text:
    The CITY OF MONTGOMERY v. James MAULL and Estella Maull.
    SC 1935.
    Supreme Court of Alabama.
    April 1, 1977.

      Walter J. Knabe and Randall C. Morgan, Montgomery, for appellant.
    John S. Bowman and Charles S. Coody, Montgomery, for appellees.
   MADDOX, Justice.

The City of Montgomery filed suit for a preliminary injunction against defendants James Maull and Estella Maull seeking to enjoin them from denying the City access to and use of an easement for the installation of a sanitary sewer line. The City claimed an easement by virtue of a deed from the Maulls which described the easement as follows:

“The south 5 feet of Lot 11, Block B, according to the George F. Moore Plat, as the same is filed for record in the office of the Judge of Probate, Montgomery County, Alabama, in Garrett Plat Book, Page 163.” [Emphasis added.]

The Maulls claimed that at the time they signed the deed the description was not on it, and that the agreement between them and the City for an easement involved the “north 5 feet” of Lot 11, Block B, not the “south 5 feet of Lot 11, Block B, . . . ” as shown by the deed. The Maulls counterclaimed and requested that the trial court reform the easement to conform to their alleged original agreement to show the “north 5 feet” as the location of the easement. They further asked the court to enjoin the City from assessing the costs and installation of the sewer line against them. During the trial, they also claimed that the City had agreed to install sanitary sewers on lots they owned on Juliette Street without assessing the cost of installation against them.

The facts out of which this case arose are as follows: In 1973, F. T. Enslen, a real estate appraiser, was employed by the City’s engineering department to acquire some easements for a sewer project in the western part of Montgomery. Enslen was authorized to act as the City’s representative in contacting property owners in order to obtain easements. During 1973, Enslen contacted the Maulls. The testimony is conflicting as to what transpired between the parties and especially as to whether the description of the easement was on the form deed at the, time the Maulls signed this document. The Maulls testified that the description of the easement was not on the form when they signed it. They further testified that when they discussed the location of the easement, both James Maull and Enslen went down to the property and the location of the easement was pointed out. The Maulls testified that Enslen also represented that the “government was going to pay for it, and that the Maulls would not have to pay for the installation of the sewer.”

On the other hand, Enslen testified that his offer to obtain the easement was limited solely to Lot 11; that he did not know that the Maulls owned other property in the area; that the deed description when he talked with the Maulls was already filled in; and that he did not go with Mr. Maull to the property on Lot 11, but showed the Maulls a map of the property which pointed out the route that the sanitary sewer line would run across their property.

Subsequently, in 1976, a city contractor came to the Maulls’ property to begin work on the sewer line. The area in which the contractor was working was on the south part of the Lot 11. Based on his understanding that the easement would run on the north five feet of the lot along the ditch, Mr. Maull denied the City contractor access to the property.

The trial court heard the evidence without a jury and rendered its decree which reads in pertinent part:

“ * * * [T]he Court finds that the City of Montgomery, Alabama, a municipal corportion, acting by and through its duly authorized agent, obtained an easement for a sanitary sewer line from James Maull and Estella Maull in consideration for a promise to install, at no cost to the Defendants, a sewer line across the north five (5) feet of Lot 11, Block B, of the George F. Moore Plat, and along Juliette Street in the City and County of Montgomery, Alabama. It is therefore
“ORDERED, ADJUDGED and DECREED that the description in the easement for a sanitary sewer line from James Maull and Estella Maull to the City of Montgomery, Alabama, dated October 30,1973, is hereby reformed to read as follows:
“The North five feet of Lot 11, Block B, according to the George F. Moore Plat, as the same is filed for record in the Office of the Judge of Probate of Montgomery County, Alabama, in Garrett Plat Book, Page 163.
“It is further
“ORDERED, ADJUDGED and DECREED that the City of Montgomery, Alabama, a municipal corporation, is hereby restrained and enjoined from assessing against the Defendants, James Maull and Estella Maull, any portion of the costs of installing the sewer line across the north five feet of Lot 11, Block B, according to the George F. Moore Plat, and a long Juliette Street in the City and County of Montgomery, Alabama. . . ” [Emphasis added.]

The City contends that under the facts of this case a contract does not exist between the parties as there was no meeting of the minds and, therefore, under the doctrine of mutual mistake the deed should be can-celled. As stated previously, the City also contends that the offer not to assess costs of installation was limited to Lot 11, Block B; the Maulls claimed the offer applied to all of their property, including adjacent lots on Juliette Street.

It has been held that where one person makes an offer, and another in words accepts it, and they have in mind different things, there can be no contract since their minds must meet and concur on every necessary element, including the subject matter in order to create a valid contract. Southern Ry. Co. v. Birmingham Rail & Locomotive Co., 210 Ala. 540, 98 So. 727 (1924). The findings of the trial court, however, reveal that an agreement was reached concerning the granting of an easement along or for the north five feet of Lot 11, Block B. A trial court’s findings of fact adduced on evidence ore tenus are cloaked with a presumption of validity and will be disturbed only when manifestly erroneous. Baptist Foundation of Alabama v. Penn, 295 Ala. 122, 324 So.2d 766 (1975); Jones v. Ball, 294 Ala. 654, 320 So.2d 665 (1975).

We are of the opinion that there were sufficient facts from which the trial court could find that the instrument was blank when signed by the parties as to the description where the easement would cross Lot 11. In addition there were sufficient facts from which the trial judge could find that the deed signed by the Maulls pursuant to the agreement was made incorrectly in that it indicated “the south five feet” of Lot 11 instead of the “north five feet” of Lot 11. The trial court did not err in granting equitable reformation of the deed. Original Church of God, Inc. v. Perkins, 292 Ala. 283, 293 So.2d 292 (1974).

The City contends that it did not enter into a contract because no agreement was entered into as prescribed by Tit. 37, § 467, Code. We disagree. The evidence supports the finding that Enslen was authorized by the City to execute a deed with the Maulls for an easement to their property.

The City maintains that the agreement between the parties is too indefinite to constitute a contract. Without question, an easement is an interest in land and can be created only by deed, by prescription, or by adverse possession for the statutory period. Camp v. Milam, 291 Ala. 12, 277 So.2d 95 (1973). The Court must look to the written instrument to determine the scope of the grant. Consolidated Foods Corp. v. Water Wks. & San. S. Bd., 294 Ala. 518, 522, 319 So.2d 261 (1975). If the language is ambiguous or uncertain in any respect, the surrounding circumstances, including the construction placed on the language by the parties are taken into consideration so as to carry out the intention of the parties. 25 Am.Jur.2d, § 24, pp. 434-435. In the instant case, the evidence supports the trial court’s finding that the City obtained an easement from the Maulls for a sanitary sewer line across the north five feet of Lot 11, Block B.

The City contends that the trial court’s decree does not conform to the pleadings and is not supported by the proof. The City’s position is that the trial judge in his decree restrained and enjoined the City from assessing against the Maulls any portion of the cost of installing the sewer line across the north five feet of Lot 11, Block B, and further restrained the City from assessing the cost of installation against lots owned by the Maulls along Juliette Street. The record shows that the Maulls own Lots 23, 24, 25 and 26 on Juliette Street. However, there is no averment in any of the pleadings that these lots were to escape assessment as part of the agreement between the parties. Most importantly, we find that there was insufficient evidence from which the trial court could have found that the Maulls were promised that there would be no charges assessed against them for the installation of the sewer line along Lots 23, 24, 25 and 26 in consideration for their granting the City an easement across Lot 11. Therefore, we reverse only that part of the trial judge’s decree which enjoined the City from assessing against the Maulls the costs of installing the sewer line along Juliette Street. In all other respects, we affirm.

AFFIRMED IN PART; REVERSED IN PART.

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


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Everett L. ALMON v. G. R. LEE et al.
    SC 2174.
    Supreme Court of Alabama.
    April 1, 1977.
    J. Larry Horsley, Cullman, for appellant.
    Joseph N. Langan and Michael D. Lan-gan, Mobile, for appellee.
   PER CURIAM.

The Justices of this Court are not required to write opinions in cases where the decisions merely reaffirm previous decision, or relate to questions of fact only, or when the cases decided would, in their opinion, serve no useful purpose as precedents. Tit. 13, § 66, Code of Alabama 1940, Recompiled 1958.

After due consideration of this cause, the Court is of the opinion that the judgment should be and it is hereby affirmed.

AFFIRMED.

TORBERT, C. J., and BLOODWORTH, JONES, ALMON and EMBRY, JJ., concur.


author: PER CURIAM. FAULKNER, Justice

text:
    Wanza COOTER, as guardian, etc. v. STATE FARM FIRE AND CASUALTY CO., a corp.
    SC 1810.
    Supreme Court of Alabama.
    April 8, 1977.
    C. Lynwood Smith, Jr., and David B. Blankenship, Huntsville, for appellant.
    L. Tennent Lee, III, Huntsville, for appel-lee.
   PER CURIAM.

This is an appeal from the decree of the Circuit Court of Marshall County, declaring that the language of a homeowner’s insurance policy did not require the insurer to defend or pay any judgment rendered in the suits brought against the insureds.

On December 25, 1972, Bruce Knight was injured in an automobile accident while riding as a passenger in an automobile owned by Billy F. Kleinklaus and driven by his minor son, James Wayne Kleinklaus. At the time of the accident, Billy Kleinklaus had a homeowner’s insurance policy with State Farm Fire and Casualty Co., covering him as the named insured and James Kleinklaus as his minor son residing in his household. In pertinent part, the policy provided as follows:

“COVERAGE E — PERSONAL LIABILITY:
“This Company agrees to pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages because of bodily injury or property damage, to which this insurance applies, caused by an occurrence. This Company shall have the right and duty, at its own expense, to defend any suit against the Insured seeking damages on account of such bodily injury or property damage, even if any of the allegations of the suit are groundless, false or fraudulent, but may make such investigation and settlement of any claim or suit as it deems expedient. This Company shall not be obligated to pay any claim or judgment or to defend any suit after the applicable limit of this Company’s liability has been exhausted by payment of judgments or settlements.
* * * * * *
“THIS POLICY DOES NOT APPLY: “1. Under Coverage E — Personal Liability * * *:
“(a) to bodily injury or property damage arising out of the ownership, maintenance, operation, use, loading or unloading of:
“(2) Any motor vehicle owned or operated by, or rented or loaned to any insured: * * *.”

