author: LEE, Justice, for the Court:

text:
    Mrs. Merle Bertucci BYRD v. Lyle M. PAGE, Executor of Estate of John J. Bertucci, Deceased.
    No. 51923.
    Supreme Court of Mississippi.
    June 4, 1980.
    Rehearing Denied July 9, 1980.

      Sekul, Hornsby, Wallace & Teel, Thomas L. Wallace, Biloxi, for appellant.
    Bryant & Stennis, W. Raymond Hunter, Gulfport, Page, Mannino & Peresich, Ronald G. Peresich, Biloxi, for appellee.
    Before ROBERTSON, LEE and BOWLING, JJ.
   LEE, Justice, for the Court:

Mrs. Merle Bertucci Byrd filed a petition in the Chancery Court of the Second Judicial District of Harrison County against Lyle M. Page, Executor of the Estate of John J. Bertucci, seeking to reopen the estate of said deceased. The executor filed a motion to dismiss the petition, in the nature of a plea in bar, setting up that the suit was barred by Mississippi Code Annotated Section 91-7-309 (1972). The chancellor, Honorable Jason H. Floyd, Jr., sustained the motion and dismissed the petition, and Mrs. Byrd has appealed.

I.

Was the appellant’s petition barred by the two-year statute of limitations?

John J. Bertucci, a resident of Biloxi, Mississippi, died testate February 12, 1974. The will appointed Lyle M. Page Executor of said instrument, letters testamentary were issued to him February 22, 1974, and the estate was administered until February 27, 1976, when a final decree was entered by Chancellor John S. Morris, which, among other things, contained the following order:

“ORDERED, ADJUDGED and DECREED that the Final Account on file herein be and the same hereby is approved and allowed. .
* * sk * * sk
ORDERED, ADJUDGED and DECREED that upon compliance with the terms of this decree and filing vouchers in this cause, that the said Executor be discharged in the premises.”

The finding of the final decree recited that the court heard and considered the petition for discharge and final account of the said executor, heard and considered oral testimony and documentary proof, includ-mg testimony from Lyle M. Page, executor; Merle J. Bertucci Byrd, sole beneficiary; Willard H. Byrd, husband of Merle J. Ber-tucci Byrd; and Billy F. Brown, attorney of record for Mrs. Merle J. Bertucci Byrd; and that the court was fully advised in the premises. The court found, among other things, that Mrs. Merle J. Bertucci Byrd was the sole and only beneficiary under the will of John J. Bertucci, deceased, that she joined in the petition, that no objections were filed, and that the account contained an accurate and correct statement of all assets coming into the hands of the executor since the prior accounting, and that the disbursements claimed and made were legal and valid.

The court further found in said decree that the estate had been fully and completely administered, that the trust imposed upon the executor had been fully executed in conformity with statutes of the State of Mississippi and orders of the court, and that it was to,the best interest and advantage of all parties that the estate be closed; that Mrs. Merle Bertucci Byrd be placed in possession of all property belonging to the estate of her deceased husband; and that the sale of estate assets (real property) by her and the executor to G. W. Scarbrough, F. Walker Tucei, F. Walker Tucei, Jr., Marcia R. Swetman, Kosta Vlahos and Martin Morreale, were ratified, confirmed and approved.

Mrs. Byrd contends the record, or minutes, did not indicate that the final account had been filed, and that, therefore, the February 27, 1976 decree approving it was a nullity, that the two-year statute of limitations does not apply and that she should have been permitted to reopen the estate and litigate charges in her petition that (1) real property of the estate was sold by the executor at a grossly inadequate value for payment of inheritance taxes and other expenses, (2) that the executor negligently overpaid inheritance taxes in the sum of approximately one hundred five thousand dollars ($105,000), and (3) that the executor, acting in a trust capacity, perpetrated a fraud upon the estate.

Mississippi Code Annotated Section 91-7-309 (1972), sets forth the following:

“Any person interested may, at any time within two years after final settlement, by bill or petition, open the account of any executor, administrator, or guardian and surcharge and falsify the same, and not after, saving to minors and persons of unsound mind the same time after the removal of their disabilities. Such bills or petitions may be filed without leave of the court or chancellor, and evidence shall be admissible in such cases to show the falsity of the account. Such bills and petitions shall not be governed by the rules applicable to bills of review in chancery, but in such cases it will be the duty of the court to correct any errors of law or fact occurring in the final settlement of the executor, administrator, or guardian.” (Emphasis added)

Mississippi Code Annotated Section 91-7-291 (1972), with reference to final accounts, provides:

“When the estate has been administered by payment of the debts and the collection of the assets, it shall be the duty of the executor or administrator, unless the court or chancellor, on cause shown, shall otherwise order, to make and file a fina! settlement of the administration by making out and presenting to the court, under oath, his final account, . ” (Emphasis added)

As stated, appellant simply contends that Section 91-7-309 does not apply for the reason that no account was filed and no final settlement was made, and, in any event, she had a period of two (2) years from and after filing her petition to reopen the estate before the statute applies. The final account, while signed by Lyle M. Page, Executor, and approved by Merle J. Bertuc-ci Byrd, was not stamped “Filed” until March 7, 1979.

In addition to the order of the final decree, dated February 27, 1978, as hereinbe-fore set forth, the record contains a transcript of the court reporter’s notes taken February 12, 1976, before Honorable John S. Morris, chancellor, upon the presentation of, and hearing on, the petition for discharge and the final account. That transcript contains eight (8) typewritten pages and reflects that the executor presented to the court all matters complained of in the petition to reopen the estate, indicated difficulties incurred in working out the financial problems of the estate, went into the value of the real property and other properties, and indicated that, there was presented to the court a disbursement sheet (account) which was introduced into evidence. The transcript also reflects that the appellee was present with Mr. Byrd, her husband, Mr. Page, and her attorney, Mr. Billy Brown; that the court inquired of them all concerning the estate and what had been done; that they all had knowledge of the things that had transpired and that they were not only agreeable to the court’s approving the final account, but Mrs. Merle Bertucci Byrd had joined in the account and petitioned for approval of same.

The appellant argues that the transcript mentioned above was not properly before the court and that it should not have been considered by the chancellor. She further contends here that it is not before this Court, presumably because it was not designated as a part of the record, and that no diminution of the record was sought by appellee. However, the pleadings, which include the answer of appellee to the petition to reopen the estate, made the transcript a part of same as if fully copied therein, no motion was made to strike any part of the record, and we view same as a part of the record properly before us.

The final account, together with the petition for discharge of the executor, were found by the clerk in the closed files of the Chancery Clerk’s Office. Even though the final account itself may not have been marked “Filed,” there is no dispute that it was presented to the court, that it was a part of the record on presentation of same, and that the decree of February 27, 1976, was based upon said account and evidence heard for the approval thereof.

We are of the opinion that the final settlement of the estate was made by the February 27, 1976 final decree approving the final account of the said executor, that the two-year statute of limitations runs from that date, and that the chancellor correctly sustained the plea in bar and dismissed the petition to reopen the estate. Smith v. Bank of Clarksdaie, 374 So.2d 776 (Miss.1979); Barrett v. Turner, 229 So.2d 563 (Miss.1969); Shepherd v. Townsend, 249 Miss. 383, 162 So.2d 878 (1964).

II.

Was fraud charged to the extent that it constitutes a bar to the statute of limitations?

The petition to reopen the estate averred that the executor permitted estate property to be sold to persons in a confidential relationship with him at an inadequate price. However, there was no specific charge of fraud against the executor and the strongest charge of the petition was “The petitioner avers that the facts set out above, if true, are sufficient to shock the enlightened conscience, and that it is unnecessary to use the word ‘fraud’ in this petition.” Likewise, the record shows, as stated, that the chancellor approved the sale of real property to the individuals purchasing same, that appellee was present at the hearing when the sale was approved, and she, along with the executor, was authorized to sign the deeds of conveyance. There is no merit in this assignment. Citizens’ National Bank v. First National Bank, 347 So.2d 964 (Miss.1977).

For the reasons given, the judgment of the lower court is affirmed.

AFFIRMED.

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

      . Real property referred to in (1), infra.


source: Caselaw Access Project

license: Public Domain

text:
    GAYLORD’S OF MERIDIAN, INC. and/or Gaylord’s of Gulfport, Inc. v. Verna SICARD.
    No. 51982.
    Supreme Court of Mississippi.
    June 4, 1980.
    Rehearing Denied July 9, 1980.
    Bryant & Stennis, James O. Dukes, Gulf-port, for appellant.
    Wittmann & Berry, Thomas D. Berry, Jr., Gulfport, Gex, Gex & Phillips, Walter J. Gex, III, Bay St. Louis, for appellee.
    Before ROBERTSON, PATTERSON and LEE, JJ.
   LEE, Justice, for the Court:

Verna Sicard filed suit in the Circuit Court of the First Judicial District, Harrison County, against Gaylord’s of Meridian, Inc. [Gaylord’s] for malicious prosecution. The jury returned a verdict in the amounts of twenty-five thousand dollars ($25,000), actual damages, and fifty thousand dollars ($50,000), punitive damages, judgment was entered for said sums, and Gaylord’s has appealed, assigning seven (7) errors in the trial below.

