author: LEE, Justice,

text:
    James T. TAYLOR v. STATE of Mississippi.
    No. 52488.
    Supreme Court of Mississippi.
    April 1, 1981.
    J. R. Butler, Butler & Butler, Eupora, for appellant.
    Bill Allain, Atty. Gen. by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, LEE and BOWLING, JJ.
   LEE, Justice,

for the Court:

James T. Taylor was found guilty of disturbing the peace and resisting arrest on a de novo trial in the Circuit Court of Montgomery County and was sentenced to pay fines of one hundred dollars ($100.00) and two hundred dollars ($200.00), respectively. He has appealed and assigns the following errors:

(1) Should an accused be convicted of disturbing the public peace by using loud, offensive, and profane language in a public place with the intent to provoke a breach of the peace without the state proving (1) the loud, offensive and profane language used or (2) the public place or both?

(2) May one be convicted of resisting arrest without proof of an initial valid and lawful arrest?

The appellant was refused a peremptory instruction of not guilty at the trial. Although he has not assigned such action as error, the two assignments above mentioned, together with the request that the cases be dismissed, are tantamount to an assignment of the refusal to grant the peremptory instruction and we consider them as such.

Linda Nail and her family lived approximately one-quarter QU) mile from Eunice M. Nail and her family. Vervie Taylor, mother of the appellant, lived approximately four hundred (400) feet from the Nail houses and appellant, who lived in the State of Illinois, was visiting in her home for two weeks. On the night of May 14, 1979, Linda Nail heard loud shouts, cursing, gunfire, and a horn blowing at the Taylor home. According to Eunice M. Nail, the language was profane, and she likewise heard the horn blowing and two (2) shotgun blasts. Sheriff Billy Costilow was telephoned and a complaint was registered.

Sheriff Costilow answered the complaint, went to the Eunice M. Nail home where he obtained information from the Nails, and then he and Deputy Sheriff James Johnson went to the Taylor home to determine whether the appellant was making the noises. The officers had no arrest warrant and testified that they did not go to the Taylor home to arrest anyone. When they arrived and knocked on the door, someone said, “Come in.” They entered the house and saw appellant sitting in a chair intoxicated and his wife and mother were also in the room. Sheriff Costilow asked if anybody had heard a disturbance going on, appellant got up and, according to the officers, cursed and attempted to strike the sheriff. Sheriff Costilow testified as follows:

“DIRECT EXAMINATION:
* * * * * *
Q. Was he just cursing and carrying on, you say?
A. Yes, sir.
Q. What did you do when he started acting like that?
A. I placed him under arrest and put the cuffs on him and brought him on to jail.
Q. What did you arrest him for?
A. Resisting arrest, at that time.
Q. Go ahead.
A. Also, for refusing to obey me.
CROSS-EXAMINATION:
Q. At the time you went up to Mr. Taylor’s, you didn’t have a warrant for his arrest, did you?
A. No, I didn’t go up there to arrest him.
Q. You didn’t have a search warrant to search the home.
A. No, I did not. And, I didn’t search it.”

Deputy Sheriff Johnson testified to the following:

“DIRECT EXAMINATION:
A. We didn’t never really get to tell him. He just went to cussing us and he balled his fist up and jumped up at us and we wrestled around there and finally got the handcuffs on him and brought him on to the jail.
Q. All right, what did you arrest him for?
A. For public drunk, disturbing the peace and resisting arrest.
Q. I’m having trouble hearing you.
A. Public drunk, disturbing peace and resisting arrest.
CROSS-EXAMINATION:
Q. And, again, what was he arrested for when he was placed under arrest?
A. He was arrested for disturbing the peace and — I’m not sure, but I believe he was arrested for public drunk and resisting arrest.
Q. What was the disturbing the peace charge he was arrested for? What was that about? Was that about the Nails, or was that about something that happened when the Sheriff arrived at Mr. Taylor’s house?
A. What happened there at the house in front of us.
Q. Whose peace was he disturbing at the time in front of you at his mother’s house?
A. He was disturbing our peace.
Q. The Sheriff’s and the deputy’s peace. He wasn’t disturbing his mother?
A. I don’t know. I didn’t ask her.”

There are four (4) statutes which related to disturbance: Mississippi Code Annotated Sections 97-35-9, -11, -15, and 97-29-47 (1972). It is difficult to ascertain from the record under which section the State proceeded. It appears from the evidence that the State attempted to prosecute under one of the following sections:

“§ 97-35-11. Disturbance of family— abusive language or indecent exposure.
Any person who enters the dwelling house of another, or the yard or curtilage thereof, or upon the public highway, or any other place near such premises, and in the presence or hearing of the family or the possessor or occupant thereof, or of any member thereof, or of any female, makes use of abusive, profane, vulgar, or indecent language, or is guilty of any indecent exposure of his person at such place, shall be punished for a misdemean- or.”
“§ 97-35-15. Disturbance of the public peace, or the peace of others.
(1) Any person who disturbs the public peace, or the peace of others, by violent, or loud, or insulting, or profane, or indecent, or offensive, or boisterous conduct or language, or by intimidation, or seeking to intimidate any other person or persons, or by conduct either calculated to provoke a breach of the peace, or by conduct which may lead to a breach of the peace, or by any other act, shall be guilty of a misdemeanor, and upon conviction thereof, shall be punished by a fine of not more than five hundred dollars ($500.00), or by imprisonment in the county jail not more than six (6) months, or both.
(2) The provisions of this section are supplementary to the provisions of any other statute of this state.”

The State submitted the issue of disturbing the peace by Instruction S-l which stated:

“[T]he defendant did willfully, unlawfully, purposely, and knowingly disturb the public peace, in that the defendant did use loud, offensive, and profane language in a public place with the intent to provoke a breach of the peace, then it is your sworn duty to find the defendant guilty as charged.”

and submitted the issue of resisting arrest by Instruction S-2 which stated:

“[T]he defendant did unlawfully, willfully, purposely, and knowingly resist his lawful arrest by Montgomery County Sheriff, Billy Costilow, in that the defendant did use threats or force to prevent his lawful arrest, then it is your sworn duty to find the defendant guilty as charged.”

The Court has defined a “public place” as one wherein, by general invitation, members of the public attend for reasons of business, entertainment, instruction or the like, and are welcome so long as they conform to what is customarily there done. Nelson v. City of Natchez, 197 Miss. 26, 19 So.2d 747 (1944).

The only places involved under the facts of this case were the Nail homes and the Taylor home. It is difficult to understand how the State can harmonize the evidence as to disturbance in a home and the charge of disturbance in a public place. It is elemental that to establish a case of disturbance of the peace, either public or private, the words used and the things done are the gist of the offense and must be specifically proved. Such was not done in the present case. Spears v. State, 253 Miss. 108, 175 So.2d 158 (1965).

The prosecution wholly failed to make out a case against appellant of disturbing the public peace.

As stated, the officers testified that they had no arrest warrant for appellant and went to the Taylor home only to find out whether the noises were made by any person there. The arrest of Taylor in his home (his mother’s) was without authority. There is no statute prohibiting a person from being drunk or cursing in his own home. In Smith v. State, 208 So.2d 746 (Miss.1968), officers arrested the defendant on a misdemeanor charge of reckless driving not committed in their presence, without an arrest warrant in their actual possession. In holding that the arrest was unlawful and that the defendant had a right to use reasonable force to resist the arrest, the Court said:

“The offense of resisting arrest presupposes a lawful arrest. A person has a right to use reasonable force to resist an unlawful arrest. Pettis v. State, 209 Miss. 726, 48 So’2d 355 (1950); Craft v. State, 202 Miss. 43, 30 So.2d 414 (1947); 5 Am.Jur.2d Arrest § 94 (1962). The officer sought to arrest appellant for a misdemeanor, reckless driving. Although the arrest warrant for this misdemeanor had been issued and was in the sheriff’s office, the arresting officer did not have the warrant in his possession at the time of arrest.
In the absence of a statute to the contrary, and there is none in Mississippi, under the overwhelming weight of authority an officer making an arrest for a misdemeanor not committed in his presence must have the warrant for such arrest in his actual possession if the arrest is to be lawful. Restatement (Second) of Torts § 126 (1965); 1 Alexander, The Law of Arrest § 92, at 477 (1949); 5 Am.Jur.2d Arrest § 72 (1962); 6 C.J.S. Arrest § 4(c) (1937); Fisher, Laws of Arrest § 54, at 114-15 (1967); Prosser, The Law of Torts § 25 (3d ed. 1964).” 208 So.2d at 747.

Here, the officers admittedly went to the Taylor home to investigate the noises reported by the Nails. They had no right to enter the Taylor home to make an arrest without a warrant and, in fact, stated that they did not go there for the purpose of an arrest. There was no basis under the evidence for the arrest of appellant and the charge of resisting arrest cannot stand.

With reference to the disturbance of the peace charge, the State’s brief recites:

“The evidence clearly established that the appellant’s actions occurred in a public place, and that appellant used offensive and profane language with the obvious intent to provoke a breach of the peace.”

Further, at page 6 of the State’s brief, it is stated:

“In view of the above facts and cases, it is clear that the officers were acting within the scope of their duty. And that a recently fired shotgun was within appellant’s easy reach.”

It is incredible, under the facts and law of this case, that the State would contend that the alleged violation occurred in a public place and that the officers were acting within the scope of their duty, and that the appellant was properly convicted without reversible error.

REVERSED AND APPELLANT DISCHARGED.

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

      . The charges were combined for trial.

