author: MADDOX, Justice.

text:
    SOUTHERN HAULERS, INC., et al. v. Glenn Allen MARTIN et al.
    78-411.
    Supreme Court of Alabama.
    Jan. 25, 1980.
    Rehearing Denied March 28, 1980.

      John W. Cooper of Cooper & Huey, Birmingham, Edward F. Morgan, Tuscaloosa, for appellants.
    Jack J. Hall of McDaniel, Hall, Parsons & Conerly, Birmingham, for appellees.
   MADDOX, Justice.

The facts of this case, briefly stated, are as follows: On February 24,1978, a tractor-trailer unit, owned by Southern Haulers, left the road and overturned. Southern Haulers, and other plaintiffs, sued the defendants, charging them with negligence in causing the tractor-trailer unit to leave the road. A jury returned a verdict for the defendants; the plaintiffs’ motion for a new trial was overruled.

Appellants raise the following issues:

(1) Whether the trial court erred in failing to impose sanctions against the defendants because of their failure to produce a transcript of a recorded statement of one of the defendants, Glenn Allen Martin;

(2) Whether the trial court erred in failing to require the defendants to produce the recorded statement of defendant Glenn Allen Martin, after Martin testified on cross-examination that the statement had been recorded, had been reduced to writing, and that he had read it and that it was then in the possession of his lawyer; and

(3)Whether the trial court correctly sustained objections to the admission in evidence of an admission of insurance coverage by defendant Martin, which was made by Martin at the time of the accident, when he made an admission of fault.

“Sanctions” under Rule 37, ARCP

The appellants contend that they made a motion for production of the statement made by the defendant Martin and that this statement was not produced and that they filed a motion for sanctions, as provided in Rule 37, ARCP, which was presented to the trial judge on October 23,1978, in his chambers in the presence of all the attorneys for the parties. Plaintiffs further contend that the trial judge overruled their motion for sanctions. Admittedly, no court reporter was present during this alleged meeting in the trial judge’s chambers. The plaintiffs made a motion to supplement the record on May 10, 1979, by requesting that a copy of the motion for sanctions allegedly filed by them on October 23, 1978, be sent to this Court. Plaintiffs later, on October 3, 1979, also filed a motion to correct the index and record pursuant to Rule 10(f), ARAP.

On September 25, 1979, the trial judge made the following findings of fact:

“After a complete review of the proceedings herein, the Court is unable to certify that a Motion for Sanctions was called to the attention of the Court. ARAP 10(f). The Court is able to certify that no Motion for Sanctions was filed, no hearing was held by the trial Court on a Motion for Sanctions, nor was any evidence taken or arguments heard on such motion. The records in the trial Court are completely devoid of any record of a Motion for Sanctions prior to the Motion for New Trial.”

As is readily apparent, the trial judge states unequivocally that the motion for sanctions was not made or ruled upon by him. It is not contained in the record.

It is settled that matters not disclosed by the record cannot be considered on appeal, and the record cannot be impeached by statements in briefs or by other evidence not appearing in the record. Coleman v. Estes, 281 Ala. 234, 201 So,2d 291 (Ala.1967).

The trial court did not err in refusing to impose sanctions.

The “work product’’ issue

During the trial, the attorney for the plaintiffs asked defendant Glenn Allen Martin if he had made a statement after the accident to anyone concerning what had happened. The record indicates the following:

BY MR. MORGAN:

Q And after this accident did you give a statement to anybody? Shortly thereafter concerning what happened?
A Yes, sir, I talked with someone over the telephone. I can’t remember exactly who it was, and they let me know that what I was saying was being recorded.
Q All right. Did you ever give a statement in writing?
A No, sir.
Q Do you know whether that statement over the telephone was reduced to writing?
A Yes, sir, it was.
Q Have you seen it?
A Yes, sir, I’ve looked at it.
Q Do you have it in Court with you?
A I don’t have it, no, sir.
Q Does your lawyer have it?
A Yes, sir.
Q We’d like to see it please.
MR. HALL: May we approach the Bench?
THE COURT: Yes, sir.
(Here followed a conference at the Bench between the Court and the attorneys, out of the hearing of the jury and off the record, after which the following occurred in the presence and hearing of the jury:)
MR. MORGAN: Did you get that, Betty? COURT REPORTER: Pardon? No. I wasn’t at the Bench.
MR. MORGAN: Did you object to the introduction? Did you object to the statement?
MR. HALL: Well, what do you think we were doing at the Bench?
MR. MORGAN: Well, I just wanted to get it on the record.
MR. HALL: Your Honor, may we approach the Bench, again?
THE COURT: Yes, sir. I’m still here. Betty, come up.
THE COURT: I did sustain the objection outside the presence of the jury.
MR. MORGAN: And we excepted, but we didn’t have it on the record.
THE COURT: Well, I could put it on the record without you doing it in front of the jury.
(The trial then resumed in the hearing and presence of the jury.)

In their brief, the appellants argue that they were entitled to see the statement Martin admitted he made and to have it produced at trial on the theory that the statement did not constitute the “work product” of the defense attorney. They contend that the “work product” privilege extends only to the “work product” of the lawyer in the course of his legal duties and not to evidence gathered by a third person who is neither legal counsel nor a party to the litigation.

The appellants state the general rule correctly, but after studying the record here, however, we cannot determine that the trial judge excluded the statement because of the “work product” rule. As indicated by the testimony, we do not have available to us the contents of the statement. Neither do we know who made the telephone call and recorded the statement and later transcribed it. It is a fundamental principle that the appellant has the burden of proving prejudicial error. The appellants have failed to meet this burden; consequently, we will not address the question of the admissibility of the statement. We affirm the trial court’s ruling, based on the record we have available to us in this case.

Mention of “insurance”

As to the third issue, the statement at trial relating to insurance coverage, the following occurred:

Q If you would, just tell us what you said and' what he said out of all that conversation.
A Well, when Mr. Martin got back to where I was at he asked me was I hurt, like I said, and I looked at him and said, “Naw”, you know, still shook up ’cause, you know, you go through something like that and then he said — we was talking and what was said, you know, the other stuff was immaterial, you know, but one thing he said to me was, he said, ‘I’m sorry I had to run you off the road, but I was fixing to go off in the — the left side of the road, because my trailer wheels— my trailer’s wheels was off the road and it, you know, a loaded truck with the trailer wheels in the grass will pull you gradually off the road.’ And he said that, ‘Don’t worry about it.’ He said ‘My insurance company — I’ve got insurance on it.’
“MR. HALL: Your Honor, I want to object to that and move to exclude that and tell the jury to disregard that statement.
“THE COURT: All right, sir. Sustained, excluded, and the jury will disregard it.”

Appellants contend that the admission regarding insurance was so intertwined with the admission of liability that the evidence should have been admitted.

In Smith v. Baggett, 218 Ala. 227,118 So. 283 (1928), this Court did say as follows:

“It is unquestionably well settled that proof that a defendant had indemnity insurance is not admissible as an independent fact, but we have had cases where it is when collateral to other material facts or so associated with or interwoven as to be inseparable that it becomes admissible and can only be eradicated or neutralized as bearing upon the defendant’s liability by a limitation upon the effect of such evidence. The plaintiff testified that defendant said, when approached about fixing the car:
“ ‘Let it stay over there and I’ll see the insurance man; send him over there to look at it and then he would have it moved off and have it fixed.’ ”

We determine here, however, that the statements concerning the cause of the accident in the statement regarding insurance coverage are not so interwoven as to be inseparable; thus, the trial judge did not err in sustaining the objection and excluding the evidence. The judgment is due to be affirmed.

AFFIRMED.

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


source: Caselaw Access Project

author: SHORES, Justice. SHORES, Justice.

license: Public Domain

text:
    Katharine Ross MERRELL, as Administratrix of the Estate of Richard G. Ross, deceased v. ALABAMA POWER COMPANY, a Corporation.
    78-709.
    Supreme Court of Alabama.
    Jan. 25, 1980.
    Rehearing Denied March 28, 1980.

      Joseph J. Boswell, Mobile, for appellant.
    James J. Duffy, Jr., and Carroll H. Sullivan of Inge, Twitty, Duffy & Prince, Mobile, Harold A. Bowron, Jr., and Steven F. Casey of Balch, Bingham, Baker, Hawthorne, Williams & Ward, Birmingham, for appellee.
   SHORES, Justice.

Plaintiff-Appellant Merrell, as Adminis-tratrix of the estate of Richard G. Ross, filed a wrongful death action against Alabama Power Company. Ross was piloting a small single engine airplane during inclement weather when he collided with a power line owned and maintained by the power company. The power line was located three nautical miles from the end of the runway at Bates Field in Mobile, within the area designated as the instrument approach zone. Ross died within a half hour of the collision. Merrell alleges that the power company negligently failed to mark the power line and to warn of the location and presence of the line. In her complaint, Merrell expressly disclaims any claim for punitive damages, and seeks to recover compensatory damages only. Two counts of the action are allegedly brought under Code 1975, § 6-5-410, Alabama’s wrongful death statute; one count is allegedly brought under the “common law of England as controlling and applicable in the State of Alabama.” The power company’s motion to dismiss the complaint was granted, and Merrell appealed.

On appeal, Merrell contends that:

This Court’s construction of our wrongful death statute as permitting recovery of only punitive damages is unconstitutional. It is against public policy as expressed in the common law of England to punish negligence. Even if such an interpretation was justified under the original wrongful death statute, which was entitled “An Act to Prevent Homicides,” and was indexed under “Criminal Law,” the legislature manifested its disapproval of this interpretation by making substantial changes in the act in the Code of 1886, and indexing it under “Proceedings in Civil Cases.” This Court should correct its previous erroneous judicial interpretations and construe the existing act to provide for the assessment and recovery of compensatory damages, and punitive damages if the negligent act or omission causing death constitutes malicious, willful, wanton or reckless conduct. Code 1975, § 6-5-410, should be construed to be a statute which provides for both loss to survivors and loss to the estate. English and Alabama cases holding that no cause of action for wrongful death existed at common law are in error. This Court should allow a decedent’s personal representative to recover for the injured person’s own personal injuries and expenses incurred, which recovery should be subject to the payment of the debts and liabilities of the decedent, and allow the survivors to recover for their own benefit their loss and damages sustained as a result of the negligent act causing death.

