author: BLOODWORTH, Justice. BLOODWORTH, Justice.

text:
    Iris L. WILSON v. LIBERTY NATIONAL LIFE INSURANCE COMPANY. Iris L. WILSON v. The EQUITABLE LIFE ASSURANCE SOCIETY OF the UNITED STATES.
    SC 1522, SC 1546.
    Supreme Court of Alabama.
    April 2, 1976.
    As Corrected on Denial of Rehearing May 7, 1976.
    Chason, Stone, Chason & Partin, Bay Minette, for appellant.
    J. B. Blackburn, Bay Minette, for ap-pellee, Liberty Natl. Life Ins. Co.
    Johnstone, Adams, May, Howard & Hill and Richard T. Dorman, Mobile, for ap-pellee, The Equitable Life Assurance Society of United States.
   BLOODWORTH, Justice.

Iris L. Wilson, the beneficiary under three insurance policies issued on the life of her husband, Charles W. Wilson, filed three lawsuits in Jhe Circuit Court of Baldwin County, against the three insurers. All three suits presented the same basic issue, that is, whether the insured died as a result of accidental causes, thereby entitling Iris Wilson, the beneficiary, to accidental death benefits provided by the policies.

The beneficiary’s suit against Colonial Life & Accident Insurance Company was removed to the federal district court, where the District Judge found that the insured’s death did not result from accidental causes. Summary judgment was rendered in favor of defendant insurance company in that case.

The Baldwin County circuit court made similar dispositions in the two cases which are on appeal here [ Wilson v. The Equitable Life Assurance Society of the United States and Wilson v. Liberty National Life Insurance Company"]. Summary judgments were granted in both cases in favor of the insurers. These two cases were consolidated on this appeal.

The accident, upon which Mrs. Wilson bases her right to recover accidental death benefits, occurred on December 22, 1972, when Mrs. Wilson’s husband, the insured, fell down some steps landing on his buttocks. This fall caused the insured considerable back pain and may have caused a lumbar strain, although later X rays revealed no damage. As a result of this fall, the insured was hospitalized from January 1, 1973, until January 19, 1973 “with strain after having fallen down the steps and having concurrent increase in his angina or chest pain.”

However, on January 26, 1973, the insured was readmitted to the hospital, this time for congestive heart failure. For at least four years, the insured had been afflicted with “three vessel disease,” the most serious coronary disease. This disease is both permanent and progressive and is associated with a very poor life expectancy for its victims. Prior to his fall, the insured’s heart condition was deemed to be inoperable. On January 27, 1973, one day after being admitted to the hospital, the insured died. The death certificate indicates that the cause of death was arterio-sclerotic heart disease with acute myocardial infarction, but it also lists trauma to the back as an aggravating cause of death.

The two policies under which Mrs. Wilson sought to recover in the circuit court were similarly worded. Both contained a “general clause” to the effect that accidental death benefits would be paid only upon proof that the insured died as a result of

“. . . bodily injuries, caused directly and exclusively by external, violent and purely accidental means, . . . directly and independently of all other causes, . . .”

In addition, both policies included an “additional clause” to the effect that no benefit shall be payable

“. . . for any loss resulting from or caused directly or indirectly, wholly or partly, by . bodily or mental infirmity ... or disease or illness of any kind, . . .”

In Alabama, policy language similar to that contained in the “general clause” has been construed to mean that “if the accident aggravated a disease and hastened the death of the insured, the accident is yet considered the proximate cause of the insured’s death, notwithstanding the gravity of the disease or that the accidental injury would not have been fatal but for the infirmity.” [Emphasis supplied.] Liberty Nat’l Life Ins. Co. v. Reid, 276 Ala. 25, 33, 158 So.2d 667, 674 (1963).

However, our cases also hold that where the policy contains the “additional clause” then no recovery can be had where death results from the combined effects of an accident and a pre-existing disease which was accelerated and aggravated by the accident. First Nat’l Bank v. Equitable Life Assurance Soc. of the United States, 225 Ala. 586, 590-91, 144 So. 451, 455 (1932); Liberty Nat’l Life Ins. Co. v. Reid, supra.

With respect to the "additional clause,” our cases also hold, as stated by Bouldin, J., in Equitable, supra:

“But this does not mean that mere feebleness, nor predisposition to recurrence of former disease, nor every infirmity which may aggravate the effects of an accidental injury, is to be regarded as the cause of death.
“The general rules of construing insurance policies favorably to the insured, apply to these clauses touching bodily infirmity, etc.”

225 Ala. at 589, 144 So. at 454.

Thus, it is that Harwood, J., in Reid, supra, concluded:

“If an injury starts a chain reaction resulting in death, recovery may be had even if one of the links in the chain is old age, frailty and some links are dormant diseases or physical conditions without which the chain would be broken. Each case must be particularized.”

276 Ala. at 33, 158 So.2d at 674. Then, Justice Harwood adds:

“Where the evidence is conflicting as to whether an accident was the cause of an insured’s death, or whether the accident and a disease cooperating therewith combined to cause death, then ordinarily a question of fact within the resolution of the trier of fact is presented.”

Id.

Mrs. Wilson, the beneficiary of the policies, contends that her husband’s fall and the injuries, pain, and emotional distress that he suffered from the fall placed additional demands upon his heart, directly resulting in his death. Under this theory of recovery, it is contended that the consequences of the insured’s accident triggered a dormant heart condition, and precipitated the insured’s death.

In furtherance of this contention, Mrs. Wilson argues that the evidence before the trial court presented at least a scintilla of evidence in support of her theory of recovery and that therefore the grant of summary judgment was in error.

The trial court, in considering the motions for summary judgment, had before it: the pleadings; the deposition of Dr. Martin Lester (the insured’s personal physician) ; the insurance policies in question; the death certificate recording the cause of Charles Wilson’s death; the findings of fact and conclusions of law of the U. S. District Court in Wilson v. Colonial Life & Accident Insurance Company; and, the affidavits of Iris Wilson in opposition to the motions for summary judgment.

We agree with the beneficiary, Mrs. Wilson, that the sole question presented by these appeals is whether the evidence before the trial court provided a scintilla of evidence in her favor thereby presenting a genuine issue as to a material fact and preventing the summary judgments being rendered against her. Putting the issue another way, are the insurers entitled to summary judgment as a matter of law?

The committee comments following Rule 56, A.R.C.P., quote with approval the following textbook authority:

“The summary judgment procedure is not a substitute for the trial of disputed issues of fact. On a motion for summary judgment, the court cannot try issues of fact. It can only determine whether there are issues to be tried. .” 3 Barron & Holtzoff, Federal Practice and Procedure, § 1231 (1958).

The committee added that “if there is a scintilla of evidence supporting the position of the party against whom the motion is made, so that at a trial he would be entitled to go to the jury, summary judgment cannot be granted.” Id. [Emphasis supplied.]

Our scintilla rule requires only that the evidence, or reasonable inferences therefrom, furnish a mere gleam, glimmer, spark, the least bit, the smallest trace, in support of the plaintiff’s complaint. Union Central Life Ins. Co. v. Scott, 286 Ala. 10, 236 So.2d 328 (1970, per Lawson, J.).

Since we have the scintilla rule in Alabama, and such is not the rule under F.R. C.P., there is a clear distinction between this case and the federal district court case.

The following extracts from the documents submitted on summary judgment indicate to us that the beneficiary has at least raised a scintilla so as to defeat summary judgment. Thus, we do not think the insurer was entitled to summary judgment as a matter of law.

“STATE OF ALABAMA

“BALDWIN COUNTY

“Before me, the undersigned authority, in and for said County in said State personally appeared Iris L. Wilson who is known to me and who, after being by me first duly and legally sworn did depose and say as follows:

“My name is Iris L. Wilson and I am one and the same person as the Plaintiff I am the widow of Charles W. Wilson and the beneficiary of the insurance policies . . . . My husband at the time of his death was an employee of Cosby-Hodges Milling Company with his office and headquarters in Mobile, Alabama, where he was the manager of that branch of his employer. For the six months prior to December 22, 1972, my husband was. regularly engaged in performing his duties for his employer which consisted of traveling about his sales territory, fulfilling his duties in the office, and generally performing the normal duties associated with his employment at which he was actively engaged from eight to ten hours per day. . . .

“On December 22, 1972, at about 7:30 p. m., my husband was leaving his office after locking the door to the office he turned, slipped and fell down about six or seven concrete steps to the ground level. I drove my husband to Thomas Hospital. . . . and all the while he was complaining of pain in his head and of hurting all over, but mainly with the pain in his head. We went back home . but he couldn’t sleep on account of the pain and he got up and walked around all night long. He and I went to Bay Medical Clinic at about 8:30 or 9:00 on the morning of December 23, 1972, where we saw Dr. Yancey who took x-rays of my husband. Dr, Yancey told him ‘you are just bruised to hell and back’; . . . . Dr. Yancey prescribed some sort of medication. . . . For the remainder of the day of December 23, and all of December 24, 1972, my husband was up and down .... Christmas day . was the same sort of day and this continued for the rest of the week with my husband trying to ‘tough it out’ so it wouldn’t mess up everybody’s Christmas.

“On January 1, 1973, .... We went to Thomas Hospital .... He was placed in the intensive care unit . He stayed in the hospital for about ten days and during that time had no involvement with his heart.

“On January 11, 1973, my husband left Thomas Hospital and went to see Dr. Lester in Mobile who arranged for him to be admitted to Mobile Infirmary before he saw him. . . . My husband stayed in the Mobile Infirmary until January 19, 1972, ....

“On January 26, 1973, my husband went to Dr. Lester in Mobile for an appointment and Dr. Lester told him that he needed to go to the hospital. ... At about 4:30 on the afternoon of the 26th, my husband was admitted in the hospital and placed in a semi-private room. He was still complaining of pain in his head.

“On January 27, 1973, at about 1:00 or 2:00 p. m., my husband died.

“. . . at the time that he fell down the steps at his office, he was apparently in good shape, had had no trouble for the last six or seven months and was' actively engaged in his employment and his normal activities.” [Emphasis supplied.]

