text:
    DIXIE NATIONAL LIFE INSURANCE COMPANY v. Charles E. ALLISON.
    No. 51246.
    Supreme Court of Mississippi.
    June 27, 1979.

      Perry, Crockett, Morrison & Starling, Robert L. McArty, Lester F. Smith, Jackson, for appellant.
    R. S. Hardin, Ripley, for appellee.
    Before SMITH, P. J., and SUGG and COFER, JJ.
   SUGG, Justice,

for the Court:

Charles Allison filed a bill for specific performance in the Chancery Court of Tip-pah County against Dixie National Life Insurance Company to recover medical expenses incurred by his wife in the Methodist Hospital in Memphis, Tennessee from July 22, until September 2, 1977. Dixie National denied liability on the ground that Mrs. Allison’s illness was not diagnosed as cancer upon the basis of a microscopic examination of fixed tissue as required by the terms of the policy. The chancellor ordered Dixie National to pay medical expenses under the cancer policy for the July — September hospitalization of Mrs. Allison, but did not determine the amount that Dixie National should pay.

Mrs. Allison was also a patient in the Methodist Hospital from December 14 to December 24, 1977 and from December 27, 1977 to February 22, 1978. A biopsy was performed on Mrs. Allison on December 16, 1977. After receiving the pathology report based on the December 16 biopsy, which diagnosed Mrs. Allison’s disease as cancer, together with proof of loss on March 8, 1978, Dixie National determined that the claim was valid so payment under the terms of the policy began and has continued to date of trial. The first payment was made on March 10 for Mrs. Allison’s hospital confinement from December 14 to December 24, 1977 which included payment for radiation treatment going back 45 days from December 16, 1977.

The policy provides that payment for loss resulting from definite cancer treatment will be made following a positive diagnosis of cancer by a legally licensed doctor of medicine certified by the American Board of Pathology to practice pathologic anatomy, and for a period of 45 days preceding the date on which a positive diagnosis is made. The pertinent parts of the policy follow:

DIXIE NATIONAL LIFE INSURANCE CO. An Old Line Legal Reserve Stock Company HOME OFFICE . JACKSON, MISSISSIPPI HEREBY INSURES
The Insured as defined under the provisions of this policy, to the extent herein provided, against loss resulting from hospital confinement and other specified expenses in accordance with the provisions, conditions, and limitations stated in this policy, incurred for the definitive treatment of the disease “cancer”, only, hereinafter called “such sickness”, providing such cancer is positively diagnosed in accord with the standard h'fereinafter set forth and as cancer is hereinafter defined.
PART 1 BENEFITS FOR SUCH SICKNESS
If any Insured shall become afflicted with cancer, which is first diagnosed, as herein defined, in the entire lifetime of the Insured following the date of issue shown herein and while this policy is in force and such sickness is diagnosed as provided herein, the Company will pay indemnities according to the Schedule of Benefits, for the expenses incurred by the Insured, except as otherwise provided herein, within the period of time beginning not more than 45 days preceding the date on which positive diagnosis as herein defined is made for cancer or malignant tumor(s) originating in a given organ or body system,
PART 2 CANCER DEFINED - POSITIVE PATHOLOGY REQUIRED
A. Cancer is defined as a malignant neoplasm; that is, a new growth that has the ability to invade and/or metastasize. This includes leukemia, gliomas, and malignant .bronchial adenomas. It does not include polyps of colon and carcinoids of the appendix. Such cancer as defined herein must be positively so diagnosed by a legally licensed doctor of medicine certified by the American Board of Pathology to practice Pathologic Anatomy, upon the basis of a microscopic examination of fixed tissue, or preparations from the hemic system (either during life or post-mortem). The pathologist establishing the diagnosis shall base his judgment solely on the criteria of malignancy as accepted by the American Board of Pathology after a study of histoeytologic architecture or pattern of the suspect tumor, tissue or specimen.
EXCEPTIONS AND LIMITATIONS
C. This policy pays only for loss resulting from definitive cancer treatment, including only direct extension, metastatic spread (and/or its direct effects) or recurrence: . . .

A biopsy was not performed on Mrs. Allison during her first confinement in the Memphis hospital. Absent the biopsy, it was impossible to secure a pathological report diagnosing Mrs. Allison’s disease as cancer during her first hospital confinement; however, the proof for the complainant shows that it would have endangered the life of Mrs. Allison to secure a biopsy at the time of her first hospital confinement.

Mrs. Allison was admitted to the hospital on July 22, 1977 and her physician was Thomas G. Dorrity, M.D., who is Chief of Surgery for the Methodist Hospital. On July 22, Dr. Dorrity made a diagnosis of “a mass in the pelvis, probably carcinoma of the sigmoid.” An exploratory laparotomy was performed by Dr. Dorrity on July 28, his diagnosis was verified clinically, a sigmoid colostomy was performed because Mrs. Allison was almost completely obstructed, and relief from this condition was imperative.

Dr. Dorrity explained that a sigmoid colostomy is a procedure where a loop of the big colon in the sigmoid area is brought to the outside and opened so that the bowels can move and expel gas to relieve the obstruction. His diagnosis was cancer of the sigmoid colon, specifically rectosigmoid.

Dr. Dorrity did not order any pathological workup on the patient because the prime purpose of the operation was to relieve her obstruction. He stated when a surgeon is in the peritoneal cavity and verifies a mass that he recognizes as cancer, it would be poor surgical judgment to take a piece of that for microscopic examination because of the possibility of leaking intestinal contents which might cause peritonitis and the death of the patient. He stated, “That’s not good surgery to open the gut when you’re on the inside unless you absolutely have to.” Dr. Dorrity stated it was impossible to obtain a biopsy in the usual way of slipping a scope up the rectum. He attempted this procedure before surgery, but due to the mass and inflammation of the gut and tissue, and the fact that the patient had an operation some years before for endometriosis, the gut was in such loops that it could not be straightened out to accommodate the scope.

Following the sigmoid colostomy the endema subsided enough so that the scope could be passed from below and a piece of tissue obtained. On December 16,1977, this procedure was followed and a biopsy was obtained. The pathological workup on the tissue obtained by this biopsy confirmed his diagnosis made in July, 1977.

Complainant did not furnish proof of positive pathology required by the terms of the policy, but we are of the opinion that because of the danger to the life of the patient, failure to obtain a biopsy during the July, 1977 hospitalization was excusable. The proof is uncontradicted that the clinical diagnosis of cancer made by Dr. Dorrity in July, 1977 was confirmed by the pathological report of December 16, 1977. Under the facts of this case, we hold that complainant was excused from furnishing the pathology report required by the terms of the policy because of the risk involved to the patient, a condition which was not under the control of the insured.

This rule must be applied cautiously, and failure to furnish reports required by an insurance policy may be excused only under facts clearly showing such excuse is justifiable and did not arise because of the negligence of the insured.

Dixie National also argues that its motion for change of venue should have been sustained because it is a domestic company with its principal place of business in the First Judicial District of Hinds County. Section 11-11-7 Mississippi Code Annotated (1972) authorizes a suit against an insurance company either in the county where the loss occurred or in the county where the insurer has its principal place of business. The question in this case is, where did the loss occur?

Mrs. Allison lived in Tippah County when she became ill, and absent any proof to the contrary, this gives rise to the inference that the disease of cancer was contracted by Mrs. Allison in the county of her residence. In our view this was the place where the loss occurred although the expenses for treatment of cancer were incurred in Memphis, Tennessee.

As we view it, the place where the loss occurs with a disease is analogous to an injury received by a person in an automobile accident in county A but received treatment in county B. There is no doubt that the loss in such case occurred in county A, although the expense for treatment was incurred in county B. Since Mrs. Allison lived in Tippah County when she contracted cancer, we are of the opinion that complainant could have filed suit in either Tippah County where the loss occurred, or in Hinds County, the principal place of business of Dixie National.

Having disposed of the principal issues in this case, we next consider the decree rendered by the chancellor. The decree holds Dixie National liable for the hospital expenses incurred from July 22, 1977, through September 2, 1977; however, there was no determination of the amount due complainant under the terms of the policy. In Norris v. Norris, 157 Miss. 457, 128 So. 342 (1930), we held:

“A decree in chancery must be characterized by a reasonable certainty in its terms, and this is particularly true in respect to those provisions which fix the rights and liabilities of the respective parties to the cause.” (157 Miss, at 459, 128 So. at 342).

The decree does not meet this test because the amount due complainant was not specified. If an execution were levied on this decree, what amount would it be for? It is necessary that this case be remanded to determine the amount due.

We note further that this action was predicated on the theory of specific performance. Actually, it was nothing more than a suit for breach of contract and should have been brought in the Circuit Court of Tippah County, pursuant to section 9-7-81 Mississippi Code Annotated (1972). Therefore, we remand this case to the Circuit Court of Tippah County under the authority of Article 6, section 147, Mississippi Constitution of 1890 for a determination of the amount due under the policy.

AFFIRMED, AND REMANDED TO THE CIRCUIT COURT OF TIPPAH COUNTY.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and WALKER, BROOM, LEE, BOWLING and COFER, JJ., concur.


source: Caselaw Access Project

author: PATTERSON, Chief Justice,

license: Public Domain

text:
    Terry B. CHEATHAM, Rhonda Stewart Cheatham & General Specialties, Inc., a Mississippi Corporation, v. KEM MANUFACTURING CORPORATION, a Georgia Corporation.
    No. 51153.
    Supreme Court of Mississippi.
    June 27, 1979.