Wanza Cooter, as guardian of Bruce Knight who was non compos mentis, brought two actions in the Circuit Court of Marshall County, one against James Kleink-laus for the negligent operation of an automobile and another against Billy Kleinklaus for the negligent entrustment of an automobile. State Farm brought an action in the same court against all parties, requesting a declaration that, under the terms of its homeowner’s policy, it was neither obligated to defend nor to pay any judgment in Ms. Cooter’s action against Billy Kleinklaus. She appeals from the decree as to this action. We affirm.

The sole issue before us is whether State Farm, the insurer, is obligated, under the language of the homeowner’s policy, to defend and pay any judgment in an action against Kleinklaus, the insured, for negligent entrustment of an automobile.

Counsel for each of the parties assert, and we agree, that the question of coverage under a homeowner’s policy for negligent entrustment of an automobile is one of first impression in this State. This Court, however, has defined the doctrine of negligent entrustment in Gardiner v. Solomon, 200 Ala. 115, 75 So. 621 (1917), where Chief Justice Anderson said:

“While automobiles are not inherently regarded as dangerous instrumentalities, and the owner thereof is not responsible for the negligent use of same, except upon the theory of the doctrine of respon-deat superior, yet there is an exception if he intrusts it to one, though not an agent or servant, who is so incompetent as to the handling of same as to convert it into a dangerous instrumentality, and the incompetency is known to the owner when permitting the use of the vehicle.”

For later statements of this doctrine, see Spurling v. Fillingim, 244 Ala. 172, 12 So.2d 740 (1943), and Rush v. McDonnell, 214 Ala. 47, 106 So. 175 (1925).

While the rationale of “negligent en-trustment” is not founded upon negligence of the driver of an automobile, but upon the primary negligence of the entruster for supplying an automobile to an incompetent driver, the manifestation of the incompetence of the user is an essential element to the gravamen of the negligent entrustment action. That is to say, but for the incompetent driver’s misconduct in the use of the automobile, no liability could result to the entrustor. We will develop this point further as we discuss the respective contentions of the parties.

Appellee, State Farm, in support of the trial Court’s holding, asserts two separate contentions:

1. “Coverage for Negligent Entrustment of a Motor Vehicle is Provided Under the Standard Automobile Liability Policy on the Theory That Bodily Injury Suffered By the Third Party Arises Out of the Ownership, Maintenance and Use of a Motor Vehicle.
2. “The Bodily Injury Suffered By Bruce Knight Arose Out of the Ownership of the Vehicle By Billy F. Kleinklaus As Well As From Its Use By James Wayne Kleinklaus.”

The first contention (which may be denominated as the “dovetail” or “complementary” theory) stresses the wording of the standard automobile liability policy — “. . . [liability] caused by accident arising out of the ownership, maintenance or use ... of the owned motor vehicle.” The dovetailing effect of this language with the identical language in the homeowner’s exclusion, says State Farm, produces the logical result . that [because] negligent entrustment under an automobile policy is held to arise out of the ownership of the vehicle, then negligent entrustment would be excluded as arising out of the ownership of a motor vehicle under a homeowner’s policy.”

At first glance, the logic of this contention appears almost compelling. On further analysis, however, we are constrained to reject this line of reasoning. While comparison of contractual provisions in separate contracts between the same parties may be a legitimate means to judicial construction, such comparison here could hardly serve as the basis for decision. There is no showing that these parties stand in the relationship of insurer and insured as to an automobile liability policy; and, assuming they did, the nature of the standard pre-prepared contractual provision of policies of insurance would preclude any such comparative analysis for purposes of interpretation. State Farm’s contention in this regard could be sustained only on considerations of public policy, and then only where proof shows two or more policies between the same parties, which is not the case before us. Thus, the homeowner’s policy must stand or fall on its own merits according to the exclusionary clause quoted above.

We now consider State Farm’s second contention — that plaintiff’s injuries arose out of the insured’s ownership as well as his son’s use of the vehicle. This argument stands over against the appellant’s contention that liability is grounded upon negligent entrustment of the vehicle, not its negligent use by the one to whom it is entrusted. It is on this point that we agree with appellee, State Farm, and thus affirm the trial Court.

The fatal weakness of the appellants’ contention for coverage lies in its failure to acknowledge one of the elements essential to recovery for negligent entrustment — the negligent operation of the motor vehicle. An excellent statement of the rule is found in Alabama Pattern Jury Instruction, 26.16:

“The burden of proof is upon the plaintiff to reasonably satisfy [the jury] by the evidence of each of the following conditions:
“1. That the defendant (was the owner) (had the custody and control) of the vehicle involved in the occurrence complained of and did negligently entrust the vehicle to . (name driver) .
“2. That the driver . . (name) (was incompetent to operate the vehicle) (or state averments of complaint as to incompetence of driver).
“3. That the defendant knew, or by the exercise of reasonable care should have known that . . . (name driver) . . (was incompetent to operate the vehicle) (or state averments of complaint as to incompetency of driver).
“4. That the plaintiff was (injured) (damaged) as a proximate consequence of the negligence and incompetency of (name driver) concurring with the negligent entrustment of the vehicle to him by the defendant.”

See also Redmond v. Self, 265 Ala. 155, 90 So.2d 238 (1956); and Comment, “Negligent Entrustment in Alabama,” 23 Ala.L.Rev. 733.

We have not overlooked four jurisdictions, cited by the appellant, which hold in favor of coverage under like or similar circumstances:

Upland Mutual Insurance, Inc. v. Noel, 214 Kan. 145, 519 P.2d 737 (1974).
Republic Vanguard Insurance Co. v. Buehl, 295 Minn. 327, 204 N.W.2d 426 (1973).
Government Employees Insurance Company v. Chahalis, 72 Misc.2d 207, 338 N.Y.S.2d 348 (1972).
McDonald v. Home Insurance Co., 97 N.J.Super. 501, 235 A.2d 480 (1967).

The rationale — concluding in favor of coverage in each of these cases- — is perhaps best summarized by the Kansas Court in Upland Mutual:

“In this case the action filed by the Forresters against the Noels was not based upon the ‘ownership, maintenance, operation, use, loading or unloading of . automobiles’, even though the immediate cause of the injury and death was Steven’s operation of the automobile. The basis of the Forresters’ action was the alleged negligence of the Noels in knowingly entrusting an automobile to a careless and reckless driver.”

The plain wording of the exclusionary provision reveals the deficiency in this rationale. While liability (apart from coverage) for negligent entrustment is not conditioned upon the entrustor’s ownership or use of the vehicle, negligent use by the one to whom it is entrusted is essential to recovery. It is the concurrence of these dual elements — negligent entrustment by the owner or custodian of the instrumentality plus its negligent use by the entrustee— that is missing in the rationale of those cases upholding coverage. Taken literally, this line of reasoning — that negligent en-trustment of the vehicle, and not its use, is the basis of insured’s alleged liability — the injured party could recover absent any showing that the incompetent to whom the vehicle is entrusted caused the injury by his negligent use of the vehicle. As we have already observed, this does not comport with the elements that make up this tort concept of negligent entrustment.

The clear and unambiguous language here applicable is susceptible of but one meaning; that this homeowner’s policy excludes personal liability coverage for bodily injury arising out of the ownership and use of an automobile owned or operated by the insured. It is the very condition spelled out in this exclusion from coverage that must be proved in fixing liability against the insured under the negligent entrustment doctrine. Once the essential elements of the tort claim for negligent entrustment of a motor vehicle are proved, the policy exclusion is likewise legally operative so as to effectively bar liability of the insurer. Federal Insurance Company v. Forristall, 401 S.W.2d 285 (Tex.Civ.App.1966).

Those cases holding to the contrary have apparently confused the concept of joint tort feasor, which permits recovery against each of several defendants, and the contract restriction which voids coverage for such combined misconduct involving the use of the insured’s vehicle.

AFFIRMED.

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

BLOODWORTH, FAULKNER and EM-BRY, JJ., and FRANK B. EMBRY, Retired Circuit Judge, sitting by designation of the Chief Justice, dissent.

FAULKNER, Justice

(dissenting).

I dissent.

Until this decision the question of coverage under a so-called “homeowner’s policy” for negligent entrustment of an automobile has never been decided by this court. Nevertheless, this court has defined the doctrine of negligent entrustment. This court said in Spurling v. Fillingim, 244 Ala. 172, 12 So.2d 740 (1943),

“Under the doctrine above stated [negligent entrustment] . . . ‘the owner’s liability ... is based upon his own negligence in intrusting the automobile to such person,’ — incompetent driver.”

The court in an earlier case, Rush v. McDonnell, 214 Ala. 47, 106 So. 175 (1925), said,

“We are not confusing the liability of the driver of the car, or of his principal, for the negligent operation of the car, with the liability of the owner or custodian of the car for intrusting its operation to an incompetent driver. The two phases of liability are separate and distinct, and in the latter case the liability is not based upon the doctrine of respondeat superior.”

Perhaps the doctrine of negligent entrustment is more clearly stated in Gardiner v. Solomon, 200 Ala. 115, 75 So. 621 (1917), where Chief Justice Anderson said,

“While automobiles are not inherently regarded as dangerous instrumentalities, and the owner thereof is not responsible for the negligent use of same, except upon the theory of the doctrine of respon-deat superior, yet there is an exception if he intrusts it to one, though not an agent or servant, who is so incompetent as to the handling of same as to convert it into a dangerous instrumentality, and the in-compentence is known to the owner when permitting the use of the vehicle.”

Thus, the principle of “negligent entrustment” is not founded upon negligence of the driver of an automobile, but upon the primary negligence of the entruster by supplying an automobile to an incompetent driver. The action is not directly related to ownership, maintenance, operation, use, loading or unloading of a motor vehicle.

While this court has not considered the question of coverage under a homeowner’s policy for negligent entrustment, other jurisdictions have. In McDonald v. The Home Ins. Co., 97 N.J.Super 501, 235 A.2d 480 (1967) the court said,

“We hold that Home was obliged to defend the McDonalds against the Dor-man action. The action against the Mc-Donalds was not based upon ‘the ownership, maintenance, operation, use, loading or unloading of automobiles .,’ even though the immediate cause of the injury and death of Dorman, Jr. was Mickey’s operation of the automobile. The action was based upon their alleged negligence in failing to supervise and control their child, knowing of his violent and dangerous habits.”

