Smith v. Civil Service Bd. of City of Florence

Citation289 So.2d 614,52 Ala.App. 44
PartiesGrady SMITH v. The CIVIL SERVICE BOARD OF the CITY OF FLORENCE. Civ. 242.
Decision Date30 January 1974
CourtAlabama Court of Civil Appeals

Drake, Knowles & Still, University, for appellant.

Arnold Teks, Florence, for appellee.

BRADLEY, Judge.

This appeal is from a verdict and judgment of the Circuit Court of Lauderdale County that the order of the Civil Service Board of the City of Florence affirming the discharge of policeman Grady Smith, Jr. was correct and not arbitrary or unjust.

The appellant, Grady Smith, Jr., was discharged by the City of Florence from his position as a policeman and he appealed the discharge to the Civil Service Board of the City of Florence. After hearing before that body, it was determined that the discharge was proper. Smith then appealed the decision of the Civil Service Board to the Circuit Court of Lauderdale County where another hearing before a jury was conducted. At the conclusion of this hearing, the verdict and judgment of the Circuit Court was that the Civil Service Board's decision was correct and not arbitrary or unjust. Motion for a new trial was filed and same was subsequently overruled. Appeal to this court is from the judgment on the merits and on the motion for new trial.

Assignment of error two contends that the trial court erred in not according to Smith a trial de novo as required by Act No. 1619, Acts of Alabama 1971, p. 2778, which is the statute prescribing the procedure to be followed by the Circuit Court of Lauderdale County when hearing an appeal from the Civil Service Board of the City of Florence.

Act No. 1619 provides, in pertinent part, as follows:

'. . . It shall not be necessary to enter exceptions to the rulings of the Civil Service Board, and the appeal shall be a trial de novo; provided, however, that upon hearing such appeal the introduction of the decision of the Civil Service Board shall be prima facie evidence of the correctness of such decision. . . .'

Smith argues that a trial de novo envisions a new trial in the Circuit Court as if no proceedings had been held before the Civil Service Board, and that the Circuit Court then makes an independent decision of whether disciplinary action was in order or not. He says this was not the procedure followed in this case.

A true de novo hearing of a matter decided by an inferior court or administrative agency is tried and determined as if no other proceedings had ever taken place. It is a trial anew; a brand new proceeding as if such proceeding had been commenced in the reviewing court from the start. Ball v. Jones, 272 Ala. 305, 132 So.2d 120. It is also the rule that the Circuit Court may substitute its own judgment for that of the administrative agency. Ball v. Jones, Supra.

In the instant case that is not what happened. At the hearing in the Circuit Court the Civil Service Board's decision was introduced into evidence and the Board rested. Smith then put on testimony and introduced other evidence and rested. The Civil Service Board then put on testimony in rebuttal. After instructions from the court, the matter was presented to the jury. The verdict returned was not an independent finding that Smith should be discharged from his job as a policeman, but was a finding that the Board had not acted arbitrarily or capriciously.

The failure to follow the de novo trial format was in part due to the statutory directive that the decision of the Civil Service Board could be introduced into evidence and, when it was so introduced, would be considered as prima facie evidence of its correctness.

Prima facie evidence has been defined as:

'. . . (E)vidence which, if unexplained or uncontradicted, is sufficient in a jury case to carry the case to the jury, and to sustain a verdict in favor of the issue which it supports, but which may be contradicted by other evidence, and is thus distinguished from conclusive evidence, which the law does not allow to be contradicted.' McKinzie v. Standard Accident Ins. Co., 198 S.C. 109, 16 S.E.2d 529.

See also City of Jackson v. LaChance, 372 S.W.2d 479 (Mo.App); New, Orleans & G.N.R. Co. v. Walden, 160 Miss. 102, 133 So. 241; and Merit Clothing Co. v. Lees, 218 So.2d 779 (Fla.App.).

In cases such as the one now before us, the method of review in the appellate court is governed by statute, Carter v. Board of Trustees of Policemen and Firemen's Retirement Fund of City of Gadsden, 42 Ala.App. 99, 154 So.2d 43, cert. den. 275 Ala. 692, 154 So.2d 45; and, where the statute provides a particular method of review, it controls. Howle v. Ala. State Milk Control Bd., 265 Ala. 189, 90 So.2d 752. The method of review in the Circuit Court of the Civil Service Board's decision is by trial de novo, except that the Legislature has provided that the proponent of the correctness of the Board's decision makes out a prima facie case when the decision is introduced into evidence. The office of a proviso is to modify or restrict the preceding matter in the statute. Touart v. American Cyanamid Co., 250 Ala. 551, 35 So.2d 484; State v. Dawson, 264 Ala. 467, 89 So.2d 103. However, such exception should be strictly, though reasonably, construed, and extended no further than the language warrants. State v. Praetorians, 226 Ala. 259, 146 So. 411; State v. Dixie Dairies Corp., 268 Ala. 480, 107 So.2d 896. Consequently, we conclude that the Legislature, in Act No. 1619, Supra, has prescribed a modified do novo proceeding in the Circuit Court for the review of matters decided by the Civil Service Board of the City of Florence. In other words, the proponent of the Board's action still has the burden of proving that the Board's action was proper. This burden can be satisfied by introducing into evidence the decision of the Board, for it has been provided that when this is done, said decision is to be considered as 'prima facie evidence' of its correctness.

