author: MADDOX, Justice.

text:
    Phillip Neil PARTON v. The CITY OF HUNTSVILLE, etc., et al.
    77-555.
    Supreme Court of Alabama.
    Sept. 29, 1978.

      Dieter J. Schrader, Huntsville, for appellant.
    W. Stanley Rodgers of Ford, Caldwell, Ford & Payne, Huntsville, for appellees, The City of Huntsville, an Ala. municipal corporation d/b/a Huntsville Hospital.
   MADDOX, Justice.

The primary issue presented on this appeal is whether a minor, allegedly injured while a patient in a city-operated hospital, is required to file a notice of claim with the City within six months, and, if so, whether that requirement denies equal protection of the law.

Plaintiff/appellant Phillip Neil Parton was born prematurely. While in the City-operated Huntsville Hospital, he claims that he suffered total blindness in one eye, and partial blindness in the other eye, because of the negligence of one of the hospital’s nurses. He sued the City of Huntsville to recover for his alleged injury.

The City of Huntsville moved for summary judgment in its favor claiming that the plaintiff failed to comply with Alabama’s notice of claim statutes. Sections 11-47 — 23 and -192, Code of Alabama 1975. The trial court granted the motion and dismissed the claim against the City, with prejudice. This appeal followed.

Our “notice of claims” statutes require that all claims against a municipality “for damages growing out of torts shall be presented within six months from the accrual thereof or shall be barred.” Section 11 — 47—23. Section 11 — 47-192 requires that a sworn statement must be filed with the clerk, stating substantially the manner in which the injury was received, the day and time, and the place where the accident occurred, and the damages claimed.

The issue presented here for our review is not the sufficiency or timeliness of the notice filed by the plaintiff, since the record shows, without contradiction, that no claim was filed with the clerk-treasurer of the City of Huntsville until March 9, 1978, or nearly 24 months after the allegedly negligent injury occurred. Parton claims he was not required to file his claim within six months. He attacks the notice of claim statutes frontally, arguing: (1) that the statutes deny equal protection of the law to those plaintiffs negligently injured by a municipality; (2) that the statutes deny due process to a minor who is unable to comply with them; and (3) that section 6-5-482(b) of the Code of Alabama (1975), which gives a minor additional time to file a malpractice suit, should be construed to extend the time during which a minor may comply with the notice of claims statutes when his injuries accrued as a result of negligence committed by a municipality prior to his fourth birthday. We will address each of the above contentions in the order in which they are presented.

I

EQUAL PROTECTION

Appellant cites to us cases in which four of our sister states have struck down notice of claims statutes similar to our own upon equal protection grounds. Reich v. State Highway Department, 386 Mich. 617, 194 N.W.2d 700 (1972); Turner v. Staggs, 89 Nev. 230, 510 P.2d 879, cert. denied, 414 U.S. 1079, 94 S.Ct. 598, 38 L.Ed.2d 486 (1973); Hunter v. North Mason High School, 85 Wash.2d 810, 539 P.2d 845 (1975); O’Neil v. City of Parkersburg, 237 S.E.2d 504 (W.Va.1977).

Admittedly, the courts in those states, construing statutes abolishing governmental immunity, found that the legislature of each state had intended to put all tort-feasors on an equal footing; therefore, each court found that the diverse treatment of private tortfeasors and government tort-feasors was arbitrary and unrelated to the purpose of the legislation. We fail to find that Alabama’s legislative scheme to eliminate the defense of governmental immunity in certain areas gave to an injured claimant an unconditional right to sue. In fact, legislative intent is to the contrary; included in the overall scheme where conditions, limitations, and requirements on the part of the injured claimant. In short, the Alabama legislature created a conditional right to sue in limited circumstances. Cf. Jackson v. City of Florence, 294 Ala. 592, 320 So.2d 68 (1975).

We are constrained to hold that Alabama’s statutory scheme is to create liability in limited circumstances, and that the notice requirements of sections 11—47-23 and —192 are integral parts of that scheme.

The legislature has a wide discretion to enact laws which affect some groups of citizens differently than others. A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it. McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961). Among the purposes of the notice statutes is to enable the municipality to investigate and determine the merits of the claim and to adjust claims without the expense of litigation if the circumstances warrant. Hunnicutt v. City of Tuscaloosa, Ala., 337 So.2d 346 (1976); City of Anniston v. Rosser, 275 Ala. 659, 158 So.2d 99 (1963); City of Florala v. Presley, 47 Ala.App. 94, 251 So.2d 226, cert. denied, 287 Ala. 727, 251 So.2d 229 (1971). These purposes are reasonable and therefore do not constitute an arbitrary and unconstitutional exercise of legislative power.

All persons injured through the negligence of a city or town have been granted the right to bring suit. Section 11—47—190, Code of Alabama, Jackson v. City of Florence, supra. The limitations upon this right, when uniformly and equally applied, are constitutional. Parker v. Jefferson County Commission, Ala., 347 So.2d 1321 (1977).

II

APPLICATION TO A MINOR

Appellant further argues that the notice of claims statutes deny due process of law to a minor who is unable to comply with these statutes. He contends, in substance, that it is impossible for a minor under the age of 1 to comply with the notice provisions.

While it is true that the courts of many states have held that a notice requirement does not apply to minors unable to give notice, “many courts, probably a majority, adhere to the view that, unless the statute expressly so provides, the infancy of the claimant is no excuse for failure to give notice within the time prescribed.” 18 McQuillin, Municipal Corporations § 53.149 (3rd ed. 1977).

Alabama can be counted in this putative majority. In City of Birmingham v. Weston, 233 Ala. 563, 172 So. 643 (1937), this Court considered a statute very similar to those at hand. There it was observed:

“. . . [T]he act now before us contains no exemption in favor of minors or persons mentally or physically incapacitated to give the notice. It applies to all persons alike unless this court shall write into it such an exception, which, under the guise of judicial interpretation, we do not feel warranted in doing. To do so would be legislation not interpretation.” Id. at 567, 172 So. at 646. See also Dixon v. City of Mobile, 280 Ala. 419, 194 So.2d 825 (1967).

Neither section 11-47-23 nor section 11-47—192 contains exemptions for minors. On the other hand, this Court has held that filing of the required statement by a parent on behalf of the injured minor was sufficient compliance. McDougal v. City of Birmingham, 219 Ala. 686, 123 So. 83 (1929), City of Huntsville v. Phillips, 191 Ala. 524, 67 So. 664 (1914). Here, the parent’s attempted compliance came several months too late. We find no violation of the due process requirements of the United States Constitution.

Ill

APPLICATION OF SECTION 6-5-482(b), CODE OF ALABAMA 1975

The Alabama legislature enacted section 6-5-482 of the Code of Alabama during its 1975 general session. Paragraph (b) expressly provides that a minor could wait until his eighth birthday to commence a medical malpractice suit, if he was under four years of age when the complained-of negligence occurred.

Appellant contends that the legislature surely intended to amend section 11— 47—23 (notice of claims) so as to allow a minor the extra time given under the provisions of § 6-5^482(b) to file his notice of claim; in short, he argues that the medical malpractice statute of limitation and the notice of claims statute should be considered in pari materia. We disagree. The two statutes are unrelated and we feel that the pari materia doctrine has no bearing. 2A Sands, Statutes and Statutory Construction, § 51.01 et seq. (4th ed. 1973). What appellant would have us do is, in effect, graft the extended time period of the statute of limitations [§ 6-5-482(b)] onto the “notice of claims” statute, [§ 11-47-23]. We decline to do this. Based upon the foregoing reasons, we affirm the grant of summary judgment.

AFFIRMED.

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

      . These sections provide:
      “LIMITATION PERIODS FOR PRESENTATION OF CLAIMS AGAINST MUNICIPALITIES.
      All claims against the municipality (except bonds and interest coupons and claims for damages) shall be presented to the clerk for payment within two years from the accrual of said claim or shall be barred. Claims for damages growing out of torts shall be presented within six months from the accrual thereof or shall be barred. (Code 1907, § 1191; Code 1923, § 1907; Code 1940, T. 37, § 476.)
      ******
      § 11-47-192. FILING OF STATEMENT AS TO MANNER OF INJURY, DAMAGES CLAIMED, ETC.
      No recovery shall be had against any city or town on a claim for personal injury received, unless a sworn statement be filed with the clerk by the party injured or his personal representative in case of his death stating substantially the manner in which the injury was received, the day and time and the place where the accident occurred and the damages claimed. (Code 1907, § 1275; Code 1923, § 2031; Code 1940, T. 37, § 504.)”


source: Caselaw Access Project

author: BEATTY, Justice.

license: Public Domain

text:
    Donald PAPAN v. Ernestine Caldwell PAPAN, Administratrix, etc.
    77-613.
    Supreme Court of Alabama.
    Sept. 29, 1978.