On June 11, 1976, appellant, age sixty-three (63), and her sister, Mrs. Inez Frilous, age seventy-four (74), were shopping at Gaylord’s in Gulfport, Mississippi, and, according to them, appellee had selected two pairs of slacks from a rack, one bearing a price tag of one dollar sixty-six cents ($1.66) and the other, a pair of red slacks, had no price tag attached. They went to the checkout stand, and appellee paid for her purchases and proceeded toward the door. According to appellant, the red slacks sold for three dollars ($3.00) per pair, but appel-lee told the clerk they were the same price as the $1.66 slacks.

Appellee testified that she was accused by Mrs. Ruth Mondt, a security officer, of pulling the price tag off the pair of red slacks, that she was taken to the office where she was abused and was handed a form, which she signed without reading, to the effect that she had taken the red slacks without intending to pay for same. She said that she signed the instrument because she was afraid. Appellant and her sister were put in a police car and were driven to the Gulfport Police Department, where appellant was charged with price changing. The charge was amended to that of shoplifting, she was found guilty in the City Court, and executed a bond and appeal to the County Court, where the charge was changed to false pretense. She was acquitted by a jury.

The evidence for appellant is directly contradictory to that of appellee and makes out a case of probable cause for prosecution of appellee.

I.

Did the lower court err in refusing to grant a directed verdict or a peremptory instruction for appellant?

Suits for malicious prosecution are not favored and the courts have held that a clear case must be established. State, for the Use and Benefit of Foster v. Turner, 319 So.2d 233 (Miss.1975). The elements required to be proved in order to make a case of malicious prosecution are stated in Harvill v. Tabor, 240 Miss. 750, 128 So.2d 863 (1961), as follows:

“In order to maintain an action for malicious prosecution, the plaintiff must establish the following elements: (1) The institution or continuation of original judicial proceedings, either criminal or civil (the proceeding here is criminal); (2) by, or at the instance of the defendants; (3) the termination of such proceeding in plaintiff’s favor; (4) malice in instituting the proceeding; (5) want of probable cause for the proceedings; and (6) the suffering of damages as a result of the action or prosecution complained of. 34 Am.Jur., Malicious Prosecution, Section 6, page 706; 54 C.J.S., Malicious Prosecution, § 4, page 955.” 240 Miss, at 753-754; 128 So.2d at 864.

The burden of proving a malicious prosecution case by a preponderance of the evidence rests upon the plaintiff. The appellant argues that probable cause for instituting the proceedings, and lack of malice, conclusively appear because appellee was convicted in the city court, even though she was later acquitted in the county court.

In Pugh v. Easterling, 367 So.2d 935 (Miss.1979), this Court discussed previous decisions on malicious prosecution cases and stated:

“We hold that a conviction is conclusive evidence of probable cause for instituting a criminal prosecution, and a plaintiff, in a suit for malicious prosecution based on a criminal prosecution, must show that the criminal proceeding terminated in his favor as a condition precedent to recovery.” 367 So.2d at 938.

In Pugh, the Court held that a judgment of the justice of the peace court [now justice court] recited a conviction, which became a final judgment, and it constituted conclusive evidence that probable cause for the criminal prosecution existed and that the plaintiff had no ground for a malicious prosecution suit. The Court also stated we have held that a case is terminated in a plaintiff’s favor when the prosecution is abandoned or the affidavit is withdrawn, and that entry of a nolle prosequi in a criminal proceeding terminates the same in favor of the plaintiff. By the same reasoning, a judgment of an appellate court (or a trial de novo) reversing a conviction would be a termination in favor of the plaintiff.

We are of the opinion that termination of a criminal proceeding in favor of the defendant in that action simply gives him the right to proceed with a malicious prosecution suit, and, as in other civil suits, he must prove his case by a preponderance of the evidence. Also, conviction in a lower criminal court, although reversed by an appellate court, is prima facie evidence that the prosecuting party had probable cause to proceed with the prosecution, which may be overcome by the defendant’s (plaintiff in the civil proceeding) proof.

In the case at bar, the conflicting facts presented a question for the jury on the requisites of malicious prosecution, and, the jury having decided the issue in favor of the appellee, the prima facie ease made out by the appellant in showing the conviction in city court disappeared. The question of liability was properly submitted to the jury.

II.

Did the lower court err in refusing Instructions D-21, D-21-A, and D-23?

Instruction D-21 would have instructed the jury that a conviction in City Court is conclusive evidence of the existence of probable cause for an arrest in the absence of fraud, perjury, or other corrupt means of obtaining the conviction, even if the conviction is later reversed on appeal. Instruction 21-A instructed the jury that a conviction in city court is conclusive evidence of the existence of probable cause for an arrest, even if the conviction is later reversed on appeal. Those instructions do not correctly state the law and were properly refused. Pugh v. Easterling, supra.

Instruction D-23 would tell the jury that, although plaintiff was convicted in the city court and later acquitted in county court, the city court conviction was prima facie evidence that probable cause existed, unless the plaintiff proved by a preponderance of the evidence that probable cause did not exist. After all the evidence was adduced, the defendant’s prima facie case disappeared and the issue was for the jury to decide upon all the evidence before it. There was no error in refusing the instruction. Allen v. Ritter, 235 So.2d 253 (Miss. 1970).

III.

Did the lower court err in refusing Instruction D-2 and in granting Instruction C.ll?

The two instructions follow:

“JURY INSTRUCTION NO. D=2
The Court instructs the jury that the Plaintiff is not entitled to recover punitive damages from the Defendant, Gay-lord’s of Gulfport, Inc.”

and

“INSTRUCTION NO. C.ll
When you reach a verdict in this case, it should be written on a separate piece of paper, need not be signed by you, and may be in either of the following forms:
If you find for the Plaintiff:
‘We, the jury, find for the Plaintiff and assess her actual damages at $_’
If you find for the Plaintiff and assess punitive damages:
‘We, the jury, find for the Plaintiff and assess her actual damages at $-; and her punitive damages at $-’ If you find for the Defendant:
‘We, the jury, find for the Defendant.’ ”

The appellant objects to the above instructions for the reason that they both refer to punitive damages, and argues that the proof did not sustain a claim for punitive damages. All the evidence, when considered by the jury, together with reasonable inferences, support the elements of malice and probable cause and make out a case for punitive damages on those issues. Therefore, the court correctly refused Instruction D-2 and granted Instructions C.11.

IV.

Did the lower court err in refusing Instruction D-6?

Instruction D-6 required the appel-lee to prove punitive damages beyond a reasonable doubt and to a moral certainty. Appellant argues that the same degree of proof is required for punitive damages as in a criminal case to prove the guilt of an accused. Although the damages are by way of penalizing the defendant against whom they are sought, the proof is by a preponderance of the evidence rather than beyond reasonable doubt, and there is no merit in such contention. In Allen v. Rit-ter, supra, the Court said:

“This instruction could easily be confusing to the jury, and moreover, it omits the fact that the question of malice is to be determined ‘from a preponderance of the evidence.’” 235 So.2d at 256-257.

V.

Did the lower court err in giving Instruction C.20.09?

Without setting out the Court’s instruction, it is sufficient to say that the instruction does not constitute error. It was taken verbatim from the Mississippi Model Jury Instructions, p. 121, adopted by the Mississippi Circuit Court Judges’ Association and the Mississippi Judicial College. However, even though it is stated as a model of the instruction, we are of the opinion that there is better form for the instruction which has previously been stated by this Court and reference to punitive damage instructions appearing in the decisions of this Court would better present the question to the jury.

VI.

Did the lower court err in refusing Instructions D-19 and D-20 and in granting C.32.01?

We have carefully examined Instructions D-19 and D-20, refused by the court, and C.32.01, granted by the court, all assigned as error, and we find that there is no merit in the assignment.

VII.

Was the jury verdict of $25,000 in actual damages and $50,000 in punitive damages against the overwhelming weight of the evidence?

The evidence for appellees on actual damages indicated that, as a result of the incident, she felt ashamed and was humiliated by the criminal accusations, she had nightmares and difficulty sleeping afterwards, and had to move in with her sister, that she was required to see a doctor who prescribed Librium for her, and that she was embarrassed to seek employment because she would have to disclose that she had been arrested previously.

The proof on the issue of punitive damages was to the effect that Gaylord’s had eighteen (18) or twenty (20) other stores. There was no evidence relating to the financial worth of Gaylord’s and there was no guide whereby the jury could determine punitive damages. In First American National Bank of Iuka v. Mitchell, 359 So.2d 1376 (Miss.1978), the Court held that without a showing of the net worth or financial condition of the defendant, there was no way to measure the punitive damage award.

We are of the opinion that the verdict of the jury as to damages is not sustained by the evidence and that the verdict of the jury is contrary to the overwhelming weight of the evidence on the issue of damages, both actual and punitive, and that the judgment of the lower court should be, and it is, reversed and remanded for a new trial on the issue of damages alone.

AFFIRMED AS TO LIABILITY: REVERSED AND REMANDED FOR A NEW TRIAL ON DAMAGES ONLY.

