author: TORBERT, Chief Justice.

text:
    John B. MARTIN, Jr., et al. v. James Barry MANSELL et al.
    SC 2688.
    Supreme Court of Alabama.
    April 21, 1978.

      Robert W. Walker, Florence, for appellants.
    Roger H. Bedford, of Bedford & Bedford, Russellville, for appellees.
   TORBERT, Chief Justice.

This case involves a boundary line dispute between coterminous landowners, appellants John Martin and Sue Martin (plaintiffs below), and appellees James Mansell, Gretchen Mansell, Jack Mansell, Harrol Hammack, and Sue Hammack (defendants below). A trial was held and the jury returned a verdict in favor of the defendants. The trial court then fixed the boundary lines according to an agreement entered into by the parties at the conclusion of the evidence. The Martins appealed. We affirm.

In 1959, Harrol Hammack purchased a tract of land in Franklin County, Alabama. Hammack conveyed parcels of this property in 1964 to John Barney Mansell, who is not a party to this action, retaining a portion of the tract for himself and his wife, Sue Hammack. Mr. Mansell thereafter conveyed his property to defendants James Mansell and Gretchen Mansell in 1971. The remaining defendant, Jack Mansell, acquired his part of the property by deed in 1972.

The defendants’ land lies to the west and north of property purchased by the Martins in 1973. A surveyor was employed by the Martins in 1974 to mark the boundary lines of their property according to the government survey lines. They then fenced and blazed trees along these surveyed lines.

The boundary lines as marked by the surveyor did not correspond with fences which, according to testimony at trial, were in existence on the property at the time of the Martins’ purchase in 1973 and which were also in existence at the time of Ham-mack’s purchase in 1959. The defendants claimed that these fences, which are within the surveyed boundaries of the Martins’ property, have been recognized for many years as the correct property lines. However, the deeds of both Hammack and the Martins describe the property on subsec-tional lines without any overlapping in the legal descriptions contained in the several deeds. Therefore, the Martins argue that the correct lines were the section lines as marked by the surveyor according to the record titles. Litigation sought to establish the correct boundary lines between the properties in question.

The Martins first contend that the trial court committed error in overruling their motion for new trial on the grounds that the verdict of the jury is unsupported by the evidence in the case and the law of Alabama. They point out that the Ham-macks are the only defendants with a deed describing any portion of the disputed property that has been of record for ten years. The remaining defendants’ deeds contain descriptions according to subsection lines without any mention of the portion of land in controversy in this case. This fact, according to the Martins, precludes these other defendants from “tacking” the periods of adverse possession by their predecessors in title for the purpose of effecting title to the disputed land by adverse possession even though all defendants were put in possession of their properties up to the fences by their predecessors in title. We do not agree.

Justice Jones, writing for a majority of this court, recently restated the rule on tacking in adverse possession cases in Watson v. Price, 356 So.2d 625 (Ala.1978), a decision which had not been announced when the present case was submitted, but is now dispositive of the above stated issues raised by the Martins. Relying principally upon former decisions of this court in Carpenter v. Huffman, 294 Ala. 189, 314 So.2d 65 (1975), and Graham v. Hawkins, 281 Ala. 288, 202 So.2d 74 (1967), Justice Jones summarized the tacking principle in the following manner:

“For the purpose of effecting title by adverse possession, where all the traditional elements are present, tacking of periods of possession by successive possessors is permitted against the co-terminous owner seeking to defeat such title, unless there is a finding, supported by the evidence, that the claimant’s predecessor in title did not intend to convey the disputed strip. We hold that this rule should apply even though the conveying instrument contains no legal description of the property in question, and irrespective of the period for which the property was possessed by the present claimant’s predecessor in title."

Id. at 627 (emphasis added).

The Martins secondly maintain that the burden of proof was upon Harrol and Sue Hammack to establish title by adverse possession to their portion of the disputed property and that they failed to meet this burden. Again we disagree.

“If a coterminous landowner holds actual possession of a disputed strip under a claim of right openly and exclusively for a continuous period of ten years, believing that he is holding to the true line, he thereby acquires title up to that line, even though the belief as to the correct location originated in a mistake, and it is immaterial what he might or might not have claimed had he known he was mistaken. Lay v. Phillips, 276 Ala. 273, 161 So.2d 477; McNeil v. Hadden, 261 Ala. 691, 76 So.2d 160, and cases there cited; see Treadaway v. Hamilton, 221 Ala. 479, 129 So. 55.”

Sylvest v. Stowers, 276 Ala. 695, 697-98, 166 So.2d 423, 426 (1964).

“The rule has been applied in boundary line disputes that questions of adverse possession are questions of fact properly determined by the trier of facts, and that the determination so made, where the evidence is taken orally, as here, is favored with a presumption of correctness and will not be disturbed on appeal unless plainly erroneous or manifestly unjust. Butts v. Lancaster, 279 Ala. 589, 188 So.2d 548; Morgan v. Larde [282 Ala. 426, 212 So.2d 594], supra; Barnett v. Millis [286 Ala. 681, 246 So.2d 78], supra.”

Casey v. Keeney, 290 Ala. 94, 98, 274 So.2d 68, 71 (1973).

We have carefully reviewed the record on appeal in light of the foregoing principles and we cannot conclude that the jury erred in finding that the Hammacks established by the evidence that they had acquired title to the property in question by adverse possession. Mr. Hammack testified that he had openly claimed and maintained actual possession of this land up to the fences since 1959. He further stated that he cut timber off the property and hunted on it. Several other witnesses testified that the fences had been generally accepted as the correct boundary lines to the property for many years prior to the Martins’ survey. Clearly there was testimony to support the jury’s determination in regard to the Hammacks’ possession of the land in dispute and we therefore refuse to substitute our judgment for that of the jury.

The Martins’ final contention is that the trial court erred by overruling their motion for new trial based upon the failure of a juror who sat on the venire to affirmatively respond to a question asked by counsel for the Martins on voir dire, that question being whether any of the defense attorneys had ever been retained by a member of the venire or by a member of his or her family. On motion for new trial, a juror admitted that her husband had been represented by one of the defense attorneys in a personal injury action seven years ago, a fact which, according to the Martins, could have adversely affected the impartiality of the juror and resulted in prejudice to their case.

We agree with the Martins that counsel and parties are entitled to true and honest answers from prospective jurors to enable them to exercise their discretion wisely in the use of peremptory strikes and that when jurors fail to answer questions correctly, counsel and parties are denied the exercise of that right. Sanders v. Scarvey, 284 Ala. 215, 224 So.2d 247 (1969); Morris v. Zac Smith Stationery Company, 274 Ala. 467, 149 So.2d 810 (1963); Leach v. State, 31 Ala.App. 390, 18 So.2d 285, cert. denied, 245 Ala. 539, 18 So.2d 289 (1944). However we find that the trial court did not commit reversible error on this point.

In Freeman v. Hall, 286 Ala. 161, 166-67, 238 So.2d 330, 335-36 (1970), this court stated the following:

“Neither Sanders v. Scarvey, Leach, nor the original opinion in the instant case, is authority for the proposition that on voir dire any failure of any prospective juror to respond properly to any question regardless of the excuse or circumstances automatically entitles a party to a new trial or reversal of the cause on appeal.
“We hold that the proper inquiry for the trial court on motion for new trial, grounded on allegedly improper responses or lack of responses by prospective jurors on voir dire, is whether this has resulted in probable prejudice to the movant. .
“Although the factors upon which the trial court’s determination of prejudice is made must necessarily vary from case to case some of the factors which other courts have considered pertinent are: temporal remoteness of the matter inquired about, the ambiguity of the question propounded, the prospective juror’s inadvertence or willfulness in falsifying or failing to answer, the failure of the juror to recollect, and the materiality of the matter inquired about.
“We are mindful of the heavy responsibility placed on the trial court to maintain the statutory right which parties have to a full and truthful disclosure by jurors on voir dire. However, we must also be aware of inadvertent concealment and failure to recollect on the part of prospective jurors.
“To re-emphasize, we say that we will review the trial court’s ruling on motion for new trial predicated on jurors’ improper answers to (or failure to answer) questions propounded on voir dire only for abuse of discretion in its determination as to probable prejudice.”

From our review of the record in this case, we cannot conclude that the trial judge, who was present during the voir dire examination and the hearing on the motion for new trial and had a chance to hear the questions and observe the attorneys and the juror, abused bis discretion in denying the Martins’ motion for new trial.

For the foregoing reasons, the trial court is hereby affirmed.

AFFIRMED.

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

       The attorney who represented the Martins on appeal did not participate in the pre-trial proceedings below.


source: Caselaw Access Project

author: EMBRY, Justice.

license: Public Domain

text:
    LIBERTY MUTUAL INSURANCE COMPANY, a corp. v. BOB ROBERTS AND COMPANY, INC.
    SC 2777.
    Supreme Court of Alabama.
    April 21, 1978.
    F. Michael Haney and James C. Stiven-der, of Inzer, Suttle, Swann & Stivender, Gadsden, for appellant.
    James F. Hinton, Gadsden, for appellee.
   EMBRY, Justice.

Appeal by Liberty Mutual Insurance Company from a declaratory judgment which requires it to afford to Bob Roberts and Company, Inc., coverage under a contract of comprehensive general liability insurance. We reverse and render.