      Marshall H. Sims, Trussville, for appellant.
    Neal C. Newell of Hare, Wynn, Newell & Newton, Birmingham, for appellee.
   BEATTY, Justice.

This is an appeal by Donald Papan, son of Robert Papan, deceased, from an order awarding the administratrix of his father’s estate a distributive share in the assets of that estate, compensation for winding up a partnership business, and commissions as administratrix.

The deceased, Robert Papan, and his wife, Ernestine, operated a restaurant in partnership. Mr. Papan was killed in an automobile accident on March 7, 1975. On March 31, 1975 Ernestine was appointed administratrix of his estate by the probate court. She also continued to operate the restaurant. The premises in which the restaurant was located were leased for a monthly rental of $350.00, and the lease did not expire until the end of March, 1977.

In her petition for appointment as admin-istratrix, Mrs. Papan alleged that the estate was estimated at approximately One Hundred Dollars in value (represented by a chose in action). Following her appointment Donald Papan, the deceased’s son by an earlier marriage, in moving to have Mrs. Papan file an inventory, alleged that the estate consisted of assets greatly in excess of One Hundred Dollars. In due course the probate court ordered an inventory to be filed within ten days, and a partial inventory was filed. Thereafter a corrected (supplemental) inventory was also ordered, and although this order was ultimately complied with it was unsatisfactory to Donald who had the administration removed to the circuit court. When the administratrix petitioned for final settlement Donald moved to set aside the inventory and to have Mrs. Papan removed as administratrix. The trial court denied the motion to remove her, but granted the motion pertaining to the inventory by ordering a supplemental accounting. That accounting was filed on August 29, 1977. Donald then moved to set aside the supplemental inventory. A final order was entered by the court on March 30, 1978 which found, that the total estate assets amounted to $41,054.00. This order was amended on April 26, 1978 to exclude from it certain shares of stock which the trial court found to have been incorrectly included.

Those portions of the trial court’s order about which Donald complains are these:

The Court is of the opinion that inasmuch as there is no dower sought or authorized in this estate, then the provisions of Title 34, Section 42 are not applicable and the widow is, therefore, entitled to her distributive share, which, in this instance, is equal to one-half (V2) the personal estate of the decedent.
The Court finds that Ernestine Papan, as the surviving partner, is due to be compensated for her efforts in winding up the partnership affairs of Papan’s Seafood. The period of time involved is found to be necessary to protect the estate assets from liability on the restaurant lease. The Court finds the sum of $500.00 a month for the 25 months between March 8, 1975 through the end of March 1977 as a just and reasonable compensation for winding up the business affairs of the Papan Seafood partnership. The total compensation allowed for this period is $12,500.00.
The Court finds the Administratrix is due to be awarded a fee in the amount of $1350.00 as reasonable compensation for her handling of the affairs of this estate.
I. The personal estate of Robert Pa-pan shall be distributed one-half to Ernestine Papan and one-half to Donald Papan after payment of all expenses, fees herein awarded and the court costs of this action.
4. The estate shall pay to Ernestine Papan the amount of $12,500.00 for her services in winding up the partnership affairs. Said sum to be a lawful expense of the estate.
6. The sum of 1350.00 is hereby awarded the Administratrix as her fee in this estate and orders said amount to be paid from the funds of this estate.
9. The business assets of Papan’s Seafood owned by the estate are declared to be jointly owned, one-half by Ernestine Papan and one-half by Donald Papan.
II. After payment of all costs, expenses and fees as set forth in this order, the remaining assets of the estate shall be distributed one-half to Ernestine Pa-pan and one-half to Donald Papan.

The appellant’s first contention is that Mrs. Papan was guilty of either willful default or gross negligence in the management of the estate, or that she failed to fulfill the orders of the court, and thus she was not entitled to compensation as admin-istratrix; on the other hand, he contends that she was liable to the estate for legal interest on estate funds she used personally while in that capacity, citing Code of Ala. 1975, § 43-2-509.

The appellant’s statement of the rule, pertaining to the conduct of the personal representative which would sanction her removal, is essentially correct. Webb v. Webb, 250 Ala. 194, 33 So.2d 909 (1948); 10 Ala.Dig., Executors & Admin. § 500. Its application, however, depends upon the existence of facts establishing willful default or gross negligence. The fact that Mrs. Papan filed as many as six separate inventories in the course of this administration, and participated in almost as many hearings, did not in itself equate either willful neglect or gross negligence as a matter of law. It is true that the trial court on December 15, 1976 found that the adminis-tratrix, as surviving partner of the restaurant, had failed to conclude the partnership affairs within a reasonable time following the decedent’s death, but it is noteworthy that the trial court nevertheless continued her in that capacity with active duties to liquidate that partnership. And there is evidence in the record that Mrs. Papan continued to operate the restaurant on a regular basis. Indeed, the trial court recognized this in that part of his order we have quoted earlier. Additionally, she proceeded to institute a wrongful death action the prosecution of which was not uncomplicated, and also collected the benefits of an insurance policy half of which she distributed to Donald Papan. It is inferable from those facts that any delay in winding up the estate or in filing corrected inventories was neither willful default nor gross negligence. In any case, no loss to the estate has been shown. Webb v. Webb, supra.

With regard to the other aspect of his contention, that Mrs. Papan used estate funds as her own, a review of the record fails to establish any such contention. We quote from that record:

Q You have continued to operate the Papan’s Seafood business—
A That’s correct.
Q —on a regular basis?
A That’s correct.
Q Okay. And, the monies you have received from that you have been putting back into this Papan’s Seafood account?
A It goes into one account or another.
Q And, could you tell us the names of the accounts it has gone into?
A BTNB and also First Alabama.
Q Has any of it gone into a savings account anywhere?
A I put some money in my checking account each month in order to pay my rent, because I work every day, and that’s it.

Following this examination Mrs. Papan was asked whether she put any of the money from the continued operation of the business into “an account for the Estate of Robert Papan.” Her response was that she had not done so because she had been trying to make a living since his death. None of this evidence would have justified a reasonable inference that Mrs. Papan had used estate funds as her own, and thus she would not have been accountable for either profit or interest. Collins v. Clements, 199 Ala. 618, 75 So. 165 (1917), cited by the appellant, is inapplicable to these facts. Cf. Johnson v. Holifield, 82 Ala. 123, 2 So. 753 (1887).

The appellant maintains next that because Mrs. Papan, as surviving partner, continued the operation of the restaurant, she was liable for any profits made in that operation, and that the heir of the decedent was entitled to all such profits. In effect this is an attack upon the trial court’s award to Mrs. Papan of the $12,500.00 as compensation for winding up the business.

Title 43, § 5(18)(f), Alabama Code (Re-comp.1958) (now Code of A7a.l975, § 10-8-43(6)) mandates that “. . .a surviving partner is entitled to reasonable compensation for his services in winding up the partnership affairs.” The trial court found that Mrs. Papan had executed such a windup, and determined that her reasonable compensation was the sum of $500.00 per month, or $12,500.00 for the twenty-five month period. Considering the fact of the lease outstanding together with the nature of the business, we cannot conclude either that continuation of the business was unjustified, cf. Jay v. Jay, 289 Ala. 513, 268 So.2d 788 (1972), or that the amount awarded for those services was inappropriate.

The appellant also quarrels with the amount of fees, $1,350.00, awarded to the administratrix as such. He contends that this sum is in excess of that sum authorized by Code of Ala., § 43-2-680 (formerly Tit. 61, § 377, Alabama Code (Recomp.1958), because, he maintains, the total estate receipts were $41,000.54.

Our calculations establish that two and one-half per cent of $41,000.54 amounts to $1,025.01, which sum is less than that awarded by the trial court by $324.99. However, rather than authorizing only a strict limit upon allowable commissions, § 43-2-680 authorizes “. . . for special or extraordinary services, such compensation as is just . . . .” The record discloses that, after deducting Mrs. Papan’s partner’s share, the restaurant made a profit of $12,800.68 from her continued operation of it. At the very least this operation avoided a liability of almost Nine Thousand Dollars on the outstanding lease. The relatively small supplement to her administration fees, accordingly, could have been found by the trial court to be allowable as “special services,” since clearly she was not obligated to continue such a demanding enterprise.