Other jurisdictions holding that coverage is provided to the insured under a homeowner’s policy in negligent entrustment cases include Kansas, Upland Mutual Insurance, Inc. v. Noel, 214 Kan. 145, 519 P.2d 737 (1974); Minnesota, Republic Vanguard Insurance Company v. Chahalis, 72 Misc.2d 207, 338 N.Y.S.2d 348 (1972).

I would hold that State Farm must, under the terms of the homeowner’s policy, defend the action against its insured, based on negligent entrustment, and pay any judgment (not to exceed the policy limits, of course) its insured is obligated to pay. The exclusions under the policy do not apply to this form of action.

BLOODWORTH and EMBRY, JJ., and FRANK B. EMBRY, Special Judge, concur.


author: JONES, Justice. BLOODWORTH, Justice

text:
    Jack DANIELS et al. v. Ralph A. CHAPUIS and Helen M. Chapuis.
    SC 2030.
    Supreme Court of Alabama.
    April 8, 1977.

      Sanford D. Weiss, of Weiss & Sawyer, Montgomery, for appellants.
    J. Donald Reynolds, Montgomery, for ap-pellees.
   JONES, Justice.

This appeal by Jack Daniels, Charles Todd, and Drag Racing, Unlimited, Inc. (Dragstrip), from a decree granting injunc-tive relief to adjoining property owners, Ralph A. and Helen M. Chapuis, challenges the power of the court to regulate a business which admittedly creates a nuisance but is otherwise lawful. The basic issue is whether the trial Court erred in enjoining a business — permitting further operation only under restrictive conditions — which is an intermittent nuisance two nights a week, six months a year.

In 1950, Mr. Chapuis purchased a home which is adjacent to the property in question. In 1963 or 1964, the dragstrip was open for approximately two months. In 1974, Chapuis had a conversation with Daniels and Todd regarding either a land sale or a lease of a portion of the Chapuis property, which offer was refused. At this time, Chapuis advised Daniels and Todd not to spend any money on developing the drag-strip and warned them that legal action would be taken to prevent their use of the property for auto racing. Chapuis then retained a lawyer who notified Dragstrip to contact him in an effort to reach a mutually satisfactory arrangement concerning the operation of the dragstrip. The parties met several times but failed to reach an agreement.

Subsequently, Dragstrip expended approximately $23,000 on the track and began operating in March, 1975. Dragstrip generally operates on Wednesdays and Fridays, opening about 6:30 p. m. with races conducted between 8:30 and 11:00 p. m. The racing season runs from March through August.

Dragstrip has a county business license, is not located within any municipality, and is not subject to any zoning or other governmental regulations with respect to its operations.

The Chapuises filed suit asking injunctive relief to prohibit further operation by Drag-strip. The complaint charged Dragstrip with operating a nuisance — the principal allegations being the noise and the lights.

Following an ore tenus hearing, the trial Court made the following findings of fact.

“1. Complainants purchased the land on which their home is built in 1950.

“2. Some years later, an oval raceway was constructed on land adjacent to the land of the Complainants. Complainants do not now, nor have they ever complained of the operation of the oval raceway.

“3. Subsequent to the opening of the oval raceway, a drag strip (the operation now in question) was constructed by someone other than Respondents within 500 feet of Complainants’ home.

“4. That when the dragstrip began operating, Complainants complained to the original operators but no legal action was taken as the drag strip was closed before action could be brought against the original operators.

“5. In early 1975, Complainants became aware that Respondents proposed to reopen the drag strip.

“6. Complainants met with Respondents to oppose the opening and employed legal counsel for the purpose of opposing the drag operation.

“7. That counsel for Complainants spoke to one or more of the Respondents and also to an attorney representing Respondents to advise them that any investment on the part of Respondents would be at their own risk as Complainants would use all legal means possible to keep the drag strip from operating.

“8. With notice of possible legal actions against them Respondents invested money to renovate the drag strip and began operation.

“9. The Court heard testimony from several witnesses in addition to the Complainants regarding the noise, lights and vibrations caused by the drag strip.

“10. Dr. Louis B. Trucks, an Auburn University professor and an expert in acoustics, used a recording decibel meter and measured the noise level. His testimony was more than convincing to the Court that the noise created by the operation of the drag strip created a considerable nuisance for Complainants.

“11. Respondent Todd operates the drag strip and other than a disability check, it is his only source of income for his family.”

After making these findings of fact, the trial Judge decreed the following:

“1. Effective immediately, Respondent can continue to operate the drag strip only under the following conditions:

“a. The hours of operation will be limited to between the hours of 1 p. m. and 6 p. m. on any two days Monday through Saturday. No operations to be allowed on Sunday.

“2. Prior to the next racing season (sometime beginning in the spring of 1977) the following action must be taken by Respondents prior to re-opening the drag strip for racing:

“a. Installation of a heavy duty three cable fence along the north side of the dragway and the entire length of the drag-way to prevent any possible damage to Complainants’ property.

“b. All loudspeakers will be positioned so they face directly south.

“c. Erect a gate that can be locked to prevent the unauthorized use of the track.

“d. Erect a %" plywood fence 15' high for the entire length of the dragway to help abate the noise caused by the racing. The fence is to be painted a dark color such as green or brown.

“e. If lights are required during the hours of operation, said lights will be put on standards on the north side of the dragway and will shine to the south away from Complainants’ home.”

Initially, Dragstrip contends that the practical effect of this decree is to completely close down their operation of the dragstrip portion of the raceway. We cannot make this assumption as a matter of law. Whether the restrictions, on which the continued operation is conditioned, effectively enjoined the further use of the dragstrip is a factual determination which this Court is not authorized to make on appellate review.

Conversely, appellees argue that, because of the trial Court’s power to enjoin, it is immaterial (i. e., without error) whether the decree completely closed down the operation. Essentially, as we shall later see, the legal premise on which this contention is grounded is correct; but the conclusion is nonetheless inaccurate. The Court’s decree, by its explicit terms, did not attempt to totally enjoin Dragstrip’s operation; rather, it applied the “comparative injury doctrine.” Immediately following “Findings of Fact” and immediately preceding the formal order, the Final Decree recites:

“The Court is aware of the ‘comparative injury doctrine’ as set forth in Brown v. Allied Steel Products Corp., 273 Ala. 184, 136 So.2d 923 (1962), and also in cases of this nature the right of the Court to regulate a business rather than strict injunctive relief. Drennon [Drennen] v. Mason, 222 Ala. 652, 133 So. 689.”

We will pursue our discussion of this later in the opinion.

It is established Alabama law that, in determining whether an injunction should issue, wide discretion is accorded the trial judge hearing the application and making the decision. Valley Heating, Cooling & Electric Co. v. Alabama Gas Corp., 286 Ala. 79, 237 So.2d 470 (1970). This discretion includes the power to close a business if the facts indicate that this drastic measure is the only remedy available to abate the nuisance. Hundley v. Harrison, 123 Ala. 292, 26 So. 294 (1898).

In addition to these well-established principles, Alabama also recognizes the “comparative injury doctrine.” Although counsel have cited no Alabama case, and we have found none, that directly applied this doctrine, the case cited in the above quoted portion of the trial Court’s decree of Brown v. Allied Steel Products Corp., supra, contains, by way of dictum, the following language:

“[0]ur courts follow the ‘comparative injury doctrine’ in injunction cases. . . ”

Quoting from earlier Alabama cases, the Court continued:

“. . . ‘In determining this question, the court should weigh the injury that may accrue to the one or the other party, and also to the public, by granting or refusing the injunction.’ ”

The “comparative injury doctrine” has been generally recognized in American jurisprudence and is but a species of the balancing of the equities principle. Thus, we adopt this doctrine for application in appropriate cases as it is set forth in 42 Am.Jur.2d, Injunctions, § 56, pp. 798, 799. (See also Restatement, Torts, § 941):

“Injunctions are never granted when they are against good conscience, or productive of hardship, oppression, injustice, or public or private mischief, and it may be said to be the duty of the court whose jurisdiction is invoked to secure injunc-tive relief, when considering the application, to consider and weigh the relative convenience and inconvenience and the comparative injuries to the parties and to the public which would result from the granting or refusal of the injunction sought.”

Because the trial Court obviously applied this doctrine, our scope of review is considerably narrowed: Does the trial Court’s decree constitute an abuse of judicial discretion? Or, stated more specifically, within the factual context of the record before us: Are the restrictions on which the continued operation of the dragstrip is conditioned supported by competent evidence?

In addressing ourselves to the issue as alternatively posed, we observe initially that this is a proper case for the application of the “comparative injury doctrine.” This is not to say that, under the discretionary powers of the trial court over equitable matters, the court was unauthorized to totally enjoin the dragstrip operation. See Hundley v. Harrison, supra. But this case is not so postured to present this issue for review. We hold simply that the trial Court’s application of the “comparative injury doctrine” was authorized under the facts and circumstances presented by the record before us.

It is not the application of the doctrine per se, but the details of the specific restrictions with which we find difficulty; and it is our inability to solve this problem area that requires a remandment of this cause for further testimony and a final decree consistent with such further testimony and in conformity with the instructions contained in this opinion.

Illustrative of the several restrictions imposed upon the continued operation of the dragstrip for which there is no supporting testimony is the requirement that Dragstrip erect a 15' high fence of Vs" plyboard as a means of reducing the noise. The requirement that the fence be painted a specific color (green or brown), as opposed to being left in its natural state, finds no support in the testimony. Likewise, the requirement for a three cable fence along the boundary line between the properties of the respective parties is vague and indefinite, with no evidentiary basis for the purpose to be served by such fence or the likelihood that such fence will serve to cure any existing problem.

By this remand we are not to be understood as taking issue in fact with the specifics of the restrictions as set out and detailed in the trial Court’s Final Decree. The traditional rules of appellate review do not authorize this Court to exercise the prerogative of fact finding. Similarly, neither can the trial Court fashion restrictive conditions for the continued operation of a business out of whole cloth. It may well be that each of these restrictions, both in general terms and in specific details, are feasible and necessary, in keeping with the “comparative injury doctrine,” to accomplish the equitable abatement of this alleged nuisance. But these restrictions, generally and specifically, to be sustainable, must be founded on competent supportive evidence adduced by the parties before the trial Court.