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


text:
    Carolyn S. SEYLER v. Clifford A. SEYLER, M. D.
    No. 51969.
    Supreme Court of Mississippi.
    June 4, 1980.
    Rehearing Denied July 9, 1980.
    C. Everette Boutwell, Laurel, for appellant.
    Karl Wiesenburg, William T. Reed, Pas-cagoula, for appellee.
   Appeal from Chancery Court, Jackson County; Kenneth B. Robertson, Chancellor.

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

AFFIRMED.


text:
    Clifford D. NOE v. STATE of Mississippi.
    No. 51938.
    Supreme Court of Mississippi.
    June 4, 1980.
    Rehearing Denied July 9, 1980.
    Rex K. Jones, Hattiesburg, for appellant.
    Bill Allain, Atty. Gen. by Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Forrest County; Jack B. Weldy, Judge.

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

AFFIRMED.

SMITH and ROBERTSON, P. JJ., and WALKER, BROOM, LEE and BOWLING, JJ., concur.


author: BLOODWORTH, Justice.

text:
    Benny L. ROBERTS, as Administrator of the Estate of Joseph Donald Gore, Deceased v. Myrion Elizabeth BROWN, as Administratrix of the Estate of Tamela Rene Hickman, Deceased.
    78-671.
    Supreme Court of Alabama.
    Feb. 29, 1980.
    Rehearing Denied June 20, 1980.
    Curtis Wright, of Dortch, Wright, Ford & Russell, Gadsden, for appellant.
    Thomas E. Davis, of Burns, Shumaker & Davis, Gadsden, for appellee.
   BLOODWORTH, Justice.

This case arose out of an automobile accident, which occurred on June 26, 1977, in Pickens County, Alabama, in which all the occupants of a Volkswagen automobile were killed. Plaintiff, Administratrix of Tamela Hickman’s estate, sued the administrator of the estate of Donald Gore for wrongful death, alleging wanton conduct. The jury returned a verdict for $18,500 for plaintiff. Defendant appealed, alleging various errors in the trial of the case, principally that there was not a scintilla of evidence to support the verdict on the issue of wantonness. We agree and reverse and remand.

Donald Gore, Tamela Hickman, and Donald Gibson attended a fraternity rush party held at Lake Tuscaloosa, from 12:00 noon to 5:00 p. m. Mr. Gore and Miss Hickman, of Gadsden, were staying at the Inscho home (Mrs. Barbara Inscho was Miss Hickman’s aunt). They went there after the party and spent two to three hours cleaning up, getting dressed, and eating dinner. Donald Gore’s brother was scheduled to play in a band in Columbus, Mississippi, and Mr. Gore, Miss Hickman, and Mr. Bruce Inscho (the Inschos’ son) left for Columbus between 7:00 p. m. and 8:00 p. m. to see him play. The accident occurred on the return trip to Tuscaloosa; the exact time was never determined, but officials were on the scene early the next morning.

The Volkswagen automobile was traveling east on Highway 82 toward Tuscaloosa. The accident occurred at a curve (known locally as “Dead Man’s Curve”) on a section of the highway near Reform, about halfway between Columbus and Tuscaloosa. There were no eyewitnesses to the accident. Pick-ens County Sheriff Louie Coleman, who investigated the accident, testified that he received a call after midnight on Sunday morning. He testified that the curve was dangerous, that it was well marked with signs and reflectors, that the speed limit was either 35 or 40 m.p.h., that it appeared that the automobile left the pavement about thirty-five to forty yards before a bridge abutment, that the bridge crossed a small creek, that the automobile careened across the creek and came to rest on the opposite embankment, that he did not know the speed the automobile was traveling, that he did not know who was driving the automobile, but that he was told it belonged to Mr. Gore, that the occupants were dead when he arrived, and that rescue units and a state trooper had been on the scene for an hour before he arrived.

There was testimony, from witnesses who saw the parties the afternoon and evening before the accident, to the effect that Mr. Gore had drunk a few beers at the fraternity rush party, and that he was driving the automobile when he left the lake party, and also when the three left for Columbus between 7:00 p. m. and 8:00 p. m. The accident occurred sometime on the return trip. The case was submitted to the jury on the issue of wantonness only. The jury returned a verdict in favor of the plaintiff and against the defendant and assessed damages at $18,500.

“Wantonness has been defined as the conscious doing of some act or the omission of some duty which under knowledge of existing conditions and while conscious that, from the doing of such act or the omission of such duty, injury will likely or probably result, and before a party can be said to be guilty of wanton conduct it must be shown that with reckless indifference to the consequences he consciously and intentionally did some wrongful act or omitted some known duty which produced the result. Griffin Lumber Co. v. Harper, 247 Ala. 616, 25 So.2d 505; Taylor v. Thompson, 271 Ala. 18, 122 So.2d 277; Johnson v. Sexton [277 Ala. 627, 173 So.2d 790], supra.”

Lewis v. Zell, 279 Ala. 33, 36, 181 So.2d 101 (1965).

The most crucial element of wantonness is knowledge, and while that element need not be shown by direct evidence — it may be made to appear by showing circumstances from which the fact of knowledge is a legitimate inference, Whaley v. Lawing, 352 So.2d 1090, 1092 (Ala.1977) — it may not be left to the conjecture or speculation of the jury. Griffin Lumber Co. v. Harper, 247 Ala. 616, 622, 25 So.2d 505 (1946).

Defendant contends that the motion for a directed verdict should have been granted because there was not a scintilla of evidence on the issue of wantonness, there was no evidence as to who was driving the vehicle, there was no evidence regarding the speed of the vehicle at the time it left the highway or at any time prior thereto, there was no evidence tending to show why the vehicle left the highway, and there was no evidence tending to show that the operator of the vehicle was under the influence of intoxicants at the time of the accident. Defendant adds that the mere fact that the automobile left the paved highway, for some unexplained reason, does not furnish a scintilla of evidence of wantonness; that is, the jury could not reasonably infer, from the mere fact that the automobile left the highway, that the reason the automobile left the highway was due to the wanton conduct of the driver, even if it is assumed Mr. Gore was the driver. To reach any other conclusion, defendant says, would permit the jury to find the driver guilty of wanton conduct based solely on conjecture and speculation.

Plaintiff contends that the burden of proof as to wantonness was met because there was evidence that the driver of the automobile was under the influence of intoxicants, on the theory that proof of prior consumption of intoxicating beverages is relevant to prove intoxication at a later time, and because there was evidence that the curve was well marked, making the danger of that section of highway apparent to travelers. Thus, it is contended that the evidence presented supported a reasonable inference that the driver of the vehicle was Gore, that, under the influence of intoxicating beverages, he operated the vehicle into a curve which was so dangerous that signs and reflectors had been placed approximately fifty yards prior to the curve to warn oncoming traffic, that he knew the apparent danger of the curve and the probable consequences if he did not take reasonable care to negotiate the curve, and that, with reckless indifference to the consequences, he wrongfully and intentionally operated the car in a manner which proximately caused the death of Hickman.

The facts of this case fall between Shirley v. Shirley, 261 Ala. 100, 73 So.2d 77 (1954), and Griffin Lumber Co. v. Harper, 252 Ala. 93, 39 So.2d 399 (1949), [hereinafter referred to as Griffin III].

In Shirley, this Court affirmed a judgment entered in favor of the plaintiff based upon wantonness. As in the case at bar, in Shirley, there was no eyewitness to the accident, nor as to the car’s speed, nor to the fact that defendant’s intestate was driving the car. There was, however, testimony that defendant’s intestate had been seen driving the car fifteen miles and thirty minutes before the accident. The physical evidence showed that the automobile was being driven at a highly excessive rate of speed, at dusk, on a crooked highway. The speed of the automobile was estimated as being from seventy-five to one hundred miles per hour at the time it overturned. Once out of control, according to physical indications at the scene, it traveled a distance of 705 feet from the time it went out of control until it stopped rolling, having overturned for a distance of 240 feet and ten to eleven times. The automobile was almost completely demolished, and the two occupants were thrown clear of the automobile as it overturned. One body was thrown 72 yards beyond the point where the car came to rest after rolling over. This Court held that the evidence showed that the jury was justified in inferring, not presuming, that the car was driven by defendant’s intestate at a wantonly excessive rate of speed and in a manner which was obviously dangerous, and which was the proximate cause of the accident and death of plaintiff’s minor child. There, the Court wrote, viz.:

“In the instant ease the claim is not for failing to do something, but for willfully or wantonly doing the dangerous act. The speed of the car, one hundred miles per hour, was not caused by the down grade of the road ahead. The car could not have been then and there so driven except by the voluntary act of the driver. . The driver must have intended to make that speed at that place: it was done by feeding gas. . . . She must have voluntarily taken the risk and held to the speed.”

Shirley, supra, 261 Ala. at 106, 107, 73 So.2d at 82. (There is no such evidence in the instant case.)