The final point raised by the appellant concerns the application of Tit. 34, § 42, Alabama Code (Recomp.1958) (now Code of Ala.1975, § 43-5-3):

(a) If any woman having a separate estate survives her husband, and such separate estate, exclusive of the rents, incomes and profits, is equal to, or greater in value than, her dower interest and distributive share in her husband’s estate, estimating her dower interest in his lands at seven years rent of the dower interest, she shall not be entitled to dower in, or distribution of, her husband’s estate.

The appellant maintains that Mrs. Papan possessed a separate estate in excess of her one-half interest in the decedent’s estate and that, consequently, she was not entitled to a one-half interest in that estate.

In Guice v. Guice, 150 Ala. 552, 43 So. 199 (1907) this Court construed the forerunner of the applicable section:

These sections do not contemplate a case where there is no possible dower interest, nor a case where there is no personalty to be distributed. But they do contemplate all cases where there is present a surviving widow, an estate out of which dower may be taken and personalty distributed, and the widow possesses a separate estate. The absence of any one or more of these elements defeats the application of these statutes ... to such case, (emphasis added)

Accord, Herring v. Elliott, 218 Ala. 203, 118 So. 391 (1928).

The appellant states in brief that the facts of this case establish that the decedent owned real estate at the time of his death, but he cites nothing in the record to substantiate that conclusion. He cites his motions filed in the court below to have Mrs. Papan list that real estate. Her failure to do so is certainly not evidence that ownership of any such property existed. The only reference in the record to any such interest occurred when Mrs. Papan referred to some property located in Yugoslavia which was in Mr. Papan’s grandfather’s name. No records, deeds, evidence of heir-ship, estate administration, or otherwise was ever introduced to show that Mr. Pa-pan owned any property interest there at the time of his death. For that reason the statute cited can have no application here.

There being no reversible error in the record, the judgment must be, and is, affirmed.

AFFIRMED.

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


text:
    In re MEDICAL SERVICE ADMINISTRATION, etc., et al. v. Annette H. DICKERSON and O. D. Dickerson, Individually and d/b/a Jasper Nursing Home, etc. Ex parte State of Alabama Ex rel. Attorney General.
    77-642.
    Supreme Court of Alabama.
    Sept. 29, 1978.

      William J. Baxley, Atty. Gen. and Joseph M. Carlton, Jr., and L. Gilbert Kendrick, Asst. Attys. Gen., for petitioner.
    Vaughan Hill Robison and David B. Byrne, Jr., Montgomery, for respondents.
   MADDOX, Justice.

This is a petition for a Writ of Mandamus asking us to direct the trial judge to withdraw and vacate his order transferring this case from Montgomery to Cullman County.

O. D. Dickerson, Annette H. Dickerson and the Dickerson Corporation, an Alabama corporation, respondents here, operated the Cullman Nursing Home in Cullman and the Jasper Nursing Home in Jasper. The nursing homes participated in the Medicaid program which is administered in Alabama by the state’s Medical Services Administration, petitioner here. A written contract was entered into in which the petitioner agreed to reimburse the respondents for certain operational expenses. To be reimbursed for participating in the Medicaid program, all nursing homes, including the Cullman and Jasper homes, were required to submit a cost report of expenses in the previous year to determine the amount that the Administration would pay for each day that a patient was in the nursing home.

On November 8, 1976, plaintiff Medical Services Administration filed suit in Montgomery County against Annette Dickerson and O. D. Dickerson, both individually and doing business as Jasper Nursing Home and Cullman Nursing Home. Alleging fraud and breach of contract, plaintiff sought recovery of funds improperly paid under the Medicaid program to the respondents. Plaintiff alleged that faulty financial statements were sent to its Montgomery offices and it relied upon these statements in reimbursing the nursing homes.

On December 1, 1977, the respondents filed a motion for change of venue to Cull-man County. On February 17,1978, following testimony and oral arguments, the trial judge denied the motion. Respondents filed a motion to alter, amend or vacate the aforementioned order, and on May 11, 1978, the trial judge reversed his previous order and entered an order transferring venue to Cullman County.

Although it is not completely clear from respondents’ answer to the mandamus petition, the Circuit Clerk of Montgomery County must have transferred the cases to Cullman County within a short time after the order of transfer was entered, because the respondents’ answer shows that they received notice, on May 23, 1978, from the Circuit Court of Cullman County that the two cases had been transferred to that court.

Apparently after the cases had been transferred to the Circuit Court of Cullman County, petitioner Medical Services filed a motion to alter or amend the May 11, 1978, order of transfer. On June 6, 1978, the defendants, Annette and O. D. Dickerson, filed a motion to strike the petitioner’s motion to alter or amend; the trial judge granted this motion to strike on June 7, 1978; one of the reasons probably being that he could not vacate the transfer order after the cases had actually been transferred. The petition for mandamus was filed in this Court on July 5, 1978.

One issue presented to this Court is: When venue will properly lie in two counties, does the trial court have the discretionary power to transfer the case to the other proper county?

Section 6-3-2 of the Code of Alabama 1975, provides, in part:

“(a) In proceedings of a legal nature against individuals:
* * * * * *
“(2) All actions on contracts, except as may be otherwise provided, must be commenced in the county in which the defendant or one of the defendants resides if such defendant has within the state a permanent residence.
“(3) All other personal actions, if the defendant or one of the defendants has within the state a permanent residence, may be commenced in the county of such residence or in the county in which the act or omission complained of may have been done or may have occurred.”

Alabama Rule of Civil Procedure 82(b)(1) provides, in part:

“Actions against an individual or individuals having a permanent residence in this state:
“(A) Must be brought in the county where the defendant . . . resides at the commencement of the action, except that if the action is a personal action other than an action on a contract, it may be brought either in the county where the act or omission complained of occurred, or in the county of the permanent residence of the defendant or one of them . . .”

and Rule 82(c) further provides:

“Venue where claim or parties joined. Where several claims or parties have been joined, the suit may be brought in any county in which any one of the claims could properly have been brought. Whenever an action has been commenced in a proper county, additional claims and parties may be joined, pursuant to Rules 13, 14, 22 and 24, as ancillary thereto, without regard to whether that county would be a proper venue for an independent action on such claims or against such parties.”

The allegations of the complaint show that venue would have been proper in either Montgomery or Cullman County.

The Court of Civil Appeals has faced this issue in Harrelson v. Gowin, 348 So.2d 789 (1977). That court reasoned:

“The complaint can be viewed as stating two causes of action, one in tort for misrepresentation and one in contract for breach of warranty of title. According to Rule 82(b)(1)(A), a personal action other than an action in contract may be brought either in the county where the act complained of occurred, here Houston County, or in the county of the permanent residence of the defendant, here Covington County. Since the Circuit Court of Houston County had proper venue of the misrepresentation cause of action, under Rule 82(c) venue was also proper for the breach of warranty action.
“The committee comments to Rule 82 state:
“ ‘These rules provide for a more liberal joinder of claims and of parties than has hitherto been possible in Alabama. These joinder provisions will be greatly restricted if venue must be proper as to every claim and every party which is joined, and authorization of liberalized joinder having been contemplated by the enabling act, such restriction is not considered to have been intended by the legislature.’
Although this comment seems to refer to a situation where an ancillary claim has been joined to the original action, we think the comment applies with equal validity to the situation where, as here, two claims have been alleged initially in the complaint. The trial court committed no error in refusing the requested change of venue.” 348 So.2d at 790 — 91.

We believe that where venue is proper in two or more counties, the plaintiff has the election to choose the county in which to proceed. Associated Grocers v. Graves Co., 272 Ala. 158, 130 So.2d 17 (1961).