      Baine, Moore, Simmons & Thompson, Frank T. Moore, Jr., Jackson, for appellant.
    Watkins, Pyle, Ludlam, Winter & Stennis, William A. Pyle, Jackson, James E. Goodman, Atlanta, Ga., for appellee.
    Before PATTERSON, SUGG and COF-ER, JJ.
   PATTERSON, Chief Justice,

for the Court:

Terry B. Cheatham and Rhonda Stewart Cheatham, his wife, and General Specialties, Inc., appeal from a decree of the Chancery Court of the First Judicial District of Hinds County whereby Kem Manufacturing Corporation, a Georgia Corporation, was awarded $38,839.92 in damages and granted injunctive relief against appellants.

In July of 1972, Kem entered into a contract with Terry B. Cheatham whereby he was employed as sales representative in a designated territory in Mississippi. The contract provided, among other things, that Cheatham’s full-time services were to be devoted exclusively to the business of his employer, Kem, and provided:

RESTRICTIVE COVENANT. (a) Company is engaged in the business of developing, manufacturing and purchasing sanitary and maintenance chemicals, supplies and equipment (including, but not limited to, soaps, cleaners, detergents, waxes, deodorants, insecticides, disinfectants, industrial cleaning and dishwash-ing compounds, dry cleaning supplies, floor maintenance materials and equipment, and washroom and janitor and sanitary supplies and services), rendering engineering and maintenance services in connection therewith, and marketing such products and services to governmental, institutional, industrial and commercial consumers, throughout North, Central and South America and the Caribbean area. It has built up and established a valuable and extensive trade in its products and services in such territories which, together with Company’s business connections and customers, have been established and maintained at great expense and are of great value to it. By virtue of Agent’s employment by Company, he must have complete and in'timate knowledge of, and will become further familiar with and possessed of, the manner, methods, secrets and confidential information pertaining to such business, and with the names and lists of Company’s customers and clientele, their business requirements, and the amounts paid by them for Company’s products and services; and, through his representation of Company, he will become personally acquainted with the customers, competitors and trade of the Company. Agent agrees that Company would suffer great loss and damage if, during Agent’s employment or upon its termination, he should, for himself or on behalf of any other person, persons, partnership or corporation by whom he may be subsequently employed, solicit orders for sanitary and maintenance chemicals, supplies and equipment, or for engineering and maintenance services in connection therewith, for distribution to governmental, institutional, industrial and commercial consumers; or if he should engage in such business in the territory set forth in sub-Paragraph 4(b) of this employment contract; or if he should disclose any of Company’s methods, secrets or other confidential information. If any of the restrictive convenants (sic) hereinafter set forth should be violated by Agent, Company would suffer irreparable damage, and the resulting damages would be difficult or impossible to measure accurately. Agent further agrees that an injunction and restraining order enforcing such covenant is necessary to afford Company adequate remedy. Therefore, in consideration of the premises and of the mutual promises herein made, and of Agent’s employment for a period of one month or more under the terms of this Agreement, Agent does expressly covenant and agree that, during the term of his employment under this contract, and for a period of two (2) years immediately following the termination of such employment, with or without cause:
(1) He will not, except as authorized by Company, for himself or on behalf of any other person, persons, partnership or corporation, either individually or as a joint venturer or silent partner, employee or stockholder, solicit orders for sanitary and maintenance chemicals, supplies or equipment or for engineering and maintenance services in connection therewith for sale or distribution to consumers, whether governmental, institutional, industrial or commercial, within the territory hereinafter described.
(2) He will not in any way, directly or indirectly, for himself or on behalf of or in conjunction with any other person, persons, partnership or corporation, solicit, divert or take away any of the customers or patronage of Company’s business here-inabove described within the territory hereinafter defined.
(3) He will not, within the territory defined hereinafter, directly or indirectly, for himself or on behalf of others, as an individual on his own account, or as an employee, agent or salesman for any person, partnership, association or corporation, or as a member of any partnership or joint venture, or as an officer, director or shareholder of any corporation, or otherwise, engage in the business, or any phase thereof, of developing manufacturing or purchasing sanitary and maintenance chemicals, supplies and equipment, rendering engineering and maintenance service in cooperation or connection therewith, or marketing such products and services to governmental, institutional, industrial or commercial consumers.
(4) He will not, within the territory hereinafter defined, directly or indirectly, for himself or on behalf of others, own, manage, control, operate, aid or participate in the ownership, management, operation or control of any business which engages in the business, or any phase thereof, of developing, manufacturing or purchasing sanitary and maintenance chemicals, supplies and equipment, rendering engineering and maintenance services in connection therewith, or marketing such products and services to governmental, institutional, industrial and commercial consumers.

The contract stated that, in event of a breach, as the amount or measure of damages resulting would be difficult to determine and, for the purpose of liquidating the amount of such damages and “not as a penalty” it was agreed that the amount would be fixed at a sum equal to twice the total of the amounts paid Cheatham by Kem during the twelve months immediately preceding termination.

Although it appears that Cheatham’s earnings from his employment by Kem were substantial, in May of 1976 Cheatham and his wife, appellant Rhonda Stewart Cheatham, the latter using her maiden name and placing 100 percent of the stock in her name, organized a corporation called General Specialties, Inc. and began engaging in substantially the same business as Kem. Without the knowledge of Kem, Cheatham began selling as agent for General Specialties to Kern’s customers and in the territory which Kem had allotted to him and in which he was bound to represent Kem full time and exclusively. The evidence shows that Cheatham would sell competing General Specialties products to these customers at prices below those of similar products which it was his duty to sell for Kem. This resulted in profits for the Cheathams and General Specialties and cut into the business of Kem and was in direct violation of covenants assumed by Cheat-ham when he entered into his contract with Kem. The evidence sufficiently established that Cheatham’s wife was aware that these activities were in violation of Cheatham’s contract with Kem and were wrong, and she admitted that it was their intention that Cheatham act for General Specialties although continuing to act, or purport to act, for Kem.

Kem became aware of what was going on, and in February, 1977 notified Cheat-ham to cease the activities in which he was engaged in violation of the contract and his fiduciary duty to Kem. At this time Kem terminated the contract.

Appellants concede that Cheatham’s relationship to Kem was one of trust and confidence, fiduciary in nature, saying:

Appellants are not unmindful of the fact that Terry Cheatham had a fiduciary relationship to the appellee, and of the strong duty owed by a fiduciary to his principal. .

There was ample testimony before the chancellor justifying his finding that Cheatham’s activities were in direct violation of his contract and his trust relationship with Kem, damaging to Kern’s business and constituted a fraud upon Kem, his employer. Moreover, the chancellor was justified in finding from the evidence that Cheatham’s wife, and the family corporation in which the stock was placed in her name, were privy to Cheatham’s activities and knowingly profited from Cheatham’s fraudulent violation of the fiduciary duty he owed Kem in making Cheatham a salesman for General Specialties’ products in the territory allotted to Cheatham by Kem.

The threshold question raised on appeal is that Kem, a Georgia Corporation, is barred from prosecuting a claim in the courts of Mississippi which arose out of the transaction of business within the state without first obtaining a certificate of authority from the Secretary of State. Mississippi Code Annotated, section 79-3-211 (1972) provides, however, among other things:

Without excluding other activities which may not constitute transacting business in this state, a foreign corporation shall not be considered to be transacting business in this state, for the purposes of this chapter, by reason of carrying on in this state any one or more of the following activities:
(d) Soliciting or procuring orders, whether by mail or through employees or agents or otherwise, where such orders require acceptance without this state before becoming binding contracts.
(e) Transacting any business in interstate commerce.

The record supports the finding of the chancellor that Kern’s business was exempted under (d) and (e) of the statute, was in interstate commerce and therefore did not fall within the proscribed “transaction of business within the state” so as to require that Kem obtain a certificate from the Secretary of State.

The order form used by Kem (and by Cheatham as its sales representative) provided:

All orders to salesmen are subject to acceptance or rejection by an authorized agent of Kem Manufacturing Corp. at its home office in Tucker, Georgia.

The question has been decided adversely to the contentions of appellants. See Humboldt Foods, Inc. v. Massey, 297 F.Supp. 236 (N.D.Miss.1968); Ross Construction Co. v. U. M. & M. Credit Corp., 214 So.2d 822 (Miss.1968).

Next appellants contend that the provision in the contract providing for liquidated damages is unenforceable under Georgia law, (pointing out that the contract provides that it is to be construed according to the laws of Georgia). We do not agree. In Southeastern Land Fund v. Real Estate World, 237 Ga. 227, 227 S.E.2d 340 (1976), cited by appellants, the Georgia court spoke on the subject of liquidated damages.

Of course, Georgia law also recognizes that the parties may agree in their contract to a sum to liquidate their damages. Code Ann. § 20-1402 provides: “Damages are given as compensation for the injury sustained. If the parties agree in their contract what the damages for a breach shall be, they are said to be liquidated, and unless the agreement violates some principle of law, the parties are bound thereby." (Emphasis supplied.) See also Code Ann. § 20-1403.
[10] In deciding whether a contract provision is enforceable as liquidated damages, the court makes a tripartite inquiry to determine if the following factors aré present:
“First, the injury caused by breach must be difficult or impossible of accurate estimation; second, the parties must intend to provide for damages rather than for a penalty; and third, the sum stipulated must be a reasonable pre-esti-mate of the probable loss.” Calamari & Perillo, The Law of Contracts, 367 (1970). See Tuten v. Morgan, 160 Ga. 90, 92, 127 S.E. 143 (1924), and Bernhardt v. Federal Terra Cotta Co., 24 Ga.App. 635, 101 S.E. 588 (1919). See also Martin v. Lott, 144 Ga. 660, 87 S.E. 902 (1915).
[11] Another feature implicit in the concept of liquidated damages in addition to the above factors is that both parties are bound by their agreement. See Code Ann. § 20-1402. See, e. g., Jarro Building Industries Corp. v. Schwartz, 54 Misc.2d 13, 281 N.Y.S.2d 420 (1967). A non-breaching party who has agreed to accept liquidated damages cannot elect after a breach to take actual damages should they prove greater than the sum specified. The breaching party cannot complain that the actual damages are less than those specified as liquidated damages. The liquidated damages become the “maximum as well as the minimum sum that can be collected.” Mayor, etc., of Brunswick v. Aetna Indemnity Co., 4 Ga.App. 722, 727, 62 S.E. 475, 477 (1908). (227 S.E.2d at 343).