“DOCTOR F. MARTIN LESTER,

“DIRECT EXAMINATION

“Q All right. Tell me, please, sir, when was the first time that you saw Mr. Wilson ?

“A February the 1st, 1971, is a referral from Dr. Mullins from Fairhope.”

******

“Q And, you say he was involved in an accident in June of 1970?

“A Right. . . . He was hospitalized on 1-11-73 with lumbar sprain. He was actually transferred from Foley —Fairhope hospital. At this time he had a history—of having—now, this was on 12-22-72, a report was he was doing well. He fell down some steps striking his buttocks. He has been in severe pain. This is the same illness involved eventually into the development—as far as I can tell into the death situation. . . . Hospitalized by us on 1-11-73 until January the nineteenth, seventy-three, with a strain after having fallen down the steps and having concurrent increase in his angina or chest pain. . . .”

* * * * * *

“Q And, after his stay at hime, there, January 19th, 1973, when did you next see him?

“A We saw him on 1-26 in the office during the morning at which time he was having—he was tired, he was having a little difficulty breathing, and he had an irregular pulse and was in frank heart failure . . . . We saw him at eight o’clock that night and he developed a lot of symptoms. He had difficulty—we noticed him walking the floor and he complained bitterly of back pain, lower back pain, and some difficulty breathing. . . . We moved him to the coronary unit and he died within an hour. . So, the man—frankly—I saw him on the twenty-sixth, he was a frantic, red faced, exhausted appearing man who had obviously not slept in three to four days. . . .”

* * * * * *

“Q Go ahead and do it now if you would like.

“A Again, there is no direct cause of a fall. There is no possible way the fall would make the arterial sclerosis worse or make him have a heart attack. I want to get that straight. The only thing it was a cause is put this man under pressure and it, the medical treatment, the worry and this type thing added to the overall stress just as exercise would do or anything putting his heart under more strain. I think that is the only way it could conceivably could have caused •—have any effect. . . .”

* * * * * *

“CROSS EXAMINATION

“BY MR. STONE:

“Q Now, as I take your testimony, you are saying that really this fall may have started a chain reaction of some sort which ultimately resulted in Mr. Wilson’s death, is that correct?

“A It didn’t result in it, no. It set off >>

******

“Q Now, would it be correct to say that it would not have caused his death except for the existence of the heart condition ?

“A I wouldn’t say it was correct to say it caused his death. It was correct to say that it may have contributed to his overall life existence during that next month or so to the point where it could make him put extra strain on his heart.”

* * * * * *

“Q Now, do you know when he fell?

“A I am going to have to give you an approximation.

“Q That’s all right. I withdraw it. It’s not that important.

“A Actually, he talked about this—doing quite well until 12-22-72, he had fallen down some steps striking his buttocks on 12-22.

“Q All right. Now, would it be correct to say Mr. Wilson’s heart condition was a condition upon which the accident operated?

“A Not directly, no. But, it could indirectly.”

* * * * * *

“Q But, it created tension, anxiety and like symptoms in Mr. Wilson which operated on the heart condition?

“A Right.

“Q All right.

“A These caused an increased demand of the heart for oxygen. This tension in his situation would keep his blood pressure up, and all of which had a detrimental effect on known heart disease, which he had.”

* * * * * *

“Q This accident did start something in movement or momentum, didn’t it, Doctor, that ultimately affected his heart?

“A Right. . ."

* * * * * *

“Q Was that related to the fall?

“A I think that was—that—that is what set him off this time, yes. That is what got him all going back and forth to the doctor for pain shots and raising sand, and the conflicts he would get into with the people.”

******

“RE-CROSS EXAMINATION

“BY MR. STONE:

“Q It is just like you told this gentleman it triggered this whole thing, is that correct ? I am not trying to put words in your mouth, is that correct?

“A It just—it was just another episode that got him up and put his heart under stress, yes.”

We think the foregoing demonstrates that the only real question is whether there was a scintilla of evidence (under the “additional” clause) that the injury started a chain reaction resulting in death and whether or not one of the links in the chain, i. e., heart disease, was a “dormant diseases or physical condition without which the chain would be broken.” Reid, 276 Ala. at 33, 158 So.2d at 674.

The evidence on this issue appears to us to be conflicting. The insured was well before the accident. He had no heart trouble for six months previously. He was doing a full day’s work, engaging in normal activities when the accident occurred. After the accident, his physical condition deteriorated rapidly, culminating in his death. The doctor, a cardiologist, who was treating the insured, said he was “doing quite well until 12-22-72,” the date of the accident; that the accident operated “indirectly” upon his heart condition by creating tension and anxiety which kept his blood pressure up, which in turn adversely affected his heart disease by putting an increased load on it; that it “set off” or “triggered this whole thing”; that this “evolved eventually into” his death in that his heart could not take the increased load.

Therefore, we conclude summary judgment was premature. We reverse and remand.

Perhaps, in conclusion, we should add the cautionary statement that nothing we have written in this opinion relating to factual matters should lead the parties to conclude that we have any judgment or opinion as to the ultimate merits of this lawsuit.

REVERSED AND REMANDED.

FAULKNER, JONES, ALMON and EMBRY, JJ., concur.

ON REHEARING

BLOODWORTH, Justice.

Counsel on rehearing contend that we misconstrued the testimony in making the statement in the opinion: “The insured was well before the accident.” We think not but we do concede that this statement could be misinterpreted. Therefore, we correct the sentence so that it reads: “The insured appeared to be well before the accident.”

Counsel further contend that we erred in considering the wife’s statement that her husband “was apparently in good shape.” [Emphasis supplied.] Prudential Ins. Co. v. Calvin, 227 Ala. 146, 148 So. 837 (1933), is cited by counsel. In that case, this Court held that it was reversible error to permit the wife of an insured to answer, over objection, this question: “ ‘When your husband left home that morning, Mrs. Calvin, tell these twelve jurors whether he was in good sound health ? ’ ” [Emphasis supplied.] That question called for opinion evidence of an expert which the lay witness could not give. We agree.

However, in American National Ins. Co. v. Rains, 215 Ala. 378, 110 So. 606 (1927), this Court held that a son of an insured could testify that the health of the insured at the delivery of the policy “was pretty good,” the statement being in effect that it “seemed or appeared” to be good. Moreover, other lay witnesses were permitted to testify that the insured appeared to he healthy. This was deemed not to be the expression of an opinion but a statement of fact open to ordinary observation.

In the case at bar, the testimony was: “he was apparently in good shape.” We consider “apparently,” in effect, to state he “appeared” to be “in good shape,” a statement of fact open to ordinary observation.

OPINION CORRECTED.

APPLICATION FOR REHEARING OVERRULED.

FAULKNER, JONES, ALMON and EMBRY, JJ., concur.


source: Caselaw Access Project

author: EMBRY, Justice.

license: Public Domain

text:
    Jake JEWELL v. JACKSON & WHITSITT COTTON CO., etc., et al.
    SC 1485.
    Supreme Court of Alabama.
    April 30, 1976.

      J. Garrison Thompson, Selma, for appellant.
    W. W. Dinning, Demopolis, for appellees.
   EMBRY, Justice.

Jake Jewell, plaintiff below, appeals from an amended decree entered by the trial court after remand by this court following appeal by him from original decree. The decree now appealed from purports to award Jewell damages against defendant below, Jackson & Whitsitt Cotton Company, a Copartnership. It also ordered return of 30,472 pounds (127 bales) of cotton to him upon payment of thirty-five cents (35^) per pound therefor by Jackson & Whitsitt.

The Case

This is the second appearance of this case before this court. The decision of this court, dated 8 May 1975, “affirmed in part, reversed in part and remanded with directions,” Jewell v. Jackson & Whitsitt Cotton Co., 294 Ala. 112, 313 So.2d 157.

For the genesis, nature and history of the litigation to 8 May 1975 see Jewell, supra. In that opinion this court found the trial court misapplied the law to the facts; Justice Merrill writing:

“ * * * the court erred in requiring that ‘a total amount of cotton, amounting to 690 pounds multiplied by 142.6 acres’ be turned over to appellee by Jewell. Instead, the decree or order should provide that the 143 bales of cotton produced on Jewell’s cotton allotment acreage (142.6 acres) be adjudged as the performance and settlement in full by Jewell under the contract in issue, and that the remaining 127 bales produced on the 140 additional acres be adjudged free of any claim by appellee.”

The Facts

Upon remand, proceedings were held for the purpose of determining how the trial court should comply with the Supreme Court’s decision and opinion. Contentions of the parties regarding application of this court’s order were heard. Closure of the proceedings was effectuated by the trial court stating:

“I am going to review the contentions of the parties and I will enter an order thereafter; that order will either order an evidentiary hearing or it will deny an evidentiary hearing and you will [be] notified as to the date it will be set for.”

Subsequently, without an evidentiary hearing, the amended decree was entered which ordered that Jackson & Whitsitt return to Jewell 127 bales of cotton for which Jackson & Whitsitt was to receive remuneration of thirty-five cents (350) per pound from Jewell. The trial court further ordered :

“That the said defendant, Jackson & Whitsitt Cotton Co., is ordered to pay to the Plaintiff a sum equal to the difference in the average price per pound of cotton of the same grade and quality as the cotton which is the subject of this law suit on May 14, 1974, and on August 7, 1975, multiplied by 30,472 pounds, together with the interest on said sum computed from May 14, 1974, to this date at the rate of 6% per annum.”

Jewell asserts error in the entry of judgment containing that order. We reverse.

Issue

Was the judgment for damages entered after remand for a sum certain, determinable on its face without resort to extraneous facts, complete and certain in itself so as to terminate all controversies before the court between the litigants?

Decision and Opinion

A final judgment is a terminative decision by a court of competent jurisdiction which demonstrates there has been complete adjudication of all matters in controversy between the litigants within the cognizance of that court. That is, it must be conclusive and certain in itself. Gandy v. Hagler, 245 Ala. 167, 16 So.2d 305; Bell v. Otts, 101 Ala. 186, 12 So. 43. All matters should be decided; damages should be assessed with specificity leaving the parties with nothing to determine on their own. A judgment for damages to be final must, therefore, be for a sum certain determinable without resort to extraneous facts. Gandy v. Hagler, supra; Drane v. King, 21 Ala. 556.