In Griffin III, this Court reversed a judgment rendered on a jury verdict for the plaintiff based upon wantonness. The evidence showed that the defendant was driving a truck along a highway at about 2:00 p. m. with a heavy load of logs. As it passed over a crest of a hill it picked up speed, to about 65 or 70 miles per hour, and did not make a curve. Instead the truck tracks showed that it headed straight off the course of the road and hit a stone abutment flanking a culvert which crossed a ditch, throwing the truck off into the ditch and killing both the driver and the plaintiff’s son. The tracks showed no skid marks, and were straight, which indicated that there were no brakes applied to slow the speed, and that the truck was not steered out of the straight course which led the truck into the abutment. This Court held that to support wantonness, the evidence must support the conclusion that the failure to slow down the speed and make the curve was due to the willful or reckless failure to exercise all reasonable effort to do so, viz.:

“ . . . There is no direct evidence on that subject. Certainly the speed at which the truck was traveling was not alone sufficient evidence from which wantonness may be inferred. The rate of speed must be ir.i,entional or reckless. The circumstances must require a reasonable inference of apparent danger from such speed.
“The circumstances are sufficient to support a finding that such a speed was apparently dangerous, and that he knew of such danger. So that the question is controlled by the inquiry into the reason for such speed and the reason for not making the curve. As to that reason there is no evidence from which a reasonable inference may be drawn that it was willful or reckless, or that he was not doing what he could to avert the danger. Such brakes on the truck do fail unexpectedly at times, as shown by the evidence. . . .Was the failure of the driver due to such cause? No one can tell. There is a rebuttable presumption recognized by the law that every person in possession of his normal faculties in a situation known to be dangerous to himself, will give heed to instincts of safety and self-preservation to exercise ordinary care for his own personal protection. It is founded on a law of nature and has as its motive the fear of pain or death. [Citation omitted.] This situation must be analyzed in the light of that presumption. There is no reasonable theory deducible from the evidence which conflicts with it. There are no circumstances shown by the evidence which support an inference that he either willfully or recklessly did not use the means available to minimize the danger. A verdict cannot be rested on speculation, especially when a well understood presumption conflicts with it.”

Griffin, III, 252 Ala. at 95, 39 So.2d at 401.

In the case at bar, plaintiff contends that since there was direct testimony that Gore owned the car, because he was seen driving the car from the lake party and from the home of Inscho’s parents to Columbus, and since he had been seen drinking beer at the party, it was up to the jury to determine what weight to give this evidence and to draw inferences therefrom. Thus, plaintiff argues, the jury could reasonably infer that Gore was the driver of the automobile and that he was driving under the influence of intoxicants. Defendant, on the other hand, contends that evidence that Gore owned the car, and that he was seen driving the car that afternoon and evening does not support the inference that he was driving the car on the return trip. Defendant points to evidence that Ms. Hickman had been seen on more than one occasion driving Mr. Gore’s automobile. Thus, defendant contends, there is no reasonable inference that Gore was driving on the return trip.

We agree that the evidence is completely lacking as to who was driving the automobile at the time of the accident. The mere fact Mr. Gore drove the car many hours earlier that day in Tuscaloosa would not necessarily support an inference that he was driving the automobile on the return trip from Columbus. The evidence is even tenuous that Mr. Gore owned the Volkswagen. Moreover, to infer from the evidence that Mr. Gore was intoxicated on the return trip from Mississippi solely because he had several beers many hours earlier that day, that he entered the curve with full knowledge that he was in that condition, that he knew the danger of the curve, that he knew that attempting to negotiate the curve in an intoxicated condition would likely result in serious injury, and that nevertheless, with reckless indifference to these consequences, he consciously, and intentionally, did some wrongful act or omitted some duty while attempting to negotiate the curve, which produced the death of Hickman, exceeds the bounds of reasonableness and legitimacy. The essential elements of wantonness were at best left to conjecture or speculation.

In the case at bar, there was no evidence of the estimated speed the vehicle was traveling when it entered the curve. And, to indulge in an inference that Mr. Gore was voluntarily intoxicated at the time of the accident is unreasonable, especially where there was evidence that Gore and the other parties went to the home of Inscho’s parents, washed up, changed clothes, ate dinner, and stayed two or three hours before leaving for Columbus. In addition, Gibson’s mother testified that she did not recall any of the parties drinking while at her home. No evidence was presented to the effect that any of the parties had been drinking in Columbus. Nor were any beverage containers or liquor bottles found in the car or at the scene of the accident. Thus, the jury could not reasonably infer, as was held in Shirley the jury could infer, that the driver of the vehicle voluntarily created the conditions which led to the accident.

Although we think this case falls within the ambit of Griffin III, supra, it was suggested in that case that the heavy load the truck was carrying may have been a contributing factor to the accident. While there was no heavy load in the case at bar, the reason the driver failed to negotiate the curve was not determined, just as the reason the truck driver in Griffin III failed to negotiate the curve was not ascertained. There was, however, evidence in Shirley as to why the driver failed to negotiate the curve; she voluntarily entered the curve at a wanton speed. In sum, the reason the driver in Shirley failed to negotiate the curve was definite and fixed. The reason the driver in the case at bar, and in Griffin III, failed to negotiate the curve was left to speculation and conjecture. Such speculation and conjecture cannot support a verdict of wantonness.

REVERSED AND REMANDED.

TORBERT, C. J., and FAULKNER, AL-MON and EMBRY, JJ., concur.


text:
    OPINION OF the JUSTICES.
    No. 269.
    Supreme Court of Alabama.
    April 22, 1980.
   Members of the Senate

State Capitol

Montgomery, Alabama

Dear Sirs:

The Honorable McDowell Lee, Secretary of the Senate, has forwarded to the Justices of the Supreme Court the following Senate Resolution No. 144, which requests an advisory opinion of the Justices relative to S.B. 316:

BE IT RESOLVED BY THE SENATE OF THE ALABAMA LEGISLATURE, That we respectfully request the Honorable Chief Justice and Associate Justices of the Supreme Court or a majority of them, to give this body their written opinion on the following important Constitutional question which has arisen concerning the pending S.B. 316, the purpose of which, as stated in the title, is to make appropriations for the ordinary expenses of the executive, legislative and judicial departments of the state, for other functions of government, for interest on the public debt, for capital outlay, and for the public schools for the fiscal year ending September 30, 1981. Copies of said S.B. 316 are attached to this resolution and made a part hereof as if set out herein by reference:
1. In view of Sections 93 and 94 of the Constitution of Alabama 1901 and this court’s decision in the case of Board of Road Commissioners of Mobile County vs Puckett, 227 Ala. 374, 149 So. 850, where this court stated “whether the Constitution so expressly provides or not, that an appropriation of public revenues must be for a public purpose” are the following appropriations of public funds contained in said S.B. 316 for a “public purpose” and valid or are they unconstitutional, viz: [Here follows a listing.].

Attached to Senate Resolution No. 144 is a copy of S.B. 316 which proposes appropriations, i. e., financial assistance, to some 57 specified non-state agencies in Section 2(E) which are listed and named in alphabetical order, the first being the Amos Alonzo Stagg Bowl and the last the Y.M.C.A. Youth Legislature.

The Senate has requested that we examine S.B. 316 in light of Board of Revenue and Road Commissioners of Mobile County v. Puckett, 227 Ala. 374, 149 So. 850 (1933). In that case, the Court held that an appropriation to pay a just claim against the state was for a public purpose, based upon the recitals in the act which set forth the public purpose for which the appropriation was made. In Puckett, supra, the Court stated that the question of whether or not an appropriation was for a public purpose was largely within the legislative domain rather than within the domain of the courts. The Court also stated that the Legislature would be presumed to have acted within constitutional limits:

Though we may not entertain any doubt of the last inquiry mentioned above, it is clear that whether an appropriation is a donation, or whether it is the recognition of an honorable claim against the public, and therefore for a public purpose, is primarily addressed to the Legislature. We may here concede that if the act on its face showed a claim which was not right or fairly just against the state or county, it should be classified as a donation without consideration to the public. Whether and when the courts could or should look beyond the recitals of the act to inquire into such matters is not now before us. In this case, the question is controlled by such recitals.
The act states that it is compensation to the widow by reason of the death of her husband while he was working as an employee and performing his duties as such for Mobile County, Alabama . . .
The Legislature has to a great extent the right to determine the question, and its determination is conclusive when it does not clearly appear to be wrong, assuming that we have the right to differ with them in their finding. And though the recital in the act of the consideration lacks an element which is probably controlling, such omission is not conclusive that it is lacking. Taken on its face, it is our duty to assume that the Legislature acted within constitutional limits and did not make a donation, when such construction is not inconsistent with the recitals of the act.

Board of Revenue and Road Commissioners v. Puckett, 227 Ala. 374, 149 So. 850 (1933).

We must respectfully observe that a determination of whether the appropriation to each of the 57 non-state agencies was for a public purpose vel non would be a mixed question of law and fact. We are authorized by Code 1975, § 12-2-10, to give our advisory opinion only on concrete, constitutional questions. Opinion of the Justices, 209 Ala. 593, 96 So. 487 (1923); Opinion of the Justices, 288 Ala. 89, 257 So.2d 336 (1972); Opinion of the Justices 356 So.2d 617 (Ala.1978). The mere recital that state funds are appropriated to organizations or other entities designated as non-state agencies cannot be conclusively determinative of the ultimate question, whether or not the appropriation is for a “public purpose.” Our careful consideration of the Senate Resolution requesting our opinion leads us to the conclusion that any opinion we might render would not be based upon our consideration of pertinent facts which we deem essential to giving a proper advisory opinion.

While we appreciate the serious concern of the Senate as to the constitutional propriety of this matter, we would opine that the Legislature of this State is in a much better position to evaluate and decide whether a proposed appropriation is for a proper “public purpose.”