In the case before us, appellee sued for liquidated damages or, in the alternative, for actual damages. The chancellor found:

The Court finds that the complainant is entitled to recover from the defendants Terry B. Cheatham, Rhonda Stewart Cheatham and General Specialties, Inc., jointly and severally, the sum of $38,-839.92. Finding that this is the amount of agreed upon liquidated damages for a breach by the defendant, Terry B. Cheat-ham, of his contractual duties to the complainant and also finding that the amount of $38,839.92 is within the discernible actual damages proven by the complainant by clear and convincing evidence for breach by Terry B. Cheatham of his fiduciary duties to the complainant, said fraudulent acts being consented to, conspired in and aided and abetted by the defendants, Rhonda Stewart and General Specialties, Inc., the Court finds that upon application of either theory of law, or both to the case, the complainant is to recover from the defendants, Terry B. Cheatham, Rhonda Stewart Cheatham and General Specialties, Inc., jointly and severally, the sum of $38,839.92.

We are unable to say that the evidence in the record does not support the findings of the chancellor or that he was manifestly wrong. It appears that the chancellor in awarding damages, accepted the lesser amount calculated under the liquidated damages formula, and we think he was justified in doing so. The situation reflected by the evidence in the record also supports and warrants the action of the chancellor in enjoining appellants for one year from continuing their activities in the territory formerly allotted to Cheatham as representative of Kem. Other matters assigned for reversal, although ably briefed and vigorously argued, have been considered and are found to be without merit.

The decree appealed from will, therefore, be affirmed.

AFFIRMED.

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


text:
    Willie CLAY v. STATE of Mississippi.
    No. 51215.
    Supreme Court of Mississippi.
    July 11, 1979.
    Richard W. Wise, Starkville, for appellant.
    A. F. Summer, Atty. Gen., by Calvin Coolidge Williams, Jr., Special Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Oktibbeha County; Joe 0. Sams, Sr., Judge.

Before PATTERSON, C. J., and WALKER and COFER, JJ.

AFFIRMED.

SMITH and ROBERTSON, P. JJ., and SUGG, BROOM, LEE and BOWLING, JJ., concurring.


text:
    Harold JOHNSON v. Lavell TULLOS et al.
    No. 51240.
    Supreme Court of Mississippi.
    July 11, 1979.
    B. R. Hardin, Jackson, for appellant.
    Davis Hall Smith, Jackson, for appellees.
   Appeal from Circuit Court, Hinds County; Dan M. Lee, Judge.

Before PATTERSON, C. J., and SUGG and WALKER, JJ.

AFFIRMED.


text:
    John CHOUCCOLI v. STATE of Mississippi.
    No. 51288.
    Supreme Court of Mississippi.
    July 11, 1979.
    Dyer, Dyer & Dyer, Howard Dyer, Green-ville, for appellant.
    A. F. Summer, Atty. Gen., by Susan L. Runnels, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Washington County; Arthur B. Clark, Judge.

Before ROBERTSON, P. J., and BROOM and LEE, JJ.

AFFIRMED.

PATTERSON, C. J., SMITH, P. J., and SUGG, WALKER, BOWLING and COFER, JJ., concurring.


text:
    William “Red” LAVENDER v. BRYAN FOODS, INC.
    No. 51364.
    Supreme Court of Mississippi.
    July 11, 1979.
    Howard C. Coleman, West Point, for appellant.
    A. M. Edwards, Jr., James C. Helveston, West Point, for appellee.
   Appeal from Chancery Court, Clay County; Lenore L. Prather, Chancellor.

Before PATTERSON, C. J., and SUGG and WALKER, JJ.

AFFIRMED.


author: FAULKNER, Justice.

text:
    SHELBY COUNTY COMMISSION et al. v. Reed W. SMITH et al. Reed W. SMITH et al. v. SHELBY COUNTY COMMISSION et al.
    78-140, 78-140X.
    Supreme Court of Alabama.
    May 25, 1979.
    Rehearing Denied July 6, 1979.

      Maurice F. Bishop, Carl E. Johnson, Jr., Birmingham, Frank C. Ellis, Jr., Columbia-na, for appellants and cross-appellees.
    Mark W. Lee of McDaniel, Hall, Parsons & Conerly, Birmingham, for appellees and cross-appellants.
   FAULKNER, Justice.

Shelby County deputies mandamused the County Commission to authorize the treasurer to increase their salaries to correspond with those of state troopers. The Circuit court granted the deputies’ petition. The Commission appealed and the deputies filed a cross-appeal seeking attorneys’ fees. We affirm mandamus, but deny the cross-appeal.

The numbers and salaries of employees of the Shelby County Sheriff’s office are controlled by several local acts passed in 1971, 1973, and 1976, stating that salaries of specific sheriff’s employees “shall be comparable to” the salaries of specific employees in the State Highway Patrol [see appendix]. The 1973 and 1976 acts were amendments which increased the number of employees while retaining the salary scheme. In 1977, the legislature increased the salaries of state troopers by $115 bi-weekly. Acts 1977, No. 417, p. 559 [see appendix]. The deputies, whose salaries are tied to those of state troopers, sought a similar increase but instead received only a $30 bi-weekly raise from the Commission. They then sought mandamus in the circuit court for the additional $85.

The first question presented for our consideration is whether or not the local acts, as amended, automatically carry with them subsequent modifications to the law governing state trooper salaries. This question requires an analysis of legislative intent which, unfortunately, is not readily evident from these acts. Consequently, our decision must turn on the differences between “specific reference statutes” and “general reference statutes,” a problem considered in Carruba v. Meeks, 274 Ala. 714, 150 So.2d 195 (1963). There it was noted that a specific reference statute is one “where the adopting statute incorporates an earlier statute or a particular provision thereof by a specific and descriptive reference thereto,” e. g. by employing a statutory citation or the specific title to an act. A general reference statute is one which “refers generally to the law relating to or governing the subject under consideration.” Specific reference statutes “only incorporate the adopted statutes in existence at the time of the enactment of the adopting statute and do not prospectively include subsequent modifications or additions to the general subject adopted." General reference statutes, on the other hand, “[include] not only the law in force at the time the adopting act became effective, but also later legislation on the subject.” 274 Ala. at 717, 150 So.2d at 198. The Alabama approach to this question is in accord with that taken in the majority of the states. See 82 C.J.S. Statutes § 370 (1953); 73 Am.Jur.2d Statutes §§ 28, 29 (1974); An-not. 168 A.L.R. 627 (1947); 2A Sutherland, Statutory Construction, § 51.07 (4th ed. 1973). Some jurisdictions have in the past qualified the rule governing general reference statutes by holding that when a local or special act adopts by reference the provisions of a general law it does not carry with it later modifications to the general law. See e. g. In re Heath, 144 U.S. 92, 12 S.Ct. 615, 36 L.Ed. 358 (1892); 73 Am.Jur.2d Statutes § 29 (1974); Annot. 168 A.L.R. 627, 635 (1947). This rule, however, leads only to confusion by requiring analysis of the general law at some point in the past. See Casteel v. City of Decatur, 215 Ala. 4, 109 So. 571 (1926). Furthermore, it often produces an illogical lack of uniformity, as exemplified by the Heath case. This limitation has never been acknowledged in this jurisdiction and we see no reason to do so now. Thus, in this state an act, whether general, local, or special, which adopts the law generally on a subject will include subsequent modifications to the general law, unless there is a clear expression of a contrary legislative intent.

It is quite obvious from a reading of the 1971, 1973, and 1976 local acts that they are all general reference statutes. Nowhere do they make reference to any particular statute setting trooper salaries. Instead they merely state that compensation for deputies “[shall] be comparable to State Troopers in Alabama State Highway Patrol.” Nowhere is any language used which locks the deputies’ compensation to that of troopers at the time the local acts were passed. If such had been the legislative intent the drafters could have easily indicated by employing a qualifying phrase, like “as now provided” or similar words. It seems apparent to us, however, that the original drafters of these local acts intended to keep the salaries of employees of the sheriff’s office competitive with those of the highway patrol, probably in order to prevent the loss of trained personnel to higher paying jobs. The effect of these local acts is that each time the legislature raises the compensation of the state troopers, that of the Shelby County deputies is increased automatically.

Our having come to this conclusion, the County Commission raises several other challenges to the acts. First the Commission contends that the 1977 act which increased the compensation of state troopers [see appendix] was not intended to increase the salaries in Shelby County. This interpretation is directly refuted by § 6 of the act itself which states:

“It is specifically provided, however, that this act shall not affect the compensation of any officer or employee of Coo-sa County or of Tuscaloosa County even though the compensation of such officers was heretofore prescribed by a law, which based such compensation on or in some way related it to the compensation of one or more of the positions in the above listed classifications.”

Obviously, the legislature was aware that a pay raise for state troopers would affect the salaries of various county employees. If the legislature had wanted to exclude Shelby County employees from the operation of this statute it would have affirmatively said so, just as it did for Coosa County and Tuscaloosa County. Nor do we agree with the Commission’s contention that Act 417 is an unlawful delegation of legislative authority to the State Personnel Department. The statute does not grant the Personnel Department any discretion in raising salaries. On the contrary, the legislature itself directed a $115 bi-weekly increase which the Personnel Department is merely ordered to implement. Such a directive is entirely within the legislative power.

