a child into the state for adoption, “said procedure was not followed and the child was brought into the state without prior approval of the State Department of Pensions and Security.” The report also stated that “[s]ince October, 1978, the insecurities of adoptions where parents know the whereabouts of the child and where the mother is a minor have been repeatedly pointed out to the petitioners.”

Pamela filed a petition for habeas corpus in the United States District Court for the Northern District of Alabama, which sought the return of her baby. This petition was dismissed for want of jurisdiction. She also filed a petition for writ of habeas corpus, or in the alternative, a petition for child custody, or in the alternative, a petition for declaratory judgment in the circuit court of Bartholomew County, Indiana. The Mooneys appeared in that proceeding, contested jurisdiction of the court and also the merits. The Indiana court granted the petition for writ of habeas corpus on January 22, 1980, and overruled the motion to dismiss for want of jurisdiction on February 7, 1980. At the request of the Mooneys, it continued the hearing on the merits to February 20, 1980, at which time the court entered the following judgment:

This cause came on for Summary Hearing the 20th day of February, 1980, concerning the Writ of Habeas Corpus granted by this Court on the 22nd day of January, 1980, with respect to the alleged restraint by Respondents William Joe Mooney and Jean W. Mooney of one Julia Ann Hanlon (a/k/a Melana Susan Mooney), a child born December 3, 1978, in Jackson County, Indiana, to Petitioner Pamela Sue Hanlon Sullivan;
Petitioner was present in person and by counsel, while Respondents were represented by counsel who appeared for the purpose of contesting the taking of jurisdiction of this cause by this Court and who objected to any consideration by the Court of the merits of Petitioner’s claim;
And the Court, being advised, and having elected to hear testimony of witnesses and to examine the exhibit presented and admitted into evidence, now finds as follows:
1. This Court can and should consider the prayers of Petitioner for an award of custody of Julia Ann Hanlon to Petitioner and for a declaration of the invalidity of the purported Consent to Adoption executed by Petitioner on or about October 28, 1978, in addition to her prayer for delivery of the child to her, because of the seeming inseparability of those issues, one from another;
2. Jurisdiction, having originally been taken for the purpose of addressing Petitioner’s January 22, 1980 Petition for Writ of Habeas Corpus, has thus led this Court to consideration of the validity of the aforementioned October 28, 1978, Consent to Adoption, and if that purported consent is not invalid on its face by being executed before the birth of the child whose placement was sought, it certainly is based on the testimony of Petitioner concerning the reportedly extreme pressure placed on her by her attending physician during her pregnancy term to so consent, his promises that her consent could easily be revoked by her, her lack of opportunity to read the proposed consent in its entirety before executing it and the fact that the notarization of her signature was not even made in her presence; thus, this Court finds that the Consent should be set aside as invalid and void ab initio;
3. And even if there was an ascription of validity possible respecting the aforementioned Consent to Adoption, the absence from this record of any involvement of any County Department of Public Welfare of this State or any duly licensed child-placing agency operating in this State should void an adoption wherever and by whomsoever granted;
4.And this Court having found the consent void and invalid from the date of its execution and the entire adoption proceeding without and in disregard of applicable Indiana law, the domicile of the child with its mother, Petitioner herein, at said Petitioner’s home in Columbus, Bartholomew County, Indiana, is an inescapable conclusion;
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED as follows:
1. That Julia Ann Hanlon, born December 3, 1978, to Pamela Sue Hanlon Sullivan, Petitioner, herein, in Jackson County, Indiana, said child also known as Melana Susan Mooney, is being illegally restrained in Shelby County, Alabama, by Respondents William Joe Mooney and Jean W. Mooney and is to be forthwith returned to said Pamela Sue Hanlon Sullivan, who is currently domiciled at 2350 Illinois Street, Columbus, Bartholomew County, Indiana 47201;
2. That Pamela Sue Hanlon Sullivan, be, and she hereby is declared to be, entitled to the care and custody of said Julia Ann Hanlon, as the natural mother of said child and whose parental rights have never been lawfully terminated by a Court of cognizant authority of this State and concerning which purported offer for adoption of such child no County Department of Public Welfare of this State or a licensed child-placing agency operating in this State has ever been involved;
3. That the purported Consent to Adoption herein be and the same is hereby declared void ab initio.