In order to aid you in your deliberations and decisions we would point out the following:

In Board of Regents of University and State Colleges v. Frohmiller, 69 Ariz. 50, 208 P.2d 833, 838, it was said:
“ * * * What is ‘a public purpose’ depends in part upon the time (age), place, objects to be obtained, modus operandi, economies involved, and countless other attendant circumstances. * * *”
Generally speaking, however, it has for its objective the promotion of public health, safety, morals, security, prosperity, contentment, and the general welfare of the community. Blumenthal v. City of Cheyenne, 64 Wyo. 75, 186 P.2d 556, 561-562; Platte Valley Public Power and Irrigation Dist. v. Lincoln County, 144 Neb. 584, 14 N.W.2d 202, 205, 155 A.L.R. 412; State ex rel. McClure v. Hagerman, 155 Ohio St. 320, 98 N.E.2d 835, 838.

Clifford v. City of Cheyenne, 487 P.2d 1325, 1329 (Wyo.1971).

The paramount test should be whether the expenditure confers a direct public benefit of a reasonably general character, that is to say, to a significant part of the public, as distinguished from a remote and theoretical benefit. Opinion of the Justices, 347 Mass. 797, 197 N.E.2d 691 (1964). For an extensive list of cases demonstrating the manner in which courts have interpreted the phrase “public purpose,” see: 35 Words and Phrases “Public Purpose” p. 553 (and the pocketpart thereof). See also: 56 AmJur. Municipal Corporations, § 579 et seq. The trend among the modern courts is to give the term “public purpose” a broad expansive definition.

There is no fixed static definition of “public purpose.” It is a concept which expands with the march of time. It changes with the changing conditions of our society. What today is not a public purpose may to future generations yet unborn be unquestionably a public purpose. “Public purpose” is a flexible phrase which expands to meet the needs of a complex society even though the need was unheard of when our State Constitution was adopted in 1842.

Opinion to the Governor, 112 R.I. 151, 308 A.2d 809 (1973).

For the reasons set forth above, we must respectfully decline to answer the question propounded to us by Senate Resolution 144.

Respectfully submitted,
C. C. Torbert, Jr.,
Chief Justice
Hugh Maddox,
James H. Faulkner,
Reneau P. Almon,
Janie L. Shores,
T. Eric Embry,
Sam A. Beatty,
Associate Justices


text:
    OPINION OF the JUSTICES.
    No. 270.
    Supreme Court of Alabama.
    April 22, 1980.
   Members of the House of Representatives

State Capitol

Montgomery, Alabama

Dear Sirs and Mesdames:

We acknowledge receipt of House Resolution No. 203 requesting an advisory opinion on the constitutionality of House Bill No. 931. Resolution No. 203 reads:

HOUSE RESOLUTION NO. 203

WHEREAS, Section 110 of the Constitution of Alabama, as amended by Amendment No. 375 to the said Constitution, provides in part as follows:

“ . . . the Legislature may . enact and change from time to time a general schedule of not more than eight classes of municipalities based on population according to any designated federal decennial census, and [after the enactment of such a general schedule,] general laws for any purpose may thereafter be enacted for any such class .
“No general law which at the time of its enactment applies to only one municipality of the state shall be enacted . unless notice of the intention to apply therefore shall have been given and shown as provided in Section 106 of this Constitution for special, private or local laws; provided, that such notice shall not be deemed to constitute such law a local law” ;

and

WHEREAS, acting pursuant to the quoted provisions of the said Section 110, as so amended, the Legislature did enact, at its 1979 Regular Session, Act No. 79-263 which established eight classes of municipalities based on population according to the 1970 federal decennial census; and

WHEREAS, one of the eight classes of municipalities so established by the said Act No. 79-263 consists of municipalities having a population of 300,000 or more, according to the said 1970 federal decennial census; and

WHEREAS, it appears from the said 1970 federal decennial census that the City of Birmingham is the only municipality in Class 1 as established by the said Act No. 79-263; and

WHEREAS, the Journal of the House of Representatives of the current session of the Legislature shows

(a) the introduction of House Bill No. 931, (i) which by its terms relates to any municipality in Class 1 of the eight classes of municipalities established as aforesaid by the said Act No. 79-263, and (ii) which is, accordingly a general law under the provisions of the said Section 110, as so amended, and
(b) certification as to publication of the said House Bill No. 931 pursuant to the publication requirements of Section 106 of the Constitution with respect to a local law;

WHEREAS, important constitutional questions affecting the entire State of Alabama are presented by the said House Bill No. 931 [a copy of that bill was attached to HR 203, but is omitted from this opinion], since its validity involves the validity of Amendment No. 375 to Section 110 of the Alabama Constitution;

NOW, THEREFORE, BE IT RESOLVED by the House of Representatives of Alabama that the Justices of the Supreme Court of Alabama are hereby respectfully requested to render their opinion, as provided by Section 12-2-10 of the Code of Alabama of 1975, on the following important constitutional questions:

(1)Was there a failure on the part of the Legislature of Alabama to direct (either in Act No. 11, 1978 Second Special Session, the act that proposed the said Constitutional Amendment No. 375, or by other means) the manner in which notice of the election on said Constitutional Amendment be published, as contemplated by the provision of Section 284 of the Constitution, as amended, that such notice “be published in every county in such manner as the Legislature shall direct”?
(2) If question (1) is answered in the affirmative, is Constitutional Amendment No. 375 invalid because not adopted in accordance with the quoted provision of the said Section 284, as amended?
(3) If question (2) is answered in the affirmative and if, accordingly, Section 110 of the Alabama Constitution has not been amended and now exists in its original form, is House No. 931 a proposed local law, within the meaning of the said Section 110?
(4) If both questions (2) and (3) are answered in the affirmative and if, accordingly, House Bill No. 931 is a proposed local law, within the meaning of the said Section 110, is House Bill No. 931 invalid under the provisions of Section 104(18) of the Alabama Constitution?

The first three questions posed would require the members of this Court to address the issue of whether Amendment No. 375 to the Constitution of 1901 was constitutionally enacted under Section 284 of the Constitution. We must respectfully decline to answer questions (1) through (3) because they do not concern the constitutionality of proposed legislation. See Opinion of the Justices, 356 So.2d 172 (Ala.1978). Code 1975, § 12-2-10, which is the authority to issue advisory opinions, does not authorize opinions on legislation already enacted by the Legislature. Opinion of the Justices, 342 So.2d 916 (Ala.1977). The constitutionality of legislation already passed should instead be tested by adversary proceedings. See Opinion of the Justices, 291 Ala. 581, 285 So.2d 87 (1973).

Because we are unable to respond to questions (1), (2) and (3), we must necessarily decline to answer question (4), since any answer to that question is contingent upon affirmative responses to the first three questions.

For the foregoing reasons, we respectfully decline to respond to the advisory opinion request.

Respectfully submitted,

C. C. Torbert, Jr.

Chief Justice

Hugh Maddox

James H. Faulkner

Reneau P. Almon

Janie L. Shores

T. Eric Embry

Sam A. Beatty

Justices


text:
    OPINION OF THE JUSTICES.
    No. 271.
    Supreme Court of Alabama.
    April 22, 1980.
   Members of the Senate

State Capitol

Montgomery, Alabama

Gentlemen:

We acknowledge receipt of Senate Resolution No. 154 requesting an advisory opinion on the constitutionality of House Bill No. 320. Senate Resolution No. 154 and House Bill No. 320 read:

SR 154 REQUESTING AN ADVISORY OPINION OF THE JUSTICES OF THE SUPREME COURT RELATIVE TO H. B. 320, AS AMENDED.

BE IT RESOLVED BY THE SENATE OF THE LEGISLATURE OF ALABAMA, That we respectfully request the Honorable Chief Justice and Associate Justices of the Supreme Court or a majority of them, to give this body their written opinions on the following important constitutional question which has arisen concerning the pending bill, H. B. 320, as amended, a copy of which is attached to this resolution and made a part hereof by reference:

1. Does H. B. 320, as amended, conflict with the 14th or 15th Amendment to the United States Constitution?

2. Does H. B. 320, as amended, conflict with the U. S. Civil Rights Act, Chapter 21 of Title 42 of the United States Code?

RESOLVED FURTHER, That the Secretary of the Senate is hereby directed to send sufficient true copies of the pending bill, H. B. 320, as amended, to the Clerk of the Supreme Court of Alabama, and to transmit this request to the Justices of the Supreme Court forthwith upon adoption of this Resolution.

SYNOPSIS: The bill proposes to amend the merit system law to allow the Attorney General to appoint attorneys and legal research aides from a register certified to him by the director of the Personnel Department without regard to the ranking of eli-gibles.

A BILL

TO BE ENTITLED

AN ACT

To amend Section 36-26-17 of the Code of Alabama, 1975 relating to the manner of filling vacancies in the classified service to allow the Attorney General to appoint attorneys and legal research aides from a register without regard to the ranking of eligibles.