The Commission also asserts that the legislative scheme violates §§ 45 and 106 of the Alabama Constitution. Section 45 requires that an act contain only one subject, clearly expressed in the title. As we have recently noted, “The title need not be an index or catalog of every power bestowed in the act, nor of every effect of the act.” Lane v. Gurley Oil Co., 341 So.2d 712, 715 (Ala.1977). Act 417 contains only one subject, salary increases for employees of the Department of Public Safety, and that subject is clearly revealed in its title. Section 45 does not require the title of an act to list every piece of general reference legislation which will be affected by a statute.

Similarly, there is no conflict with § 106 requiring local publication of special, private, or local laws. The notice requirement was fulfilled by publication of the local acts in accordance with § 106. When these local acts were published at the time of their passage, residents of the county were put on notice that the salaries of the sheriff’s deputies would be tied to those of state troopers. The county was under no obligation to employ this legislative scheme to set salaries in the sheriff’s department, but having chosen to do so, it cannot claim ignorance of the effect of the laws simply because they now seem burdensome. If the county is no longer satisfied with the results of these local acts, its alternative is to have the local acts repealed and introduce new legislation. Nor are we persuaded by the Commission’s argument that the legislature has improperly amended a local act by a general act, thereby defeating the purpose of § 106. General reference legislation is in no way amendatory, as this Court explained in State v. Burchfield, 218 Ala. 8, 117 So. 483 (1928), so the Commission’s argument is inapposite.

The Commission’s remaining arguments deal with the propriety of mandamus. The Commission’s argument is two-fold: (1) the phrase “comparable to” is too indefinite to support mandamus; and (2) the county has no funds to comply with the mandamus.

The contention that the phrase “comparable to” is too indefinite to support mandamus is not well taken. The word “comparable” is defined by Webster’s Third New International Dictionary (unabridged 1971) as meaning “suitable for matching, coordinating or contrasting: equivalent, similar.” [Emphasis added.] Inserting this definition into the local acts reveals that the deputies’ compensation “shall be equivalent or similar to State Troopers in Alabama State Highway Patrol.” An $85 discrepancy is not “similar to,” and it is certainly not “equivalent.” If the deputies were quibbling over two or three dollars we might be inclined to say that mandamus would not lie as the directive of the local acts had been complied with. But that is not the case presented. Here the local acts are sufficiently explicit to support mandamus. The deputies are entitled to an increase equal to that given the state troopers.

The Commission’s final defense, that the county has no funds to comply with the mandamus, relies primarily on the Budget Control Act, § 11-8-1, et seq., Code 1975. Section 11-8-3 of that act provides:

“It shall be the duty of the county commission, at some meeting in September of each calendar year or not later than its first meeting in October following, to prepare and adopt an estimate of the income of the county for the fiscal year beginning on October 1 of the current calendar year for all public funds under its supervision and control, and to estimate for the same fiscal year the expense of operations and to appropriate for the various purposes the respective amounts that are to be used for each of such purposes; provided, that the appropriations so made shall not exceed the estimated total income of the county available for appropriations.
“In order that such estimate of income and operating expenses may be as nearly correct as possible the county commission shall call upon any public official who handles any incoming moneys, or who issues any kind of order payable out of the county treasury without approval of such county commission to furnish them in writing an estimate of such income and of the probable amount of orders he will be called upon to issue during such fiscal year and it shall be the duty of such official to furnish such estimates without delay.”

The Commission cannot, however, use this statute as a shield to ward off its legal responsibilities. The county budget was adopted in October, 1977. At that time the Commission had notice that the deputies were asserting a claim to a pay raise that was to become effective October 1, 1977. Furthermore, the county had previously acknowledged the validity of the deputies’ position by complying with an attorney general’s opinion of December 17, 1973, which stated that the local general reference statutes entitled certain Shelby County employees to a $5 per day subsistence allowance granted to certain state law enforcement officers (including state troopers). If the Commission, in drawing up the county budget, chose to ignore these statutes and their operation as previously construed, of which the Commission clearly had notice, the Commission did so at its peril, and cannot now rely on the Budget Control Act to escape its clear liabilities. To so hold would allow county commissions to avoid legally valid claims by simply omitting them from the budget.

Nor are we persuaded by the contention contained in an affidavit of the Clerk of the County Commission that there are no funds to pay the raises. The deputies controverted this by pointing out items on the budget for non-essential services which are lower priority claims when compared to the deputies’ salaries. See § 11-12-15, Code 1975. We must, therefore, agree with the trial court that the defense of lack of funds was not made out.

By way of cross-appeal the deputies seek an award of attorneys’ fees. In this state attorneys’ fees are recoverable “only where authorized by statute, when provided in a contract or in an equitable proceeding where the efforts of an attorney creates a fund out of which fees may be paid.” State ex rel. Payne v. Empire Life Ins. Co., 351 So.2d 538 (Ala.1977); Parker v. Jefferson County Com’n, 347 So.2d 1321 (Ala.1977). The deputies do not attempt to come within one of these exceptions. Instead they direct our attention to an interesting recent decision by the California Supreme Court, Serrano v. Priest, 20 Cal.3d 25, 141 Cal.Rptr. 315, 569 P.2d 1303 (1977), in which that Court authorized the awarding of attorneys’ fees on a “private attorney general” theory. We, however, are not inclined to make such a drastic change in Alabama law and overrule such a clear line of precedent without legislative authorization. Accord Alyeska Pipeline Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975). Consequently, we deny relief on the deputies’ cross appeal and affirm the judgment of the trial court in all respects.

AFFIRMED.

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

SHORES, J., dissents.

APPENDIX

Act No. 735

AN ACT

To amend Section I of Act No. 37, H. 66 Organizational, Special and Regular Sessions 1971 (Acts 1971, p. 4170) as amended which applies in Shelby County, designating the number of employees authorized by the sheriff’s department, compensation of such employees, and sheriff and residence requirements of such employees, and to repeal conflicting laws.

Be It Enacted by the Legislature of Alabama:

Section 1. Section 1 of Act No. 37, H. 66, Organizational Special and Regular Session 1971 (Acts 1971, p. 4170, as amended, be and the same is hereby deleted and there is substituted in lieu thereof, the following:

“Section 1. (a) In lieu of any and all chief deputy sheriff, deputies sheriff, jailers or matrons heretofore authorized by law, the sheriff is hereby authorized to appoint not less than the following number of employees whose compensation shall be paid from the county treasury each month in the amounts listed below,

Number of Employees Authorized Rank Compensation

1 Chief Deputy Shall be comparable to a Captain in Alabama State Highway Patrol

1 Lieutenant Shall be comparable to a Lieutenant in Alabama State Highway Patrol

12 Deputies Shall be comparable to State Trooper in Alabama State Highway Patrol

4 Matrons Shall be comparable to a Clerk Stenographer III in the Alabama Department of Public Safety

3 Jailers Shall be comparable to State Troopers in Alabama State Highway Patrol

1 Chief Shall be comparable to and not less than Ala-Investigator bama Highway Patrol Investigator Sergeant, and not more than Alabama State Highway Patrol Investigator Captain; between said limitations, the sheriff shall fix said employee’s salary.

Number of Employees Authorized Rank Compensation

3 Sergeants Shall be comparable to a Sergeant in State Trooper in Alabama State Highway Patrol

4 Patrolmen Shall be comparable to State Trooper in Alabama State Highway Patrol

The primary duties of these patrolmen shall be to patrol 1 each in three of the commissioner’s districts and 1 in District 3.

Any of the above officer’s salaries and other remuneration or benefits to said officers may be funded under the Law Enforcement Assistance Act so long as such funds are available, and when not available, said officers shall be paid out of the General Fund of Sheilby County or out of any other fund from which the Shelby County Commission elects to pay said officers.

“(b) The Chief Deputy, Lieutenant, Chief Investigator, and Sergeant shall begin employment under the provisions of this act in a grade not greater than grade 4 corresponding to the rank listed opposite said position. All other personnel listed shall begin employment under the provisions of this Act in the grade corresponding with the number of years experience in law enforcement.”

Section 2. All laws or parts of laws which conflict with this Act are repealed.

Section 3. This Act shall become effective immediately upon its passage and approval by the Governor, or upon its otherwise becoming a law.

Act No. 417

AN ACT

To regulate further the compensation of certain public officers; to provide for such a salary adjustment for Alabama state troopers and police communications officers as will bring the salaries of these employees of the Department of Public Safety to a level approximating the average salary of like employees in the Southeastern United States; to make an appropriation to implement this act; and to repeal conflicting laws.

Be It Enacted by the Legislature of Alabama:

Section 1. The Legislature of Alabama commissioned a study of state salary structures in 1975 and such study indicated that a notable salary lag existed between state troopers in Alabama and other troopers of the Southeast and the Nation. Recognizing the qualifications and training required for personnel filling these positions, their constant exposure to danger, their irregular work schedules under a wide range of conditions, the Legislature does hereby appropriate out of the general fund, for the fiscal year beginning October 1, 1977, the sum of $2,480,000.00 to implement this act.

Section 2. The State Personnel Department shall increase the salaries of the following classifications of employees within the State Department of Public Safety in the amount of $115.00 bi-weekly: State Trooper Cadet, State Trooper, State Trooper Corporal, State Trooper Sergeant, State Trooper Lieutenant, State Trooper Captain, State Trooper Major, Police Communications Officer I, Police Communications Officer II, and Police Communications Supervisor I.

Section 3. The Director of the State Personnel Department shall revise the schedule of rates set forth in the pay plan for classes of employees enumerated in Section 2 subject to the merit system law to reflect this increase herein provided and shall certify the same to the State Comptroller who shall issue his warrants in accordance therewith.

Section 4. The provisions of this act are severable. If any part of the act is declared invalid or unconstitutional, such declaration shall not affect the part which remains.

Section 5. All laws or parts of laws, general, local or special, in conflict with this act are hereby repealed.