We affirm. More than one hundred years ago, this Court held that the wrongful death statute as passed by the Alabama legislature in 1872 allowed the recovery of punitive damages only. In Savannah & Memphis Railroad Co. v. Shearer, Adm’x, 58 Ala. 672 (1877), the Court stated:

“Lacerated feelings of surviving relations, and mere capacity of deceased to make money if permitted to live, do not constitute the measure of recovery under the act of Feb. 5, 1872. Prevention of homicide is the purpose of the statute, and this it proposes to accomplish by such pecuniary mulct as the jury ‘deem just.’ The damages are punitive, and they are none the less so, in consequence of the direction the statute gives to the damages when recovered. They are assessed against the railroad ‘to prevent homicides.’ ”

Later that same year, the Court stated in The South and North Alabama Railroad Company v. Sullivan, Adm’r, 59 Ala. 272 (1877):

“Commenting on the act ‘to prevent homicides,’ of February 5, 1872, Pamph. Acts 83, we, in Savannah and Memphis Railroad Company v. Shearer, said, in effect, that the purpose and result of the suit therein provided were not a mere solatium to the wounded feelings of surviving relations, nor compensation for the lost earnings of the slain. We think the statute has. a wider aim and scope. It is punitive in its purposes. Punitive of the person or corporation by which the wrong is done, to stimulate diligence and to check violence, in order thereby to give greater security to human life; ‘to prevent homicides.’ And it is none the less punitive because of the direction the statute gives to the damages recovered. The damages, ’tis true, go to the estate of the party slain, and, in effect, are compensatory; but this does not change the great purpose of the statute — ‘to prevent homicides.’ Preservation of life — prevention of its destruction by the wrongful acts or omission of another, — is the subject of the statute; and all its provisions are but machinery for carrying it into effect.
“ . . . The statute creates the right — a right unknown to the common law — and provides a remedy. No other remedy can be pursued.”

In Richmond and Danville Railroad Company v. Freeman, 97 Ala. 289, 11 So. 800 (1892), the Court’s interpretation of the act of 1872 was challenged. There the plaintiff, as in this case, urged the Court to reconsider its holdings that only punitive damages were recoverable under the statute. In rejecting that argument, the Court, speaking through Justice McClellan, said:

“The objection taken on constitutional grounds to the statute as it has been construed by this court seemed to us to be without merit. It is as clearly within legislative competency, of course, to punish negligence as it is to punish wantonness, willfulness or intentional wrong doing. It is not controverted at all that the common-law doctrine by which the imposition of punishment through a recovery at the suit of an individual of exemplary damages for wanton, willful or intentional misconduct is allowed, is well within organic limitations; and we conceive no basis for the distinction between the power to punish in this way for negligence and such power in respect of wantonness and the like when brought to the touch of constitutional guarantee intended to secure to the citizen certain rights as to the proceedings necessary to his arrest, arraignment, conviction and punishment for a violation of criminal law.
“The act of 1872 having been, without modification in any material sense, twice re-enacted since the judicial construction we have been considering was put upon it — in the Code 1876 and again in the Code 1886 — and being with that construction a constitutional exercise of the legislative power, it is now to be considered as if the terms and provisions, which have been evolved out of it and declared in concrete form by judicial interpretation, were expressly embodied in its letter. This, we think, should close the door to the overruling of the cases which put that construction on it, and to the adoption of a different one. This is the consideration which mainly moves the writer to a reaffirmation of the doctrine — declared in the cases of Shearer, Sullivan and King, [.Railroad Co. v. King, 81 Ala. 177, 2 So. 152] supra; the question, in his opinion, is no longer an open one. If it were, he should be much inclined to the view so ably urged by counsel, that the statute was primarily intended to afford compensation to the next of kin of a person coming to his death through the wrong of another, and to allow the imposition of punitive damages only in those cases where they would have been recoverable had the injury fallen short of death. He is disposed to think that a too far reaching influence was accorded to the title of the act; and if this case were here upon first impression, he would be strongly inclined to rule that the legislative intent was to prevent homicides by giving an action for fatal injuries as to which no right of action existed before where the next of kin of the slain were in fact losers by his death, the recovery to be tolled by their loss unless the circumstances of the wrongful act warranted the imposition of additional damages as a punishment under well-established common-law principles. It is manifest that this construction would conserve the expressed legislative purpose, ‘to prevent homicides,’ since it attached a new and previously non-existing liability to all wrongful acts producing death; would be more in harmony with general legal theories and precedents, and give [what] the writer conceives to be, a more reasonable field for the operation of the limitation of the right of action to cases in which the deceased might have recovered had the injury not been fatal. It would seem too, that this view should find some support in the provision giving direction to the sum recovered; and certainly it is strongly supported by that clause of the statute which provides that ‘the action shall not abate by the death of the defendant but may be revived against his personal re-presesentatives [sic],’ since in such case, there could be no punishment of the wrong doer but only of wholly innocent successors to his estate; and the whole policy of our laws, as of every civilized system of jurisprudence, is utterly at war with the idea of vicarious punishment, while the policy of enforcing compensation for wrongs done out of the estate of a deceased wrong doer is not opposed to any abstract notion of justice or to the practices of any theory of government. But be all that as it may, the legislature had the power to enact a law such as this one is with the construction this court has given it. They have in effect done so here by the re-enactment of this statute after its construction; and it now only remains for the courts to enforce it as thus constructed and re-enacted.” (97 Ala. at 295-297, 11 So. 802-803.)

After so many years, we cannot improve on the language or reasoning of Justice McClellan. We, as the Court did in 1892, fail to find any constitutional infirmity in the death statute as written by the legislature and construed by this Court. The judgment appealed from is affirmed.

AFFIRMED.

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

ON APPLICATION FOR REHEARING

SHORES, Justice.

In brief in support of her application for rehearing the appellant says:

Merrell now for the first time contends in her application for rehearing that the Alabama wrongful death statute is unconstitutional for being in violation of the guarantee to the citizens of each state of the United States in the 14th Amendment to the Constitution of the United States of America which provides in substance that no state shall deprive any person of property without due process of law nor deny any person within its jurisdiction the equal protection of the laws.

The appellant candidly admits that she did not attack the constitutionality of the wrongful death statute in the trial court nor in this Court on original submission, and acknowledges that as a general rule, this Court will not decide the constitutionality of a state statute when the issue is raised for the first time in the appellate court. Riley v. Smyer, 265 Ala. 475, 91 So .2d 820 (1957). She simply asks us to make an exception to that.rule in this case. We decline to do so. The rule is an ancient one, founded on sound reasoning. Cooper v. Green, 359 So.2d 377 (Ala.1978).

OPINION EXTENDED; APPLICATION FOR REHEARING OVERRULED.

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


author: PER CURIAM. TORBERT, Chief Justice PER CURIAM.

text:
    Ex parte Waring Inge HOLT. In re Waring Inge HOLT v. The FIRST NATIONAL BANK OF MOBILE, a Corporation, as Executor of the Will of Sloss Whitaker Inge. Ex parte Waring Inge HOLT and Ellen Inge Trimble. In re Waring Inge HOLT and Ellen Inge Trimble v. FIRST NATIONAL BANK OF MOBILE, a Corporation, as Executor of the Will of Sloss Whitaker Inge.
    79-25, 79-26.
    Supreme Court of Alabama.
    Feb. 1, 1980.
    Rehearing Denied April 4, 1980.
    W. Dewitt Reams, of Pillans, Reams, Tappan, Wood, Roberts & Vollmer, Mobile, for petitioners.
    James J. Duffy, Jr. and Carroll H. Sullivan, of Inge, Twitty, Duffy & Prince, Mobile, for respondent.
   PER CURIAM.

These suits were commenced on April 1, 1976, with the filing of complaints in the Circuit Court of Mobile County, Alabama. On April 8, 1976, the defendant filed its motion to dismiss the complaint in the Holt case and on April 22, 1976, filed its motion to dismiss the complaint in the Holt and Trimble case, assigning as grounds in each action the failure to state a claim upon which relief could be granted. Thereafter, the motions to dismiss, in each case, came on for hearing and were argued in open court after which, on May 14,1976, the trial court entered an order and judgment of dismissal in both cases and further taxed court costs against the plaintiffs. On June 4, 1976, more than ten (10) days after the entry of the orders and judgments of dismissal, the plaintiffs filed and served amendments to their original complaints in these actions. Subsequent to this, on June 8, 1976, the defendant filed motions to dismiss the complaint, as amended, in both cases. On June 11, 1976, plaintiffs filed motions in both cases to set aside the orders and judgments of dismissal and further sought leave to amend their original complaints. These motions to set aside the orders and judgments of dismissal, filed June 11,1976, remained pending in the trial court for a period of time well in excess of ninety (90) days, and, on October 24, 1978, the trial court entered a formal order denying the plaintiffs’ motions. On November 30, 1978, the plaintiffs took an appeal in both cases from the order denying their motions to set aside the orders and judgments of dismissal.

On May 11,1979, the Court in the case of Holt v. First National Bank oí Mobile, 372 So.2d 3 (Ala.1979), dismissed these two appeals as having been untimely filed, and held that such motions:

“ . '. . must be treated as Rule 59(e), ARCP, motions. 3 Moore's Federal Practice, ¶¶ 15.07[2], 15.10 (1978). See also, Papastefan v. B & L Construction Co., Inc. of Mobile, 356 So.2d 158 (Ala.1978); As such, they were automatically denied ninety days after filing. Rule 59.1, ARCP. Since the motions were filed on 11 June 1976, they were effectively denied on 9 September 1976. Appellants failed to give notice of appeal within forty-two days thereafter.
“We are, therefore, compelled to dismiss these appeals.”

Subsequent to the dismissal of these appeals, the plaintiffs sought a ruling on the defendant’s motion to dismiss the complaints as amended.

The trial court, on September 7, 1979, entered an order to the effect that it “has no jurisdiction to entertain the request of the plaintiffs to enter a ruling on the defendant’s motions to dismiss, filed June 8, 1976, directed to the amended complaint. The court is further of the opinion that said motion to dismiss is MOOT.”

The plaintiffs filed these petitions for writ of mandamus.

Although the defendant-respondent concedes that its motions to dismiss the plaintiffs’ amended complaints have never been ruled on, it contends that a ruling is unnecessary because the plaintiffs neither sought nor obtained the court’s leave to amend their complaints after the original complaints were dismissed and, further, that inasmuch as the amendments were filed more than ten (10) days after the motions to dismiss were granted, leave of court is necessary under ARCP 78.