The amended decree falls far short of the above stated criteria for a final judgment, conclusive and certain in itself. After remand no evidence was taken of market prices showing damages sustained that would enable the trial court to fix them in an amount certain. The trial court’s amended decree arbitrarily set dates as being those from which damages should be measured. No evidence was adduced concerning the dates of events involved in this controversy that would facilitate the trial court’s determination of pertinent market prices to be employed in computing damages as of those relevant dates—dates of injury under the law. The trial court merely recorded what the parties wished to be allowed to prove, as expounded by their attorneys. The court subsequently “awarded damages, ” but did so without any evidence as to what those damages were and by what measure they were to be assessed. By the terms of the amended decree the parties were free to go and seek to determine the sum of these damages. Findings as to the dates of injury and pertinent market prices so necessary to assessment of damages may not be left for the parties to determine. To do so would cause the judgment to depend upon facts extrinsic to the record. Such a judgment is not one for sum certain damages amounting to final and certain determination by the court of all matters considered respecting damages. A hearing should be conducted at which evidence can be received on these questions.

Damages for breach of contract are awarded a party for the purpose of returning that party to the same position he would have occupied if the contract had not been violated. Geohagan v. General Motors Corp., 291 Ala. 167, 279 So.2d 436. For the injured party to be placed in the same position he would be had the contract not been violated, measure of damages must be made from dates of injury. Dates of injury are dates of breaches of contract resulting in injury. This by necessity demands that the trial court have available to it the amount at which the appellant sold the cotton subsequent this court’s decision of 8 May 1975, as well as the average price for which cotton sold on a date of injury. Without this evidence there is no method by which the trial court could properly assess damages so as to place Jewell in the same position in which he would have been had the contract not been breached.

The amended order of the trial court is not a final judgment complete and certain in itself and is reversed and remanded for further proceedings not inconsistent with this opinion.

REVERSED AND REMANDED.

HEFLIN, C. J., and BLOODWORTH, FAULKNER and ALMON, JJ., concur.


text:
    Elizabeth S. SNOW v. Martha Gayle ABERNATHY et al. Martha Gayle ABERNATHY et al. v. Elizabeth S. SNOW.
    SC 1186, SC 1186-X.
    Supreme Court of Alabama.
    April 30, 1976.

      Zeanah, Donald, Lee & Williams, Tuscaloosa, for appellant and cross-appellee.
    McCoy Davidson, Tuscaloosa, for appel-lees and cross-appellants.
   EMBRY, Justice.

Elizabeth S. Snow appeals from judgment that declared Code of Ala., Tit. 55, § 460(6) (c), as applied to the facts of this case, in part unconstitutional and in another part constitutional.

Martha Gayle Abernathy, Judy Tucker and Michael David Snow, cross-appeal complaining of that part of the judgment favorable to Elizabeth S. Snow.

The Case

The Code section, subject of the declaration in the judgment from which this appeal and cross-appeal are taken, is one of the provisions of the Employees’ Retirement Systems Act. The Retirement Systems govern retirement benefits of certain employees of the State of Alabama and certain employees of participating counties, cities, towns and public or quasi public organizations. The Systems were first established by Act No. 515, Regular Session of the Legislature of Alabama of 1945. An amendment, pertinent to this case, was enacted in 1967.

Abernathy, Tucker and Snow filed an action against Elizabeth S. Snow, David G. Bronner and J. Ben Swindle. Abernathy, Tucker and Snow are the children and heirs at law of Henry O. Snow, Jr., deceased. Abernathy and her husband are executors of his Last Will and Testament. Elizabeth S. Snow is his widow. Bronner is Secretary-Treasurer of the Retirement Systems of Alabama. Swindle is Retirement Executive of the Systems. Their complaint was amended. The amended complaint sought a declaratory judgment and injunctive relief: to declare the Retirement Systems Act unconstitutional if applied to provide for return of contributions of Henry 0. Snow, Jr., deceased, to the surviving spouse rather than the beneficiary (his estate) designated by him prior to the 1967 Amendment to the Act, and to enjoin payment by Bronner and Swindle of any monies held by the Retirement Systems payable by virtue of Snow’s membership therein, pending final determination by the trial court of those entitled to such monies.

After evidentiary hearings, without a jury, the judgment entered by the trial court provided in part:

“IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED that the 1967 and 1971 Acts of the Legislature which provide that upon the death of a member not eligible for service retirement, after 25 years of creditable service, that his contributions and the interest shall be paid to his surviving spouse are unconstitutional as impairing the obligation of its contract, as owed to Henry O'. Snow, Jr., while he lived and as it devolved on his executor or estate upon his death.
“IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Mr. Henry O. Snow, Jr., and the beneficiaries of the Estate of Henry O. Snow, Jr., acquired vested and contractual rights in having his contributions, plus interest, returned in accordance with the Return of Contributions (Section 6(b), as provided in Act Number 515, Alabama Legislature of 1945, which is to the person designated on a form provided by the Retirement System or to his Estate,
“IT IS FURTHER ORDERED, ADJUDGED AND DECREED that all contributions and interest payable as a result of the membership of Henry O. Snow, Jr., in the Alabama Retirement Systems are to be paid to the Register of this Court, who shall pay same to Martha Gayle Abernathy and Dr. William M. Abernathy, as Executors of the Last Will and Testament of Henry O. Snow, Jr., said payment to be for the use and benefit of Plaintiffs and the Defendant Elizabeth S. Snow and said monies shall be handled by said Executors in accordance with law. The $5,000 death benefit is to be paid to Elizabeth S. Snow.
“IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the Plaintiffs are entitled to part of the relief prayed for; that the Defendant, Bronner and Swindle, in their representative capacity as officials for the Alabama Retirement Systems pay the contributions and interest portion of the monies in their care, custody and control or this portion of the monies in the Alabama Retirement Systems, which are due and payable as a result of the membership of Henry O. Snow, Jr., in said systems to the Register of this Court. The $5,000 death benefit is to be paid to Elizabeth S. Snow in accordance with the normal procedure of the System. Upon such payments any and all liability, claims and demands against the Alabama Retirement Systems, the Defendants Bronner and Swindle, individually and in their representative capacity shall be and they hereby are terminated and ended.”

The Facts

Henry Snow was employed by the City of Tuscaloosa on August 1, 1943. The Employees’ Retirement Systems were established by legislative act some two (2) years subsequent to his employment. Henry Snow elected to become a member of the Retirement Systems in 1947, by executing a written instrument. By that same document he designated his first wife, Martha Gayle Snow, beneficiary as permitted by Act No. 515, Regular Session of the Alabama Legislature of 1945. In pertinent part that Act provided:

“ * * * (b) Should a member die before retirement, the amount of his contributions with such interest as would have been returnable in the case of withdrawal as provided in paragraph (a) of this subsection shall be paid to his estate, or to such person as he shall have nominated by written designation duly executed and filed with the board of control. * * * ”

Henry Snow divorced his first wife, Martha Gayle, in 1965, and changed his beneficiary from her to his estate. On August 28, 1966, Snow married the appellant, Elizabeth S. Snow who became his widow upon his death during January 1974. By 1967 Amendment to Retirement Systems Act (Code of Ala., Tit. 55, § 460(6)(c)), Act No. 515, Acts of Alabama, 1945, Regular Session, was changed as it pertained to return of contributions. Also, the 1967 Amendment designated the surviving spouse as beneficiary to whom contributions would be returned and added a surviving spouse benefit.

It provided in part:

“ * * * (c) In case of the death of a member not eligible for service retirement, after completion of twenty-five years of creditable service, an allowance shall be paid to the surviving spouse in an amount that would have been payable if the member had retired for disability immediately prior to his death and had elected Option 3, as set forth in subsection (7) of this section, or if the surviving spouse desires he may choose to receive the accumulated contributions of the member in lieu of the allowance provided under Option 3 plus an amount equal to the accumulated contributions of the member not to exceed $5,000.00; or (d) Upon the death of a member on account of whom no survivor allowance is payable under (b) or (c) above the accumulated contributions of the member plus an amount equal to the accumulated contributions not to exceed $5,000.00 shall be paid to his estate, or to such person as he shall have nominated by written designation duly executed and filed with the board of control. * * *” Code of Ala., Tit. 55, § 460(6).

After Henry Snow died, his widow, Elizabeth Snow, filed for return of her deceased husband’s contributions with accumulated interest (as provided for under the 1967 Amendment) and also filed for the surviving spouse benefit that was created by that Amendment.

The Issues

The issues presented for review are:

(a) Did decedent acquire vested contractual rights, including a right to designate his beneficiary, when he became a member of the Retirement Systems in 1947?

(b) If the decedent acquired vested contractual rights, is Code of Ala., Tit. 55, § 460 (the 1967 Amendment to the Retirement Systems Act), in its application to this case, an unconstitutional impairment of those rights ?

(c) Is the widow, Elizabeth Snow, entitled to the death benefit of $5,000, as provided in Code of Ala., Tit. 55, § 460(6) (c), regardless of that statute’s constitutionality, or lack of it, as it was here applied?

The Decision

Issues (a) and (b) outlined above have been previously answered by this court in the case of Smith v. City of Dothan, 279 Ala. 571, 188 So.2d 532, for all practical purposes.

In Smith v. City of Dothan, supra, an employee exercised his right voluntarily to become a member of a retirement system provided for the employees of the City of Dothan under a legislative act and pay 5% of his salary as contributions toward retirement benefits. Later the legislature limited the deduction of 5% to the first $4,800 of salary and by doing so reduced monthly pension amounts payable under the plan after retirement. When the employee retired he claimed that he was entitled to benefits based upon 5% of his full salary throughout his entire contributing period of work, contending that the legislature had no right to reduce the benefits. He offered to pay the difference in the contributions that he had paid and what he would have paid under the original plan. The court ruled with the employee, holding that under a voluntary retirement program the constitutional prohibitions prohibiting the passage of a law that impairs the obligation of a contract controlled and, therefore, the later legislative act which reduced his pension benefits was not controlling. In reaching this decision, this court said:

“A controlling question presented for our decision is whether under the agreed facts of this case appellant acquired a vested right of contract to pension benefits provided by law in effect at the time the amendatory Act 424, supra, was passed and approved. In other words, are appellant’s rights to a retirement or pension determinable under Act 103, supra, free of the amendment impressed by Act 424?
“The Constitution of the United States, § 10, Article 1, provides that no state shall pass any law impairing the obligations of contracts, while our Alabama Constitution, Article 1, § 22 provides: ‘That no ex post facto law, nor any law, impairing the obligations of contracts * * * shall be passed by the legislature; * * *."
“It is settled law that § 22, Article 1 of the Constitution of 1901 does not simply inhibit the State from impairing the obligations of contracts between individuals, but applies with like force and effect to contracts made by the State or with one of its agencies when authorized by law. Slaughter v. Mobile County, 73 Ala. 134; Sweet v. Wilkinson, 252 Ala. 343, 40 So.2d 427, 431, citing other cases.
******
"The case of Roddy v. Valentine, 268 N.Y. 228, 197 N.E. 260, cited by the trial court in support of judgment rendered, did not recognize the distinction between voluntary and involuntary contributions by the official in question. In the last-cited case the New York court cited the case of Ball v. Board of Trustees of Retirement Fund, 71 N.J.L. 64, 58 A. 111. It is apparent from the opinion in the Ball case, supra, that the basis of the holding that contractual rights were created was where contributions were voluntary and the contract arose out of the pensioner’s acceptance of the offer of a pension by voluntarily paying the contributions for the required time. Subsequent decisions of the New Jersey court, which rendered the decision in the Ball case, supra, hold that where the contributions were not voluntary no contractual rights existed with respect to the pension.
“The Supreme Court of New York, subsequent to the decision in Roddy v. Valentine, supra, recognized as a determining factor, as to whether a pension law created contractual rights, the question vel non of compulsory contributions, citing Jones v. Valentine, 164 Misc. 443, 298 N.Y.S. 802, 804.
******
“We have read with interest the case of State v. City of Jacksonville Beach (Fla.App.), 142 So.2d 349, 352-353, wherein the facts are not on all-fours with the case at issue in this court, but impressive statements appear in this opinion. We quote:
“ ‘Whether a given pension or retirement plan created by an act of the legislature confers upon employees participating therein a vested right of contract depends upon whether participation is voluntary upon the election of the employee, or whether participation is man-datorily required of all persons included within the plan regardless of their desire to become members thereof.
******
“ ‘Contrary to the rule above stated, it is equally established by decisional law of this state that benefits provided for employees under a voluntary pension or retirement plan created by an act of the legislature may not be modified or reduced by subsequent amendatory legislation for the reason that those electing to participate in such voluntary plans acquire vested rights of contract to the benefits provided therein upon acceptance of the plan, which rights may not be impaired by subsequent amendments to the act.’ ” Smith v. City of Dothan, 279 Ala. 571, 574, 188 So.2d 532, 534.

It is voluntary participation at the election of the employee that precipitates vesting of contractual rights of that employee in the pension or retirement plan. In this case Snow made the voluntary election by executing a written instrument expressly assenting to membership in the Retirement System. This is not to say that such is the only method of expressing, assent.

Though management (or the legislature) may reserve the right to revise or amend the plan, vested rights of the employee may not be impaired and will be safeguarded. Weesner v. Electric Power Board of Chattanooga, 48 Tenn.App. 178, 344 S.W.2d 766 (1961).

A basic determining factor to a resolution of the question of whether Snow acquired vested contractual rights in the statutory retirement plan here under consideration is contribution or noncontribution to the fund. Snow contributed, therefore weight is added to the soundly reasoned conclusion that the relationship between him and the system was contractual in nature. His rights vested thereby and cannot be abrogated by legislation although legislation to improve the system is constitutionally permissible. State ex rel. O’Donald v. City of Jacksonville Beach, supra; Bardens v. Board of Trustees of Judges Retirement System, 22 Ill.2d 56, 174 N.E.2d 168; Clarke v. Ireland, 122 Mont. 191, 199 P.2d 965; Ball v. Board of Trustees of Teachers’ Retirement Fund, 71 N.J. L. 64, 58 A. 111.

Snow’s contractually vested right was to receive all benefits “contracted” for and included the power to designate his beneficiary. That right was provided by Act No. 515, Acts of Ala., 1945; the basis of the contractual agreement at the time of Snow’s election to participate. By electing, expressly or by assent, to participate in such plan employees acquire vested rights of contract to the benefits provided therein upon acceptance of the plan. Those rights may not be impaired by subsequent legislation.

While the Constitution and law protects those rights vested in Snow, a for-tiori, the law limits his rights of contract to those for which he bargained. Snow acquired no contractual rights to the added surviving spouse benefit provided by the 1967 Amendment—a statutory gratuity. Snow did, and could have done, nothing to vest in himself the right to designate who should receive a gratuitous surviving spouse benefit granted by the legislature subsequent to when his vested rights were defined in 1945 upon passage of the original Retirement Systems Act. The surviving spouse benefit, it will be recalled, was not created until 1967. Therefore while Code of Ala., Tit. 55, § 460(6)(c), is unconstitutional as applied to abrogate Snow’s right to designate the beneficiary of return of contributions and interest thereon, it did not retroactively grant a concomitant designation of recipient of the $5,000 surviving spouse benefit.

The trial court correctly applied the law to the facts to find Elizabeth Snow, the widow, should receive the $5,000 death benefit; the estate of Henry Snow to receive all contributions and accumulated interest thereon; therefore, the judgment is due to be affirmed.

AFFIRMED.

HEFLIN, C. J., and MERRILL, BLOODWORTH, MADDOX, FAULKNER, JONES, ALMON and SHORES, JJ., concur.


author: JONES, Justice.

text:
    Earnie HUBBARD, Jr. v. Jerome CUTTS et al.
    SC 1549.
    Supreme Court of Alabama.
    May 7, 1976.
    Emond & Vines and Steven D. Tipler, Birmingham, for appellant.
    Roberts & Davidson, Tuscaloosa, for ap-pellee.
   JONES, Justice.

This appeal by Earnie Hubbard, plaintiff below, questions the correctness of the trial Court’s order granting motion for summary judgment in favor of Jerome Cutts.

The issue here presented is a narrow one. Hubbard’s complaint purports to assert a third-party claim for personal injury while employed by A-l Welding Company on May 18, 1973, under Title 26, § 312, Code, against Cutts as the employer’s chief executive officer.

The motion for summary judgment alleges that Hubbard was injured while employed by A-l Welding Company but that he filed a claim for workmen’s compensation benefits against Cutts d/b/a A-l Welding Company, which resulted in a consequent settlement adjudging Cutts d/b/a A-l Welding Company liable to Hubbard for such benefits in an amount agreed upon by the parties and approved by the court. Quite simply, then, we are asked to decide whether the trial Court erred in granting Cutts’ motion for summary judgment where there is neither averment nor direct proof by the movant party, Cutts, that he, as an individual, was the employer of Hubbard. We hold that it did; we reverse and remand.

The only basis for summary judgment sought to be raised by Cutts was the immunity provisions of the Workmen’s Compensation Act (§ 272). If Hubbard was the employee of Cutts at the time of his injury on May 18, 1973, Hubbard’s exclusive remedy, as far as Cutts is concerned, is under the provisions of Title 26, § 253 et seq. If, on the other hand, Cutts was an officer of A-l Welding Company, a corporate employer, Cutts is not covered by the immunity provisions of the Act and may be named as a defendant in a third-party suit under § 312. Apart from the pleadings—plaintiff’s complaint and defendant’s motion for summary judgment— the only evidence before the trial Court was Hubbard’s deposition and the court file in the workmen’s compensation case.

The rule to follow was recently set out in Donald v. City National Bank of Dothan, 295 Ala. -, 329 So.2d 92 (1975): “[A]s noted in the last sentence of Rule 56(e), supra, summary judgment can still only be entered against [the nonmovant party] if ‘appropriate.’ That is, the mov-ant party must initially show the absence of a genuine issue of material fact.”

The movant, here, fails to meet this test in two particulars:

1. The motion for summary judgment conspicuously avoids a direct averment that Cutts was Hubbard’s employer at the time of the accident, and

2. Hubbard’s affidavit shows affirmatively that his employer was A-1 Welding Company, a corporation, with Cutts as its chief executive officer.

Definitively, and without need for speculation or doubt, Hubbard, at the time of his injury-producing accident, had but one specific employer—a fact which is highly susceptible to proof. There is absolutely no necessity for equivocation about this objective fact. Even without Hubbard’s testimony, Cutts, as the movant party, has not met the burden of initially showing the absence of a genuine issue of material fact.

Moreover, the following appears on pages 54-55 of Hubbard’s deposition (during the questioning by Cutts’ lawyer):

“Q. How long had you known Mr. Cutts before you went to work that day, I mean that week, rather ?
“A. All my life.
“Q. . . . You knew that he was the President or Agent or Stockholder; he was the boss, in other words ?
“A. Yes sir.
“Q. And you knew that he was doing business under a corporate name as A-l Welding Company?
“A. Yes sir.”

It is apparent by the leading nature of these questions that Cutts was conceding, rather than contesting, the fact that Hubbard’s employer was A-l Welding Company, a corporation.

REVERSED AND REMANDED.

All the Justices concur.

      . For the purpose of clarity, it should be noted that since this accident occurred on May 18, 1973,. the validity vel non of the 1973 amendment to § 312 is not before us. (See Goodrich v. Butler, 56 Ala.App. 635, 324 So.2d 776, certiorari quashed, 295 Ala. -, 324 So.2d 788 (1975)). The parties concede that Cutts is subject to a third-party suit under this Court’s interpretation of § 312 (U. S. Fire Insurance Company v. McCormick, 286 Ala. 531, 243 So.2d 367 (1970)), in the event Cutts was not Hubbard’s employer at the time of the accident.

      . The most recent amendment to § 312 (Act No. 86, 4th Extraordinary Session, 1975), includes the provision, “[N] either an officer, director, agent, servant or employee of the same employer . . . shall be considered a party other than the employer against whom such an action may be brought.” Our noting of this amendment is not to be construed as commenting on its validity.


text:
    David H. GARDNER v. Fred Marvin DORSEY.
    SC 1436.
    Supreme Court of Alabama.
    May 7, 1976.
    Timberlake & Werdehoff, Huntsville, for appellant.

      Bell, Richardson, Cleary & Tucker and James H. Porter, Huntsville, for appellee.
   JONES, Justice.

This is an automobile negligence case. The plaintiff, David H. Gardner, was a passenger in a car driven by Paul Miller which collided with a car driven by Fred Marvin Dorsey. Gardner sued both Dorsey and Miller for wantonness and simple negligence. The jury found in favor of defendant Dorsey against Gardner on both the wantonness' and simple negligence counts. The jury found in favor of defendant Miller against Gardner on the wantonness count but in favor of Gardner against Miller on the simple negligence count and awarded him $500. The trial Judge granted Gardner an additur against Miller and denied Gardner’s motion for a judgment n. o. v. against Dorsey. Gardner at first appealed both judgments but later dropped the appeal against Miller. This is the appeal against Dorsey. We reverse and remand for a new trial.

Gardner argues four issues. First, the trial Judge should not have granted Dorsey’s requested instructions to the effect that the jury could not find for the plaintiff against Dorsey under the negligence count of the complaint if they were reasonably satisfied that the injury to the plaintiff was caused in part by the negligence of Miller. Second, the Court erroneously instructed the jury that any negligence on the part of Miller was imputable to Gardner so as to bar Gardner from recovery against Dorsey on the ground of contributory negligence. Third, a rehabilitation counselor who was assisting Gardner establish a rehabilitation program should have been allowed to testify as to his opinion on Gardner’s diminished earning capacity. Finally, the verdict was against the preponderance of the evidence.

Our reversal of the trial Court’s judgment is based upon Gardner’s first and second issues. These issues relate to the trial Judge’s oral instruction to the jury and Dorsey’s Requested Charge Number Three, both of which stated that any negligence of the driver, Miller, was imputable to his passenger, Gardner, so as to bar Gardner’s recovery from Dorsey on the ground of contributory negligence. Since our reversal is based on these issues alone, we find it unnecessary to discuss the other issues presented in this appeal.

Requested Charge Number 3 reads as follows:

“The Court charges the jury that you cannot find for the plaintiff, David H. Gardner, against the defendant, Fred Marvin Dorsey, under Count Two [the negligence count] of the complaint if you are reasonably satisfied from the evidence that the injury of which plaintiff, David H. Gardner, complains was in part caused by the negligence of the driver of the vehicle in which plaintiff was riding, Paul St. Clair Miller.”

This instruction is a misstatement of substantive law. The rule for imputing a driver’s negligence to his passenger is well established in Alabama. A correct statement of the law is found in Johnson v. Battles, 255 Ala. 624, 52 So.2d 702 (1951):

“ . . .in order to create the imputation of negligence of the driver to the passenger, the passenger must have assumed control and direction of the vehicle or must have some right to a voice in the control, management or direction of the vehicle.”

Since the instruction did not include this explanation, but only stated that any negligence of Miller was imputable to Gardner, the instruction misstated the law.

Gardner’s objection to the Requested Charge was:

“I want to except to The Court giving Requested Charge Number 3 for the defendant, Fred Marvin Dorsey, Civil Action Number 73-658, in that it is misleading. It assume an agency relationship or joint enterprise. There has been no testimony as to agency relationship or joint enterprise of the Defendant Paul St. Clair Miller and the Plaintiff, David H. Gardner.”

This objection is specific enough to preserve the trial Judge’s error on the requested charge; therefore, the error requires a reversal of this case.

We also hold that the oral charge of which Gardner complains requires a reversal of this case. The oral instruction of which Gardner complains occurred after the closing of the case when the jury interrupted its deliberation to ask the following questions:

“What is the definition of guest and passenger? How does each, guest and passenger, relate to wanton and simple negligence ?”

In response thereto the trial Judge instructed the jury:

“ . . . [I]f you determined that he [Gardner] was a guest and that Miller was contributorily negligent, then you could not find against Dorsey on the simple negligence count ... I will try to repeat it. If you find that the Plaintiff was a guest in Miller’s car and if you find that Miller was guilty of simple negligence which contributed to the accident, then you could not find against Dorsey on the simple negligence count, but you could on the wanton count, because contributory negligence is not a defense to a wanton act . . . ”

Again, this instruction is a misstatement of substantive law. Johnson v. Battles, supra.

Dorsey concedes the instruction was erroneous, but he contends that Gardner did not properly preserve the error for review because his objection did not state grounds. Dorsey relies upon ARCP 51, which states in pertinent part:

“No party may assign as error the giving or failing to give a written instruction, or the giving of an erroneous, misleading, incomplete, or otherwise improper oral charge unless he objects thereto before the jury retires to consider its verdict, stating the matter to which he objects and the grounds of his objection.”

The objection which Gardner’s attorney entered to the oral instruction is as follows :

“The Plaintiff excepts to that portion of The Court’s oral charge where The Court instructed the Jury that if they found that the Plaintiff was a guest, then any negligence of the Defendant Miller would be attributed to the Plaintiff Gardner and would bar his recovery under contributory negligence. I also except to The Court failing to instruct that any benefit conferred on the driver or for the mutual benefit of the driver and the rider would take the case out of the guest statute and make the Plaintiff a passenger.”

The purpose of stating grounds for objections is to give the trial court an opportunity to correct the instructions and to avoid the waste of time and money from reversals that result from oversight, technical omissions, or remedial mistakes. New Orleans & Northeastern R. Co. v. Hewett Oil Co., 341 F.2d 406 (5th Cir. 1965). Several federal cases which have considered the question whether a particular objection was sufficient to preserve error under FRCP 51 have found that a specific objection alone, without stated grounds, is sufficient where it adequately informed the trial judge of his error and afforded him an opportunity to correct it. Haynes v. Coolidge, 118 U.S.App.D.C. 348, 336 F.2d 736 (1964).

We find that the objection in the instant case adequately informed the trial Judge of his error and afforded him an opportunity to correct it because of the specificity of the objection and the particular nature of the trial Court’s error. It is significant that Gardner’s attorney pointed out and recited exactly the portion of the charge which he found objectionable.

Specificity has been regarded as extremely important by federal cases interpreting FRCP 51. Most cases draw a distinction between objections which recite portions of instructions and those which simply refer to instructions by number. An example is Delancey v. Moticheck Towing Service, Inc., 427 F.2d 897 (5th Cir. 1970). There, an objection in the form, “In regard to defendant’s submitted special charges 5 and 6 we would like to object to the court having given those charges”, was held insufficient to preserve error, while an objection specifically pointing out the “failure of the court to instruct, or define the term ‘wilful misconduct’ ” was within Rule 51, even though no grounds were stated.

This is not to say that the practice of specifically reciting objectionable portions of a charge will normally relieve a party from stating grounds for objection; however, this case is an exception because of the nature of the error involved. The trial Judge’s instruction in the instant case misstated a pbint of substantive law. Federal courts, in narrow and limited circumstances, have held that misstatements of substantive law in jury instructions can be preserved for review without specifically stating grounds for objection.

In a case remarkably similar to the instant case, the Second Circuit ruled that a plaintiff’s counsel successfully preserved for review a trial court’s erroneous instruction imputing the contributory negligence of a driver to his passenger simply by taking exception “to that portion of your Honor’s charge wherein you stated that if the jury found the plaintiff . guilty of contributory negligence then the other plaintiffs could not recover.” Although the passenger’s counsel listed no grounds for his objection, the Second Circuit held that his exception was sufficient to comply with Rule 51 “at least where as here the court was sitting in the state of governing law.” Di Bari v. Fish Transport, 275 F.2d 280 (2d Cir. 1960). In other words, the Second Circuit presumed that trial judges sitting in the state of governing law are familiar with applicable substantive law; therefore, simply pointing out a misstatement is sufficient to put a judge on notice of his error. We believe that this is a valid presumption to apply to state judges as well as federal judges.

To hold otherwise is to test the imagination of the objecting party in formulating his grounds. Indeed, what would he state as grounds for his objection to a misstatement of substantive law, as here, other than to say, “Your Honor, that is not the law” ? Surely, the Rule does not contemplate that the objecting party, in order to preserve for review an erroneous instruction, is required to deliver a discourse before the trial judge on the applicable law of the case. See Taylor v. Denver and Rio Grande Western R. Co., 438 F.2d 351 (10th Cir. 1971). Accordingly, we hold that Gardner’s counsel sufficiently preserved error on the guest statute instruction and the erroneous instruction requires a reversal of this case.

REVERSED AND REMANDED.

HEFLIN, C. J., and MERRILL, MADDOX and SHORES, JJ., concur.


text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a corp. v. AUTO-OWNERS INSURANCE COMPANY, a Corporation, et al.
    SC 1573.
    Supreme Court of Alabama.
    April 30, 1976.
    Ramsey & Baxley, Dothan, for appellant.
    Lee & Mclnish and Alan C. Livingston, Dothan, for appellees.
   EMBRY, Justice.

State Farm Mutual Automobile Insurance Company (State Farm) appeals from declaratory judgment holding its policy issued to one James Folkes afforded him coverage against damages that might be awarded in an action arising from an automobile accident. The same judgment declared that no coverage was afforded him under a policy issued to Geneva County Motor Company by Auto-Owners Insurance Company (Auto-Owners).

The Case

David Murphy filed an action for damages against Folkes and Geneva County Motor Company because of injuries suffered from the alleged negligence of Folkes in the operation of an automobile (owned by Motor Company). Folkes was insured by State Farm and the Motor Company by Auto-Owners.

State Farm then filed suit seeking a declaratory judgment that its policy issued to Folkes only provided excess coverage and that provided by Auto-Owners was primary. State Farm prayed for and was granted an injunction against prosecution of Murphy’s litigation until after a hearing of the suit for declaratory judgment. After such hearing the trial court made, in addition to others, the following findings of fact and conclusions of law :

“* * * (1) that Folkes was a garage customer as defined in the Auto-Owners policy and (2) that the policy provisions hereinabove set forth are valid and binding provisions of the respective policies and such provisions are not contradictory to public policy as expressed in the financial responsibility laws of the State of Alabama.
“Upon consideration of the above admissions, stipulations, findings of fact, arguments of counsel, evidence introduced by the parties, and the pleadings, this Court is of the opinion that the policy of insurance issued by Defendant, Auto-Owners Insurance Company does not afford coverage to James Roger Folkes. The Court finds that the provisions of the policy of insurance issued to Geneva County Motor Company by Defendant, Auto-Owners Insurance Company expressly provided that no coverage was afforded to a person operating a vehicle owned by Geneva County Motor Company where there existed other valid and collectible insurance, even though such insurance be excess insurance. The Court finds that the policy of insurance issued by Plaintiff, State Farm Mutual Automobile Insurance Company, provided at least excess coverage to Folkes. Therefore, there is no coverage afforded to Folkes under the Auto-Owners Insurance Company policy. * * *”

Judgment was entered accordingly. We affirm.

Facts

Folkes delivered his automobile to Geneva County Motor Company for repairs and the Motor Company lent him an auto for use until completion of those repairs. While driving the borrowed auto he collided with an auto operated by one Murphy. Murphy was injured and the action against Folkes for damages ensued.

State Farm’s action for declaratory judgment sought to determine whether the coverage of the driver or of the owner was primary. The case was submitted on the policies of State Farm and Auto-Owners together with admissions and stipulations of fact.

The policy of State Farm issued to Folkes contained the following provision:

“All of the foregoing provisions and all coverages are subject to the following:
“(a) The insurance with respect to a newly acquired automobile SHALL NOT APPLY TO ANY LIABILITY OR LOSS AGAINST WHICH THE INSURED HAS OTHER COLLECTIBLE INSURANCE APPLICABLE THERETO IN WHOLE OR IN PART.
“(b) The insurance with respect to
(i) a temporary substitute automobile,
(ii) a trailer, or
(iii) a non-owned automobile,
owned by any person or organization, engaged in the automobile business, SHALL NOT APPLY TO ANY LIABILITY OR LOSS AGAINST WHICH THE INSURED OR THE OWNER OF SUCH VEHICLE HAS OTHER COLLECTIBLE INSURANCE APPLICABLE THERTO, IN WHOLE OR IN PART.
“(c) Subject to the foregoing paragraph (b), the insurance with respect to any other temporary substitute automobile, trailer or non-owned automobile shall be excess over other collectible insurance.”

The policy issued to Geneva County Motor Company by Auto-Owners contained the following:

“Garage customers are not insureds with respect to the use of automobiles covered by this policy except in accordance with the following additional provisions :
“(1) If there is other valid and collectible insurance, whether primary, excess or contingent, available to the garage customer and the limits of such insurance are sufficient to pay damages up to the applicable limit of the financial responsibility law of the state where the automobile is principally garaged, no damages are collectible under the policy.
“(2) If there is other valid and collectible insurance available to the garage customer, whether primary, excess or contingent, and the limits of such insurance are insufficient to pay damages up to the applicable limit of the aforesaid financial responsibility law, then this insurance shall apply to the excess of damages up to such limit.
“(3) If there is no other valid and collectible insurance, whether primary, excess or contingent, available to the garage customer, this insurance shall apply but the amount of damages payable under this policy shall not exceed the applicable limit of the aforesaid financial responsibility law.”

Issues Presented for Review

(1) Did the policy of insurance issued by State Farm to Folkes afford him such coverage that the policy issued by Auto-Owners to Geneva County Motor Company afforded him none?

(2) Is the exclusionary provision in the Auto-Owners policy contra to the public policy of Alabama?

Decision and Opinion

The first issue can otherwise be stated, as it was in brief by Auto-Owners: which coverage is contingent or excess and which coverage is primary?

Various types of “other insurance” clauses were analyzed and discussed at length, most recently in State Farm Mutual Automobile Insurance Co. v. Auto-Owners Insurance Co., 287 Ala. 477, 252 So.2d 631 (1971) and Continental National American Group v. Burleson, 283 Ala. 671, 220 So.2d 611 (1969). By reference to those decisions we may characterize the “other insurance” clause set out in this opinion, found in the State Farm policy, as an automobile-business-owned temporary substitute automobile “escape clause.” That clause from the Auto-Owners policy which is set out herein could be described as one “exclusionary” of otherwise insured garage customers.

It is the specific composition of the “exclusionary” clause of the Auto-Owners policy, under the operative facts of this case, which takes this case from without the general rule that primary coverage follows ownership of the auto. That rule underlies the reasoning in State Farm, supra, and Burleson, supra. No coverage is afforded garage customers if there is available other collectible insurance, whether primary, excess, or contingent. The distinguishing factor is the specificity of the “exclusion.”

Where the exclusionary clause is specific by its terms to include primary or excess insurance, excess insurance constitutes “other collectible insurance”, and permits operation of the exclusion. United States Fidelity and Guaranty Co. v. Dixie Auto Insurance Co., 292 F.Supp. 554 (Ala.) (1968). The general rule that primary coverage follows ownership is not controlling where there is a specific exclusionary clause rather than a “simple” escape clause contained in the owner’s policy. Continental Casualty Company v. Weekes, 74 So.2d 367 (Fla.) (1954).

Auto-Owners’ policy intended to extend coverage to additional insureds only when they have no other coverage available to them. Excess coverage as provided by State Farm, constitutes “other insurance” as contemplated in the exclusion found in Auto-Owners’ policy. Therefore, State Farm’s coverage is primary. Clearly, Auto-Owners has the right to determine the class of persons it wishes to insure as long as the policy provides the coverage required by law. Auto-Owners’ policy is not violative of the public policy of this State expressed in the Motor Vehicle-Safety Responsibility Act. Code of Ala., Tit. 36, § 74(42), et seq.

By sustaining the operative effect of the Auto-Owners exclusionary clause Folkes is not deprived of the amount of liability insurance which the law requires he be afforded. Were it not provided by the State Farm policy—other available insurance— the Auto-Owners’ policy would provide it to the full extent required by law. The law is only concerned that required coverage is provided, not by what or which carrier. The requirements of coverage may be fulfilled by policies of one or more carriers which together meet the requirements. Code of Ala., Tit. 36, § 74(62)(j).

Lest it be thought this opinion is overly simplistic I will quote my brother, Blood-worth, quoting the Supreme Court of Arizona in Burleson, supra:

“ * * In light of the host of words which have been written on the subject, we express doubt as to whether anything further could be added which would substantially enlighten the bench or bar. * * *' ”

The findings and judgment of the trial court are without error.

Affirmed.

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


author: HEFLIN, Chief Justice.

text:
    Mrs. Net V. TYLER, Administratrix of the Estate of Cecil H. Tyler, Deceased v. INSURANCE COMPANY OF NORTH AMERICA, INC.
    CER-4.
    Supreme Court of Alabama.
    May 7, 1976.
    Rehearing Denied July 2, 1976.
   ANSWERS TO CERTIFICATE FROM THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT TO THE SUPREME COURT OF ALABAMA

HEFLIN, Chief Justice.

This case is before the court on certified questions from the United States Court of Appeals, Fifth Circuit, under the authority of Section 6.02(b)(3) of Amendment 328 to the Alabama Constitution, 1901 (Section 140(b)(3), Constitution, amended, appearing in the unofficial 1958 Recompiled Code —1973 Cum.Supp.) and Rule 18, Alabama Rules of Appellate Procedure (ARAP). Suit was begun in the United States District Court for the Northern District of Alabama, where plaintiff sought to recover for the death of her husband under the terms of a limited accident insurance policy. On cross-motions for summary judgment, supported by the pleadings and the deposition of the deceased’s son-in-law, the district court found for the defendant insurance company on the ground that there was no genuine dispute as to any material fact and that plaintiff had not stated a legal cause of action under the provisions of the insurance policy. On appeal to the Fifth Circuit, that Court found that certain questions of Alabama law were controlling and has certified those questions for decision by this court.

The facts in this case are all stipulated. This court accepts the facts as they are set out in the memorandum opinion of the district court:

Early on the morning of June 18, 1973, seventy-nine year old Mr. Tyler and his son-in-law, Mr. Lutz, embarked on a fishing trip to the Holt Lock and Dam. They went in Mr. Lutz’s car, to which was attached a boat trailer, which carried a 17 Y2 foot, flatbottomed fishing boat. When they arrived at the launching ramp, Mr. Lutz positioned the car and the trailer on the ramp about fifteen to twenty feet from the water. As was their custom, Mr. Tyler then got out of the car and proceeded to undo the boat and get it ready to launch. Part of his activity during this phase of the launching was to loosen and hold the “floating” rope, about thirty feet long, while the trailer was backed into the water. He would then hold this floating rope to secure the now-free boat, while Mr. Lutz drove the car and trailer forty to sixty feet away to park. At this point, the rope in Mr. Tyler’s hand was attached to the boat, which was still on the trailer, which in turn was attached to the car.

All went routinely until Mr. Lutz, mistakenly thinking the boat had floated free, drove up the ramp and parked the vehicle. While locking the passenger side door, he heard Mr. Tyler’s pleas for help, and, looking back through the passenger-side window, saw Mr. Tyler lying on the ground, seriously injured. He managed to get Mr. Tyler to the hospital. There he learned from Mr. Tyler that the boat had not floated free and that the deceased, assuming his son-in-law would pull forward and back in again, had continued to hold the floating rope. As soon as he saw that Mr. Lutz planned to park the car, he dropped the rope, not realizing that he was standing on it. The force of the car pulling forward looped the rope around the instep of Mr. Tyler’s left foot, resulting in his being pulled off his feet and dragged along behind the car and trailer. Mr. Lutz was oblivious to this series of events because the windows of his car were closed, and the back window was fogged.

On July 11, 1973, Mr. Tyler died from the injuries sustained in this accident.

The language of the insurance policy under which Mrs. Tyler seeks to recover reads,

“ * * * the company insures [Mr. Tyler] * * * against loss of life * * * resulting * * * from bodily injuries * * * caused by accident occurring while this policy is in force and arising- out of the following specific hazards :
(c) driving * * * or riding in or on, boarding or alighting from
(1) any pleasure type automobile * * * or
(d) being struck by any automobile, truck or public conveyance.”

The district court found the sole issue before it to be “whether the decedent’s death as a result of being pulled off his feet and dragged by a rope connected indirectly to an automobile may be said to have arisen out of alighting from an automobile and/or out of being struck by an automobile.” By granting the defendant’s motion for summary judgment, the district court concluded that the plaintiff’s deceased was not insured as a matter of Alabama law and that there were no facts which could properly go to a jury on the issue of coverage. The Court of Appeals found that Alabama law was uncertain in regard to the interpretation of several pertinent phrases in the insurance contract and concluded that this was a proper case for certification. The Court of Appeals therefore has certified the following questions to this court:

"1. Whether as a matter of Alabama law the word ‘alighting’ contained in clause (c) of the Insuring Agreement of the subject insurance contract can be construed to include the activity in which the insured was engaged at the time the chain of events concluding in his injury began.
“2. Whether as a matter of Alabama law the word ‘struck’ contained in clause (d) of the Insurance Agreement must be construed as requiring some sudden impact rather than any contact resulting from the motive force of the automobile and ending in injury.
“3. Whether as a matter of Alabama law the phrase ‘by any automobile, truck or public conveyance’ can be construed to include being struck, as defined by the answer to question 2 above, by a tangible object attached or connected to the automobile but not properly part of the automobile itself.
“4. Whether as a matter of Alabama law being pulled down and dragged by a rope attached to a boat which is resting on a boat trailer connected to an automobile, on which the insured was accidentally standing when the automobile started forward, can be construed as being covered under the provisions of clause (d) of the Insuring Agreement.”

As a general rule of Alabama law, an insurance contract will be construed most strongly against the party who framed it. Life Ins. Co. of Georgia v. Miller, 292 Ala. 525, 531, 296 So.2d 900, 905 (1974). The contract of insurance will be construed strictly against the insurer and liberally in favor of the insured. Life Ins. Co. of Georgia v. Miller, supra; Southern Ins. Co. v. Wilson, 214 Ala. 373, 108 So. 5 (1926). Finally, ambiguous provisions of an insurance policy will be construed most strongly against the insurer and in favor of the insured. E. g., National Life & Accident Ins. Co. v. Lokey, 166 Ala. 174, 52 So. 45 (1910).

There are two provisions of the policy here involved which the Court of Appeals has asked this court to construe:

(1) “alighting from * * * any pleasure type automobile” and
(2) “being struck by an automobile, truck or public conveyance.”

This court has not been presented the occasion, prior to this case, to construe the phrase “alighting from” as used in an automobile insurance policy. Still, other courts have considered this question and at least two have rendered decisions which seem particularly pertinent to our deliberations.

In the case of Carta v. Providence Washington Indemnity Co., 143 Conn. 372, 122 A.2d 734 (1957), the Supreme Court of Errors of Connecticut discussed a similar provision stating:

“It is not reasonable to believe that the parties intended the coverage to end for one who gets both feet on the ground after emerging from the vehicle and, while then in the act, let us say, of closing the door is struck by a passing automobile. Some reasonable length of time must be allowed a person, after getting out, for the completion of acts which can reasonably be expected from those in similar situations.”

The court then went on to apply the following negative test in order to determine when the act of alighting is completed:

“A person is not in the process of alighting if, at the time, he has completed all acts normally performed by the average person in getting out of an automobile under similar conditions and if he has embarked upon a course of conduct entirely distinct from acts reasonably necessary to make an exit from the car. Such an act of embarking cannot logically be converted into an act of alighting.”

The Connecticut court narrowly applied this test to the facts in Carta to deny recovery to the plaintiff who was injured when her car rolled over her as she walked around the front of it subsequent to exiting it.

The Mississippi Supreme Court, undei facts almost identical to those in Carta, allowed recovery under a policy which covered injuries sustained “while” alighting from an automobile. Saint Paul-Mercury Indemnity Co. v. Broyles, 230 Miss. 45, 92 So.2d 252 (1957). The court found that there was continuity of movement and no interruption in plaintiff’s actions involved in the act of alighting from the car and leaving it and, thus, the term “alighting from” included plaintiff’s actions at the time she was struck. This continuity of motion, the court felt, brought plaintiff under the policy provision where the car she had exited rolled over her as she crossed in back of it toward the door of her home. See Birmingham Ry., L. & P. Co. v. Glenn, 179 Ala. 263, 60 So. 111 (1912) (which involved an alighting from a train).

The policy provision in the case before this court includes the qualification that the “alighting” must be from a “pleasure type automobile.” This court finds that the inclusion of the phrase “pleasure type” may be construed to modify the meaning of “alighting” as well as to describe “automobile.”

Although this court approves the above quoted language from Carta as a test to apply to the facts of each case in determining whether an alighting is involved, we agree with the Mississippi court in Broyles that “no general rule of interpretation can be formulated in vacuo” and “the facts of each case must necessarily determine the result.” 230 Miss. at 49, 92 So.2d at 254. Based on this conclusion, plaintiff’s right to recover under the facts of this case was a question for the trier of fact and was not properly subject to a decision as a matter of law on summary judgment. The question for the jury would be whether the facts as stipulated by the parties would constitute an “alighting from” the automobile as normally performed on a pleasure fishing trip under similar circumstances.

The last three questions addressed to this court by the Court of Appeals require a construction of the provision of the insurance contract which reads “being struck by any automobile, truck or public conveyance.” Again no previous Alabama case has considered such a provision.

The Mississippi Supreme Court'had such a clause before it in the case of State Farm Mutual Automobile Insurance Company v. Johnson, 242 Miss. 38, 133 So.2d 288 (1961). There plaintiff’s decedent was killed when a plank placed under a wheel of his automobile was thrown by the automobile and struck him. The court concluded that “the peril against which the insured * * * had bought protection was that of a blow from a moving vehicle” and it was not material that the blow was inflicted by a plank rather than by a part of the vehicle so long as the vehicle was the moving force behind the blow. 242 Miss. at 42, 133 So.2d at 290. Under the majority rule, which this court now adopts, no actual physical contact between the plaintiff and the automobile is required for recovery. See Gilbert v. Life & Casualty Co. of Tennessee, 185 Ark. 256, 46 S.W.2d 807 (1932) (deceased struck by a cable attached to vehicle); McKay v. Travelers Indemnity Co., 27 Ohio Ops.2d 76, 193 N.E.2d 431 (Ohio App. 1963) (glass and canned goods toppled as result of a truck’s colliding with a building); Annot., 33 A. L.R.3d 962 (1970).

The district court did not reach the issue of whether direct contact with the automobile is required because it concluded that the facts of this case did not involve a “striking” as that word is understood by ordinary minds. This court cannot agree or so hold as a matter of law.

In the case of Dean v. American Fire & Casualty Co., 249 S.C. 39, 152 S.E.2d 247 (1967), the South Carolina Supreme Court had occasion to construe the term “struck” as used in an accidental insurance contract. The court noted that,

“The word ‘struck’ is the past tense of the word ‘strike’ which in its plain, ordinary and popular sense means ‘to hit with some force’; ‘to come in collision with’; ‘to give a blow to’; ‘to come into contact forcibly’.

The important phrase in this definition for our purposes is the phrase “to come into contact [with]”—the contact being sufficient if its result is injury to the plaintiff.

This court agrees with the district court’s conclusion that the words “struck by an automobile” require either an impact between the injured and the automobile, or between the injured and something set in motion by the impact of the automobile upon it or between the injured and something set in motion as a result of the automobile’s force. We do not agree that this impact has to be “sudden” as required by the district court. This court concludes that a finding of contact with an object whose motive force is an automobile is sufficient to bring the facts within the meaning of “struck by an automobile” as used in the contract of insurance in this case. The evidence as stipulated to by the parties reveals such contact here and brings this case under provision (d) of the insurance contract as a matter of law. Therefore summary judgment for plaintiff on this question would have been proper.

This court feels that it has generally addressed each of the questions certified to us. This court will conclude by addressing each specifically. As to question one, this court reaches no factual conclusion regarding the right of plaintiff to recover under clause (c) as a matter of law, but does find that the activity in which the insured was engaged may be interpreted by a jury as falling under the term “alighting from” as that term is used in clause (c). Regarding questions two, three and four, we find (1) that no sudden impact is required, but only contact resulting from the motive force of the automobile and ending in injury; (2) the contact can be with a tangible object attached or connected to the automobile but not properly part of the automobile itself and (3) this court finds that the facts as stated in question four can be construed as falling under the provisions of clause (d) of the Insuring Agreement.

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

JONES, J., dissents as to answer to question one, but concurs as to answers to questions two, three, and four.


author: SHORES, Justice. MERRILL, Justice

text:
    MOBILE, ALABAMA-PENSACOLA, FLORIDA BUILDING AND CONSTRUCTION TRADES COUNCIL, etc., et al. v. Robert R. WILLIAMS, etc., et al.
    SC 1486.
    Supreme Court of Alabama.
    April 9, 1976.
    Rehearing Denied May 21, 1976.
    Collins, Galloway & Smith, Mobile, for appellants.
    Abram L. Philips, Jr. and Victor T. Hudson, Wm. H. Armbrecht, III, Mobile, for John P. Case & Co., Inc.
    Allen Poppleton, James P. Alexander and Alan K. Zeigler, Birmingham, for Associated Builders & Contractors of Ala., Inc., amicus curiae.
   SHORES, Justice.

Do §§ 375(8)—(24) of Title 26, Code, dealing with minimum wages under public works contracts in excess of $2,000 apply to the Mobile Board of School Commissioners’ contract for the construction of the Hall-Rain Middle School? We find these sections applicable and, therefore, reverse.