Section 6. This act shall become effective on the beginning of the first state pay period beginning on or after October 1, 1977. It is specifically provided, however, that this act shall not affect the compensation of any officer or employee of Coosa County or of Tuscaloosa County even though the compensation of such officers was heretofore prescribed by a law, which based such compensation on or in some way related it to the compensation of one or more of the positions in the above listed classifications.

      . The local acts are as follows: 1971: Acts 1971, No. 37, p. 4170; 1973: Acts 1973, No. 870, p. 1374; 1976: Acts 1976, No. 735, p. 1015. The 1976 act is set out in the appendix as an example of the legislative scheme.


author: BLOODWORTH, Justice.

text:
    James E. POSTON v. Martha A. T. GADDIS, etc., et al.
    77-796.
    Supreme Court of Alabama.
    June 22, 1979.

      Joe S. Pittman, Enterprise, for appellant.
    Kenneth T. Fuller, of Cassady, Fuller & Marsh, Enterprise, for appellees.
   BLOODWORTH, Justice.

This is the second appeal of this case. In Poston v. Gaddis, 335 So.2d 165 (Ala.Civ. App.1976), cert. denied, 335 So.2d 169 (Ala.), the Court of Civil Appeals reversed and remanded a judgment in favor of the plaintiffs Gaddis because the trial court erred in denying defendant Poston the right to a jury trial in the breach of contract action and on the counterclaims. The facts out of which the controversy arose are well stated in the opinion of the Court of Civil Appeals, id. 335 So.2d at 166:

“[Hubert D. Gaddis and Martha A. T. Gaddis] and defendant James E. Poston entered into a contract for the construction and sale of a house in consideration of payment by plaintiffs of $38,500.00. During construction certain changes were made departing from the original plans and specifications^ Such changes resulted in an overrun from the contract price. The authorization for many of the changes was disputed in the evidence. Defendant presented plaintiffs a statement for the increased price due to the alleged overrun. Plaintiffs disputed the overrun and authorization of the changes in construction. Defendant refused to convey to plaintiffs unless paid some $43,-000.00, and placed the house on the market for sale. [Mr. and Mrs. Gaddis] brought suit against Poston and his wife for specific performance and damages for breach of contract . . ..”
⅜ ⅜ * ⅜ ⅜ ‡
“Subsequent to plaintiffs filing suit, defendant sold and conveyed the property to James and Charlotte Oliver. Plaintiffs amended suit and added the Olivers as defendants for specific performance.”
‡ * ⅜ ‡ * *
“The matter proceeded to trial on complaint and counterclaims. Judgment was entered denying specific performance to plaintiffs, denying relief on defendants’ counterclaims but granting damages to plaintiffs for breach of contract.”

335 So.2d 165, 166.

Plaintiffs Gaddis did not appeal the denial of their plea for specific performance on the first appeal. After the reversal of the award of money damages on the first appeal, and on remand, plaintiff Martha A. T. Gaddis filed a suggestion of the death of plaintiff Hubert D. Gaddis and, as executrix of the estate of Hubert D. Gaddis represents the estate. The second action was for damages claimed by plaintiffs and for damages claimed by defendant Poston on his counterclaim. The jury found for plaintiffs Gaddis solely in the sum of $10,196.60. Defendant Poston appeals. We reverse and remand.

Jurisdiction

At the outset, we are faced with a jurisdictional problem. Defendant Poston indicates, in his brief, that his counterclaim for damages of $25,000 for breach of the amended construction contract was dismissed on his own motion. But, the record contains no formal order dismissing the counterclaim. No motion to dismiss the counterclaim was either orally made or granted during the course of the trial. The only notation of record is on the margin of the counterclaim by the label “COUNTERCLAIM” where there appears the word “out.” Clearly, this notation is not sufficient under Rule 58(b), ARCP to constitute an order of court dismissing the counterclaim, because it does not appear who wrote this word or when it was written and the requisite “intention to adjudicate” cannot be inferred under these circumstances.

The case was tried to the jury solely on plaintiffs’ claim, and the jury responded by giving the plaintiffs a verdict. Thus, a threshold jurisdictional question is presented: “In the absence of an order of dismissal of the counterclaim or a Rule 54(b), ARCP order, is the decree of the trial court a final judgment capable of supporting an appeal?” We think so.

In Hingle v. Gann, 368 So.2d 22 (Ala.1979), this Court held that where the trial court’s final decree in a boundary dispute established the true boundary between the parties but made no mention of damages for trespass sought by both plaintiffs and defendants, each claim for money damages will be deemed denied by the trial court.

Similarly, in Johnson v. McDole, 394 F.Supp. 1197 (W.D.La.1975), the federal district court in Louisiana (in which an action was brought to enforce a California judgment) held that where a default judgment on a cross-complaint, containing two claims, failed to mention one claim and no evidence was offered on that point at the default judgment hearing, the claim was deemed to have been rejected by the California court.

It is thus we conclude that when no evidence is presented concerning a claim, the court’s oral charge to the jury makes no mention of such claim and judgment is rendered on all other issues presented and covered by the oral charge, then the judgment will be considered a final judgment as to all issues. Authorities, supra. On the other hand, if a claim is to be adjudicated in a separate proceeding, the record must reflect an order of severance or an order for a separate trial entered prior to judgment. See Key v. Duke Insurance Agency, 340 So.2d 781 (Ala.1976). In the absence of such an order in this situation, the judgment will be deemed a final judgment on all issues pleaded and any claims which are not specifically disposed of in the judgment will be deemed to have been rejected or denied.

Merits

On this appeal, defendant contends that because there were certain changes made during the construction of the house, this vitiated the original written contract and that the terms of the modified agreement were not sufficiently certain to support an award of money damages. As authority for his position, defendant relies primarily on Dendy v. Anchor Construction Co., 294 Ala. 120, 313 So.2d 164 (1975). However, in Dendy the Court affirmed a denial of specific performance because the trial court could have concluded that the terms of the agreement to sell land were not clearly understood and that there was sufficient evidence of the abandonment of the contract. Thus, there was no abuse of discretion by the trial court. In the instant case since the demand for specific performance was specifically denied in the first action, we regard Dendy as being inapt authority.

The next issue raised is whether the trial court erred in admitting into evidence over objection a deed executed shortly before trial conveying property from defendant Poston to his wife without consideration. Evidence of one’s property transfers after the occurrence of some event which may render him liable in damages is admissible to show a consciousness of liability and a purpose to avoid satisfaction of it. Prestwood v. Ivey, 273 Ala. 281, 138 So.2d 713 (1962); Burdett v. Hipp, 252 Ala. 37, 39 So.2d 389 (1949). Thus, the admission of such evidence does not constitute reversible error.

Defendant also contends that the trial court erred in admitting into evidence over objection a title insurance policy issued to the Olivers, purchasers of the house and lot in question, because the insurance policy was outside the framework of the issues and its admission was in violation of Rule 18(c), ARCP. Since the policy was not a liability policy of the defendant, Rule 18(c) does not apply. However, assuming ar-guendo, that error was committed in the admission of this policy, the error was “harmless” since no substantial rights of defendant Poston were affected. Rule 61, ARCP. The admission of this evidence was clearly not prejudicial.

Defendant next asserts that the trial court erred in giving certain written charges requested by the plaintiffs. These written charges are not of record. Although the Committee Comments to Rule 10, ARAP indicate that Rule 10 abolishes the presumption that if there is any omission from the record of any matter essential to a decision of any question presented on appeal the ruling of the trial court will be deemed correct, in Smith v. Haynes, 364 So.2d 1168 (Ala.1978), this Court held:

“We agree with the Court of Civil Appeals in its reiteration of the long-standing and well-settled principle of our cases that a trial court’s findings and conclusions on the facts will not be reviewed when it affirmatively appears there was evidence before the trial court which was not in the record on appeal, and that where all the evidence is not in the record, it is presumed the missing evidence is sufficient to support the judgment appealed from. . . . ”
******
“[W]e think the appellees had a right to rely on the appellant’s designation . . . It is certainly the obligation of the party designating to see that the matters designated are placed in the record.”

In the instant case, defendant designated “the entire reporter’s record, including all written charges given by the court”; however, it was his obligation to see that all matters designated were placed in the record. Thus, because the written charges requested by the parties are not of record, we cannot review whether the trial court erred in giving the charges requested by plaintiffs.

The next issue raised is whether under the “Dead Man’s Statute” (§ 12-21-163, Code 1975), the trial court erred in sustaining plaintiffs’ objections to questions concerning the substance of conversations the defendant had with Hubert D. Gaddis, deceased.

Defendant asserts that because he was called by the plaintiffs as an adverse witness and questioned with regard to various aspects of his “transaction” with the deceased, his incompetency under the Dead Man’s Statute was waived. Pertinent parts of his testimony indicating how the “Dead Man’s Statute” question arose are as follows:

[DIRECT EXAMINATION]
[By Plaintiffs’ Attorney]
“Q You had entered in the contract to build the house for $38,500 had you not?
“A Yes, sir.”
******
“Q Mr. Poston, your contract with Mr. and Mrs. Gaddis provided that they would pay you the sum of $38,500 upon completion of the house, did it not?
“A Yes, sir. In accordance with these plans.”
******
“Q I show you a letter dated February 5, 1974, to Col. Gaddis and ask you if you wrote that letter? ..
“THE COURT: Gentlemen, while he is looking at that — David,, did you get that last exhibit marked?
“THE REPORTER: Yes, sir.
“Q Now, in this letter, that letter is dated February 5, is it not, Mr. Poston?
“A Yes, sir.
“Q And that makes demand upon Col. Gaddis upon certain costs and expenses incurred by you does it not?
“A Yes, sir. In regard to the requested changes.
“Q In regard to the requested changes. That’s the only statement you ever gave him of requested changes on that house, isn’t it?
“A Well, the changes were his request to me.
“Q That’s not answering my question, Mr. Poston. That’s the only list or statement of anything you ever gave him on any changes, isn’t it?
“A I believe so, yes, sir.”
******
“Q All right, sir. Do you remember when I took your deposition back in May, the 31st of May, 1974?
“A I remember we had a deposition, yes, sir.”
******
“Q Mr. Poston, I read you this question, if you recall this: ‘Now, are you saying under oath that all of those changes were made at his request and his promise to pay for them?’ Answer, ‘Yes, sir. With the possible — ’, ‘$125’, ‘The actual value of some items could stand correction. But the number of items, requested items — ’, you answered that question in that manner, didn’t you?
“A Yes, sir.”
******
[CROSS EXAMINATION]
[By Defendant’s Attorney]
“Q Now, I believe Mr. Fuller asked you if you did not have a conversation with Col. Gaddis sometimes in the later part of January with respect to these additional costs? Is that true?
“MR. FULLER: No, sir. I did not ask him if he had a conversation, I asked him if he had a cost overrun.
“MR. PITTMAN: Did you have a conversation?
“A Yes, sir.
“MR. FULLER: We object to any conversations.
“Q In the latter part of January with respect to cost overruns?
“MR. FULLER: We would object.
“THE COURT: Sustained.
“MR. PITTMAN: I am not asking him the contents of it just if there were a conversation.
“THE COURT: All right, sir. You may answer.
“MR. FULLER: I have no objection to the witness answering yes or no. That’s what I am fixing to try to tell him. You may answer yes or no.
“Q Was there such a conversation between you and Col. Gaddis in January about costs of these extras?
“A Yes, sir.
“Q All right, sir. Now, what did this February 5th letter say, after this January conversation?
“A Listed the actual — the cost, the items and the cost for each item.
“Q I will ask you to look at this February 5th letter and I will ask you if there is a detailed breakdown in that letter concerning the cost of these extras?
“A Yes, sir. I have listed twenty items, each one of them giving a cost.
“Q All right. Now, February 5th is subsequent or later than January, the conversation that you had with Col. Gaddis, is it not?
“A Yes, sir.
“Q I will ask you if this letter was in response to that conversation in the latter part of January?
“A It was.”
* # # * * *
“Q All right. Mr. Poston, did you have any conversations — put it in the singular. Did you at any time have any conversations with Col. Gaddis about what you were to do in connection with making additions and extras to this dwelling?
“MR. FULLER: As long as he answers yes or no we have no objections.
“A Yes, sir.
“Q All right. Did you ever have any requests on the part of Mrs. Gaddis with respect to additions to be made to this house over and above the plans and specifications agreed upon?
“A Yes, sir.”
* # # * # #
[RE-DIRECT EXAMINATION]
[By Plaintiffs’ Attorney]
“Q I followed by asking you this question, ‘So, in January of 1974, when you asked for the cancellation of his firm commitment, you knew that you were not going to sell that house to him?’, and your answer was, ‘It was quite apparent.’ Now, that was your testimony from that witness stand at that prior trial wasn’t it, sir?
“MR. PITTMAN: Wait a minute, now, are you talking about his conversations with Col. Gaddis?
“MR. FULLER: No, sir. His testimony regarding this lawsuit.
“MR. PITTMAN: That’s based on his conversations with Col. Gaddis, isn’t it?
“MR. FULLER: No, sir. There is nothing there about a conversation with' Col. Gaddis. If you want me to read it again, I will.
“MR. PITTMAN: Read it.
“Q ‘So, in January of 1974, when you asked for the cancellation of his firm com-mittment, you knew you were not going to sell the house to him?’ ‘Well, it was quite apparent;’ That was your testimony wasn’t it, Mr. Poston?
“A Yes, sir.”
# * * * * *
[RE-CROSS EXAMINATION]
[By Defendant’s Attorney]
“By Mr. Pittman:
“Q ■ Now, Mr. Poston, I want to — want you to explain to the Court and jury why it was apparent to you in the latter part of January that it looked like or — that Col. Gaddis was not going to buy the house?
“MR. FULLER: We object, please the Court.”
* * * * * *
“MR. PITTMAN: What I am asking the witness, Your Honor, and he has a right to explain any answer, is why was it apparent in the latter part of January. Why was it apparent?
“A Because of conversations that I had with Col. Gaddis in which he had—
“MR. FULLER: We object to the conversations.”
* * * * * *
“THE COURT: All right. Woah. I will cut him off in view of the ruling I made. He can say he had the conversation with Col. Gaddis, but I will not permit him to say what the substance of that conversation was.”
“. . . The policy objective underlying the Dead Man’s Statute is to prevent testimony by living witnesses as to transactions with a person who is no longer alive to contradict such testimony.
Walling v. Couch, 292 Ala. 33, 288 So.2d 435 (1973).

In German, as Executor, v. Brown & Leeper et al., 145 Ala. 364, 39 So. 742 (1905), this Court held that where the plaintiff propounded interrogatories to the defendants concerning the time they were employed to perform certain services and the identity of their employer, and the interrogatories were introduced into evidence by the plaintiff, the trial court properly allowed defendants to testify over objection as to their employment by the deceased and to testify to what was said by and agreed to between deceased employer and them with respect to the employment.

In the instant case, defendant himself was called as an “adverse witness” and was questioned by plaintiffs’ counsel about, and testified concerning, various matters with regard to his transaction with the deceased, including the signing of the contract with the Gaddises and the surrounding circumstances as to the existence of a cost overrun due to the changes in construction made at the request of the deceased. The defendant’s incompetence under the Dead Man’s Statute was therefore waived and, following this waiver, defendant was competent to testify concerning the entire transaction about which he was examined by the opposing party. German v. Brown & Leeper, supra. See also Sullivan v, Lawler, 222 Ala. 628, 133 So. 911 (1931).

In Brett v. Dean, 239 Ala. 675, 196 So. 881 (1940), this Court held:

“If the opposing party makes the incompetent witness his own he waives any objection to the witness because of incompetency. He may then testify as to the whole transaction about which he was examined by the opposing party. Code, § 7721.
“So, if answers to interrogatories propounded to the witness under the statute are offered in evidence, this waives any objection to incompetency. German, as Executor, v. Brown & Leeper et al., 145 Ala. 364, 39 So. 742.” [Emphasis supplied.]

Thus, the trial court’s refusal to allow defendant to testify concerning the substance of his conversations with the deceased was error to reverse.

Defendant also contends that the trial court erred in refusing to allow him to amend the pleadings in order to include the failure to comply with the Statute of Frauds as an affirmative defense. Rule 15(a), ARCP expresses a liberal policy with regard to amendment of pleadings when it states:

“[A] party may amend his pleading without leave of court but subject to disallowance on the court’s own motion or motion to strike of an adverse party; but such amendments shall be freely allowed when justice so requires. . . . ” [Emphasis added.]

The Committee Comments are also helpful in interpreting Rule 15:

“. . . Normally an amendment should be denied only if the amendment would cause actual prejudice to the adverse party. . . [Emphasis added.]

Thus, the disallowance of an amendment of pleadings must be based upon a valid ground such as prejudice or undue delay. McElrath v. Consolidated Pipe & Supply Co., 351 So.2d 560 (Ala.1977); Huskey v. W. B. Goodwyn Company, Inc., 295 Ala. 1, 321 So.2d 645 (1975).

Plaintiffs assert that because of the passage of time between the original complaint and the proffered amendment, the amendment was properly disallowed. In National Distillers and Chemical Corporation v. American Laubscher Corporation, 338 So.2d 1269, 1274 (Ala.1976), this Court stated:

“. . . [T]he fact that a significant amount of time transpired between the original complaint and the various amendments does not in itself affect our conclusion. In Green v. Wolf Corporation, 50 F.R.D. 220 ([D.C.] N.Y.1970), the amendments were offered almost four years after the initial complaint. The only explanation given by the attorney was that the laws involved were complex and that the new theory advanced simply did not occur to him previously.
“ ‘[Njeither long delay nor the fact that a proposed amendment is motivated by an afterthought of counsel as to the best theory upon which to proceed, by themselves, suffice as reasons for denying leave to amend.’ Id. at 223. “On the other hand, delay as a predi-
cate for a finding of bad faith would be sufficient reason to deny leave to amend. Id.”

Plaintiffs in this case fail to assert how actual prejudice would result if leave to amend the pleadings were granted. In Pierside Terminal Operators, Inc. v. M/V Floridian, 423 F.Supp. 962 (E.D.Va.1976), leave to amend an answer so as to include the Statute of Frauds as an additional tria-ble issue was granted since addition of the Statute of Frauds question would not prejudice the plaintiff in that it did not arise from additional evidence to which plaintiff lodged objection and, it was not outside plaintiffs knowledge of the true facts but, rather, was within facts pleaded and proved. In the instant case as in Pierside, leave to amend the answer might not prejudice the plaintiffs and the trial court may have erred in disallowing amendment. We leave that issue unresolved, however, in order to give the trial court, on reversal, an opportunity to weigh these respective factors.

Because the trial court erred in sustaining plaintiffs’ objections based on the Dead Man’s Statute, the judgment appealed from must be reversed and the cause remanded.

REVERSED AND REMANDED.

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


author: HOLMES, Judge.

text:
    John F. ATKINSON v. Betty J. ATKINSON.
    Civ. 1771.
    Court of Civil Appeals of Alabama.
    July 11, 1979.

      Charles T. Reese, Daleville, for appellant.
    Joel M. Nomberg, Daleville, for appellee.
   HOLMES, Judge.

The Circuit Court of Dale County reduced the amount of periodic alimony the husband was required to pay. The husband appeals contending that the trial court erred to reversal in refusing to terminate periodic alimony.

The husband, through able counsel, contends that § 30-2-55, Code of Ala.1975 (Cum.Supp.1978), mandates that in this instance the periodic alimony must be terminated. We disagree and affirm.

Section 30-2-55, Code of Ala.1975 (Cum. Supp.1978), is as follows:

Any decree of divorce providing for periodic payments of alimony shall be modified by the court to provide for the termination of such alimony upon petition of a party to the decree and proof that the spouse receiving such alimony has remarried or that such spouse is living openly or cohabiting with a member of the opposite sex.

Specifically, the husband argues that the evidence shows the wife is “living openly or cohabiting with a member of the opposite sex.”

We have carefully reviewed the record and there is evidence that the wife for a period of six months lived openly or cohabited with one Ben Miller. There is testimony that Miller’s clothes, tools, saws, and other personal property were moved into the wife’s house. Furthermore, there is evidence that Miller ate his meals in the home; that his laundry was done there; and that he performed a few chores around the home including cutting the grass.

However, this matter was heard ore ten-us by the trial judge and there is evidence from the wife that Miller only resided in her home for three weeks. This testimony was corroborated by that of the next door neighbor. Based upon these facts, the court was not convinced that the wife’s conduct, though less than exemplary, was such to constitute open and notorious cohabitation as to forfeit the right to alimony under § 30-2-55.

There are no reported appellate decisions interpreting § 30-2-55. Our function, therefore, is to construe the legislation in accord with the legislature’s intent in this enactment. Tillman v. Sibbles, Ala., 341 So.2d 686 (1977).

The language of the statute requires the petitioner who invokes its provisions to convincingly prove that a former spouse is living openly or cohabiting with a member of the opposite sex. This is a factual determination and where, as here, the trial court hears the testimony and finds the petitioner has not met the attendant burden of proof, it is inappropriate for this court to substitute its judgment for that of the trial court. See, e. g., Sutton v. Sutton, 55 Ala.App. 254, 314 So.2d 707 (1975).

The husband contends the statutory burden of proof was met in this instance because under § 30-2-55, alimony terminates when a spouse lives openly with another without regard to the brevity of the occurrence. The wife, as we perceive her argument, adopts the position that the conduct of an errant former spouse must be sufficient to establish common-law matrimonial cohabitation in order for the statute to become operative.

We are of the opinion that the legislature could not have intended either of these contentions under a rational, sensible construction. Dixie Coaches v. Ramsden, 238 Ala. 285, 190 So. 92 (1939). The conduct proscribed by the statute lies between these two extremes and the determination of whether a spouse has exhibited such conduct is necessarily a question of fact in each case. Stated alternatively, while not every occurrence of postmarital unchastity by a former spouse will bar the right to alimony, O’Dell v. O’Dell, 57 Ala.App. 185, 326 So.2d 747 (1976); Rubisoff v. Rubisoff, 242 Miss. 225, 133 So.2d 534 (1961), it is not incumbent upon a petitioner to prove the former spouse is habitually living with another with objective manifestations that the spouse and the paramour consider themselves married. See, e. g., N.Y.Dom.Rel.Law § 248 (McKinney 1977); Northrup v. Northrup, 43 N.Y.2d 566, 402 N.Y.S.2d 997, 373 N.E.2d 1221 (1978).

In the instant case, considering the totality of the circumstances, with particular emphasis on the occurrence in question as testified to by the wife, it was well within the trial court’s discretion to find that the wife’s conduct did not bar her right to receive alimony under the statute.

For the foregoing reasons, we find the trial court did not abuse its discretion as to require reversal.

In view of the above, other matters alluded to by able counsel for the husband need not be discussed.

AFFIRMED.

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


author: BRADLEY, Judge.

text:
    James Burnice WARWICK v. Iris Pearl WARWICK.
    Civ. 1794.
    Court of Civil Appeals of Alabama.
    July 11, 1979.
    Reggie Stephens and Michael Scheuer-mann, Mobile, for appellant.
    Edward B. McDermott of McDermott, Deas & Boone, Mobile, for appellee.
   BRADLEY, Judge.

This is a domestic relations case. The issue presented to this court for review is whether the trial court erred to reversal in denying the husband a one day continuance of a hearing and/or in denying his motion for instanter rehearing. We find no gross abuse of discretion by the trial court and affirm.

The parties to this appeal were married in 1956. In March 1977 the husband filed suit for divorce alleging that his wife was a non-resident of Alabama and that he did not know her present whereabouts. Following publication in the' local newspaper of notice of the divorce action, the husband was granted the divorce by default judgment on June 22, 1977.

On November 7, 1978 the wife filed a motion to set aside the judgment of divorce, alleging that the decree was procured by fraud and that at the time the decree was rendered the parties were living together as husband and wife in Georgia. The wife later filed an answer and cross-complaint for divorce, a motion for alimony, child support, and attorney’s fees pendente lite, and a motion for possession of the home-place (a mobile home).

The wife’s motion to set aside the divorce decree and her other motions were set down for hearing on December 14, 1978. On that date the wife and her counsel appeared, but the husband’s attorney requested a continuance due to the fact of his (the husband’s attorney’s) involvement in a criminal trial that day. The husband was “on call” to be present at the hearing, if necessary, but the requested continuance was granted. The matter was reset for December 19, 1978. It appears from the record that the husband’s attorney was unable to contact the husband until sometime on December 18th to inform him of the December 19th hearing; but the husband stated that his job required him to be out of town on the 19th, and that he would lose his job if he did not make the business trip.

At the hearing on the 19th plaintiff’s attorney requested the trial court to continue the case on a day to day basis so that the husband could appear and testify. The trial court denied this request, heard testimony from the wife, then entered an order, dated December 19, 1978, setting aside the judgment of divorce.

The husband moved for an “instanter rehearing,” requesting that the court vacate its December 19th order which set aside the judgment of divorce. A hearing on the husband’s motion for instanter rehearing was held on January 3, 1979. At this hearing the husband’s attorney attempted to adduce testimony from the husband to refute the wife’s allegation that the divorce decree was fraudulently obtained. However, the trial court refused to allow plaintiff’s attorney to inquire into the same facts about which the' court had heard testimony on December 19th; whereupon the proceeding terminated. The trial court entered an order dated January 3, 1979, denying the husband’s motion for instanter rehearing.

The husband contends on appeal that the trial court abused its discretion in not granting the continuance requested at the December 19th hearing, and that the trial court further abused its discretion in not allowing the husband to present evidence as to the reasons why he should be granted a rehearing on the wife’s motion to set aside the judgment of divorce. In the alternative, the husband petitions this court to issue a writ of mandamus to the trial court, ordering that the wife’s motion be set for a new and complete hearing.

We are not persuaded that the husband is entitled to the relief he seeks. It is well-settled that continuances are not favored. See e. g., Cavalier Insurance Corp. v. Gann, 57 Ala.App. 519, 329 So.2d 573 (1976). The grant or refusal of a continuance is within the discretion of the trial court and such ruling will be revised on appeal only where it is shown that such discretion has been obviously and palpably abused. Arant v. Grier, 286 Ala. 263, 239 So.2d 188 (1970); Sherk v. Sherk, 55 Ala.App. 345, 315 So.2d 437 (1975); see also, 4A Ala.Dig., Continuance, «=>7.

Under the facts presented by this record, we find no palpable, obvious abuse of discretion in the trial court’s refusal to set down for the third time the hearing on the husband’s motion. Indeed, such requests for a second continuance are seldom favored. McWhorter v. McWhorter, Fla.App., 122 So.2d 504 (1960); see also, 17 C.J.S. Continuances § 112 (1963).

Nor do we find persuasive the principal case relied upon by appellant, Huskey v. W. B. Goodwyn Company, 295 Ala. 1, 321 So.2d 645 (1975). The Alabama Supreme Court said in Huskey that a defending party may justifiably request a continuance in order to prepare to meet the new allegations contained in complaint that had been amended five days prior to the request for continuance. In the case at bar the wife’s motion to set aside the judgment of divorce was filed five weeks prior to the first scheduled hearing on that motion. Moreover, the Huskey case involved but one requested continuance.

There being no gross abuse of discretion by the trial court, this case is affirmed.

The wife has requested an award of attorney’s fees for this appeal. An award of $500 is hereby granted.

AFFIRMED.

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


author: PER CURIAM.

text:
    Charles William PROFFITT, Appellant, v. STATE of Florida, Appellee.
    No. 57146.
    Supreme Court of Florida.
    June 25, 1979.
    Howell L. Ferguson, Tallahassee, James M. Russ, Orlando, Kathryn Emmett, Stamford, Conn., Anthony G. Amsterdam, Stanford, Cal., Jack Greenberg, James Nabrit, III, Joel Berger, John Charles Boger, and Deborah Fins, New York City, for appellant.
    Jim Smith, Atty. Gen., A. S. Johnston and Charles A. Stampelos, Asst. Attys. Gen., Tallahassee, for appellee.
   PER CURIAM.

This is an appeal from a denial, without an evidentiary hearing, of appellant’s second motion for post-conviction relief under our Rule of Criminal Procedure 3.850. A previous appeal from a denial of post-conviction relief was dismissed by this Court as legally frivolous. Proffitt v. State, 360 So.2d 771 (Fla.), cert. dismissed on petitioner’s own motion, 439 U.S. 920, 99 S.Ct. 294, 58 L.Ed.2d 266 (1978). This appeal is also legally frivolous and is therefore dismissed.

The motion for stay of execution is denied.

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

HATCHETT, J., not participating.


author: BOYD, Justice.

text:
    SCHOOL BOARD OF PINELLAS COUNTY, Florida, Petitioner, v. Walter B. NOBLE et al., Respondents.
    No. 52574.
    Supreme Court of Florida.
    June 28, 1979.

