New York Life Ins. Co. v. Jones

• Decision Date: 03 February 1944
• Docket Number: 4 Div. 323.
• Citation: 17 So.2d 883,245 Ala. 247
• Parties: NEW YORK LIFE INS. CO. v. JONES
• Court: Alabama Supreme Court

17 So.2d 883

245 Ala. 247

NEW YORK LIFE INS. CO. v. JONES

4 Div. 323.

Supreme Court of Alabama

February 3, 1944

Certiorari to Court of Appeals.

The following charges were refused to defendant:

"Charge No. 16. I charge you gentlemen of the jury that if you are reasonably satisfied from all the evidence in this case that the position of office receptionist is a gainful occupation and is within the range of Mrs. Jones' mental educational and physical qualifications, and that Mrs. Jones is able to perform substantially all the material duties of the position of office receptionist in the usual and customary manner, you cannot find for Mrs. Jones in any amount."

"Charge No. 17. I charge you gentlemen of the jury that if you are reasonably satisfied from all the evidence in this case that the position of saleswoman is a gainful occupation and is within the range of Mrs. Jones' mental, educational and physical qualifications and that Mrs. Jones is able to perform substantially all the material duties of the position of saleswoman in the usual and customary manner, you cannot find for Mrs. Jones in any amount."

Rushton Weil, Stakely, Johnson & Williams, of Montgomery, for petitioner.

Martin & Jackson, of Dothan, opposed.

GARDNER Chief Justice.

The finding of the Court of Appeals that the bill of exceptions does not contain all the evidence is clearly a finding of fact, not here subject to review. Indeed, this is not controverted. Hopwood v. Bennett, 26 Ala.App. 528 163 So. 535, certiorari denied 231 Ala. 49, 163 So. 536; Birmingham Elec. Co. v. Hereford, 25 Ala.App. 465, 149 So. 862, certiorari denied 227 Ala. 321, 149 So. 863; Loveman, Joseph & Loeb v. Himrod, 25 Ala.App. 350, 147 So. 164, certiorari denied 226 Ala. 342, 147 So. 163; Tortomasi v. State, 28 Ala.App. 499, 189 So. 901, certiorari denied 238 Ala. 253, 189 So. 905; Liberty Nat. Life Ins. Co. v. Collier, 26 Ala.App. 75, 154 So. 116, reversed 228 Ala. 3, 154 So. 118, and certiorari denied 228 Ala. 4, 154 So. 119.

But counsel for petitioner insist that the holding of the Court of Appeals in this regard is rested solely upon the fact the bill of exceptions fails to categorically state that it contains all the evidence, and numerous authorities are cited (among them: Walker v. Carroll, 65 Ala. 61; Kirksey v. Hardaway, 41 Ala. 330; Bridges v. Cribbs, 41 Ala. 367; New York Life Ins. Co. v. Mason, 236 Ala. 44, 180 So. 775) which counsel insist demonstrate that such categorical statement is not required if the bill otherwise discloses that it does contain all the evidence. If it be assumed that the holding of the Court of Appeals was rested solely upon the fact that the bill of exceptions did not use the language "that it contains all the evidence," this would present a question of law, here a subject for review. Indeed, such a holding would run counter to Middlebrooks v. Sanders, 180 Ala. 407, 61 So. 898, 899, where it was said: "It may be conceded that our decisions do not require that the completeness of the bill of exceptions shall be evidenced by a specific recital that it contains all the evidence. Alexander v. Wheeler, 69 Ala. 332. It must, however, affirmatively and clearly appear that it does contain all the evidence, when that fact is necessary to a proper review of the rulings assigned for error. Lamar v. King, 168 Ala. 285, 53 So. 279. And, in estimating the efficiency of its recitals in this particular, they will be construed more strongly against the appellant when their language is not reasonably clear and certain to the conclusion required."

Assuming, therefore, the correctness of petitioner's insistence as to the finding of the Court of Appeals, the point in this regard would be well taken. But upon an examination of the opinion of the Court of Appeals, we conclude this assumption is unfounded. The opinion expressly states that the Court was "unable to say that it does contain all the evidence." Still later in the opinion, in reference to the refusal of charges 16 and 17, is the further language: "It does not appear the bill of exceptions contains all the evidence." These are clear and unequivocal statements, and constitute a finding of fact not here reviewable. Perhaps this question as to the interpretation of the language of the bill of exceptions as argued by counsel, in the light of the cited authorities, will receive due consideration by the Court of Appeals upon remandment of the cause as hereinafter ordered. We think a reconsideration is in order.