Be It Enacted by the Legislature of Alabama:

Section 1. Section 36-26-17, Code of Alabama, 1975, is hereby amended to read as follows:

“Section 36-26-17. Vacancies in the classified service shall be filled either by transfer, promotion, appointment, reappointment or demotion.
Whenever a vacancy is to be filled by appointment, the appointing authority shall submit to the director a statement of the title of the position and, if requested by the director to do so, the duties of the position and desirable qualifications of the person to be appointed and a request that the director certify to him the names of persons eligible for appointment to the position. The director shall thereupon certify to the appointing authority the name of the three ranking eligibles from the most appropriate register and, if more than one vacancy is to be filled, the name of one additional eligible for each additional vacancy or all the names on the register if there are fewer than three.”
Except that in the appointment of attorneys or legal research aides under this section by the Attorney General the director shall certify to the Attorney General the names of all eligibles who meet the minimum qualifications for the particular class of attorneys. The Attorney General may then appoint any person on the register of eligibles without regard to position on that register.
“If it should prove impossible to locate any of the persons so certified or should it become known to the director that any person is not willing to accept the position, the appointing authority may request that additional names be certified until three persons eligible and available for appointment have been certified. Within 10 days after such names are certified, the appointing authority shall appoint one of those whose names are certified to each vacancy which he is to fill; except, that, in the event that he has fewer than the authorized number of persons from which to make his selection, he may choose from the remaining certified names or may elect to make a provisional appointment as provided by section 36-26-18. In the event that there does not exist an employment register which the director deems to be appropriate for the class in which the position is established, he shall prepare such a register within a reasonable time after receipt of the request of the appointing authority that eligibles be certified. Whenever an eligible has been certified to and rejected by appointing authorities three times, the director may remove the name of such person from the employment register.”

Section 2. All laws or parts of law in conflict with this Act are hereby repealed.

Section 3. This Act shall become effective immediately upon its passage and approval by the Governor, or upon its otherwise becoming a law.

Senate Resolution 154

We respectfully decline to answer the questions posed. Code 1975, § 12-2-10, permits us to answer only important constitutional questions of a general public nature. Opinion of the Justices, 209 Ala. 593, 96 So. 487 (1923); Opinion of the Justices, 280 Ala. 692, 198 So.2d 269 (1967). Additionally, we may answer only narrow questions directed to specific provisions of the State or Federal Constitutions.

Question 1 is too broad and indefinite to come within the purview of § 12-2-10, supra. Opinion of the Justices, 294 Ala. 604, 320 So.2d 622 (1975).

We have no authority to answer Question 2 because it does not pose a constitutional question.

Answers declined.

Respectfully submitted,

C. C. Torbert, Jr.

Chief Justice

Hugh Maddox

James H. Faulkner

Reneau P. Almon

Janie L. Shores

T. Eric Embry

Sam A. Beatty

Justices


author: BEATTY, Justice.

text:
    The STATE BOARD OF HEALTH v. GREATER BIRMINGHAM ASSOCIATION OF HOME BUILDERS, INC., a corporation.
    78-764.
    Supreme Court of Alabama.
    May 2, 1980.
    Rehearing Denied June 27, 1980.

      Charles A. Graddick, Atty. Gen., Edward L. Lasseter, Jr., L. Gilbert Kendrick, and Michael A. Sundock, Asst. Attys. Gen., Montgomery, for appellant.
    Charles A. J. Beavers, Jr. of Odom, May & DeBuys, Birmingham, for appellee.
    William M. Acker, Jr. of Dominick, Fletcher, Yeilding, Acker, Wood & Lloyd, P. A., Birmingham, for amicus curiae.
   BEATTY, Justice.

Defendant, the State Board of Health, appeals from a declaratory judgment in favor or plaintiff, the Greater Birmingham Association of Home Builders. We affirm.

This controversy concerns the legislatively-created scheme of authority regarding the approval of on-site wastewater disposal systems planned for construction in Jefferson County subdivisions. In the words of the trial court, the principal issue is:

[Wjhether real estate subdivisions in Jefferson County and their plans and specifications for on site sewage collection, treatment and disposal systems and water supplies must be subject to final approval by the State Board of Health through its Health Officer and employees or whether such subdivisions and their sewage plans may be considered for final approval by the Jefferson County Board of Health acting through its Health Officer and employees.

Resolution of the issue presented depends upon the proper construction to be placed upon Code 1975, § 22-26-3 and Section 6 of Act No. 659 of the 1978 Regular Session of the Legislature. Section 22-26-3 provides:

All plans and specifications applying to sewage collection, treatment and disposal shall be first submitted to the state board of health and/or county boards of health for approval before construction. The said plans and specifications shall be approved if in conformance with said specifications, rules and regulations and the required permits for construction issued by the state board of health or its duly authorized agents or employees. No person, firm, corporation or municipal corporation shall begin construction without said approval, and a violation of this section shall constitute a misdemeanor, punishable, on conviction, by a fine of not to exceed $500.00.

Section 6 of Act No. 659 reads:

Every person proposing to develop a subdivision in Jefferson County shall submit, in the manner prescribed by the Jefferson County Board of Health, all plans and specifications applying to sewage collection, treatment and disposal, and water supply for approval before construction begins and before said subdivision is recorded in the Office of the Probate Judge. The said plans and specifications shall be approved if in conformance with said rules and regulations of the Jefferson County Board of Health.

Our focus is upon the changes effected, if any, by Act 659 upon the procedure necessary to obtain approval of on-site sewage disposal systems planned for Jefferson County subdivisions.

The evidence taken at trial indicates that prior to May of 1978 proposed subdivisions in Jefferson County with plans for on-site waste treatment systems (e. g., septic tanks) were submitted by developers to the County Board of Health for approval before recordation. Upon receipt of a particular subdivision application and other necessary information, the County Board would make an extensive field investigation of soil conditions and percolation in the area. If the County Board approved the subdivision, the plans and the County Board’s recommendations and approval would be forwarded to the State Board of Health for its concurrence. If the State Board agreed with the County Board, the subdivision could then be recorded in the Jefferson County Probate Court. It appears that up until May, 1978, the same general procedure was followed by the pertinent agencies when approval was sought as a prerequisite to the actual construction and installation of waste treatment systems on a particular lot in a subdivision.

In May of 1978, the Jefferson County Board of Health was informed by the State Board that, pursuant to Act No. 659 of the 1978 Regular Session of the Legislature, the County Board was authorized to accept sole jurisdiction over the approval of proposed on-site wastewater disposal systems in Jefferson County. For four months thereafter, the County Board exercised that authority, as it no longer forwarded its approval of particular subdivisions to the State Board. In August of 1978, however, on the basis of an opinion by the Attorney General, the State Board of Health instructed the Jefferson County Board to revert to its prior practice of sending subdivision plans to the State Board for review and approval or rejection. When the Jefferson County Board of Health complied with the State’s order and resumed its former practice of securing the State Board’s approval of subdivisions before recordation and construction, the Greater Birmingham Association of Home Builders filed a bill for declaratory judgment against both health agencies and their health officers, seeking a judicial determination that Act No. 659 gave the County Board of Health and Health Officer “sole and exclusive jurisdiction over the approval of plans and specifications applying to sewage collection, treatment and disposal in connection with applications for subdivision plats for recordation in the Office of the Judge of Probate of Jefferson County, Alabama.” After a hearing on the dispute, the trial court entered a judgment in favor of plaintiff, and defendant appealed.

In its final order, the trial court first ruled that the provisions of Title 22, Chapter 26 of the 1975 Code had no application when a subdivision plat is merely proposed for recordation in a particular county; instead, the provisions of Title 22, Chapter 26 — principally § 22-26-3 — became operative only when waste treatment systems were actually to be constructed or installed. Because the authority to approve plans and specifications for on-site sewage disposal systems before construction is granted ambiguously, the trial court then turned its attention to other provisions of Title 22 to resolve the ambiguity. The court found that the overall statutory scheme of health regulation gives the County Health Officer sole authority over all sanitary work within the county, but that the County Health Officer’s authority is to be exercised under the overall direction of the State Health Officer and the County Board of Health. See Code 1975, § 22-3-4. The trial court also concluded that the County Health Officer’s authority over the approval of waste treatment systems at the construction stage was to be exercised in conformity with the rules and regulations of the State Board of Health (see Code 1975, § 22-26-3), under the supervision and control of that body. See Code 1975, § 22-2-2. Finally, the trial court held Act No. 659 to be a valid and constitutional enactment, and ruled that the Act granting authority to the County Board over the approval of on-site sewage collection and disposal systems as a prerequisite to recordation, construed in pari materia with other statutory requirements, mandates that the County Board’s authority be exercised under the general supervision of the State Board and in accord with rules and regulations established by the State Board.

On this appeal, the State Board contends that the trial court’s interpretation of the pertinent statutes, if correct, leads to the conclusion that Act No. 659 is unconstitutional under Section 105 of the Alabama Constitution of 1901 as a local law which purports to address subject matter previously “provided for” by a general law. After having exhaustively examined the record, the arguments of the parties, and the applicable statutes, we have concluded that the trial court did not err in its construction of the statutes; indeed, in view of the number of statutes which have some bearing on the question of the authority of the State Board of Health vis-a-vis that granted to the respective county boards, we feel that the trial court is to be commended for its effort.