      . Amended by Mississippi Code Annotated § 97-35-11 (Supp.1980).


source: Caselaw Access Project

author: BOWLING, Justice,

license: Public Domain

text:
    W. H. HOPPER AND ASSOCIATES, INC. and Walter v. Hopper, Sr. v. William J. DUNAWAY et ux.
    No. 52470.
    Supreme Court of Mississippi.
    April 1, 1981.
    James W. Amos, Hernando, for appellants.
    Robert L. Williams, Hernando, for appel-lees.
    Before SMITH, P. J., and LEE and BOWLING, JJ.
   BOWLING, Justice,

for the Court:

Appellees William J. and Mary Lee Duna-way filed their bill of complaint in the Chancery Court of DeSoto County against W. H. Hopper and Associates, Inc., appellant, and James E. McGehee & Co., Inc. After the suit was filed W. V. Hopper, Sr. filed his motion to intervene, and the motion was granted by the chancellor. Walter V. Hopper, Sr. is an appellant in the cause along with W. H. Hopper and Associates, Inc.

The original bill of complaint was an alternative suit for specific performance or a money decree. Appellees purchased a house and lot from the owner and builder, W. H. Hopper and Associates, Inc., less than a year prior to the present suit being filed. The suit was based on the alleged warranty of the builder and seller as to the construction completion of the residence and the failure of W. H. Hopper and Associates, Inc. to complete certain work promised to be completed that was included in the purchase price. An original defendant in the suit was James E. McGehee and Company, Inc., the holder of the deed of trust on the property secured at the sale closing. By agreement of the parties, this defendant later was dismissed and is no longer a party to the cause.

There are several assignments of error by the present two appellants. All but one assignment is directed toward the money decree rendered by the chancellor. He found that appellant W. H. Hopper and Associates, Inc. failed in its duty to complete the house and premises as agreed and that Mr. and Mrs. Dunaway were entitled to a money judgment for damages for this failure in the sum of $7,126.18. We dispose of the alleged errors concerning this money decree against the corporate defendant merely by stating that the evidence was abundant to justify and require the chancellor making its finding and directing its decree that the corporate appellant failed in its duty and owed appellees the damages stated.

This leaves the primary question in the case the procedure taken by appellees under the lis pendens statute as hereinafter set out. At the time the suit was filed, on May 7, 1979, the corporate appellant owned the property next door to the property purchased by appellees. At the time of filing of the suit, a lis pendens notice was placed on the proper record in the office of the chancery clerk upon the next-door property. Appellant corporation filed a cross bill of complaint affirmatively alleging that the Dunaways were not entitled to a lis pen-dens lien on the next-door corporate property. On July 18, 1979, it developed that the corporation, through its president and sole stockholder, W. H. Hopper, had transferred the next-door property to Hopper’s father, W. V. Hopper, Sr. On July 18, 1979, Hopper, Sr. filed an application for permission to intervene in the suit, which was granted. He then filed a motion to expunge the property purchased by him from the lis pendens notice. This request to expunge was denied by the lower court.

The chancellor in his final decree and after rendering the money decree further held that appellees, because of the lis pen-dens notice and the court’s former ruling denying the request to expunge the notice from the clerk’s records, were entitled to a lien on the next-door property in satisfaction of the money decree. He directed that if the decree was not satisfied within fifteen days that appellees could proceed with a judicial sale to sell the property described in the lis pendens notice in the manner authorized by law.

We hold that it was error for the lower court to decree that the lis pendens notice established a lien on the next-door property that was not involved in the money decree against the corporate defendant. The lis pendens statute is as follows:

Mississippi Code 1972 Annotated, Section 11-47-3:

When any person shall begin a suit in any court, whether by declaration or bill, or by cross-complaint, to enforce a lien upon, right to, or interest in, any real estate, unless the claim be founded upon an instrument which is recorded, or upon a judgment duly enrolled, in the county in which the real estate is situated, such person shall file with the clerk of the chancery court of each county where the real estate, or any part thereof, is situated, a notice containing the names of all the parties to the suit, a description of the real estate, and a brief statement of the nature of the lien, right, or interest sought to be enforced. The clerk shall immediately file and record the notice in the lis pendens record, and note on it, and in the record, the hour and day of filing and recording.

It is obvious that the relief requested in the bill, of complaint filed by appellees was not to enforce a lien upon, right to, or interest in the next-door property of corporate defendant.

In the case of Paxton v. First National Bank of Greenville, 155 So. 185 (Miss.1934), a similar situation existed, and in denying a lis pendens lien on appellant’s real property to secure a deficiency judgment, we said:

The lis pendens could not operate to establish any lien on the property for the reason that the bill was not to enforce any lien, right to, or interest in, any real estate. The bill in this case shows beyond cavil that the First National Bank of Greenville had no interest whatever in the Greenville property of Mrs. Paxton. It merely sought to impound it for the payment of its debt.

In 54 C.J.S., Lis Pendens § 9, we find the following:

At common law and under statutory provisions as to lis pendens not altering the common law in this respect, lis pen-dens may not be predicated on an action or suit seeking merely to recover a personal or money judgment unless and until a valid judgment has been secured and made a lien against the property. It does not apply to an action of trespass, or a suit for an accounting, or to any other action or suit which does not directly affect property.

In 51 Am.Jur.2d, Lis Pendens, § 17, it states:

Although the extent to which particular property must be “involved in”, or “affected by”, litigation in order to render the doctrine of lis pendens applicable may, of course, be governed by statute, it is clear that some form of identifiable “property” must be directly involved in the litigation, and, further, that the litigation to which the doctrine is sought to be applied must “involve” the particular property to which the doctrine is sought to be applied.

We therefore are forced to hold that the lower court was in error in failing to expunge the lis pendens notice on the property next door to the property involved in the suit. We heretofore have related the facts shown in the present record regarding the transfer of the property from appellant corporation by its president and sole stockholder to the president’s father; all after the present suit was filed.

We therefore hold that the money decree rendered by the chancellor should be affirmed; the part of the decree establishing a lien on the next-door property and ordering judicial sale is reversed and rendered here for appellants.

AFFIRMED IN PART, REVERSED IN PART AND RENDERED.

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


text:
    FIRST NATIONAL BANK OF JACKSON and Fireman’s Fund Ins. Co. v. Clarence W. BISHOP.
    No. 52683.
    Supreme Court of Mississippi.
    April 11, 1981.
    Roger C. Clapp, Daniel, Coker, Horton & Bell, Jackson, for appellants.
    Douglas R. Duke, Shell, Buford, Bufkin, Callicutt & Perry, Jackson, for appellee.
   Appeal from Circuit Court, Hinds County; Wm. F. Coleman, Judge.

Before PATTERSON, C. J., and WALKER and BROOM, JJ.

AFFIRMED.


text:
    OPINION OF THE JUSTICES.
    273.
    Supreme Court of Alabama.
    March 5, 1981.
    M. R. Nachman, Jr., Montgomery, for The Advertiser Co.
    James C. Barton, Birmingham, for The Birmingham News Company.
    David M. Olive, Birmingham, for Alabama Press Association.
    Charles A. Graddick, Atty. Gen., and Al-gert S. Agricola, Jr., Asst. Atty. Gen., for the Atty. Gen., State of Alabama.
   To the Honorable Speaker and Members of The House of Representatives

State Capitol

Montgomery, Alabama

Dear Sirs and Mesdames:

We are in receipt of House Resolution No. 54 requesting an advisory opinion of the Supreme Court relating to the following House Bill 284, which provides:

BE IT RESOLVED BY THE HOUSE OF REPRESENTATIVES 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. 284, a copy of which is attached to this resolution and made part hereof by reference:
1. Does Section 1 of H. B. 284, specifically the language on page 4 thereof, under the definition under subsection (9) “PUBLIC EMPLOYEE,” which includes as public employees “newspaper firms or associations, and their agents or officials, which provide publications of legal notices which are paid by the state,” violate the provisions of [Art. I, § 4] of the State Constitution?
RESOLVED FURTHER, That the Clerk of the House is hereby directed to send a sufficient number of true copies of the pending bill, H. B. 284, 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.

We perceive no per se violation of Art. I, § 4 of the Alabama Constitution by amending the Ethics Act to include within the definition of “public employee,” “newspaper firms or associations, and their agents or officials which. provide publications of legal notices which are paid by the state.” Whether the State can constitutionally compel those persons to comply with the disclosure requirements of the Ethics Act is a question not presented. However, any opinion on this question would of necessity be based upon hypothetical assumptions and conjecture. Opinions founded upon such a basis are not authorized by Code 1975, § 12-2-10. Opinion of the Justices, 287 Ala. 325, 251 So.2d 742 (1971); Opinion of the Justices, 267 Ala. 110, 100 So.2d 565 (1958). Furthermore, “a question of this importance, [i. e., whether the State can constitutionally compel economic disclosure by newspapers and their agents] should not be approached in the abstract. Indeed a question of this magnitude should be resolved in the context of an adversary setting, with an actual fact situation before us, fully briefed and argued to the court.” Opinion of the Justices, 294 Ala. 578, 319 So.2d 705 (1975).