Subsequent to the issuance of the trial Court’s decree in this case, Dragstrip timely filed a motion for a new trial, raising the insufficiency of the evidence to support the restrictive conditions of its right to continue the racing operation. This issue was properly preserved and presented on appeal. For the error of the trial Court in failing to grant the motion and take further testimony respecting the specifics of the restrictive conditions for future dragstrip operations, this case is reversed and remanded.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

BLOODWORTH and ALMON, JJ., concur in the result.

BLOODWORTH, Justice

(concurring in

the result).

I agree that there is no specific testimony to support the trial judge’s requirement that the drag strip “[ejrect a 15' high fence of Vs" plywood as a means of reducing the noise” and that the fence be painted, but there is testimony to support the erection of some kind of a fence as a barrier.

I agree that there is no specific supporting testimony as to the requirement of a “three cable fence,” although there is testimony to support the requirement of a “reinforced” or “chainlink” or “cable” fence as a safety feature alongside the north side of the track “to keep anybody from running off the side of the track” onto the Chapuis’ property.

It is thus that I concur in the result to reverse and remand this cause to the trial judge with instructions to hold a hearing for the purposes of addressing these two matters and to determine specifically whether they are necessary to accomplish the purposes for which they were ordered by the trial judge and, further, whether any other or different measures might accomplish these same purposes.

ALMON, J., concurs.


author: HOLMES, Judge. HOLMES, Judge.

text:
    Milton HEWLETT v. JOHN BLUE EMPLOYEES FEDERAL CREDIT UNION, a corporation.
    Civ. 857.
    Court of Civil Appeals of Alabama.
    Oct. 27, 1976.
    Rehearing Denied Nov. 24, 1976.

      James M. Gaines, Thomas G. Keith, Charles G. Spradling, Jr., and Edward H. Stevens, Legal Aid Society of Madison County, Huntsville, for appellant.
    Ford, Caldwell, Ford & Payne, and J. R. Brooks, Huntsville, for appellee.
   HOLMES, Judge.

This is an appeal from a judgment in favor of the plaintiff on his original complaint and against defendant on his counterclaim. Defendant-Hewlett takes this appeal from the trial court’s action in failing to grant a judgment in favor of Hewlett on his counterclaim.

The plaintiff-credit union’s original complaint sought recovery of two automobiles and $2,894.65 as the alternate value of the vehicles. Hewlett’s counterclaim sought damages against the credit union for alleged violations of Tit. 15, § 1601, et seq., U.S.C.A., the “Truth in Lending Act”; and Federal Regulation Z, 12 CFR 226. To the counterclaim, the credit union filed an answer alleging, among other things, that the counterclaim was barred by the statute of limitations. As noted earlier, the trial court denied the counterclaim, and Hewlett appeals.

The dispositive issue, as this court perceives it, is: Was the counterclaim timely filed? We answer in the negative and affirm.

At the outset, we note that it is apparent that oral testimony was taken in the trial. However, it is clear from the record that this testimony is not before us. The credit union argues that this precludes a consideration of the appeal.

Specifically, Hewlett requested that none of the reporter’s transcript was to be transcribed. He (Hewlett) then informed the credit union of the issues involved, one of which was: Was the defendant’s counterclaim barred by the statute of limitations? The credit union then specifically accepted appellant’s designation of the record. We therefore find that the appeal of the issues involved are properly before this court. For a discussion by this court of the relationship of Rule 10, ARAP, and the principle of law concerning review by the appellate court when it affirmatively appears there was evidence before the trial court that is not in the record on appeal, see Adams v. Adams, Ala.Civ.App. -, 335 So. 2d 174. Suffice it to say that Rule 10, ARAP, has substantially altered the aforementioned principle of law.

The record reveals that on May 9, 1973, Hewlett entered into a consumer credit transaction with the credit union. At that time, three documents were signed, one of which was a consumer credit disclosure form. The other two documents were a loan application and a note in the amount of $4,100. Thereafter, on May 5, 1975, the credit union filed suit. The complaint and other pleading alleged that the security agreement was breached on September 5, 1974. In June of 1975, Hewlett’s aforementioned counterclaim was filed. The counterclaim contends the consumer credit disclosure form violates the Truth in Lending disclosure’s requirement in two respects. First, the form failed to disclose the total of payments scheduled to repay the loan and, second, that the security interest is not clearly disclosed.

It is clear from the above that the basic instrument upon which the lawsuit is bottomed was executed in May of 1973. It is equally clear that the original complaint against Hewlett was filed in May of 1975, alleging that the breach occurred in September of 1974. No pleading filed by Hewlett, to this court, contradicts the date of the breach. We note here, contrary to able counsel’s contention, that in view of the state of record before this court no conclusion can be reached other than the breach sued upon did occur in September of 1974.

As previously stated, the issue then is whether 15 U.S.C. § 1640(e) precludes Hewlett’s assertion of his counterclaim against the credit union. That section provides:

“Any action under this section may be brought in any United States district court, or in any other court of competent jurisdiction, within one year from the date of the occurrence of the violation.”

Assuming arguendo that the credit union’s action constituted a violation of the “Truth in Lending Act,” the time of the violation is deemed to occur at the moment the loan transaction was consummated, Wachtel v. West, 344 F.Supp. 680 (E.D.Tenn.1972), aff’d, 476 F.2d 1062 (6th Cir. 1973), cert. den., 414 U.S. 874, 94 S.Ct. 161, 38 L.Ed.2d 114 (1973), i. e., on May 9, 1973. Hence, Hewlett’s counterclaim was filed more than one year after the occurrence of the violation and, by the express terms of 15 U.S.C. § 1640(e), appears to be untimely.

Hewlett, however, contends that his counterclaim is saved from § 1640(e) by ARCP 13(c), the pertinent portion of which provides:

“All counterclaims other than those maturing or acquired after pleading shall relate back to the time the original plaintiff’s claim arose.”

We note that other jurisdictions have reached opposite conclusions regarding the appropriate resolution of this issue. See Wood Acceptance Co. v. King, 18 Ill.App.3d 149, 309 N.E.2d 403; First National City Bank v. Drake, CCH Consumer Credit Guide (1969-73 Transfer Binder), Consumer Credit 98,939 at 88,652 (N.Y.Civ.Ct.1973); Collectors, Inc. v. The Atrisco Association, 4 CCH Consumer Credit Guide, Consumer Credit 98,779 at 88,410 (N.Mex.Dist.Ct.1974), holding that a Truth in Lending counterclaim, although asserted more than one year subsequent to the alleged Truth in Lending violation, is not barred. See Gillis v. Fisher Hardware Company, Fla.App., 289 So.2d 451 (1974), and Hodges v. Community Loan and Investment Corp., 133 Ga.App. 336, 210 S.E.2d 826 (1974), holding, contra.

The variance in these decisions is attributed primarily to different state statutes concerning limitations of actions.

The provision of ARCP 13(c) relating to limitations of actions has been set forth, supra. The Committee comments to that section of the rule indicate it was “drawn so to harmonize with Tit. 7, § 355, Code of Alabama.” The latter reads as follows:

“When the defendant pleads a set-off to the plaintiff’s demand, to which the plaintiff replies the statute of limitations, the defendant is nevertheless entitled to his set-off, where it was a legal subsisting claim at the time the right of action accrued to the plaintiff on the claim in suit.”

While the language of 13(c) differs somewhat from that of Tit. 7, § 355, their meaning was intended to be the same in that a setoff or counterclaim was to relate back to the inception of the original plaintiff’s claim. Lyons, Jr., 1 Alabama Practice Rules of Civil Procedure Annotated 251 (1973). Here, the credit union’s claim accrued in September 1974, more than one year after the transaction was consummated.

At that time, Hewlett had no “legal subsisting claim.” As stated by the court in

Washington v. Timberlake, 74 Ala. 259, 264, in construing the predecessor of Tit. 7, § 355, Code of Alabama:

“We hold, however, that the word ‘subsisting,’ as employed in the statute we are construing, has a more confined meaning, and that the precise object the legislature had in view was, that demands held by defendants when the adversary plaintiff’s right of action accrued, if then free from the infirmity of age, should not after-wards lose their availability as a defense, by mere lapse of time. . . .If, however, the cross demand was barred when the plaintiff’s cause of action accrued, it was not a subsisting demand within the meaning of this statute. . . . ” [Emphasis supplied.]

Hewlett seeks to avoid the detrimental effect of the preceding language by advancing the following argument: His Truth in Lending counterclaim is not a setoff, but rather is in the nature of recoupment and therefore is not barred by the statute of limitations.

While this principle finds recognition in Alabama law, it has no applicability to the instant case. To constitute a defense of recoupment the defendant’s claim must arise from damages resulting from a breach of the duties or provisions of the contract on which the plaintiff’s suit is founded. Carolina-Portland Cement Co. v. Alabama Construction Co., 162 Ala. 380, 50 So. 332; Ewing and Gaines v. Shaw and Co., 83 Ala. 333, 3 So. 692; T. L. Farrow Mercantile Co. v. Riggins, 14 Ala.App. 529, 71 So. 963. Here, the credit union fully performed the conditions of the contract. Hewlett can claim no damages arising either from the transaction itself or from noncompliance with the provisions contained in the contract. We are in agreement with Court of Appeals of Georgia in Hodges, supra, wherein it was stated in an identical factual situation:

“The Truth-In-Lending counterclaim sub judice did not arise out of the mutual obligations or covenants of the loan transaction upon which this suit was founded but is independent thereof. Although the claim arose contemporaneously with the execution of the contract, it is not a product of a breach of any obligation or covenant therein; nor is it related either to the subject matter of the contract or the plaintiff’s suit. On the contrary, the borrowers’ claim for recovery of a penalty created by federal law is an extrinsic by-product of this transaction and is not dependent upon the lender’s contractual obligations. It has no relationship to an infringement of the mutual obligations and stipulations of the transaction. In short, it is not a defense which goes to the justice of the lender’s claim but an affirmative action which demands a penalty for an independent wrong. Accordingly, borrowers’ counterclaim is in the nature of set-off, not recoupment. ...” (210 S.E.2d at 832)

Thus, we hold that Hewlett’s claim is in set-off and, having been filed more than one year subsequent to the occurrence of the alleged violation, was not “legally subsisting” at the time the credit union’s claim arose.