Thus, the question before us is: What discretion does the trial judge have to change venue to another county in which it will properly lie:

Respondents refer us to a number of cases wherein this Court has stated that the matter of granting a change of venue is addressed to the sound discretion of the court. Liberty National Life Insurance Co. v. Weldon, 267 Ala. 171, 100 So.2d 696 (1958); Ex parte Morrow, 259 Ala. 250, 66 So.2d 130 (1953); Ex parte State, Ex rel. Ingram Land Co., 208 Ala. 28, 93 So. 820 (1922). Each of the cited cases and others researched by this Court deal with the discretion to be exercised by the trial judge in changing venue to a county, where venue would otherwise be improper, due to local bias and prejudice. Such an exercise of discretion is and has long been authorized by statute where the court determines that either party “cannot have a fair and impartial trial in the county where the action is pending.” Code of Alabama 1975, § 6-3— 20. There is no other provision in the Code of Alabama authorizing a court to change venue in cases such as these, and we have neither been directed to nor discovered case law authorizing such a change except under the above provisions. It appears from the record that respondents made no allegations in the lower court of bias or prejudice in Montgomery County. There was no charge that they could not receive a “fair and impartial trial” in Montgomery County.

The apparent basis for the order changing venue in this case is convenience. Respondents argue that the witnesses and nursing home records required for trial are located in Cullman County and that it would be unduly burdensome to transport them to Montgomery County for an extended trial. We have failed to find any authority in Alabama, statutory or otherwise, changing venue for the convenience of either the parties, the witnesses, or the court. In fact, we find a statement that there is no provision in the Rules of Civil Procedure, or in statutes which authorizes a change of venue solely for convenience. See Author’s Comments to Rule 82, Lyons, Alabama Practice, Rules of Civil Procedure Annotated, Vol. 2, p. 581.

The burden of proving that venue is improper in a county in which suit is filed is upon the party making such a claim. Johnson Publishing Co. v. Davis, 271 Ala. 474, 124 So.2d 441 (1960), McCord v. Harrison & Stringer, 207 Ala. 480, 93 So. 428 (1922). The respondents failed to meet this burden. They contend that the thrust of the complaints is breach of contract; however, we construe the “thrust of the complaints” to be in tort for misrepresentation and fraud. Since the cost reports required by the Med’cal Services Administration and containing the alleged misrepresentations were mailed to its offices in Montgomery and since these cost reports were allegedly relied upon by the Administration in finally approving payments made to the nursing homes, we are of the opinion that Montgomery County is “the county in which the act or omission complained of may have been done or may have occurred.” Code of Alabama 1975, § 6-3-2. In any event, we agree with the reasoning of the Court of Civil Appeals’ opinion in Harrelson v. Gowin, supra.

The trial court therefore erred in ordering venue in this cause changed to Cullman County.

The second issue is: Can we compel the trial judge to vacate his order of transfer when the cases have already been transferred?

Respondents argue that it is too late for the Montgomery Circuit Court to vacate its order changing venue since they have already been advised by the Cullman County Circuit Court, under § 6-3-22, Code 1975, that the case has been transferred to that court. They cite Ex parte Morrow, 259 Ala. 250, 66 So.2d 130 (1953). That case states that where the matter has already been transmitted to the other court, mandamus will not lie since the original court could not be ordered to do that which it could not legally do.

Ex parte Morrow is apt authority, but it was decided before the promulgation of the Alabama Rules of Civil Procedure, which are to be “construed to secure the just, speedy and inexpensive determination ,of every action.” Rule 1(c), ARCP.

If we applied Ex parte Morrow, the petitioner here would have to file a motion in the Circuit Court of Cullman County to transfer the cause back to the Circuit Court of Montgomery County. To require this needless procedure would be unjust, expensive and most of all, a waste of time.

The concept of the unified judicial system and the procedural rules governing its administration is that justice will be delivered quickly, fairly and efficiently. For example, Rule 33, Rules of Judicial Administration, provides that “[w]hen a case is transferred from one court to another, the court from which the case is transferred shall transfer all original records in the case to the office of the clerk of the court to which the case is being transferred; provided, however, that the court transferring the case shall maintain a copy of the original records.”

We, therefore, decline to follow Ex parte Morrow.

The trial judge is directed to withdraw and vacate his order transferring this case, and is further directed to notify the Circuit Court of Cullman County of our action by sending to that court a copy of this opinion.

WRIT OF MANDAMUS GRANTED.

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


author: BRADLEY, Judge.

text:
    Raymond HUGHES v. Madge J. HUGHES.
    Civ. 1204.
    Court of Civil Appeals of Alabama.
    Jan. 11, 1978.
    Rehearing Denied Feb. 15, 1978 and March 22, 1978.

      J. Gary Pate of Hobbs, Copeland, Franco & Screws, Montgomery, for appellant.
    Joe S. Pittman of Pittman, Whittaker & Hooks, Enterprise, for appellee.
   BRADLEY, Judge.

This appeal follows a decree entered by the Circuit Court of Coffee County divorcing the parties on the basis of incompatibility of temperament. Appellant-husband contends that the trial court committed reversible error when it ordered him: (1) to continue to pay child support “until further orders of the [trial] court;” (2) to pay an excessive amount of alimony; and (3) to pay his wife’s attorney’s fees. In addition, the husband argues that Title 30, chapter 2, section 51, Code of Alabama 1975 is unconstitutional in that it permits an award of alimony solely to a wife. And finally, the husband claims that General Motors Corporation was improperly joined as a party to the divorce proceeding below.

The record before this court reveals that the parties had been married approximately twenty-three years when they were divorced. Their union produced three children, two of whom were adults at the time the marriage was dissolved. The couple’s eldest daughter is a college graduate and no longer resides at the family home. The middle child, a daughter, attends school at Auburn University but is still dependent upon her mother and father for at least a portion of her financial support. The parties also have a son who is their youngest child. He was a high school sophomore at the time of the divorce.

Both the husband and wife are in their mid-fifties. Although the husband is in good health, the wife has had problems with her back and has undergone two operations to correct this condition. Other than recurring difficulties with her back, she is in reasonably good health.

The husband is owner and operator of Ray Hughes Chevrolet, Inc., an automobile dealership located in Enterprise, Alabama. On the other hand, the wife is a homemaker and has not been employed in a position outside the home since the early years of the couple’s marriage.

Evidence presented at trial disclosed that during the latter years of the parties’ marital union,'the husband engaged in a marked tendency to disassociate himself from his family — often refusing to eat or converse with his wife or children. Testimony further revealed that the husband and wife frequently argued over finances and his refusal to inform her about the family’s financial condition. Finally, the trial transcript indicates that when the husband did engage in conversations with the members of his family it was generally for the purpose of harangueing or criticizing them. It was on the basis of the aforementioned circumstances that the wife ultimately decided to obtain a divorce.

In December of 1974 the wife filed a complaint seeking a divorce from her husband. After the occurrence of various procedural stages dealing with this matter, a hearing was held in the Circuit Court of Coffee County and on October 6, 1976 a decree of divorce was ordered. This judgment was based on the finding by the court that there existed such a complete incompatibility of temperament that the parties could no longer live together. In its decree of October 6, the court ordered that the wife be granted custody of the couple’s minor son; that the husband pay $300 a month child support until his son graduated from college; that he pay his son’s medical expenses; and that the husband pay the wife alimony in gross in the amount of $10,000 per year (or $833.33 a month) for ten years. Moreover, the wife and son were granted the use of the family residence until further order of the court and the husband was required to pay the mortgage, taxes and insurance on this residence. A general lien was declared on all of the husband’s property, including his Chevrolet dealership, and he was precluded from disposing of any stock in the dealership which belonged to him (unless the proceeds therefrom were used to pay alimony or child support) until he had paid the $100,000 in alimony payments due his wife. The husband was also ordered to pay the attorney’s fees incurred by the wife.

On April 27, 1977 the trial court overruled the husband’s motion for new trial, withdrew its original judgment of October 6, 1976, and entered a second judgment. Despite retaining a substantial portion of the language in its original decree, the court made the following modifications: (1) $300 a month to be paid by the husband as child support for his minor son “until further order of the court;” (2) the family residence to be sold when the minor child reached the age of majority — with one-third of the proceeds from the sale to the wife and the remaining two-thirds of the proceeds to the husband. The husband was also ordered to maintain complete medical insurance on his wife and the award of attorney’s fees to the wife’s counsel was raised from $3,500 to $4,500. From the trial court’s second judgment the husband brings this appeal.

The first issue presented to this court for review concerns the husband’s assertion that the trial court abused its discretion in requiring that he pay child support until further order of the trial court. He contends that his motion for new trial challenged the court’s original decree ordering him to pay child support until his son graduated from college on the basis that such an order would mandate that child support payments continue even after the child reached the age of majority. Consequently, the husband submits that the court’s subsequent modification of the language in its original judgment is merely an effi-rt to circumvent the court’s obligation to declare that the husband is not required to pay child support once his son reaches the age of nineteen.

