author: LEE, Justice, GILLESPIE, Chief Justice,

text:
    Geraldine BROWN v. F. W. WOOLWORTH COMPANY and Travelers Insurance Company.
    No. 49429.
    Supreme Court of Mississippi.
    July 6, 1977.

      Burgin, Gholson, Hicks & Nichols, Dewitt T. Hicks, Jr., Robert B. Prather, Columbus, for appellant.
    Threadgill & Smith, Taylor B. Smith, Columbus, for appellees.
    Before GILLESPIE, C. J., and ROBERTSON and LEE, JJ.
   LEE, Justice,

for the Court:

The Circuit Court of Lowndes County affirmed an order of the Workmen’s Compensation Commission holding that the claim of Geraldine Brown was barred by the one-year statute of limitations, and further holding that, except for her claim being barred, she was entitled to compensation benefits and medical services from F. W. Woolworth Company, employer, and the Travelers Insurance Company, carrier. From that judgment, Geraldine Brown appeals and the employer-carrier cross-appeals.

The only question presented on direct appeal is whether or not the claim is barred by the one-year statute of limitations (Section 21, Mississippi Workmen’s Compensation Act).

Claimant (42 years of age) was working as a sales woman for F. W. Woolworth Company, Columbus, Mississippi, December 24, 1968, when she lifted a vacuum cleaner and injured her back. On the next day, she experienced pain and on December 26, a chiropractor treated her. She missed work for eight (8) days and then returned to her employment, although still suffering pain, and worked until November 24, 1969. She was unable to do housework or to engage in other employment, took Darvon and muscle relaxants after her injury, and was treated by the chiropractor until about April, 1970, when he referred her to Dr. William C. Sanders. Dr. Sanders hospitalized claimant, treated her with traction and physical therapy, took X-rays, and performed a mye-logram which was negative. In November, 1970, Dr. Sanders recommended surgery, claimant declined the operation because of financial problems and because she was afraid. (A similar operation performed on her husband resulted in him being paralyzed).

On April 28, 1972, claimant filed Forms B-5 and B-ll with the Mississippi Workmen’s Compensation Commission, the claim was controverted, appellees setting forth as an affirmative defense that the claim was barred by the statute of limitations. The attorney/referee held that claimant’s injury was causally related to her employment with F. W. Woolworth Company, that the statute of limitations did not apply, and that claimant was entitled to full compensation benefits. On appeal to the Commission, the order of the attorney/referee was reversed and an order was entered denying compensation benefits on the ground that the claim was barred by the one-year statute of limitations.

In order to decide whether the one-year statute of limitations bars the claim, we must determine whether claimant’s case was closed and whether notice of final settlement and an opportunity to be heard were given claimant, as provided in Mississippi Code Annotated Section 71-3-37(7) (1972), which is as follows:

“(7) Within thirty (30) days after the final payment of compensation has been made, the employer shall send to the commission a notice in accordance with a form prescribed by the commission, stating that such final payment has been made, the total amount of compensation paid, the name of the employee and of any other person to whom compensation has been paid, the date of the injury or death, and the date to which compensation has been paid. If the employer fails so to notify the commission within such time, the commission may assess against such employer a civil penalty in an amount not exceeding one hundred dollars ($100.00). No case shall be closed nor any penalty be assessed without notice to all parties interested and without giving to all such parties an opportunity to be heard.” (Emphasis supplied).

Notice was sent to claimant by mailing her a copy of the B-31 Form [Appendix I], the unsigned original of which was mailed to the Workmen’s Compensation Commission on the same date. That notice did not state (1) that the case was being closed, or (2) that it was a final report and settlement, or (3) that it constituted a final receipt, or (4) that claimant had the right or opportunity to be heard in the matter.

In Carter v. Wrecking Corporation of America, 234 Miss. 559, 107 So.2d 116 (1958), the employee received a B-31 form as notice of final payment, and the one-year period ran. He contended that the notice was insufficient to comply with the statute. This Court stated:

“But it is said that the Form B-31 filed with the commission failed to show that the final payment of $32.14 had actually been made to the appellant, and that nowhere in the record is it shown that the appellant was given notice that the case was being closed. We think there is no merit in this contention. The appellant admitted that he had received along with the check for $32.14, dated February 23, 1950, a copy of the Form B-31 report, entitled ‘Final Report and Settlement Sheet,’ which showed total compensation payments made to him in the amount of $532.14, and which contained a form ‘Final Receipt’ for the $32.14 to be executed by him; and also the letter from the insurance carrier, requesting him to sign the final receipt and return it to the carrier. The appellant also admitted that he endorsed the check for $32.14 and retained it in his possession, and that he did not sign the form receipt and return it to the employer or its insurance carrier, as requested in the letter. The appellant admitted that he had received similar checks prior to that time and that they had always been paid, and that he knew that the check for $32.14 would be paid if he presented it for payment; and that he understood from reading the letter that if he signed the receipt which he was requested to sign, it would close the case. We think the appellant had ample notice that the $32.14 check which he received and retained was a final payment and that the case was being closed, and that the failure of the employer and its insurance carrier to state specifically in the report filed by them with the commission that the final payment had been made was due to the appellant’s failure to sign and return to the carrier a proper receipt for the $32.14. We therefore hold that the requirements of par. (g) of Section 6998-19 were fully complied with.” 234 Miss. at 566-567, 107 So.2d at 120.

In the Carter case, the B-31 form was entitled “Final Report and Settlement Sheet.” The receipt at the bottom of Form B-31 was entitled “Final Receipt.” Furthermore, a cover letter was forwarded with the B-31 form, Carter admitted he received a check which he knew to be a final payment, and he knew that the case would be closed.

The Court held that under those circumstances, Carter had ample notice that the check was a final payment and that the case was being closed.

In McLemore v. Jackson Tile Mfg. Co., 252 So.2d 781 (Miss.1971), the Court discussed Commission Rule B-17 [Appendix II] which provided the procedure for filing Commission Form B-31 in accordance with the requirements of Section 13(g) of the Act [Mississippi Code Annotated Section 71-3-37(7) (1972)]. While the technical aspects and wording of the rule were discussed, it was held that McLemore did not receive the notice as contemplated and required by Section 71-3-37(7), and stated:

“In the case of Carter v. Wrecking Corporation of America, 234 Miss. 559, 107 So.2d 116 (1958) this Court permitted the statute of limitations to be successfully used against the claim of an employee who had received a letter along with two copies of Form B-31 and a check for final payment. However, in that case the employer and carrier clearly notified the employee that the enclosed check was the final payment. The employee was given an opportunity to controvert the contention that the enclosed check was a final payment, but failed to do so within one year from the final payment of compensation provided for in Section 6998-27, Mississippi Code 1942 Annotated (1952).
The Legislature of Mississippi has attempted to provide for due process by requiring that ‘no case shall be closed nor any penalty be assessed without notice to all parties interested.’ Section 6998-19(g), Mississippi Code 1942 Annotated (1952). This simply means that due process can only be had by giving notice that the case is closed so as to give the parties an opportunity to be heard within the time allowed by law after such notice has been filed with the Commission. We are of the opinion that the alleged notice in the instant case is insufficient.” 252 So.2d at 784.