It follows that the trial court did not err in refusing to award judgment on Hewlett’s counterclaim.

In view of the above, it is not necessary to discuss the other issues raised by Hewlett.

The case is due to be and is, accordingly, affirmed.

AFFIRMED.

WRIGHT, P. J., and BRADLEY, J., concur.

ON REHEARING

HOLMES, Judge.

On motion for rehearing, Mr. Hewlett argues that this court erred in its determination that the date of the breach upon which the credit union’s original claim arose was September 5, 1974. He states the record reflects that the breach occurred May 31, 1973. Therefore, he contends his counterclaim is not barred by the one year statute of limitations but rather relates back to May 31,1973, pursuant to ARCP 13(c). We find this contention without merit.

As previously stated, the record of the entire proceedings below are not before this court. The record that is before us indicates that September 5, 1974, was the date of the alleged breach upon which the credit union based its complaint. Nothing in the record indicates this date was contested below. Moreover, the trial court’s dismissal of Mr. Hewlett’s counterclaim affirmatively establishes that the lower court construed September 5 as the date of the breach. The motion for rehearing is denied.

OPINION EXTENDED. APPLICATION FOR REHEARING OVERRULED.

WRIGHT, P. J., and BRADLEY, J., concur.


author: MADDOX, Justice.

text:
    Ex parte Milton HEWLETT.
    SC 2243.
    Supreme Court of Alabama.
    April 22, 1977.
   MADDOX, Justice.

WRIT DENIED.

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


author: WRIGHT, Presiding Judge.

text:
    Alvin T. PRESTWOOD v. Jane H. PRESTWOOD.
    Civ. 933.
    Court of Civil Appeals of Alabama.
    Jan. 5, 1977.
    Rehearing Denied Feb. 9, 1977.
    Alvin T. Prestwood, of Volz, Capouana, Wampold & Prestwood, Montgomery, pro se.
    Frank W. Riggs, Montgomery, for appel-lee.
   WRIGHT, Presiding Judge.

Husband appeals from judgment of modification increasing alimony. Affirmed.

The parties were married twenty-two years and had two daughters before being divorced for incompatibility on May 3,1974. By agreement incorporated in the judgment of divorce, the husband agreed to pay to the wife as alimony, support and maintenance the sum of $9,600 per year at the rate of $400 bi-monthly. In addition, he agreed to pay all the educational expenses of the children. As each child married, became self-supporting or reached 21 years, the bimonthly payments to the wife were to be reduced $125 or $3,000 per year. It was agreed that the parties would renegotiate the alimony when the children completed their college education or were otherwise emancipated.

On November 14, 1975, the wife petitioned for modification. She alleged that the husband had reduced payments $250 per month because the oldest daughter had reached 21 years of age; that she had been unable to secure employment and that the husband’s income had so improved since the divorce that he could pay more as alimony.

After hearing, the original judgment was modified in favor of the wife. Upon motion new trial was granted with additional testimony taken as to the effect of the husband’s remarriage and becoming a father again. Judgment after rehearing required the husband to pay to the former wife the sum of $325 bi-monthly ($650 monthly) from May, 1976 until June 1,1977. At that time payments would be increased to $350 bi-monthly ($700 monthly); when the youngest daughter (18 years) reached twenty-one years the payments would be reduced to $275 bi-monthly ($550 monthly).

Husband appeals, charging abuse of discretion by the trial court.

We have carefully reviewed the evidence, as we do in all cases, and fail to find it so preponderantly opposed to the judgment as to appear palpably unjust.

Though the husband has remarried and fathered a son since the divorce, his income has indisputably doubled in the interval. It is to his credit that he has gone an extra mile in paying for a year’s graduate study for the older daughter. He is further to be commended in carrying out his commitments to his former wife and daughters even though required to dispose of investment properties to do so. However, his primary responsibility is to the obligations assumed with his first marriage. One such obligation was to support his wife. The obligation to his eldest daughter has been terminated by her coming of age. The year of graduate study gratuitously furnished is calculated to end in June 1977. Her educational expense will be lifted from him. By his own testimony as to past expense, he will thereby be relieved of some $4,500 cost per year.

As we calculate from the testimony, after June 1977, the husband will be obligated to pay the wife $8,400 per year and will pay some $4,500 per year for the education of his youngest daughter. That is a total of $12,900 per year or about 21% of his 1975 income from his law firm. That percentage will be reduced by approximately one-third in about two years when the younger daughter becomes 21 years of age or completes college.

The husband has based his contention of error primarily upon the charge that insufficient consideration was given by the court to his remarriage. Such charge has no foundation in the evidence. It appears to this court that had the trial court not given much consideration to the new marriage, the doubling of the husband’s income would have supported a more substantial modification.

We have noted the citations of precedential cases by the parties and the principles of law enunciated therein. We do not depart here from such precedents, but iterate that every case is decided upon its own facts. The judgment of the trial court is presumed correct on appeal unless so unsupported by the weight of the evidence as to be clearly wrong and unjust. Shivers v. Shivers, 277 Ala. 400, 171 So.2d 109 (1965). The judgment of the trial court when so weighed in this case cannot be found palpably erroneous.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: SHORES, Justice.

text:
    Ex parte Alvin T. PRESTWOOD.
    SC 2382.
    Supreme Court of Alabama.
    April 22, 1977.
   SHORES, Justice.

WRIT DENIED.

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


author: BRADLEY, Judge.

text:
    Dan MULLINS et al. v. Anne MULLINS.
    Civ. 925.
    Court of Civil Appeals of Alabama.
    Jan. 12, 1977.
    Rehearing Denied Feb. 16, 1977.

      Roger M. Monroe and William T. Hunt, Birmingham, for appellant, Dan Mullins.
    Jerry W. Jackson, Haleyville, for appel-lee.
   BRADLEY, Judge.

This appeal is from a decree of the Circuit Court of Marion County divorcing the appellee and appellant Mullins, granting custody of these parties’ minor children to the appellee-wife, requiring the appellant-husband to pay child support, awarding the wife alimony in gross, and ordering the public sale of certain land. This decree was rendered almost nine months after an ore tenus hearing before the court.

It appears that a rift developed in the marital relationship of the actual parties to this appeal long before the present proceedings were initiated. Eleven years after the parties’ marriage, in December 1971, the wife obtained a divorce by default. The husband did not appear in that proceeding, apparently because the wife informed him she did not intend to pursue matters to a final divorce. When the husband received the divorce decree, the wife insisted that she did not want the divorce and that he should remain in the household. Thereafter the parties lived together as man and wife until the wife left the parties’ home in March 1974. Subsequently the wife began the present proceeding.

Neither party disputes the fact that a common-law marriage existed between the parties from December 1971 until the second divorce was granted in March 1976. Thus we proceed to decide the merit of the appeal from the second divorce decree.

The notice of appeal is filed on behalf of the defendants, Dan Mullins, First Federal Savings & Loan Association of Hamilton, Alabama, and William T. Hunt. However, the issues presented in brief question only the rulings of the trial court relative to the marriage relationship of Dan Mullins and Anne Mullins, and our review will be directed to only those issues.

The husband contends here that the decree is void in toto because of the trial court’s delay in rendering judgment. That contention failing, he charges error in the decree in that the trial court abused its discretion in making the award of alimony in gross and ordering the sale of land at public outcry. We find no merit in any of appellant’s contentions and affirm the trial court.

A hearing at which both parties appeared and testified was held before the court on June 30,1975. The final decree of divorce was rendered on March 23, 1976. The husband would have us nullify the decree because rendered in violation of Rule 58, ARCP. He cites no authority for applying this drastic remedy but does refer us to Equity Rule No. 68 found in Title 7, Code of Alabama 1940 (Recomp.1958). What may have been a remedy under the old rules of equity we need not consider since those rules have been superseded by the Alabama Rules of Civil Procedure.

Rule 58, ARCP, does not set forth a time limit within which a judgment is to be rendered. The only reference to time is found in Section (c) of the rule, which directs the clerk of the court to enter the judgment “forthwith” upon the rendition of the judgment. However, the committee comments state:

“The rules intend that judgment shall be rendered and entered simply and quickly. Thus while the court can delay rendition of judgment in order to prepare a separate written document, pursuant to Rule 58(a)(2), this course should not be followed where an immediate notation on the bench notes will serve as well.” (Emphasis added.)

There is no language, either in Rule 58 or the committee comments, which provides a basis for the remedy sought by appellant. Even though it would appear from the record before this court that the spirit of the rule was violated by the trial court because of the long delay in rendering its decree, we do not believe the decree can be voided as suggested by appellant.

Appellant-husband next contends that the trial court erred in its award of alimony in gross to the wife. The trial court gave to the wife as alimony in gross all of the personal property then in her possession and one-half interest in the proceeds from the sale of certain land owned by the husband.

It appears from the evidence that when the wife moved out of the marital home she took with her all the household furniture and furnishings except a chair, a sofa, some carpets and a freezer. Since that time she has made all the payments on the furniture from her own earnings. These were the items awarded to the wife.

It appears from the evidence that the husband owned eighteen acres of land deeded to him by his father and on which is located the house where the couple lived prior to their separation. However the wife testified that she and her husband owned this parcel of property together. The evidence also reflects that the husband received some land from his father’s estate. The husband was an only child and his mother predeceased his father. The record is unclear as to what interest, if any, the wife might have in this land. All of the land is mortgaged. The eighteen acre tract is mortgaged with an outstanding balance of about $2,000; the other land is mortgaged with an outstanding balance of about $36,000. The trial court awarded the wife one-half interest in the proceeds from the sale of this land.

Since the divorce decree of which the husband complains was entered after a hearing where both parties as well as other witnesses testified, we can reverse on appeal only if it appears from the evidence and all reasonable inferences which can be drawn therefrom that the decree is plainly and palpably wrong. Walker v. Walker, 56 Ala.App. 98, 319 So.2d 718 (1975), and cases cited.