In the meantime, on February 14,' 1980, the probate judge of Shelby County entered the final order of adoption granting the Mooneys custody of the child. Pamela, the natural mother, appealed.

Two ancient principles of law compel a reversal in this case. Adoption is purely statutory. It was unknown to the common law. The courts of this state have always required strict adherence to statute-ry requirements in adoption proceedings. No case has stated this principle better than the Court of Civil Appeals in Davis v. Turner, 337 So.2d 355 (Ala.Civ.App. 1976), where it said:

Adoption is strictly statutory, Hanks v. Hanks, 281 Ala. 92, 199 So.2d 169. Being unknown at common law, it cannot be achieved by contract, Prince v. Prince, 194 Ala. 455, 69 So. 906. Adoption is not merely an arrangement between the natural and adoptive parents, but is a status created by the state acting as parens patriae, the sovereign parent. Because the exercise of sovereign power involved in adoption curtails the fundamental parental rights of the natural parent, the adoption statutes must be closely adhered to.

337 So.2d at 360-361.

To give the consent signed by the mother the effect sought by the Mooneys would be to allow adoption by contract or to enforce an arrangement between these parties not sanctioned by either the law of Alabama or Indiana. Thus, it is immaterial whether we look to Alabama law or to the law of Indiana. The statutes of neither have been adhered to. It is not disputed that the requirements of § 38-7-15, Code 1975, were not complied with. The Court of Civil Appeals recognized this, but noted that noncompliance did not necessarily invalidate the proceedings. Under the facts of this case, we hold that it does. Indiana law, I.C. 31-3-l-6(b), requires that “the consent to adoption may be executed at any time after the birth of the child either in the presence of the court, in the presence of a notary public or other persons authorized to take acknowledgements.” It is not controverted that the consent here was signed several weeks before the birth of the child. Hence, Indiana's statutes were not complied with.

“[T]he courts of this state do not have the power to sever the bonds of blood relationship merely in order to gain some real or fancied advantage for a minor child.” Griggs v. Barnes, 262 Ala. 357, 78 So.2d 910 (1955). This statement recognizes the second ancient rule in this jurisdiction:

The law devolves the custody of infant children upon their parents, not so much upon the ground of natural right in the latter, as because the interests of the children, and the good of the public, will, as a general rule, be thereby promoted. It is a fair presumption, that so long as children are under the control of their parents, they will be treated with affection, and their education and morals will be duly cared for. ...
... So strong is the presumption, that “the care which is prompted by the parental instinct, and responded to by filial affection, is most valuable of all”; and so great is the reluctance of the court to separate a child of tender years from those who according to the ordinary laws of human nature, must feel the greatest affection for it, and take the deepest interest in its welfare, — that the parental authority will not be interfered with, except in case of gross misconduct or where, from some other cause, the parent wants either the capacity or the means for the proper nurture and training of the child. Where a contest for the custody of a child arises between its father or mother and a third person, the superior claim of the parent ought not, in our opinion to be disturbed, unless it plainly appears that the interests of the child require it to be set aside.

Striplin v. Ware, 36 Ala. 87, 89-90 (1860).

The same principle is again stated in Chandler v. Whatley, 238 Ala. 206, 189 So. 751 (1939), by Justice Bouldin, speaking for the Court:

The law, indulging the presumption that the welfare of this child will be best conserved by awarding her custody to her father, rather than the step-father, ordains that this shall be done, unless such presumption is overcome by clear and convincing evidence that the father is unsuited or unfit to assume the place of a father in providing a safe and comfortable home, proper environment, parental affection, care, training and education.

238 Ala. at 209, 189 So. 751.

The law recognizes that a higher authority ordains natural parenthood, and a fallible judge should disturb the relationship thus established only where circumstances compel human intervention.

A reading of the record in this case convinces us that the probate judge did not observe this presumption, which under our law favors the natural parent. The entire record focuses on the relative affluence of the Mooneys as compared to that of the natural mother. The testimony establishes without a doubt that the Mooneys are more capable than the natural mother to assure financial security for this child. However, that is not the test. There is no evidence that the natural mother’s limited ability to provide financial security for the child falls to the level which would authorize removing the child from her against her will. The record does indicate that the Mooneys have great love and affection for this baby girl. It likewise shows that her natural mother also loves her. The law favors the natural mother with a presumption which has not been overcome here. As Justice Mayfield said in Griggs v. Barnes, supra, which involved a suit between the mother of an illegitimate child and the foster parents to whom the mother had given the child immediately after its birth:

We are mindful of the passionate and burning desire of couples who have been denied parenthood to give stability and meaning to their lives by the adoption of children. We also recognize that once a helpless babe is brought into a home, nurtured and cared for by its foster parents, that the tenderness and the depth of the bond between the infant and its benefactors increases with each passing day. We can say without hesitation that the attachment of these foster parents is now as deep as if this child were flesh of their flesh and blood of their blood.
These natural and human feelings of the foster parents, however, cannot be allowed to sway us from our sworn and bounden duty to enforce the laws of this state....
While it is true that the “pole star” in custody cases is the best interest and welfare of the child, the courts of this state do not have the power to sever the bonds of blood relationship merely in order to gain some real or fancied advantage for a minor child.
This teen-aged mother, misguided though she was, carried this child, and gave of herself to complete her pregnancy. Alone, disgraced and afraid, she entered the twilight valley of the shadow of death to bring life to this child. Her right to this child is paramount. The natural parents, and in the case of illegitimate children, the natural mother, is entitled to the care and custody of her children, unless good cause is shown why the custody of the natural parent is not in the best interest of the child.

262 Ala. at 361-362, 78 So.2d 910.

Griggs did not involve a legal adoption. Neither does this case, since neither the law of Alabama nor that of Indiana was complied with. Had the law of either state been satisfied, or had the natural mother not asserted her right to custody of the child, we would view this case differently. However, all of the facts taken together convince us that as painful as it is, our oaths to uphold the law compel us to reverse the judgment of the Court of Civil Appeals and direct that this cause be remanded with directions to the probate court of Shelby County to deliver this infant to its natural mother, the petitioner here.

REVERSED AND REMANDED WITH DIRECTIONS.

All the Justices concur, except JONES, J., recused.

APPLICATION FOR REHEARING OVERRULED. OPINION CORRECTED.


text:
    Pamela Sue HANLON (Sullivan) v. William Joe MOONEY and Jean Mooney. In re ADOPTION of Julia Ann HANLON.
    Civ. 2454.
    Court of Civil Appeals of Alabama.
    Oct. 14, 1981.
   BRADLEY, Judge.

Upon remand to this court by the Supreme Court of Alabama, it is considered that this cause should be reversed in accord*ance with the opinion rendered by the supreme court on August 21, 1981, 407 So.2d 559, in the above styled cause, and remanded to the Probate Court of Shelby County with directions to deliver the infant to her natural mother.

REVERSED AND REMANDED.

WRIGHT, P. J., and HOLMES, J., concur.


author: HARRIS, Presiding Judge.

text:
    Freddie Lee WRIGHT v. STATE.
    1 Div. 86.
    Court of Criminal Appeals of Alabama.
    Aug. 4, 1981.
    Rehearing Denied Oct. 6, 1981.
    A1 Pennington, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and Joseph G. L. Marston, III, Asst. Atty. Gen., for appellee.
   HARRIS, Presiding Judge.

The judgment of the conviction is reversed and the cause remanded for a new trial on authority of Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), on remand, Ala., 396 So.2d 645 (1981), and Ritter v. State, Ala.S.C., 403 So.2d 154 (1981), Ala.Cr.App., 403 So.2d 158 (1981). July 7, 1981, Motion for Stay of Mandate Denied by Ala.S.C.

REVERSED AND REMANDED.

All the Judges concur.

Writ denied, Ala., 407 So.2d 565.


author: EMBRY, Justice. JONES, Justice

text:
    Ex parte State of Alabama (Re: Freddie Lee WRIGHT v. STATE of Alabama).
    81-60.
    Supreme Court of Alabama.
    Dec. 11, 1981.
    Charles A. Graddick, Atty. Gen., and Joseph G. L. Marston, III, Asst. Atty. Gen., for petitioner.
    A1 Pennington, Mobile, for respondent.
   EMBRY, Justice.