Commission Rule B-17 was amended December 31, 1968. The only changes in the rule as considered in McLemore deleted the words “because of the refusal or negligence of claimant to sign the form,” removed the necessity of sending the notice by certified mail, and provided that notice of filing be given to the claimant. Both Rule B-17 and amended Rule B-17 designated Form B-31 as “Final Report and Settlement Receipt.” The B-31 form in Carter was entitled “Final Report and Settlement Sheet,” whereas, the B-31 form in the present case is entitled simply “Report and Settlement Receipt.”

We hold that claimant did not receive the notice and an opportunity to be heard, and that the case was not closed, all as contemplated by Section 71-3-37(7), that she was denied due process of law, and that her claim is not barred by the one-year statute of limitations.

CROSS-APPEAL

Appellees contend on cross-appeal (1) that appellant received no payment of compensation and that the two-year statute of limitations (Section 12, Mississippi Workmen’s Compensation Act) bars any claim.

The two-year limitation comes into effect upon two conditions: (1) if payment of compensation other than medical treatment or burial expense is made, and (2) no application for benefits has been filed with the Commission within two (2) years from the date of the injury. For a determination of this question, it is necessary to decide whether or not compensation payments were made to appellant.

The Form B-31 Report and Settlement Receipt filed with the Commission by the carrier was prepared by its assistant manager. The report reflected the date of injury as December 24,1968, the last day claimant worked as December 24, 1968, and the day she returned to work as January 2, 1969; that three (3) days’ compensation of seventeen dollars thirteen cents ($17.13) was paid with a total compensation and medical expenses of one hundred twenty-nine dollars thirteen cents ($129.13); and that “Salary paid in lieu of comp.” The assistant manager testified that, if the employer had not paid the $17.13, which was the exact amount of compensation due, the carrier would have paid same.

Decisions in other jurisdictions are not in harmony as to what payments made, other than by the carrier, constitute compensation payments. The question is of first impression in Mississippi. As long ago as 1938, the District Court of Appeals, Third District of California, in Morrison v. Industrial Accident Commission of California, 29 Cal.App.2d 528, 85 P.2d 186 (1938) [hearing denied by Supreme Court], held that where the claimant was on sick leave and was paid his full wages by the employer, who had full knowledge of the fact that claimant was disabled from silicosis which was incurred in the employee’s mine in the course of his employment, the payments constituted compensation for his injury, and had the effect of tolling the statute of limitations and his claim was not barred.

The case of Bottoms v. Pioneer Irrigation District et al., 95 Idaho 487, 511 P.2d 304 (1973), set forth that payment of wages under certain conditions may constitute a waiver and toll the statute of limitations, if the claimant reasonably believed the payments were in lieu of compensation.

In Harrell v. Travelers Insurance Company, 255 So.2d 410 (La.App.1971), the Court said: “The payment of wages in lieu of compensation interrupts the prescriptive period provided for by LSA-R.S. 23:1209.” 255 So.2d at 412. The Louisiana court, citing other cases decided by it, stated that the basic test for determining whether wages are paid in lieu of compensation is whether the wages paid after the injury are actually earned and that such is determined by the facts and circumstances of a particular case; the test for treating wages as in lieu of compensation is not whether the claimant does all his prior work, but, rather, the test is whether the wages are earned by such work as the claimant in fact does.

In Martin v. L. & A. Contracting Co., 249 Miss. 441, 162 So.2d 870 (1964), holding that Martin’s claim was not barred under the two-year statute of limitations, the Court said:

“Voluntary payment of compensation under these circumstances constitute a waiver of formal claim, and rendered claimant’s delay reasonable. 2 Larson, Workmen’s Compensation Law, §§ 78.-43(c), 78.70. This is in accord with the analogous rule that payments of wages toll the limitations statute, if they were made on account of a recognition of compensation liability.” 249 Miss. at 448, 162 So.2d at 873.

Appellant here was unable to return to work from December 24, 1968, the date of her injury, until January 2, 1969. She lost (8) working days, and, under the statute, could not recover for the first five (5) days of disability. If she had worked three (3) days at her regular weekly wage, she would have earned thirty-nine dollars and sixty cents ($39.60). The employer paid her $17.13, being the exact amount of compensation to which she was entitled. The carrier was responsible for and recognized it owed that amount. The assistant manager testified that the carrier would have paid same, but for the employer doing so. It cannot reasonably be argued that claimant earned or was paid $17.13 as wages. The Report and Settlement Receipt (Form B~ 31) credited the carrier with that amount of compensation paid and it is reasonable to assume that, in balancing the account between carrier and employer, credit was given for that amount paid as compensation.

In our opinion, the payment of $17.13 by the employer was compensation for the injury sustained, such payment tolled or erased the two-year statute of limitations, and this assignment of error on cross-appeal is not well taken.

We have carefully considered the record and we find the holding of the Commission (1) that there was causal connection between claimant’s injury and her employment, (2) that claimant did not unreasonably refuse to submit to medical treatment (surgery) from November, 1970, through October 18, 1972, and (3) that appellees are liable for medical expenses, is supported by substantial evidence. The cross-assignments of error as to such findings are without merit. We, therefore, are of the opinion that the judgment should be, and it is, reversed and remanded on direct appeal to the Workmen’s Compensation Commission for further action consistent with this opinion, and it is affirmed on cross-appeal.

This case was considered by a conference of the justices en banc.

REVERSED AND REMANDED TO WORKMEN’S COMPENSATION COMMISSION ON DIRECT APPEAL. AFFIRMED ON CROSS-APPEAL.

PATTERSON and INZER, P. JJ., and SMITH, ROBERTSON, SUGG, WALKER and BROOM, JJ., concur.

GILLESPIE, C. J., dissents.