The division of property and determination of alimony are matters which lie within the sound discretion of the trial court. That discretion will not be reversed except for arbitrariness and palpable abuse. Clary v. Clary, 56 Ala.App. 494, 323 So.2d 380 (1975); Capra v. Capra, 56 Ala.App. 90, 319 So.2d 286 (1975). There are no fixed standards for determining the division of property and the amount of alimony; each case must be decided on the basis of its own facts and circumstances. Hutton v. Hutton, 284 Ala. 91, 222 So.2d 348 (1969); Self v. Self, 49 Ala.App. 665, 275 So.2d 345 (1973).

There are two aspects of the alimony in gross grant: the award of personal property and the award of proceeds from the sale of the husband’s real property. With regard to the personal property, the wife was given most of the household furniture and furnishings. Subsequent to the parties’ separation she alone made payments on the furniture. The husband testified that the parties had worked together during the marriage to build up their savings and, it may be presumed, to acquire their personal property. The wife participated in at least two of the husband’s prior business adventures, partially by traveling and establishing wig shops in various locations. The division of property acquired by the parties during their marriage is not required to be on an equal basis. Helms v. Helms, 54 Ala.App. 551, 310 So.2d 475 (1975); Stewart v. Stewart, 241 So.2d 490 (Ala. Court of Civil Appeals, 1977). Thus we cannot say that the trial court plainly and palpably erred in its award of most of the household furniture and furnishings to the wife.

The other part of the alimony in gross award is the requirement that land owned by the husband be sold and half of the proceeds from the sale be given to the wife. The husband, relying primarily on Romei v. Romei, 53 Ala.App. 391, 300 So.2d 834, cert. den. 293 Ala. 772, 300 So.2d 837 (1974), claims that the trial court’s decree in this respect was unjust and plainly unfair in that it stripped him of all lands inherited from his family.

We find the husband’s reliance upon the Romei decision misplaced. There the trial court divested the appellant of title in all property he had acquired from his family and vested title in his wife, while at the same time requiring the husband to pay off the indebtedness on the property. Here the trial court ordered the land sold and the proceeds from the sale divided equally between the husband and wife after the existing mortgage is satisfied. The husband is not being divested of all his property but rather is an equal beneficiary in the sale of the land.

While the source of the marital property may be considered, along with other circumstances, in effecting a division of that property, it is not controlling upon the court. Mullinax v. Mullinax, 56 Ala.App. 676, 325 So.2d 185 (1976); Campbell v. Campbell, 51 Ala.App. 295, 285 So.2d 105 (1973). We do not think the trial court acted arbitrarily or unfairly by ordering the sale and division of the land owned by the husband merely because the husband inherited the land from his father. The court determined, in a question propounded by it to the husband while on the witness stand, that the husband’s only estate at the time of the divorce was minimal sums in a savings account and a checking account, and the land in question. In Hager v. Hager, 293 Ala. 47, 299 So.2d 743 (1974) the court said at 293 Ala. 55, 299 So.2d 750:

“ ‘Alimony in gross’ is the present value of the wife’s inchoate marital rights— dower, homestead, quarantine, and distributive share. It is payable out of the husband’s present estate as it exists at the time of divorce.”

Thus, the trial court clearly did not abuse its discretion, but rather took the only course open and made the alimony in gross award from the only estate owned by the husband.

The husband’s final contention is that the trial court reversibly erred in ordering the land sold at public outcry and within forty-two days of the date of the final decree. He argues first that there was evidence at trial that the land contains rich coal deposits and that it was an abuse of discretion to have such valuable land sold in a manner calculated to bring a price far below his estimation of the actual worth of the land. The land was sold for assumption of the mortgage plus $200. The husband says that the only benefit to the parties was the $100 each received, and the true beneficiaries are the mortgagee and the person who bought the land. We do not agree since the husband has also been relieved of a $36,000 debt.

Nor was the value of the land obviously apparent from the evidence. The only testimony concerning the worth of the land was that of the husband, who said that three or four independent persons had determined that the coal under the land in question could not be mined economically. He also stated that the eighteen acre parcel of land, including the house, was worth between $15,000 to $20,000. We cannot say, in light of these facts, that the trial court abused its discretion in ordering a public sale of the land. It should be noted that the husband did not act to protect his interest in the land by appearing and bidding at the sale, although he had ample notice of the sale.

The husband also maintains abuse of discretion in that the sale was ordered and held within the forty-two days allowed for appeal from the final decree. He argues that this interfered with his right to appeal. The answer to the husband’s contention is that the appealing party, not the court, has the burden of preserving the appeal. The husband could have protected his interest by filing a supersedeas bond, yet he did not. He cannot now correct this mistake by faulting the trial court.

The trial court having committed no error, we affirm.

AFFIRMED.

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


text:
    Ex parte Dan MULLINS.
    SC 2387.
    Supreme Court of Alabama.
    April 22, 1977.
   MADDOX, Justice.

WRIT DENIED.

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


text:
    In re Shirley Ann LANKFORD et al. v. REDWING CARRIERS, INC., a corp. Ex parte REDWING CARRIERS, INC., a corporation.
    Civ. 847.
    Court of Civil Appeals of Alabama.
    Jan. 20, 1977.
    Rehearing Denied March 2, 1977.

      James D. Harris, Jr., Montgomery, for appellants.

      E. L. Brobston, Bessemer, Beavers, May & Debuys, Birmingham, for appellee.
   BRADLEY, Judge.

This is a workmen’s compensation case.

The action was brought by the widow and minor children of Robert Oliver Lankford against Redwing Carriers, Inc., hereinafter referred to as Redwing. The complaint alleged that Lankford was killed as the result of an accident which occurred while he was driving a truck in the course of his employment and that compensation was due his survivors. Redwing defended by saying that Lankford’s death was caused by his own willful breach of Redwing’s rule forbidding employees to drink alcoholic beverages while driving, of which Lankford had knowledge, and that Lankford’s death was caused by his own intoxication. The case was tried before a jury because Redwing relied on defenses set out in Title 26, Section 270, Code of Alabama 1940. The jury decided those defenses in favor of Lank-ford’s survivors. Redwing’s motions for judgment n. o. v. and new trial were overruled and Redwing then filed its petition for writ of certiorari in this court.

It was stipulated that at the time of the accident Robert Oliver Lankford was an employee of Redwing and was driving a truck belonging to Redwing. From the evidence it appeared that Lankford was driving within the line and scope of his employment.

The accident which resulted in Lankford’s death involved only Lankford’s tractor trailer rig. The accident occurred in the early hours of February 12, 1975 on U. S. Highway 82 in Barbour County, approximately fifteen miles west of Eufaula. According to the state trooper who investigated the accident, it was a foggy night and the road was wet. The vehicle left the roadway on the wrong side of the road, travelled some 360 feet, and came to rest on its left side. Mr. Lankford and another man were found dead in the cab of the truck. Also discovered were two partial six-packs of beer; three cans were missing from one brand and four from the other brand.

A blood sample was taken from Lankford by a local coroner approximately four hours after discovery of the accident and sent to the State Department of Toxicology to be analyzed for alcoholic content. Due to Lankford’s heavy loss of blood, the coroner was unable to withdraw the amount of blood customarily used in testing for alcoholic content, and only one test was run. The test revealed a blood alcohol content of 0.17 percent; there was testimony that because the test was not run twice, as is the usual procedure, or with the standard amount of blood, the percentage found could be inaccurate by as much as 0.03 percent.

The issues presented to this court by Redwing focus on the trial court’s charge to the jury. Redwing’s first contention is that the trial court erred by refusing its requested charge that the jury must find for the defendant employer if the jury believed that Lankford’s death was due substantially to his own intoxication, and further that the trial court failed to clarify the law concerning the defense of intoxication in its oral charge to the jury. Redwing’s second contention is that the trial court erred in refusing three of Redwing’s written requested charges dealing with the presumption of intoxication contained in Title 36, Sections 154 and 155, Code of Alabama 1940. In disposing of these issues we will discuss first Redwing’s objection to the trial court’s oral charge and then its objections to the refusal to give the requested written charges.

In deciding whether a trial court has failed to charge the jury in accordance with the request of a party, we look first to see if that party has complied with Rule 51, ARCP, which provides in pertinent part as follows:

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

Thus, we must determine first whether Redwing objected to the trial court’s refusal to give certain requested written charges and its failure to charge on certain aspects of applicable law, and second whether Redwing supported objections made with grounds. We would comment at this point that respondent did not object to a consideration of petitioner’s contentions based on petitioner’s failure to comply with Rule 51, ARCP. The determination of a compliance with Rule 51 where a party is presenting as error the trial court’s failure to orally charge or the refusal to give a requested charge is deemed to be primarily the duty of the reviewing court.

At the close of the oral charge to the jury, the court gave the parties an opportunity to object to the oral charge; no objections were made. Therefore, it is obvious that so far as Redwing’s contention that the trial court failed to properly charge on the defense of intoxication is concerned, there has been a complete failure to abide by Rule 51, supra. Since no objection was made to the oral charge by Redwing, it cannot now question the failure of the trial court to charge as it desired. Barksdale v. Pendergrass, 294 Ala. 526, 319 So.2d 267 (1975); Alabama Power Co. v. Taylor, 293 Ala. 484, 306 So.2d 236 (1975).

Redwing’s second contention is that the trial court erred in refusing its requested charge on intoxication as a defense and its requested charges on the presumption supposedly created by Title 36, Sections 154 and 155. Here again we must first decide whether Redwing properly preserved its right to raise as error the trial court’s refusal to charge by following the requirements of Rule 51.

The record shows that at the close of evidence, the trial judge held a conference in chambers to rule on requested charges filed by both parties and to discuss the court’s oral charge. During this meeting, the trial judge discussed with the attorneys for both parties the requested charges and told the attorneys which charges he was going to give and which ones he refused. In the process of doing this, the judge also commented on matters that would and would not be included in his oral charge and concluded by saying that each party had an automatic exception to the refused charges.

The trial judge did tell the petitioner’s attorneys that they had an exception and could assign grounds for their objections later.

It is clear that under Rule 51, not only must an objection to the trial court’s failure or refusal to charge be made, but the objection must be made specifically and must be supported by grounds in order for review to be had in the appellate court. Moon v. Nolen, 294 Ala. 454, 318 So.2d 690 (1975).