Before turning to the constitutional issue posed in this case, it is appropriate to reiterate the fundamental proposition that validly enacted legislation is presumed to be constitutional. As we stated in Mobile Housing Board v. Cross, 285 Ala. 94, 97, 229 So.2d 485, 487 (1969):

Every presumption is in favor of the constitutionality of an act of the legislature and this court will not declare it invalid unless in its judgment, the act clearly and unmistakably comes within the inhibition of the constitution.

We will not invalidate a statute on constitutional grounds if by reasonable construction it can be given a field of operation within constitutionally imposed limitations. See Ex parte Huguley Water System, 282 Ala. 633, 213 So.2d 799 (1968).

Bearing in mind the principles enunciated above, we direct our attention to the question whether Section 6 of Act No. 659 violates Section 105 of the State Constitution. That is, did any existing general law subsume the subject matter addressed in Section 6 of Act No. 659? We hold that Section 6 of the Act may reasonably be interpreted to have a field of operation within the limits of Section 105 of the Constitution because the subject matter addressed in Section 6 was not previously “provided for” by a general law. Accordingly, the trial court’s conclusion that the Act “is a valid and constitutional enactment of the Legislature” is due to be affirmed.

The State Board asserts that the approval procedure dealt with in Section 6 of Act No. 659 was previously addressed by a general law, Code 1975, § 22 -26- -3 and that, as a result, the 1978 Act is unconstitutional. We disagree, however, for the use of imprecise language in § 22-26-3 makes it unclear exactly what the statute was intended to provide for, other than the submission of waste treatment plans to some health board. The first sentence of § 22-26-3 requires that plans and specifications for proposed waste treatment and disposal systems be “first submitted to the state board of health and/or county boards of health for approval before construction.” (Emphasis added.) Although it is clear that sewage disposal plans must “first be submitted” to one or the other of the specified agencies, it is unclear to which agency the plans should be submitted due to the Legislature’s employment of the term “and/or.”

The use of the phrase “and/or” invariably engenders confusion, as it has in this case. Employment of the term finds little support in the authorities on legislative drafting. See, e. g, Sands, 1A Sutherland Statutory Construction, § 21.14 (1972). As Mr. Justice Bloodworth pointed out in his concurring opinion in Air Engineers, Inc. v. Reese, 283 Ala. 355, 217 So.2d 66 (1969), the use of “and/or” has been held to be “equivocal, uncertain, and indefinite.” Justice Blood-worth also noted this Court’s opinion in Hays v. McCarty, 239 Ala. 400, 195 So. 241 (1940), wherein the Court “found the meaning of these words to be in the disjunctive, that the words ‘and/or’ mean either and or or.” 283 Ala. at 363, 217 So.2d 75. Like Justice Bloodworth, we have concluded that the term should be interpreted to mean the disjunctive. Therefore, the general law in this case, Code 1975, § 22-26-3, merely requires that plans for proposed sewage treatment systems be submitted either to the State Board of Health or to the particular county health board, if one exists. Since that is the case, it cannot be said that any specific approval process in this area has been “provided for” by the general law. The inevitable conclusion is that a local law, such as Act No. 659, which does specify a process for approval of waste treatment plans, does not violate Section 105 of the State Constitution.

It is also noteworthy that Section 6 of Act No. 659 addresses a subject that has not even arguably been addressed by the general law — the approval or disapproval of a general waste treatment system for a subdivision as a prerequisite for the recor-dation of the subdivision plat in the office of the county probate judge. The record reflects several conditions in Jefferson County which create the need for special attention by the County Board of Health early in the planning stages of residential subdivision development. The existence of conditions such as Jefferson County’s moratorium on connections to existing off-site sewage treatment plants and the shortage of building sites in the county suitable for conventional on-site waste treatment facilities necessitates close cooperation between developers in the county and the County Board of Health. The Legislature’s focus in Section 6 of Act No. 659 upon the initial subdividing of land in Jefferson County is thus not impermissible under Section 105 of the Constitution, for as we pointed out in Peddycoart v. City of Birmingham, 354 So.2d 808, 815 (Ala. 1978):

[Ljocal legislation reflecting responses to local needs may be enacted. It is only when those local needs already have been responded to by general legislation that Section 105 of our State Constitution prohibits special treatment by local law.

Because Section 6 of Act No. 659 represents the Legislature’s response to demonstrated local needs of Jefferson County which had not previously been addressed by the general law, we find no constitutional infirmity in the Act. Our decision on the constitutional issue is dispositive of this entire case and so we pretermit discussion of the various procedural issues raised by the parties. The decree of the trial court is due to be, and is hereby, affirmed.

AFFIRMED.

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


author: ALMON, Justice.

text:
    Gabriella GRAY et al. v. WALA-TV et al.
    78-404, 78-404X.
    Supreme Court of Alabama.
    May 23, 1980.
    Rehearing Denied June 20, 1980.

      Richard Bounds and John T. Crowder, Jr. of Cunningham, Bounds, Byrd, Yance & Crowder, Mobile, for appellants.
    James J. Duffy, Jr., Carroll H. Sullivan and William C. Barclift, III of Inge, Twitty, Duffy & Prince, Mobile, for appellees.

      . Justice Jones, sitting for Justice Bloodworth, has listened to the tape recording of oral argument.

   ALMON, Justice.

This is a defamation case. The complaint alleges that:

I. The Plaintiffs, Gabriella Gray, Ga-briella B. Gray, and James W. Gray are all individuals over the age of twenty-one (21) years and are residents of Mobile County, Alabama. The Plaintiff, Gray & Company, Inc., is a corporation with its principal place of business in Mobile County, Alabama.
II. The Defendant Carlton Cordell is an individual over the age of twenty-one (21) years and a resident of Mobile County, Alabama. The Defendants WALA-TV and Universal Communications Corporation are corporations with their principal place of business in Mobile County, Alabama.
III. The individual Plaintiffs are stockholders, directors, officers and/or operators of a corporation known as Gray & Company, Inc., which is a firm engaged in the business of advertising and public relations in Mobile County, Alabama.
IV. The Defendants WALA-TV and Universal Communications are corporations which have as their principal business the broadcasting of television programs over the public airwaves, with a listening and viewing audience of hundreds of thousands of persons in the area of Mobile County, Alabama. The Defendant, Carlton Cordell is an employee of the above named defendants, and is employed as News Director.
V. On the nights of, to-wit, July 15, July 17, July 18, and July 21, 1975, the Defendant, Carlton Cordell, an agent, servant or employee of the other defendants, and while acting within the line and scope of his authority as such, spoke of and concerning the Plaintiffs, in substance as follows:
That the Plaintiffs had contracted with the City of Mobile for the production of auditorium brochures, that the City had made full payment to the Plaintiffs some five and one-half months before, that the Plaintiffs had failed to deliver any brochures, that no member of the auditorium board knew or had been informed of the contract, that the actions of the Plaintiffs were in violation of the laws of the State of Alabama, that the brochures had been contracted for over a year and that none had been received even though the Plaintiffs had received $15,000 for them, and that the Plaintiffs had handled the election campaign of the person who was Mayor at the time the contract was awarded.
VI. Plaintiffs aver that the aforesaid statements conveyed the false meaning and impression that the Plaintiffs were guilty of violations of the law of the State of Alabama, and that the Plaintiffs were guilty of sharp, unethical, dishonest and/or illegal acts in the conduct of their business, and that the Plaintiffs had failed to fulfill their contracts. Plaintiffs aver that the said statements brought them into public contempt, injured Plaintiffs in their reputation and in their business, and subjected them to public ridicule. Plaintiffs further aver that the statements were broadcast even though the Defendants knew they were false, or were broadcast with a reckless disregard of whether they were true or false, and Plaintiffs therefore claim punitive damages.

The defendants’ motion to dismiss the complaint was initially denied. Subsequently, the defendants moved for summary judgment with supporting affidavits, etc. This motion was also denied. Later the court granted the motion to dismiss. In many instances when a court grants a motion to dismiss after considering factual matter the ruling is considered to be under Rule 56, ARCP, rather than Rule 12(b)(6), ARCP. However, in this case it is strongly inferable from the record as well as the briefs that the court intended to grant a Rule 12(b)(6) motion to dismiss on the ground that the broadcasts were not per se defamatory, and special damages were not alleged.

In view of the state of the record, and in view of the facts that the plaintiffs have appealed fr;om the order granting the motion to dismiss and the defendants have cross-appealed from the denial of the motion for summary judgment, and because the case is briefed in this posture, we will treat it accordingly.

The parties do not characterize this cause of action as either libel or slander. There is nothing in the record to indicate whether the trial judge considered this to be an action in libel or slander. The defendants argue that the complaint alleges “defamation per quod” rather than “defamation per se,” and that because special damages are not alleged the court should have granted the motion to dismiss.