APPENDIX II

RULE B-17

CLOSING CASE. The requirement for the filing of Commission Form B-31, Final Report and Settlement Receipt, shall be deemed to have been met upon receipt by the Commission of such form, signed by claimant, provided, however, that the form so filed is in accordance with the requirements of Section 13(g) of the Act and contains the information specified therein. In the event Form B-31 is not signed by claimant, the unsigned form shall be filed with the Commission with notice of such filing given to the claimant. Should the original or any subsequent Form B-31 be filed that does not furnish all medical or other information required, another form B-31 containing complete information shall be filed as soon as possible thereafter as provided herein.

GILLESPIE, Chief Justice,

dissenting:

In my opinion, the B-31 form prescribed by the Workmen’s Compensation Commission was sufficient notice to the claimant. It contained all of the information required by the form. A copy of it was mailed to the claimant by registered mail, and a copy mailed to the Commission. Moreover, the claimant received the form and had it in her purse at the time of the hearing. In my opinion this complied with Rule 17 of the Rules and Regulations of the Workmen’s Compensation Commission and constituted sufficient notice under the statute to set in motion the one-year statute of limitations.


source: Caselaw Access Project

author: SUGG, Justice,

license: Public Domain

text:
    MERCY REGIONAL MEDICAL CENTER v. Camille C. DOIRON.
    No. 49210.
    Supreme Court of Mississippi.
    July 6, 1977.
    Rehearing Denied Aug. 3, 1977.
    Ramsey, Bodron, Thames & Robinson, Lee Davis Thames, Vicksburg, for appellant.
    Teller, Biedenharn & Rogers, Landman Teller, Jr., Vicksburg, for appellee.
    Before INZER, P. J., and SUGG and LEE, JJ.
   SUGG, Justice,

for the Court.

This is a negligence case from the Circuit Court of Warren County. Mrs. Camille C. Doiron was awarded $25,000 damages as a result of injuries sustained when she fell on a stairway situated on the property of defendant, Mercy Regional Medical Center. The question presented in this case is: Did the Hospital’s failure to provide a handrail on steps to a parking lot constitute a breach of its duty to use ordinary care in keeping its premises in a reasonably safe condition?

Plaintiff enrolled in the School of Nursing at Mercy Regional Medical Center in August, 1972. During orientation the hospital officials explained to the students that they would be required to park in the lower parking lot located across the street from the Hospital down a grassy hill. Concrete steps lead from the lower parking lot up the hill to the street adjacent to the Hospital. There are thirty steps, four feet wide, with gutters on both sides leading from the lower parking lot to the street. The steps were constructed of concrete with a five and one-half inch riser and a twelve inch tread. No complaint is made about the width of the tread, or the height of the riser, but the negligence charged is that the defendant failed to provide a handrail to be used by persons ascending and descending the steps.

On the afternoon of December 13, 1972 plaintiff, accompanied by a fellow student, was descending the steps leading to the lower parking area. Approximately halfway down the steps plaintiff lost her balance for no apparent reason, unsuccessfully attempted to grab for something to enable her to regain her balance, and fell to the ground on the right side of the steps. There was no debris on the steps, the steps were not wet or slippery and the condition of the steps did not cause her to lose her balance. Her sole charge of negligence was the absence of a handrail on the steps. She testified that had there been a handrail she would not have fallen.

Defendant requested a peremptory instruction which was refused and, following the verdict of the jury, filed a motion for a judgment notwithstanding the verdict. In Paymaster Oil Mill Co. v. Mitchell, 319 So.2d 652 (Miss.1975) we held that the evidence considered on a request for a judgment n. o. v. embraces the testimony on behalf of plaintiff as well as that of the defendant, there being no difference between that considered for a peremptory instruction and a judgment n. o. v. because the latter is entertained only to correct the court’s error in refusing a requested peremptory instruction.

We further stated in Paymaster that the jury resolves conflicts of fact while the court resolves issues of law arising from non-conflicting facts. There was no conflict in the evidence so the issue of negligence was for the court.

City of Greenville v. Laury, 172 Miss. 118, 159 So. 121 (1935) was cited with approval in Supreme Instruments Corp. v. Lehr, 190 Miss. 600, 199 So. 294, Sugg, of Error Sustained, 1 So.2d 242 (1941). In Laury, we held:

In an action at law based on negligence, the question of negligence vel non is for the determination of the jury, unless the doing of the act which caused the injury complained of is not in dispute or conclusively appears from the evidence, and no inference except that of negligence or of no negligence can be justly drawn therefrom, in which event the question is for the determination of the trial judge. Whitney v. Cook, 53 Miss. 551; McCaughn v. Young, 85 Miss. 277, 37 So. 839; Farmer v. Cumberland Telephone & Telegraph Co., 86 Miss. 55, 38 So. 755. (172 Miss. at 122; 159 So. at 122).

In Supreme Instruments, supra, we held:

Requisite care remains always that degree of care commensurate with appreciable danger appraised in terms of ordinary prudence and interpreted in the light of the attendant circumstances. Application of this principle leads to results which give play to such varying factors as time, place, and purpose. Although the expression and the basis of the rule remain fixed, its flexibility permits accommodation to each particular case. The area of factual doubt within which juries should be allowed to function is circumscribed within a circle of which care is the axis and reasonableness the radius. Within this area reasonableness is to be adjudged by reasonable men, and their right to differ is commensurate with their duty to consult. Beyond this limit lies the field of substantive law. Here are found those issues as to which reasonable men should not be in disagreement. It is here that ‘the court is not called upon to decide the issue of fact one way or the other, but it is called upon to decide whether there is an issue of fact under the law to go to the jury.’ City of Hazlehurst v. Matthews, 180 Miss. 42, 176 So. 384, 385. As was said by Cardozo, J., in People v. Galbo, 218 N.Y. 283, 112 N.E. 1041, 1045, 2 A.L.R. 1220, ‘insufficient evidence is . . .no evidence.’ Absence of a handrail under the circumstances cannot be held to be negligence, much less a contributing proximate cause of the injury. Any defect, therefore, was not in the step but in the stepping. No negligence may be predicated upon the construction or maintenance of the step in question. (Emphasis Supplied) (190 Miss. at 627, 1 So.2d at 245).

In Supreme Instruments, the case was first affirmed by this Court which divided three — -three on the question of affirmance. On suggestion of error the case was reversed and judgment rendered for the appellant who was the defendant in the trial court. In a dissenting opinion when the case was originally before the court, Justice Griffith stated:

Inasmuch, then, as all the facts respecting the condition of the steps were undisputed and every feature of common knowledge or common experience which the jury could apply belonged also to the judge, what was there to submit to the jury as regards the condition of the steps, except to allow them to alter or amend the law of the land under the guise of a finding of facts? We have repeatedly said, as for instance in Dow v. Town of D’Lo, 169 Miss. 240, 247, 152 So. 474, 475, that “it is not permissible, by the device and under the guise of a finding of facts by a jury, that the law of the land shall be altered or amended.” (Emphasis Supplied) (190 Miss. at 620, 199 So. at 298).