The record bears out the failure of petitioner to object to each and every refused charge and to assign grounds therefor as required by Rule 51; however the colloquy between counsel and the court during the time that the court was considering the requested charges and tentatively commenting on the general content of his upcoming oral charge convinces us that the trial court made his reasons for refusing certain requested charges sufficiently clear to counsel for petitioner so as to convince petitioner’s counsel that further objection or discussion would be fruitless. Under these circumstances, we consider Rule 51 to have been complied with so as to authorize our review. American National Bank & Trust Co. v. Aetna Insurance Co., 447 F.2d 680 (7th Cir. 1971).

Petitioner contends that the trial court erred in refusing to give the following requested charge:

“I charge you, members of the Jury, that if you believe from the evidence that Mr. Lankford’s death was due substantially to his own intoxication, then you must find for the Defendant, Redwing Carriers, Inc.”

The court instead charged that if the jury found Mr. Lankford was intoxicated at the time of the accident then it must further determine

“ . . . whether or not his injury and death was the proximate consequence of that intoxication . . . . If [the intoxication] was the proximate cause of the injury and death, then, the law says he would not be entitled to compensation. If it . . . was not the proximate cause of his injury and death, then, of course, he would be entitled to compensation.”

The petitioner alleges error in that the jury could have inferred from this charge that the intoxication defense is effective only if the intoxication were the sole cause of the accident. Relying on Woosley v. Central Uniform Rental, 463 S.W.2d 345 (Ky.App.1971), petitioner urges that the intoxication defense should be allowed if the intoxication in some way contributes to the occurrence of the accident, which is the rule reflected in petitioner’s refused charge.

We are disinclined to adopt the rule urged by petitioner. We think the trial court’s charge stated the correct rule in this state, namely that in order for an employer to avail itself of the statutory intoxication defense, it must appear that the injury or death suffered by the employee was proximately caused by the employee’s intoxication. We have found no case on point in this state; however, we believe the legislature intended a proximate cause standard.

Title 26, Section 253, Code of Alabama 1940 (Recomp.1958) expresses intent that the injury or death suffered by an employee' be “the natural and proximate cause” of an accident arising from the employment. Our courts have so interpreted the statute. Foster v. Continental Gin Co., 261 Ala. 366, 74 So.2d 474 (1954); Pow v. Southern Const. Co., 235 Ala. 580, 180 So. 288 (1938).

Pursuant to Section 253, supra, Section 270, Title 26, Code of Alabama 1940 (Recomp.1958) (Supp.1973) permits certain defenses to the employer, i. e., if the employee’s injury or death is

“ . . . caused by the wilful misconduct of the employee or by the employee’s intention to bring about the injury or death of himself or of another, or due to his own intoxication or his wilful failure or wilful refusal to use safety appliances provided by the employer, or due to the wilful refusal or wilful neglect of the employee or servant to perform a statutory duty or due to any other wilful violation of the law by the employee or his wilful breach of a reasonable rule or regulation of his employer, of which rule or regulation the employee has knowledge.”

While the phrase “proximately caused” is not used, it seems, by inference from the language of Section 253, that a proximate cause standard was intended. This inference is strengthened by reference to the Minnesota statute from which our workmen’s compensation law was taken. Under Section 176.021, Minnesota Statutes, 1974, in order to be a defense the employee’s intoxication must be the proximate cause of the employee’s injury.

Furthermore, dicta in our cases indicate that a proximate cause standard has been followed by our courts. In Harris v. Louisville & N. R. Co., 237 Ala. 366, 186 So. 771 (1939), the court discussed the purpose of workmen’s compensation acts as stated in Crowell v. Benson, 285 U.S. 22, 52 S.Ct. 285, 76 L.Ed. 598 (1932), i. e. to secure an immediate investigation and judgment of the employer’s liability. This purpose in turn depends upon finality of the determination of fact, .including “the question of fact whether injury was occasioned solely by the intoxication of the employee . . . .” 237 Ala. at 370, 186 So. at 774 (emphasis supplied).

In Malbis Bakery Co. v. Collins, 245 Ala. 84, 15 So.2d 705 (1943), the employer raised as a defense to an employee’s action under Title 26, Section 253, the allegation that the employee was guilty of wilful conduct which proximately contributed to his injuries. (Emphasis ours.) The supreme court upheld the trial court’s finding that the employee had not violated a reasonable rule of the employer.

Early in the establishment of workmen’s compensation laws in this state, it was said:

“The spirit and purpose of Compensation Laws, as often disclosed, is that industry shall bear part of the burden of disability and death, resulting from the hazards of industry.” Pow v. Southern Const. Co., supra, 235 Ala. at 584, 180 So. at 291.

Since then the workmen’s compensation act has been liberally construed to accomplish its beneficent purpose. See, e. g., Gilmore v. Rust Engineering Co., 289 Ala. 46, 265 So.2d 591 (1972); Ex parte Young, Ala.Civ.App., 342 So.2d 918 (1976). To this end, all reasonable doubt in the evidence must be resolved in favor of the employee. Riley v. Perkins, 282 Ala. 629, 213 So.2d 796 (1968); Vulcan Materials Co. v. Belcher, 49 Ala.App. 61, 268 So.2d 843, cert. den. 289 Ala. 754, 268 So.2d 848 (1972). And, where an employer raises an employee’s intoxication as a defense to a workmen’s compensation claim, the employer has the burden of establishing the intoxication. Queen City Furniture Co. v. Hinds, 274 Ala. 584, 150 So.2d 756 (1963).

In light of this line of decisions, we are compelled to reject petitioner’s contention that the law in this state should allow an employer to successfully defend a workmen’s compensation claim if the employer can show that the employee was intoxicated and that intoxication contributed to bringing about the accident which resulted in the employee’s injury or death. Rather, we think the legislature intended a successful defense only where it appears that the accident producing the injury or death was proximately caused by the employee’s intoxication. We conclude that the trial court properly refused petitioner’s requested written charge and correctly instructed the jury.

Petitioner finally contends that the trial court erred in refusing to give the following requested charges:

“I charge you, members of the Jury that it is the law of Alabama that if a chemical test authorized by the law of the State of Alabama is conducted and if there was at that time 0.10% or more by weight of alcohol in the tested person’s blood, it shall be presumed that the person was under the influence of intoxicating liquor.”
“I. charge you, members of the Jury, that it shall be presumed that a person was under the influence of intoxicating liquor if, at the time that person’s blood was tested, there was 0.10% or more by weight of alcohol in that person’s blood.”
“I charge you, members of the Jury, that a postmortem blood analysis can provide a good measurement of conditions at the time of death and that if such analysis is conducted by competent means and by means of standard operating procedures; and if said analysis reveals that there was 0.10% or more by weight of alcohol in the deceased’s blood, then it shall be presumed that the deceased person was under the influence of intoxicating liquor at the time of death.”

The presumptions stated in these three charges are based upon subsection (a) of Section 155, Title 36, Code of Alabama 1940 (Recomp.1958) (Supp.1973).

At trial the court refused to allow the provisions of Section 155, supra, into evidence on the grounds that the statute was intended to apply only to living persons being prosecuted for driving while intoxicated, and because the evidence did not show the blood sample had been tested according to the provisions of the statute. The trial court could have refused the petitioner’s three requested charges for the same reasons.

We cannot, however, agree with the trial court that the provisions of the Alabama Chemical Test for Intoxication Act, Sections 154-158, Title 36, supra, apply only to living persons being prosecuted for violating municipal ordinances and the criminal laws of this state. Section 154(b) of the act plainly applies to dead persons. Section 155(a) makes the results of a test administered under the act admissible “[ujpon the trial of any civil or criminal action” (emphasis ours). See Myrick v. City of Montgomery, 54 Ala.App. 5, 304 So.2d 247, cert. den. 293 Ala. 768, 304 So.2d 248 (1974). If the trial court refused to give petitioner’s three requested charges on the first named ground, then, to that extent, it would be in error.

However, there was no error in refusing to give the requested charges on the ground that the provisions of the statute directing the manner in which blood shall be taken were not complied with. Subsection (c) of Section 155, supra, requires:

“Only a physician, registered nurse or duly licensed clinical laboratory technologist or clinical laboratory technician acting at the request of a law-enforcement officer may withdraw blood for the purpose of determining the alcoholic content therein. This limitation shall not apply to the taking of breath or urine specimens.”

In the case at bar the coroner of Barbour County, who is also a mortician, withdrew the blood sample. A coroner has no authority under Section 155, supra, to take a blood sample for the purposes of analysis. Rehling v. Carr, 295 Ala. 366, 330 So.2d 423 (1976).

Furthermore, the supreme court has indicated that strict compliance with the requirements of Section 155, supra, is a condition precedent to the admissibility of the results of tests made under the statute. Patton v. City of Decatur, Ala., 337 So.2d 321 (1976). While Patton deals only with Section 155(b), we think the rationale of the decision applies equally to Section 155(c). In reaching this conclusion, we are mindful that the Court of Criminal Appeals has, by way of dicta in Harbin v. City of Huntsville, Ala.Cr.App., 333 So.2d 625 (1976), indicated it holds a contrary view. We note that Harbin was decided prior to Patton.

Patton held that before results of a photoelectric intoximeter test can be admitted into evidence, a proper predicate must be laid by showing written standards promulgated by the state Board of Health under which the test was administered. In its decision the court stated:

“[O]ur inability here to ascertain the validity of the results obtained from a technologically sophisticated device due to questionable operator technique, demonstrates the absolute necessity for written procedural methods governing its use.” 337 So.2d at 324.

We think that this rationale, referring to Section 155(b), is equally applicable to Section 155(c). The purpose of allowing only physicians, registered nurses, or duly licensed clinical laboratory technologists and technicians to withdraw blood samples is to ensure that standardized procedures and equipment be used, thereby preserving the validity of the test. The instant case illustrates why a standardized procedure, performed by the persons named in the statute, is desirable.

The coroner testified that due to the heavy loss of blood by Mr. Lankford, he was unable to draw the amount of blood normally required to run the test. He withdrew blood from the jugular vein. In response to the question:

“Q Is it not a fact that the most responsive part of the body that you can go to in a case like this would be the heart cavity itself?”

he replied:

“A Yes, but we don’t go into the heart cavity.”