Since there is no legal obligation of a parent to support, maintain or educate a child once that child reaches the age of nineteen, the court in the instant case did not err in changing its original language ordering the husband to pay child support from “while said child successfully continues his education in college” to “until further orders of the court.” Indeed, the latter language is merely an indication that the court has retained jurisdiction to modify the requirement that the husband pay child support. And any such modification may in fact occur before the child reaches the age of nineteen. At any rate, the court may properly retain such jurisdiction at its discretion and it will not be reversed on appeal for doing so unless the complaining party demonstrates a clear, manifest and obvious abuse of its discretion by the trial court. We find no such abuse in the judgment below as it relates to the trial court’s order regarding child support.

However, it should be noted that in the cases of Hardiman v. Hardiman, 48 Ala.App. 427, 265 So.2d 607 (1972) and Huckaba v. Huckaba, Ala.Civ.App., 336 So.2d 1363 (1976), this court said that a trial court has no power to order a husband to continue to pay child support once his child reaches adulthood.

The next issue raised by the husband concerns the amount of alimony awarded to the wife by the trial court. While the husband does not contest his obligation to pay his wife an equitable amount of alimony, it is his contention that the trial court abused its discretion in ordering him to pay the sum of $833.33 a month in alimony and an additional $645.50 per month in child support, mortgage payments, property taxes and insurance on the family residence. The husband urges that these payments alone (totaling $1,478.83 per month) exceed his monthly income, and that when coupled with his obligation to provide medical care and insurance for his wife and son, the monthly amount he is required to pay for their support will force him to borrow money to meet his own living expenses.

In determining whether the trial court abused its discretion in awarding alimony we must examine the evidence presented to that court. The evidence which was introduced to this matter in the trial below reveals the following facts. The parties’ home was built for $55,000 and has a current market value of $75,000. The wife testified that she wished to remain in the house until the couple’s son graduated from high school. Accordingly, the trial court ordered that the house be sold when the latter reaches the age of nineteen, at which time the husband will receive two-thirds of the proceeds from the sale and the wife will be paid the remaining one-third of the proceeds.

The joint income tax returns for the husband and wife indicate that between 1969 and 1972 their taxable income was between $40,000 to $52,000 a year. This entire amount was earned as a result of the husband’s automobile business — either in the form of salary or stock dividends. In 1973 the husband began to file individual income tax returns and his return for that year shows a taxable income of $43,500. In 1974 his taxable income amounted to $43,250. However, due in part to the ravages of a nationwide recession which had a particularly bad effect on the nation’s automobile industry, the husband’s taxable income fell to $24,400 in 1975. Despite this fact, the net worth of his automobile dealership rose to an all-time high and in 1975 it had an estimated value of $378,453. This increase in the value of his business was apparently the result of the husband’s use of the profits from his business to acquire from General Motors whatever stock the latter owned in the husband’s Chevrolet dealership. The dealership’s profits were also used by the husband to purchase stock in General Motors.

The husband is the sole owner of his automobile dealership and in his capacity as the president of his wholly-owned corporation he may fix his personal salary at whatever amount he desires.

At trial he testified that he reduced his monthly salary in 1976 because of the general decline in automobile sales which occurred in 1975. Nonetheless, undisputed testimony at trial established that the husband received a monthly take-home pay of approximately $1,266 in 1976. In addition, he received annual dividends from his stock in General Motors and the yearly amount produced as a result of this stock was between $1,000 and $2,450. Thus, at the time of the divorce the husband was earning approximately $16,000 to $18,000 a year. He testified that his living expenses were approximately $600 per month.

And in view of these facts, the husband argues that the trial court ordered him to pay alimony, child support and other expenses for the benefit of his wife and son which amounted to approximately $17,750 a year and that the trial court abused its discretion by awarding such an amount.

While we would not disagree with an assertion that the trial court’s award was rather generous in view of the husband’s earnings at the time of the divorce, we do not believe that the award was so excessive that it constitutes an abuse of the court’s discretion.

Both the husband’s General Motors stock and his automobile dealership are income producing. And the latter has demonstrated its ability in the past to provide the husband (and his family) with a comfortable standard of living. Nor is there any reason to believe that the future of the husband’s automobile dealership is so bleak that it will not continue to provide him with sufficient income to meet his alimony and child support obligations while at the same time furnishing him with an adequate amount of money to live on. Indeed, the husband testified during the trial that his business was improving, and given the general upswing in the nation’s economy it would be remarkable for this court to conclude that the business of his automobile dealership will not continue to increase. In brief, there is nothing in the record to indicate that his income will remain at its 1975-1976 level.

Moreover, the General Motors stock retained by the husband is marketable and according to the court’s decree it may be borrowed against or sold for the purpose of meeting alimony and child support payments. This stock is currently valued at $25,500 and its value will probably increase in the future.

In addition, the husband’s obligation to pay his wife child support will end on his son’s nineteenth birthday in March of 1978. The termination of this responsibility will reduce the husband’s payments to his wife by some $3,600 a year. Likewise, upon his son’s nineteenth birthday the parties’ home may be sold and the husband is entitled to two-thirds of the proceeds from the sale of this property which is currently valued at $75,000. And as the enumeration of these facts demonstrates, the husband has a number of assets and means of meeting his duties under the judgment for divorce which was rendered by the trial court.

On the other hand, the wife has neither the assets nor a separate estate to support her son and herself. She testified that the two of them have living expenses of between $600 to $1,000 per month. In addition, the wife stated that she would like to contribute some financial support to her middle daughter’s college education.

The wife has performed the functions of homemaker since the early years of the couple’s marriage, making every effort to be frugal and economical in meeting various household expenses; and although she has held secretarial type jobs in the past, she has not worked in such a capacity in a number of years. Moreover, her health and difficulties with her back may prevent her from obtaining any substantial employment in the future. Thus, it is apparent that the husband is the only one of the two parties who is in any financial position to provide the support necessary for the subsistence of his wife and minor son.

The trial court in granting a divorce has the authority to award to the wife alimony in gross. And in determining the amount of the award the trial court may exercise its discretion. Davis v. Davis, 274 Ala. 277, 147 So.2d 828 (1962). In reaching its decision on the size of the award the court may consider the circumstances of the particular case along with a number of other relevant factors. Among these factors are: the parties’ future prospects; the parties’ standard of living during their marriage and their potential for maintaining or exceeding that standard after their divorce; their ages, sex and health; the length of their marriage; the source (or sources) of their common property; and in appropriate situations, the conduct of the parties with reference to the cause of divorce. Sides v. Sides, 284 Ala. 39, 221 So.2d 677 (1969); Brooke v. Brooke, 57 Ala.App. 704, 331 So.2d 715 (1976).

Furthermore, it is a well established principle that this court will review a judgment by a trial court in divorce cases with a presumption of correctness in any situation where that court has heard the testimony and viewed the witnesses. Meyers v. Meyers, 55 Ala.App. 697, 318 So.2d 725 (1975). The rationale for this rule — commonly called the ore tenus rule— is this court’s awareness of the fact that the trial court is in a better position to make decisions regarding awards of alimony and child support than an appellate court. Accordingly, we will not reverse a trial court’s determination in such matters unless the complaining party demonstrates from the record before this court that the trial court palpably abused its discretion. And, in this instance, we are not prepared to hold that the judgment rendered by the trial court was palpably in error. Novak v. Novak, Ala.Civ.App., 339 So.2d 77 (1976).

The third issue presented for examination by this court involves the husband’s argument that (1) the trial court abused its discretion by requiring the husband to pay the attorney’s fees of his wife, and that (2) the amount of attorney’s fees actually awarded was excessive. However, we cannot agree with either of these contentions.

An award of attorney’s fees to the wife in a divorce case is a matter within the sound discretion of the trial court and that court will not be reversed on appeal for the exercise of its discretion unless the award is plainly erroneous or manifestly wrong. Therefore, we conclude that the trial court’s finding that the wife was entitled to have her attorney’s fees paid by her husband was not plainly erroneous or manifestly wrong.