When the Court reversed its original holding, the principle expressed by Judge Griffith in his dissent was adopted by the Court in different language.

The duty of care owed by the defendant to the plaintiff is well established in our jurisprudence. In Stanley v. Morgan & Lindsey, Inc., 203 So.2d 473 (Miss.1967) we stated:

The plaintiff bases her claim against the defendants upon the theory that since the plaintiff was a customer of the defendant, Morgan & Lindsey, it was the duty of the operator of the business to exercise reasonable or ordinary care to keep the store premises in a reasonably safe condition for the use of its business invitees. There can be no doubt that this is the general rule throughout the United States (65 C.J.S. Negligence § 63(130) (1966), and it is also the rule in this state. Gulfport Winn-Dixie, Inc. v. Taylor, 246 Miss. 332, 149 So.2d 485 (1963); Wallace v. J. C. Penney Co., 236 Miss. 367, 109 So.2d 876 (1959); Daniels v. Morgan & Lindsey, Inc., 198 So.2d 579 (Miss.1967).
The rule is set out in 38 Am.Jur. Negligence § 96 (1941), at 754-56, as follows:
‘The rule is that an owner or occupant of lands or buildings, who directly or impliedly invites others to enter for some purpose or interest or advantage to him, owes to such persons a duty to use ordinary care to have his premises in a reasonably safe condition for use in a manner consistent with the purpose of invitation, or at least not to lead them into a dangerous trap or to expose them to an unreasonable risk, but to give them adequate and timely notice and warning of latent or concealed perils which are known to him but not to them. Summarily stated, to the extent of the invitation given, a property owner owes to an invitee the duty of prevision, preparation, and lookout. An owner in occupation of the premises violates his duty to an invitee when he negligently allows conditions to exist on the property which imperil the safety of persons upon the premises. For such violation, he is responsible in damages to the injured person, provided, of course, due care was exercised by that person.’
On the other hand, it is also a general rule that:
‘A customer in a store is bound to take ordinary or reasonable care for his own safety. Upon entering a store, a customer is required to use in the interest of his own safety that degree of care and prudence which a person of ordinary intelligence and prudence would exercise under the same or similar circumstances. He must make a reasonable use of his own faculties to observe and avoid dangers upon the premises.’
38 Am.Jur. Negligence § 199 (1941) at 879. (203 So.2d 475-476).

In this case the defendant owed the plaintiff the duty of exercising reasonable or ordinary care to keep its premises in a reasonably safe condition for the use of plaintiff who was an invitee. The question then may be simply put, did the defendant exercise reasonable care to keep its premises in a reasonably safe condition? It is true that a handrail may have afforded the plaintiff a means of regaining her equilibrium when she accidentally stumbled while descending the steps. It is also true that if a fellow employee had been stationed there to catch her the injury might have been avoided, but we are not dealing here with the question of making premises absolutely safe but with an alleged failure to exercise reasonable care to maintain the premises in a reasonably safe condition.

Most, if not all of us, use steps almost daily. Certainly any reasonable person recognizes the necessity of maintaining his balance when ascending or descending a stairway. Absent an unknown or concealed defect in a stairway, if it is otherwise reasonably safe, no negligence exists. In Supreme Instruments, we stated:

‘The court is not ignorant of common devices and common dangers, and no admission or expert opinion can establish liability where common knowledge shows that there was no danger so substantial that a reasonable man in the position of the defendant would have anticipated injury and guarded against it.’ See also Haddon v. Snellenburg, 293 Pa. 333, 143 A. 8; Toscani v. Quackenbush Co., 112 N.J.L. 173, 170 A. 212; Stark v. Franklin Simon & Co., 237 App.Div. 42, 260 N.Y.S. 691; Dickson v. Emporium Mercantile Co., 193 Minn. 629, 259 N.W. 375; Boyle v. Preketes, 262 Mich. 629, 247 N.W. 763, 765. In the last named case the Court said: ‘It has long since been recognized that falling downstairs, where the mishap was not imputed to unknown or concealed defects, belongs to that class of ordinary accidents which ought to be imputed to the carelessness or misfortune of the sufferer.’ (Emphasis Supplied) (190 Miss. at 626, 1 So.2d at 244).

In this case the steps were built on the ground which sloped gradually down from the street to the lower parking lot and did not constitute a hazard to one using due care when using them. This case does not fall within the rule that, where facts are undisputed, but reasonable minds may draw different inferences as to negligence therefrom, solution of the issue of negligence should be left to the jury. We are of the opinion that plaintiffs injury belongs to that class of ordinary accidents which are properly imputed to the carelessness or the misfortune of the one injured.

The peremptory instruction requested by the defendant should have been given.

REVERSED AND RENDERED.

GILLESPIE, C. J., PATTERSON and IN-ZER, P. JJ., and SMITH, ROBERTSON, WALKER, BROOM and LEE, JJ., concur.


text:
    Thad POWELL, E. L. Caston and Bryant Jones v. W. L. BARRON, Monroe McElveen, Amite County Livestock Association, Inc. and County of Amite.
    No. 49502.
    Supreme Court of Mississippi.
    July 13, 1977.
    Rehearing Denied Aug. 10, 1977.
    Adams, Forman, Truly, Ward, Smith & Bramlette, David C. Bramlette, III, Natchez, for appellant.
    McGehee, McGehee & Torrey, H. B. Mayes McGehee, Meadville, for appellee.
   Appeal from Chancery Court, Amite County; Bert N. Jones, Chancellor.

Before SUGG, WALKER and BROOM, JJ., and WILLIAM NEVILLE, Commissioner.

AFFIRMED.


text:
    Theodore Jesse WARD v. Dottie WARD.
    No. 50032.
    Supreme Court of Mississippi.
    July 20, 1977.
    Charles T. Sykes, Jr., Gulfport, for appellant.
    Dyer, Dyer & Dyer, Howard Dyer, III, Greenville, for appellee.
   Appeal from Chancery Court, Sharkey County; J. D. Thames, Chancellor.

Before ROBERTSON, WALKER and BROOM, JJ.

AFFIRMED IN PART AND REMANDED.

PATTERSON and INZER, P. JJ., and SMITH, SUGG and LEE, JJ., concur.