WRIT DENIED.

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

MADDOX, JONES, and ADAMS, JJ., dissent.

FAULKNER, J., not sitting.

JONES, Justice

(dissenting).

I respectfully dissent. I would grant the writ. See my dissent in Ex parte State (Re: Bryars v. State), [MS. Dec. 11, 1981] 407 So.2d 566 (Ala.1981).

MADDOX and ADAMS, JJ., concur.


text:
    Earl A. BRYARS, Jr. v. STATE.
    3 Div. 304.
    Court of Criminal Appeals of Alabama.
    Aug. 4, 1981.
    Rehearing Denied Oct. 6, 1981.
    Barry Hess and Virginia A. Johnston of Hess, Atchison & Horne, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., for ap-pellee.
   PER CURIAM.

The judgment of the conviction is reversed and the cause remanded for a new trial on authority of Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), on remand, Ala., 396 So.2d 645 (1981), and Ritter v. State, Ala., 403 So.2d 154 (1981), Ala.Cr.App., 403 So.2d 158 (1981), July 7, 1981, Motion for Stay of Mandate Denied by Ala.S.C.

REVERSED AND REMANDED.

All the Judges concur.

Writ denied, Ala., 407 So.2d 566.


author: TORBERT, Chief Justice. JONES, Justice

text:
    Ex parte: State of Alabama (In re: Earl A. BRYARS, Jr. v. STATE of Alabama).
    81-71.
    Supreme Court of Alabama.
    Dec. 11, 1981.
    Charles A. Graddick, Atty. Gen., and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for petitioner.
    Barry Hess and Virginia A. Johnston of Hess, Atchison & Horne, Mobile, for respondent.
   TORBERT, Chief Justice.

WRIT DENIED.

ALMON, SHORES, EMBRY and BEAT-TY, JJ., concur.

MADDOX, JONES and ADAMS, JJ., dissent.

FAULKNER, J., not sitting.

JONES, Justice

(dissenting).

I would grant the petition for writ of certiorari and limit the remand to the issue of sentencing. This case shows the extreme of what the dissent was trying to point out in Ritter v. State, 403 So.2d 154 (Ala.1981). In this case, where the defense is alibi, there is no possibility that the accused could have raised a lesser-included offense. He was there and did it, or was somewhere else and did not do it. How can he be entitled to a new trial because he was denied a lesser-included offense charge?

MADDOX and ADAMS, JJ., concur.


text:
    Walter HILL v. STATE.
    6 Div. 269.
    Court of Criminal Appeals of Alabama.
    Aug. 4, 1981.
    Rehearing Denied Oct. 6, 1981.
    Jackie M. McDougal and Robert C. Boyce, III, Bessemer, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Anthony McLain for McLain & Hampton, Sp. Asst. Attys. Gen., for appellee.
   PER CURIAM.

The judgment of the conviction is reversed and the cause remanded for a new trial on authority of Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), on remand, Ala., 396 So.2d 645 (1981), and Ritter v. State, Ala., 403 So.2d 154 (1981), Ala.Cr.App., 403 So.2d 158 (1981), July 7, 1981, Motion for Stay of Mandate Denied by Ala.S.C.

REVERSED AND REMANDED.

All Judges concur.

Writ denied, Ala., 407 So.2d 567.


text:
    Ex parte State of Alabama (Re: Walter HILL v. STATE of Alabama).
    81-74.
    Supreme Court of Alabama.
    Dec. 11, 1981.
    Charles A. Graddick, Atty. Gen., and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for petitioner.
    J. M. McDougal and Robert C. Boyce, III, Bessemer, for respondent.
   EMBRY, Justice.

WRIT DENIED.

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

MADDOX, JONES, and ADAMS, JJ., dissent.

FAULKNER, J., not sitting.

JONES, Justice

(dissenting).

I respectfully dissent. I would grant the writ. See my dissent in Ex parte State (Re: Bryars v. State), 407 So.2d 566 (Ala. 1981).

MADDOX and ADAMS, JJ., concur.