The facts in the action are not disputed. Those pertinent to the appeal provide this chronology: In 1970, Roberts entered into a subcontract with Dawson Construction Company, a general contractor, for the preparation and installation of certain exterior aggregate panels on a dormitory under construction at Jacksonville State University. Shortly after completion of the construction work in 1971, notice was given to Dawson by the University that the dormitory was leaking. Roberts received notice of the leakage from Dawson on 19 April 1972. In 1973, the University filed suit against Dawson and the architect as a consequence of the leaks. See United States Fidelity and Guaranty Co. v. Jacksonville State University, 357 So.2d 952 (Ala. 1978), affirming jury verdicts against Dawson for $165,-842.95 and against the architectural firm for $89,300.05. On 17 February 1975, Dawson filed a third party complaint in that action against Roberts, claiming indemnity from Roberts because the damages sought from Dawson by the University resulted from defects in the panels prepared and installed by Roberts. The third party action was later severed from the main suit. Rule 14(a), ARCP.

In December 1975, a meeting of the various parties was held and the University presented a report from the Law Engineering Testing Company indicating the aggregate panels were defective as a result of improper or negligent preparation or defects in the cement. During the spring of 1976, Roberts received information suggesting there was a chemical deficiency in the “Boncoat” (trade name of an ingredient) used in the panels made a part of the construction of the dormitory, and a report of a ceramics engineer which indicated the materials used were not properly prepared.

Only after receiving this information did Roberts, in a letter dated 18 June 1976, give its first notice to Liberty Mutual of the occurrence and of the third party action filed by Dawson. The letter requested coverage under a Comprehensive General Liability Policy issued by Liberty Mutual to Roberts, as the named insured, which had been in force for several years. After the representatives of the parties discussed the claim, Liberty Mutual denied coverage because Roberts did not comply with the duties required of the insured under the terms of the policy.

The required duties are set forth in a portion of the policy which reads:

“4 Insured’s Duties in the Event of Occurrence, Claim or Suit
(a) In the event of an occurrence, written notice containing particulars sufficient to identify the insured and also reasonably obtainable information with respect to the time, place and circumstances thereof, and the names and addresses of the injured and of available witnesses, shall be given by or for the insured to the company or any of its authorized agents as soon as practicable.
(b) If claim is made or suit is brought against the insured, the insured shall immediately forward to the company every demand, notice, summons or other process received by him or his representative.”

The policy further provides:

“5 Action Against Company. No action shall lie against the company unless, as a condition precedent thereto, there shall have been full compliance with all of the terms of this policy * * * 11

It was, and is, Liberty Mutual’s position that coverage should not be afforded to Roberts because the notice given to Liberty Mutual on 18 June 1976 was over four years after Dawson notified Roberts of the leakage and sixteen months after the third party action was filed by Dawson, therefore Roberts breached the conditions precedent to coverage.

After Liberty Mutual denied coverage, Roberts filed this action for declaratory judgment seeking a declaration that Liberty Mutual was required to afford Roberts coverage under the policy for the third party claim of Dawson. Liberty Mutual answered generally, reasserting its reason for denying coverage to Roberts.

After trial, without a jury, the trial court decreed:

“ORDERED, ADJUDGED and DECREED that the Plaintiff in this cause, Bob Roberts & Company, Inc., is entitled to the relief sought in its petition for declaratory judgment;
“IT IS THEREFORE ORDERED, ADJUDGED and DECREED that Bob Roberts & Company, Inc., has not violated the terms and conditions of the contract of insurance in this case, because of the latent and unknown chemical substances which have caused the injury and damage, and the Court finds that under the evidence in the case the notice was reasonably given by Bob Roberts & Company, Inc., to the Defendant, Liberty Mutual Insurance Company, A Corporation, within the terms of the policy contract and;
“IT IS THEREFORE ORDERED, ADJUDGED and DECREED that the Defendant, Liberty Mutual Insurance Company, A Corporation, shall afford to the Plaintiff, Bob Roberts & Company, Inc., the rights and privileges to which it is entitled under the terms of the contract of insurance.”

In this appeal, Liberty Mutual contends the trial court erred in granting declaratory relief in favor of Roberts’ because the evidence shows Roberts failed to comply with conditions precedent in the policy requiring notice of an occurrence “as soon as practicable”; and when suit is brought, forwarding every demand, notice, summon or other process received, “immediately.” We agree with both assertions.

We focus primarily on the insured’s duties, under the policy, when suit is brought against it. On this point, we perceive the dispositive question as: whether Roberts’ notice to Liberty Mutual of the third party action filed against it by Dawson was timely as required by the terms of the policy? We answer in the negative.

Our conclusion is based on that part of the policy set forth above which says:

“If claim is made or suit is brought against the insured, the insured shall immediately forward to the company every demand, notice, summons or other process received by him or his representative.” (emphasis added)

The term “immediately,” as used in the foregoing, has been construed by this court to mean notice must be given “within a reasonable time” in view of all the facts and circumstances of the case. See Southern Guaranty Insurance Company v. Thomas, 334 So.2d 879 (Ala.1976), and the cases cited therein. See also Aetna Insurance Co. v. Spring Lake, Inc., 350 So.2d 397 (Ala.1977), and B & M Homes, Inc. v. American Liberty Insurance Co., 356 So.2d 1195 (Ala.1978).

This construction raises the following issue: whether notice of the third party action was given within a reasonable time. No one would challenge the fact that there was a substantial delay between the time Roberts • was served with the third party complaint and Roberts forwarding to Liberty Mutual a copy of the summons and third party complaint. However, this does not end our analysis, we must proceed to examine the facts and circumstances to see if the delay was reasonable.

In Southern Guaranty, Justice Blood-worth, writing for the court, said:

“ * * * under Alabama law there are only two factors to be considered in determining the reasonableness of a delay in giving notice to an insurer: the length of the delay and the reasons for the delay * * *

Length of the Delay

The evidence is undisputed on this factor. Dawson filed the third party action on 17 February 1975, and service of the summons and third party complaint was made thereafter upon Roberts. Liberty Mutual did not receive a copy of the summons and third party complaint until 18 June 1976, a delay of some sixteen months.

Reasons for the Delay

Roberts suggests the delay was reasonable because the third party action was based upon warranty and negligence and from its interpretation of the policy these two matters were specifically excluded from the coverage afforded by the policy.

We find no merit in this contention. The policy in question is a comprehensive general liability policy. It was kept in Roberts’ corporate office and we must assume there was ample opportunity to read it. The bases for the third party action against Roberts, which it submits was not covered by the policy then, are the same bases upon which Roberts now seeks coverage. It was Roberts’ interpretation that the policy did not afford coverage in the first instance. We cannot hold that an insurer be disadvantaged because an insured concludes the policy does not provide coverage, then later claims coverage under the policy and would excuse its delay in forwarding suit papers on a prior different interpretation. We hold this reason insufficient to justify a delay of sixteen months.

In brief, Roberts further intimates the delay was reasonable because it was not award of any liability for the leakage until the report from the ceramics engineer was received in the spring of 1976. We find this excuse equally unwarranted to justify the delay. It was not Roberts’ duty, under the terms of the policy, to wait and find out if it was liable for the leakage; it was Roberts’ duty to forward to Liberty Mutual, the insurer, “ * * * every * * * summons or other process received * * *.”

Under the standards announced in Southern Guaranty, we find the delay in this case unreasonable; and hold Roberts’ notice to Liberty Mutual of the third party action filed by Dawson did' not comply with the terms of the policy; therefore, Roberts released Liberty Mutual from its obligations of coverage under the policy.

Finally, Roberts urges this court to review and reinstate the old rule requiring the insurer to show some injury to it by the insured’s failure to report a claim. In Southern Guaranty, we were confronted with the same argument. There we quoted from American Fire & Casualty Co. v. Tankersley, 270 Ala. 126, 116 So.2d 579 (1959). We think the passage quoted there is an appropriate response here:

“ ‘The rule established • by the great weight of authority is that where, as in the policy involved in this case, notice of the accident and forwarding of any demand, notice, summons or other process are specifically made a condition precedent to any action against the insurer, the failure to give a reasonably timely notice of the accident or of the receipt of any demand, notice, summons or other process will release the insurer from the obligations imposed by the contract, although no prejudice may have resulted . .’ [Emphasis supplied.]”

Holding as we do, there is no need to address the contentions of the parties with reference to whether or not there had been an occurrence that put Roberts under an immediate obligation to give notice of that occurrence to Liberty Mutual.

REVERSED AND RENDERED.

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


author: FAULKNER, Justice.

text:
    James A. MAPSON v. MONTGOMERY WHITE TRUCKS, INC.
    SC 2820.
    Supreme Court of Alabama.
    April 21, 1978.

      Lanny S. Vines and Lloyd W. Gathings of Emond & Vines, Birmingham, for appellant.
    Thomas R. Elliott, Jr. of London, Yancey, Clark & Allen, Birmingham, for appellee.
   FAULKNER, Justice.

This is an appeal from an order granting summary judgment in favor of Mapson’s employer on the basis of the employer’s immunity under Alabama’s Workmen’s Compensation Act. We affirm.

Under the stipulated facts, Montgomery White Trucks, Inc. sold a truck to J. R. Rutledge. Several months later, the truck was returned for repairs under warranty. Mapson, as an'employee of Montgomery White, and “pursuant to his employment with said employer” was repairing the truck when it rolled over him, resulting in serious permanent injuries. Mapson collected workmen’s compensation benefits.