■ ARCP 15 was amended on June 17, 1975, to eliminate the requirement that a party obtain leave of court to amend. As amended, the rule reads: “Otherwise a party may amend his pleading without leave of court but subject to disallowance on the court’s own motion or motion to strike of an adverse party; but such amendments shall be freely allowed when justice so requires.”

ARCP 78 has remained unchanged since the adoption of the Alabama Rules of Civil Procedure and provides: “Unless the court orders otherwise, an order granting a motion to dismiss shall be deemed to permit an automatic right of amendment of the pleading to which the motion is directed within ten days from service of the order.”

The purpose of this rule was obvious as long as ARCP 15 required leave of court to file amendments. ARCP 78 eliminated that requirement when a motion to dismiss had been granted. Now that ARCP 15 has been amended, the purpose of ARCP 78 has largely been served. However, we think the spirit of the rules is best served in this case by holding that inasmuch as the defendant did not file a motion to strike the amended complaints as coming too late under ARCP 78 and without leave of court, that such objection is waived and the plaintiffs are entitled to a ruling on the motions to dismiss the complaints as amended.

Rule 1 admonishes that all the rules “shall be construed to secure the just, speedy and inexpensive determination of every action.” Here, the plaintiffs have not had a ruling on their amended complaints which have been challenged as failing to state a claim upon which relief may be granted. They are entitled to know whether their amended complaints meet that challenge.

The petitions for writs of mandamus are granted.

GRANTED.

JONES, SHORES and BEATTY, JJ., concur.

TORBERT, C. J., and MADDOX, J., concur specially.

TORBERT, Chief Justice

(concurring specially).

Because of the unusual circumstances of these cases, I agree that the plaintiffs are entitled to have the trial court rule upon the legal sufficiency of their amended complaints. By concurring specially, I reserve the question generally whether a plaintiff, without leave of court, may amend a complaint dismissed on motion more than ten days after the service of the order of dismissal. See Rule 78, ARCP.

The trial judge ruled promptly on defendant’s Rule 12(b)(6) motion that plaintiffs’ original complaints fail to state a claim upon which relief could be granted (May 14, 1976). However, it appears from the record that the trial judge, for reasons unknown, delayed further action for more than two years after plaintiffs filed amended complaints (June 4, 1976), defendants filed a motion to dismiss the amended complaints (June 8, 1976), and plaintiffs filed their motion to set aside the previous order of dismissal and/or leave to amend their complaints (June 11, 1976). Although plaintiffs’ motion to set aside the previous dismissal and/or leave to amend their complaints was submitted to the trial court on June 25,1976, and again on July 12, 1977, it was not until October 24, 1978, that the court entered an order denying plaintiffs’ motion to set aside and/or leave to amend the complaints.

Although the trial judge ultimately denied plaintiffs’ motion to set aside the previous dismissal and for leave to amend, and plaintiffs subsequently appealed to this Court, these appeals were dismissed as untimely filed due to the application of our Rule 59.1, ARCP. See Holt v. First National Bank of Mobile, 372 So.2d 3 (Ala.1979). Thus, this Court never reached the merits as to the legal sufficiency of plaintiffs’ complaint.

Under the clear intent and spirit of our rules of procedure (Rule 1, ARCP), the trial court should have timely disposed of the parties’ subsequent motions and pleadings. The merits of the legal sufficiency of plaintiffs’ original complaints cannot now be reviewed by this Court, and plaintiffs’ amended complaints have yet to be reviewed by any court, almost four years after the plaintiffs filed their actions. Under any concept of court procedure, the issue as to the legal sufficiency of plaintiffs’ complaints should have been decided long before now.

MADDOX, J., concurs.

ON APPLICATION FOR REHEARING

PER CURIAM.

On re-examination, the Court is of the opinion that the appeals in Holt v. First National Bank of Mobile, 372 So.2d 3 (Ala. 1979), were properly dismissed, but that the dismissals should have been based upon the appellants’ failure to comply with ARCP 54(b) instead of having been based upon ARCP 59(e) and 59.1.

Therefore, the Court adheres to the original opinion and denies the application for rehearing.

OPINION EXTENDED; APPLICATION FOR REHEARING OVERRULED.

All the Justices concur except BLOOD-WORTH, J., not sitting.


author: TORBERT, Chief Justice. FAULKNER, Justice

text:
    ALABAMA EDUCATION ASSOCIATION et al. v. Claude H. GRAYSON et al.
    No. 78-232.
    Supreme Court of Alabama.
    Feb. 8, 1980.
    Rehearing Denied April 4, 1980.

      Truman M. Hobbs and Robert D. Segall of Hobbs, Copeland, Franco & Screws, Montgomery, for appellants.
    James R. Seale of Capell, Howard, Knabe & Cobbs, Montgomery, for intervening defendants.
   TORBERT, Chief Justice.

This is an appeal from the judgment of the Circuit Court of Montgomery County upholding the constitutionality of Act No. 594, Acts of Alabama, 1977, under challenges alleging that the Act violates §§ 45 and 100 of the Constitution of Alabama of 1901. We affirm.

The title and pertinent portions of that Act provide:

To allow individual taxpayers as a state income tax deduction for the taxable year an amount equal to the aggregate of the net operating loss carryover to such year, plus the net operating loss carrybacks to such year.

Title, Act No. 594, Acts of Alabama, 1977.

(A) A net operating loss for any taxable year ending after December 31, 1974, and before January, 1976, shall be a net operating loss carryback to the tax year preceding the taxable year of such loss. A net operating loss for any taxable year ending after December 31, 1975, and before January 1, 1977, shall be a net operating loss carryback to each of the two taxable years preceding the taxable year of such loss. A net operating loss for any taxable year ending after December 31, 1976, shall be a net operating loss carry-back to each of the three taxable years preceding the taxable year of such loss.
(B) A net operating loss for any taxable year ending after December 31, 1976, shall be a net operating loss carryover to each of the five (5) taxable years following the taxable year of such loss.

Act No. 594, Acts of Alabama, 1977, § 1(b)(1)(A) and (B).

(2) Amount of Carrybacks and Carryovers. — The entire amount of the net operating loss for any taxable year (hereinafter referred to as the “loss year”), shall be carried to the earliest of the taxable years to which (by reason of paragraph (1)) such loss may be carried. The portion of such loss which shall be carried to each of the other taxable years shall be the excess, if any, of the amount of such loss over the sum of the taxable income for each of the prior taxable years to which such loss may be carried.

Act No. 594, Acts of Alabama, 1977, § 1(b)(2).

ISSUE NUMBER I

Whether the Act is unconstitutional under § 100 of the Constitution of Alabama of 1901 because the Act operates to release a fixed obligation.

The Constitution of Alabama of 1901, provides in Art. IV at § 100:

No obligation or liability of any person, association, or corporation held or owned by this state, or by any county or other municipality thereof, shall ever be remitted, released, or postponed, or in any way diminished, by the legislature; nor shall such liability or obligation be extinguished except by payment thereof; nor shall such liability or obligation be exchanged or transferred except upon payment of its face value; provided, that this section shall not prevent the legislature from providing by general law for the compromise of doubtful claims.

Constitution of Alabama of 1901, Art. IV, § 100.

The appellant argues that the three-year carryback provisions of the Act operate to release an obligation. It is clear that § 100 of the Constitution has no application to conditional obligations, but proscribes only the release of fixed obligations.

We do not think that section 100 of the Constitution prevents such relief. Whatever liability to the State existed after October 20 for the penalty it was subject to the condition that it might be made ineffectual by virtue of the very statute' which created it. It was a conditional liability, and this appeal is to try the question of the existence of the condition therein provided. Section 100 of the Constitution does not serve to make a liability absolute when by its creation it is conditional.

State v. Louis Pizitz Dry Goods Co., 243 Ala. 629, 635, 11 So.2d 342, 347-348 (1943) (emphasis added).

Thus, the resolution of Issue Number I turns on when the tax obligation becomes fixed. In Union Bank and Trust Co. v. Phelps, 228 Ala. 236, 153 So. 644 (1934), this Court held:

We think it may be affirmed as the result of the foregoing, and a large preponderance of authorities, that taxes levied and assessed become a legal liability on the tax-payer, that may be enforced by an action at common law, unless the statute gives a remedy that is, in its nature, exclusive. But it is probably enough in this case to maintain the proposition, that levy and assessment of taxes create a legal liability on the tax-payer to pay. [Italics omitted.]
We hold, therefore, that taxes accrued to the state are an obligation or liability of the taxpayer, within the meaning and purview of section 100 of the Constitution of Alabama, and, as such, cannot be remitted, released, or postponed, or in any way diminished by the Legislature, nor can such an obligation or liability be extinguished except by payment.

228 Ala. at 238, 153 So. at 646 (emphasis added).

That same holding, that the income tax obligation becomes fixed when assessed, was reiterated by this Court in State v. Woodroff, 253 Ala. 620 at 631, 46 So.2d 553, 563 (1950), in the following language: “The final assessment not appealed from is as conclusive as the judgment of an ordinary court.”

It is the levy and assessment of the tax which create a fixed legal liability on the taxpayer and not the conditional self-assessed tax return filed annually by taxpayers. This position is supported by the manner in which our Code defines “assessment.”

The income tax provided for in this chapter shall be assessed and fixed as hereinafter provided by the department of revenue and upon blanks in the form to be prescribed by the department of revenue. The amount shown to be due by the taxpayer’s return shall constitute and create a prima facie liability for such amount on which taxes shall be paid as herein provided. “Assessment ” or “assessed” herein used shall refer to and mean the final determination of the amount found to be due by the department of revenue.

Code 1975, § 40-18-40 (emphasis added).

Section 40-18-40 provides that the taxpayer’s return is conditional and it is the Department of Revenue that makes the final assessment.

Where the Department of Revenue determines that the amount due is different from that shown by the taxpayer’s return, notice of such different amount shall be given to the taxpayer by certified or registered mail, return receipt requested, giving the taxpayer notice of the amount so fixed, and the department of revenue shall fix a day, not less than 15 days from date of such notice, for hearing any protest of a taxpayer. Upon hearing such protest or if the taxpayer fails to appear on the day set the department of revenue shall finally fix, determine and assess the amount of tax due and notify the taxpayer thereof by certified or registered mail.

Code, 1975 § 40-18-40.