The rule of our decisions to the effect that, the giving or refusal of the affirmative charge and the denial of the motion for a new trial are not subject to review when it appears the bill of exceptions does not contain all the evidence, is rested upon the theory that the court will presume in favor of the ruling of the court below any evidence or state of facts in support thereof. This rule has, of course, been here applied in many cases. St. Louis-San Francisco R. Co. v. Kimbrell, 226 Ala. 114, 145 So. 433; Payne v. Boutwell, 26 Ala.App. 573, 164 So. 753, certiorari denied 231 Ala. 311, 164 So. 755; Sanders v. Steen, 128 Ala. 633, 29 So. 586; Lewis Land & Lumber Co. v. Interstate L. Co., 163 Ala. 592, 50 So. 1036; Southern R. Co. v. Wyley, 200 Ala. 14, 75 So. 326; Southern Mut. Ins. Co. v. Holcombe's Adm'r, 35 Ala. 327; Marcrum v. Smith, 206 Ala. 466, 91 So. 259, 20 A.L.R. 1303; Levert v. State, 220 Ala. 425, 125 So. 664; Lone Star Cement Co. v. Wilson, 231 Ala. 83, 163 So. 601; Bissell Motor Co. v. Johnson, 210 Ala. 38, 97 So. 49; Roberts v. Kemp, 218 Ala. 350, 118 So. 656.

But in applying the rule of our decisions we should not lose sight of the underlying reason for it. Our Court recognizes this fact, and has in more than one instance stated that the general rule has its limitations when the reason underlying it no longer obtains. This matter came prominently forward for consideration in Baker v. Patterson, 171 Ala. 88, 55 So. 135, where many of the authorities are cited; and the case of Barnett v. Wilson, 132 Ala. 375, 31 So. 521, was expressly overruled. One of the Justices vigorously dissented, but the holding of the Court was to the effect that these decisions "do not require, nor do they permit, a presumption contradictory of the record." [171 Ala. 88, 55 So. 136.] In that case the Court reviewed the action of the trial court in giving for the plaintiff the affirmative charge, and rested a reversal upon the theory that, notwithstanding the fact that the bill of exceptions did not contain all the evidence, it contained sufficient evidence to convince the Court that the case was one for the jury's consideration. The opinion propounds this pertinent inquiry:

"Does the rule hitherto stated in respect to presumptions in favor of the rulings of the trial court require that we shall presume in the presence of this record that the plaintiff abandoned the only case the record tends to support and establish beyond dispute, for an entirely different case of which the record gives no intimation? And shall we presume that the court below has certified to this court a bill of exceptions which contains evidence foreign to the issue tried in that court, and omits all reference to the evidence which formed the basis of the court's ruling? Only so can the record be relieved of the fact, now appearing on its face, that the plaintiff was not entitled to the general charge. No introduction into the record of presumed evidence, relevant to the issues joined, can eliminate that fact."

This holding was well supported by McKissack v. Witz, Biedler & Co., 120 Ala. 412, 25 So. 21, 22, where likewise the judgment of the lower court was reversed for giving for plaintiff the affirmative charge. The opinion uses this language: "With this evidence in the case, the court gave the affirmative charge for the plaintiff against both defendants. This was erroneous, no matter what other evidence was introduced. So it is of no consequence that the bill of exceptions does not purport to set out all the evidence."

It was also supported in principle by Lamar v. King, supra. The case of Baker v. Patterson, supra, has been approved in more recent decisions. In John Dodd Wholesale Grocery Co. v. Burt, 225 Ala. 438, 143 So. 832, 833, the opinion cites a number of our authorities to the effect that, where the bill of exceptions fails to affirmatively show that it contains all the evidence, any state of facts would be presumed to uphold the rulings of the trial court, and then proceeds: "The foregoing rule, however, like other rules, has some exceptions, as was pointed out in the case of Baker v. Patterson, 171 Ala. 88, 55 So. 135, 136. In this case, this court committed itself to the proposition that, although the bill of exceptions does not purport to set out all the evidence, yet, 'as long as the evidence shown by the bill of exceptions to have been offered by the parties is allowed to stand as identifying the issues of fact between the parties and constituting at least a part of the evidence upon which those issues were determined, the only effect of presuming other evidence favorable to the plaintiff will be to establish a case of conflict' and in which case the general charge would still be erroneous."

The Burt case cites Beard v. Du Bose, 175 Ala. 411, 57 So. 703, 63 So. 318, holding to like effect.

It thus appears, therefore, that even as to the general affirmative charge the action of the court is reviewable when, from an examination of the bill of exceptions, the Court is fully convinced that error intervened. But our review of the opinion of the Court of Appeals is a limited one, and, of course, does not permit an examination of the record to discover whether or not an exception to the general rule is...