The term 'burden of proof' has been defined as:

'. . . (T)he duty of establishing the truth of a given proposition or issue by such an amount of evidence as the law demands in the case in which the issues arise. It is sometimes also said to mean the duty of producing evidence at the beginning or at any subsequent stage of the trial in order to make or meet a prima facie case. In some of our cases this is referred to as the burden or duty to go forward with the evidence. The burden in the sense of the duty of producing evidence may pass from party to party as the case progresses but the burden of proof meaning the obligation to establish the truth of a given proposition or issue rests throughout the trial upon the party asserting the affirmative of the issue and unless he meets this obligation upon the whole case, he fails. The burden of proof never shifts during the course of the trial . . ..' King v. Aird, 251 Ala. 613, 38 So.2d 883; Birmingham Trust & Savings Co. v. Acacia Mut. Life Assn., 221 Ala. 561, 130 So. 327. See also Gillingham v. Phelps, 11 Wash.2d 492, 119 P.2d 914.

In the present case the decision of the Board was introduced into evidence to commence the case before the jury, and Smith was directed to go forward with his evidence if he so chose. Had Smith chosen not to introduce any evidence in his behalf, the prima facie case made by the introduction into evidence of the Board's decision would have sustained the Board's burden of proving that Smith was properly discharged, and a directed verdict would have been in order. However, Smith did introduce evidence to refute the prima facie case made by the introduction of the Board's decision. Therefore, at the conclusion of Smith's rebutting evidence, the prima facie correctness of the Board's decision would disappear and the proponent of the unfitness of Officer Smith to remain on the police force would still have the burden of proving the truthfulness of its contention in order to carry the day. King v. Aird, Supra. Had the Board failed to introduce evidence of the correctness of its decision, Smith, whose evidence was at that point undisputed, would have been entitled to a directed verdict. Cruse-Crawford Mfg. Co. v. Rucker, 220 Ala. 101, 123 So. 897. In the present case the Board did introduce evidence to support its decision; therefore, the question of the validity of Smith's discharge should have been submitted to the jury on all of the evidence.

We conclude, then, that the statutory procedure for hearing appeals from the Civil Service Board of the City of Florence as set out in Act No. 1619, Supra, was observed by the trial court.

Having established the propriety of the trial procedure under Act No. 1619, Supra, we now must concern ourselves with the contention that the written charges given to the jury at the request of the Board were erroneous.

Appellant commences his argument in this regard by stating that given charge one, which provides:

'I charge you, as a matter of law, that the decision of the Civil Service Board of the City of Florence is presumed correct and valid, and must be upheld in the absence of oppression and bad faith on the part of said Board,'

is bad for the reason that the presumption of the correctness of the Board's decision disappears when rebutting evidence is introduced, and when this occurs, no further mention of the presumption should be made by the court. Also the charge stated that the Board's decision must be upheld, '. . . in the absence of oppression and bad faith.'

Under the trial de novo procedure spelled out in Act No. 1619, Supra, the proponent of the Civil Service Board's decision had the burden of persuading the jury that Smith should be discharged from the Florence police force. This could be done by introducing the Board's decision into evidence. Absent rebutting evidence from Smith, the burden would be satisfied. Should Smith introduce any relevant evidence to rebut the prima facie case, the prima facie case previously made out would disappear and it would then be incumbent upon the proponent of...

To continue reading

Request your trial
19 cases
  • Anthony P., In re
    • United States
    • California Court of Appeals Court of Appeals
    • April 29, 1985
    ...(9th Cir.1969) 417 F.2d 893 [constitutional right to cross-examine witness about bias against war protesters]; Smith v. Civil Service Board (1974) 52 Ala.App. 44, 289 So.2d 614 [proper to cross-examine witness about bias against police issue. And none of them bothered to cite let alone dist......
  • Lee v. State
    • United States
    • Florida District Court of Appeals
    • November 2, 1982
    ...a black juror proper to impeach his denial of discrimination in jury selection). See United States v. Kartman, supra; Smith v. Civil Service Board, 289 So.2d 614 (Ala.1974) (prejudice toward a group of which the defendant is a part is a proper subject of inquiry on cross-examination of a wi......
  • Al-Assi v. Ala. Dep't of Labor
    • United States
    • Alabama Court of Civil Appeals
    • February 13, 2015
    ...some of our cases this is referred to as the burden or duty to go forward with the evidence....’ ”“ ‘Smith v. Civil Serv. Bd. of Florence, 52 Ala.App. 44, 48–49, 289 So.2d 614, 617 (1974) (quoting King v. Aird, 251 Ala. 613, 618, 38 So.2d 883, 888 (1949) ). In all civil actions, when a part......
  • McDaniel v. Ezell
    • United States
    • Alabama Supreme Court
    • January 30, 2015
    ...relief could be granted.The trial court conducted a jury trial following the procedure outlined in Smith v. Civil Service Board of Florence, 52 Ala.App. 44, 289 So.2d 614 (Ala.Civ.App.1974). After the jury heard the evidence, the trial court instructed the jury, in part,"to decide this case......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT