author: PATTERSON, Chief Justice,

text:
    Billy BELL v. STATE of Mississippi.
    No. 50446.
    Supreme Court of Mississippi.
    March 8, 1978.

      Morris C. Phillips, Jr., A. R. Wright, Jr., Carthage, for appellant.
    A. F. Summer, Atty. Gen. by Marvin L. White, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, WALKER and BOWLING, JJ.
   PATTERSON, Chief Justice,

for the Court:

This is an appeal from the Circuit Court of Leake County wherein Billy Bell was indicted for the crime of uttering a forgery, convicted and sentenced to fifteen years in the custody of the Mississippi Department of Corrections. The assignments of error are that the trial court erred in imposing the maximum sentence of fifteen years, in failing to direct a verdict for the defendant after the state had rested, and in disallowing credit for jail time while awaiting trial.

The words of the indictment set forth that the violation charged was based upon uttering and publishing as true a check in the sum of $150 knowing that the same was forged with the willful intent to defraud the Bank of Walnut Grove, Mississippi.

Mississippi Code Annotated section 99-19-81 (Supp.1977) which mandates the sentencing of habitual criminals to maximum imprisonment is not a part of the indictment. Nevertheless, the trial court in sentencing the appellant apparently thought his previous convictions commanded the maximum sentence. The court stated:

At the November, 1976, term of Court in and for Leake County, Mississippi, you were sentenced to serve a term of one year in the State Penitentiary. At the December term of Court in Madison County, you were sentenced to serve three years in the custody of the State Department of Corrections and placed on good behavior for a period of five years. Section 99-19-81 of the Mississippi Code of 1972 As Annotated provides that every person convicted in this state of a felony, been convicted twice previously of any felony, upon charges separately brought and arising out of separate incidents at different times and shall have been sentenced to separate terms of one year or more in any state or federal penal institution, shall be sentenced to the maximum term of imprisonment prescribed for the charge. You have been charged with the crime of forgery, and you have been found guilty of the charge of forgery. I have no alternative, but to sentence you to the maximum number of years for the crime of forgery. It is the sentence of this Court that you be sentenced to serve a term of fifteen years in the State Penitentiary, and that the sentence hereby imposed commence to run as of this date. Take charge of him, Mr. Sheriff. (Emphasis added.)

In Lay v. State, 310 So.2d 908 (Miss.1975), we held:

. Under our practice, if enhanced punishment is sought, the indictment or affidavit must include both the principal charge and a charge of previous convictions and both charges proved before punishment may be enhanced. Watson v. State, 291 So.2d 741 (Miss.1974); Burnett v. State, 285 So.2d 783 (Miss.1973); Ladnier v. State, 273 So.2d 169 (Miss.1973); McGowan v. State, 269 So.2d 645 (Miss. 1972); and Branning v. State, 224 So.2d 579 (Miss.1969). (310 So.2d at 910)

We cannot satisfactorily resolve, from the record, whether the trial court imposed the maximum sentence mistakenly believing the mandate of the habitual criminal statute, Section 99-19-81, had application and thereby removed the possibility of a lesser sentence as permitted by Mississippi Code Annotated section 97-21-33 (1972) which designates punishment from two to fifteen years for forgery. It is entirely possible the maximum sentence is legal and therefore proper if it was the product of judicial discretion permitted by Section 97-21-33 because it is within the limitations of the statute. Stated differently, if the maximum sentence was the result of the mandate of the habitual criminal statute, it was erroneous because that statute was not part of the indictment, but if the sentence resulted from judicial discretion, then it is valid. This dilemma, in our opinion, can only be determined by a review by the trial court.

The evidence is uncontradicted and overwhelming that the appellant is guilty of forgery. We therefore find no merit in the second assignment of error.

The appellant finally contends he was deprived of four to six days by the sentence, depending on the time of his incarceration pending trial by the lower court. The computation of credit for days spent in a county jail awaiting trial is, as we understand it, a purely administrative function of the Department of Corrections, but if this is not so at the time the sentence is reviewed by the trial court, it may give credit for the days of confinement pending trial.

The verdict of guilty is affirmed. The cause is remanded to the trial court for review and correction of sentence if found appropriate.

AFFIRMED AND REMANDED.

SMITH, P. J., and ROBERTSON, SUGG, WALKER, BROOM, LEE and BOWLING, JJ., concur.


source: Caselaw Access Project

author: MADDOX, Justice.

license: Public Domain

text:
    David MILLER, Jr. v. George DACOVICH, Sr.
    SC 2331.
    Supreme Court of Alabama.
    Jan. 27, 1978.

      Joseph J. Boswell, Mobile, for appellant,
    Michael Gillion and Philip H. Partridge, Mobile, for appellee.
   MADDOX, Justice.

Plaintiff, David Miller, Jr., sought damages from George Dacovich, Sr., allegedly caused by Dacovich’s negligent operation of a motor vehicle. The jury found for Daco-vich.

The accident involved three cars. Miller apparently came to a stop in an effort to avoid a rear-end collision with an unidentified vehicle attempting to make a lefthand turn on a busy Mobile street. Immediately thereafter, Dacovich collided with the rear end of the Miller automobile. The evidence is conflicting whether Dacovich actually came to a standstill, but Dacovich testified that one James Michael Smith hit the rear of his vehicle, forcing him into Miller’s automobile. All three vehicles were traveling in the same direction. Smith testified that he was unable to stop in time to avoid the collision.

Prior to trial, Smith and Miller entered into a pro tanto settlement whereby Smith paid Miller $15,000. Miller filed a Motion in Limine to prevent Dacovich from pleading and proving the pro tanto settlement reached with Smith. The motion was denied.

Miller claims reversible error was committed in four instances.

I

Miller says the trial court erred when it excluded testimony about his inability to support himself and his family financially after the accident, thus forcing him to borrow money and seek food stamps. Miller contends this evidence was admissible to show mental anguish. We hold that the trial court did not commit error in refusing to admit this evidence. While there is authority for admitting such evidence (Annotation 15 A.L.R.3d 506), the law in Alabama is that the financial condition of the parties is never material unless directly involved in the determination of compensa-ble damages. Barnes v. Sand Mountain Electric Co-op, 40 Ala.App. 88, 108 So.2d 378, cert. denied 268 Ala. 698, 108 So.2d 382 (1958). See also, Gamble, McElroy’s Alabama Evidence, § 21.01(6) (3rd Ed. 1977).

II

Miller claims the trial court also erred in allowing Dacovich to allude to the pro tanto settlement reached by Miller and Smith and also erred by instructing the jury about the settlement. Miller argues that the plaintiff should be allowed to elect whether evidence of a pro tanto release can be injected into a trial. We disagree. This Court recently addressed the issue of a pro tanto settlement with a joint tort-feasor in Hardman v. Freeman, 337 So.2d 325 (1976), and Wylam Ice Cream Company v. King, 293 Ala. 359, 304 So.2d 1 (1974). These cases point out that a defendant can waive his right to a set-off of the amount of a pro tanto settlement reached by the plaintiff and joint tort-feasors unless the settlement is specifically raised as a defense at trial. Consequently, if a joint tort-feasor is put to trial and does not raise the defense of pro tanto satisfaction until after judgment is entered against him, the joint tort-feasor who is put to trial is not entitled to a post-judgment relief if he did not raise the defense of pro tanto settlement at his first opportunity.

III

At the close of the evidence, the trial judge gave numerous instructions to the jury. The jury was then allowed to retire. At this point, both parties informed the court that no opportunity was given to interpose objections to the charges given by the court or to those submitted by parties which were marked as either given or refused. Miller now asserts that certain charges given were erroneous as being abstract and that the court erred in its refusal to give certain charges submitted by Miller.

Rule 51, A.R.C.P., provides, in part that

“. . . The court shall inform counsel of its proposed action upon the requests prior to their arguments to the jury, but the court shall instruct the jury after the arguments are completed. . Opportunity shall be given to make the objection out of the hearing of the jury.

The mandates of Rule 51 are clear, but federal courts [Tyrill v. Alcoa Steamship Go., 185 F.Supp. 822 (D.C.N.Y.1960)] and this Court [Beloit v. Harrell, 339 So.2d 992, 997 (Ala.1976)] have made exceptions. In Beloit, supra, this Court noted:

“Although we do not approve of the court’s refusal to allow counsel to state their objections before the jury retired for deliberation, we believe no prejudicial error was committed unless the given instructions were themselves erroneous; and our careful review of all challenged portions of the charge discloses no erroneous jury instructions.”

We point out again that we do not approve the trial court’s refusal to allow counsel to state their objections before the jury retired for deliberation, but as this Court found in Beloit, we do not believe that the given instructions were themselves erroneous and therefore, we do not find there was prejudicial error in refusing to permit counsel to state objections.

IV

The trial judge instructed the jury as to contributory negligence and as to the doctrine of “sudden emergency.” Miller asserts that the giving of these charges was erroneous.

Initially, Dacovich had specifically plead the defense of contributory negligence. Dacovich, during the trial, attempted to show that the cause of the accident was Miller’s negligence in following the unidentified car too closely and stopping or suddenly decreasing the speed of his car. In any event, the evidence is conflicting whether Dacovich struck the Miller vehicle or was pushed into it by the Smith vehicle. Although there are situations where it would be prejudicial error to instruct a jury as to “sudden emergency” and negligence action, we find that the evidence here is sufficient to create a jury question, and the giving of the charge was not error. Gleichert v. Stephens, 291 Ala. 347, 280 So.2d 776 (1973).

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

AFFIRMED.

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


author: BEATTY, Justice. TORBERT, Chief Justice

text:
    CITY OF MONTGOMERY et al. v. James COLLINS et al.
    SC 2481.
    Supreme Court of Alabama.
    Jan. 27, 1978.

      Walter J. Knabe and Randall C. Morgan, Montgomery, for appellants.
    Thomas T. Gallion, III, Charles P. Miller, Montgomery, for appellees.
   BEATTY, Justice.

The City of Montgomery appeals from an order enjoining it from expending municipal funds for the legal defenses of three Montgomery police officers. We reverse and remand.

The complaint was brought as a class action by James and Margaret Collins, city taxpayers, and arose out of the indictment of the officers on the charge that they had committed the offense of perjury in testimony each gave before the grand jury of Montgomery County during the June, 1976 session. Subsequently, it was alleged, the city funded the expense of legal fees to private attorneys and costs to provide defenses for the officers, in violation of federal and state constitutional provisions. The city’s motion to dismiss alleged that the matter was mooted by the dismissal of the officers from the police force and by the entry of nolle prosequi judgments on the charges against them. That motion was overruled, and at the final hearing held ore tenus, the trial court held that the city had exceeded its corporate powers:

It is the opinion of this Court that a municipal corporation has the power to employ counsel to defend city officials, including police officers, in actions brought against the officials, whether civil or criminal, where the corporation has a proper interest in the action, the acts allegedly committed were done by the officials in the discharge of their corporate duties, and the officials in performing said duties acted honestly and in good faith. See City of Birmingham v. Wilkinson, 239 Ala. 199 [194 So. 548] (1940). However, it is the further opinion of this Court that the corporation’s power to employ counsel in defense of criminal actions against such officials ceases upon indictments being returned by a Grand Jury. There is a vast difference between criminal actions commenced by the filing of an affidavit by an individual and the filing of an indictment by a Grand Jury which is a constituent part of the court.
In this case, the Court not only finds that indictments have been returned against Thomas E. Litaker, Richard Koerner and Ronald A. Bush but it is also of the opinion that perjury, the offenses with which they are charged in the indictments, cannot possibly be construed as acts committed honestly and in good faith in the discharge of their corporate duties.
It is therefore the opinion of this Court that the defendants have exceeded their corporate powers in the expenditure of public funds for the defense of the criminal acts set out in the Complaint and should be enjoined from the further payment of legal fees in the defense of Thomas E. Litaker, Richard Koerner and Ronald A. Bush.
The fact that these individuals are no longer employed by Defendant City of Montgomery, that the Defendants have ceased the payment of legal fees on their behalf, and that the pending criminal cases against them have been nol pressed, with prejudice, since the commencement of this action is no cause for dismissal of this action. See Gillespie v. Gibbs, 147 Ala. 449 [41 So. 868] (1906).

Initially, the city contends that the trial court erred in denying its motion to dismiss which raised the absence of a justiciable controversy because the issue had become moot.

We adhere to the view that moot questions will not be resolved under the guise of a declaratory judgment. Birmingham Trust National Bank v. Garth, 263 Ala. 121, 81 So.2d 590 (1955); however that exception has no applicability here. This was a class action brought by and on behalf of taxpayers who question the legality of payments already made from municipal funds, and it appears from the record that the possibility still exists that such payments would be made currently upon the presentation of fee statements from private lawyers. Thus there is a real controversy which affects the rights of all parties to this suit even though the persons on whose behalf the payments were made will not be proceeded against by criminal prosecution. The case of Shadix v. City of Birmingham, 251 Ala. 610, 38 So.2d 851 (1949), cited by the city, does not apply because there was neither a threat to the rights of either party nor any actual or threatened loss alleged in that complaint.

The principal issue is whether the city may lawfully pay municipal funds to private counsel in the defense of its police officers indicted for the commission of crime. This is apparent from the trial court’s final judgment which restricted the city’s power in any case when the officer has been indicted by a grand jury. At the outset it should be made clear that this issue does not involve any specific provision of the municipal charter of the City of Montgomery but is presented to us by both sides as a question of municipal law as it is generally applied in this state.

Although this precise issue was not dealt with in City of Birmingham v. Wilkinson, 239 Ala.199, 194 So. 548 (1940), that decision recognized an “enlarging sphere of interests of a city like Birmingham, [and inferentially like Montgomery] and of implied power in the city to employ legal counsel or other agents when . . . needed.” Ibid at 203, 194 So. at 551. This is at least a tacit acknowledgement of the impact upon their implied powers which their growth and its accompanying complexities have for municipalities. That is, matters of “proper corporate interest,” recognized as the polestar in questions of this kind, do not remain static but expand with the growth of other public interests. So that if it was a matter of “proper corporate interest” for the City of Montgomery to defend its policemen here on the charge that they had perjured themselves, the decision to do so would be justified.

The record discloses that these city policemen appeared before the grand jury in the performance of their official duty. The indictments arose out of that performance of corporate duty. Through its mayor and council the city then took the action complained of presently. Whether that action was a matter of “proper corporate interest” might, at least in part, depend upon the existence of a risk of litigation against the city itself should the perjury prosecutions have proved successful.

The case of Nesmith v. Alford, 318 F.2d 110 (5th Cir. 1963) bears analogies to the instant controversy. In a background of racial discord the plaintiffs, white out-of-state residents, were arrested by city officials on a charge of disorderly conduct because they joined with a black group to lunch in a cafe in a black neighborhood. Their convictions in recorder’s court were appealed to the circuit court and resulted in jury verdicts of not guilty. The plaintiffs then filed civil actions in federal district court, alleging false imprisonment, malicious prosecution, and violations of civil rights. The trial of that case disclosed the activities of the city’s law enforcement officials dealing with the plaintiffs’ arrest, incarceration and prosecution. A jury verdict in favor of the city’s commissioner of public affairs, the chief of police, and a police sergeant was reversed. One of the grounds for reversal concerned the admissibility of evidence pertaining to the civil rights violation alleged under 42 U.S.C.A. § 1983. The reviewing court found that under the evidence previously admitted all of the defendants had violated one or more of the civil rights of the plaintiffs, and went further at pages 125-6:

In connecting the acts with the Defendants, civil liability for money damages of the respective Defendants would depend on traditional tort principles. Unless . . . this is established as a matter of law, liability of the respective individuals as to such conduct would stand or fall on jury findings, express or implied, showing personal action or that imputed by conspiracy, agency, partnership, respondeat superior, or the like.
Of course, for a claim under § 1983, a conspiracy as such is not an indispensable element as it is under § 1985. But it may be charged as the legal mechanism through which to impose liability on each and all of the Defendants without regard to the person doing the particular act. Conspiracy is asserted in that situation on more or less traditional principles of agency, partnership, joint venture, and the like, (emphasis supplied)

Because a conspiracy might provide a basis for a civil cause of action, Snyder v. Faget, 295 Ala. 197, 326 So.2d 113 (1976), and because a municipality may be made a party defendant in such an action, Jackson v. City of Florence, 294 Ala. 592, 320 So.2d 68 (1975); Tuskegee Institute v. May Refrigeration Co., Inc., 344 So.2d 156 (Ala.1977), it would be within the reasonable scope of “proper corporate interest” for the municipality to attempt to protect itself and its officers against future civil litigation brought under agency principles by defending their agents against criminal charges arising out of the same general circumstances with the view of obtaining their acquittal. A judgment of conviction in a criminal ease is admissible, as a general rule, in a civil case if the act in question is material in the civil action. Pritchett v. Freeman, 36 Ala.App. 222, 54 So.2d 314 (1951); Rule 803(22), Federal Rules of Evidence. Moreover, the officials in charge of the administration of municipal government might reasonably conclude that such action is necessary to the good morale of the police department, or for recruitment and retention purposes. Or there may exist other equally compelling reasons falling within the proper corporate interest. City of Corsicana v. Babb (Tex.Com.App.) 290 S.W. 736 (1927).

Nor is it proper to make the city’s decision to defend or not to defend rest upon the legal distinction between a prosecution initiated by indictment and one begun by complaint. Although there are obvious differences between the two by way of form, and the “sifting process” for each is different, primarily because of the nature of the offenses encompassed by each, see generally McGee, Alabama Criminal Practice 93-95, the fact that an indictment is more formal in procedure does not give it more substance than its function entails. As Cates, J. so aptly put it in Smith v. State, 50 Ala.App. 310, 311, 278 So.2d 759, 760 (1973), an indictment is not “half a conviction:”

Indeed, an indictment casts not a single pebble of guilt in the scale against a criminal defendant. Rather, it is only the device which allows the State the opportunity to convince (or not) a petty jury beyond a reasonable doubt of the asserted guilt.

And its function is to inform the accused of the crime with which he is charged. Crews v. State, 40 Ala.App. 306, 112 So.2d 805 (1959). But if we were to hold that a municipality’s discretion to act in these premises ceased upon the finding of an indictment, we would be giving to that document more of a substance than it legally possesses. That is, the mere finding of an indictment, because it raised the possibility of a criminal trial, would circumscribe the discretion of municipal officials to determine whether the city’s interests required a defense to that charge, even though the indictment is only informational. Such an unreasonable rule cannot be-allowed to inhibit the power of duly elected municipal officials to exercise their responsibilities in defining their city’s “proper corporate interest;” whether their decision is wrong in this connection is for their constituency to decide.

Since the action complained of is properly within the scope of that corporate interest, i. e., for the benefit of the city, and thus identified with a public purpose, it is not offensive under Section 94, Alabama Constitution of 1901. Contrary to the argument of the plaintiffs, State v. Homan, 38 Ala.App. 642, 92 So.2d 51 (1957) lends support to that position. After noting in that opinion that Count 2 charged a misappropriation of public moneys under Tit. 41, § 221, Alabama Code of 1940, (for the private benefit of another), Cates, J., stated:

If on trial it should turn out that the employment and payment [of private counsel] were for a corporate purpose, Carter v. Town of Muscle Shoals, 242 Ala. 519, 7 So.2d 74 . Count 2 would fall. . . . (Ibid 38 Ala.App. at 646, 92 So.2d at 54) (emphasis supplied)

Although the employment here concerned the defense of a criminal case, it arose through a contract the performance of which could benefit the city as well as the private attorneys. Thus it was not the grant of public money “in aid of, or to any individual” under Section 94. Rogers v. City of Mobile, 277 Ala. 261, 169 So.2d 282 (1964).

Finally, plaintiffs have moved in this Court for an award of attorneys’ fees. They did not raise the issue of attorneys’ fees in the court below, Fountain v. Vredenburgh Saw Mill Co., 279 Ala. 68, 181 So.2d 508 (1965), but had they been granted in that court it would have been error. Attorneys’ fees are not allowable unless authorized by statute or contract. Sadler v. Ram Construction Co., Inc., 344 So.2d 1199 (Ala.1977). Neither has been proved or pointed out to us. Additionally, it appears from their complaint that plaintiffs specifically avoided a request for an award of attorneys’ fees, viz:

Award Complainants their cost in this action, but specifically not including an award of attorney’s fee. .

For these reasons the order of the circuit court is reversed and the cause is remanded to that court for an order not inconsistent with this opinion.

REVERSED AND REMANDED.

MADDOX, JONES and SHORES, JJ., concur.

TORBERT, C. J., concurring specially.

TORBERT, Chief Justice

(concurring specially):

I concur in the conclusion reached by the majority and agree with their reasoning in regard to what constitutes a “proper corporate interest.”

In this case, municipal police officers were indicted for a criminal offense. The question is whether their activities were in furtherance of the corporate interest of the municipality. These criminal charges, if proved, would not further the corporate interest. However, the difficulty is that these employees were charged, not convicted, when the municipality expended public funds for their defense.

In such cases, I think it incumbent upon the governing body to make some preliminary inquiry as to whether the “proper corporate interest” of the municipality was being served, and that some specific action be taken to approve the expenditure of public funds. For example, in the case cited by the majority, the payment of legal fees by the City of Birmingham to defend its commissioners was approved by the adoption of a resolution by the Commission. City of Birmingham v. Wilkinson, 239 Ala. 199, 194 So. 548 (1940). My review of the record in this case fails to show any such action, i. e., the adoption of a resolution specifically authorizing the expenditure of funds to defend these police officers. This type of action would ensure that the governing body of the municipality considered the matter and made a determination that these officers were, in their opinion, acting in furtherance of the corporate interest before the expenditure of public funds was authorized.


author: JONES, Justice.

text:
    Shearn MOODY, Jr. v. STATE of Alabama ex rel. Charles H. PAYNE, Commissioner of Insurance and Receiver of Empire Life Insurance Company of America. Shearn MOODY, Jr. v. STATE of Alabama ex rel. Charles H. PAYNE, Commissioner of Insurance and Receiver of Empire Life Insurance Company of America, and Protective Life Insurance Company, an Alabama Corp.
    SC 2453 and SC 2264.
    Supreme Court of Alabama.
    Feb. 3, 1978.
    Rehearing Denied March 24, 1978.

      William H. Mills, of Rogers, Howard, Redden & Mills, Birmingham, for appellant.
    James W. Webb, Montgomery, for appel-lee, Charles H. Payne, Commissioner of Insurance, Receiver of Empire Life Insurance Co. of America.
   JONES, Justice.

These cases, consolidated before the Court, seek review of two decrees of the Jefferson County Circuit Court awarding damages to Protective Life Insurance Company and the Commissioner of Insurance for the State of Alabama. The proceedings below arose because of Appellant’s, Shearn Moody, Jr.’s, continued violation of an injunction.

When Empire Life Insurance Company became undercapitalized, it was placed in receivership and reinsurance was approved through Protective. Moody, as Empire’s president and principal stockholder, refused to accede to such reinsurance and filed several suits to prevent and harass the receivership action. See, e. g., Allmon v. Bookout, Civ.Act. No. 74-377-N, United States District Court for the Middle District of Alabama. The Commissioner obtained an injunction on January 6, 1975, to prevent the filing of new suits or the amendment of any pending causes concerning Empire’s receivership. Moody’s continued violation of this injunction, and other orders of the trial Court, and his attempts to circumvent the Court’s authority, have led to citations for both civil and criminal contempt. Moody v. State ex rel. Payne, 351 So.2d 552 (1977); Moody v. State ex rel. Payne, 351 So.2d 547 (1977); State ex rel. Payne v. Empire Life Ins. Co. (Ex parte Moody), 351 So.2d 538 (1977); Moody v. State ex rel. Payne, 344 So.2d 160 (Ala.1977); and Moody v. State ex rel. Payne, 295 Ala. 299, 329 So.2d 73 (1976).

On July 30, 1976, subsequent to related hearings, the Commissioner, as Receiver of Empire, filed his petition seeking recovery for damages incurred by Moody’s willful violation of the January 6 injunction. Service was obtained by mailing copies of the petition to Moody’s attorneys of record in the receivership proceeding. No personal service upon Moody was attempted.

Trial began on November 29, 1976, and the jury returned a verdict assessing compensatory damages in the amount of $50,-000 and punitive damages in an equal amount. The trial Court ordered remittitur in the amount of $13,000 and entered judgment.

The second of the two cases, consolidated herein, began on August 19, 1976, when Protective filed its claim seeking compensatory and exemplary damages occasioned by Moody’s contemptuous acts. As in the Commissioner’s suit, service was obtained only upon Moody’s attorneys of record.

Because of Moody’s failure to respond to Protective’s discovery efforts, a default judgment was entered on October 19. At that time, pursuant to Rule 55, ARCP, the Court set a date for a non-jury determination of damages. The Court awarded compensatory damages of $36,508 and punitive damages of $100,000. Additionally, attorneys’ fees incurred in the civil contempt proceedings, in the sum of $32,000, were awarded; and $7,500 was awarded as attorneys’ fees in the criminal contempt proceedings. It is in this posture, then, that these two suits come before us.

I.

The controlling question, raised in both cases, concerns whether a party who sustains damages as a result of another’s contemptuous acts may recover for his damages without instituting a separate action. We recently considered this question in Lightsey v. Kensington Mortgage and Finance Corp., 294 Ala. 281, 315 So.2d 431 (1975). After discussing the law of other jurisdictions, Lightsey held that where there is a violation of a valid restraining order, and such violation proximately results in damages to the aggrieved party, such injured party is not without remedy. Our holding in Lightsey stated the procedure to be followed:

“. . . we do not see the necessity of requiring the aggrieved party in such an instance to pursue his remedy in another suit; but ... we believe either party on demand would be entitled to a jury trial on the issue of damages. We perceive of no reason why this cannot be afforded in the same proceeding on petition of the aggrieved party seeking damages after a finding by the trial court that the opposite party is in contempt. A jury would be impaneled to hear the evidence on such petition and determine whether damages, compensatory or punitive, should, under the usual rules, be imposed.” 294 Ala., at 288, 315 So.2d at 437.

Thus, we specifically held that the damages hearing is part of the main proceeding. Because this is true, and as is shown by our holding quoted above, the Alabama Rules of Civil Procedure apply to the damages hearing. It is equally clear, pursuant to Rule 5(b), ARCP, that in personam jurisdiction, having once been obtained in the original proceeding, need not be re-established. (In this case, in personam jurisdiction was obtained by Moody’s intervention in the receivership action.)

Moreover, logic and the integrity of our court system dictate that, having once submitted himself to the jurisdiction of this State, Moody cannot prevent application of legitimate orders of this State’s courts by merely absenting himself to some foreign jurisdiction. See Ex parte Moody, supra. Therefore, the Court had jurisdiction over this cause, and service was properly obtained upon Moody’s attorneys of record. State ex rel. Brubaker v. Pritchard, 236 Ind. 222, 138 N.E.2d 233 (1956); Caplow v. Eighth Judicial District Court, 72 Nev. 265, 302 P.2d 755 (1956); and 17 Am.Jur.2d, Contempt, § 87.

II.

Thus viewed, we must now determine whether it is proper to include attorneys’ fees as part of the compensatory award. Moody’s contention that these attorneys’ fees are not recoverable is fallacious; and this for the reason that,' as a proximate result of Moody’s contempt, both Appellees have been forced to expend large sums of money in the defense of illegal suits and in the investigation and prosecution of the contempt proceedings.

As a general rule, and in the absence of contractual or statutory provisions, attorneys’ fees are not recoverable either as costs of litigation or as an element of damages. State v. Alabama Public Service Commission, 293 Ala. 553, 307 So.2d 521 (1975); Hartford Accident & Indemnity Co. v. Cosby, 277 Ala. 596, 173 So.2d 585 (1965); and Taylor v. White, 237 Ala. 630, 188 So. 232 (1939). There are, however, a number of exceptions to this general rule. One widely-accepted exception, and one which we specifically accept, is that in proper circumstances a reasonable attorney’s fee may be allowed the prevailing prosecuting party in a civil contempt proceeding. This award, though not mandatory, is allowed within the sound discretion of the trial Court. Toledo Scale Co. v. Computing Scale Co., 261 U.S. 399, 43 S.Ct. 45, 67 L.Ed. 719 (1923); Arvin, Inc. v. Sony Corp. of America, 215 Va. 704, 213 S.E.2d 753 (1975); and 43 A.L.R.3d 793-97.

The purpose of this rule is to afford an injured party remedial relief for injuries sustained by him from the contemnor’s contemptuous acts. We can perceive no set of circumstances more fully justifying this exception than the case before us. For these reasons, and because the trial Court did not abuse its discretion in this regard, attorneys’ fees incurred in the civil contempt proceedings are properly recoverable as an element of damages in the instant action.

As we stated in Ex parte Moody, supra, however, no attorneys’ fees are recoverable in criminal contempt proceedings. Therefore, the $7,500 awarded as attorneys’ fees for the criminal contempt proceeding, recovered by Protective, must be disallowed.

Having determined that attorney’s fees are recoverable as an element of damages in civil contempt proceedings, we turn now to the more difficult question: Whether the judgment was supported by adequate evidence. The only damages recoverable are those proximately resulting from Moody’s contemptuous acts — i. e., his violations of the January 6 injunction. These include both damages resulting from the defense of the Alimón action, including its appeal, and those incident to the civil contempt proceeding itself.

III.

Initially, we will address contentions raised by Moody concerning Protective’s action. As Moody correctly points out, the trial Court made mathematical errors in calculating the appropriate recoveries. It is axiomatic that we are authorized to correct such mistakes and adjust the recovery accordingly. See Jones v. Gladney, 339 So.2d 1019 (Ala.1976).

By multiplying the total number of hours worked, by the appropriate hourly rate, the maximum sum recoverable is $34,774.50— not $36,508. Similarly, the award of $32,-000 for the contempt proceedings must be reduced to $30,454. Thus, the trial Court’s award of damages must be reduced by a total of $3,279.50 due to mathematical errors.

Moody further contends that, because the Receiver has previously paid Protective $8,000, the judgment should be reduced by this amount. This question, however, is one properly between the Receiver and Protective. Moreover, the danger of double recovery was effectively eliminated by the trial Court’s charge to the jury in the Receiver’s suit.