The 1975 Code also provides that each return filed by the taxpayer is not finally fixed or assessed but remains “open” or contingent for a period of three years,

(a) General rule. — The amount of income taxes imposed by this title shall be assessed within three years after the return was filed, and no proceedings in court, without assessment, for the collection of such taxes shall be begun after the expiration of such period; provided, that the state department of revenue may, at any time within five years from the date of the filing of an income tax return with the State of Alabama, assess and institute proceedings for the collection of the income taxes so imposed, if the taxpayer omits from the gross income reported on said tax return, as defined in section 40-18-14, an amount which is in excess of 25 percent of the amount of gross income so reported in said return.

Code 1975, § 40-18-45(a) (emphasis added).

Thus, the three-year carryback provision (which has long been a part of the federal income tax law) does not diminish an obligation of the taxpayer because that obligation does not become fixed until three years have expired after the filing of the initial return, or within the three-year period, the tax obligation is finally assessed by the Department of Revenue.

Our resolution of Issue Number I is supported by the fact that Amendment No. 25 to the. Alabama Constitution, ratified 30 years after the adoption of the 1901 Constitution (including § 100 thereof), gives the Legislature plenary power “to designate what income is to be taxed and affix the rates of taxes.”

The legislature shall have the power to levy and collect taxes for state purposes on net incomes from whatever source derived within this state, including the incomes derived from salaries, fees and compensation paid from the state, county, municipality, and any agency or creature thereof, for the calendar year, 1933, and thereafter and to designate and define the incomes to be taxed and to fix the rates of taxes, provided that the rate shall not exceed 5 percent nor 3 percent on corporations.

Constitution of Alabama of 1901, Amendment No. 25 (emphasis added).

We held in State v. Weil, 232 Ala. 578, 168 So. 679 (1936), that Amendment No. 25 was intended to enlarge the powers of the legislature in regard to tax matters. Thus, the legislature has the power to re-define income. By .adopting Act No. 594 the legislature has provided that in determining what obligation or tax the taxpayer owed, one must take account of the loss carryback provisions. Thus, the prohibition of § 100 against releasing obligations does not come into play until the amount of the obligation is finally determined. The legislature, exercising its plenary power to define “tax,” has required that in determining the amount of the obligation due, we must take into account the loss carryback provisions of Act 594, Acts of Alabama, 1977.

We. hold that the tax obligation does not become fixed until the assessment thereof by the Department of Revenue or the expiration of three years after the tax return was filed, and therefore Act No. 594, Acts of Alabama, 1977, does not violate § 100 of the 1901 Alabama Constitution by remitting, releasing or diminishing an obligation. We also hold that the legislature was accorded the plenary power to define the obligation or tax due by Amendment 25, and that definition, without violating § 100, may include loss carryback provisions.

ISSUE NUMBER II

Several issues presented by appellant challenge the constitutionality of Act No. 594, Acts of Alabama, 1977, under § 45 of the Alabama Constitution of 1901. Those issues are dealt with here in a consolidated fashion:

Whether the Act is unconstitutional under § 45 of the Alabama Constitution of 1901 because the title to the Act is deceptive in that it fails to disclose the retroactive features of the Act, whether the act itself violates § 45 in its entirety, and whether § 45 is violated because of the lack of an accurate synopsis and fiscal note on the Act.

The Alabama Constitution of 1901 provides in Article IV at § 45:

The style of the laws of this state shall be: “Be it enacted by the legislature of Alabama,” which need not be repeated, but the act shall be divided into sections for convenience, according to substance, and the sections designated merely by figures. Each law shall contain but one subject, which shall be clearly expressed in its title, except general appropriation bills, general revenue bills, and bills adopting a code, digest, or revision of statutes; and no law shall be revived, amended, or the provisions thereof extended or conferred, by reference to its title only; but so much thereof as is revived, amended, extended, or conferred, shall be re-enacted and published at length.

Alabama Constitution of 1901, Art. IV, § 45 (emphasis added).

This Court has interpreted § 45 as imposing the requirement that where an act is intended to have retroactive application, the title of the act must “fairly and reasonably indicate] that the act is retrospective.” Lindsay v. United States Savings and Loan Association, 120 Ala. 156, 24 So. 171 (1897); See Gayle v. Edwards, 261 Ala. 84, 72 So.2d 848 (1954). The purpose of § 45 is to prevent fraud upon the legislature and the people of this state, and the test for whether a statute violates § 45 gives effect to those purposes. The question to be addressed in determining the constitutionality of an act under § 45 is: Whether the title of the act “is so misleading and uncertain that the average legislator or person reading the same would not be informed of the purpose of the enactment.” Pillans v. Hancock, 203 Ala. 570, 84 So. 757 (1919); Opinion of The Justices, 294 Ala. 571, 319 So.2d 699 (1975).

To the extent that the three-year carryback provision has retrospective application to the conditional income tax obligation, we hold that the retroactive feature of the Act is fairly and reasonably indicated in the title of the Act by the word “carry-back.” The connotation of the word “carry-back” should be familiar to those with a passing acquaintance with the field of taxation. Loss carrybacks for financial institutions have been authorized since 1955. Act No. 568, Acts of Alabama, 1955 (now Code 1975, § 40 — 16—l(2)k). The early version of § 172 of the Internal Revenue Code of 1954, which authorizes loss carrybacks, has been part of the federal income tax law since 1918. Applying the test enunciated above to the title of Act 594, we hold that the word “carryback,” which has long been part of our tax system, is sufficient to indicate any retrospective application of the Act, and the title is not so misleading and uncertain that the average legislator or person reading the same would not be informed of the purpose of the enactment.

Finally, appellant challenges the constitutionality of the Act based upon violation of the House and Senate Rules, lack of an accurate synopsis or fiscal note. The Rules of the House of Representatives and Senate of the State of Alabama are not a part of the Constitution of Alabama of 1901 and thus do not furnish a basis upon which to challenge the constitutionality of Act 594, Acts of Alabama, 1977.

AFFIRMED.

MADDOX, ALMON, SHORES and BEATTY, JJ., concur.

FAULKNER, J., with whom BLOOD-WORTH, JONES and EMBRY, JJ., join, dissents.

FAULKNER, Justice

(dissenting).

This is an appeal from a judgment of the Circuit Court of Montgomery County declaring Act No. 594, Acts of Alabama, 1977, to be constitutional under the Constitution of Alabama, 1901. The majority affirms. I would reverse and render.

Act No. 594 was enacted by the legislature apparently as an attempt to permit Alabama taxpayers to carry forward and carry back business net operating losses, for state income tax purposes, much in the same manner as those losses are carried back and forward for federal income tax purposes.

The pertinent parts of the Act relevant to .this appeal are the title, and §§ 1(b)(1)(A) and (B), and 1(b)(2). The title to the Act reads:

“To allow individual taxpayers as a state income tax deduction for the taxable year an amount equal to the aggregate of the net operating loss carryover to such year, plus the net operating loss carrybacks to such year.”
Section 1(b)(1)(A) and (B) read:
“(A) A net operating loss for any taxable year ending after December 31, 1974, and before January, 1976, shall be a net operating loss carryback to the tax year preceding the taxable year of such loss. A net operating loss for any taxable year ending after December 31, 1975, and before January 1, 1977, shall be a net operating loss carryback to each of the two taxable years preceding thé taxable year of such loss. A net operating loss for any taxable year ending after December 31, 1976, shall be a net operating loss carry-back to each of the three taxable years preceding the taxable year of such loss.
“(B) A net operating loss for any taxable year ending after December 31, 1976, shall be a net operating loss carryover to each of the five (5) taxable years following the taxable year of such loss.” Section 1(b)(2) reads:
“Amount of Carrybacks and Carryovers — The entire amount of the net operating loss for any taxable year (hereinafter referred to as the ‘loss year’), shall be carried to the earliest of the taxable years to which (by reason of paragraph (1)) such loss may be carried. The portion of such loss which shall be carried to each of the other taxable years shall be the excess, if any, of the amount of such loss over the sum of the taxable income for each of the prior taxable years to which such loss may be carried. For purposes of the preceding sentence, the taxable income for any such prior taxable year shall be computed . . . .”

The appellants contend, and I agree, that § 45 of the Constitution of Alabama, 1901, is violated. I cannot agree with the majority’s reasoning on this issue. There is no provision in the title clearly indicating that the Act is retrospective. Thus, the Act violates § 45 of the Constitution and is void. In Lindsay v. United States Savings & Loan Association, 120 Ala. 156, 24 So. 171 (1897), this Court, speaking through Mr. Chief Justice Brickell, stated:

“But, when it is proposed by an act like the present to deal with existing contracts and liabilities, there should be in the title some expression of that intention, — some indication that such is the intent, — or the purposes of the constitutional requirement are not satisfied. The law-making body, and the community at large, recognize and repose with confidence upon the idea that prospective laws — the future, and not the past — are the ordinary, usual field and scope of legislation. If there are no words in the title fairly, reasonably indicating that the act is retrospective, — that it is exceptional, — ‘surprise or fraud upon the legislature’ cannot be prevented. Nor will the people be apprised, through such publication of legislative proceedings as is usually made, of the subjects of legislation that are being considered, affording them opportunity of being heard thereon, if they desire, by petition or otherwise. The usual publication of the subjects of legislative consideration, during the sitting of the general assembly, is an announcement of the titles of bills introduced, or memoranda of other matters, generally brief. It is to this publication the community at large look for information, and to the great body of the people it is the only accessible source of information. Let the title be read, and what words employed will indicate, fairly and reasonably construed, that retrospective legislation is embodied in the act, — that it was intended to cure or heal the infirmities of the past transactions of these associations? It would defeat all the purposes of the requirement of the constitution, that the ‘subject shall be expressed in the title.’ We are not sitting in judgment to control the legislature in respect to the form or mode in which titles of enactments shall be expressed. Much must be left to the legislative discretion, with which there cannot be judicial interference. But, if a title does not fairly and reasonably express the subject of the act, — if it be misleading and deceptive,— the constitution compels its condemnation, and such, in our judgment, is the character of this title, in so far as the past transactions of the associations are attempted to be legalized.”

This language was approved by this Court in Gayle v. Edwards, 261 Ala. 84, 72 So.2d 848 (1954). There the Court held that the “retroactive feature of the act is not clearly expressed in the title, or even suggested,” and declared the subject unconstitutional and void.

Next, construing § 1(b)(1)(A) and (B), I opine that the act is unconstitutional because of its vagueness and uncertainty. Nothing in the Act indicates that net operating losses are restricted to business net operating losses. If the Act is to have a field of operation as the federal tax statutes have, then only business net operating losses can be carried back or forward. Assuming that “operating” refers to business losses, the statute’s definition of “net operating loss” is even more vague. Section 1(c) provides that “net operating loss” means the excess of the deductions allowed in computing the Alabama income by this section over the gross income in Alabama. There is nothing to indicate that “deductions” refers to business deductions. For aught that appears a salaried individual taxpayer having only salary income, and having deductible medical expenses in excess of his salary could carry back or forward his “loss.”

It is, indeed, regrettable that the majority opinion does not speak to the question of the type of net operating loss that will be allowed by the Income Tax Division of the State Revenue Department — business or non-business losses, or both. Since the majority has rewritten the statute so as to have it mean what they want it to mean, the least that they could do is to inform the Revenue Department what “losses” can be carried forward or backward, when auditing a taxpayer’s tax return.

Because my position is that I would reverse on the grounds already stated, I would pretermit discussing § 100, Constitution 1901.

BLOODWORTH, JONES and EMBRY, JJ., concur.


author: PER CURIAM.

text:
    Huey R. LEE, Jr. v. Charles McDowell LEE.
    No. 78-575.
    Supreme Court of Alabama.
    Feb. 22, 1980.
    Rehearing Denied April 11, 1980.
    Bert W. Rice, Atmore, for appellant.
    Richard C. Belser and John M. Bolton, III of Robison & Belser, Montgomery, for ap-pellee.
   PER CURIAM.

Plaintiff Huey Lee appeals from an adverse final judgment in a declaratory judgment action filed by him against defendant Charles McDowell Lee which sought a declaration of Huey’s rights under the last will and testament of his grandmother. We affirm.

Issue

Whether repeal of the civil death statute in 1965 can be applied retroactively so as to divest an interest which vested in 1948 pursuant to law extant at that time?

Facts

The plaintiff Huey R. Lee, Jr. (Huey) and the defendant Charles McDowell Lee (Charles) are brothers. Their mother was Janet McDowell Lee (Janet) and their grandmother was Annie T. Lee (Annie). This action arose from a dispute over the disposition of certain real property devised by their grandmother, Annie, in her will.

On or about the 27th or 28th day of October 1943, Huey was tried and convicted of first degree murder; thereafter, he was sentenced to life imprisonment. On 21 August 1944, Huey and Charles’ grandmother executed her last will and testament and, following her death, that will was admitted to probate on 10 August 1948. The grandmother, in paragraph six of her will, devised a life estate in certain real property to Janet; the remainder to be divided between Huey and Charles. Paragraph seven of that same will provided in part that all the property devised and bequeathed to Huey would go to Janet for life with the remainder to ’Charles in the event Huey predeceased either the testatrix or Charles.

Janet died on 15 January 1977, and subsequent to her death Huey filed suit in the Barbour County Circuit Court seeking a declaration of his rights under the last will and testament of his grandmother. (It appears from the record that at the time of filing his action, Huey had enjoyed the status of a parolee for approximately one year or more.) Charles filed a motion to dismiss stating, among other theories, that plaintiff lacks capacity to sue because he was found guilty of murder on 27 October 1943 and thereafter sentenced to life imprisonment; therefore, he is regarded as civilly dead according to the provisions of Tit. 61, § 3, Code of Ala., 1940, as Recompiled 1958, which was in effect until repealed in 1965 by Act No. 272, Acts of Alabama (First Spec.Sess. 5 May 1965). Title 61, § 3, reads as follows:

“§ 3. Effect of sentence of imprisonment for life. — A convict sentenced to imprisonment for life is regarded as civilly dead, but may, nevertheless, at any time within six months after his sentence, make and publish his last will and testament.”

The merits were argued and evidence was taken in a hearing before the trial court without a jury. The trial court converted Charles’ motion to dismiss into a motion for summary judgment and entered summary judgment in his favor.

Decision

Huey contends that any lack of capacity to maintain his action in 1977 was removed with the repeal of the civil death statute in 1965 because incapacity is a matter of defense to be determined at the time the action is filed. Charles counters this with the contention that repeal of the civil death statute cannot be applied retroactively to divest an interest that vested in 1948. We agree with the latter contention.

It is an old and well established rule of law that rights and interests which accrued or vested under existing law will not be altered by the subsequent repeal or modification of that law. See Snow v. Abernathy, 331 So.2d 626 (Ala.1976); Pickett v. Matthews, 238 Ala. 542, 192 So. 261 (1939); Grey’s Ex'r v. Mobile Trade Co., 55 Ala. 387 (1876). In this case the remainder interest in the real property vested in Charles in 1948 on the occasion of the death and probate of the will, of the grandmother, Annie, long before the repeal of the civil death statute.

Paragraph seven of Annie T. Lee’s will provides in pertinent part:

“* * * In [the] event my grandson Huey Reynolds Lee Junior, should precede me in death, or should he precede his mother Janet McDowell Lee of [or] his brother Charles McDowell Lee in death, then in that event I give, devise and bequeath unto Janet McDowell Lee all of the real property I devised and bequeathed to the said Huey Reynolds Lee Junior, under Items Two (2), and Six (6), for and during her natural life to enjoy the rents, profits and income therefrom and at her death the same to go to my grandson Charles McDowell Lee and unto his heirs and assigns, forever in fee simple.”

In 1948, when Mrs. Annie T. Lee’s will was admitted to probate, Huey had been convicted of first degree murder and sentenced to life imprisonment. The operative effect of the then extant civil death statute rendered Huey civilly dead and he had, in legal effect, predeceased both Janet, his mother, and his brother, Charles. Thus, by operation of law the real property passed as if the convicted and life-sentenced person had in fact died. See Holmes v. King, 216 Ala. 412, 113 So. 274 (1927). As a result, the remainder interest in all the property at issue in this case vested in Charles in 1948; consequently, Huey cannot now reach back and divest Charles of that interest on the theory he, Huey, underwent legal rebirth when the civil death statute was repealed. We do not hold, however, that Huey cannot sue on causes of action which may accrue, or have accrued, to him after repeal of the statute.

The judiciary generally disdains retroactive application of laws because such application usually injects undue disharmony and chaos in the application of law to a given fact situation; therefore, the courts will generally indulge every presumption in favor of prospective application unless the legislature’s intent to the contrary is clearly and explicitly expressed. City of Brewton v. White’s Auto Store, Inc., 362 So.2d 226 (Ala.1978). Nowhere in Act 272, which repealed the civil death statute, is there any expression of legislative intent for retroactive application of that Act. To allow this action to be maintained would give retroactive effect to repeal of the civil death statute contrary to the intent of the legislature.

Por the stated reasons the judgment is affirmed.

AFFIRMED.

BLOODWORTH, MADDOX, FAULKNER, ALMON and EMBRY, JJ., concur.


author: EMBRY, Justice.

text:
    MILES COLLEGE, INC., et al. v. Leavy W. OLIVER.
    No. 78-676.
    Supreme Court of Alabama.
    Feb. 22, 1980.
    Rehearing Denied April 11, 1980.
    J. Richmond Pearson, Arthur D. Shores, Birmingham, for appellants.
    Ronald Edward Jackson, Birmingham, for appellee.
   EMBRY, Justice.

Defendants, Miles College, Inc. (a nonprofit Alabama corporation), Willie Clyde Williams (President of Miles College), and Wayman Shiver (Dean of Miles College), appeal from a final judgment, based in part on a jury verdict, entered in the Circuit Court of Jefferson County (Bessemer Division) that determined Miles College had breached its employment contract with plaintiff, Dr. Leavy W. Oliver (a tenured professor at Miles), and ordered the college to reinstate Oliver with back pay from the date of termination until the date of reinstatement. We reverse and remand.

Issue

This case turns on whether the trial court committed reversible error by impanelling a jury and submitting the following question to it:

“ * * * Did the defendants follow the procedure as set out in the 1977 Miles College Handbook for terminating a tenured faculty member in terminating the plaintiff’s contract of employment? * * ”

Facts

The facts concerning the firing of Dr. Oliver are not important to the resolution of the issue presented on this appeal and will not be detailed in this opinion. Dr. Oliver commenced this action by filing a two count complaint: the first count alleged breach of contract and sought declaratory and injunctive relief; the second sought specific performance of Dr. Oliver’s employment contract. He subsequently amended count one to include, inter alia, a prayer for reinstatement, back pay, and a request for trial by jury; by another amendment he added a third count alleging fraud. Defendants filed timely answers to the complaint as amended.

Dr. Oliver contends Miles College breached his contract of employment with it by failing to follow the termination procedures set forth in the Miles College Faculty Handbook (1977 Edition), the provisions of which were incorporated by reference into his contract with Miles. There is no dispute among the parties as to the actual procedure Miles College followed in terminating Dr. Oliver’s employment.

On 14 February 1977, a trial of all issues was commenced. Before the trial commenced, plaintiff and defendants filed motions for summary judgment. The motions were denied. Over objection of defendants, a jury was impanelled for trial of the case. At the conclusion of the case the trial court submitted the question to the jury as it is set out under our statement of “Issue,” supra. The verdict of the jury answered in the negative. The trial court subsequently entered a final judgment based, at least in part, on that verdict. This appeal ensued.

Decision

As previously stated, there is no dispute about the actual procedure followed in the discharge of Dr. Oliver; therefore, the question submitted to the jury involved the proper construction of Dr. Oliver’s contract of employment with Miles College. We find the construction of that contract was a question of law for determination by the trial court; therefore, improperly submitted to the jury and under the facts of this case was prejudicial error requiring reversal.

Under the prevailing rule of law in Alabama it is incumbent upon the trial court to determine the force and effect of the terms of a contract, as a matter of law, when such terms are clear and unambiguous. C. F. Halstead Contractor, Inc. v. Dirt, Inc., 294 Ala. 644, 320 So.2d 657 (1975) (on rehearing): Johnson-Rast & Hays, Inc. v. Cole, 294 Ala. 32, 310 So.2d 885 (1975); Travelers Insurance Co. v. Remachan, 283 Ala. 96, 214 So.2d 447 (1968). It is also the duty of the trial court to ascertain whether the contract is ambiguous in light of its terms. Air Conditioning Engineers v. Small, 259 Ala. 171, 65 So.2d 698 (1953). Should the trial court deterrhine a contract to be ambiguous, yet not void for uncertainty, the question of the true meaning of the contract becomes an issue for the jury to decide. Id. To aid the jury in this determination, evidence of facts and circumstances aiiunde (from another source) or in pais (outside the record of the contract) may be introduced to aid the jury in its clarification of the terms of the contract; it then becomes the province of the jury to draw inferences and ascertain those facts from which the true meaning of the contract’s terms can be determined. Id.