Respectfully submitted,

C. C. TORBERT, Jr. Chief Justice

HUGH MADDOX

JAMES M. FAULKNER

RENEAU P. ALMON

JANIE L. SHORES

ERIC EMBRY

SAM A. BEATTY

OSCAR W. ADAMS, Jr. Associate Justices


text:
    OPINION OF THE JUSTICES.
    No. 276.
    Supreme Court of Alabama.
    March 27, 1981.
   To the Honorable Speaker and Members of the House of Representatives

State Capitol

Montgomery, Alabama

Dear Ladies and Gentlemen:

The Chief Justice has received a letter from the Honorable John W. Pemberton, Clerk, House of Representatives, dated March 17,1981, forwarding a copy of House Resolution No. 149 in which the House has requested our opinion as to the constitutionality of House Bill 687, 1980 Regular Session. The resolution reads as follows:

BE IT RESOLVED BY THE HOUSE OF REPRESENTATIVES 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 H. B. 687, pertaining to the incorporation of a municipality, copies of which are attached to this resolution and made a part of hereof by reference. In pertinent part, H. B. 687 reads:
“. ..; provided, that an unincorporated community lying within or partly within the boundaries of a county having a population of 600,000 or more, according to the most recent federal decennial census, shall not be incorporated under this section if the territory proposed to be incorporated has a total population of less than 1,000 or if the territory or any part of its perimeter lies within three miles of the corporate limits of any existing city or town.” (Emphasis added) >
1. Does the language of H. B. 687, set out herein, fall within the United States constitutional prohibitions of the Fourteenth Amendment for due process and equal protection of the laws and therefore operate arbitrarily and discriminato-rily against certain people of the state because they'live “within three miles of the corporate limits of any existing city or town” only when the boundaries lie within a county having 600,000 or more inhabitants?
2. Does the language of the said bill, set out hereinabove, contravene the provisions of Article I, Section 1 of the Constitution of Alabama, 1901, in that this general law has unequal public application which operates to arbitrarily violate the constitutional rights of citizens within the same county?
3. Does the language of the said bill contravene the provisions of Article I, Section 35 of the Constitution of Alabama, 1901, in that the provisions operate arbitrarily or capriciously against certain citizens in a certain classification without a compelling state interest?
4. Does the language of H. B. 687 exclude a certain group of persons within the same territory so as to deny them due process and equal protection of the laws guaranteed under the federal constitution?
RESOLVED FURTHER, That the Clerk of the House of Representatives is hereby directed to send sufficient copies of the pending bill, H. B. 687, 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.

The copy of House Bill No. 687, forwarded with the resolution, reads:

A BILL
TO BE ENTITLED
AN ACT
To provide for the method of incorporating a municipality and to provide certain exceptions. BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:
Section 1. When the inhabitants of an unincorporated community, which has a population of not less than 100, constituting a body of citizens whose residences are contiguous to and all of which form a homogeneous settlement or community, desire to become organized as a municipal corporation, they may apply to the probate judge of the county in which such territory is situated, or the greater portion thereof if it is situated in two or more counties, for an order of incorporation, by a petition in writing signed by not less than 15 percent of the qualified electors residing within the limits of the proposed municipality; provided, that an unincorporated community lying within or partly within the boundaries of a county having a population of 600,000 or more, according to the most recent federal decennial census, shall not be incorporated under this section if the territory proposed to be incorporated has a total population of less than 1,000 or if the territory or any part of its perimeter lies within three miles of the corporate limits of any existing city or town.
Such petition shall state the proposed name of such municipality and shall have attached thereto and as a part thereof an accurate plat of the territory proposed to be embraced within the corporate limits, including all subdivisions into lots, blocks, streets and alleys, within such territory, if any, and an accurate description by metes and bounds of the boundary of such territory. No platted or unplatted territory shall be included within such boundary unless there are at least four qualified electors, according to government survey, residing on each quarter of each quarter section or part thereof of such platted or unplatted land, who assent thereto in writing by signing said petition, together with the consent of the persons, firms, or corporations^ owning at least 60 percent of the acreage of such platted or unplatted lands, such consent to be signified by their signing said petition. Proof of residence and qualifications as electors of petitioners and of persons affected shall be made to the judge of probate, by affidavit or otherwise, as he may direct. When determining the ownership of such lands, the person, firm or corporation assessing the same for taxation shall be accepted by the probate judge as prima facie the owner thereof.
Section 2. The provisions of this Act are severable. If any part of the Act is declared invalid or unconstitutional, such declaration shall not affect the part which remains.
Section 3. All laws or parts of laws which conflict with this Act are hereby repealed.
Section 4. This Act shall become effective immediately upon its passage and approval by the Governor, or upon its otherwise becoming a law.

Having examined your resolution and H. B. 687, we find no significant difference in your request for an advisory opinion from that recently denied in Opinion of the Justices., 396 So.2d 46 (Ala.1981). As in that case, the language on which you request our opinion is currently embodied in Code 1975, § 11-41 — 1. This fact is not altered by the absence of any reference to that Code section in your resolution and proposed bill. Thus, what this Court determined in Opinion of the Justices, supra, is applicable here, viz.:

Since the language of Code 1975, § 11-41 — 1, on which you request our opinion, is currently a part of the Code of Alabama, we are of the view that we should not address the constitutionality of that Code section in an advisory opinion. While individual Justices, within permissible limits, are privileged to give individual opinions on important constitutional questions properly submitted, yet the Supreme Court, of which these Justices are members, is an appellate court and the constitutionality of statutes should be tested by appropriate adversary proceedings when available or when at all possible.

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

OSCAR W. ADAMS, Jr.


author: MADDOX, Justice.

text:
    Karen Jill KRIEWITZ, a minor suing by and through her father John Kriewitz, as next friend; Donna J. Kriewitz and John Kriewitz v. SAVOY HEATING AND AIR CONDITIONING CO. et al.
    79-384 to 79-386.
    Supreme Court of Alabama.
    March 24, 1981.

      Joseph M. Matranga, Mobile, for appellants.
    Jerry A. McDowell and Ronald L. Davis of Hand, Arendall, Bedsole, Greaves & Johnston, Mobile, for appellee Savoy Heating and Air Conditioning Co."
    Peter V. Sintz of Sintz, Pike, Campbell & Duke, Mobile, for appellee Cedar Construction & Roofing Company, Inc.
   MADDOX, Justice.

These appeals are from jury verdicts in favor of the defendants and against all plaintiffs. John Kriewitz, Donna Kriewitz and Jill Kriewitz, individually, brought actions against Cedar Construction and Roofing Company and Savoy Heating and Air Conditioning Company. These cases were consolidated for purposes of trial and appeal.

Each plaintiff alleged that on or about November 13, 1974, the defendant, Cedar Construction, contracted to make certain repairs to plaintiffs’ house, and that defendant Savoy, in furtherance of the work being done by Cedar Construction, installed a gas furnace in the house. Plaintiffs claimed that the gas furnace was improperly installed, because when the furnace was in use it would cause carbon monoxide fumes to permeate the house.

The defendants filed answers denying any responsibility for the injuries and damages sought by the plaintiffs. Further, they contended that the furnace had been misused or changed in a substantial manner while it was in the hands of the plaintiffs.

The trial began on January 2, 1980, and concluded on January 14, 1980, with the jury returning a verdict in favor of the defendants in all three cases.

Plaintiffs, as appellants, raise three evi-dentiary issues on appeal. First, they contend that the trial court erred in refusing to admit evidence of a conversation between John Kriewitz and M. D. Lowe, the owner of Cedar Construction. Second, they contend that the trial court erred in sustaining objections to questions asked an expert witness, a medical doctor specializing in psychiatry, on the likelihood of resulting brain damage to a person who had been subjected to the inhalation of carbon monoxide. Third, they contend that the trial court erred in refusing to allow clinical psychologists to render opinions as to medical causation of brain damage.

I

During the course of the testimony of John Kriewitz, he was questioned concerning a conversation he had with M. D. Lowe, the owner of Cedar Construction. As to one question, the following occurred:

Q. What was the nature of the discussion between you and Mr. Lowe?
MR. MCDOWELL: If Your Honor please, as to defendant Savoy, I object, it constitutes hearsay.
MR. MATRANGA: This is a conversation between Mr. Kriewitz and Mr. Savoy—
MR. SINTZ: You said Mr. Lowe.
MR. MATRANGA: I beg your pardon, Mr. Lowe. The conversation between Mr. Kriewitz and Mr. Lowe, where Mr. Kriewitz talked to him from the hospital.
MR. MCDOWELL: My object goes to my client Savoy. I object on behalf of defendant Savoy that it constitutes hearsay.
THE COURT: Well, it does.
MR. MATRANGA: Does that mean that the witness will not answer that question?
THE COURT: I don’t know. I haven’t made up my mind yet. It’s admissible against the other defendant. I think I must sustain the objection.
Q. We except.

Appellants contend that since the testimony would have been admissible against Cedar Construction, the trial court erred in not admitting it over the objection of Savoy. Appellants cite McElroy’s Alabama Evidence, 3d Edition, § 12.01, which states:

If an item of evidence is admissible for one purpose, it will be received in evidence despite the fact that there exists some other purpose for which it is not admissible. When the party against whom such evidence has been admitted conceives that the jury may consider the evidence for the improper purpose, his only remedy is to request the court to instruct the jury that the evidence is to be considered only for the admissible purpose.
It is held that evidence will be received when it is admissible against one party to the action despite the fact that there exists another party against whom such evidence is not admissible. The remedy of the party against whom the evidence is inadmissible is to request the court to instruct the jury that the evidence is not to be considered against him. If the party against whom the evidence is not proper to be considered does nothing more than object to the admittance of the evidence, as distinguished from requesting the court to instruct the jury not to consider the evidence against him, the overruling of such an objection gives him no ground for complaint on appeal.
State v. Meadowbrook, Inc., 286 Ala. 359, 239 So.2d 891 (1970); Ponder v. Cheeves, 104 Ala. 307,16 So. 145 (1894); Martin v. Hill, 42 Ala. 275 (1868).
Williams v. State, 81 Ala. 1, 1 So. 179 (1887); Lewis v. Lee County, 66 Ala. 480 (1880); Collins v. Mountain, 53 Ala. 201 (1875); Goodman v. Walker, 30 Ala. 482 (1857).

This same treatise speaks to this precise problem later in the text. It states:

The situation often arises that offered evidence will be admissible against one party but inadmissible against another party joined in the same suit. When both the driver and owner of a negligently operated vehicle, for example, are sued, there may be testimony admissible against one that would be inadmissible against the other. When this situation arises, and the party offering the testimony does not specify against whom he is offering it, the trial court will not be put in error on appeal by sustaining an objection to the testimony. It is the burden of the question-propounding litigant to inform the court as to the party against whom he is offering the expected evidence; otherwise, he foregoes any grounds for appeal from the ruling that such was inadmissible.
In the foregoing situation, where the offered evidence is admissible against one party but inadmissible against the other, the trial court will likewise be affirmed on appeal if the evidence is admitted over objection even though the offering litigant fails to specify the party against whom he is offering the evidence. This rule is justified upon the grounds that the remedy of the party against whom the evidence is improperly admitted is to request an instruction to the jury that they cannot consider such evidence against him.
Contrary to the above, of course, if the party offering the evidence states the proper party against whom he is admitting it then the trial court will be reversed on appeal for sustaining an objection to such evidence.
Hudson v. Stripling, 261 Ala. 196, 73 So.2d 514 (1954); Bain v. Bain, 150 Ala. 453, 43 So. 562 (1907).
Alsabrooks v. State, 52 Ala. 24 (1875); Collins v. Mountain, 53 Ala. 201 (1875); Polly v. McCall, 37 Ala. 20 (1860). Falkner v. Leith, 15 Ala. 9 (1848).