Moody also argues that, because the original complaint in Alimón was filed prior to the January 6 injunction, the only damages recoverable are those incurred in directly opposing the Alimón amendment. This argument is without merit because, for all practical purposes, Alimón had been effectively dismissed prior to the filing of the amended complaint. Therefore, the Alimón action is almost entirely predicated upon the amended complaint, and the damages incurred proximately result from it.

Similarly, Moody asserts that the amounts expended in the Alimón appeal are not recoverable because this was not specifically proscribed by the January 6 injunction. As stated, however, Alimón was based almost entirely upon the amended complaint and, therefore, the appeal was merely an extension of the contemptuous act. Moreover, to hold otherwise would be to punish certain acts, while rewarding others which foster the very result proscribed. Clearly, the law is not so inane. Moody’s acts were in continuous contemptuous disregard of the trial Court’s orders.

We hold that the damages, as reduced and corrected, are properly allowable. Therefore, the judgment in Protective’s action, as corrected, in the sum of $165,228.50, is affirmed and the cause is rendered.

IV.

In the Receiver’s suit, the jury awarded $50,000 in compensatory damages. The re-mittitur effected a reduction to $37,000. The Commissioner only claimed attorneys’ fees and expenses. Though the evidence shows a reduction in value to the policyholders, these damages were not claimed in the complaint. The only other damages shown to have been incurred relate to attorneys’ fees and certain expenses incident thereto. Upon this Court’s thorough examination of the record, it is apparent that the evidence does not fully support the compensatory award of $37,000; however, the evidence does support $16,844.00 in attorneys’ fees and $1,271.78 as expenses, for a total award of $18,115.78. Therefore, our af-firmance is conditioned upon the filing by the Receiver of a remittitur in this Court in the amount of $18,884.22 within 30 days hereof. Otherwise, this cause will be reversed and remanded for a new trial on the issue of damages.

V.

The question of whether punitive damages are recoverable was answered in the affirmative by Lightsey. The fact that it may punish the particular defendant does not render this award violative of the criminal contempt statute (Tit. 13, §§ 9, 143, Code) because it is well settled that exemplary damages are not to be equated with criminal punishment. Moreover, in the absence of excessiveness so as to indicate prejudice or passion, the amount of such damages is within the sound discretion of the trier of fact. Trahan v. Cook, 288 Ala. 704, 265 So.2d 125 (1972); Badgett v. McDonald, 53 Ala.App. 726, 304 So.2d 228 (1974); and Williams v. Clark, 50 Ala.App. 352, 279 So.2d 523 (1973). For these reasons, the punitive awards will not be altered.

Conclusion

Shearn Moody, Jr., continuously disobeyed orders of the trial Court and, therefore, was held in civil contempt. We have held in Lightsey that those who successfully prosecute such contempt proceedings may recover compensatory and punitive damages occasioned by the contemptuous acts. Save the above-noted exceptions, the evidence supports the judgments of the trial Court. Thus, we affirm the judgment in favor of Protective, as corrected; and we affirm the judgment in favor of the Receiver, subject to the filing of a remittitur in its action, as set out above. Unless the Receiver files a remittitur in the above-stated amount within 30 days from this date, the judgment will be reversed and the cause remanded.

In each case, costs of appeal will be taxed to the Appellee; moreover, neither Appel-lee is entitled to the 10 per cent penalty under § 12-22-72, Code 1975. In Protective’s suit, it must be recognized that “[w]hen a judgment is corrected and affirmed on appeal, with any substantial change in the amount or terms of the judgment, favorable to the appellant, the costs of the appeal are automatically cast upon the appellee . . . .” Western Union Telegraph Co. v. Bashinsky, Case & Co., 217 Ala. 661, 666, 117 So. 289, 293 (1928). See also Ex parte General Mutual Insurance Co., 285 Ala. 445, 233 So.2d 230 (1970). Furthermore, § 12-22-72, Code 1975, is not applicable in circumstances such as this. Chapman v. Rivers Construction Company, Inc., 284 Ala. 633, 227 So.2d 403 (1969); and New York Life Insurance Co. v. Reese, 201 Ala. 673, 79 So. 245 (1918).

As to the Receiver’s action, if the remitti-tur is duly filed, the judgment will stand affirmed. Without the provision of the re-mittitur statute, the judgment would have had to be reversed because of the excessive award. In this light, Appellant Moody was the successful party in the appeal. Ex parte General Mutual Insurance Company, supra. For this reason, the 10 per cent penalty is not to be assessed, and the Receiver will be taxed with the applicable costs. See Williams v. Williams, 283 Ala. 292, 216 So.2d 181 (1968); and City of Anniston v. Douglas, 250 Ala. 367, 34 So.2d 467 (1948).

AFFIRMED, AS CORRECTED, AS TO PROTECTIVE. AFFIRMED CONDITIONALLY AS TO THE RECEIVER.

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

      . The trial Court’s order is explicit in relating the remittitur to the award of compensatory damages.

      . The necessity of relief of this type has been most recently acknowledged in Cook v. Ochs-ner Foundation Hospital, 559 F.2d 270, (5 Cir. 1977).

      . In fact, a substantial portion of this latter figure of $1,271.78 also represents attorneys’ fees paid by the Receiver pursuant to a court order for reimbursement of attorneys’ fees incurred by a court-appointed insurance reorganization consultant who was a named defendant in the Alimón action.


author: WRIGHT, Presiding Judge.

text:
    Minnie KEGLEY v. George KEGLEY.
    Civ. 1235.
    Court of Civil Appeals of Alabama.
    Dec. 7, 1977.
    Rehearing Denied Jan. 4, 1978.

      James M. Fullan, Jr., Birmingham, for appellant.
    James B. Fierce, Jr., of Stone, Patton & Fierce, Bessemer, for appellee.
   WRIGHT, Presiding Judge.

This is an appeal from the denial of a divorce. We reverse.

The parties have been married for forty years. They are barely literate, but are hard working, frugal people. The husband is a coal miner and earned over $13,000 in 1976. For several years the wife has had serious health problems and has seen a psychiatrist. Through self denial and careful handling the parties have accumulated a substantial estate. They own a brick house with forty acres of land and have savings of over $75,000.

In 1976 the husband moved from the home of the parties and began sleeping in a trailer which he owned and had previously located on his property. The trailer was also occupied by a young couple and their children. The husband continued to pay the utilities at the home, provide some food, daily visit the home, and feed the livestock. He failed to give the wife money and was continually critical of her for petty things such as drinking too many soft drinks. The husband has now irrevocably assigned to the wife income from $40,000 of the savings. This will give her an income of $250 per month.

The only issue on appeal is whether the trial court erred in refusing to grant the divorce on the ground of incompatibility.

After careful review of the evidence and of the judgment of the trial court, we find a remarkable resemblance to the case of Dyal v. Dyal, 54 Ala.App. 206, 307 So.2d 17 (1975). It is evident that the learned and compassionate trial judge refused to grant the wife a divorce in this case because he felt she would be better off to remain married. Though he found in the judgment that a state of incompatibility did not exist between the parties and that an irretrievable breakdown of the marriage had not occurred, the evidence does not support such a finding. Of course, if one takes the position, as did the husband, that the state of the marriage was as good as it had ever been, perhaps there had been no great change. However, the wife in succinct language said that the husband had run over her for forty years and she thought that was long enough. In her words she said, “No sir, it’s finished. When Christ hung on the cross, he said ‘Lord forgive them, it’s finished’. I have nothing in common, nothing to look forward to. He’s never helped me in any' way. I’ll have to go it on my own.”

The husband did not deny that the parties did not get along. He merely said they got along as well as they did thirty years ago. That is not a denial of incompatibility, but a statement of status quo. The wife said forty years of being run over was enough. There is no reason to deny a divorce now because the parties may have long endured a state of incompatibility. Certainly the relationship of the parties is not now the same as it has been for thirty years. They no longer live in the same house and attempt to preserve a conjugal appearance. The wife unequivocally refuses to resume such a relationship.

We indicated in Dyal v. Dyal, supra, that if the state of incompatibility is declared by either party to exist and the evidence, either objective or subjective, supports the existence of such a state, the court must grant a divorce under the statute. Who caused the existence of the condition and whether the granting of the divorce may be detrimental to the best interest of one or both of the parties are not reasons for an exercise of judicial discretion in denying a divorce.

We fully recognize that the trial judge felt that a divorce would be detrimental to the best interest of the wife in many ways, such as loss of United Mine Workers sick benefits and survivor’s pension and we commend his concern. However, in the absence of a state of incompetency, we must assume the wife capable of determining her own best interest with advice of counsel. We, therefore, find the trial court erred in applying the law to the evidence, Collier v. Brown, 285 Ala. 40, 228 So.2d 800 (1969); Dyal v. Dyal, supra. The judgment is reversed and the cause is remanded.

Counsel for the wife is granted an attorney fee of $500 on appeal, which fee is ordered paid by the husband.

REVERSED AND REMANDED.

BRADLEY and HOLMES, JJ., concur.


author: PER CURIAM:

text:
    Ex parte George KEGLEY.
    77-258.
    Supreme Court of Alabama.
    March 10, 1978.
   PER CURIAM:

WRIT DENIED.

BLOODWORTH, MADDOX, FAULKNER, JONES and BEATTY, JJ., concur.

TORBERT, C. J., and ALMON, SHORES and EMBRY, JJ. dissent.


author: BRADLEY, Judge.

text:
    Kenneth HOLLEY v. Billy Joe CROW.
    Civ. 1294.
    Court of Civil Appeals of Alabama.
    Feb. 8, 1978.

      W. H. Rogers, Moulton, for appellant.
    J. G. Speake, of Speake, Speake & Reich, Moulton, for appellee.
   BRADLEY, Judge.

The appellee (plaintiff below), Billy Joe Crow, recovered a judgment of $1,000 against appellant (defendant below), Kenneth Holley, in the Circuit Court of Morgan County. On April 22, 1977 plaintiff filed a writ of garnishment against defendant and the latter’s employer, Procon, Inc., as garnishee. Procon, who is not a party to this appeal, informed plaintiff that it would withhold defendant’s wages. Thereupon, defendant filed a declaration of exemption from garnishment based on the $1,000 personal property exemption found in Title 6, chapter 10, section 6, Code of Alabama 1975 (formerly Title 7, section 629, Code of Alabama 1940) and the seventy-five percent wage exemption provided for in Title 6, chapter 10, section 7 (formerly Title 7, section 630). Defendant subsequently amended his declaration of exemption to include the $1,000 personal property exemption granted under the authority of Article X, Section 204, Constitution of Alabama 1901.