After careful examination of the Miles College Faculty Handbook, made a part of Dr. Oliver’s contract, we find no ambiguity in the terms of that instrument regarding the procedures to be followed in terminating a tenured professor. Those procedures are clearly delineated in that handbook, are not extraneous to it, nor outside the record of that handbook. See Air Conditioning Engineers, supra. We, therefore, conclude the trial court erred to reversal by submitting the question to the jury.

Having found that reversal is required because the contract is clear and unambiguous, we specifically pretermit consideration of defendants’ other arguments urging reversal.

For the reasons assigned, the judgment is due to be reversed and the case remanded for further proceedings not inconsistent with this opinion.

REVERSED AND REMANDED.

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


text:
    Ex parte James R. PURVIS. In re Criminal Contempt Prosecution against James R. PURVIS, arising out of the Water Works Board of the City of Birmingham, a public corporation v. LOCAL UNION NO. 1317, LABORERS’ INTERNATIONAL UNION OF NORTH AMERICA, AFL-CIO, etc.
    No. 78-784.
    Supreme Court of Alabama.
    Feb. 22, 1980.
    Rehearing Denied April 11, 1980.

      William M. Dawson, Birmingham, for petitioner.
    Sydney F. Frazier, Jr., of Cabaniss, Johnston, Gardner, Dumas & O’Neal, Birmingham, for respondent.
   EMBRY, Justice.

This petition for writ of habeas corpus arises out of a strike against The Water Works Board of the City of Birmingham by hourly employees of that Board. The petition was filed on behalf of James R. Purvis after he was incarcerated under a sentence of criminal contempt by the Circuit Court of Jefferson County. The contempt sentence was based on Purvis’ violation of a temporary restraining order enjoining the strike and all picketing activities against the Board. Purvis was sentenced to an aggregate of fifteen days in jail for three separate instances of contempt. This court granted a stay of execution of the sentence after Purvis had served eight days of the sentence.

We deny the petition.

Issue

The dispositive issue in this proceeding is whether Purvis can challenge, by petition for the writ of habeas corpus, the constitutional validity of the trial court’s temporary restraining order when Purvis failed to try to have the order dissolved or modified before violating it?

Facts

In July of 1979, Purvis requested: (1) the Board to recognize his union as the exclusive bargaining representative for the hourly-paid employees of the Board; (2) the Board to commence collective bargaining with the union; and (3) the Board to begin check-off of union dues from the payroll for employees who joined the union. On 31 July 1979 Purvis advised the Board its employees would commence a strike against it and all of its facilities unless the union’s demands were met. Upon the Board’s refusal, the strike and picketing of the Board’s facilities were commenced at approximately 6:00 a. m. on Thursday, 2 August 1979. That same morning the Board petitioned the Jefferson County Circuit Court for a temporary restraining order alleging, inter alia, the strike was illegal, striking employees were harassing and interfering with customers entering and leaving its buildings and property, and it, and the City of Birmingham would suffer irreparable injury if the order was not issued before notice could be served on the defendants.

At 1:40 on Thursday, 2 August 1979, a temporary restraining order was issued which contained, among other things, the following:

“A. The defendants, separately and severally, their officers, agents, and members, and all persons acting in concert or combination with them, who have actual notice of this temporary restraining order by personal service or otherwise be and they are hereby restrained, pending the final determination of this action, from:
“1. causing, inducing, engaging in or encouraging a strike, work stoppage, or concerted refusal to work at The Board or any of its facilities for the purpose of requiring The Board to agree to defendants’ demands that the plaintiff recognize, bargain with or enter into agreements with the defendant Union.
“2. employing, supporting, maintaining or participating in picketing at, about, or around; or in front of any building or property of The Board for the purposes set forth in paragraph 1 above;
“3. threatening, coercing, harassing, or interfering with any employee of the plaintiff who is engaging in or seeking to engage in the lawful performance of his job with the plaintiff;
“4. harassing, threatening, coercing, or otherwise interfering in any manner whatsoever with the right of any person to enter or leave any of plaintiff’s buildings or property.
“5. causing, inducing, engaging in or encouraging any act of interference with the lawful operations of The Board;
“6. Conspiring with any other person to commit any of the acts hereinabove enumerated.”

At 4:08 p. m. on Thursday, 2 August 1979, Purvis was served with a copy of the temporary restraining order by a deputy sheriff. The evidence at the contempt hearing discloses that Purvis told the deputy “ * * * he would stay out, even if he had to go to jail.” Consistent with this declaration Purvis continued to picket the Board’s Shades Mountain facility the rest of Thursday afternoon and the morning of Friday, 3 August 1979. The evidence further discloses that Purvis ignored and violated the order by threatening a supervisor that drove through the picket line.

On Friday, 3 August 1979, the Board filed a petition to show cause why Purvis should not be held in contempt of court. Purvis was served that same day at 1:55 p. m. Purvis then filed a motion to dissolve or modify the temporary restraining order. The court ordered Purvis to appear before the court on Monday morning, 6 August 1979, to show cause why he should not be held in contempt and, further, denied Pur-vis’ motion to dissolve or modify the temporary restraining order.

On Saturday morning, 4 August 1979, the Board amended its petition to show cause. On Monday, 6 August 1979, after a hearing, the trial court found Purvis had violated the temporary restraining order after having received proper notice by: (1) continuing to picket Thursday afternoon; (2) threatening to assault a supervisor; and (3) his picketing activities on Friday morning. Three separate judgments of criminal contempt were entered against Purvis and he was sentenced to three consecutive five day sentences for each offense as well as being fined $100 for each offense. Thereafter, this petition was filed.

Decision

Purvis contends the trial court’s temporary restraining order was transparently invalid, unconstitutional and required the irretrievable surrender of his important constitutional rights; therefore, there can be no valid finding of contempt because adequate and effective appellate procedures did not exist to challenge the order’s validity. We cannot agree with this contention.

It has long been the rule of law that an order issued by a court with jurisdiction over the subject matter must be obeyed by the parties subject to the order until it is reversed by orderly and proper proceedings even though the order may be constitutionally defective or invalid. See Pasadena City Board of Education v. Spangler, 427 U.S. 424, 96 S.Ct. 2697, 49 L.Ed.2d 599 (1976); Maness v. Meyers, 419 U.S. 449, 95 S.Ct. 584, 42 L.Ed.2d 574 (1975); Walker v. City of Birmingham, 279 Ala. 53, 181 So.2d 493 (1966), affirmed, 388 U.S. 307, 87 S.Ct. 1824,18 L.Ed.2d 1210 (1967); United States v. United Mine Workers of America, 330 U.S. 258, 67 S.Ct. 677, 91 L.Ed. 884 (1947). Purvis acknowledges this established principle of law but asserts the order had such a chilling effect on his First Amendment rights that the order was void on its face; therefore, he was entitled to disregard the order because there was insufficient time to appeal from it. We cannot agree that the order was transparently invalid or that such exigent circumstances existed as to allow Purvis to disregard it.

We recognize that court orders may be disregarded in certain rare cases where compliance with the court order would cause irreparable injury and appellate vindication would not have its ordinary consequences of totally repairing the error. See Maness, supr^,. However, such cases generally involve orders issued during criminal trials. Again, see Maness, supra, and Cobbledick v. United States, 309 U.S. 323, 60 S.Ct. 540, 84 L.Ed. 783 (1940). We further recognize that if an injunction is transparently invalid, or only has a frivolous pretense to validity, its validity may be challenged in a contempt proceeding. Walker v. City of Birmingham, 388 U.S. 307, 87 S.Ct. 1824, 18 L.Ed.2d 1210 (1967). In this case, however, Purvis was not justified in refusing to obey tlje temporary restraining order. See United States v. United Mine Workers of America, supra.

The United States Supreme Court has consistently recognized that the state has a strong interest in regulating the use of its streets and other public places; and when protest takes the form of mass demonstration, parades, or picketing on public streets and sidewalks, the state has a legitimate concern in preventing public disorder and violence and promoting the free passage of traffic. Walker, supra. Moreover, the First and Fourteenth Amendments to the United States Constitution, although they do protect, do not afford the same kind of freedom to those who communicate ideas by conduct, such as picketing on streets and highways, as the amendments afford those who communicate ideas by mere speech. Shuttlesworth v. City of Birmingham, 394 U.S. 147, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969); Walker, supra. Since violence erupted during the strike and picketing, and the City of Birmingham’s water service was in danger of being shut down, the trial court's temporary restraining order was not transparently invalid or frivolous. Also, a hearing was scheduled within five days, and Purvis could easily have sought modification or dissolution of the order before disobeying it.

In reaching our decision we must emphasize that we are not encouraging the issuance of temporary restraining orders against peaceful picketing. It is very clear that peaceful picketing is protected by the First Amendment. Shuttlesworth, supra; Thornhill v. State of Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093 (1940). First Amendment rights should only be enjoined in extreme situations. Temporary restraining orders should only be issued without a prior hearing when it is clear from specific facts alleged by affidavit or by verified complaint that immediate and irreparable injury, loss, or damage, will result if the temporary restraining order is not issued prior to allowing the opposing party an opportunity to be heard. Rule 65(b)(1), ARCP. When a temporary restraining order is to be issued without hearing, curtailing First Amendment rights, even closer scrutiny of the existing circumstances under which it is sought should be exercised by the trial court.

The sole basis for our decision in this case is the need to maintain the integrity of court orders. In reaching this decision we make no finding respecting the constitutional validity of the temporary restraining order. It is clear in this case that Purvis was fully cognizant that he risked jail confinement if he deliberately defied the court order; yet he chose to do so. We fully agree with the statement of Justice Stewart in Walker v. City of Birmingham:

“The rule of law that Alabama followed in this case reflects a belief that in the fair administration of justice no man can be judge in his own case, however exalted his station, however righteous his motives, and irrespective of his race, col- or, politics, or religion. This Court cannot hold that the petitioners were constitutionally free to ignore all the procedures of the law and carry their battle to the streets. One may sympathize with the petitioners’ impatient commitment to their cause. But respect for judicial process is a small price to pay for the civilizing hand of law, which alone can give abiding meaning to constitutional freedom.” 388 U.S. at 320, 87 S.Ct. at 1832.

Purvis makes various other arguments in support of this petition for the writ of habeas corpus. None have merit, therefore need not be addressed.

For the reasons assigned, the petition for writ of habeas corpus is denied and the stay of execution of the remainder of the sentences vacated.

PETITION DENIED AND STAY VACATED.

TORBERT, C. J., BLOODWORTH and FAULKNER, JJ., and TYNER, Retired Circuit Judge sitting as Special Justice, concur.


author: EMBRY, Justice. TORBERT, Chief Justice

text:
    Geraldine SHELLY et al. v. Tory WOODYARD et al.
    No. 78-876.
    Supreme Court of Alabama.
    Feb. 22, 1980.
    Rehearing Denied April 11, 1980.
    W. Banks Herndon of Walker, Hill, Adams, Umbach & Herndon, Opelika, for appellants.
    Jennie Lee Kelley and John F. Dillon, IV, of Dillon, Kelley & Gavin, Alexander City, for appellees.
   EMBRY, Justice.

This is an appeal by Geraldine Shelly, Gary Gunn, Myrtis Tinsley and Maggie Gross, a minor, through her sister and next friend, Geraldine Shelly, from what is styled “Decree Granting Motion To Dismiss.” The motion was that of Idell Stone Woodyard, individually and as Executrix of the Last Will and Testament of Schuessler Woodyard, deceased, Booker Woodyard, Tory Woodyard, Mary Cox and Eva Fulton.

Plaintiffs below, Shelly, et al., filed their complaint seeking declaratory and incidental relief, which was once amended. Defendants below, Woodyard, et al., filed their “Motion To Dismiss Amended Complaint” reciting grounds, including the failure to state a claim upon which relief could be granted, preceded by the phrase: “To dismiss the action * * • (Emphasis added.) The “Decree Granting Motion To Dismiss” merely recites “ * * * that said motion is due to be and is granted.” It does not dismiss the action nor does it tax costs.

In Guilford v. Spartan Food Systems, Inc., 372 So.2d 7 (Ala.1979), this court held that an order granting defendants’ Rule 12(b)(6), ARCP, motion to dismiss for failure to state a claim upon which relief can be granted will support an appeal.

■ The dispositive issue in this case is whether plaintiffs fall within any of the three categories of. legitimated children that permit a previously illegitimate child to inherit from its natural father according to the laws of descent and distribution of Alabama. This being the case, other issues addressed by the parties in brief need not be addressed by us.

In Everage v. Gibson, 372 So.2d 829 (Ala. 1979), these categories are delineated thus-iy:

“To summarize, in order to claim the right to inherit from the intestate father’s estate, a child born out of wedlock may prove legitimation by the marriage of his parents plus a clear and unambiguous recognition of the child by the father. Or, such child may introduce a written, attested, and filed declaration of legitimation. Finally, the child may show a judicial determination of paternity made within two years of birth and during the father’s lifetime."

The complaint as amended makes the statement that plaintiffs are the natural children of Schuessler Woodyard born out of wedlock but does not show them to have become legitimate by either of the three required processes and thus eligible to inherit from their natural father. Cowart v. Wheeler, 378 So.2d 732 (Ala.1979).

The judgment is affirmed.

AFFIRMED.

FAULKNER, ALMON and BEATTY, JJ., concur.

TORBERT, C. J., concurs specially.

TORBERT, Chief Justice

(concurring specially).

The question presented is whether a complaint brought by the alleged illegitimate children of an intestate seeking a declaration of their rights in the intestate’s estate fails to state a cause of action where the complaint contains no allegation of legitimation. The test of the sufficiency of a complaint in a declaratory judgment proceeding is not whether the bill or complaint shows that the plaintiff will succeed in getting a declaration of rights in accordance with his theory or contention, but whether he is entitled to a declaration of rights at all. City of Mobile v. Gulf Development Company, 277 Ala. 431, 171 So.2d 247 (1965); Moore v. City of Fairhope, 275 Ala. 506, 156 So.2d 366 (1963); Robinson v. Robinson, 273 Ala. 192, 136 So.2d 889 (1962). Our case law has established the requirement that before an illegitimate child can seek a declaration of his rights in the intestate’s estate that child must prove his legitimation.

[I]n order to claim the right to inherit from the intestate father’s estate, a child born out of wedlock may prove legitimation by the marriage of his parents plus a clear and unambiguous recognition of the child by the father. Or, such child may introduce a written, attested, and filed declaration of legitimation. Finally, the child may show a judicial determination of paternity made within two years of birth and. during the father’s lifetime. [Emphasis omitted.]

Everage v. Gibson, 372 So.2d 829 (Ala.1979).

The complaint in the instant case lacked the requisite of an allegation of legitimation and therefore failed to state a cause of action. I recognize that notice pleading is the concept behind the Alabama Rules of Civil Procedure, as well as the Federal Rules of Civil Procedure, and that the rules do not require exhaustive pleading of facts.

[T]he Federal Rules of Civil Procedure do not require a claimant to set out in detail the facts upon which he bases his claim. To the contrary, all the Rules require is “a short and plain statement of the claim” that will give the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests. . The Federal Rules reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits.

Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).

In the instant case, legitimation was not a specific fact supporting the plaintiffs’ theory in their complaint; rather, it was an essential part of the theory. Therefore, I concur in the majority’s decision affirming the trial court’s order granting defendant’s 12(b)(6) motion.


text:
    B. J. OYLER v. Porter GILLILAND and Ellen Gilliland.
    No. 78-479.
    Supreme Court of Alabama.
    Feb. 29, 1980.
    Rehearing Denied March 28, 1980.

      Robert B. French, Jr., Fort Payne, for appellant.
    W. M. Beck, Sr., of Beck & Beck, Fort Payne, for appellees.
   PER CURIAM.

This is the second time the same parties have appeared before this Court to litigate the same issues. In Oyler v. Gilliland, 351 So.2d 886 (Ala.1977), B. J. Oyler appealed from a judgment permanently enjoining him from interfering with the Gillilands’ use of a road over his property. The trial Court had determined in that case that the Gillilands had acquired an easement by necessity over Oyler’s property. We affirmed the lower Court in that respect but reversed the judgment insofar as it held the easement to be perpetual.

By its very nature, an easement of necessity is extinguished once the necessity ceases. Oyler v. Gilliland, 351 So.2d at 888. It follows, therefore, that use of the easement by those entitled thereto cannot be subject to a permanent injunction against interference. We, therefore, affirmed the finding of an easement of necessity and remanded with directions to the lower Court that its decree be modified with respect to the perpetual effect of the injunction. The decree was so modified.

Apparently, on the basis of this modified decree, Oyler proceeded to reblock the road and filed a petition with the trial Court to withdraw the injunction on the basis that the “necessity” no longer existed. The Court, instead held Oyler in contempt for violating the injunction. Oyler now appeals both the injunction and the contempt order.

We note at the outset that a review of an order made in a proceeding for contempt of court is by way of an appropriate extraordinary writ and not by way of appeal. Knight v. State ex rel. Butler, 288 Ala. 428, 261 So.2d 750 (1972). Consequently, the appeal from the trial Court’s order of contempt is not properly before us and must be dismissed.

With respect to the appeal from the injunction, the Gillilands contend that Oyler merely reiterates the same argument he made in the prior appeal, showing no new circumstances which would justify the trial Court in altering its prior finding of an easement of necessity. Appellees’ easement of necessity terminated in 1966 when they purchased an adjoining parcel from which they have access to the road in question without need of traversing Appellant’s land, Oyler cites “additional” evidence to support his view that the easement was extinguished by the Gililands’ purchase of adjoining land, affording them a reasonably adequate way across their own property. Initially we were inclined to the view that Oyler has not shown any new circumstance since the issuance of the injunction which would terminate the easement of necessity found by the trial Court, and affirmed by this Court in the 1977 case.

While we still adhere essentially to this view, a map of the subject property, which was introduced in the second trial but which was missing from the record of the first trial, materially changes our perspective of the evidence.

The law in this case is well settled. If one has a way through his own land, he cannot impose a “way of necessity” through his neighbor’s land, unless his own way is not reasonably adequate or its cost is prohibitive. Southern Railway Co. v. Hall, 267 Ala. 143, 100 So.2d 722 (1958). See, also, 28 C.J.S., Easements, § 54(b), at 718. Mere inconvenience or mere cost, as the basis for using another’s land to get access to one’s own property, falls short of meeting this test. Benedict v. Little, 288 Ala. 638, 264 So.2d 491 (1972). The burden of proof, of course, is upon the one who seeks to impose a “way of necessity” irrespective of which party initiates the proceedings.

With the aid of the map, our reexamination of the entire record of both proceedings constrains us to hold that the Gilli-lands have not met their burden of proof as to why their acquisition of adjoining property which abuts a public road did not extinguish their “way of necessity” across Oy-ler’s land. At most, the evidence shows that their continued use of the way across Oyler’s land is more convenient and will spare them the expense of building their own road. Clearly, this does not meet the burden of proof required in these cases.

Therefore, the judgment of injunction appealed from is reversed and this cause is remanded for the entry of judgment in conformity with this decision. Likewise, in light of our holding that Oyler is entitled to the relief prayed for in the instant proceeding, justice requires, and we so direct, the trial Court to expunge its order holding Oyler in contempt of court.

DISMISSED AS TO CONTEMPT ORDER; REVERSED AND REMANDED WITH INSTRUCTIONS AS TO INJUNCTION.

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

      . Our dismissal of this aspect of the appeal, however, does not preclude the exercise of our supervisory power to review this order of contempt. This is particularly true where, as here, the conduct for which Oyler was held in contempt of court was the mere exercise' of a property right which he sought to enforce below and which right we now uphold by the opinion and mandate of this Court. Therefore, we will treat the order of contempt as reviewable under the substantive appeal from the injunction.


author: SHORES, Justice.

text:
    WATTS CONSTRUCTION COMPANY v. CULLMAN COUNTY.
    No. 78-656.
    Supreme Court of Alabama.
    Feb. 29, 1980.
    Rehearing Denied March 28, 1980.
    Howard B. Warren and Jack W. Torbert, of Torbert, Turnbach & Warren, Gadsden, for appellant.

      Hayden R. Battles, James F. Berry, Cull-man, for appellee.
   SHORES, Justice.