McElroy's Alabama Evidence, 3d edition, § 425.01(9).

In the instant case, the question-propounding litigants, the appellants, failed to specifically offer the evidence against Cedar Construction and, likewise, failed to make an offer of proof. Therefore, the appellants have failed to show that the trial court erred to reversal in refusing to admit evidence of the conversation between Rriewitz and Lowe.

II

Appellants next contend that it was error for the trial court to refuse to let a psychiatrist testify concerning the likelihood of brain damage to a person who has been subjected to carbon monoxide poisoning.

The trial court did sustain objections of the defendant to testimony by the psychiatrist, but we have carefully examined the record and we are convinced that the appellants were able ultimately to get admitted the substance of the testimony to which objections were earlier sustained.

Thus, even if it was error for the trial court to refuse to admit the earlier testimony, that error was rendered harmless by the subsequent admission of similar testimony from the same witness. Britton v. Doehring, 286 Ala. 498, 242 So.2d 666 (1970).

Ill

Finally, the appellants contend that the trial court erred in refusing to allow two clinical psychologists to testify as to the cause of the appellants’ condition. The psychologists were allowed to testify that the appellants had suffered brain damage and, in fact, one of the psychologists was permitted to state that Mr. Kriewitz had “organic brain syndrome.”

What the psychologists were not allowed to express an opinion on was the medical causation of that condition. This is in line with Code 1975, § 34-26-1, which states:

(a) A person practices as a “psychologist” within the meaning of this chapter when he holds himself out to be a psychologist and/or renders to individuals or to the public for remuneration any service involving the application of recognized principles, methods and procedures of the science and profession of psychology, such as interviewing or administering and interpreting tests of mental abilities, aptitudes, interests and personality characteristics for such purposes as psychological evaluation or for such purposes as overall personality appraisal or classification, personality counseling, psychotherapy or personality readjustment.
(b) Nothing in this definition shall be construed as permitting the use of those forms of psychotherapy which involve the administration or prescription of drugs or electro-shock or in any way infringing upon the practice of medicine as defined in the laws of this state. The psychologist who engages in psychotherapy must establish and maintain effective intercommunication with a psychologically oriented physician, usually a psychiatrist, to make provision for the diagnosis and treatment of medical problems by a physician with an unlimited license to practice the healing arts in this state. A psychologist must not attempt to diagnose, prescribe for, treat or advise a client with reference to problems or complaints falling outside the boundaries of psychological practice. [Emphasis added.]

Thus, the trial court did not err in refusing to permit the psychologist to testify as an expert that in his opinion the physiological injury was caused by carbon monoxide poisoning.

The judgment of the trial court is due to be affirmed.

AFFIRMED.

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


text:
    CITY OF BIRMINGHAM, a municipal corporation et al. v. Dewayne N. MORRIS et al.
    79-722.
    Supreme Court of Alabama.
    March 24, 1981.

      James K. Baker, City Atty., and William C. Walker, Asst. City Atty., Birmingham, for appellant.
    Carlos E. Heaps, Birmingham, for appel-lee.
   MADDOX, Justice.

Appellant City of Birmingham appeals from a lower court judgment granting ap-pellees’ prayers for declaratory and injunc-tive relief and ordering the City of Birmingham to grant appellees’ petition for rezoning their property. We affirm.

Appellees, Dewayne N. Morris and Jo T. Morris, own two adjoining lots located at 2915 and 2931 Clairmont Avenue, Birmingham, Alabama. At the time this suit was initiated, the property was classified for zoning purposes as R-6 (Multiple Dwelling Residential).

In late 1979 appellees began their effort to change the zoning classification of their property from R-6 to B-l (Neighborhood Business). This effort was based upon ap-pellee Dewayne Morris’s desire to use the property as a future site for his law offices. Appellees first sought approval of their plan before the Highland Park Neighborhood Association. The plan submitted to the Association called for a change to 0-1 (Office and Institutional) classification. After an initial vote in favor of the plan, the Association at a later meeting voted unanimously against it.

Following disapproval by the Association, appellees petitioned the Birmingham Planning and Zoning Commission and the Birmingham City Council to change the zoning classification of their property from R-6 to B-l. The Commission conducted an initial factual investigation of appellees’ petition, after which it recommended against the proposed change. The City Council, upon considering the same information, agreed with the recommendation of the Commission, and denied the petition.

On January 29, 1980, appellees filed their complaint in Jefferson Circuit Court seeking declaratory and injunctive relief alleging that the Council’s action in denying the requested zoning change was arbitrary, capricious and unlawful; bore no relationship to the health, safety, morals or general welfare of the City; and constituted an unconstitutional confiscation of appellees’ property. After hearing evidence ore tenus, the trial court concluded that the issue of whether to rezone the appellees’ property was not “fairly debatable” (citing City of Birmingham v. Norris, 374 So.2d 854 (Ala. 1979)). It, therefore, enjoined the City from enforcing its zoning ordinances as they affect the appellees’ property, and ordered the City and its Council and its agents to approve the appellees’ petition for the construction of an office building under B-l zoning. The City of Birmingham appealed.

The factual evidence adduced at trial essentially involved testimony concerning the highest and best use of appellees’ property and the character of the surrounding neighborhood. The property is located on the south side of Clairmont Avenue near the intersection of 29th Street and Clairmont. The property is located on the borderline of an R-6 zone where that zone interfaces with a B-2 (General Business) zone. A Standard service station lies directly west of the appellees’ property on the southeast corner of 29th and Clairmont. Excluding that service station, the south side of Clair-mont east of 29th Street is devoted entirely to residential uses. By contrast, the north side of Clairmont is entirely commercial except for one apartment building. Clair-mont Avenue itself is a fairly busy street, accommodating approximately 20,000 cars per day. Nevertheless, several zoning experts testified that Clairmont, with its landscaped median and high curbs, provides a fairly effective visual and sound screen between the commercial uses to the north and the residential uses to the south.

All of appellees’ witnesses testified that the highest and best use of appellees’ property would be an office building. These witnesses testified that the service station west of the property needed a “buffer” between it and the residential uses on the south side of Clairmont. An office building was believed to be a particularly effective buffer between an intense commercial use and a residential use. Witnesses for the City similarly testified that an office building would provide a reasonable buffer between a service station and residential property.

The City called various witnesses who testified that it would be economically feasible for appellees to construct an apartment building on the property in accordance with its R-6 classification. In addition, several witnesses testified that the erection of an office building would generate an excessive amount of additional traffic, thereby compounding the problem already created by the service station.

In the recent decisions of Jefferson County v. O’Rorke, 394 So.2d 937 (Ala.1980), and Cale v. City of Bessemer [1980], 393 So.2d 959 (Ala.1980), the Court reiterated its abiding adherence to the rule of law that a trial court must not disturb the zoning decision of a duly constituted municipal body so long as that decision is based upon a “fairly debatable” rationale. A zoning determination is said to be fairly debatable “when for any reason it is open to dispute or controversy on grounds that make sense or point to a logical deduction that in no way involves its constitutional validity,” Miami Beach v. Lachman, 71 So.2d 148 (Fla.1953), or where the evidence provides a basis for a fair difference of opinion as to the application of the determination to particular property. See generally, 1 R. Anderson, American Law of Zoning, § 3.20 (2nd ed. 1977).

By virtue of this “fairly debatable” rule, the role of the judiciary in zoning eases is extremely limited and the dimensions of judicial review are narrowly confined. 4 E. Yockley, Zoning Law and Practice § 25-2 (4th ed. 1979); 4 R. Anderson, American Law of Zoning § 25.26 (2nd ed. 1977). Courts must recognize that zoning is a legislative function committed to the sound discretion of municipal legislative bodies, not to the courts. Wafers v. City of Birmingham, 282 Ala. 104, 209 So.2d 388 (1968); Marshal] v. City of Mobile, 250 Ala. 646, 35 So.2d 553 (1948). As a result, local governing authorities are presumed to have a superior opportunity to know and consider the varied and conflicting interests involved, to balance the burdens and benefits and to consider the general welfare of the area involved. Episcopal Foundation of Jefferson County v. Williams, 281 Ala. 363, 202 So.2d 726 (1967); Leary v. Adams, 226 Ala. 472, 147 So. 391 (1933). They, therefore, must of necessity be accorded considerable freedom to exercise discretion not diminished by judicial intrusion. Walls v. City of Guntersville, 253 Ala. 480, 45 So.2d 468 (1950). Nevertheless, this discretion is not unbounded, and local authorities may not, under the guise of legislative power, impose restrictions that arbitrarily and capriciously inhibit the use of private property or the pursuit of lawful activities. When such arbitrary and capricious action is made apparent, a reviewing court will not hesitate to disturb the zoning determination as a clear abuse of discretion.