After receiving notice that defendant had claimed his statutory and constitutional exemptions from garnishment, plaintiff filed a motion to strike defendant’s claim for a personal property exemption on the following grounds: (1) that the claimed exemption exceeded the $1,000 authorized for personal property exemptions; (2) that defendant had fraudulently disposed of his real and personal property for the purpose of defeating the garnishment; and (3) that defendant’s monthly income of $2,000 was in excess of the $1,000 personal property exemption. Plaintiff also sought a court order requiring that defendant submit an inventory listing defendant’s personal property.

The trial court subsequently ordered defendant to file an inventory and the defendant complied with this order by filing an inventory in which he stated that he earned approximately $400-$500 a week from his employment with Procon. In addition, he stated that he held no interest in any real property and that his only personal property included his clothing and an interest in a 1976 Ford pickup truck. However, defendant valued his monetary interest in the truck at zero dollars. This latter assertion was based on the defendant’s claim that he had merely taken title to the truck in order to aid his brother-in-law who was having financial difficulty in meeting the monthly payments on the vehicle.

On July 12, 1977 the trial court held a hearing on the plaintiff’s motion to strike the personal property exemption claimed by defendant. The evidence presented at this hearing demonstrates the following facts. In 1971-1972 defendant and his wife had executed a property settlement in anticipation of the dissolution of their marriage. The couple eventually decided not to obtain a divorce and the property settlement did not take place. However, four years later defendant and his wife did obtain a divorce. The parties’ divorce occurred prior to the date on which plaintiff had recovered his judgment against defendant. The trial court adopted in its divorce decree the property settlement which defendant and his wife had agreed to in 1971-1972. Under the terms of this settlement, defendant’s wife received all of the couple’s real and personal property. Pursuant to these terms defendant conveyed his interest in a six acre lot and the family residence located thereon to his wife. The wife also received in this property settlement a mobile home toter which she subsequently traded for a nineteen foot cabin cruiser.

Despite the dissolution of their marriage, the parties remained on friendly terms and the defendant often stayed at the couple’s former residence with his ex-wife. In addition, he frequently gave his former wife his weekly paychecks. Defendant testified that he provided his wife with this money because it was necessary for the support of their four children.

Although the affidavit filed by defendant in response to plaintiff’s request for a complete inventory of defendant’s interests in real and personal property had stated that defendant did not have an interest in any real property, the trial transcript reveals that defendant was the joint owner of one and one-half acres of property on which his mother resided. Defendant testified that he did not include this property in his inventory because his only real interest in the property was as a surety on a note his mother had given to a local bank for the purpose of obtaining a loan. In addition to this interest, property tax records continued to reflect defendant’s ownership in the six acre tract which he had deeded to his wife pursuant to the divorce decree of 1976.

The record also reveals that the defendant failed to disclose various items of personal property in his inventory. Among these items were a citizens band radio valued at $49 and a camper for the pickup truck worth approximately $200. Defendant stated at trial that he did not include these items because he believed them to be a part of the pickup truck which he had listed in his inventory. However, it should be noted that defendant valued his interest in the truck at zero dollars in his inventory. Furthermore, defendant held title to the vehicle and was the obligor under the terms of the security agreement thereon.

Finally, additional evidence was to the effect that the defendant had purchased a furnished travel trailer but that his wife had actually paid for it from her savings; that defendant had the right to use this trailer and the nineteen foot cabin cruiser anytime he wished; and that he had failed to list in his inventory a vacation fund which he held — although apparently the amount of money in this fund was nominal.

On the basis of the above described evidence and testimony, the trial court granted plaintiff’s motion to strike the personal property exemption claimed by defendant. From the trial court’s order granting plaintiff’s motion to strike, defendant appeals.

Defendant asserts a number of errors on appeal, each of which charges that the trial court erred in striking defendant’s claim of exemption. Specifically, defendant maintains that in addition to the seventy-five percent exemption of wages provided by Title 6, chapter 10, section 7, he is also entitled to have the remaining twenty-five percent of his wages exempted from garnishment under the $1,000 personal property exemption set out in Title 6, chapter 10, section 6 (and the Alabama Constitution).

Defendant’s first contention involves his claim that the amount of money which would have been immune from garnishment had the personal property exemption been granted was $500. Consequently, defendant argues that since the $500 exemption actually sought did not exceed the $1,000 personal property exemption he was entitled to, the trial court erred in striking his claim for the personal property exemption. We find little merit to this contention. The $500 which defendant wished to have declared free from garnishment under the personal property exemption amounted to twenty-five percent of his $2,000 monthly earnings. However, it should be noted that seventy-five percent, or $1,500, of these earnings was already immune from garnishment under the statutory wage exemption. Thus, while a debtor may have both exemptions — the wage and the personal property exemption — and thereby protect one hundred percent of his wages from garnishment, he cannot have both exemptions if the value of his personal property, including the amount of wages remaining after the wage exemption is taken, exceeds $1,000. Walker v. Williams & Bouler Construction Co., 46 Ala.App. 337, 241 So.2d 896 (1970). Accordingly, the issue in this case was not whether the -amount which defendant actually sought to have exempted was less than $1,000, as $500 clearly was, but rather, whether defendant held personal property, which, when added to the $500 of wages remaining after $1,500 was freed from garnishment by the wage exemption, exceeded $1,000. Since the evidence presented at trial tended to show that the value of defendant’s interest in various items of personal property plus the $500 not protected from garnishment under the wage exemption exceeded $1,000, the trial court acted properly in refusing to allow defendant to parlay his personal property exemption with his wage exemption to defeat garnishment by plaintiff. And the trial court’s action was correct regardless of the fact that the amount of wages which would actually have been exempted by reliance on the $1,000 personal property exemption was less than $1,000.

As his next ground for asserting error by the trial court, defendant submits that even if his claimed exemption was excessive, the court was nevertheless in error because a motion to strike the excess portion of a claim is not the proper procedural device for dealing with money or personal property in excess of $1,000. This argument is premised on Title 6, chapter 10, section 33, Code of Alabama 1975 (formerly Title 7, section 647) which provides that if an issue arises as to whether or not a claim is excessive in a contest involving a claim for a personal property exemption, the trial court (or jury) must ascertain how much and what portion of the personal property is exempt (including a description of the property and its approximate value); and when the value of this property reaches $1,000 the appropriate portion is exempted and the residue of the property is sold and the money received therefrom applied to the payment of costs and satisfaction of process.

While it is true that the trial court in the instant case did not proceed under section 33, it was not necessary to do so since the defendant’s right to have $1,000 worth of personal property exempted from process (and any remaining property sold and applied to the satisfaction of his debt) was not at issue. Instead, the issue was whether defendant held personal property in excess of $1,000 thereby warranting a denial of his claim to a personal property exemption for the portion of his wages not already exempted from garnishment by the statutory wage exemption. And relevant to this determination was an inquiry into the amount of personal property owned by the defendant at the time of the garnishment suit. This inquiry involved all personal property in which defendant had an interest whether acknowledged in his inventory or omitted therefrom. Consequently, the procedural aspects of this case were initially governed by Title 6, chapter 10, section 35, Code of Alabama 1975 (formerly Title 7, section 649) which provides that in situations where an inventory is filed by the debtor and a contest arises over the claim of a personal property exemption, the creditor may challenge the debtor’s inventory, claiming that the debtor has personal property not listed in the inventory. And if it is found that the sum of the personal property which was actually listed as belonging to the debtor and that which was not disclosed by his inventory exceeds $1,000 at the time the personal property exemption and the wage exemption are sought, a motion to strike the former claim would be proper in order to prevent the obtainment of a “double” exemption. Walker v. Williams & Bouler Construction Co., supra. See Johnson v. Huntsville Grocery Co., 10 Ala.App. 479, 65 So. 441 (1914).

Defendant further argues that even if it is assumed that the motion to strike the claimed exemption was the proper procedural device in this matter, he nonetheless could not be constitutionally deprived of the right to have $500 in wages exempted from garnishment. Article X, Section 204, Constitution of Alabama 1901 provides that $1,000 worth of personal property of any Alabama resident may be exempted from the sale or execution or other process issued by a court to permit the collection of a debt and that the debtor may select the property he wishes to exempt. However, this constitutional provision notwithstanding, a debtor may protect only $1,000 of personal property from sale or execution. He cannot exceed this amount and if he is found to have over $1,000 in personal property he is not entitled to claim the personal property exemption provided in the constitution and the seventy-five percent wage exemption. In the instant case, defendant was not deprived of his constitutional right to exempt $1,000 worth of his personal property.

Next, defendant asserts he is entitled to his personal property exemption even if it were proven that he wrongfully omitted various property from his inventory. We do not disagree with this assertion but merely find it inapplicable to the present case. Pinkus v. Bamberger, Bloom & Co., 99 Ala. 266, 13 So. 578 (1892), held that fraudulent conduct by a debtor in collusion with another was not sufficient to deprive the debtor of his right to set apart, as exempted from his debts, $1,000 worth of personal property which he might select. Likewise, the court of appeals in Johnson v. Huntsville Grocery Co., supra, concluded that the omission of items of personal property from an inventory did not deprive the defendant of his right to claim the exemption nor did it defeat the contested exemption. However, as we have stated throughout this opinion, plaintiff was not seeking to deny defendant a $1,000 personal property exemption. Plaintiff was seeking court action to prevent defendant from parlaying his personal property exemption with his wage exemption in order to immunize his relatively substantial wage earnings from garnishment to the detriment of plaintiff. ■ Important to this issue was the amount of personal property which defendant held at the time of the suit since he would be denied the right to a “double” exemption if he in fact held over $1,000 worth of personal property or fraudulently disposed of his property for the purpose of defeating the garnishment. Walker v. Williams & Bouler Construction Co., supra. Both Pinkus and Johnson support a court’s inquiry into such matters. In Pinkus the court stated that fraudulent conduct on the part of a debtor claiming an exemption for personal property is not relevant to any issue except so far as it shows he had other money or effects not included in his inventory. And Johnson stated that the omission to include personal property which should have been embraced in the inventory would not deprive the defendant of the right to claim the exemption unless the value of what was claimed in the inventory and the ascertained value of the property found to have been omitted from the inventory together amount to more than the defendant is entitled to claim as exempt. Moreover, in Walker this court remanded the case so that the plaintiff could offer proof that at the time of filing the exemption claim defendant had other personal property not disclosed by his affidavit or that defendant fraudulently disposed of money or other personal property for the purpose of defeating the garnishment.

In this case, plaintiff alleged in his pleadings and sought to prove at trial that defendant had failed to list in his inventory all the property in which he actually had an interest. Plaintiff also claimed (and offered evidence in support thereof) that defendant had conveyed both real and personal property to his former wife in an effort to defeat the rights of plaintiff. And although the allegations involving the fraudulent conveyance of real property had no relevancy to the contested exemption of personal property, there was nevertheless a significant amount of evidence (though largely circumstantial and in conflict) that defendant’s former wife had paid for or received under unusual circumstances items of personal property which had originally been purchased by defendant. Furthermore, evidence was presented that defendant often turned his entire weekly paycheck of $500 over to his ex-wife to be deposited in her account. And this action was taken despite the fact that defendant was not obligated under the terms of the divorce to provide his former wife with either alimony or child support. However, somewhat contradictory to the payment of what was no more than a moral obligation to provide for his ex-wife and children, was defendant’s claim that he could not afford to pay the legal obligation he owed plaintiff.

While it cannot be said as a matter of law that the aforementioned evidence demonstrates fraud or a deliberate attempt by defendant to misrepresent his personal assets, such evidence was relevant to a determination by the trial court that defendant’s interest in personal property exceeded $1,000, thus barring the latter’s claim to a “double” exemption.

A careful examination of the record and the judgment of the trial court does not support defendant’s contention that the denial of his claimed exemption to the remaining twenty-five percent of his wages was in error. Nor does the judgment indicate on what grounds, fraud or undisclosed property in excess of $1,000, the court’s decision was based. There was certainly sufficient evidence to sustain the latter as a basis for denying defendant’s exemption. And in instances where it cannot be determined on what ground or theory a judgment or verdict was rendered, the finding of the trier of fact will be referred to the theory which is supported by the evidence. See Leigeber v. Boike, 37 Ala.App. 591, 73 So.2d 390 (1954).

Moreover, under the ore tenus rule the judgment of the trial court will not be reversed or disturbed on appeal unless manifest error was committed by the trial court during the trial or the judgment is demonstrated to be plainly and palpably wrong. McPherson v. Everett, 277 Ala. 519, 172 So.2d 784 (1965). The trial court heard the evidence ore tenus in the present case and therefore we will not substitute our own judgment for that of the trial court. Accordingly, the court’s order granting plaintiff’s motion to strike the personal property exemption claimed by defendant is affirmed.

AFFIRMED.

WRIGHT, P. J., and HOLMES, J., concur.

      . The record before us reveals a conflict in the wife’s testimony about this matter. At first she stated she was not sure how she had accumulated any savings of her own since she had not worked for a number of years. Later, however, she testified that her savings resulted from the fact that she aided her brother and her former husband in the repair of house and camper trailers and that she received a portion of the proceeds from the resale of these trailers.


text:
    Bennie HILL, Individually and d/b/a Hill Construction Company, Hill Construction Company, a corporation v. Edwin L. SERENECK and Cathy Sereneck.
    Civ. 1302.
    Court of Civil Appeals of Alabama.
    Feb. 8, 1978.

      Alfred W. Goldthwaite, Montgomery, for appellant.
    Robert D. Segall, Montgomery, for appel-lees.
   BRADLEY, Judge.

Plaintiffs, Edwin L. Sereneck and Cathy Sereneck, filed an action in the Montgomery County Circuit Court against defendant, Bennie Hill, alleging that defendant had breached an agreement to build a house for plaintiffs in a workmanlike manner and that due to certain defects in the house, plaintiffs had been damaged to the extent of $17,895.00. Defendant denied the allegations and counterclaimed for $890.00. His counterclaim was based on the failure of the plaintiffs to pay for certain additions and repairs made by defendant on the plaintiffs’ home. Trial was held before a court and a jury and a verdict and judgment was rendered in favor of plaintiffs for $7,500. A motion was then made for a new trial or a judgment n. o. v. This motion was denied. Defendant appeals from the judgment on the merits and the trial court’s order denying defendant’s motion for new trial or judgment n. o. v.

The facts show that the plaintiffs owned a parcel of land in south Montgomery County. Plaintiffs entered into an agreement with defendant to have the latter build a house for them on this parcel of land. The plaintiffs selected a house plan and they obtained a loan from the Farmers Home Administration to pay for the construction of their new home.

The house was built and it was inspected by plaintiffs, defendant, and a representative from the FHA before the plaintiffs moved in. The house was accepted and the plaintiffs took possession. Not too long after they began residing in the house, plaintiffs commenced to find various defects in the house. Over a brief period of time the defects increased in quantity and quality. Most of the defects resulted from the faulty foundation slab on which the house rested.

The evidence showed: that there was cracking in the exterior brick walls; that the molding and trim in the house pulled away from the walls; that the wood paneling buckled; that the floor slanted; that the bathroom tile and the ceilings cracked; and that several doors in the house would not open and close properly. In addition, the carport slab cracked.

At trial one expert stated that it would cost about $8,200 to repair the damage. Another expert testified that it would cost more.

On appeal, defendant argues eleven issues or assignments of error as grounds for reversing the trial court’s judgment. On examination of these issues it develops that six of them question certain portions of the court’s oral charge to the jury. However, nowhere in the record is it demonstrated that the defendant objected to these portions of the court’s oral charge before the jury retired.

Rule 51, ARCP, clearly provides that: “. . .No party may assign as error . . . 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.

This court and the supreme court have said that this provision of Rule 51 precludes the unobjected to portions of the trial court’s charge from being the basis for reversal on appeal. Hogan v. Alabama Power Co., Ala.Civ.App., 351 So.2d 1378, cert. den. Ala., 351 So.2d 1388 (1977); Curry Motor Co. v. Rebuilt Parts Warehouse, Inc., 53 Ala.App. 719, 304 So.2d 221 (1974). See Pruitt v. Pruitt, Ala., 343 So.2d 495 (1976). Consequently, the six issues which deal with the objection of the defendant to certain portions of the court’s oral charge to the jury are not properly before this court for review.

The next issue to be considered is defendant’s contention that the trial court erred in repeating to the jury during its oral charge the term “workmanlike manner” some five or six times. Defendant submits that this emphasis on the workmanship that went into the construction of the house unduly prejudiced the defendant. We disagree.

To begin, we note that defendant did object to this aspect of the oral charge as required by Rule 51, and did assert to the trial court that he considered this prejudicial.

In their initial pleadings the plaintiffs alleged that the defendant had failed to construct the house in a workmanlike manner and, as a result, they had been damaged. Defendant denied these allegations. The tenor of the evidence was to the effect that the defects in the house were due to the workmanship of the defendant-builder. Furthermore, it is significant that during the court’s instructions to the jury, the trial court used the objected to term twice in apprising the jury of plaintiffs’ contentions and a third time in pointing out to the jury that plaintiffs have the burden of proving that the construction work was not done in a workmanlike manner.

After a careful examination of the trial court’s entire oral charge and the remainder of the trial record, we find no prejudice to defendant’s substantial rights by the trial court’s use of the term “workmanlike manner.” See Citizens Bank v. Routh, Ala.Civ. App., 351 So.2d 594 (1977).

Defendant next contends that the trial court erred in giving the following written charge to the jury:

“In action for breach of warranty regarding plaintiffs’ dwelling, plaintiffs are entitled to recover for inconvenience and annoyance, resulting proximately from such breach.”

Moreover, defendant argues that the case of F. Becker Asphaltum Roofing Co. v. Murphy, 224 Ala. 655, 141 So. 630 (1932), which was relied on by plaintiffs to support the giving of the above charge, is inapplicable to the present situation. In the Murphy case plaintiff had sued defendant for breach of warranty in the furnishing and installation of a new roof for plaintiff’s house. The complaint and evidence showed that the roof leaked and as a consequence water fell into each room every time it rained. Additional evidence demonstrated that water leaked onto the bed where plaintiff slept (and upon other furniture and furnishings) and that as a result of the leaks, plaintiff was disturbed and suffered from colds and asthma. The supreme court in affirming a judgment for plaintiff said:

“The general rule is that damages cannot be recovered for mental anguish in an action of assumpsit. Birmingham Water Works Co. v. Vinter, 164 Ala. 490, 51 So. 356. The ground on which the right to recover such damages is denied, is that they are too remote, were not within the contemplation of the parties, and that the breach of the contract is not such as will naturally cause mental anguish. Westesen v. Olathe State Bank, 78 Colo. 217, 240 P. 689, 44 A.L.R. 1484. ‘Yet where the contractual duty or obligation is so coupled with matters of mental concern or solicitude, or with the feelings of the party to whom the duty is owed, that a breach of that duty will necessarily or reasonably result in mental anguish or suffering, it is just that damages therefor be taken into consideration and awarded.’ 8 R.C.L. p. 529, § 83; Southern Ry. Co. v. Rowe, 198 Ala. 353, 73 So. 634; McConnell v. United States Express Co., 179 Mich. 522, 146 N.W. 428, Ann.Cas. 1915D, 80; Westesen v. Olathe State Bank, 78 Colo. 217, 240 P. 689, 44 A.L.R. 1484; Burrus v. Nevada-California-Oregon Ry., 38 Nev. 156, 145 P. 926, L.R.A. 1917D, 750.
“Another exception is where the breach of the contract is tortious, or attended with personal injury, damages for mental anguish may be awarded. Vinson v. Southern Bell Tel. & Tel. Co., 188 Ala. 292, 66 So. 100, L.R.A. 1915C, 450.
“The facts of this case, if the plaintiffs evidence was believed, brings the case within these two exceptions.
“The contract related to placing a roof on the plaintiff’s residence, her ‘castle,’ the habitation which she had provided to protect her against the elements, and to shelter her belongings that she thought essential to her comfort and well-being, the very things against which she made the contract to protect herself and her property, and as a result of the breach of the obligation which defendants assumed, the roof leaked to such extent that she was disturbed in her comfort, her household belongings were soaked with water, her house was made damp, she was made sick, as the jury were authorized to find. And the defendants, though repeatedly notified, took no steps to meet their obligation, were not only guilty of a breach of the contract, but were negligent in respect to the performance of the duty which it imposed on them. Charge 12 was therefore refused without error.
“She was also entitled to recover for inconvenience and annoyance, resulting proximately from such breach. Alabama Water Co. v. Knowles, 220 Ala. 61, 124 So. 96.”

In the case at bar the complaint avers that plaintiffs have been annoyed and inconvenienced as a result of the failure of defendant to build their house in a workmanlike manner and by the fact that defendant breached his contractual obligation to build the house according to the agreed upon plans and specifications. The evidence shows that there was considerable cracking of the exterior walls of the house; that the paneling buckled; that the tile in the bathrooms cracked; that the exterior and interior doors would not close properly. Moreover, there was evidence that the doors could not be locked and that the existence of this condition caused the plaintiff-wife (who stayed at the house alone most of the time) to be afraid and apprehensive. Such evidence was relevant to the first exception to the general proposition that damages cannot be recovered for mental anguish in a civil action for breach of contract. In instances where it is demonstrated that the breach of the contractual duty actually caused the complaining party mental anguish or suffering and that the breach was such that it would necessarily result in emotional or mental detriment to the plaintiff, damages for annoyance and inconvenience may be awarded.

Based on evidence presented at trial we conclude that the trial court committed no error by giving to the jury the written requested charge in question.

Defendant says next that the trial court erred in giving the following written charge requested by plaintiffs:

“I charge you that even though the house in this case was to be built in accordance with specifications which had to be approved by the Farmers Home Administration, the Farmers Home Administration was not made an umpire to determine liability in this case.”

This alleged error is based on defendant’s contention that the house was built in accordance with specifications required by the lender, the FHA. Therefore, defendant maintains that any complaint about the construction should be directed to the FHA rather than to the defendant.

In reply, plaintiffs argue that the FHA was acting as an independent organization in the transaction between plaintiffs and defendant and not as an agent of plaintiffs.

The sole role of FHA in the transaction in question was as lender of the money for construction of the house, and as a lender, to protect its investment by requiring that defendant meet certain minimum standards of construction. The agreement for the construction of the plaintiffs’ house in accordance with certain plans and specifications was between plaintiffs and defendant. We do not perceive that any action on the part of FHA could absolve defendant from the legal duty he owned to plaintiffs; consequently, we cannot say that the charge given to the jury that the FHA was not “an umpire to determine liability” between the parties was incorrect. Fox v. Webb, 268 Ala. 111, 105 So.2d 75 (1958).

Another argument defendant makes for reversal is his claim that the trial court committed error in refusing to exclude all evidence with reference to the slanting of the floors.

As the evidence developed in this case, it became quite evident that the major portion of the defects in the construction of the house were due to the settling of the foundation (the house was built on a concrete slab). Thus we conclude that evidence that the floors had begun to slant would be material and relevant to the issue of whether the foundation was improperly constructed. We find no error on the part of the trial court as a result of its refusal to exclude such evidence. Cherry v. Hill, 283 Ala. 74, 214 So.2d 427 (1968); Curry Motor Co. v. Rebuilt Parts Warehouse, Inc., supra.

Defendant’s final assignment of error is that the verdict and judgment was excessive and the motion for new trial should have been granted.

As stated earlier, the judgment was for $7,500. At trial there was testimony from two expert witnesses that it would cost $8,200 or more to correct the enumerated defects in the house in question. In view of this testimony we cannot say that the verdict and judgment was excessive.

For the reasons pointed out above, the judgment of the trial court is affirmed.

AFFIRMED.

WRIGHT, P. J., and HOLMES, J., concur.


text:
    In re UNITED STATES of America v. BEAR BROTHERS, INC. Ex parte United States of America.
    Civ. 1281.
    Court of Civil Appeals of Alabama.
    Feb. 15, 1978.

      Alice L. Mattice, Atty., Dept, of Justice, Civ. Div., Appellate Section, Barbara Allen Babcock, Asst. Atty. Gen., D. Broward Seg-rest, First Asst. U. S. Atty., Barry E. Teag-ue, U. S. Atty., Ronald R. Glancz, Atty., Dept, of Justice, Civ. Div., Appellate Section, Washington, D. C., for federal appellant.
    John M. Milling, Jr., of Hill, Hill, Carter, Franco, Cole & Black, Montgomery, for ap-pellee.
   BRADLEY, Judge.

This petition for the writ of certiorari is the result of a judgment rendered by the Circuit Court of Montgomery County denying petitioner, the United States of America, the right to recover on behalf of the Veterans Administration certain costs incurred by the latter in the treatment of an employee of defendant below, Bear Brothers, Inc.

Frank Watkins, a veteran, was injured in the course of his employment with Bear Brothers, Inc., a company subject to the Alabama Workmen’s Compensation Act. Immediately after Watkins’ accident, Bear Brothers referred him to a Montgomery physician. Approximately a month later a physician specializing in orthopedic surgery examined Watkins and had him admitted to a private hospital. Various tests were performed on Watkins in order to determine the extent of his injury and upon completion of these tests the orthopedic surgeon and a neurologist (both of whom were provided by Bear Brothers) recommended surgery in the form of a laminectomy. Watkins apparently rejected the recommendation, left the private hospital and entered a Veterans Administration Hospital in Birmingham, Alabama. Subsequently, physicians employed by the Veterans Administration performed the necessary surgery on Watkins. The cost of the treatment provided to Watkins by the V.A. was approximately $5,200. There was no dispute as to the necessity for, or the reasonableness of, these expenses.

Watkins later brought a workmen’s compensation suit in which he sought to recover from his employer (Bear Brothers) the costs of the medical treatment he had received in regard to his work-related injury. Since Watkins had assigned his right to recover workmen’s compensation benefits from his employer to the Veterans Administration, the United States government intervened to obtain reimbursement for the reasonable value of the medical services which had been furnished to Watkins by the V.A.

A hearing was held in the Circuit Court of Montgomery County. After the presentation of evidence by both parties the trial court entered the following order:

“. . . [T]he Court is of the opinion and finds that [(1)] the United States of America furnished the Plaintiff said medical, hospital and surgical expenses according to the Federal laws without loss of benefit to the Plaintiff, and that the Defendant is not liable to the United States of America for any part of said expenses; [and (2)] the Court is further of the opinion and finds that the Plaintiff, without permission or other authorization from the Defendant, voluntarily and without cause, left the medical care provided by the Defendant and sought care and treatment within the United States of America Veterans’ Administration facilities, while at the same time the same, or substantially the same, care was offered by the Defendant’s doctors, which the Plaintiff refused, and the Defendant is not liable for said expenses furnished by the United States of America.”

The only questions presented here are; (1) whether there was any evidence adduced at trial which would support the trial court’s determination that under a statutory exception to the Alabama Workmen’s Compensation Law the employer was not obligated to pay the expenses incurred by its employee during the latter’s treatment and hospitalization with the Veterans Administration; and (2) whether the Veterans Administration (having become subrogated to the employee’s rights by virtue of an assignment) can recover from the employer the cost of medical care furnished by the V.A. hospital.

It is well established that this court’s review upon petition for a writ of certiorari in a workmen’s compensation case is limited to a determination of whether there is any legal evidence which would support the trial court’s finding of fact. Romine v. McDuffie, Ala.Civ.App., 341 So.2d 952 (1977); Young v. City of Huntsville, Ala.Civ.App., 342 So.2d 918 (1976). Moreover, on appeal this court does not weigh the evidence to determine if it reasonably satisfies the issue in question. Nason v. Jones, 278 Ala. 532, 179 So.2d 281 (1965).

We have examined the record and have found evidence which would support the trial court’s determination that Watkins voluntarily and unjustifiably left the medical care of the physicians provided by his employer without the latter’s knowledge or permission, and that he subsequently obtained treatment from the V.A.

The pertinent evidence in regard to this matter is as follows. At trial Watkins testified that the neurosurgeon who treated him recommended that Watkins see a physician employed by the Veterans Administration if he was dissatisfied with the nature of the treatments being furnished by the neurosurgeon (and the other doctors which his employer had selected). In addition, Watkins stated that he informed his employer that he was obtaining medical care from the V.A. and that his employer did not disapprove or tell him that it would refuse to pay for such care. However, testimony furnished by the neurosurgeon in an oral deposition would seem to indicate that he did not learn that Watkins was being treated by the V.A. until sometime after Watkins had been furnished medical care by that organization. Nor is there any additional evidence that Watkins gave notice to Bear Brothers or the other physicians provided by that company that he wished to obtain treatment from the V.A. The oral deposition of the neurosurgeon does not support or refute Watkins’ insistence that the former had recommended that Watkins obtain alternative opinions or treatment in regard to his condition. There was also testimony by Watkins that upon being informed by the neurosurgeon that surgery was recommended, he (Watkins) was reluctant to accept the surgeon’s suggestion that he undergo an operation. Instead, Watkins had his records transferred to the V.A. hospital and placed himself under the care of physicians employed by the Veterans Administration. Watkins was questioned about these matters at trial and the record before us reveals the following exchange:

“Q. They [the neurosurgeon and the orthopedic surgeon] recommended this laminectomy around January of ’74, wasn’t that right?
“A. Yes.
“Q. And then did you then start going to the V.A. after that?
“A. I had my records transferred — my x-rays that I could collect here in Montgomery at Jackson Hospital. And the ones I couldn’t collect from Dr. Bo-stwick’s [neurosurgeon’s] office, which was the first x-ray he took of my back, I couldn’t get that one. And I still wanted. And I never got it yet.
“Q. You sent all the records to the V.A. that you could?
“A. Yes, sir.
“Q. Why did you go to the V.A. and quit going to see Dr. Barnes [orthopedic surgeon] and Dr. Bostwick?
“A. Well, there was a lot of things to think about, the reason I didn’t do it.
“Q. Well, tell me?
“A. The operation, first, was recommended too fast and did not give me enough time to think about the conditions and risk of damage I would have in it never was explained.
“Q. So you decided you wanted to get—
“A. I decided I wanted another opinion from—
“Q. From another doctor?
“A. From another doctor. And I got it, and they gave me time to think about it.
“Q. You are talking about they; the V.A.?
“A. That is right. . . . ”

The only other evidence which was relevant to the trial court’s inquiry into the question of whether Watkins voluntarily and unjustifiably left the medical care of the physicians provided by his employer without the latter’s knowledge or permission was the testimony of a person who was employed by the insurer of Bear Brothers, Inc. This person stated that the insurance file in the case contained no written authorization by Bear Brothers (or the physicians provided by Bear Brothers) which consented to Watkins’ treatment at a V.A. facility. Moreover, the insurance company employee testified that his company would normally note in the insurance file any oral directives or authorization to that effect. However, he also said he had no knowledge about whether an oral authorization had been given to Watkins permitting him to obtain medical care from the V.A. Additional testimony by the insurance company employee indicates that the V.A. wrote a letter to Bear Brothers requesting payment for the medical services performed on behalf of Watkins but that neither Bear Brothers nor its insurer responded to this letter or indicated that it would pay the costs incurred by the V.A. in treating Watkins. Finally, a hospital summary sheet from the V.A. facility in Birmingham discloses that Watkins was referred to the V.A. hospital in Birmingham by the V.A. hospital in Montgomery.

We believe that the aforementioned evidence was sufficient to support the trial court’s conclusion that Watkins voluntarily and without cause left the medical care provided by his employer without the latter’s knowledge or permission. Furthermore, we consider such evidence adequate to meet the “any legal evidence” standard necessary to uphold the trial court’s finding of fact upon review by certiorari.

Moreover, the unjustified obtainment by an employee of medical care from sources other than those selected by the employer without the latter’s knowledge or consent may, in appropriate instances, excuse the employer from liability for the costs incurred by the employee. Title 26, section 293, Code of Alabama 1940 (Recomp. 1958) (Supp.1973) (Title 25, chapter 5, section 77, Code of Alabama 1975 indicates significant changes in its statutory predecessor) provides in applicable part:

“In addition to the compensation herein provided, ... the employer shall pay the actual cost of reasonably necessary medical and surgical treatment and attention ... as may be obtained by the injured employee during the first four years of disability . . . . If the employee is dissatisfied with the initial treating physician selected by the employer and if further treatment is required, the employee may so advise the employer and in such event the employee shall be referred to a second physician selected by the employer. In the event surgery is required, if the employee is dissatisfied with the designated physician, he may so advise the employer and in such event the employee shall be referred to a second physician selected by the employer. . . . ” (Emphasis supplied.)

Continuing, the statute states:

“ . . . [I]f the employer furnishes medical and surgical attention and supplies during [the] four-year period he shall not be liable under this section, except for such of said services and supplies as may, in an emergency, be procured by the employee elsewhere . . .” (Emphasis supplied.)

The above quoted provision indicates that with the exception of emergency care, the employer has the right to select the medical or surgical attendant who will treat the employee. Moreover, the statute provides that if the employee is dissatisfied with the physician selected by the employer, he should advise the employer of this fact so that the employer can select another physi-cían.' Accordingly, under the language of section 293 requiring an employee to advise his employer if he is dissatisfied with the employer’s physician and permitting the employer to select the medical or surgical attendant of his choice, the employer is not liable for the costs of medical or surgical treatment obtained by the employee without justification or notice to the employer. 99 C.J.S. Workmen’s Compensation § 273; 82 Am.Jur.2d Workmen’s Compensation § 391. 2 Larson’s Workmen’s Compensation Law, Benefits § 61.12.

In the present case the trial court found that Watkins voluntarily and without cause left the medical care provided by his employer and obtained this care elsewhere without the permission or authorization of his employer. As a consequence of this finding the trial court held that the employer was not liable for the costs incurred as a result of the treatment Watkins received from the V.A. The trial court’s conclusions had support in both law and fact and will be upheld by this court.

The second issue before this court for review involves the question of whether the Veterans Administration (having become subrogated to the employee’s rights by virtue of an assignment) can recover from the employer the cost of medical care furnished by the V.A. hospital.

The United States government contends that the V.A. is entitled to be reimbursed for the medical services it performed on behalf of Watkins. In support of its position the United States places substantial reliance on two recent cases, Texas Employers’ Insurance Association v. United States, 558 F.2d 766 (5th Cir. 1977) and United States v. Bender Welding & Machine Co., 558 F.2d 761 (5th Cir. 1977). Texas Employers Insurance and Bender Welding & Machine held that in situations where the V.A. was not required to furnish free medical care to a veteran because of the veteran’s ability to defray the expenses of necessary care by means of state (or federal) compensation coverage, the V.A. was entitled to reimbursement from the compensation carrier for the expense of medical service furnished by the V.A. to the veteran-employee. The fifth circuit court of appeals reasoned that since compensation coverage provided an employee with the ability to defray his hospital expenses, the medical services rendered by the V.A. did not have to be furnished to the veteran free of charge. Consequently, the court concluded that in instances where the services provided by the V.A. were not free, these services were the proper obligation of the compensation carrier to the employee.

We believe these decisions are cogent and well reasoned, particularly in view of the fact that the purpose of the Veterans’ Benefits Act was to provide free hospital care for non-service connected injuries solely to those veterans who lack the means to pay the necessary costs of medical care rather than a statutory device by which an employer could escape his duty to compensate an injured employee for the expenses incurred in the treatment of a job-related injury. However, the decisions rendered in Texas Employers’ Insurance and Bender Welding & Machine are not applicable to the present situation.

If money provided as a result of the applicability of workmen’s compensation benefits is treated as giving an employee the ability to defray expenses, it necessarily follows that medical services need not have been rendered by the V.A. without charge and therefore it would be entitled to reimbursement from the compensation carrier if the V.A. did indeed furnish medical care to the veteran-employee. But in the present case the compensation carrier’s duty to provide workmen’s compensation benefits was excused on the grounds that the employee voluntarily and without cause left the medical care provided by the compensation carrier and obtained treatment at a V.A. facility without the consent or authorization of the carrier. Consequently, the employee’s right to compensation was denied and he was thereby deprived of the ability to defray the costs of the medical services rendered by the V.A. Thus, the V.A. rendered free medical service because an employee is only required to pay the V.A. to the extent he is entitled to reimbursement by reason of workmen’s compensation. And the law is clear in this jurisdiction that the compensation carrier would not be liable for any free services rendered to the employee since the carrier is required to pay for only those services which are not free.

In this instance the employee (Watkins) was entitled to receive treatment at the V.A. hospital for injuries; this treatment was free since he had no other source from which the funds necessary to pay the costs could be derived once the trial court held that he was not entitled to workmen’s compensation benefits because he voluntarily left the care of his employer’s physician and, without notice to the employer, obtained alternative care. Thus, the V.A. incurred expenses treating an employee whom it was found obligated to treat free of costs. Accordingly, the V.A. must absorb those costs. The trial court’s holding that the V.A. was not entitled to reimbursement from the workmen’s compensation carrier is therefore affirmed.

AFFIRMED.

WRIGHT, P. J., and HOLMES, J., concur.

      . 38 C.F.R. § 17.48(d) (1976) provides in part:
      “(d) Persons hospitalized pursuant to paragraph . . .(d). of § 17.47, who it is believed may be entitled to hospital care or medical or surgical treatment or to reimbursement for all or part of the cost thereof by reason of any one or more of the following: “(1) . . . (iii) ‘Workmen’s Compensation’ or ‘employer’s liability’ statutes, State or Federal; ... or
      “(2) By reason of statutory or other relationships with third parties, including those liable for damages because of negligence or other legal wrong; will not be furnished hospital care, medical or surgical treatment, without charge therefor to the extent of the amount for which such parties, referred to in paragraph (d)(1) . of this section, are, or will become liable. Such patients will be requested to execute an appropriate assignment as prescribed in this paragraph. Patients who, it is believed, may be entitled to care under any one of the plans in paragraph (d)(1) of this section, will be requested to execute VA Form 10-2381, Power of Attorney and Agreement. . . . Notice of this assignment will be mailed promptly to the party or parties believed to be liable. When the amount of charges is ascertained, bill therefor will be mailed to such party or parties.”

      . However, in appropriate instances the employee may recover workmen’s compensation benefits from his employer even though the employee has contracted for medical care from a source other than one provided by the employer. Among such instances are: (1) where the employer has neglected or refused to provide the necessary medical care; (2) where the employer has consented to the selection by the employee; (3) where notice of and request for alternative care would be futile; and (4) where other circumstances exist which justify the selection of alternative care by the employee. 99 C.J.S. Workmen’s Compensation § 273; 82 Am. Jur.2d Workmen’s Compensation § 391. See Industrial Indemnity Co. v. Industrial Acc. Comm’n., 188 Cal.App.2d 656, 10 Cal.Rptr. 566 (1961).

      . Pursuant to the Veterans’ Benefits Act of 1957 the Administrator for the Veterans Administration has promulgated regulations which state that persons admitted to a V.A. hospital on the basis of the Act will not be furnished medical care without charge to the extent they are entitled to reimbursement for medical care by reason of a state or federal workmen’s compensation statute. 38 C.F.R. § 17.48(d) (1976).

      . Regulation 17 has no provision for any billing of the veteran or for making any demand upon him to pay for the services provided for him or for undertaking in any manner to make collection from him. 38 C.F.R. § 17.48(d) (1976). United States v. Bender Welding & Machine Co., 558 F.2d 761 (5th Cir. 1977). In brief, Regulation 17 cannot circumvent the absolute right of a veteran to receive free care where no other compensation is available. United States v. St. Paul Mercury Indemnity Co., 238 F.2d 594 (8th Cir. 1956).

      . Title 26, section 293, Code of Alabama 1940 (Recomp.1958) (currently found in Title 25, chapter 5, section 77, Code of Alabama 1975), specifically provides that if an employee is entitled by either state or federal law to receive medical services from a source other than the employer without any loss of benefit to the employee, then the employer is not liable for the medical benefits under the workmen’s compensation law. Sabino v. Independent Life & Accident Insurance Co., 52 Ala.App. 368, 292 So.2d 662 (1974). Moreover, the clear import of section 293 is that an employer shall be liable to the employee for expenses incurred in the treatment of a compensable injury unless a statutory exception such as existed in this case precludes liability on the employer’s part.

      .The United States government also contends that the portions of section 293 relied on by the trial court as a basis for its judgment are invalid because they conflict with the supremacy clause found in Article VI of the United States Constitution. However, we find no conflict between section 293 and federal law as the two are applied in this case.