This is a contract case. Appellant Watts Construction Company submitted the low bid on a County Water Works Improvement Project and was awarded the contract in May of 1976. In July, Robert L. Harbison, chairman of the Cullman County Commission, executed a construction contract for the project, separate copies of which had earlier been executed by Watts. Item V, Section II, of the contract provides that “[t]his contract shall not be effective unless and until approved by the State Director of the Farmers Home Administration, U.S. Department of Agriculture or his delegated representative.” FHA approval for the project was not obtained. However, when a portion of the project which was being funded by the city, rather than the county, was deleted during the summer, the change order was signed by a representative of the State Director of the FHA.

Construction on the project was delayed until the fall, allegedly due to the lowering of the county’s debt limit. In September, construction still had not been authorized, and Watts requested a 5% increase in the contract price due to seasonal and inflational price increases. The county countered with an offer of 3.5%. By a letter dated September 21, 1976 (set out in its entirety in the margin), Watts notified the commission that he could not accept less than a 5% increase, and concluded: “If this is not agreeable with you, please consider this letter a withdrawal of our bid.” This letter was discussed at a meeting of the county commission on September 24,1976, where it was agreed that the county could not pay a 5% increase. Negotiations were begun with the next lowest bidder to take the project on at the low bid price. On October 4,1976, the commission re-awarded the contract to Tucker Brothers Construction Company at the low bid made by Watts. Watts alleges that the award to Tucker Brothers included project specification changes which reduced the cost of the project and which were not offered to Watts. He was notified by letter dated October 14, 1976, that his withdrawal of the bid had been accepted by by the commission. On October 19, 1976, Watts informed the commission that he was willing to perform the contract at bid price with certain modifications in specifications. His offer was not accepted.

Watts then brought this action to recover damages for breach of contract, or in the alternative, for tortious interference with or rescission of a contract. The county answered, then moved for summary judgment, contending, in essence, that (a) either no contract existed between the parties because of failure of a condition precedent, the approval by the FHA, or (b) if a contract was found to exist, Watts had abandoned or anticipatorily breached it, or that the contract was mutually rescinded. The trial court granted the county’s motion for summary judgment, and this appeal followed. For the reasons discussed herein, we affirm.

In reviewing a summary judgment, we must determine whether there exists any genuine issue of material, fact and, if not, whether the substantive law was correctly applied to undisputed facts. Long v. Bankers Life, 294 Ala. 67, 311 So.2d 328 (1975). The record in this ease reveals no issue of fact; the sequence of events detailed above is not disputed by either party, only the legal effect of those events.

We find it unnecessary to discuss the issue of whether FHA approval was a condition precedent to creation of a valid contract. Watts’s letter of September 21 withdrawing his bid and the commission’s letter of October 14 accepting that withdrawal effectively rescinded any contract that might have existed. Parties to a written contract may by mutual consent and without other consideration rescind the contract. Watson v. McGee, 348 So.2d 461 (Ala.1977). Where the acts and conduct of one party inconsistent with the existence of a contract are acquiesced in by the other, such contract will be treated as abandoned or rescinded. San-Ann Service, Inc. v. Bed-ingfield, 293 Ala. 469, 305 So.2d 374 (1974). Watts’s demand for an increase in the contract price demonstrated his intention not to be bound by the original contract. The commission acquiesced in his desire not to be so bound, and the contract was rescinded. Once a party to a contract has repudiated or broken it, he cannot reinstate the contract by an offer to perform. Mutual Loan Soc. v. Stowe, 15 Ala.App. 293, 73 So. 202 (1916). Where the parties have by mutual agreement rescinded a contract, one of the parties thereto cannot recover damages in an action for breach of contract. Thomas v. Smoot, 2 Ala.App. 407, 56 So. 1 (1911). Where parties agree to rescind the contract, each gives up the provisions for its benefit, and the parties are then competent to contract with others. Shriner v. Graft, 166 Ala. 146, 51 So. 884 (1909).

Watts’s claim for damages for tor-tious rescission of a contract is also without merit. Even should such a cause of action be recognized under Alabama law, it was Watts who repudiated the contract in the first place, not the county, which merely acquiesced.

The judgment appealed from is affirmed.

AFFIRMED.

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

      . “September 21, 1976
      “Cullman County Commission Cullman, Alabama
      “Re: Contract for Water Works Improvements Project ‘A’ B,S, & T (Phase II) “Gentlemen:
      “We submitted a low bid in the amount of $942,264.00 for the above project on April 30, 1976. Almost five months have elapsed since the bid opening and a contract has not been executed by you as of this date, for us to proceed with construction. Regretably [sic], we cannot accept this contract without an increase in our bid to offset the price increases we will incur and the seasonal difference for the beginning of construction.
      “We have determined that a 5% increase of bid in the amount of $47,113.20 to be the minimum increase we can accept.
      “If this meets your approval and we receive a work order in the next 15 days, we shall accept the contract.
      “If this is not agreeable with you, please consider this letter a withdrawal of our bid.
      “We appreciate your immediate consideration of our request.
      “Very truly yours,
      “WATTS CONSTRUCTION COMPANY
      “James E. Watts
      “Partner
      “JEW/ls”


author: ALMON, Justice.

text:
    Harold INGRAM v. C. W. MOODY et al.
    No. 78-308.
    Supreme Court of Alabama.
    March 14, 1980.
    Rehearing Denied April 11, 1980.

      Frank W. Riggs, Montgomery, for appellant.
    William B. Moore, Jr. and James T. Up-church, III, of Rushton, Stakely, Johnston & Garrett, Montgomery, for appellees.
   ALMON, Justice.

This is an appeal by Ingram from a judgment of the circuit court granting a directed verdict for the defendants.

Ingram was an employee of the State Forestry Commission. In May of 1977 he filed suit for damages against C. W. Moody, individually and as State Forester of the State of Alabama; Richard Cumbie, individually and as communications chief of the Forestry Commission, and all the members of the State Forestry Commission.

The complaint alleged that:

(3)Without just cause and excuse, the Defendants have heretofore wilfully and malieidusly harassed Plaintiff, deprived him of his liberty, and have unlawfully interfered with Plaintiff’s right to pursue his chosen means of earning a livelihood.
***** *
(4) As a proximate result and consequence of the wilful and malicious acts of the Defendants, as aforesaid, Plaintiff has been injured and damaged in that he has been deprived of his right to pursue his chosen profession and to enjoy the benefits thereof, and will in the future be caused to lose earnings from his employment, his reputation has been damaged, he has been caused much physical and mental anguish, he has been caused to suffer from hypertension, he has been and will in the future be caused to incur medical expenses, and he has been otherwise damaged.
(5) Defendants have individually performed the wrongful acts complained of herein and, further, have conspired with each other to damage Plaintiff as herein-above described.
(6) Plaintiff claims punitive damages. WHEREFORE Plaintiff claims damages as aforesaid.

In April of 1978, Moody sent Ingram notice that his employment was being terminated. The reasons given by Moody for termination were: (1) Ingram’s continuous failure to respond to supervision; (2) Ingram’s failure to recuse himself from the Telecommunications Board when the Alabama Forestry Commission’s new radio system was discussed; and (3) his failure to accomplish work assigned. Ingram chose to retire and his discharge never became effective.

Ingram had been employed by the state since 1950 as a communications technician. He was chief of communications for a time, and was responsible for the operation and maintenance of the entire communications system of the department, which is used primarily to aid in suppressing forest fires. The system in use until 1973 was the “county unit” system.

In 1973 the State Forester appointed a committee to study a new communications system known as a “system concept.” Ingram was strongly opposed to the proposed new system. R. L. Snider, Ingram’s supervisor at the time, asked him to devise a plan for the new system. Ingram did so despite his strenuous objection. It is manifestly clear from the record that a large part of the controversy centered around who would get their way regarding whether the department would retain the old communications system or change to the new system.

It is clear that Ingram felt his supervisors had treated him badly. Conversely, his supervisors were of the opinion that Ingram was not doing his job properly and that he failed to respond to supervision. In view of our decision there is no need to state the facts in more detail.

It is somewhat difficult to determine the cause, or causes, of action Ingram is relying upon for recovery. He has not alleged that his employment was wrongfully terminated. It is inferable from the facts that he retired to prevent being terminated. Ingram’s retirement prevented him from pursuing the administrative remedies provided for in Code 1975, § 36-26-27. Had he not retired and had his termination become effective, and had he pursued his administrative remedies, he might have been reinstated. The law will not speculate on the result of a hearing which was never held.

We are of the opinion that Ingram has failed to prove any facts which would entitle him to relief under any cause of action recognized under state law. Simpson v. Van Ryzin, 289 Ala. 22, 265 So.2d 569 (1972), Fraternal Ord. of Police, Strawberry L. # 40 v. Entrekin, 294 Ala. 201, 314 So.2d 663 (1975).

In brief, Ingram asserts a cause of action under a federal statute. Title 42 U.S.C.A. § 1983, provides that:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizens of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

Suits under this section are commonly called civil rights actions or § 1983 actions. According to some federal decisions, exhaustion of state administrative remedies is not a prerequisite to a suit under § 1983. Wells Fargo Armored Serv. v. Ga. Public Serv. Com’n, 547 F.2d 938 (5th Cir. 1977). Ordinarily these actions are brought in federal court. State courts may entertain these actions as was the case in Martinez v. California,-U.S.-, 100 S.Ct. 553, 62 L.Ed.2d 481 (1980). In footnote 7 of the above decision the U.S. Supreme Court observed that the Court has never considered whether a state court must entertain a claim under § 1983. In view of our decision we need not address whether a state court may refuse to entertain such actions.

Insofar as the federal action is concerned, we think this case must be decided on the failure of Ingram’s pleadings to allege a § 1983 action. We have searched the entire record and have not found one reference to this being a § 1983 action. Not even a citation of the statute appears in the record.

Immediately prior to trial the judge asked the attorneys to state the nature of their case or defense. The attorneys responded, but there was no mention of a § 1983 action. There was no pre-trial order defining the issues. We are aware of the liberal construction to be placed on pleadings mandated by Rule 8 ARCP. Nevertheless, we are of the opinion that the record before us will not support the conclusion that the case was tried on § 1983 considerations. McCullough v. Alabama By-Products Corp., 343 So.2d 508 (Ala.1977); Fraternal Ord. of Police, supra.

This Court will not review a judgment on theories of law which were not properly presented to a trial court.

The judgment granting a directed verdict for the defendants is hereby affirmed.

AFFIRMED.

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