He also stated that he used a vein tube to withdraw the blood, an instrument used in embalming and not ordinarily used to withdraw blood. The particular vein tube he used to withdraw blood from Mr. Lankford had previously been used to embalm other bodies. It had been cleaned in a disinfectant germicidal solution, which contained alcohol.

Therefore, not knowing on which ground the trial court rested its decision to reject the three requested charges, we cannot hold that it committed error in refusing those written requested charges.

AFFIRMED.

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


author: BEATTY, Justice.

text:
    Ex parte REDWING CARRIERS, INC.
    SC 2420.
    Supreme Court of Alabama.
    April 22, 1977.
   BEATTY, Justice.

WRIT DENIED.

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


text:
    Re Cecilia A. LOGGINS v. MALLORY CAPACITOR CO., A CORP., et al. Ex parte Cecilia A. LOGGINS.
    Civ. 1020.
    Court of Civil Appeals of Alabama.
    April 6, 1977.
    Frank K. Noojin, Jr., Huntsville, for petitioner.
    W. Stanley Rodgers, for Ford, Caldwell, Ford & Payne, Huntsville, for respondent.
   BRADLEY, Judge.

This is a workmen’s compensation case. Petitioner, Cecilia A. Loggins, filed suit against respondent, Mallory Capacitor Company, a Corporation, in the Circuit Court of Madison County seeking compensation under Alabama’s workmen’s compensation law for injuries suffered while in the employ of respondents. After a trial before the court sitting without a jury, a judgment was rendered in favor of petitioner. The court found that she suffered a forty percent loss of the use of her left leg and awarded compensation commensurate with such loss. Petitioner seeks a review of that judgment, claiming the trial court erred by awarding her compensation under the provisions of Title 26, Section 279(C)(1), Code of Alabama 1940 (Recomp. 1958).

On September 11, 1973 petitioner was injured when she slipped and fell while carrying a tray of capacitors to her place on the production line at respondent’s plant in Huntsville, Alabama. It was stipulated that the injury arose out of and in the course of petitioner’s employment with respondent. Petitioner said that immediately upon her fall she felt “terrible” pain in her left ankle. She was taken to the emergency room of a local hospital and the ankle was X-rayed. She was given medication for the pain, advised to put no weight on the injured ankle and sent home. Two days later a cast was put on her left leg; she wore a cast on that leg for approximately seven weeks after the fall occurred.

Dr. Donald Beck, an orthopedic surgeon, testified that he first saw petitioner on January 3, 1974. At that time she complained of pain in her left ankle at any weight bearing, persistent swelling, stiffness and limitation of motion in that ankle. An X-ray revealed that the ankle was fractured and had not yet healed. Dr. Beck prescribed that petitioner wear a brace to alleviate the pain, but the pain continued.

On March 1, 1974 Dr. Beck performed surgery on petitioner’s left ankle, inserting three screws into the ankle at various positions to ensure proper healing of the bones and ligaments. Another cast was applied and remained on petitioner’s left leg until May 30,1974. Thereafter petitioner walked with the aid of crutches.

On June 13, 1974 petitioner again visited Dr. Beck, complaining of considerable pain in her left ankle and foot with any weight bearing. On July 11th Dr. Beck suggested that one of the screws in the ankle be removed; this was done sometime between August 5 and August 15.

Petitioner continued to feel pain in her left ankle, even though anatomically her bone had healed. On November 25, 1974 she told Dr. Beck that after two hours of walking and standing the pain was so intense that she would have to sit down and rest. Thereafter, petitioner was treated with cortisone injected directly into the ankle. This afforded her relief from the pain for approximately one week. The cortisone treatments continued between December 1974 and January 1976. In March 1976 the two remaining screws were removed from the ankle. At the time of trial Dr. Beck had not seen petitioner since the removal of the screws.

Dr. Beck’s assessment of petitioner’s condition at the time of trial was that petitioner reached maximum recovery from her injury on April 30, 1975, and she now has a forty percent permanent impairment of her left leg below the knee. He suspects this condition is due to post traumatic arthritis. The result of the impairment is pain, swelling and limitation of motion of the ankle joint. Dr. Beck has suggested that petitioner wear an elastic stocking to reduce the swelling. If her pain persists, future surgery will be required.

Petitioner testified that she still suffers pain in her left leg below the knee, especially after she has been standing or walking for two hours or more. The only way to relieve the pain is to stay off her feet and elevate her left leg. She has not worked since the injury.

Petitioner has completed high school and two years of trade school. Other than her work on the production line at Mallory, she has experience as a sales clerk. She is now forty-six years old, married, and has three children living at home.

Dr. William Breen, an employment counselor, testified as an expert that in his opinion petitioner was unemployable, primarily because she is unable to pass the physical examination required by most companies and because prospective employers do not like to hire employees with a history of workmen’s compensation claims.

The trial court made the following findings of fact and conclusions of law, based on the evidence and its observation of petitioner while she was in the courtroom: that petitioner has a forty percent permanent partial loss of the use of her left leg due to a job related injury; that at the time of her injury petitioner’s average weekly wage was $84; that petitioner was temporarily totally disabled for eighty-five weeks until April 30, 1975, at which time she reached maximum recovery; that petitioner has received compensation at the rate of fifty-five percent of her average weekly wage, or $46.20 per week; that petitioner suffers a forty percent permanent partial disability of the left leg for which she is entitled to eighty weeks of compensation at $46.20 per week; that respondent is entitled to a credit of seventy weeks for the temporary total disability period of eighty-five weeks to be applied against the eighty weeks of permanent partial disability; and that respondent has paid petitioner for ninety-five weeks of disability and owes petitioner no additional amounts as compensation. A total sum of $146.56 for medical expenses was found to be unpaid by respondents and they were ordered to pay it.

Although petitioner has submitted nineteen issues for consideration by this court, the bulk of her argument is directed to the finding by the trial court that she suffered a forty percent permanent partial loss of the use of her left leg and was compensated for this loss according to the statutory schedule found in Title 26, Section 279(C)(1), rather than finding that petitioner had received a permanent impairment of the body as a whole which would entitle her to compensation under Title 26, Sections 279(A) and (C)(3), Code of Alabama 1940 (Recomp.1958).

Petitioner’s injury occurred on September 11, 1973. The amended Section 279, which appears as Title 26, Section 279, Code of Alabama 1940 (Recomp.1958) (Supp.1973), was not approved until September 17, 1973, six days after petitioner was injured. The statute in effect at the time of the injury is the statute to be applied. Fairfax Manufacturing Co. v. Bragg, 342 So.2d 17 (Ala.Civ.App.1977); Harris v. National Truck Service, 56 Ala.App. 350, 321 So.2d 690 (1975). Therefore, the unamended Section 279 is applicable in this case. The applicable portions of the statute as applied by the trial court are as follows:

“Following is the schedule of compensation:
“(A) For injury producing temporary total disability, fifty-five percent of the average weekly earnings received at the time of injury, subject to a maximum and minimum weekly compensation as stated in section 289 of this title; but if at the time of injury the employee received average weekly earnings of less than the minimum stated in section 289 of this title, then he shall receive the full amount of such average weekly earnings per week. This compensation shall be paid during the time of such disability, not, however, beyond three hundred weeks. Payments are to be made at the intervals when the earnings were payable, as nearly as may be.
“(C) 1. For permanent partial disability the compensation shall be based upon the extent of such disability. In cases included in the following schedule the compensation shall be fifty-five percent of the average weekly earnings, during the number of weeks set out in the following schedule:
“For the loss of a foot, one hundred and twenty-five weeks.
“For the loss of a leg, one hundred and seventy-five weeks.
“3. In all cases the permanent and total loss of the use of a member shall be considered as equivalent to the loss of that member, but in such cases the compensation in and by said schedule shall be in lieu of all other compensation. In case of permanent disability, due to injury to a member resulting in less than total loss of use of such member, not otherwise compensated in this schedule, compensation shall be paid at the prescribed rate during that part of the time specified in the schedule for the total loss or total loss of use of the respective member, which the extent of the injury to the member bears to its total loss.”

Pursuant to this law, the trial court found a forty percent permanent partial impairment to the left leg, and awarded benefits according to the schedule in Section 279(C), supra.

The rule of review of the evidence in workmen’s compensation cases was stated in Avondale Mills, Inc. v. Tolllson, 52 Ala.App. 52, 289 So.2d 621 (1974):

“. . . When there is any legal evidence or reasonable inference therefrom to support the facts found by the trial court, such findings are conclusive and will not be disturbed on appeal.” 52 Ala.App. at 56, 289 So.2d at 625.

In the case at bar there is ample evidence to support the fact findings of the trial court. The evidence is without dispute that petitioner injured her left ankle and, according to the treating physician, reached maximum recovery on April 30,1975. Petitioner testified the pain she suffered was confined to the left leg below the knee. There was no evidence that any other part of her body was affected by the ankle injury.

Nor did the trial court misapply the law to the facts by awarding compensation according to the schedule found in Title 26, Section 279(C)(1), supra. Compensation under that section is required where there is an injury resulting in the loss of the use of a member and where the loss is not accompanied by any other physical disability of the body. Leach Manufacturing Co. v. Puckett, 284 Ala. 209, 224 So.2d 242 (1969); cf. Romine v. McDuffie, Ala.Civ.App., 341 So.2d 952 (1977). Commenting on the restriction under this statute the supreme court said in the Leach Manufacturing Co. decision:

“. . . [T]he payment of the specified sum is intended to fully compensate the injured employee for the injury sustained. This would certainly include loss of earning capacity or inability to secure employment. True, in many cases the amount awarded (allowed) seems insufficient or inadequate, but this is a matter entirely within the function of our legislature.” 284 Ala. at 214, 224 So.2d at 247.

Likewise, in the case at bar the trial court found that petitioner’s disability was confined to the left leg below the knee and did not affect any other part of her body. The compensation which was awarded for loss to the use of her leg was intended to “fully compensate the injured employee for the injuries sustained,” and “would certainly include loss of earning capacity or inability to secure employment.” We find no error in this aspect of the trial court’s findings.

No reversible error having been argued, this case is affirmed.

AFFIRMED.

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