We believe the instant case is indicative of an increasingly common situation where affirmative governmental action, in permitting the construction of nonconforming uses, has effectively frustrated the planned use of residential property. In 1970, the City Counsel of the City of Birmingham approved a requested zoning change for the premises located immediately west of the appellees’ property, notwithstanding the recommendation of the Planning and Zoning Department to the contrary. By virtue of this action, the zoning classification of that property was changed from R-6 to B-2, thereby permitting the construction of the Standard service station presently located on the property. When questioned about this reclassification, Horace Carson, Zoning Controls Supervisor of the City of Birmingham, testified as follows:

“Q Uh huh. Now, in 1970, when the City rezoned the corner lot sitting on the southeast corner of 29th and Clairmont, did you investigate that zoning application?
“A Yes, sir.
“Q And were you on — did the staff investigate it?
“A Yes, sir.
“Q What was the recommendation of the staff on that occasion for that zoning?
“A The concluding paragraph of the recommendation that is dated March 17, 1970 in regard to the rezoning of the Southeast corner of Clairmont Avenue and 29th Street was, and I quote:
“ ‘The staff of the Planning and Zoning Department advises that this request be not recommended to the City Council. The establishment of a service station on the corner of this intersection would significantly add to traffic congestion and would increase the danger to children attending the elementary school, [i. e., Lakeview School located on southwest corner of 29th and Clairmont].’
“Q Now, has your views changed in light of events since 1970 for residential uses on the southside of Clairmont?
“A No, sir.
“Q They are still the same?
“A That is correct.”

In addition, William Moody, Senior Planner with the City of Birmingham, testified that the existence of the service station in the R-6 zone violates the City’s current Future Land-Use Plan for the Clairmont Avenue district. This land-use plan contemplates, among other things, upgrading the residences from R-6 to R-3 (Single Family) and R-4 (Two-Family), and maintaining the area for medium to high density residential. Mr. Moody testified as follows:

“Q Does that violate the Long-Range Use Plan? Does this service station next door to Mr. Morris’ property violate Birmingham’s Long-Range Use Plan?
“A At the time it was rezoned it constituted an amendment to the comprehensive plans which did not at that time indicate any non-residential use south of Clairmont Avenue. However, subsequent to the rezoning, City Council has reconfirmed the Planning Commission’s recommendation for the future land use of that area to be medium to high residential density, which is not consistent with the existing zoning or the existing use of that service station. But it is later intent for future development.
“Q Was your answer yes or no?
“A My answer is that the existing use is not consistent with the plan of the City of Birmingham.
“Q Okay. Not consistent. I guess that would say that it violates the plan, is that correct?
.“A I guess it violates the plan.”

It is without question that the commercial development of the property west of appellees’ premises has had a deleterious effect on the usefulness of their property for residential purposes. Although there is conflicting testimony concerning the desirability and feasibility of utilizing the subject property under its current R-6 classification, the witnesses generally agree that the construction of an office building on the property would enhance the neighborhood by providing a natural “buffer” between an intense commercial use (i. e., the service station) and the remaining residential uses along the south side of Clairmont; however, those experts called to testify for the City, while recognizing the plausibility of using an office structure as a buffer, strongly objected to reclassifying the property to B-l zoning which would permit not only the construction of an office building, but also such nonconforming uses as a neighborhood convenience store or an additional service station.

We find it significant that in seeking the requested zoning change for their property appellees have repeatedly stated their limited intentions for developing the property. As we interpret the decree of the court, these statements and declarations are binding upon appellees, limiting the appellees’ future development of the property under its new classification. In their appearances before the Highland Park Neighborhood Association and in their formal application to the Birmingham Planning Commission, appellees have asserted that they intend to use the property for the sole purpose of erecting a professional office building. Preliminary drawings of the proposed structure were submitted with the application. In addition, at the close of the City’s evidence, Mr. Morris offered additional rebuttal testimony reiterating his intended use of the property. During that testimony, very significant statements were made:

“Q Okay. Have your plans during the entire period of time that this case has been pending been to build a professional cffice building?
“A Yes, it has from the first time I appeared before the Highland Park Neighborhood Community, and all the processes of appearing there, three times I believe, and before the Zoning Board, the one that does the recommendations, the Zoning Advisory Committee. The same plan that was presented to the City Council and it is the plans that we have got here in court. That’s the only plans I have is to build that office building. However, I have really not been able to get the financing arranged and I don’t know. At the time we started I had ten per cent financing when I first made the application and now we have got fourteen or fifteen per cent financing.
“All I want to be able to do is to be able to use that property for this office building. Maybe eight thousand feet instead of ten thousand feet. But an office building next to that service station. Or if the economy stays like it is or the interest rate gets so high I can’t do it, I would like to be able to use those two houses to convert them to offices, if that proves to be debatable — I mean if that proves to be feasible.
“I don’t have any other plans for that other than those two plans, and the Court can rely on that representation.
“Q Would you have any objection to the Court drafting a decree?
“A I have no objection for the Court drafting a decree allowing the construction of an office building.
“MR. WALKER: Now, we object to the decree that the Court would draft.
“THE COURT: I will allow him to state that. He can state it in his brief if he wants to. I am not bound by anything he says. Go ahead.
“A I would like to have the permission to use it either way that I find is economically feasible to use it. Either convert the old houses into offices or tear them down and build an office building there. I would like one day to have my offices there. But until we get the rezoning, we can’t get a construction price. Nobody will talk about what they will build a building for when I don’t even have the rezoning for it.
“I need another tenant to go in there and share the offices with me and I can’t talk to any tenants about whether they want to come or not until I get the zoning. It all boils down that you can’t do anything until you get the zoning.
“THE COURT: I am not bound by any statements that the witness makes with regard to his intentions in the future situations but he is bound by them.
“Q But you have no objection to the Court entering a decree that would prevent any other use other than this professional office building, is that correct?
“A That’s right. No objections. I would prefer that the Court frame it in the alternative to use it for offices, either the existing buildings or build a new office building there. I don’t want to use it for anything else. I want to hold that property. I think it is a good piece of property and eventually will be zoned whether it is now or later.
“THE COURT: When I get to that point in my deliberation and decide to write a decree in your favor you will be bound by what you have stated.
“THE WITNESS: Yes, sir, I understand that.”

On the basis of all the evidence, we find that the trial court could properly conclude that it was no longer “fairly debatable” that appellees’ property be rezoned to permit the appellees’ proposed use for construction of an office building. The trial court expressly limited its determination on this point by specifically ordering the City of Birmingham to approve appellees’ petition for the construction of an office building under B-l zoning.

We, therefore, hold that the trial court, in recognition of the decision of this Court in City of Birmingham v. Norris, 374 So.2d 854 (Ala.1979), correctly applied the law to the facts. Furthermore, an appellate court will not ordinarily disturb the exercise of discretion by courts below in cases involving decisions of administrative bodies. 73 C.J.S. Public Administrative Bodies and Procedure § 252 (1951). The lower court judgment is, therefore, due to be affirmed.

AFFIRMED.

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


author: JONES, Justice.

text:
    The CITY OF PRICHARD, Alabama, a Municipal Corporation, and Ed Hinton, Individually v. Bobby Jean BOX, as Administratrix of the Estate of Ronald Jack Box, Deceased.
    79-786.
    Supreme Court of Alabama.
    March 24, 1981.
    Ralph Kennamer, Mobile, for appellants.
    Edward B. McDermott of McDermott, Deas & Boone and James E. Atchison of Hess, Atchison & Horne, Mobile, for appel-lee.
   JONES, Justice.

This action was commenced in the Circuit Court of Mobile County, Alabama, on August 18, 1978, by Bobby Jean Box, as Ad-ministratrix of the estate of Ronald Jack Box, deceased, against Defendants, the City of Prichard, Alabama, and Ed Hinton, an employee of the Prichard Police Department.

Plaintiff’s complaint alleged that “on September 3, 1976, Defendant Ed Hinton, while acting within the line and scope of his employment, did both wantonly and negligently shoot and kill Plaintiff’s intestate, Ronald Jack Box.” Plaintiff commenced this action in the circuit court on August 18, 1978, some 23V2 months later. On May 30, 1980, a jury returned a verdict of $50,000 against Defendants, the City of Prichard and Ed Hinton, for negligence.

Notwithstanding its rather complex factual background, this appeal presents a single dispositive issue: Whether a wrongful death action against a municipality is governed by the one-year statute of limitations (Code 1975, § 6-2-39(a)(7)) or by the two-year period prescribed in the Wrongful Death act (§ 6-5-410(d)).

The trial judge, denying the City’s motion for a directed verdict, ruled that the two-year statute applied. We affirm.

Appellant City contends that the applicable statute of limitations for this wrongful death claim against the City of Prichard is Code 1975, § 6-2-39(a)(7):

“(a) The following must be commenced within one year:
“(7) All actions commenced to recover damages for injury to the person or property of another wherein a principal or master is sought to be held liable for the act or conduct of his agent, servant or employee under the doctrine of re-spondeat superior.” (Emphasis added.)

The City’s assertion can be placed in perspective by juxtaposing the one-year statute with the wrongful death statute (§ 6-5-410(a) and (d)):

“(a) A personal representative may commence an action and recover such damages as the jury may assess in a court of competent jurisdiction within the state of Alabama, and not elsewhere, for the wrongful act, omission or negligence of any person, persons or corporation, his or their servants or agents, whereby the death of his testator or intestate was caused, provided the testator or intestate could have commenced an action for such wrongful act, omission or negligence if it had not caused death.
“(d) Such action must be commenced within two years from and after the death of the testator or intestate.” (Emphasis added.)

The City’s position is that the clause, “provided the testator or intestate could have commenced an action for such wrongful act, omission or negligence if it had not caused death,” brings the claim within the purview of the one-year limitation period provided by § 6-2-39(a)(7); and this for the reason that Plaintiff’s intestate’s only cause of action against the City, had he lived, would have been “under the doctrine of respondeat superior.” Because the injured person’s claim would have been barred after one year, says the City, his personal representative cannot institute a suit beyond the one-year period of limitations.

Adoption by this Court of such reasoning would create, in effect, different classes of wrongful death actions: One, against the immediate wrongdoer, and subject to the two-year period provided by § 6-5-410; and, secondly, those against masters, employers, principals, and corporations, with a one-year statute of limitations pursuant to § 6-2-39(a)(7). Indeed, of the two instant Appellants, the application of the one-year statute is urged only by the municipal corporation. We cannot accept this contention.