GILLESPIE, C. J., took no part.


text:
    MISSISSIPPI STATE HIGHWAY COMMISSION v. V. T. LYONS et ux.
    No. 50015.
    Supreme Court of Mississippi.
    July 20, 1977.
    Mauldin & Sneed, Pontotoc, S. H. Long, Tupelo, for appellant.
    B. N. Knox, Jr., New Albany, for appel-lee.
   Appeal from Circuit Court, Union County; W. W. Brown, Judge.

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

AFFIRMED.

GILLESPIE, C. J., took no part.


text:
    Morris Douglas JOHNSON v. AKIN MOBILE HOMES, INC., et al.
    No. 49512.
    Supreme Court of Mississippi.
    July 20, 1977.
    Beach, Beach, Lukcett & Hanbury, Stephen L. Beach, III, Jackson, for appellant.
    McLaurin, Nicols & Kelly, John C. McLaurin, Jr., Brandon, Q. Earl Webb, Meridian, for appellee.
   Appeal from Chancery Court, Rankin County; Osborn Guyton Idom, Chancellor.

Before PATTERSON, P. J., and SMITH and LEE, JJ.

AFFIRMED.

GILLESPIE, C. J., took no part.


text:
    Alline BROWN and Charlean Watts v. STATE of Mississippi.
    No. 49793.
    Supreme Court of Mississippi.
    July 20, 1977.
    Moore, Epps & Selph, Thomas J. Ginger, W. S. Moore, Jackson, William M. Coffey, Milwaukee, Wis., for appellant.
    A. F. Summer, Atty. Gen. by Pete J. Cajoleas, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Jones County; James D. Hester, Judge.

Before PATTERSON, P. J., and SMITH and LEE, JJ.

AFFIRMED.

GILLESPIE, C. J., took no part.


author: WRIGHT, Presiding Judge.

text:
    STATE of Alabama DEPARTMENT OF INDUSTRIAL RELATIONS v. CLEGG MANUFACTURING COMPANY, INC., a corporation.
    Civ. 861.
    Court of Civil Appeals of Alabama.
    Nov. 24, 1976.
    Rehearing Denied Dec. 22, 1976.
    Arthur J. Reid, Gen. Counsel, State of Ala. Industrial Relations Dept., Richard H. Gill, Montgomery, for appellant.
    W. Scears Barnes, Jr., Alexander City, for appellee.
   WRIGHT, Presiding Judge.

This is an appeal by the Director, Department of Industrial Relations, State of Alabama, hereinafter called Department, from judgment of the Circuit Court of Randolph County, enjoining the enforcement of an order of the Director setting the contribution rate for unemployment compensation tax for the year 1976 against Clegg Manufacturing, Penrose Corporation. We reverse.

On January 23, 1976, the Department, as required by statute (Title 26, Sec. 204 G(6), Code of Alabama (1940)), sent notice to Clegg Manufacturing, a division of Penrose Corporation, hereinafter called Clegg, of its unemployment compensation tax rate for the calendar year 1976. Such rate was determined to be 4%. Upon receipt of the notice, Clegg contacted employees of the Department and inquired of the reason for the increase of its rate to 4% from the previous year’s rate of 0.5%.

Clegg was informed that the rate increase was due to the large increase of benefit wages charged to it in the year 1975, and its failure to claim rehire credit permitted by law. Title 26, Sec. 204 C(3). Further informed that time had expired for claiming rehire credit and that no change in the contribution rate could be made, Clegg, without following administrative and appeal procedure provided in Title 26, Sec. 204 H, Code, brought petition for temporary and permanent injunction against the Department. Temporary injunction issued and after hearing, injunction was made permanent. The department was enjoined from enforcing the tax rate assessed against Clegg. The court further ordered the Department to grant rehire credit to Clegg for all employees with benefit wage charges made to the account of Clegg for the quarter ending March 31, 1975. It was further ordered that the Department after granting the rehire credit, compute and establish a new tax rate, furnishing court attorneys and Clegg with a detailed breakdown on the method of computation, all within 30 days.

We think it proper to observe that the Department does not, on this appeal, present the issue of whether injunctive relief was proper in this case when administrative remedies and right of appeal had not been exhausted. We review only on issues presented by the Department.

The petition for injunction concedes that the Director of the Department is charged by statute with the responsibility of assessing and collecting unemployment compensation taxes from Clegg as an employer. It is not alleged that the assessment made by the Department against Clegg is illegal or in violation of the statute. It is merely alleged that the assessment is capricious, arbitrary, unconscionable, does not comply with the intent of the legislature, and failure by Clegg to claim credit under the statute was the result of an oversight. It is further alleged that the enforcement of the assessment will result in great financial loss to Clegg and may possibly affect the employment of 200 people and the financial stability of the town of Wadley, Alabama.

This case was apparently tried upon the theory that an assessment of taxes, though properly entered according to statute, should be set aside, and its enforcement enjoined because it would be detrimental to the financial status of the taxpayer, its employees and the town where located. A secondary issue was that a tax rate computed according to law should not be permitted to stand because the taxpayer could have gotten a lower rate had he not, through ignorance of the law, failed to claim benefit of certain favorable deductions or credit.

The plot involved in this case began in years prior to 1975. Clegg is a small shirt manufacturer in Wadley, Alabama. It is a wholly-owned division of Penrose Corporation, a foreign corporation. It had been the practice of Clegg for many years prior to 1975, in lieu of giving paid vacations, to discharge its employees for one week at the 4th of July and at Christmas. The employees would immediately apply for unemployment benefits and would draw such benefits for the two weeks. Clegg would rehire them all after each week. The law provided that the employer’s experience rating was not charged for benefit wages paid an employee unless the total of such wages equaled or exceeded the amount of benefits payable to the employee for three weeks of total unemployment. Title 26, Sec. 204 B(l), Code. Clegg could and did discharge its employees for two weeks each year, qualify them for compensation benefits, rehire them and not be charged with the benefits paid to them. Therefore, the experience rating of Clegg for unemployment payments to its employees was extremely low, resulting in a very low assessment of contribution to the fund.

Because of its many years of low experience rating, Clegg had never filed for rehire credit under Title 26, Sec. 204 C(3), Code. Its employees were not informed of nor familiar with the following provisions:

“(3) Notwithstanding any inconsistent provisions of this chapter, if after the last day of any claimant’s benefit year but within the forty-five (45) days next following thereafter or within forty-five (45) days next following notice to the employer of benefit wage charges made as a consequence of such claimant’s receipt of benefits, whichever is the later, an employer for whom benefit wage charges were made as a consequence of such claimant’s receipt of benefits alleges that he had reemployed such claimant within the claimant’s benefit year, and the director finds that such employee received in benefits a total amount aggregating not more than twenty-five (25) percent of the maximum benefit payments to which he was entitled within such benefit year, because of such reemployment, the employer’s benefit wage record shall be credited with seventy-five (75) percent of the benefit wages previously charged against him relating to such claimant’s previous employment; .. Provided, however, that such credits shall be made for the , calendar year and the calendar quarter in which the finding is made by the director and no attempt shall be made to relate such credits to the period in which the rehire occurred; ‘reemployment’ meaning performing services for remuneration.”

In 1975, after the usual week’s vacation of its employees in July and December, paid for with benefits from the Unemployment Compensation Fund, the business of Clegg was so bad that an additional week’s layoff was necessary. The additional layoff caused employees to draw benefits exceeding three weeks. Therefore, according to law, the benefit wage account of Clegg was charged a full year of benefit wages for each employee. Title 26, 204 C(l), Code.

On June 6, 1975, as required by law, the Department sent Clegg its completed Form UC-212 listing the names of all employees, the date their benefit year began (which was the first week they drew benefits or July 4, 1974,) the benefit wages of each employee and the date the charge was made. The information on Form UC-212 fully informed Clegg that its account had been charged with the amount listed thereon. Clearly Clegg was ignorant of its meaning and how it could ultimately affect its contribution rate. It is also clear that Clegg knew nothing of the credit available to it under Sec. 204 C(3) quoted above.

According to Sec. 204 C(3), Clegg had until 45 days after July 3, 1975, to “allege” to the Department that it had rehired, during the benefit year, the employees charged by Form UC-212 with a year’s benefit wages. Clegg did not “allege” the rehiring of the employees to the Department. The Department did not receive completed Form UC-213 which gave the information needed to determine proper credit to grant for rehire.

Clegg does not seriously contend that some affirmative allegation or notice of rehiring employees is not required in order for it to receive rehire credit under the statute. Clegg’s theory and proof below was that it was ignorant of the purpose of receiving from the Department Form UC-212, ignorant of the availability of credit for rehire and ignorant of the time and method of applying for such credit. In other words, ignorance of the statute is submitted as a basis for enjoining the assessment. Clegg further says that even though the assessment was legally made, it should not be enforced because it could not pay it and would have to close down. The employees would be out of work and the town and community would suffer economically.

Clearly, ignorance of the requirements of the law can be no defense to a failure to claim advantages granted by it. Weeks v. State, 24 Ala.App. 198, 132 So. 870, cert. denied, 222 Ala. 442, 132 So. 871. An order enjoining the enforcement of a legal tax assessment because it would have been less had the taxpayer known to claim credits within the time and according to manner directed by statute cannot stand. Neither may a legal tax assessment be enjoined and set aside because it is a hardship upon the taxpayer, its employees and the community. If such were so, the assessment and collection of taxes would seldom go unchallenged. Injunction may not issue to restrain the legal action of any public officer. Goodwin v. State Board of Administration, 212 Ala. 453, 102 So. 718.

This court has this date released its decision in the case of Department of Industrial Relations v. McElrath Farms, Inc. That case involved the same statute as here, except that it came to us through the process of administrative appeal and trial de novo in the circuit court rather than through injunction. We construed Sec. 204 C(3) of Title 26, Code, as it read prior to October 6, 1975, to require that reasonable notice by a taxpayer of purpose to claim credit for rehire be given the department within the time limitation provided. We determined that what constituted reasonable notice was a question of fact in each case.

In line with that decision, we find no notice by Clegg to the Department, reasonable or otherwise, of an intent to claim the credit for rehiring its employees granted by the statute. We therefore hold that the Director was bound by law to determine the benefit wage percentage of Clegg from the information entered on Form UC-212 without benefit of rehire credit. There being no evidence that the calculation of 4.0% contribution rate for 1976 is incorrect, it must stand.

Finding no legal or equitable ground for the injunction, it is directed to be set aside and dissolved together with the supplementary orders contained in the judgment of March 25, 1976.

REVERSED AND REMANDED WITH DIRECTIONS.

BRADLEY and HOLMES, JJ., concur.


author: FAULKNER, Justice.

text:
    Ex parte CLEGG MANUFACTURING COMPANY, INC.
    SC 2286.
    Supreme Court of Alabama.
    June 3, 1977.
   FAULKNER, Justice.

WRIT QUASHED AS IMPROVIDENTLY GRANTED.

All the Justices concur.


text:
    STATE of Alabama DEPARTMENT OF INDUSTRIAL RELATIONS v. McELRATH FARMS, INC., a corporation.
    Civ. 886.
    Court of Civil Appeals of Alabama.
    Nov. 24, 1976.

      Arthur J. Reid, Gen. Counsel, State of Ala. Industrial Relations Dept., Richard H. Gill, Montgomery, for appellant.
    Richard F. Allen and Henry C. Barnett, Jr., Montgomery, for appellee.
   WRIGHT, Presiding Judge.

The Department of Industrial Relations appeals from a judgment of the circuit court interpreting portions of Title 26, Sec. 204, Code of Alabama (1940) concerning crediting an employer’s benefit wage charges for rehiring previously laid-off employees.

On December 10, 1973, McElrath closed its plant in Marshall County, Alabama for renovation to comply with U. S. Department of Agriculture standards. McElrath notified the Alabama Department of Industrial Relations, Unemployment Compensation Division (hereinafter called the Department) of its closing and mass layoff of over 200 employees. The Department, sent several of its employees from its Gadsden office to McElrath’s plant to take applications for unemployment benefits during the layoff.

McElrath’s employee inquired of Department’s employees about obtaining credit on its benefit wage charges when it completed renovation and rehired its employees. Department employee informed McElrath’s employee that such credit could be obtained under the law; that when the Department was notified of such rehiring, assistance could be provided by the Department in completing forms for credit.

On January 14, 1974, McElrath reopened its plant and recalled all of its employees. The same day, McElrath notified the Gadsden office of the Department by phone of the recall of its employees. McElrath took no further action to secure credit for rehiring its employees. On April 25,1975, McEl-rath was given notice of its benefit wage percentage for the year of April 1, 1974-March 31, 1975, and its contribution rate to the unemployment fund for the new year beginning April 1, 1975 and ending March 31, 1976. The new rate for McElrath was 2.7%, the maximum then permitted by law.

Upon receipt of the notice, McElrath requested explanation of the cause of the new rate. Department advised that it was due to the failure of McElrath to properly and timely apply for and receive credit for rehiring of its laid-off employees, as directed by statute. McElrath requested revision of its benefit wage charge through credit for rehire. The Department refused to revise saying it was bound by the time limits set out in the statute. McElrath appealed to the circuit court as permitted by Title 26, See. 204 H, Code. The court reversed and rendered judgment finding that the requirements of the statute as to filing for rehire credit were directory and not mandatory.

The provisions of Title 26, Sec. 204 C(3) are primarily involved in the matter for consideration. Those provisions read as follows:

“(3) Notwithstanding any inconsistent provisions of this chapter, if after the last day of any claimant’s benefit year but within the forty-five (45) days next following thereafter or within forty-five (45) days next following notice to the employer of benefit wage charges made as a consequence of such claimant’s receipt of benefits, whichever is the later, an employer for whom benefit wage charges were made as a consequence of such claimant’s receipt of benefits alleges that he had reemployed such claimant within the claimant’s benefit year, and the director finds that such employee received in benefits a total amount aggregating not more than twenty-five (25) percent of the maximum benefit payments to which he was entitled within such benefit year, because of such reemployment, the employer’s benefit wage record shall be credited with seventy-five (75) percent of the benefit wages previously charged against him relating to such claimant’s previous employment; . . Provided, however, that such credits shall be made for the calendar year and the calendar quarter in which the finding is made by the director and no attempt shall be made to relate such credits to the period in which the rehire occurred; ‘reemployment’ meaning performing services for remuneration.”

It will be noted that there is provided a period of 45 days for claiming credit for rehiring an employee who has qualified for and been paid benefits. The credit may be obtained when the employer “alleges” that he had reemployed a claimant within his benefit year. The employer may so “allege” within 45 days next following the occurrence of two events, whichever is later. The events are “the last day of any claimant’s benefit year” or “notice to the employer of benefit wage charges made as a consequence of such claimant's receipt of benefits.”

It may be noted here that the need for an employer to “allege” rehire for credit is ordinarily a continuing and constant responsibility as to each employee who may have received benefits and been reemployed. It is the unusual when an employer has a mass layoff and mass rehiring such as McElrath. An employee may be laid off or let go permanently because of lack of need or because of business fiscal requirements, or he may be laid off temporarily for a few weeks or months because of seasonal slowdowns in sales or a shortage of materials. It is necessary for an employer to keep a close watch of his employment records to notify the Department when a temporarily laid-off employee has returned to his job and thus claim credit for rehiring.

The rehire credit realized by the employer may not be significant where there are few individual layoffs and rehirings; however, obtaining credit or not for the rehiring of a whole work force will very significantly affect the employer’s contribution rate. Unless the credit is claimed, properly determined and credited, the employer will be charged benefit wages for the rehired employee for the full benefit year. Such a charge, when multiplied by all employees will seriously affect the employer’s benefit wage percentage, and will in turn adversely affect his contribution rate to the fund.

It is unnecessary to a decision upon the issues presented by this appeal to consider all the intricacies and complexities of the Unemployment Compensation Law. However, it is clear that the legislature intended to encourage employers to limit the drain upon the fund by rehiring laid-off employees at the earliest feasible time. To do so helps the fund, the employee and, through credit given, the employer.

The legislature, though offering credit, required the employer to initiate action to receive it. Such action was required to be taken within a specified time after the occurrence of a designated event. The action required was to “allege” that a claimant of benefits had been returned to his employment. The legislature did not define its meaning of “allege” nor the form or method of alleging the re-employment of a claimant.

The Director of the Department had not formally promulgated rules for making the required allegation, though the Department had originated a form which was furnished an employer subsequent to the allegation. That form was designated form UC-213. Informal instructions as to how to comply with the unemployment compensation statutes were prepared in booklet form by the Department and distributed to all employers when they became employers.

McElrath did not file any written allegations after January 14, 1974, that its plant had reopened and its employees had returned to work upon completion of renovation. On May 10, 1974, the Department form UC-212 was sent to McElrath. UC-212 is the form which is forwarded by the Department to an employer at the end of each calendar quarter giving notice of benefit wage charges placed against its account in that quarter. Forty-five days after receipt of UC-212, the employer may “allege” to the Department that a claimant shown thereon has been rehired, or the employer may wait until the end of the claimant’s benefit year, if later, and then within 45 days “allege” that such claimant was rehired within that benefit year. If rehiring is “alleged” in either instance, the Department will forward to the employer a form UC-213 for completion. The matters to be submitted on that form provide the information needed by the Director of the Department to determine the credit for rehiring which the employer is entitled to receive. Such credit is applied by the Department to the benefit wage charges previously assessed to the employer’s account. The resulting reduction of the employer’s benefit wage charges favorably affects the calculation of its benefit wage percentage and contribution rate into the fund.

Because in this case McElrath failed to “allege” in writing that it had rehired its employees at any time prior to the determination of its annual benefit wage percentage and contribution rate, the Department refused to review such determination and grant credit for rehire. The Department took the position that unless written allegations as to rehiring were submitted within the time stated by the statute, credit for such rehire was irrevocably lost and the employer must suffer the consequences.

Upon review by trial de novo, the circuit court reversed the Department holding that the requirement of the statute (Sec. 204 C(3)) prior to October 6, 1975, that the employer give notice of rehiring employees by filing form UC-213 was not mandatory but merely directory.

It appears that the finding of the court did not specifically meet the issues presented to it in the trial. The issue presented was whether the statute required an employer to “allege” in writing within the limitations of time provided that a claimant had been rehired in order for the Director of the Department to determine and grant credit for such rehiring.

In order to decide that issue, it was necessary to construe the statute according to its language and the intent of the legislature, and apply that construction to the facts in the case.

It is our opinion that the direction of the statute that the employer “allege” reemployment of a claimant required only reasonable notice upon which the Department could act. We construe the statute to require reasonable notice prior to the expiration of the time set out therein. Such notice need not necessarily be written. What constitutes reasonable notice is to be determined by the facts and circumstances of the case.

The circumstances of this case are measurably different from the ordinary and usual case. There is a distinct difference between the singular layoff and subsequent recall and the mass layoff and recall of an entire work force of an employer. The evidence here is undisputed that the Department knew of the closing of McElrath’s plant and that it was temporary. The Department sent its employees to McElrath’s plant to aid in filing for and prompt receipt of benefits during the layoff. It is undisputed that McElrath, at the time of filing for benefits, inquired of Department’s employee how to receive rehire credit when it called its employees back to work. McEl-rath was informed that such credit could be given and that the same Department employee would provide forms and assist in filling them out if requested. It is further undisputed that McElrath called the Department employee on the day of its reopening and informed her that all employees were back at work. We do not consider significant the filing of the notice of reemployment prematurely. The time designated in the statute is one of limitation.