We must determine what type action this is, because in Marion v. Davis, 217 Ala. 16, 114 So. 357 (1927), this Court held that:

There is a distinction between actions of libel predicated on written or printed malicious aspersions of character, and actions of slander resting on oral defamation, too well grounded in the law to be now questioned. This distinction, however, is merely in respect to the question as to whether the imputed language or words are actionable per se.
In cases of libel, if the language used exposes the plaintiff to public ridicule or contempt, though it does not embody an accusation of crime, the law presumes damage to the reputation, and pronounces it actionable per se. While to constitute slander actionable per se, there must be an imputation of an indictable offense involving infamy or moral turpitude. Ex parte West (Re Peinhardt v. West) [115 So. 88] supra; Rice v. Simmons, [2 Har. (Del.) 417, 31 Am.Dec. 766] supra; 36 C.J. 1152, § 19; 17 R.C.L. pp. 263, 264, §§ 3 and 4.
This distinction, however, does not deny the right to maintain an action for slander founded on oral malicious defamation subjecting the plaintiff to disgrace, ridicule, odium, or contempt, though it falls short of imputing the commission of such crime or misdemeanor. In such case the law pronounces the words actionable per quod only, and the plaintiff must allege and prove special damages as an element of the cause of action. 17 R.C.L. p. 264, § 4.

We find that television broadcasts of defamatory matter must be declared upon as libel rather than slander. In First Independent Baptist Church v. Southerland, 373 So.2d 647 (Ala.1979), this Court held that the broadcasting of defamatory matter by means of radio is libel, whether or not it was read from a manuscript. In that case the Court cited Restatement (Second) of Torts § 568A (1966), which states:

Broadcasting of defamatory matter by means of radio or television is libel, whether or not it is read from a manuscript.

This Court, however, in Southerland, deleted the reference to television from this quote.

Based upon the considerations in First Independent Baptist Church v. South-erland, we are of the opinion that § 568A of the Restatement (Second) of Torts, as it applies to both radio and television broadcasts, should be the rule within this jurisdiction.

We must now determine whether the broadcasts are libelous per se. In doing so their actionable character is to be taken in their natural meaning according to the sense in which they appear to have been used, and the idea they convey to those who heard and saw them. The broadcasts are not to be measured by their effect when subjected to the critical analysis of a trained legal mind, but must be construed and determined by their natural and probable effect upon the mind of the average television viewer. White v. Birmingham Post Co., 233 Ala. 547, 172 So. 649 (1937).

If the words employed in the allegedly libelous publication impute dishonesty or corruption to an individual, they are actionable per se. Ferdon v. Pickens, 161 Ala. 181, 49 So. 888 (1909).

It is also the law that words are libelous per se which directly tend to prejudice anyone in his office, profession, trade or business, or in any lawful employment by which he may gain his livelihood. Gaither v. The Advertiser Co., 102 Ala. 458, 14 So. 788 (1893).

We think it is fair to say that the words employed imputed to the plaintiffs that they had corruptly and illegally obtained, through political connections, a contract with the city and had not performed under the contract although having been paid to do so, and thereby dishonestly obtained public funds. Certainly in this day and time an accusation of political corruption would subject the plaintiffs to public ridicule and would injure their reputation, both individually and in their business. Thus, we are of the opinion that the publications if false are libelous per se. Wofford v. Meeks, 129 Ala. 349, 30 So. 625 (1900).

The final issue for our consideration is the appropriateness of the trial court’s denial of defendants’ motion for summary judgment.

Summary judgment, under Rule 56(c), ARCP, is to be entered where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. The moving party has the burden of establishing the absence of a genuine issue as to any material fact. Whether the trial court was correct in denying defendants’ motion for summary judgment depends upon whether the affidavits presented by the defendants show, as a matter of law, no malice in defendants’ broadcasts.

For a publication to fall within the actual malice standard of New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), it must have been made with a knowledge of its falsity or with a reckless disregard as to whether it was false or not. There is no need in this case to determine whether the plaintiffs are public figures because the complaint alleges “Sullivan Malice.” Moreover, since only punitive damages are claimed, “Sullivan Malice” must be proved in any event. Gertz v. Robt. Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). This actual malice standard was further elaborated on in St. Amant v. Thompson, 390 U.S. 727, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968); there it was stated that reckless disregard requires:

* * * sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of the publication.

88 S.Ct. at 1325.

In examining the depositions and affidavits submitted on summary judgment we find that Carlton Cordell, news director of WALA-TV, was first apprised of the contract in question on July 14, 1975, when he received a phone call from a Mobile Auditorium Board member. Cordell then attempted to verify this information. This verification included obtaining a copy of the contract and contacting the City Controller to confirm certain aspects of the contract.

Following the initial broadcast on July 15,1975, Cordell was informed by Gabriella Gray of alleged inaccuracies in the broadcast. Cordell states he offered to send a reporter to meet with her. Gray denies this.

WALA-TV made further attempts to gather additional information after the July 15th broadcast. A reporter was assigned to the story and various officials at City Hall were contacted.

On July 22, 1975, Cordell received a letter from Gray’s attorney which informed him that the information being broadcast was in error and on July 25, Commissioner Gree-nough issued a statement concerning this story which was not in accord with defendants’ story. WALA-TV continued with its version of the story. In total, WALA-TV aired this story over forty times during an eleven month period.

In viewing the above facts in a light most favorable to the plaintiffs we find no error in the trial court’s denial of defendants’ motion for summary judgment. Whether the defendant entertained serious doubts as to the truth of these broadcasts is a question peculiarly suited for a jury determination. American Benefit Life Ins. Co. v. McIntyre, 375 So.2d 239 (Ala.1979); Loveless v. Graddick, 295 Ala. 142, 325 So.2d 137 (1975).

We are of the opinion that the trial court was correct in denying the defendants’ motion for summary judgment, but erroneously granted the motion to dismiss. Thus, we affirm the summary judgment order and reverse the motion to dismiss order.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

TORBERT, C. J., and FAULKNER, JONES and EMBRY, JJ„ concur.


author: SHORES, Justice. SHORES, Justice.

text:
    Chris C. RUSH, d/b/a Rush Building Company, Cincinnati Insurance Company and Nellie N. Rush v. ATOMIC ELECTRIC COMPANY, a corporation.
    78-766.
    Supreme Court of Alabama.
    May 30, 1980.
    As Corrected On Denial of Rehearing June 27, 1980.
    Ralph Smith, Jr. of Starnes, Smith & Wilkes, Guntersville, Starnes & Starnes, Birmingham, for appellants.
    H. Darden Williams for Williams, Williams & Norton, Anniston, for appellee.
   SHORES, Justice.

This is a breach of contract case. Appellant Chris Rush, d/b/a Rush Building Company, entered into a contract with the Hospital Building Authority of the City of Jacksonville to construct a hospital. The electrical work was subcontracted to Atomic Electric Company, hereinafter referred to as Atomic, a corporation which had done other work for Rush in the past. Although the work was completed and accepted by the general contractor at final inspection, Atomic was never paid the full contract price. It brought this action against the Hospital Building Authority, the City of Jacksonville, Chris C. Rush, d/b/a Rush Building Company, and Rush Building Company, seeking to enforce a lien on the hospital and claiming damages in the amount of $87,572.20 under the electrical subcontract. Rush’s bonding company, Cincinnati Insurance Company was later added as a defendant. Rush counterclaimed for $20,000.00, alleging that mismanagement on the part of Atomic had resulted in a four-month delay in completion, and that it was damaged thereby. Cincinnati Insurance Company cross-claimed against Rush under a blanket indemnity agreement, and filed a third-party complaint against Nellie Rush as a party to the indemnity agreement. After a trial without a jury, the trial court entered a judgment against Chris C. Rush, d/b/a Rush Building Company, and Cincinnati in favor of Atomic in the amount of $89,928.07, and in favor of Cincinnati Insurance Company against Chris and Nellie Rush in the same amount. The Rushes appeal.

Appellants raise but two issues on this appeal. They contend firstly that the judgment of the trial court was contrary to the great weight of the evidence. However, no ground for reversal is more carefully scrutinized or rigidly limited than one charging that the verdict is against the great weight of the evidence. Kilcrease v. Harris, 288 Ala. 245, 259 So.2d 797 (1972). Where, as here, the trial court has heard testimony ore tenus, a presumption exists as to the correctness of its findings of fact. St. Clair Industries, Inc. v. Harmon’s Pipe & Fitting Co., 282 Ala. 466, 213 So.2d 201 (1968). The record reveals that the trial court’s judgment was amply supported by the evidence; we, therefore, decline to disturb it.

Appellants also contend that the contract which is the basis of this lawsuit was signed by Tony Panella and Charles E. Rush in their individual capacities, and does not bind either corporation, Atomic or Rush Building Company. Because neither individual was made a party to the suit, they insist that there exists a fatal variance between the parties and the proof. We are hard put to follow this reasoning. Even if neither corporation was bound by the signature of its agent, which we do not believe to be true, appellant Chris Rush operated under the contract without objection until the work contracted for was performed, accepted the benefits of it, and, in fact, has counterclaimed against Atomic for breach of the very contract he claims not to be bound by. A party, by his actions and acceptance of the benefits of a contract and by operating under such agreement, may ratify and confirm a contract to which his actual signature is not affixed. Woodmen of the World Life Insurance Society v. Bolin, 243 Ala. 426, 10 So.2d 296 (1942). The verdict of the trial court assumes, by necessity, that Chris Rush and Atomic Electric Company were parties to the contract and are thus proper parties to the lawsuit. No evidence or logic has been pointed to which would require us to disturb this ruling. The judgment appealed from is affirmed.

AFFIRMED.

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

On Application for Rehearing

SHORES, Justice.

OPINION CORRECTED; APPLICATION FOR REHEARING OVERRULED.

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