      B. Edwin Johnson, Gen. Counsel, Clear-water, for petitioner.
    Richard H. Frank, John J. Chamblee, Jr. and Mark F. Kelly of Law Offices of Richard H. Frank, Tampa, and Gene T. Sellers, Counsel, State Board of Education, Tallahassee, for respondents.
   BOYD, Justice.

In this case we are presented with the question of whether a district school board may seek judicial review of a decision of the state Board of Education setting aside a dismissal of a teacher on continuing contract. The district court of appeal answered that question in the negative by dismissing the district school board’s appeal. School Board of Pinellas County v. Noble, 349 So.2d 235 (Fla. 1st DCA 1977). Since that decision affects constitutional school district officers, we have jurisdiction. Art. V, § 3(b)(3), Fla. Const.

On September 30,1974, the school district superintendent filed with the Professional Practices Council of the Department of Education a “petition for hearing and notice of charges” naming district employee Walter Noble as respondent. This referral of charges to the department invoked its authority “to recommend action to a school board in cases of violation of the standards of professional practice for all teachers . . . .” § 231.57(6)(c), Fla.Stat. (1973).

The petition alleged that Noble, a member of the district’s supervisory staff, violated section 232.023, Florida Statutes (1973), section 231.36, Florida Statutes (Supp.1974), and the code of ethics of the Professional Practices Council. The Professional Practices Council, through a hearing committee of three of its members, held a hearing on April 10,1975. The committee then issued written findings of fact. The committee found that a teacher under Noble’s supervision incurred expenses in working on a school project at Noble’s request. Subsequently, Noble suggested that the teacher effect reimbursement by falsely claiming three hours of time worked. The committee found further that Noble falsely reported his compliance with a school district policy of requiring supervisors to return to the classroom as instructors for four days during the school year.

Based on the falsification of payroll records, the committee found that Noble violated section 232.023. Based on the false statement of compliance with the in-service training policy, the committee found that he violated rule 6B-1.03(2)(b), Florida Administrative Code, a subsection of the teachers’ code of ethics. It found further that “the respondent did not violate any other statute or rule.” The Professional Practices Council, acting through its hearing committee, recommended as discipline a letter of reprimand.

The record of proceedings before the council, the council’s findings and recommendation, and Noble’s exceptions thereto were transmitted to the district school board for action on the district superintendent’s recommendation that Noble be dismissed and his continuing contract can-celled. The district board held a hearing during which it reviewed the record of proceedings before the council. Thereafter it issued an order adopting the findings of fact and conclusions of the council and ordering Noble dismissed effective October 21, 1975.

Noble appealed his dismissal to the state Board of Education. A hearing officer held a hearing at which oral argument was heard but no evidence was taken. The hearing officer recommended that the district board’s dismissal order be affirmed since the findings of fact of the council, adopted by the board as its own, were (the officer concluded) supported by competent, substantial evidence. The board could order dismissal even though the council only ordered a reprimand, the officer concluded, because it provided a complete review of the record and reasonably found grounds for dismissal therein.

Noble filed exceptions to the officer’s findings that the action of the district board and the findings of the council were supported by the evidence. He also excepted to the officer’s conclusion that the district board could impose a greater penalty than recommended by the council without making further findings of fact. Before the Board of Education Noble argued that there was no evidence to support the attendance records offense and that the ethical violation alone is not grounds for dismissal under section 231.36(6). At a recorded meeting on November 4, 1976, the Board of Education heard oral presentations and set aside the dismissal, ordering that the reprimand recommended by the council be reinstated as the final result. It is apparent from the record of that hearing that the board simply did not think the facts in the record warranted dismissal.

The school district then sought judicial review. The petition was dismissed on the authority of School Board of Collier County v. Steele, 348 So.2d 1166 (Fla. 1st DCA 1977) cert. dismissed Florida School Boards Ass’n. v. Steele, 360 So.2d 1248 (Fla.1978). In Steele, a district board sought review of an order of the Board of Education reinstating a teacher on continuing contract who had been dismissed. The district court declined to review the state board action on the ground that the Administrative Procedure Act precluded a school district seeking review of such an order.

The court reasoned that “final agency action” under section 120.68(1), Florida Statutes (Supp.1976), takes place at the district board level. The nature of the state board review is limited and does not, according to Steele, have the effect of vesting the final agency action in the state board. Any modifications ordered by the state board under its limited authority to review dismissals of teachers on continuing contract become part of the final action of the district board. The district board cannot seek judicial review, the court concluded, because the state board action is its own action. We do not agree with this conclusion.

Section 120.68(1), Florida Statutes (Supp. 1976), provides in part: “A party who is adversely affected by final agency action is entitled to judicial review.” The district school board was a “party” to the proceeding providing administrative review of its dismissal order. See § 120.52(11), Fla.Stat. (Supp.1976). The district board was also adversely affected, since it ordered Noble dismissed and the state board set aside that dismissal. The district board’s entitlement to judicial review depends, therefore, on whether the state board’s order rendered on the administrative appeal constituted “final agency action.”

In Steele the court appeared to be concerned that if the state board action were deemed final agency action, then that body would be subject to the procedural requirements of section 120.57, Florida Statutes (Supp.1976). The result, the court said, would be unnecessary duplicative fact finding on the part of the state board.

The Administrative Procedure Act affords a formal administrative hearing for teachers . such as Noble whom a superintendent would seek to dismiss. § 120.57, Fla.Stat. (1975). Section 231.36(6), Florida Statutes (Supp.1976), allows teachers on continuing contract to appeal an adverse district board decision to the state board. Department of Education Rule 6A-1.691, Florida Administrative Code, provides for the appointment of a hearing officer to review the record of the district board hearing. Although the state board’s action is administrative, it acts in a quasi-judicial, reviewing capacity. Its hearing officer does not take new evidence. The standard of review is whether the district board’s conclusions are supported by competent, substantial evidence. Rule 6A-1.691, Fla. Admin. Code; Florida A & M University v. Lewis, 327 So.2d 862 (Fla. 1st DCA 1976); Department of Pollution Control v. Career Service Commission, 320 So.2d 846 (Fla. 1st DCA 1975); O’Neil v. Pallott, 257 So.2d 59 (Fla. 1st DCA 1972). To hold that, for purposes of its review of district board suspension and dismissal orders, the state board’s action is final agency action does not require that the state board conform to the Administrative Procedure Act.

We note that the legislature recently amended section 120.68(1). That subsection now provides, in pertinent part:

(1) A party who is adversely affected by final agency action is entitled to judicial review. For purposes of this section, a district school board, whose decision is reviewed under the provisions of s. 231.36 and whose final action is modified by a superior administrative decision, shall be a party entitled to judicial review of the final action.

§ 120.68(1), Fla.Stat. (Supp.1978); Ch. 78-425, § 11, Laws of Fla. This amendment appears to have been a reaction to the Steele decision and is a reflection of what was already the intended accommodation between the school code and the Administrative Procedure Act. We hold that the district school board, whose dismissal of a teacher on continuing contract was set aside by the Board of Education, is entitled to judicial review.

The district court’s decision is quashed and the case is remanded with directions that the court grant the requested review.

It is so ordered.

ENGLAND, C. J., and ADKINS, SUND-BERG, HATCHETT and ALDERMAN, JJ., concur.

OVERTON, J., dissents.

      . Art. IX, §§ 4, 5, Fla. Const.

      . 232.023 Falsification of attendance records; penalty. — The presentation of reasonable and satisfactory proof that any teacher, principal, any other school personnel or school officer, has falsified or caused to be falsified attendance records for which he is responsible shall be sufficient grounds for the revocation of his teaching certificate by the department of education, or for dismissal or removal from office; provided that such individual shall be entitled to hearing as provided by law or state board of education regulations.

      . Section 231.36(4) states the procedure for the dismissal or return to annual contract status of a district employee on continuing contract. Section 231.36(6) provides the procedure and the grounds for dismissal or suspension of any member of the district administrative, supervisory, or instructional staff. Although the respondent had achieved continuing contract status as a teacher, his employment as a supervisor was pursuant to annual contract. The charge of a violation of section 231.36 must be taken as an allegation that grounds for suspension or dismissal existed under section 231.-36(6) which provides “that the charges must be based on immorality, misconduct in office, incompetency, gross insubordination, willful neglect of duty, drunkenness, or conviction of any crime involving moral turpitude.”

      . Ch. 6B-1, Fla. Admin. Code.

      . Although the stated findings only concluded, and the evidence only supports, Noble’s complicity in the falsification of a report of hours worked by a district employee, the council committee found violation of this section which pertains to records of attendance of public school pupils. See § 232.022, Fla.Stat. (1973).

      . Rule 6B-1.03(2)(b) provides: “In fulfilling his obligation to the public, the educator [s]hall not knowingly distort or misrepresent the facts concerning educational matters in direct and indirect public expressions.”

      . See § 231.36(6), Fla.Stat. (Supp.1974).


author: ALDERMAN, Justice.

text:
    STATE of Florida, Petitioner, v. Richard E. COX, Respondent.
    No. 54308.
    Supreme Court of Florida.
    June 28, 1979.
    Jim Smith, Atty. Gen., and Joel D. Rosen-blatt, Asst. Atty. Gen., Miami, for petitioner.
    Bennett H. Brummer, Public Defender, and Paul Morris and Elliot H. Scherker, Asst. Public Defenders, Miami, for respondent.
   ALDERMAN, Justice.

The decision of the District Court of Appeal, Third District, in Cox v. State, 361 So.2d 168 (Fla. 3d DCA 1978), which is in direct conflict with our recent decision of Clark v. State, 363 So.2d 331 (Fla.1978), is hereby quashed, and this cause is remanded for further proceedings consistent with our decision in Clark.

It is so ordered.

ADKINS, Acting C. J., and OVERTON, SUNDBERG and HATCHETT, JJ., concur.