Mapson brought suit against White Truck Manufacturing, Ltd., White Motor Corp., Montgomery White Trucks, Inc., and J. R. Rutledge, et al. The employer, Montgomery White, was granted summary judgment, and the trial court entered final judgment under ARCP 54(b) as to that defendant.

Mapson, alleging that the accident resulted from a defective double-reduction switch, attempts recovery under the implied warranty of merchantability. Tit. 7A, §§ 2-314 and 2-318, Code of Ala. 1940 (1966). He strenuously urges adoption of the “dual-capacity doctrine.” As explained by Professor Larson,

“Under this doctrine, an employer normally shielded from tort liability by the exclusive remedy principle may become liable in tort to his own employee if he occupies, in addition to his capacity as employer, a second capacity that confers on him obligations independent of those imposed on him as employer.” A. Larson, 2A The Law of Workmen’s Compensation, § 72.80, p. 14-112 (1976).

Mapson contends that in the present situation, Montgomery White wears two hats: (1) that of employer and (2) that of a seller of goods to the public. It is in Montgomery White’s capacity as a seller, thus subjecting it to the implied warranty of merchantability, that it is being sued.

This factual situation, however, does not afford us an opportunity to consider the merits of the “dual-capacity doctrine.” Montgomery White did not undertake any special independent relationship toward Mapson other than that of employer-employee. Rather, it is from the very nature of Mapson’s employment, which of necessity includes working on defective and damaged trucks, that the accident resulted. Cf. Kelly, “Workmen’s Compensation and Employer Suability: The Dual-Capacity Doctrine,” 5 St. Mary’s L.J. 818, 829 (1974).

It is to an employment-related accident that the Legislature has spoken, cloaking the employer with civil immunity. Tit, 26, § 272, Code of Ala. 1940 (Recomp. 1958). Accord, Paul Krebs & Associates v. Matthews & Fritts Construction Co., Inc., 356 So.2d 638 (Ala.Sup.Ct.1978); Gunter v. United States Fidelity & Guaranty Co., 340 So.2d 749 (Ala.Sup.Ct.1976); Sherman Concrete Pipe Machinery, Inc. v. Gadsden Concrete & Metal Pipe Co., Inc., 335 So.2d 125 (Ala.Sup.Co.1976); Hubbard v. Cutis, 331 So.2d 632 (Ala.Sup.Ct.1976).

Because Tit. 26, § 272 bars Mapson’s recovery against this defendant, we pretermit discussion of the applicability of third-party beneficiary status and implied warranty of merchantability.

AFFIRMED.

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


text:
    Charlie WYNN, Jr. v. Paralee Buchanan SMITH et al.
    77-27.
    Supreme Court of Alabama.
    April 21, 1978.
    Garolyn D. Gaines of Chestnut, Sanders & Sanders, Selma, for appellant.
    W. W. Dinning of Lloyd, Dinning & Boggs, Demopolis, for appellees.
   FAULKNER, Justice.

Wynn appeals from an order of the Circuit Court of Marengo County denying his motion to set aside a default judgment for sale and division. We affirm.

On March 23, 1976, a Bill for Sale and Division was filed along with an affidavit for obtaining service on unknown defendants by publication. The clerk issued an order of publication of the following defendants: Heirs of Julia Simmons, deceased; Heirs of Mary Simmons, deceased; and Heirs of Carrie Simmons, deceased. Additional defendants were later added by amendment and personally served, but Wynn was served only by publication. On October 26 application for entry of default was made, and a guardian ad litem was appointed to represent the interests of the unknown defendants. After two hearings, a decree ordering sale and division was entered. The sale was advertised for four weeks, and the property was sold in two parcels on March 25, 1977. The sale was approved on April 11 and a final decree and order of distribution entered on June 3.

On July 25, Wynn filed a motion to vacate the judgment on the ground of fraud or mistake of the appellees. His contentions are two-fold: (1) that the affidavit for obtaining service on unknown defendants is inadequate because of failure to allege a diligent inquiry, and (2) that appellees were not diligent in ascertaining the names of additional heirs because they could have learned Wynn’s name and address from an heir who resided on the property.

At the hearing on the ARCP 60(b) motion, the original affidavit for publication was missing from the file. Wynn contends that the original affidavit contained no allegation of diligent inquiry. However, the record on appeal contains a document purporting to be a facsimile of the original affidavit. This facsimile does include an allegation of diligent inquiry.

AFFIRMED.

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


author: BLOODWORTH, Justice.

text:
    Charles W. MADDOX, Jr., et al. v. DRUID CITY HOSPITAL BOARD et al.
    77-57.
    Supreme Court of Alabama.
    April 21, 1978.

      R. Ben Hogan, III, Birmingham, for appellants.
    John A. Owens of Phelps, Owens, Jenkins & Gibson, Tuscaloosa, for appellee, Parke-Davis & Co., Inc.
    McCoy Davidson, Tuscaloosa, for appel-lee, Druid City Hospital Bd.
   BLOODWORTH, Justice.

Plaintiff, Charles W. Maddox, Jr., a minor suing by his father as next friend, appeals from the grant of a motion for summary judgment in favor of defendant, Parke-Davis & Company, Inc. and from a denial of plaintiffs Rule 60(b)(1) motion. We affirm.

In August 1976, plaintiff was injured while hospitalized when he was given an overdose of a certain drug by his nurse. Plaintiff brought a suit for damages charging negligence against defendant Druid City Hospital Board, which employed the nurse, and defendant Parke-Davis, which had allegedly improperly labeled the drug. Plaintiff’s father, in a separate count, sought damages for medical expenses and loss of his child’s services.

On August 16, 1977, attorneys for the minor plaintiff and his father, as well as attorneys for the Hospital, appeared in Court pursuant to a settlement agreement between them. Plaintiff’s father’s case against the Hospital was dismissed with prejudice, and minor plaintiff’s jury demand was withdrawn. Evidence was taken, and the trial judge entered a judgment against defendant Hospital and in favor of the minor plaintiff pursuant to a pro tanto settlement. The Court found, inter alia, that plaintiff was entitled to recover $4,500, one half the court costs accrued to date, and attorneys’ fees from the hospital. Moreover, the judgment entry provided that issues as to defendant Parke-Davis, were to be preserved. Thereafter, defendant, Hospital, paid the money to the Clerk of the Court, and plaintiff satisfied the judgment.

On September 8, 1977, Parke-Davis filed a motion for summary judgment, alleging that the effect of the judgment entry for minor plaintiff and the satisfaction of that judgment extinguished any further claims against it. On October 3, 1977, plaintiff filed a Rule 60(b)(1) motion, asking the Court to set aside the judgment against defendant Hospital. On October 12, 1977, the trial judge granted Parke-Davis’ motion for summary judgment and denied plaintiff’s Rule 60(b)(1) motion. Hence this appeal.

Plaintiff contends, on appeal, that the trial court erred in granting summary judgment against him and in favor of Parke-Da-vis. We cannot agree.

It is well settled in Alabama that while a party is entitled to full compensation for his injuries, there can be only one satisfaction therefor. Williams v. Colquett, 272 Ala. 577, 133 So.2d 364 (1961). If a plaintiff recovers judgment against one joint tort-feasor and obtains satisfaction of that judgment, this operates as a discharge of the other joint tort-feasor. Id.; Huey v. Dykes, 203 Ala. 231, 82 So. 481 (1919).

Plaintiff contends, however, that this Court should recognize an exception to this rule in favor of minors, in view of this Court’s policy of protecting minors. We do not think so. If plaintiff’s judgment had not been satisfied, the other joint tort-fea-sor, Parke-Davis, would not have been discharged. Plaintiff further contends that such an absolute rule discourages settlements. Again, we cannot agree. Alabama courts will continue to look with favor upon settlements. Where a plaintiff reaches a settlement against one joint tort-feasor, his cause of action against the other joint tort-feasor will continue to exist so long as plaintiff does not satisfy the judgment. Likewise, it is the right of the injured party to accept satisfaction in part from one tort-feasor, release him, and proceed against the other. Such release operates in favor of such other only as satisfaction pro tanto. Steenhuis v. Holland, 217 Ala. 105, 115 So. 2 (1927).

Plaintiff finally contends that the trial court erred in refusing to grant his Rule 60(b)(1) motion. We cannot agree. The grant or refusal of a motion under Rule 60(b)(1) is a matter within the discretion of the court subject to review only upon an abuse thereof. Whitehead v. Georgia Pacific Corp., 352 So.2d 1342 (Ala.1977). Moreover, “[I]n most cases mere ignorance of the law on the part of counsel has not been looked upon as ‘excusable neglect,’ within Rule 60(b)(1).” Moore’s Federal Practice ¶ 60.22[2], pp. 252-53. We cannot say that the trial court abused its discretion in this case when it merely followed what is clearly the majority rule on this issue.

For the foregoing reasons, therefore, this case is due to be affirmed.

AFFIRMED.

FAULKNER, JONES, ALMON and EM-BRY, JJ., concur.


text:
    John C. JONES v. LIBERTY NATIONAL LIFE INSURANCE COMPANY.
    77-135.
    Supreme Court of Alabama.
    April 21, 1978.
    Wayne Johnson of Faulk & Johnson, Phe-nix City, for appellant.
    Sydney S. Smith of Smith & Smith, Phe-nix City, for appellee.
   EMBRY, Justice.

This appeal is by John C. Jones from judgment entered on a directed verdict in favor of Liberty National Life Insurance Company in Jones’ action seeking additional indemnity under a Life insurance policy on account of the death of his wife allegedly resulting, directly and independently of all other causes, from bodily injury effected solely through external, violent and accidental means as evidenced by a visible wound or contusion on the exterior of the body.

The issue is whether death from cerebral anoxia and edema secondary to total airway obstruction due to aspirated vomitus as opposed to this condition resulting from food in the process of being eaten was the cause of death through external rather than internal means.

The policy under which Mrs. Jones was insured for additional indemnity provided for the payment of that additional indemnity for death .resulting from accidental means in the event:

“ * * * death * * * resulted, directly and independently from all.other causes, from bodily injury effected solely through external, violent and accidental means as evidenced by a visible wound or contusion on the exterior of the body * * * >1

A fair summary of the evidence pertinent to this appeal establishes that decedent was found alone and dead in a motel room in a supine position with the chain lock on the inside of the door engaged. An autopsy revealed that death resulted from total obstruction of the airway (trachea) from aspirated vomitus or food matter. The matter regurgitated was gastric contents. There was no evidence that death resulted from choking on or aspiration of food as it was being eaten or ingested.

The crucial question of law under the evidence is whether death occurring in the manner shown by the evidence resulted from external means. If not, then whether it was accidental, violent, and evidenced by a visible wound or contusion on the exterior of body is immaterial. O’Bar v. Southern Life & Health Ins. Co., 232 Ala. 459, 168 So. 580 (1936). The precise question of law posed by the facts in this case has not been considered by the appellate courts of Alabama so far as we can determine.

Where, as here, the language of the restrictive coverage is clear and unambiguous the rule of construction that favors the insured has no application and the policy will be enforced according to its terms as written. Green v. Merrill, 293 Ala. 628, 308 So.2d 702 (1975).

Undisputed medical evidence established the following:

“Q. Now, in your report, sir, you said that the examination of her stomach, you compared the contents of her stomach and the contents of the material that was blocking the trachea and that they seemed identical.
“A. Correct.
“Q. So I am asking you, does that mean that the contents that were in the trachea came from the stomach?
“A. That is my assumption.
“Q. So it was going out instead of coming in?
“A. Yes. This is why I felt reasonably confident in making the statement that this was vomitus aspirated rather than aspirated food. If I thought she had aspirated food that had been accidentally sucked into the airway during the process of eating, then I would have said ‘food accidentally aspirated during eating,’ or something like that.
* * * * * *
“A. The thing that differentiates between gastric contents and food is that in the stomach there is a great deal of mucus and mucin that is produced, mixed with the food; and it goes on through the digestive absorptive process the food in the process of being chewed at the mouth only has saliva mixed with it. Saliva is usually very watery and has very little mucus with it. This did have a great deal of mucus and was similar in every respect to the material in the stomach.
“The presence of mucus, the greenish fluid, is due to bile. Bile is refluxed into the stomach to assist in solution of fat material prior to absorption, so this accounts for the greenish color that was present in both. And also the fact that it was green indicates that you have had bile come down from the gall bladder down into the duodenum back into the stomach, and it has had to come all the way up. There is no other way for bile to get into the trachea except to be carried up through with the gastric contents, which further establishes the nature of the material as vomitus rather than incompletely chewed food, in which case it would not be a green color.”

The better reasoned authorities from other jurisdictions conclude that death results from external means if the result obtained from ingestion and from internal means if it results from regurgitation: food in the process of being swallowed distinguished from regurgitated matter that had been in the digestive tract.

For example, in Strowmatt v. Volunteer State Life Insurance Co., 176 So.2d 563 (Fla.App.1965), a Florida District Court of Appeals, in holding death caused by asphyxiation due to aspirated vomitus in the trachea was not effected through external means, said:

“The decision in this case depends on an interpretation of the words ‘external means.’ It is recognized that death caused by choking on food in an attempt to swallow same which accidentally passes into the lungs is the regult of external, violent and accidental means. However, aspirated vomitus matter is not food. It may have been food at one time, but having entered the stomach it is so changed that it can no longer be classified in that category. The substance which caused the asphyxiation was inside the body and on the way out during the vomiting process, and therefore did not constitute ‘external means’ of death of the deceased.”

Similarly, a California Court of Appeals in Spott v. Equitable Life Insurance Co., 209 Cal.App.2d 229, 25 Cal.Rptr. 782 (1962), denying recovery for additional indemnity under a life insurance policy because of its conclusion the insured’s death from asphyxiation due to bronchial aspiration of regurgitated gastric contents was not effected by external means, commented:

“A different result might well be reached had food, in the process of being swallowed, lodged in the glottis and caused strangulation. There it could be argued that the food was an external element, still in the course of entry into the body. Here, however, the regurgitated material had been in the digestive tract for some time. In the digestive process, it had lost its identity as either solid or liquid food. It had become ‘internal’ quite as much as substances, far earlier consumed, which had been transmuted by bodily process into flesh or bone.”

Finally, in McCallum v. Mutual Life Insurance Co. of New York, 175 F.Supp. 3 (D.C.Va.1959), the district court, holding an insured’s death as a result of aspiration of gastric conténts into the trachea was not from an external means, reasoned:

“The ultimate question is the distinction, if any, between choking on food as it is being ingested, and choking on food reduced to matter as it is regurgitated from the stomach.
* * * * * *
“ * * * The substance, as contained within the stomach, was inside the body and on its way outside during the vomiting process. This, in no sense, constitutes an ‘external means.’ ”

For a discussion of this question see 98 A.L.R.2d 318.

We hold, as a matter of law under the evidence in this case, the death of Mrs. Jones resulted from internal means and the trial court, therefore, did not err in directing a verdict for defendant Liberty National Life Insurance Company.

AFFIRMED.

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


text:
    Lucy E. TAYLOR and Newman O. Taylor v. Leonard GODSEY, etc., et al.
    77-275.
    Supreme Court of Alabama.
    April 21, 1978.
    James L. Beech, Jr., of Tweedy, Jackson & Beech, Jasper, for appellants.
    Walter Joe James, Jr., of James, Lowe & McNamee, Haleyville, for appellees.
   BLOODWORTH, Justice.

Appellants, Newman 0. Taylor and his wife, Lucy C. Taylor, appeal from a judgment setting aside a deed made to them by Ellafair Hamby, Mrs. Taylor’s sister. We reverse and remand.

On August 1, 1972, Ellafair Hamby executed a warranty deed to appellants conveying a 55-acre home place. On that same date, she executed a will devising an 80-acre tract of land to Mrs. Trannie Donaldson, a sister to Mrs. Taylor and Mrs. Ham-by. (There is testimony to the effect that Mrs. Hamby wished to thus divide her lands between her only two sisters.) The two instruments were executed and acknowledged in the office of Mrs. Hamby’s attorney. On September 16, 1972, a corrective deed was executed to change the middle initial of Mrs. Taylor from “E” to “C.” Once again, the deed was acknowledged. There was testimony to the effect that it was Mrs. Hamby herself who noticed the error. On September 10, 1973, the deed was again corrected and acknowledged to add some property acquired by adverse possession.

Two years later, on September 15, 1975, Ellafair Hamby brought suit against appellants, seeking to have the deeds set aside. The case was heard ore tenus on July 22, 1976, and taken under advisement. While the ease was under consideration, Mrs. Hamby died, and Leonard J. Godsey and Sidney J. Donaldson, co-executors of her estate, were substituted as parties plaintiff. Subsequently, on May 16, 1977, the trial court entered its order, cancelling the three deeds without making any express findings. After motion for new trial was overruled, this appeal ensued.

At trial Mrs. Hamby advanced three theories to support cancellation: (1) lack of consideration; (2) undue influence; and (3) fraud. We shall treat these theories seri-atim.

As to Mrs. Hamby’s initial theory, lack of consideration for the deeds, it is well settled that a deed is valid and operative between the parties and their privies, whether it is founded upon a consideration or not. Ingram v. Horn, 294 Ala. 353, 317 So.2d 485 (1975). Thus, that theory is without merit.

As to the second theory advanced at trial, undue influence, it is unsupported by the evidence.

“It is well established that what constitutes undue influence to procure a deed depends on the facts and circumstances of each case. Orton v. Gay, 285 Ala. 270, 231 So.2d 305 (1970). However, undue influence can generally be defined as influence which dominates the grantor’s will and coerces it to serve the will of another. Wyatt v. Riley, 292 Ala. 277, 293 So.2d 288 (1974).
“When the parties stand in a confidential relationship and the evidence tends to show that the beneficiary is the dominant party, the law raises a presumption of undue influence and places on the beneficiary the burden to repel the presumption when the transaction is assailed. Wolfe v. Thompson, 285 Ala. 745, 235 So.2d 878 (1970) . . .
“When no presumption is raised, the burden to prove undue influence is on the one seeking to set aside the deed. Wyatt.”

Terry v. Terry, 336 So.2d 159 (Ala.1976).

The fact of the mere relationship alone existing between sisters does not of itself create a confidential relationship. Cf. Abrams v. Abrams, 225 Ala. 622, 144 So. 828 (1932). Thus, the burden of proof was upon the grantor, Mrs. Hamby, to prove undue influence.

The evidence adduced at trial simply fails to meet that burden. We have carefully read all the pertinent testimony on the issue. The testimony by Mrs. Hamby is to the effect that neither Mr. nor Mrs. Taylor ever asked her for the property. While it was shown that Mrs. Hamby was taking a number of medicines for various maladies at the time the deeds were made, testimony by her attorney makes it clear that' she seemed alert and healthy at the time the deeds were signed. In fact, Mrs. Hamby was sufficiently alert to suggest on two separate occasions that the deeds needed corrections made. Moreover, Mrs. Hamby herself testified that her relationship with the Taylors was somewhat strained, thereby tending to negate the notion that she could be influenced by them. Thus, we think it clear that the evidence simply fails to support the trial judge on this issue.

Mrs. Hamby lastly contended that appellants perpetrated a fraud upon her by making her think she was signing a will instead of a deed to the property. Again, we are constrained to disagree.

The general rule is that fraud, when alleged, must be clearly and satisfactorily proven. Ingram v. Horn, supra.

“ ‘If the proof is uncertain in any material respect, it will be held insufficient, though the court may feel that a great wrong has been done; the court cannot grant the relief by reason of uncertainty.’ Wooddy v. Matthews, 194 Ala. 390, 69 So. 607 (1915).”

Id.

In this case, the proof is too uncertain to sustain the trial court. The evidence shows that these deeds were signed and acknowledged on three separate occasions by a woman who had signed similar instruments in the past.

This court is committed to the proposition that an acknowledgment is entitled to great weight and can be impeached only by evidence that is clear and convincing. Ingram v. Horn, supra,

Each deed bore the inscription, “Warranty Deed,” on its face. Testimony by her attorney is to the effect that he had probably explained the significance of the transaction to her. Although Mrs. Hamby may not have read the instrument in its entirety, the law is clear in this State that when a grantor fails to read a deed (having the ability to read and understand it) and this results in the grantor’s execution of an instrument which conveys realty, which it is subsequently averred the grantor did not intend to convey, the grantor’s mistake will be attributed to his own negligence and the deed will be upheld so long as his signature was not induced, inter alia, by fraud or misrepresentation. Ingram v. Horn, supra.

Furthermore, there is no explanation in the record nor has any been advanced on appeal as to why Mrs. Hamby would execute (as she contends she intended to do) two wills at the same time, each devising different tracts of land.

It is argued by the appellees, however, that this case is an especially apt one for application of our ore tenus rule. We cannot agree. In the first place, the testimony is almost entirely without conflict in its material aspects. Moreover, the trial judge made no findings of fact. Thus, this Court is not disturbing his findings of fact.

For the foregoing reasons, therefore, this case is due to be reversed and remanded.

REVERSED AND REMANDED.

TORBERT, C. J., and FAULKNER, AL-MON and EMBRY, JJ., concur.


author: BRADLEY, Judge.

text:
    ALABAMA PRECAST PRODUCTS, INC. v. Charles A. BOSWELL, Commissioner of Revenue, State of Alabama.
    Civ. 1021.
    Court of Civil Appeals of Alabama.
    March 16, 1977.
    Rehearing Denied April 20, 1977.

      DeWayne N. Morris, Birmingham, for appellant.
    William J. Baxley, Atty. Gen. for the State of Ala., Willard W. Livingston, Counsel, Dept, of Revenue and Asst. Atty. Gen., for the State of Ala., John J. Breckenridge, Asst. Counsel, Dept, of Revenue and Asst. Atty. Gen., for the State of Ala., for appel-lee.
   BRADLEY, Judge.

Alabama Precast Products, Inc., referred to hereafter as taxpayer, appeals from a judgment of the Circuit Court of Jefferson County denying its request for writ of mandamus by which it sought a tax refund in the amount of $5,541.38 from the State Revenue Department, referred to hereafter as the State.

The facts of the case were stipulated by the parties and show that the taxpayer manufactures for sale precast channel roof slabs at its plant in Birmingham, Alabama. In 1974 taxpayer entered into a contract with Daniel Construction Company to furnish and install precast channel roof slabs of certain specifications in a building project at Graniteville, South Carolina. The roof slabs were manufactured in Alabama according to contract specifications and installed in the building under construction in South Carolina.

The taxpayer estimated the cost of making the slabs to be $138,544 and paid sales tax to the State in the amount of $5,541.38. Later South Carolina demanded sales tax on the materials used by taxpayer in the performance of its contract in South Carolina. Taxpayer paid the taxes demanded by South Carolina.

Taxpayer subsequently filed a request for a refund from Alabama on the ground that it should not have to pay sales taxes on the slabs in both states. Alabama and South Carolina do not have a reciprocity agreement whereby credit can be given to a taxpayer by one state for the payment of sales tax on building materials in another state.

The State agreed to refund $4,003.37 of the $5,541.76 paid on the premise that the sales tax was due only on the cost of raw materials used in the manufacture of the slabs. Taxpayer refused to accept anything less than the full amount of the taxes paid and filed a petition for mandamus in the Jefferson County Circuit Court.

Relying on Title 51, Section 786(2)(j), Code of Alabama 1940 (Recomp.1958) (Supp.1973), and State v. Helburn Co., 269 Ala. 164, 111 So.2d 912 (1959), the trial court said:

“There is no question that the raw materials involved here were used by the Plaintiff in the manufacturing of the roof slabs. The Plaintiff contends, however, that subsection (j) is not applicable because the materials became an ingredient of tangible personal property or products manufactured for sale. To support this contention, the Plaintiff argues that there was a ‘sale’ to another here in that the roof slabs were sold ‘installed.’
“The facts here do not support the Plaintiff’s contention. Under the evidence here, the Plaintiff had a construction subcontract to furnish and install roof slabs for a construction project. The terms of the subcontract require the Plaintiff to furnish all supervision, labor, materials, tools, equipment, supplies and incidentals necessary to perform and complete the ‘work’ specified. The specified work was to furnish and install approximately 111,900 square feet of 3V2" Precast Channel roof slabs.
“The Court is of the opinion that the requirements of Plaintiff’s subcontract with Daniel is not a ‘sale’ within the meaning of the provision of subsection (j) that excepts from the definition of ‘retail sale’, property which enters into and becomes an ingredient or component part of tangible personal property manufactured for ‘sale.’ Under the facts here, the raw materials became an ingredient or component part of tangible personal property that was used by the Plaintiff in the performance of its construction contract. The Plaintiff under these facts became the consumer of the raw materials and as such is subject to the tax.”

The writ was denied, and taxpayer appeals.

Before deciding the substantive issue presented by taxpayer, we first consider a procedural issue raised by the State in its brief. Taxpayer’s notice of appeal was filed thirty-eight days after entry of the final judgment denying the writ of mandamus. The State says that Title 7, Section 1074, Code of Alabama 1940 (Recomp.1958), requires that appeals from mandamus proceedings be filed within thirty days of the final judgment and maintains that this statute has not been superseded by the Alabama Rules of Appellate Procedure.

Title 7, Section 1074, supra, provides for an appeal as a matter of right from a final judgment in a mandamus proceeding and, as stated above, prescribes a time limit of thirty days for taking the appeal.

We are of the opinion that Section 1074 has not been superseded by the Alabama Rules of Appellate Procedure in that an appeal from a final judgment in a mandamus proceeding is still a matter of right. However, we do believe that the Alabama Rules of Appellate Procedure have replaced the time limit specified in Title 7, Section 1074 so that the time for appeal is now forty-two days rather than thirty days.

Rule 4(a)(1), ARAP, provides in part:

“Except as otherwise provided herein, in all cases in which an appeal is permitted by law as of right to the Supreme Court or to a court of appeals, the notice of appeal required by Rule 3 shall be filed with the clerk of the trial court within 42 days (6 weeks) of the date of the entry of the judgment or order appealed from.”

Rule 3, ARAP, has recently been amended to extend the time for filing a notice of review by way of certiorari in workmen’s compensation cases from thirty to forty-two days in order to conform the time of appeal in workmen’s compensation cases to that in all other appeals. We think the time for filing a notice of appeal from a mandamus proceeding-should likewise conform to the forty-two day time limit. Taxpayer’s appeal was filed within forty-two days of the final judgment and is timely.

The substantive issue presented for review is whether Title 51, Section 786(2)(j), supra, imposes a sales tax on raw materials purchased at wholesale which were withdrawn from the manufacturer’s stock and used to manufacture precast slabs in order to perform a contract to furnish and install roof slabs on a building being constructed in South Carolina.

Section 786(2)(j) provides in part as follows:

“ . . . The term ‘sale at retail’ or ‘retail sale’ shall also mean and include the withdrawal, use or consumption of any tangible personal property by anyone who purchases same at wholesale, . except property which enters into and becomes an ingredient or component part of tangible personal property or products manufactured or compounded for sale and not for the personal and private use or consumption of any person so withdrawing, using or consuming the same; and such wholesale purchaser shall report and pay the taxes thereon.”

The taxpayer’s position is that the withdrawal of raw materials from stock purchased at wholesale is not, in this instance, a taxable incident. The State maintains that because the raw materials were withdrawn for use by the taxpayer in completion of its contract, the withdrawal was for the “personal and private use” of the taxpayer and is therefore taxable under Section 786(2)(j).

Before discussing the parties’ contentions in detail, we think it helpful to review the facts. The taxpayer bought the materials used to manufacture its precast slabs at wholesale, and thus paid no sales tax on the materials. Taxpayer, as a slab contractor, then entered into a contract with Daniel Construction Company to furnish and install 111,900 square feet of precast channel roof slabs meeting certain specifications. Taxpayer was to provide the labor and equipment necessary to install the slabs in addition to providing the slabs themselves.

In order to fulfill its contract with Daniel, taxpayer withdrew raw materials from its on-hand stock (it also manufactured slabs for sale to purchasers), and manufactured the required precast slabs according to contract specifications; this entire process transpired in Alabama. The slabs were then taken to South Carolina and installed in the project.

It is well settled that the purpose of Section 786(2)(j) is to reach and tax transactions which could not be taxed because there was a withdrawal, use or consumption by the purchaser at wholesale but no sale by the purchaser to another. State v. Kershaw Manufacturing Co., 273 Ala. 215, 137 So.2d 740 (1962); State v. Helburn Co., supra.

Here there has been no sale to a consumer. Rather, the taxpayer itself, acting as a subcontractor, was the ultimate consumer of the raw materials used in making the slabs for installation in the construction project as required by its contract. This situation falls four-square within our cases which hold where a contractor consumes the materials purchased in carrying out its contract, the contractor is the ultimate consumer of the materials and is liable for the sales tax thereon. Hamm v. Boeing Co., 283 Ala. 310, 216 So.2d 288 (1968), appeal dism. 394 U.S. 320, 89 S.Ct. 1194, 22 L.Ed.2d 308 (1969); Associated Contractors v. Hamm, 277 Ala. 500, 172 So.2d 385 (1965).

The taxpayer denies that the withdrawal of raw materials was for its “personal and private use” within the meaning of Section 786(2)(j), relying on State v. T. R. Miller Mill Co., 272 Ala. 135, 130 So.2d 185 (1961). There the taxpayer made lumber both from logs cut from its own land and from logs purchased at wholesale from others. The lumber cut from taxpayer’s own logs and that cut from logs bought at wholesale was commingled and stored on the taxpayer’s yards in such a manner that the source of the lumber was indistinguishable. A sales tax was paid when the lumber was sold at retail. The taxpayer would withdraw lumber from its yard at various times to repair or make improvements on its buildings. The supreme court held this withdrawal to be for the taxpayer’s personal and private use, and required the taxpayer to pay a sales tax on the lumber so withdrawn and used. Alabama Precast Products maintains that it would owe a tax on materials withdrawn for its own personal and private use only if it used the concrete slabs manufactured from the raw materials in its own buildings.

We do not consider the withdrawal and use of the materials in the case at bar to be for the personal and private use of the taxpayer within the meaning of the T. R. Miller Mill Co. decision. Rather we rely on Rule W9-011 promulgated by the State of Alabama Department of Revenue on November 13, 1970. That regulation provides in pertinent part:

“Materials, supplies, equipment or any other tangible personal property which is purchased at wholesale and subsequently withdrawn for use in fulfilling a contract within or without the State are subject to the tax and are to be included in the gross proceeds of sales. The value to be placed upon such goods is the price paid for them by the person withdrawing them.”

The taxpayer was informed that this rule was the basis of the State’s denial of the requested refund.

In applying Revenue Rule W9-011 to Section 786(2)(j) we are following the established rule of statutory construction that

“ . . . when a tax statute has been construed by the highest officials charged with the duty of administering the tax laws, such construction should be given favorable consideration by the courts, . .” East Brewton Materials, Inc. v. State Department of Revenue, 45 Ala. App. 584, 233 So.2d 751 (1970), 45 Ala. App. at 588, 233 So.2d at 754.

We agree with the State that such a rule is necessary in order to tax materials which otherwise would pass untaxed.

As stated by the trial court in its opinion, the taxpayer withdrew raw materials from its inventory which had been purchased at wholesale and consumed them in carrying out its contract with Daniel Construction Company. The taxable event occurred in Alabama when the raw materials were withdrawn from inventory and used in the manufacture of the slabs which later were installed in a project in South Carolina. We hold, therefore, the taxpayer is liable for sales tax in the amount of $1,538.39 on the raw materials withdrawn from inventory and used to manufacture the slabs in question.

Taxpayer’s argument in brief that it sold the slabs to Daniel Construction Company in South Carolina, thereby becoming involved in interstate commerce, is rejected in view of our finding that no sale occurred but instead there was a withdrawal and consumption of raw materials in Alabama in furtherance of a contractual obligation.

The judgment of the trial court is affirmed.

AFFIRMED.

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


text:
    In re ALABAMA PRECAST PRODUCTS, INC. v. Charles A. BOSWELL, Commissioner of Revenue, State of Alabama. Ex parte Alabama Precast Products, Inc.
    SC 2527.
    Supreme Court of Alabama.
    April 7, 1978.

      Dewayne N. Morris, Birmingham, for petitioner.
    William J. Baxley, Atty. Gen. and Herbert I. Burson, Jr., Chief Counsel, Dept, of Revenue and Asst. Atty. Gen., and John J. Breckenridge, Asst. Counsel, Dept, of Revenue, and Asst. Atty. Gen., for respondent.
   TORBERT, Chief Justice.

Appellant, Alabama Precast Products, Inc., filed a petition for writ of mandamus in the Jefferson County Circuit Court seeking a refund of sales taxes paid by the corporation. The request for the writ was denied by the trial court and the Court of Civil Appeals affirmed, 357 So.2d 981. We granted certiorari to review this decision of the appeals court.

The case was submitted to the trial court on an agreed statement of facts and briefs of the parties. The facts as stipulated show that Alabama Precast Products manufactures and sells roof slabs at its plant in Birmingham, Alabama. Because of this retail business, Alabama Precast Products purchases building materials needed to manufacture the roof slabs at wholesale.

Alabama Precast Products is also engaged in the business of performing certain construction contracts. In 1974, the corporation entered into a contract with Daniel Construction Company to “furnish and install” precast channel roof slabs on a building being constructed in Graniteville, South Carolina. The roof slabs were manufactured according to contract specifications at the Alabama Precast Products plant in Birmingham from building materials withdrawn from its on-hand stock purchased at wholesale, and then taken to South Carolina and installed by employees of Alabama Precast Products.

The total cost of manufacturing the roof slabs was $138,554.00. A 4% sales tax of $5,541.38 was paid by Alabama Precast Products to the State of Alabama. Subsequently, South Carolina demanded and was paid the same amount in sales/use taxes. Alabama Precast Products then filed a request for a refund from the State of Alabama on the grounds that it should not have to pay sales tax on the roof slabs in both states. (Alabama and South Carolina do not currently have a reciprocity agreement whereby taxes paid in one state may be credited against the payment of sales tax on building materials in another state.)

Prior to trial, the State Revenue Department agreed to refund $4,003.37, stating that the amount of $1,538.39 was due as sales tax on the cost of the raw materials withdrawn from its inventory and used in the manufacture of the roof slabs. Alabama Precast Products thereupon commenced the present action to recover the entire amount of sales taxes paid.

This appeal involves construction of Title 51, section 786(2)(j), Code of Alabama 1940 (§ 40-23-l(a)(10), Code 1975), which reads in pertinent part as follows:

“The term ‘sale at retail’ or ‘retail sale’ shall also mean and include the withdrawal, use or consumption of any tangible personal property by anyone who purchases same at wholesale, . . . except property which enters into and1 becomes an ingredient or component part of tangible personal property or products manufactured or compounded for sale and not for the personal and private use or consumption of any person so withdrawing, using or consuming the same . . . "

(The parties to this appeal have agreed that section 786(2)(j) is the only statute applicable to the facts of this case.)

It is the position of Alabama Precast Products that the compounding of raw materials to form the roof slabs according to the subcontract specifications did not constitute a “withdrawal” within the above quoted definition of a “sale at retail” or “retail sale” under subsection (j) because the materials became an ingredient of tangible personal property or products manufactured for sale to another, i. e., the roof slabs were sold “installed” to Daniel Construction Company. In other words, Alabama Precast Products contends that its subcontract with Daniel Construction Company, requiring Alabama Precast Products to “furnish and install” roof slabs is, in effect, two contracts in one — a contract to sell the roof slabs to the construction company and a contract to supply services for installation of the roof slabs on the building. Alabama Precast Products thus argues that it is entitled to a full refund of the taxes paid because the taxable event under the facts of this case occurred in South Carolina. The transaction was therefore untaxable as it constituted a sale in interstate commerce.

Numerous decisions of this court and the Court of Civil Appeals have held that the purpose of section 786(2)(j) is to reach transactions which could not be taxed because there was a withdrawal, use or consumption by the purchaser at wholesale, but no sale by him to another. State v. Barnes, 45 Ala.App. 522, 233 So.2d 83 (1970); State v. Kershaw Manufacturing Company, 273 Ala. 215, 137 So.2d 740 (1962); State v. T. R. Miller Mill Company, 272 Ala. 135, 130 So.2d 185 (1961). Contrary to the previously stated contentions of Alabama Precast Products, we find, as did the trial court and the Court of Civil Appeals, that there was no “sale” to another of the roof slabs by Alabama Precast Products under the requirements of its subcontract with Daniel Construction Company within the meaning of the provision of subsection (j) that excepts from the definition of “retail sale” property which enters into and becomes an ingredient or component part of tangible personal property manufactured for “sale.”

In this case, the roof slabs were manufactured especially for the building under construction in Graniteville, South Carolina, according to the drawings and specifications prepared by Daniel Construction Company. The raw materials withdrawn from the inventory of Alabama Precast Products therefore became ingredients or component parts of tangible personal property used by Alabama Precast Products in the performance of a personal obligation under the construction subcontract. Thus the transaction qualified as a taxable “retail sale” under section 786(2)(j). Alabama Precast Products was the ultimate consumer of the raw materials and as such was liable for the tax thereon. See Department of Revenue v. James A. Head & Co., Inc., 54 Ala.App. 136, 306 So.2d 5 (1974); Hamm v. Boeing Company, 283 Ala. 310, 216 So.2d 288 (1968); Alabama v. King & Boozer, 314 U.S. 1, 62 S.Ct. 43, 86 L.Ed. 3 (1941).

Because we find that Alabama Precast Products did not sell roof slabs to Daniel Construction Company in Graniteville, South Carolina, we note that the corporation’s contention concerning sales in interstate commerce is also without merit. The withdrawal of the building materials was a retail sale under section 786(2)(j). This event occurred in Birmingham, Alabama, and thus constituted a closed, taxable transaction within this state. The fact that the raw materials were used to manufacture roof slabs which were later transported and used outside the state did not transform this retail sale into a sale in interstate commerce. See Rite Tile Company v. State, 278 Ala. 100, 176 So.2d 31 (1965).

For the foregoing reasons, the decision of the Court of Civil Appeals is hereby affirmed.

AFFIRMED.

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


author: HOLMES, Judge.

text:
    Nelma Laverne KIRBY et al. v. Joe Earl KIRBY.
    Civ. 1334.
    Court of Civil Appeals of Alabama.
    March 29, 1978.
    Rehearing Denied April 26, 1978.

      Louis B. Lusk, of Lusk & Lusk, Gunters-ville, for appellants.
    William C. Gullahorn, Jr., of Gullahorn & Hare, Albertville, for appellee.
   HOLMES, Judge.

This is a divorce case.

The dispositive issue on appeal is whether the trial court erred to reversal in reducing the wife’s alimony payments. We answer in the affirmative and reverse.

The record in pertinent part reveals the following:

The parties were divorced by decree of the Superior Court of Hall County, Georgia, on March 14, 1969. At the time of the divorce, the parties had been married 22 years with 5 children being born of the union. Prior to the decree, the parties executed an agreement covering the terms of the divorce including property settlement, alimony, custody, and support of the children. This agreement was made part of and incorporated in the divorce decree.

Specifically, the agreement provided that the appellee-husband would pay $50 per month per child as child support based upon his then current net income of $519 per month. He was also to pay the appellant-wife $150 per month as alimony. This was also based on his then current net income of $519 per month. The agreement also provided for a percentage increase or reduction in alimony and child support based upon changes in the husband’s net income base of $519 per month.

In October, 1971, the Circuit Court of Marshall County, Alabama, entered a decree, by consent and agreement of the parties incorporating the prior agreement of the parties, thereby becoming a decree of the Circuit Court of Marshall County. The court ordered the parties to comply with the agreement until further orders of the court.

In April, 1977, appellee-husband filed a petition for modification with the Circuit Court of Marshall County in which he requested the following:

“2. That under the present circumstances, it is unnecessary and unreasonable for the plaintiff to be required to pay alimony.
“3. That there has been a material change in circumstances related to child support in that all but one of the children are now adults, and the burden of the previous formula for child support is wholly unreasonable and an oppressive burden upon the plaintiff.”

The trial court, upon hearing testimony ore tenus, entered the following judgment:

“1. That, beginning September 1, 1977, The Plaintiff shall pay to the Defendant, as support and maintenance for the youngest of the children of the parties, to-wit: DONNA RUTH, the sum of $150.00 per month, to be due and payable on the first day of each month until said child reaches adulthood (19 years of age), and at which time the Plaintiff’s legal duty to support ceases.
“3. That present method of payment of alimony to the Defendant shall continue through June 30, 1979, and shall then be reduced to $100.00 per month, and shall be due and payable the first day of each month.”

Appellant-wife appeals, alleging error in the trial court’s order reducing prospectively the wife’s alimony payments.

At the outset, we note that alimony previously awarded a wife may be modified only on a showing that there has been a material or substantial change in circumstances of the parties since the rendition of the former divorce decree. Capra v. Capra, 56 Ala.App. 90, 319 So.2d 286 (1975).

Furthermore, where a decree of divorce has adopted an agreement with respect to alimony and maintenance, the court will not modify such decree except on proof of changed conditions which justify the modification and only to the extent of such changed conditions. Block v. Block, 281 Ala. 214, 201 So.2d 51 (1967).

The duty of this court, on appeal, is to analyze and determine from the evidence whether there has been such a substantial change in the husband’s or wife’s financial condition, or other change of circumstances affecting either the husband or wife, as to justify and support a modification of the former decree. See Young v. Young, 262 Ala. 254, 78 So.2d 265 (1954).

At the time of the divorce, the appellee-husband was making $519 per month net income. As noted above, he began paying $50 per month per child for child support and $150 alimony, according to the agreement incorporated in the divorce decree. Appellant-wife was also working and making $360 per month gross income.

At the hearing of the modification petition, appellee was making $1,100 per month net income. His present wife was also making approximately the same salary. At that time, the appellee was paying $95 per month per child for child support and $270 for alimony which was also in accordance with the former decree. Appellant was making approximately $600 per month gross income or approximately $430-$450 per month net income.

There .was testimony to the effect that appellant-wife has approximately $750 per month living expenses. She has no savings account or accumulated money and has had to borrow money to support herself and her children. Appellant further testified that she was in poor health.

As noted above, the trial court increased the child support payments to appellee’s youngest and only remaining minor child to $150 per month until the child reached maturity. However, the judgment also provided for the wife’s alimony payments to be reduced to $100 per month beginning July 1, 1979.

Appellee argues that the reduction in alimony is based upon the youngest child reaching majority, i. e., 19 years of age. However, the record reveals that the reduction in alimony is to take place approximately 6 months before the youngest child reaches majority.

In any event, the mere fact that the wife’s award of custody of the children may be considered in determining the amount of alimony, such does not necessarily constitute a ground for reducing alimony when the burden of custody is removed, i. e., attainment of the age of majority by the child. See Rochelle v. Rochelle, 235 Ala. 526, 179 So. 835 (1938); 27A C.J.S. Divorce § 239.

In view of the evidence, we cannot say there has been such a substantial change in the circumstances of the parties as to support a modification and reduction of alimony. This is particularly true considering the appellee’s substantial increase in income in comparison with the appellant’s relatively low wages and her living expenses. See Whittington v. Whittington, 48 Ala.App. 680, 267 So.2d 472 (1972).

While we review evidence with a presumption of correctness when testimony is heard ore tenus, this court cannot find a sufficient basis for the trial court’s decree and we have no alternative but to reverse.

In view of the above, that aspect of the decree reducing prospectively the wife’s alimony payments is reversed and remanded for entry of a judgment not inconsistent with this opinion.

Appellant’s request that she be awarded an attorney’s fee on appeal is granted and she is hereby awarded $350 for attorney’s fees.

REVERSED AND REMANDED WITH DIRECTIONS.

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


text:
    CIVIL SERVICE BOARD OF TUSCALOOSA COUNTY, Alabama v. Robert KROUT.
    Civ. 1376.
    Court of Civil Appeals of Alabama.
    April 12, 1978.

      Raymond E. Ward of Ray, Oliver & Ward, Tuscaloosa, for appellant.
    Alexander R. Newton, Tuscaloosa, for ap-pellee.
   BRADLEY, Judge.

This appeal is the result of a judgment rendered by the Circuit Court of Tuscaloosa County reversing the decision of appellant, Civil Service Board of Tuscaloosa County, to terminate the employment of appellee, Robert Krout.

Robert Krout was employed by Tuscaloosa County as a truck driver for the road and bridge department. On June 14, 1976 Krout was indefinitely suspended from his job by the county engineer. The purported reason for Krout’s dismissal arose from his failure to notify his superintendent that he (Krout) would be unable to report to work due to illness. On the same day a letter was written to Krout advising him of his suspension and stating that the county’s action was based on the fact that Krout had failed to notify his superintendent that he would be unable to report to work on a number of occasions.

Krout subsequently appealed his suspension to the Tuscaloosa County Civil Service Board. A de novo hearing was held by the Board and both parties presented evidence in behalf of their cause. Later the Board notified Krout that it had permanently suspended him from his employment with Tuscaloosa County. In its notice of permanent suspension the Board stated that its action had been taken because Krout had repeatedly failed to comply with county policy requiring him to notify his superintendent that he (Krout) would be unable to report to work despite repeated admonitions that such actions would not be tolerated.

After receiving notice of his dismissal, Krout filed an appeal in the Circuit Court of Tuscaloosa County. On July 11,1977 the circuit court rendered a judgment in favor of him. The court found: (1) that under the terms of a working agreément between the Tuscaloosa county commissioners and the employees of the road and bridge department there was no provision which required a road and bridge employee to notify his superintendent that he (the employee) would be unable to report to work because of illness; (2) that the working agreement provided that the terms of the agreement could be changed only by following the procedures specified in its rules and that in the instance before the court these rules had not been complied with in regard to creating a requirement of notice of absence; and (3) that the employee had received notice that his hearing would concern only his failure to inform his superintendent that he (the employee) would be unable to report to work, but additional charges had been considered at the hearing and as a consequence thereof, the employee was denied notice of, and the opportunity to defend against, these additional charges. Based upon these findings the circuit court ordered Robert Krout to be reinstated as an employee of the road and bridge department with, complete restoration of back pay and benefits. From this judgment the Civil Service Board brings this appeal.

Act No. 357, section 11, Acts of Alabama 1949 provides the standards by which a circuit court shall review a decision by the Tuscaloosa County Civil Service Board. The court’s review is generally confined to a study of the record of the proceedings before the Board. Moreover, section 11 mandates that:

“[T]he court shall affirm the decision of the Board unless it finds that the substantial rights of the petitioner have been prejudiced because the final decision of the Board was: 1) unsupported by substantial evidence in the record submitted; 2) in excess of the authority conferred by this Act on the Board; 3) violative of constitutional provisions; 4) arbitrary or capricious; or 5) affected otherwise by substantial error or injustice.”

Accordingly, the first issue presented for resolution on appeal concerns the Board’s contention that there was substantial evidence presented to the Board that Krout had violated county policy regarding notice of inability to work and therefore the circuit court was in error for reversing the Board’s decision to dismiss him.

In Edmondson v. Tuscaloosa County, 48 Ala.App. 372, 265 So.2d 154 (1972), this court declared that the circuit court had no power to disturb the discretionary actions of the Board unless the record before the circuit court disclosed that the substantial rights of the party seeking review were violated in one or more of the ways specifically stated in section 11.

In the instant case the circuit court determined that the events leading to Krout’s hearing before the Board and the actual proceeding before that body resulted in a violation of Krout’s constitutional rights and infected the hearing with substantial injustice. Indeed, the court specifically found that:

“The employee was charged in his letter of dismissal that he was suspended from work for failure to notify his superintendent when he was unable to report to work. There exists overwhelming evidence beyond the scope of the written charge filed against the employee. The employee had no notice of other matters which were brought against him, and therefore, could not adequately defend himself on matters which were not contained in the written charge filed against him.”

As this portion of the circuit court’s judgment indicates, the decision of the court was not premised on whether the action of the Board was supported by substantial evidence. Instead, the court reversed the Board’s decision to dismiss Krout on the grounds that he did not receive adequate notice of the charges presented against him at the proceeding before the Board. Consequently, our review is limited to an examination of the record in order to determine if the court’s impression that Krout’s constitutional rights were violated and the proceeding before the Board affected by substantial injustice was in error.

The United States Supreme Court has recognized that if rules or statutes so provide, adequate procedural safeguards must be afforded to one who is subjected to disciplinary proceedings which might result in dismissal from employment. Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974); Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972). And Act No. 357, section 10 provides that an employee is entitled to notice and a hearing before he can be discharged. Likewise, Act No. 357, section 11 states that the circuit court may reverse an action by the Civil Service Board if it is found that •during the hearing “the substantial rights of the petitioner” were “prejudiced because the final decision of the Board was violative of constitutional provisions” or the hearing was “affected otherwise by substantial error or injustice.”

The record reveals that Krout received a letter from the county engineer advising him that he was suspended for failing to notify his superiors that he (Krout) would be unable to report to work. Krout appealed his suspension and prepared his defense to refute charges that on numerous occasions he had violated county policy requiring notice of inability to work. However, at the proceedings before the Tuscaloosa County Civil Service Board, testimony was presented that Krout drank on the job and that on one occasion he could not work because he had been drinking. Krout’s attorney objected to this testimony on the grounds that it was prejudicial and in violation of the constitutional rights of his client. On each occasion when such objections were made by the lawyer who represented Krout they were sustained by the Board’s chairman. Nonetheless, Board members asked questions concerning two letters which Krout had received from the county engineer warning Krout about drinking on the job or coming to work drinking. Objections to these questions were also sustained. Yet the letters were introduced into evidence before the Board and must be presumed to have been considered by the Board in making its decision to permanently suspend Krout from his job. Despite the presentation of evidence regarding Krout’s use of alcohol while in the employment of the county, the Board’s letter dismissing Krout stated that the decision was premised solely on the fact that Krout-had repeatedly failed to advise his superintendent that he (Krout) would be unable to report to work.

Although almost all the evidence adduced in the hearing before the Board concerned Krout’s failure to notify his superiors of his inability to work, there was some testimony and questions interjected into the proceeding which dealt with Krout’s drinking habits. It is clear that Krout had no notice that the proceedings would involve this subject. And even though such testimony was objected to and the objections sustained, the letters to Krout warning him of his drinking habits were introduced into evidence; consequently, the circuit court apparently concluded that Krout did not receive adequate notice that he would be charged with drinking on the job and that the failure to receive such notice prevented him from presenting an adequate defense to this charge. Based on the record before us we are not persuaded that the court erred in reaching such a conclusion. Act No. 357, sections 10 and 11, Acts of Alabama 1949.

The next issue presented for our consideration involves the Board’s assertion that the circuit court erroneously considered a working agreement which existed between the Tuscaloosa County Commission and the employees of the road and bridge department at the time of Krout’s alleged violation of county policy requiring notice of inability to work. This agreement establishes the procedure which must be followed when the rules contained in the working agreement are to be altered, amended or changed. And on the basis of this working agreement the circuit court found:

“1. That according to the working agreement there exists no rule requiring [an] employee to notify his superintendent when he is unable to report to work due to sickness.
“2. . . . There is no evidence that [the procedures provided for in the agreement] were followed in establishing or changing rules requiring [an] employee to notify his superintendent when he was unable to report to work due to sickness.”

The Board contends that the court’s reliance on this agreement was misplaced because the agreement was never approved and adopted by the Tuscaloosa County Civil Service Board. The Board bases its argument on the fact that the county commissioners signed the agreement while employees of the road and bridge department did not. Consequently, the Board argues that without the signatures of the road and bridge employees it cannot be bound by the provisions in the agreement. We find little merit to this contention.

The cover page of the agreement states:

“RULES OP CONDUCT

for

TUSCALOOSA COUNTY EMPLOYEES

As adopted by the

Tuscaloosa County Civil Service Board

WORKING AGREEMENT

between

TUSCALOOSA COUNTY COMMISSION

and

TUSCALOOSA COUNTY ROAD AND BRIDGE DEPARTMENT EMPLOYEES

and approved by the

Tuscaloosa County Civil Service Board

Effective November 4,1974”

Moreover, the employees of the road and bridge department were expected to adhere to the provisions found in the working agreement and rules of conduct. Accordingly, the employees had no reason not to believe that these rules and regulations had been validly adopted by the Tuscaloosa County Civil Service Board. Nor were the road and bridge department employees ever notified by the Board that the working agreement was invalid because it had not been properly adopted. And the testimony of Krout at the proceeding before the Board indicates that he thought that the terms of the working agreement were applicable to all employees of the road and bridge department, including himself.

There was also testimony from others to the effect that these were the only written rules relating to the conduct of the road and bridge employees.

Based on this evidence, we cannot say that the circuit court acted improperly in concluding that the working agreement which existed between the county commissioners and the employees of the road and bridge department was also applicable to the civil service board.

In addition, we are not persuaded that there was insufficient evidence to support the circuit court’s determination that the Board did not follow the proper procedures for changing the rules of the working agreement to require an employee to notify his superintendent when he was unable to report to work due to sickness.

At the hearing Krout stated that he relied on a provision which provided that an employee would receive a copy of rules which were promulgated by the Board or department heads and that upon receipt of these rules the employee would sign an acknowledgment that he had obtained a copy of them. Krout testified that he was never given any rules which required that he notify his superintendent when he (Krout) would be unable to report to work because of illness. This testimony was not disputed. Nor was there any evidence indicating that Krout had signed and returned a receipt demonstrating that he had received a copy of the rules mandating such notice to his superiors.

Furthermore, Krout stated that it was his understanding that notice of rule changes would be posted on the employee bulletin board two weeks prior to their effective date. And Krout was correct in this assertion since the posting of notice of rules and regulations is required under the Rules of Conduct for Tuscaloosa County Employees. However, Krout testified that the rule requiring that he notify his superintendent if he (Krout) was unable to work was never posted in such a manner. This testimony was somewhat contradicted by another county employee who stated that pursuant to the rules of conduct, he had posted on the bulletin board the county’s policy regarding notice of inability to work, although he further testified that he could not remember exactly when he had done so.

Prior to the purported rule change, no rule existed in the working agreement which required an employee to notify his superintendent when he was unable to report to work due to sickness. And as the above described evidence indicates, the circuit court could reasonably conclude that the record which was submitted to it did not contain substantial evidence in support of the Board’s contention that the county had subsequently adopted a rule requiring notice of inability to work and that Krout had received notice of this addition to the rules of the working agreement in the proper manner.

In cases of this nature our review is limited to an examination of the record made before the Civil Service Board. Guthrie v. Civil Service Board, Ala.Civ.App., 342 So.2d 372 (1977). And in reviewing this record we will not uphold the reversal of an action by the Civil Service Board unless the Board’s findings were not supported by substantial evidence; or were in violation of constitutional rights; or were arbitrary or capricious; or were otherwise affected by substantial error or injustice. Act No. 357, section 11, Acts of Alabama 1949. We do not believe that sufficient evidence was presented to support the finding of the Board that Krout had notice of the rule that he was required to inform his superiors that he would be absent from work. The working agreement between the Tuscaloosa County commissioners mandated such notice since no rule formerly existed which required that an employee inform his superiors that he would be unable to work due to sickness.

Likewise, the evidence which was interjected into the proceeding before the Board regarding Krout’s drinking habits violated his constitutional rights and resulted in a substantial injustice since he had no notice that charges of such a nature would be considered at the proceeding. Accordingly, we believe that the judgment of the circuit court reinstating Krout to his status as an employee with the county was not in error. The judgment of the circuit court is therefore affirmed.

AFFIRMED.

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