Nor was it demonstrated by the husband on appeal that the $4,500 fee which was awarded in this case was excessive. Indeed, two lawyers testified at trial that the reasonable value of the services rendered on behalf of the wife by her attorney was between $5,000 and $6,000. Consequently, we are unable to say that the trial court’s award of a $4,500 attorney’s fee to the wife’s lawyer was clearly excessive or unjust. Phillips v. Phillips, 277 Ala. 2, 166 So .2d 726 (1964).

As an additional issue for consideration on this appeal, the husband urges this court to hold Title 30, chapter 2, section 51, Code of Alabama 1975 (formerly Title 34, section 31) unconstitutional.

The husband’s basis for this argument is the fact that Title 30, chapter 2, section 51 permits a wife to receive alimony in a divorce case but does not make similar provisions for a husband (regardless of his financial, mental or physical condition at the time of the divorce). The husband raised the issue of the constitutionality of the statute for the first time in his motion for new trial. And this court will not consider an issue as to the constitutionality of a statute where such issue is raised for the first time in a motion for new trial. Dale v. Dale, 54 Ala.App. 505, 310 So.2d 225 (1975). Nonetheless, in both Orr v. Orr, Ala.Civ.App., 351 So.2d 904, cert. den. Ala., 351 So.2d 906 (1977), and Blackwell v. Blackwell, Ala.Civ.App., 348 So.2d 500 (1977), we refused to declare the Alabama alimony statute unconstitutional.

The final issue raised on appeal concerns whether General Motors was a proper party to the divorce proceedings. General Motors became a party to this action at the motion of the wife. Her motion seeking to make General Motors a party to the divorce proceeding was based on the fact that the husband’s automobile dealership agreement with General Motors prohibited the transfer of ownership of any stock of Ray Hughes Chevrolet, Inc. without the knowledge and consent of General Motors. Since the wife’s petition for divorce requested that the trial court award her a share in her husband’s dealership, she moved to have General Motors made a party to her suit. And we do not believe that the court committed reversible error by ordering that General Motors be joined under the Alabama Rules of Civil Procedure. See Rule 19, ARCP (permitting the joinder of persons needed for a just adjudication).

Nevertheless, the husband did not complain of the court’s action in this matter in his pleadings or at any time prior to this appeal. His objection to the joinder of General Motors should have been made before the close of the trial; however, no such objection was proferred and thus the husband did not raise this issue in a timely manner. We have often stated that a party may not raise for the first time on appeal new matter which was not presented by that party to the trial court or upon which the trial court had no opportunity to rule. Rule 4, ARAP, and committee comments thereto. Consequently, the husband’s failure to object to the joinder of a party before the close of the proceedings constituted a waiver of his right to object to the trial court’s action on the matter.

Moreover, since only General Motors objected to the court’s order requiring that General Motors be made a party to the wife’s suit, General Motors is the proper party to appeal the court’s ruling on its objection. However, General Motors did not appeal and the husband has no standing to exercise this right on behalf of General Motors.

Having considered the husband’s arguments, we find no reversible error and thereby affirm the trial court’s award of alimony and child support to the wife.

The wife has requested that this court order that her husband pay a reasonable attorney’s fee to her lawyer for his efforts in preparing her defense on this appeal. We consider $500 to be a just and reasonable fee for the services performed on the wife’s behalf. Accordingly, we hereby award the sum of $500 to the wife as a reasonable attorney’s fee.

ATTORNEY’S FEE AWARDED.

AFFIRMED.

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

On Rehearing

Prior to appellant-husband’s application for rehearing the appellee-wife filed a motion to amend the judgment entered by this court to include the ten percent award of damages as required by Title 12, chapter 22, section 72, Code of Alabama 1975. Apparently this action was taken as the result of a misapprehension on the part of appel-lee’s attorney. Seemingly he thought that the opinion rendered by this court in regard to this matter constituted a final judgment. However, we should point out to the bar of this state that a judgment on an appeal is not entered until we have ruled on an application for rehearing, or the time for filing such an application has expired.

Since the ten percent penalty will be awarded in this case, we believe the contentions asserted by the parties concerning its applicability should be discussed. Attorney for appellee - sought an award of the penalty on the ground that this court had affirmed the trial court’s judgment for alimony in gross and attorney’s fees. The lawyer who represented appellant challenged appellee’s motion by contending that the statutory penalty of ten percent was not applicable in divorce cases. Phillips v. Phillips, 221 Ala. 455, 129 So. 3 (1930). Appellant also maintained that it was improper to impose the ten percent penalty on the award of attorney’s fees. Dent v. Foy, 210 Ala. 160, 97 So. 627 (1923). However, we do not believe either case cited by appellant supports his arguments in regard to this matter.

Phillips v. Phillips involved a substantial change by the supreme court of the amount of alimony and attorney’s fees which had been awarded by the trial court. It is well established that an appellee is not entitled to the ten percent penalty when the amount of judgment is reduced by the appellate court. Chapman v. Rivers Construction Co., 284 Ala. 633, 227 So.2d 403 (1969).

On the other hand, Dent v. Foy dealt with the denial of the ten percent penalty on the attorney’s fees which had been awarded in the case. But the issue litigated in Dent v. Foy was whether plaintiff’s counsel was entitled to attorney’s fees paid out of a common fund which resulted from the partition and sale of the parties’ jointly owned property. Consequently, the supreme court concluded that no penalty should be awarded because the allowance for the attorney’s fee was not “a decree rendered for money” under the statutory predecessor to section 72. The court reasoned that the attorney’s fees awarded were merely an allowance of a fee payable out of trust funds and as such did not constitute “a decree rendered for money.” Moreover, we should also note that due to the nature of that case the cost of appeal was divided equally between the parties. The situation in Dent v. Foy is significantly different from that before us in this instance. The decision in Dent v. Foy rejected the applicability of the ten percent penalty because both parties were entitled to share in the common fund although a question arose as to whether a portion of the fund could be used to pay one party’s attorney. Since the parties shared in the cost of the suit as well as the funds which resulted from the partition, it would have been inequitable to penalize one party merely because he sought to determine how a portion of the common proceeds could be spent.

Rule 8(a) ARAP permits a stay of execution on a judgment pending appeal provided a supersedeas bond is executed by the appealing party. And this rule is applicable to situations where a judgment is for the payment of money or for the performance of some other act or duty as well as situations where the judgment is only for the performance of some act or duty. In the present case appellant filed an application for supersedeas bond and he had a right to do so since separate provisions of the trial court’s decree had ordered him to pay money (alimony and attorney’s fees) and had required him to perform various acts (the maintenance of insurance, etc.). Indeed, Ryan v. Ryan, 267 Ala. 677, 104 So.2d 700 (1958), recognized that in order for the husband to stay the trial court’s award of alimony (i. e. that amount in excess of the pendente lite support provided for the wife while an appeal was being taken), the filing of a supersedeas bond was necessary. Moreover, the opinion in Ryan v. Ryan noted that once the husband undertook to stay the judgment of the trial court by means of a supersedeas bond, he subjected himself to all the consequences relevant to the use of the bond. Among these consequences were: “bond with security, with penalty and conditions adapted to the character of the decree.” (Emphasis supplied.)

The rationale used in Ryan v. Ryan is clearly applicable in this case. If an appellant chooses to use a supersedeas bond he must subject himself to its “detriments” as well as its benefits. One such detriment is the possibility that the ten percent penalty will be awarded if he is unsuccessful on appeal after having executed a supersedeas bond. We see no distinction between this type of case and any other type of civil action. Consequently, we hold that the ten percent penalty provided for in section 72 is applicable to appeals from judgments entered in divorce cases. And the penalty may be applied to the amount superseded even though a portion of that amount may include an award of attorney’s fees.

APPLICATION FOR REHEARING OVERRULED.

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

      . The husband also argues that by ordering that the total award of alimony in gross be made within ten years, the trial court deprived him of the potential benefit of claiming a tax deduction for alimony payments.
      This argument is premised on § 71 of the Internal Revenue Code which provides that alimony payments are taxable to the husband unless they are payable over a period of more than ten years, or are subject to the contingencies that the husband survive the wife or that the wife not remarry.
      The husband estimates that the minimal tax rate on his alimony payments will be thirty percent — that is, $3,000 a year ($250 per month).

      . There was conflicting testimony as to the effect of the recession on automobile sales in the Enterprise area during the year of 1975. A local automobile dealer testified that in the six years he had done business in Enterprise, 1975 was the second best year in terms of sales that his Oldsmobile-Buick dealership had experienced.


author: PER CURIAM.

text:
    Ex parte Raymond HUGHES.
    77-440.
    Supreme Court of Alabama.
    Sept. 22, 1978.
   PER CURIAM.

WRIT QUASHED AS IMPROVIDENTLY GRANTED.

BLOODWORTH, MADDOX, JONES, SHORES, EMBRY and BEATTY, JJ., concur.

TORBERT, C. J., and FAULKNER and ALMON, JJ., dissent.


author: WRIGHT, Presiding Judge.

text:
    ALABAMA SURFACE MINING RECLAMATION COMMISSION v. Oscar Dean JOLLY and Clyde Slatton.
    Civ. 1520.
    Court of Civil Appeals of Alabama.
    Sept. 20, 1978.
    William J. Baxley, Atty. Gen., Henry H. Caddell, Benjamin Cohen, Ronald J. F. Reeves, Jasper, Sarah K. Farnell, Edwin L. Yates, Asst. Attys. Gen., Montgomery, for appellant.
    Jimmy Dale Williams, Birmingham, for appellees.
    Robert M. Alton, Jr., of Alton, Leavell & Boggs, Montgomery, for the Alabama Dairy Commission, amicus curiae.
   WRIGHT, Presiding Judge.

The Alabama Surface Mining Reclamation Commission, an agency created by the legislature, appeals from a judgment of the Circuit Court of Jefferson County reversing an order of the Commission finding defendants Jolly and Slatton in violation of the Alabama Surface Mining Reclamation Act of 1975. The judgment of the circuit court, though rendered after hearing de novo as provided by § 9-16-51(b), Code of Alabama (1975), was that the Commission was without jurisdiction to enter its order. It did not decide the matter upon the merits but remanded it to the Commission for further proceedings.

The decision of the trial court was founded upon certain provisions of § 9-16-51(a) of the Code which are inter alia as follows:

“(a) Whenever a verified complaint is filed with the commission alleging that any operator is in violation of this article or rules and regulations of the commission, the commission may cause to have issued and served upon the person alleged to be committing such violation a written notice which shall specify the provision of this article and/or the rules and regulations of the commission which such operator allegedly is violating, and a statement of the manner in and the extent to which said operator is alleged to violate this article and/or the rules and regulations of the commission, and shall require the person so complained against to answer the charges of such formal complaint at a hearing before the commission at a time not less than 10 days or more than 30 days after the service of notice.”

The court said in its judgment that the import of the statute is to place upon the Commission a non-delegable duty and discretion to determine if there is cause for ordering a hearing after receipt of the verified complaint of a violation. In support of its decision the court relies upon statements contained in the decision of the case of Board of Ed. of Marshall County v. Baugh, 240 Ala. 391, 199 So. 822 (1941). The court there said:

“[A]n act done in behalf of another without authority ... is illegal and void. Such act is not subject to ratification.”

In making the cited statement in Baugh, the supreme court was interpreting a section of the Alabama Teacher Tenure Act pertaining to re-employment and cancellation of contracts of teachers by the respective boards of education. § 16-24-12, Code of Alabama (1975). The whole purpose of that act is to protect the continuing service status of teachers in the public school systems of Alabama. The Act provides the sole methods for employment, transfer and cancellation of contracts of teachers by the employing boards of education. The decision of the court in Baugh was that the tenure of Baugh could not be affected by an act of the superintendent of education, because the Act specifically said that only the board could make such discretionary determinations. This court has followed and restated that principle of Baugh in the case of Brown v. Alabama State Tenure Commission, 349 So.2d 56 (Ala.Civ.App.1977).

However, we do not consider the decision in Baugh to be dispositive of the issue in this case. The tenure act was enacted to protect the continuing service of teachers. It directed the employers of teachers and the boards of education as to the manner in which they were to exercise their authority to dismiss or transfer'teachers. The legislature clearly provided the manner and procedure by which such functions were to be performed. There was no provision for delegation of authority to employ or discharge teachers because such authority and duty had already been specifically granted to boards of education by § 16-8-23, Code of Alabama (1975).

The Mining Reclamation Act created an agency of the state to carry out a public function determined by the legislature to be desirable. The agency created is the Surface Mining Reclamation Commission. The Act empowered and charged the Commission with the duty of carrying out the intent and policy declared therein. The Commission was granted some twenty-two general powers as shown in § 9-16-34 of the Code. Among these powers was that of making and adopting rules and regulations and to enforce such rules by orders; to hold hearings to determine violations of the Act or of the rules and regulations adopted by the Commission. There was also granted to the Commission the power to,

“(16) Provide for the performance by its director, assistant directors or staff and employees in the name of the commission, of any act or duty authorized by and consistent with administration of this article, except for the promulgation, modification, suspension or repeal of standards, rules and regulations; . . . .”

From this provision it may be seen that there is a general power of subdelegation of its authorized acts and duties, except for specific limitation. There is ample authority in federal jurisdictions that there is nothing inherently wrong with the subdelegation of power and authority by agencies created and empowered by legislative act to serve a public purpose. Fleming v. Mohawk Wrecking and Lumber Co., 331 U.S. 111, 67 S.Ct. 1129, 91 L.Ed. 1375 (1947); Federal Trade Commission v. Gibson, 460 F.2d 605 (5th Cir. 1972); U.S. v. Marshall Durbin and Co. of Haleyville, Inc., 363 F.2d 1 (5th Cir. 1966).

In view of the broad authority granted the Commission, we find the Commission could delegate to its officers and staff the authority to consider complaints of violations of the Act and to issue notice to an alleged violator that the Commission would hold a hearing on such complaint. Walls v. City of Guntersville, 253 Ala. 480, 45 So.2d 468 (1950). Whether such delegation had been made is not in' issue. The very characteristics of the Commission clearly force the conclusion that the legislature anticipated and intended that the administration of the Act be largely done by staff under the rules and regulations of the Commission. Without power of delegation, an administrative and enforcement agency could hardly function.

The trial court erroneously determined that the Commission was without jurisdiction and authority to hear and enter its order in this case. The trial court not having determined from the evidence presented at the trial de novo whether the order of the Commission is reasonable or lawful or not supported by the clear preponderance of the evidence, the judgment is reversed and the case is remanded for such consideration and judgment by the trial court.

REVERSED AND REMANDED.

BRADLEY and HOLMES, JJ., concur.


author: BOYD, Justice. ENGLAND, Justice,

text:
    Marion LUBELL, Petitioner, v. ROMAN SPA, INC., et al., Respondents.
    No. 50083.
    Supreme Court of Florida.
    June 30, 1978.
    Rehearing Denied Oct. 16, 1978.
    David R. Lewis of Lewis, Paul, Isaac & Castillo, Jacksonville, for petitioner.
    Marion R. Shepard of Mathews, Osborne, Ehrlich, McNatt, Gobelman & Cobb, and Carle A. Felton, Jr., of Boyd, Jenerett, Leemis & Staas, Jacksonville, for respondents.
   BOYD, Justice.

In this case the District Court of Appeal, First District, applied an earlier decision as controlling precedent. The decision should not have served as precedent because this case contains materially different facts. Such a “misapplication of law” generates conflict between the two decisions and gives us jurisdiction.

The facts of the case appear in the opinion of the District Court. The case proceeded in this way. Marion Lubell, a patron in the Roman Spa, was injured when a “false” ceiling, constructed by Connors Construction Company, collapsed. She brought suit against the Spa and, in turn, the Spa filed a third party complaint against Connors for indemnification. In the main action, the jury found the Spa liable for negligence and returned a verdict for Lubell of $25,000 in damages. In the indemnity action, the jury returned a verdict for Connors. A consolidated final judgment in keeping with the jury determinations was rendered and the Spa appealed, attacking the verdicts on both liability and indemnification.

The District Court held that the trial court erred in failing to grant the Spa’s motion for a directed verdict at the close of the evidence. In so holding the court relied on Slavin v. Kay, 108 So.2d 462 (Fla.1959). In the course of the Slavin opinion, this Court had stated that the rule freeing contractors from liability for injuries resulting from their defective work, when the work had been turned over to the owner, did not apply “where the dangerous condition is not discoverable by [the owner’s] inspection.” Slavin, at 466. The district court used the Slavin language to free the Spa from liability because the cause of the ceiling’s collapse was that Connors, instead of strapping metal laths to two-by-fours in the ceiling had improperly attached them with smooth shank nails, a defect not discoverable by the Spa’s inspection.

To the contrary, there was evidence in the record which indicated that the defect may have been discoverable by inspection. This evidence: approval of the plan for the ceiling by the Spa’s maintenance supervisor, the supervisor’s observance of some of the construction, and his acceptance of the completed work following inspection; is mentioned in the court’s opinion. There is other evidence in the record which indicated that the Spa may have breached the duty of care it owed Lubell and that the breach proximately caused her injuries. There was no rule of law to compel the district court to disturb the jury’s evaluation of the evidence as to the Spa’s liability and it was incorrect to do so.

The decision that the Spa was not liable made it unnecessary for the Court to consider the challenge to the indemnity verdict. That issue has not been properly briefed or argued here. The cause is remanded with directions for the district court to consider the points on appeal originally raised against the indemnity verdict and to reinstate the liability judgment against the Spa.

It is so ordered.

ADKINS and SUNDBERG, JJ., and MASON, Circuit Judge (Retired), concur.

ENGLAND, J., dissents with an opinion.

OVERTON, C. J., and ALDERMAN, J., dissent.

ENGLAND, Justice,

dissenting.

There is no constitutional “direct conflict” between the district court’s decision below and our decision in Slavin v. Kay, 108 So.2d 462 (Fla.1959). The Court’s decision today extends our review of district court decisions to its farthest reaches and, so far as I can discern, obliterates any vestige of finality in the district courts.

In Slavin, this Court articulated a rule of law concerning non-discoverable dangerous conditions in negligence lawsuits. The Court then, sitting as the first and only appellate tribunal, reviewed the evidence adduced at trial to determine whether directed verdicts were properly entered against the defendants.

The district court in this case tested the legal principle announced in Slavin against facts adduced by the plaintiff to determine whether defendant’s motion for a directed verdict should have been granted. Naturally, the facts in this case are somewhat different from the facts in Slavin, but what two cases are ever precisely alike? If a district court’s performance of its standard appellate review function is to be considered a “misapplication of law” every time factual variations produce a different legal consequence for litigants, as perhaps Wale v. Barnes suggests, then I believe we have now reached the point that, for purposes of our “conflict” jurisdiction under Article V, Section 3(b)(3), this Court will re-review all trials in Florida to perform for all litigants the same function which I had thought was assigned not only initially but exclusively to the district courts.

One need only examine the majority’s opinion in this case to see that it has done nothing more than disagree with the district court as to the quantity (or quality) of the evidence of discoverability adduced at trial. The Slavin doctrine survives today’s decision intact — it simply does not operate for this defendant’s benefit. Absolutely no new rule of law can be discerned from the Court’s decision today; indeed, the majority’s opinion wholly lacks any discussion of law. The majority, I submit, simply disagrees with the district court’s evaluation of plaintiff’s evidence.

I dissent, once again, on jurisdictional grounds. We are no longer either the first or only court of appellate review in Florida, as we were before the existence of district courts, and we pervert Article V of the Constitution to behave as if we are. Today’s decision sets us backward 20 years. We should discharge the writ of certiorari as having been improvidently granted.

      . Wale v. Barnes, 278 So.2d 601, 604 (Fla. 1973).

      . Art. V, § 3(b)(3), Fla.Const.

      . Roman Spa, Inc. v. Lubell, 334 So.2d 298 (Fla.App.1976).

      . For example, that the Spa didn’t take sufficient precaution to protect its patrons when it should have known the collapse might occur due to pile driving in the vicinity.

      . That litigation preceded formation of the district courts of appeal.

      . 278 So.2d 601 (Fla.1973).

      . National Airlines, Inc. v. Edwards, 336 So.2d 545, 547 (Fla.1976) (England, J., dissenting).


author: HATCHETT, Justice.

text:
    Raymond Lynwood GRAHAM, Appellant, v. STATE of Florida, Appellee.
    No. 52135.
    Supreme Court of Florida.
    Sept. 14, 1978.
    Ben W. Thompson, Jr., Tallahassee, for appellant.

      Robert L. Shevin, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., Tallahassee, for appellee.
   HATCHETT, Justice.

In this case, we review an order of the county court upholding the constitutionality of Section 370.13(2)(f), Florida Statutes (1974) which makes it unlawful:

. for any person to molest any [stone crab] traps, lines, or buoys, as defined herein, belonging to another without permission of the permit holder.

Jurisdiction vests under Article V, Section 3(b)(1), Florida Constitution. We affirm in part and reverse in part.

Appellant, the captain of the “Frances R,” a shrimp boat, was charged with two violations of Section 370.13(2)(f), Florida Statutes (1974). On the day the alleged violations occurred, Captain Graham and several other shrimpers were trawling in an area six miles off the shore of Steinhatchee. The area was also being fished by crabbers, specifically, Glenn Filmon and his son, James. Both had, in preceding days, noticed the loss of several traps and reported this fact to the Marine Patrol. Consequently, two patrolmen accompanied the Filmons to the fishing area where the traps were located. Upon entering the area, the officers observed the “Frances R” in the vicinity of the traps. As they approached the boat, they also observed two traps, belonging to the Filmons, in appellant’s nets. The boat was ordered to stop, at which time the traps and buoys were thrown overboard. One officer observed crew members cutting the lines from the traps.

Appellant was convicted, placed on two years probation, and fined $500.

Seven points are raised on appeal: (1) whether Section 370.13(2)(f), Florida Statutes (1974) is unconstitutionally vague because it fails to inform the average citizen of the conduct proscribed; (2) whether the statute is overbroad because it proscribes essentially innocent conduct; (3) whether the statute is unconstitutional as applied to appellant; (4) whether the statute provides for cruel and unusual punishment; (5) whether the trial judge erred in denying appellant’s motion to suppress; (6) whether the trial judge erred in denying appellant’s motion for new trial based on juror misconduct; and (7) whether the trial judge erred in sentencing appellant without benefit of a presentence investigation report.

Appellant initially challenges the statute on the ground that it is impermissi-bly vague, arguing that the term “molest” is so indefinite that men of common intelligence must necessarily guess at its meaning and differ as to its application. State v. Wershow, 343 So.2d 605 (Fla.1977). We disagree. Generally, words in a statute should be given their plain and ordinary meaning. Pedersen v. Green, 105 So.2d 1 (Fla.1958), and American Bankers Life Assurance Co. of Florida v. Williams, 212 So.2d 777 (Fla. 1st DCA 1968). Webster’s Third New International Dictionary defines “molest” as interfering or meddling with a thing so as to injure or disturb it. We find this common definition sufficient to warn an average man of the conduct prohibited.

Appellant also attacks the statute on grounds of overbreadth, arguing that the statute excludes the element of criminal intent and thereby prohibits essentially innocent conduct. We need not reach this issue, because the trial judge in this case specifically narrowed the statute to acts willful or malicious in nature. The jury was so instructed.

One fatal flaw exists, however, because the trial court’s instructions included the following charge:

. and the Court charges you further that it must be done wilfully or maliciously or done through negligence of the Defendant .

While criminal responsibility may rest on acts of negligence, such negligence is generally of a higher degree than that required to establish civil liability. In Russ v. State, 140 Fla. 217, 191 So. 296 (1939), this court stated:

This Court is committed to the rule that the degree of negligence required to sustain imprisonment should be at least as high as that required for the imposition of punitive damages in a civil action. The burden of proof authorizing a recovery of exemplary or punitive damages by a plaintiff for negligence must show a gross and flagrant character, evincing reckless disregard of human life or of the safety of persons exposed to its dangerous effects; or that entire want of care which would raise the presumption of indifference to consequences; or such wantonness or recklessness or grossly careless disregard of the safety and welfare of the public, or that reckless indifference to the rights of others, which is equivalent to an intentional violation of them. [At 191 So. 298.]

See also, State v. Greene, 348 So.2d 3 (Fla.1977), and State v. Winters, 346 So.2d 991 (Fla.1977).

Since we are unable to determine whether or not appellant’s conviction was predicated on a finding of willfulness or negligence, we must reverse and remand for new trial.

It is so ordered.

ENGLAND, C. J., and ADKINS, BOYD, OVERTON, SUNDBERG and ALDERMAN, JJ., concur.

       We note that Chapter 77-142, § 1, Laws of Florida, amends § 370.13(2)(f) as follows:
      It is unlawful for any person to willfully molest any traps, lines, or buoys, as defined herein . . [emphasis added]