Declaration of Policy in the “Minimum Wages Under Public Works Contracts” Act, Title 26, § 375(8), sets guidelines for the application of the Act. § 375(8) reads:

“It is hereby declared to be the public policy of this state that the state of Alabama or any state agency, department or board thereof which is the contracting authority for construction, alteration and/or repairs to be performed on state-owned properties or to be state financed, in whole or in part, to be performed by private contractors; shall require the successful bidder to pay the prevailing wage in the work area to their employee.”

The trial court held that the Act was not applicable to the construction of the Hall-Rain Middle School for two reasons.

First, the Hall-Rain Middle School is not a “public work” as defined in Title 26, § 375(9)(e), Code:

“Public work means construction, reconstruction, demolition, alteration, or repair work, or maintenance work, including painting and decorating, done under contract and paid for in whole or in part out of the funds of the state of Alabama.”

Second, the Board is not a “contracting authority” as defined in Title 26, § 375 (9) (f):

“Contracting authority means any officer, board or commission of the state or any state institution supported in whole or in part by state funds, authorized to enter into a contract for a public work.”

We reverse the holding of the trial court and hold that the minimum wage requirements of §§ 375(8)-(24) are applicable to the contract entered into by the Mobile Board of School Commissioners.

I. "Public Works” Finding

The only testimony offered by either party was the deposition of Kenneth Lambert, Treasurer of the Board of School Commissioners of Mobile County. He testified that the funds used to build Hall-Rain Middle School came wholly from county taxes and from proceeds received from the sale of warrants by the Mobile Board of School Commissioners. The school board argues this testimony establishes that the construction of the school was not a “public work” within the meaning of Title 26, §§ 375(8)-(24), because it was not “paid for in whole or in part out of the funds of the state of Alabama.” We cannot agree with the contention of the school board.

Although it is true that through accounting procedures monies can be categorized and earmarked for specific projects, the fact remains that county boards of education are supported by state funds and that state funds granted by the legislature pursuant to Art. 14, § 270, and Amendment 111 of the Constitution of Alabama 1901, form an enormous portion of the total of county education expenditure. In Williams v. State, 230 Ala. 395, 161 So. 507 (1935), this court decided that public school funds held in bankrupt banks were state funds whether they came from the state treasurer or local taxation. As Williams observed:

“. . .A loss of such [local] funds would cripple the state school enterprise, just as the loss of any other school funds. ...
“It is of no moment that the taxes are paid by local subdivisions, earmarked for the schools in which the taxpayers are directly interested, and designated as county and district funds; nor that local custodians and administrative agencies with corporate powers are made a part of the state educational set-up.” (230 Ala. at 397, 161 So. at 508)

In the case of State v. Tuscaloosa County, 233 Ala. 611, 172 So. 892 (1937), this court reiterated the holding of Williams and stated that “. . . public School funds, as between the county and the State, are State funds.” (233 Ala. at 613, 172 So. at 894). We find that the Williams and the Tuscaloosa cases, although they arose in quite different factual contexts from the instant case, answer the question involved in this case. We cannot allow the legislative will to be circumvented by accounting procedures.

II. "Contracting Authority” Finding

Since we have determined that the funds used to construct the Hall-Rain Middle School were funds of the State of Alabama, we must now determine whether the Board of School Commissioners of Mobile County is a “contracting authority” for the construction of the school.

Is the school board an “. . . officer, board or commission of the state or any state institution supported in whole or in part by state funds, authorized to enter into a contract for a public work?’’ (Emphasis added) We conclude that it is.

In making this determination, we are compelled to construe these statutes so as to give effect to the legislative purpose and intent behind them. State v. AAA Motor Lines, Inc., 275 Ala. 405, 155 So.2d 509 (1963). An examination of the nature of the constitutional and statutory scheme of public education in Alabama will aid us in determining the intent of the legislature.

The constitutional provision establishing a public education system in Alabama is Constitution of Alabama 1901, § 256, as amended by Amendment 111 § 256 originally required the legislature to establish, organize, and maintain a liberal system of public schools in Alabama, thus placing the primary responsibility for providing education upon the state government. Primarily, Amendment 111 modified the original educational provision to eliminate any implication that there is a constitutional right to public education in Alabama.

Nevertheless, we are aware that the primary responsibility for providing public education still resides in the State Legislature. The supervision of the public school system is vested in the Superintendent of Education, § 262, Constitution of Alabama 1901. The Superintendent of Education is a member of the executive department of the state government, § 112, Constitution of Alabama 1901. The Constitution provides that the powers and duties of the State Superintendent shall be fixed by law, § 262, Constitution of Alabama 1901. Pursuant to this constitutional grant of power, the State Legislature has divided administrative and supervisory control of the public school system between the state government and local governing units (primarily the counties).

At the state level, the legislature has created a State Board of Education which exercises a general control and supervision of the school system through the State Superintendent, Title 52, § 14, Code. The State Board has the power to promulgate rules governing the review by the State Superintendent of the actions and orders of local boards of education in matters relating to finance and other matters seriously affecting educational interest, Title 52, § 34.

On the local level, the legislature has established a comprehensive system of county boards of education, Title 52, §§ 62-101, Code. The general administration and supervision of the public schools and the educational interests of each county is vested in the county board of education, Title 52, § 62, Code. The county boards have the power to hold real property for school purposes, to sue, and to contract, Title 52, § 99, Code.

This court has interpreted the constitutional and statutory scheme of public education to mean that the county boards are quasi-corporations and they are not such immediate and strict governmental agencies of the state as to come within the protection of § 14 of the Constitution. Ex parte Board of School Com’rs of Mobile County, 230 Ala. 304, 161 So. 108 (1935); Turk v. County Board of Education, 222 Ala. 177, 131 So. 436 (1930). Specifically interpreting the statutory power of county boards to contract (Title 52, § 99, Code), this court has also held that neither the State Board nor the State Superintendent needs to approve contracts entered into by the county boards even though funds which are controlled by the State Superintendent and the State Board may be involved. Madison County Board of Education v. Wigley, 288 Ala. 202, 259 So.2d 233 (1972).

We find that the state legislature has consistently acknowledged its responsibility to provide public education in Alabama and exercise general control and supervision over it. Moreover, we find the same rationale earlier expressed to the effect that funds used for construction of schools are state funds as contemplated by the statute, forces us to conclude the county school boards are “state institutions” within the meaning of this statute. Additionally, we note that in the bill as originally introduced, the Director of Labor would have had the sole authority to set the prevailing wage rate, but the bill which finally passed established a commission, with the State Superintendent of Education as a member to establish this rate. This certainly suggests that school construction was contemplated by the statute.

There is no question but that the School Board is supported by state funds. The Board also has the authority to contract as we have noted. Title 52, § 99. We think it clear that the Board is a “contracting authority” as contemplated by the statute.

This is not to say that every political subdivision is an agency for this purpose. § 375(23) clearly provides that any municipality or other local political subdivision “not otherwise covered by this article” may elect to use the prevailing wage determined by the commission. We merely conclude that county school boards are otherwise covered by this article.

The appellees insist that § 270 of the Constitution of Alabama 1901 exempts the Mobile County School Board from the state educational system, since it is made independent of the state school system and thus is not an “agency, department or board within the meaning of the act.”

§ 270, as amended by Amendment 111, reads:

“The provisions of this article and of any act of the legislature passed in pursuance thereof for educational purposes, shall apply to Mobile county only so far as to authorize and require the authorities designated by law to draw the portions of the funds to which said county shall be entitled for school purposes and to make reports to the superintendent of education as may be prescribed by law; and all special incomes and powers of taxation as now authorized by law for the benefit of public schools in said county shall remain undisturbed until otherwise provided by the legislature.”

This court, in Morgan v. Board of School Com’rs of Mobile County, 248 Ala. 22, 26 So.2d 108 (1946), analyzed § 270 into three parts, two of which are currently applicable:

“(1) A restriction that the legislature may not apply to Mobile County any general public school legislation on the subjects embraced in Article XIV of the Constitution of 1901, except so far as it provides for Mobile County to get its share of the general public school funds, and to require the local school authorities to make such reports to the superintendent of education as may be prescribed by law.
‘(2) A restriction that any special income and power of taxation as authorized by law for the benefit of the public schools of Mobile County at the time of the adoption of the constitution shall not be disturbed until otherwise provided by the legislature.” (248 Ala. at 26, 26 So. 2d at 111)

We were careful to note in Board of School Com’rs v. Hahn, 246 Ala. 662, 665, 22 So.2d 91, 93 (1945), that “The limitation on legislative power embodied in Section 270 of the Constitution is restrictive in its scope and purpose, and is to be strictly was “ . . . not necessarily referrable Hahn, any act passed in pursuance of § 270 had restrictive application to the Mobile County public schools. We found in that case that the Teacher’s Tenure Act was “ . . . not necessarily referrable to and dependent upon the provisions of Article XIV . . . which deals largely with the financial set up to maintain a liberal system of public schools. . . .” (246 Ala. at 665, 22 So.2d at 94).

We do not find Title 26, §§ 375(8)-(24) to be an Act “passed in pursuance” of Article XIV. We do not find this Act re-ferrable or dependent upon Article XIV and must, therefore, conclude that requirements of the Act must be met by the Mobile Board of School Commissioners in their school construction contracts.

This case is, therefore, reversed and remanded.

REVERSED AND REMANDED.

HEFLIN, C. J., and BLOODWORTH, MADDOX, ALMON and EMBRY, JJ., concur.

MERRILL, FAULKNER and JONES, JJ., dissent.

MERRILL, Justice

(dissenting).

The educational structure of Mobile County is different from that of any other county in Alabama. The majority opinion quotes Section 270 of the Constitution of 1901, as amended by Amendment 111, and will not be quoted here again.

I think the Constitution protected the unique school system of Mobile County from the effects of §§ 375(8)-(24). The Constitution always prevails over a statute. No amount of statutory construction can operate over a constitutional provision. I think the constitutional provision pre-empts any application of the statute as to minimum wages paid on school construction jobs. The School Board of Mobile County ought to be allowed to build its school buildings as economically as possible.

I respectfully dissent.

FAULKNER and JONES, JJ., concur.