In Liberty Mutual Insurance Company v. Lockwood Greene Engineers, Inc., 273 Ala. 403, 140 So.2d 821 (1962), plaintiff, in a third-party context, sought to apply the one-year statute of limitations under the workmen’s compensation law in this State. In rejecting this contention, the Court stated that the legislature, by its enactment of the wrongful death statute, did not intend to create certain classes of cases subject to different periods within which to bring the action; that there was only one time frame applicable to actions for wrongful death and it was a two-year period provided by the Act.

Take the City’s proposed concept one step further: § 6-2-34(1) provides that actions for trespass to person or liberty (e. g., assault and battery) must be commenced within six years. If an assault and battery results in death, would the personal representative have six years (as opposed to two) within which to commence an action for wrongful death? The obvious answer is “no.” Such action would be governed by the two-year period created by § 6-5-410.

We reject the City’s argument; we refuse to superimpose § 6-2-39(a)(7) over § 6-5-410(a). Consequently, we hold that by commencing her cause of action within the time allowed under § 6-5-410, Appel-lee’s claim should not succumb to Defendant’s “statute of limitations” defense.

We have carefully examined each of the remaining issues presented and find them to be without merit.

AFFIRMED.

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

      . For varying factual contexts in which this language has been given operative effect, see Wolfe v. Isbell, 291 Ala. 327, 280 So.2d 758 (1973); Ellis v. Black Diamond Coal Mining Co., 268 Ala. 576, 109 So.2d 699 (1959); and Woodward Iron Co. v. Craig, 256 Ala. 37, 53 So.2d 586 (1951).

      . A claim for workmen’s compensation death benefits (as opposed to a third-party wrongful death action), of course, must be commenced within one year from the death or from the last date of payment, because the statute creating the right also prescribes the time within which the claim must be filed. § 25-5-80.

      . Both parties have loosely and incorrectly used the term “statute of limitations.” More accurately, § 6-5-410(d) is a statute of right— an integral part of the statute creating the right of action. Nicholson v. Lockwood Greene Engrs., Inc., 278 Ala. 497, 179 So.2d 76 (1965); see, also, Pollard v. United States, 384 F.Supp. 304 (M.D.Ala. 1974).


text:
    Joe KILGORE v. C. G. CANTER, JR. & ASSOCIATES, INC.
    79-802.
    Supreme Court of Alabama.
    March 24, 1981.

      C. Lee Reeves of Sirote, Permutt, Friend, Friedman, Held & Apolinsky, Birmingham, and James S. Hubbard, Anniston, for appellant.
    Ray F. Robbins, II, of Gaines, Cleckler, Robbins & Goodrich, Talladega, for appel-lee.
   MADDOX, Justice.

Appellant Joe Kilgore was the employee of Morrison Electric Company, which was a subcontractor on a construction project of C. G. Canter, Jr. & Associates, Inc., the owner and general contractor. While working for Morrison in the construction of the house owned by Canter, Kilgore was severely injured when heavy sheetrock fell on his leg.

Kilgore filed suit against C. G. Canter, Jr. & Associates, Inc., and others, in which he claimed that Canter failed to maintain a safe place in which to work and that Canter was negligent in stacking and maintaining the sheetrock in a dangerous and unsafe condition. Canter filed a motion for summary judgment, claiming that it could not be sued by Kilgore in this case because Kilgore had received workmen’s compensation benefits for his injury. The trial court granted summary judgment and dismissed Canter as a party-defendant. The court issued a final order under ARCP 54(b), and Kilgore appealed. Two issues are presented:

1. Whether the trial court properly granted summary judgment dismissing the general contractor as a party-defendant when the plaintiff-appellant received workmen’s compensation benefits paid on behalf of his employer, a subcontractor, by the workmen’s compensation insurance carrier of the general contractor;

2. Whether the plaintiff-appellant is barred from suing a general contractor for negligence and failure to maintain a safe place to work when plaintiff has received workmen’s compensation benefits from the general contractor’s workmen’s compensation insurance carrier made on behalf of the subcontractor.

Appellant Joe Kilgore was the sole employee of Morrison Electric Company. Soon after the accident, Kilgore was contacted by State Farm Fire and Casualty Company, Canter’s workmen’s compensation insurance carrier, and told that a workmen’s compensation insurance policy covered his injury while he had been working for Morrison Electric Company and that payments thereunder would be forthcoming. The letter from the carrier, dated April 13, 1978, reads, in part, as follows:

April 13, 1978
Mr. Joseph Kilgore
3005 Walnut Avenue
Anniston, AL 36201
Re: Claim # WC 147 807
Insured C. G. Canter, Jr. & Associates, Inc.
Date of Accident 2-27-78
Dear Mr. Kilgore:
Please be advised that State Farm Fire and Casualty Company provides Worker’s Compensation Insurance for C. G. Canter, Jr. and Associates, Inc. We understand that at the time of your injury on February 27, 1978, you were employed with Morrison Electric Company who was under contract to C. G. Canter, Jr. and Associates, Inc. Since your injury was caused by an accident arising out of the line or scope of your employment with Morrison Electric Company, sub-contractor to C. G. Canter, Jr. and Associates, Inc. our Worker’s Compensation policy and its benefits do apply to you in this accident.
This is to advise you that the medical expenses you incurred as a result of your injury will be paid under this Worker’s Compensation policy as well as compensation for the period of time that you are off from work recovering from this injury. We understand that your average weekly earnings was $106.00 per week which entitles you to compensation in the amount of $70.70 per week compensation. We are attaching our draft made payable to you for $494.90 paying you compensation for the period of seven weeks from February 28,1978, through April 17,1978. We are at this time requesting medical reports from your physician, Dr. S. R. Smith. Any medical bills that you have incurred and received at this time should be forwarded to us immediately for payment. We are enclosing a self-addressed envelope for your convenience in submitting the medical bills to us.
Please notify us immediately upon your physician releasing you to return to work so that there will not be an overpayment in compensation.
You will receive weekly compensation checks until such time that you are released to return to work by your physician.
Very truly yours,
Jim McCain
Claim Supervisor
JM/ag
616
cc: C. G. Canter, Jr. & Associates, Inc. Jim Swift, 0754

Kilgore accepted those payments and forwarded his medical bill to the insurance company for payment. Thereafter, Kilgore received checks from State Farm Fire and Casualty Company in the amount of approximately $70 per week. Kilgore admitted receiving the $70 per week from the insurance carrier, but in an affidavit executed and filed in opposition to Canter’s motion for summary judgment, he stated that he believed and understood the $70 per week that he received from the insurance carrier was paid on behalf of his own employer, Morrison Electric Company.

The trial court entered the following order on the motion for summary judgment:

ORDER
This matter coming on to be heard on the motion of C. G. Canter, Jr. and Associates, Inc. for a summary judgment and it being stated to the Court by the pleadings, interrogatories, and by the attorneys:
1. That Jerrell Morrison, an electrical contractor has one employee and is not subject to the Workmen’s Compensation law of the State of Alabama.
2. That Jerrell Morrison was hired as a subcontractor to wire the house by C. G. Canter and Associates, Inc., that was building the house.
3. That Joe Kilgore was injured while working in the house.
4. That Joe Kilgore began accepting Workmen’s Compensation benefits from State Farm Fire and Casualty Insurance Company, that insured C. G. Canter, Jr. and Associates, Inc. under the Workmen’s Compensation laws of this state, on February 27, 1978, in the sum of about $70 per week.
5. That Kilgore has sued Terminal Builders Mart, C. G. Canter, Jr., C. G. Canter, Jr. and Associates, Inc., and Morrison.
The Court is of opinion that Kilgore has made an election of remedies and is precluded from maintaining his action against C. G. Canter, Jr. and Associates, Inc., after accepting over two years of benefits under his Workmen’s Compensation coverage. See Owens v. Word, [sic] [49 Ala.App. 293] 271 So.2d 251 and Kelley v. Dupree, [Ala.] 376 So.2d 1371.
It is, therefore, ORDERED and ADJUDGED by the Court that the motion for summary judgment by C. G. Canter, Jr. and Associates, Inc. be and it hereby is dismissed as a party defendant in this action.
At this hearing plaintiff moves to strike Jerrell Morrison as a party defendant. Said Motion is hereby granted and Jerrell Morrison be and he hereby is dismissed as a party defendant in this action.

If Kilgore was, in fact, the employee of Canter, the trial court would have been correct, but in the cases cited by the trial court, there was an employer-employee relationship between the plaintiff and the defendant. Those cases, therefore, are inapt because the evidence presented in this case indicates that Kilgore was the employee of Morrison Electric Company, not of Canter. In any event, the fact issue of control was not settled; because of this fact and because there was evidence that Kilgore was not the employee of Canter, summary judgment in this case was inappropriate.

The Alabama Workmen’s Compensation Act makes it clear that it is an exclusive remedy only in situations where an employee is suing his employer for injury in the course of his employment. See, Ala. Code 1975, §§ 25-5-51, -53; Owens v. Ward, 49 Ala.App. 293, 271 So.2d 251 (1972). In order to come within the terms of the Act, and therefore, have liability limited to the benefits paid thereunder, it is essential that the person seeking to limit the remedy of the injured party be in an employer-employee relationship with that party. If Kil-gore was not the employee of Canter, the election of remedies provisions of the Workmen’s Compensation Act would not apply, because the Workmen’s Compensation Act itself would not apply.

Because of the foregoing reasons, 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.


author: BEATTY, Justice.

text:
    Susie M. Isaiah LUCAS v. Johnlene Lucas BROWN, Ind. and as Executrix, etc., et al.
    79-884.
    Supreme Court of Alabama.
    March 24, 1981.

      Alfred W. Goldthwaite, Montgomery, for appellant.
    Philip Dale Segrest, Montgomery, for appellees.
   BEATTY, Justice.

The plaintiff, Susie M. Isaiah Lucas, appeals from the granting of defendants’ motion to dismiss. We affirm.

Susie M. Isaiah Lucas, a resident of the state of Michigan, filed her complaint in the Circuit Court of Montgomery County, alleging that during her childhood she lived with David Isaiah who owned land in Montgomery County. David Isaiah died in February 1954, leaving a last will and testament which was filed for probate with the Probate Court of Montgomery County on September 28, 1956, two and one-half years after his death.

Under the will of David Isaiah the plaintiff was bequeathed forty acres of land for her natural lifetime and at her death the land was to go to Rosie Lucas, David Isaiah’s daughter. Rosie Lucas, who died in February 1978, was the wife of the defendant McKinley Lucas. Rosie and McKinley had a daughter, Johnlene Lucas Brown, who is also a defendant, both individually and as executrix of her mother’s estate.

The complaint alleged that the plaintiff was not advised of the will in 1954, that she had made inquiry about the will at the Montgomery County Probate Office and found no will, and that she remained unaware of the will being filed for probate in 1956 until her attorney checked the records in December 1979. The complaint also alleged that in 1967 McKinley and Rosie conveyed the land to their daughter, Johnlene Lucas Brown, by a warranty deed which omitted any reference to the life tenancy of the plaintiff.

The plaintiff contends that since McKinley and Rosie executed the warranty deed to Johnlene, in spite of their knowledge of the plaintiff’s interest, such conveyance should be subject to the plaintiff’s rights.

The plaintiff by her complaint requested the trial court to set aside the deed from McKinley and Rosie to Johnlene; to order the defendants to pay the plaintiff $7,000.00 of back rent collected from February 1954 to the present; and to award her $10,000.00 in punitive damages.

The defendants filed a motion to dismiss stating that the cause of action was barred by laches, and by prescription. The motion to dismiss also stated that the claim for punitive damages should be dismissed since Rosie Lucas was deceased and without her testimony the plaintiff should not be allowed to file her claim. After a hearing on the motion, the trial court granted the motion to dismiss without setting forth any grounds. The plaintiff appeals the granting of that motion.

Although the trial court did not set forth specific grounds for the granting of the motion, a lower court’s granting of a motion to dismiss is due to be affirmed if any one ground of the motion was well taken. See Locke v. Locke, 291 Ala. 344, 280 So.2d 773 (1973). We are of the opinion that the rule of prescription or the twenty-year doctrine of repose controls this case and that the motion to dismiss was properly granted based on the application of the rule.

Prescription, or the twenty-year doctrine of repose, has long been recognized in Alabama. In Morris v. Yancey, 267 Ala. 657, 104 So.2d 553 (1958), this Court said:

This court has adhered with uniform tenacity to the doctrine of prescription and has repeatedly held that the lapse of twenty years, without recognition of right or admission of liability, operated as an absolute rule of repose. . . .

This Court further explained the rule in McKee v. Goldthwaite, 287 Ala. 232, 250 So.2d 682 (1971), quoting Oxford v. Estes, 229 Ala. 606, 158 So. 534 (1934), by stating:

Prescription, as a bar to actions at law or in equity, is a rule of repose; aims at an end of controversies touching title to property; fixes twenty years as the absolute limit beyond which courts will not inquire; ... no disabilities, such as infancy, prevent or suspend the running of the twenty-year period. The rule is bottomed on the doctrine that demands unasserted for so long a time, either had no foundation in justice, or have been adjusted.

This doctrine has also been codified in Code of 1975, § 6-2-8.

The defendants urge that because the will was probated in 1956 and a period of more than twenty years had lapsed prior to any action by the plaintiff, the doctrine of prescription or twenty-year doctrine of repose applies to bar all claims for the property or rents therefrom. The plaintiff contends, however, that the doctrine of prescription does not apply in this case. She urges that the interests of a life tenant and of a remainderman are so intertwined that the doctrine of prescription cannot run against either of them.

Alabama courts have consistently held that a life tenant cannot acquire the title of a remainderman by adverse possession. Taylor v. Russell, Ala., 369 So.2d 537 (1979); Duncan v. Johnson, Ala., 338 So.2d 1243 (1976). In Duncan, supra, this Court quoted from Pickett v. Doe, ex dem. Pope, 74 Ala. 122 (1883) and enunciated the reason for the rule:

The tenant for life is entitled to actual possession of the premises of which he is enfeoffed; the remainder-man is not so entitled, as long as the life-tenant is living. The actual possession of the former, therefore, is rightful, and not wrongful. It is not adverse to any right of the remainder-man, but perfectly compatible with all of his rights. The latter having no right of possession, either actual or constructive, cannot be disseized, or ousted, in any proper acceptation of these words.... [74 Ala. at 132.]

The plaintiff argues that since the interests of the life tenant and the remainder-man are said to be “compatible,” and “not adverse,” a remainderman should not be allowed to obtain the interest of a life tenant by prescription as long as the life tenant lives. This argument must fail, however, since it ignores the basic principle upon which the two types of interests are founded.

It is clear that until the termination of the preceding life estate a remain-derman has no right to possession, and consequently there can be no possession adverse to him. Hinesley v. Davidson, Ala., 335 So.2d 380 (1976); Hammond v. Shipp, 292 Ala. 113, 289 So.2d 802 (1974). It is equally clear that a life tenant, who has the right to immediate possession, is subject to losing his estate by adverse possession. “A stranger to the title may, during the life of a life tenant, establish an adverse possession as against the life tenant and acquire title thereby to the life estate.” 31 C.J.S. Estates § 66, p. 136 (1964). Thus, since a remainderman has no right to possession during the life of the life tenant, possession by the remainderman could be adverse to the possession of the life tenant. Prescription or the doctrine of repose would clearly apply to property held adversely for a period of twenty years by a remainderman against a life tenant.

The plaintiff contends that prescription, or the doctrine of repose does not apply here because neither Rosie Lucas, nor Johnlene Lucas Brown, individually, held for the required twenty-year period. The deed from Rosie and McKinley to Johnlene was given in 1967, which was only eleven years after the probate of the will. John-lene has possessed the land since 1967. Clearly neither Rosie nor Johnlene alone possessed the land for the requisite twenty-year period. This argument, however, ignores thé doctrine of tacking which is well established in Alabama. In Gantt v. Phillips, 262 Ala. 184, 77 So.2d 916 (1954), this Court said:

The theory of tacking . . . contemplates a situation where the prior claimant by adverse possession had not acquired the title to the property at the time of his conveyance to the complainant but only acquired a status of adverse possession which could lead to a title in complainant when tacked to her possession subsequently occurring. ...

Thus the doctrine of tacking is applicable in this case and permits Johnlene Brown to add her period of possession to that of Rosie Lucas in order to establish continuous possession for a period of twenty years so that title to the property could be gained by prescription.

The complaint in its relevant part reads as follows:

Plaintiff avers the said forty acres is excellent pasture land and is presently being leased to parties unknown to your Plaintiff by the said Johnlene Brown; that to the best knowledge and belief of Plaintiff the property has been so utilized since the death of David Isaiah in 1954.

Although the plaintiff does not question the continuous possession by Rosie and John-lene, it must be noted that the actual possession required under the theory of prescription can be met through possession by a tenant on behalf of the adverse claimant. In Orso v. Cater, 272 Ala. 657, 133 So.2d 864 (1961) this Court said: “It is elementary that, as between landlord and tenant, possession of the tenant is possession of the landlord.. .. ” Thus, the complaint itself shows that the defendants and their predecessor in title, either personally or through tenants, have maintained continuous possession of the property for over twenty years.

Since we have determined that prescription can apply in this situation, where a remainderman holds against a life tenant, and since the complaint itself shows the continuous possession for a twenty-year period by the defendants, we hold that the doctrine of prescription applies here to create an absolute bar to any petition for an accounting or demand for the possession of land. Thus, the motion to dismiss was properly granted.

Let the judgment be affirmed.

AFFIRMED.

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


text:
    ESCAMBIA CHEMICAL CORPORATION, a corporation v. UNITED INSURANCE COMPANY OF AMERICA, a corporation et al.
    No. 79-941.
    Supreme Court of Alabama.
    March 24, 1981.

      Allen Edward Cook of Cook & Cook, Andalusia, for appellant.
    W. Harold Albritton of Albrittons & Givhan, Andalusia, for appellees.
   MADDOX, Justice.

The holder of a money judgment against an insurance debit agent sued out a garnishment against the agent’s company claiming that the following funds were subject to garnishment: (1) commissions earned and retained by the agent but not transmitted to the company; (2) proceeds of a cash bond posted by the agent with the company; and (3) certain pension benefits which might be payable to the agent.

The trial court found that the company had no funds in its possession or control which were owing to its agent, and dismissed the garnishment.

The facts are essentially uncontroverted. Escambia Chemical Corporation had obtained a money judgment against J. W. Kirkland, the insurance debit agent of the garnishee, United Insurance Company. Kirkland had earned, but retained, commissions totaling $2,524.19 from the date of the filing of the writ of garnishment on August 13,1979, and the date of the preparation of answers to interrogatories on or about November 26, 1979. United had paid the employer’s part of social security taxes for Kirkland and Kirkland had paid his employee’s share of social security taxes, withholding taxes, group insurance and pension plan contributions. United declared the commissions earned by Kirkland as a deduction on its corporate income tax return, thereby taking full advantage of the sums retained by Kirkland as an operating expense deduction.

The evidence shows that Kirkland, as an agent of United, was required to post with the company, and maintain, a $1,000 cash bond, which was refundable: (1) if Kirkland terminated his employment with the company, whereupon the $1,000 would be refunded to him, less any indebtedness he might owe to the company; (2) if Kirkland had ten years of service with the company; and (3) if Kirkland was promoted to a salaried position. The company was obligated to pay six percent interest on the cash bond if it was refunded.

Escambia contended that three funds were subject to its garnishment: Kirkland’s commission, the $1,000 cash bond, plus interest which had accrued thereon, and contributions made to an employee pension plan and held for Kirkland’s benefit.

The trial court rendered a judgment in favor of the garnishee, United, which stated, in part:

The garnishee insurance company does not come into possession or control of any money owing to Mr. Kirkland, the defendant, independent of Mr. Kirkland. There is no liability on the part of the garnishee to the defendant, Kirkland, as would enable the defendant, Kirkland, to maintain an action at law against the garnishee and recover a judgment.
Contributions to the pension plan would be a contingent liability and not subject to garnishment until such time as the defendant had a claim or is eligible for such benefits.

The appellant raises the following issues on appeal:

(1) Did the trial court err in ruling that the commissions in question were not subject to garnishment;

(2) Did the trial court err in ruling that United’s pension plan for Kirkland was a contingent liability and, as such, not subject to garnishment until such time as Kirkland has a claim or is eligible for such benefits;

(3) Did the trial court err by not entering a judgment requiring United to pay Escam-bia the $1,000 cash bond held on deposit by United for Kirkland;

(4) Did the trial court err by not requiring United to pay Escambia the six percent interest which accrued upon the $1,000 cash bond held on deposit by United for Kirkland; and

(5) Did the trial court err in not keeping United before the court so that any future debt which would accrue by a contract in existence could be subjected to Escambia’s demand?

THE COMMISSION

Appellant argues “that Kirkland’s earned commissions are subject to garnishment even though he personally retains them when he collects each premium,” contending that Code 1975, § 6-6-370 subjects money or effects “in possession or under the control” of a third person to garnishment. Kirkland was United’s agent and was operating under a compensation plan designed by United, says appellant; therefore, appellant reasons, the commissions were under the control of United, at least constructively, although Kirkland retained his commissions and only sent the excess over those commissions to United. We disagree.

It has long been the law in this state that only such debts as could be sued on in debt or indebitatus assumpsit can be subject to garnishment. Sloss v. Glaze, 231 Ala. 234, 164 So. 51 (1935). From the evidence presented in this case it does not appear that Kirkland’s commissions ever came under the control of United so that they could be sued upon in debt or indebitatus assump-sit for their recovery. The trial court did not err in finding that United never came into possession or control of the commissions so that they would be subject to garnishment.

THE PENSION BENEFITS

Appellant next contends that the trial court should have ordered United to pay into court the pension money when it became due to Kirkland. As was stated in Sloss v. Glaze, supra, the fund sought to be garnished must be due absolutely and without contingency.

In answer to interrogatories propounded by the appellant, United stated that Kirkland does have a pension plan with them, but stated that “the amounts to which he would be entitled would not be known until such time as he had a claim or was eligible for pension benefits.” It is undisputed that Kirkland has no present claim to the monies in the pension plan; therefore, this fund is a contingent fund, not an amount to which Kirkland presently has a claim, and is not subject to garnishment at the present time. The trial court correctly so held.

THE CASH BOND

The status of the cash bond is similar to that of the funds in the pension plan. The cash bond, and accrued interest, may be refunded to Kirkland in the future, but in order for the cash bond to be refunded, with interest, Kirkland must: (1) terminate employment with the company, after which the bond, less any indebtedness owed the company, is refundable; (2) complete ten years of service with the company; or (3) assume a non-agent, i. e. salaried, position with the company. Since Kirkland is still employed by United as an agent and has not yet completed ten years of service, the trial court correctly found that these amounts were not subject to garnishment.

DISMISSAL OF GARNISHMENT

Appellant finally contends that the garnishment should not have been dismissed, but that the trial court should have kept this case before the court until such time as United should come into possession or control of funds owing to Kirkland, or until one of the contingent liabilities becomes certain. We cannot agree.

A complaint which does not state a claim should be dismissed. A trial court’s docket cannot be the resting place for claims which may or may not ripen in the future.

The judgment of the trial court is due to be affirmed.

AFFIRMED.

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


author: PER CURIAM.

text:
    BLUE LANDS DEVELOPMENT, INC. v. James BROADUS; Laura Broadus; and Ellen Broadus Miller.
    No. 80-117.
    Supreme Court of Alabama.
    March 24, 1981.
    W. Borden Strickland of Strickland & Cunningham, Mobile, for appellant.
    Stephen R. Windom and Joseph P. Jones, Jr. of McDermott, Slepian, Windom & Reed, Mobile, for appellees.
   PER CURIAM.

The issue presented: Absent consent of a life tenant, can a cotenant (joint owner of a vested remainder interest in real property) maintain an action to partition or sell for partition pursuant to Code 1975, § 35-6-20, subject-to the existing life estate?

The trial court answered this question in the negative, dismissing the suit for partition or sale for division of the proceeds. We affirm on the authority of Chapman v. York, 208 Ala. 274, 94 So. 90 (1922). See, also, Bedsole v. Bedsole, 272 Ala. 589, 133 So.2d 237 (1961); and Michael v. Davis, 372 So.2d 304 (Ala.1979). For an excellent statement of the rule and its rationale, see 59 Am.Jur.2d Partition § 170 (1971).

AFFIRMED.

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


author: FAULKNER, Justice.

text:
    Ex parte Bradley CAPPS. (In re Civil Contempt Prosecution In the Circuit Court of Dallas County, Alabama, styled “State of Alabama, County of Dallas, and Grand Jury of Dallas County, Alabama. v. Bradley Capps, Dallas Bail Bond Company and Selma Bail Bond Company”).
    No. 79-562.
    Supreme Court of Alabama.
    March 26, 1981.
    Stanley B. Sikes of Sikes, Kelly, Edwards & Bryant, Selma, for petitioner.
    Charles A. Graddick, Atty. Gen., and Rosa G. Hamlett, Asst. Atty. Gen., for respondents.
   FAULKNER, Justice.

This case is here upon this Court’s granting a petition for writ of certiorari to the Court of Criminal Appeals because that Court denied a petition for writ of habeas corpus filed there on Friday, April 25, 1980. The Court scheduled a hearing on the petition for habeas corpus for Saturday, April 26, and on that day denied the petition. On Wednesday, April 30, Capps filed simultaneously in this Court a petition for habeas corpus and a petition for writ of certiorari to the Court of Criminal Appeals of Alabama. In May, this Court granted the petition for habeas corpus, and issued the writ. On September 17, this Court granted petitioner’s petition for writ of cer-tiorari to the Court of Criminal Appeals of Alabama.

The original petition for habeas corpus arose from these facts and circumstances. On March 4, 1980, Capps received a grand jury subpoena duces tecum commanding him to deliver certain of his bail bond company’s business records, including “receipt books, cash or otherwise.” Capps did, indeed, produce certain of the records to the District Attorney on March 12. The District Attorney held that they were incomplete, and totally failed to comply with the subpoena. On April 7, he filed a motion to show cause why Capps should not be held in contempt for not complying with the subpoena. A hearing was held on this motion on April 24 in Circuit Judge Norton’s court.

At the conclusion of the hearing, Judge Norton issued an oral order from the bench as follows:

That this subpoena was properly issued and the measure of damage in this case is the measure that applies in civil cases * * I think by a preponderance of the evidence that I have heard there has not been a compliance with the subpoena that was issued in this case. * * * [I]t is the order of the Court at this time that Mr. Capps be placed in the Dallas County Jail and remain there for an indeterminate period of time. * * * Mr. Capps leaves here with the keys in his pockets. When he complies with the requirements of that subpoena and when this Court is satisfied he has complied and in that manner purges himself of contempt, then he will be ordered released.

Following this order, and a written order to confine Capps for a time not to exceed six months, he filed his petition for habeas corpus in the Court of Criminal Appeals and in this Court. That Court denied the petition. We granted, and Capps after release on bail subsequently filed his petition for writ of certiorari to the Court of Criminal Appeals.

The first issue is this Court’s scope of review. In Ex parte NAACP, 265 Ala. 349, 91 So.2d 214 (1956), this Court held,

On the petition for certiorari the sole and only reviewable .order or decree is that which adjudges the petitioner to be in contempt. Certiorari cannot be made a substitute for an appeal or other method of review. Certiorari lies to review an order or judgment of contempt for the reason that there is no other method of review in such a case. Ex parte Dickens, 162 Ala. 272, 50 So. 218, 220. Review on certiorari is limited to those questions of law which go to the validity of the order or judgment of contempt, among which are the jurisdiction of the court,- its authority to make the decree or order, violation of which resulted in the judgment of contempt. It is only where the court lacked jurisdiction of the proceeding, or where on the face of it the order disobeyed was void, or where procedural requirements with respect to citation for contempt and the like were not observed, or where the fact of contempt is not sustained, that the order or judgment will be quashed.

The second, and principal, issue here is whether the “fact of contempt is not sustained.” Our review of the evidence is that the trial judge was justified in finding Capps in contempt of the grand jury by failing to comply with the subpoena.

The State presented evidence that showed that Capps did at least $22,000.00 of business during the period covered by the subpoena, yet he produced receipts of only $3,780.25. To the contrary, Capps testified at the hearing on the motion, and by affidavit, that he had given the grand jury all the records in his care, custody or control. After personally studying the documentary evidence, the judge concluded that Capps had not obeyed the subpoena, by failing to produce all receipts relating to his bail bond business.

In its final analysis, this case presents, principally, an evidentiary question. We agree with Capps when he states in brief that the inability of one to purge himself of contempt bars a jail confinement. But, proving inability is a defensive matter, the burden of which rests on the contemnor. Cf. Evans v. Evans, 264 Ala. 2, 84 So.2d 337 (1955). We opine that Capps could have offered more evidence in his behalf than just a statement effectively stating, “You have all the records that I can produce.” The discrepancy in the amounts of $22,000.00 receipts shown by the State, and $3,780.25 shown by Capps, apparently convinced the judge that there was more there than met the eye.

The decision of the Court of Appeals is affirmed.

AFFIRMED.

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