The unemployment compensation statute is a taxing statute and as all taxing statutes, it is to be strictly construed against the taxing authority. Broadway v. Alabama Dry Dock & Shipbuilding Co., 246 Ala. 201, 20 So.2d 41. The term “alleges” in the statute has an uncertain and indefinite meaning. Rules of statutory construction require the courts to give it liberal interpretation to serve the purpose and intent of the legislature • and avoid injustice. AgeHerald Pub. Co. v. Huddleston, 207 Ala. 40, 92 So. 193.

The Department had full knowledge of the temporary closing of the plant of McEl-rath and its purpose. The Department knew that all employees were to receive benefits for only a short time before being recalled to their jobs. The Department was given notice by phone when the plant reopened and its employees were recalled. That information was sufficient for the Department to take action to send out its form UC-213. It may be noted that the form UC-213 is sent out from and returned to the local office of the Department from which benefits are paid. The phone call had no purpose other than to inform the Department of rehiring so that credit could be obtained.

Department has admitted that it would have considered merely a letter as sufficient “allegation” under the statute and would have responded by forwarding the form UC-213 to McElrath for completion. By such admission the Department refutes its insistence that formality of allegation and timeliness of filing form UC-213 are matters of legal essence under the statute.

It is a matter of evidence that the statute was amended by the legislature effective October 6, 1975, changing the requirement of “alleges” to that of “files a written notice in such manner as the director shall prescribe. . . . ” Such amendment appears to remove uncertainty and make definite the obligation of the employer.

It is the opinion of this court, under the facts of this case, that the notice by McElrath to the Department was an allegation within the intent of the statute and was a sufficiently reasonable notice to the Department that all of its employees were re-employed on January 14, 1974, according to the plan made known to the Department on December 9,1973. With such notice, the Department could determine credit or could have requested sufficient additional information to do so.

It is the further opinion of this court that a review of che action of the director in refusing to grant rehire credit was available to McElrath under Title 26, Sec. 204 H. The granting or refusal of rehire credit has a significant influence upon the determination of the employer’s benefit wage percentage. Sec. 204 H permits a trial de novo with respect to determination of the benefit wage percentage. That contemplates that the rate will be determined anew on evidence adduced by the parties, without any presumption in favor of the director’s decision or previous fixation. Broadway v. Alabama Dry Dock & Shipbuilding Co., supra.

We therefore conclude that the judgment of the trial court is correct in result and we affirm.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: MADDOX, Justice.

text:
    Ex Parte STATE of Alabama, ex rel. DEPARTMENT OF INDUSTRIAL RELATIONS. In re STATE of Alabama v. McELRATH FARMS, INC.
    SC 2290.
    Supreme Court of Alabama.
    June 3, 1977.
    Rehearing Denied June 24, 1977.
    Richard H. Gill and Arthur J. Reid, Gen. Counsel, State of Ala. Industrial Relations Dept., Montgomery, for petitioner.
    Richard F. Allen and Henry C. Barnett, Jr., Montgomery, for respondent.
   MADDOX, Justice.

We granted certiorari to review a decision of the Court of Civil Appeals which allowed an employer rehire credit under Alabama’s Unemployment Compensation law. The facts are set out in the opinion of that court and will not be restated here. See State of Alabama v. McElrath Farms, Inc., Ala.Civ.App., 348 So.2d 252 (1976).

The Court of Civil Appeals decided a similar case involving rehire credit on the same day this case was released in State of Alabama v. Clegg Manufacturing Co., Inc., Ala.Civ.App., 348 So.2d 249 )1976), Writ quashed, Ala., 348 So.2d 252 (1977). In that case, however, the Court of Civil Appeals denied Clegg’s claim for rehire credit. Except for the fact that in McElrath a telephone call was made prior to, but not within the 45-day period set out in the statute, the facts are essentially the same. In both instances, the employer laid off numerous employees and in neither case did the employer “allege” in writing within the time periods set out in the statute that the laid-off employees had been re-employed. McElrath concedes that the telephone call was not made within either of the 45-day periods set out in the rehire credit statute. In view of this concession, we find that the Court of Civil Appeals erred in finding McElrath complied with the statute.

REVERSED AND REMANDED.

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


text:
    STATE of Alabama DEPARTMENT OF INDUSTRIAL RELATIONS v. McELRATH FARMS, INC., a corporation.
    Civ. 886.
    Court of Civil Appeals of Alabama.
    July 20, 1977.
   WRIGHT, Presiding Judge.

Upon remand to this court by the Supreme Court of Alabama, 348 So.2d 257, the judgment of this court, entered November 24, 1976, 348 So.2d 252, is hereby set aside and in accordance with the directions of the Supreme Court the judgment of the trial court granting rehire credit to McEl-rath Farms, Inc. is reversed and remanded.

REVERSED AND REMANDED.

BRADLEY and HOLMES, JJ., concur.


author: BRADLEY, Judge.

text:
    WEST AMERICAN INSURANCE COMPANY v. Kenneth A. BIGGS.
    Civ. 1011.
    Court of Civil Appeals of Alabama.
    May 4, 1977.
    Rehearing Denied June 8, 1977.

      Danny D. Henderson, of Williams, Spurrier, Rice, Henderson & Grace, Huntsville, for appellant.
    Elbert H. Parsons, Huntsville, for appel-lee.
   BRADLEY, Judge.

This is a suit on an insurance policy.

The insured plaintiff filed a complaint in the Circuit Court of Madison County claiming a theft loss of certain personal property covered under a homeowner’s policy. The defendant insurance company denied coverage on the basis of certain exclusions in the policy. The case was tried by the court without a jury. The insured homeowner received a judgment in the amount of $2,838.50 plus interest and the insurer appeals.

The facts show that West American Insurance Company insured a dwelling house and its contents belonging to Kenneth A. Biggs against loss by theft and other perils. The house was located at 4003 Garth Road in the city of Huntsville, Alabama.

In June 1975 plaintiff arranged to purchase a house at 7708 Foxfire Drive in Huntsville and then signed an agreement to sell the house on Garth Road. The purchasers of the Garth Road house permitted plaintiff to remain in that house until the Foxfire Drive house was ready for occupancy.

On August 30 or 31,1975 plaintiff and his family began moving household goods into the Foxfire Drive house, which was practically completed. On the evening of August 31, 1975 a theft occurred at the Foxfire Drive house of household goods just recently taken there from the Garth Road residence. The next night the plaintiff slept in the new house to prevent further thefts.

Plaintiff says the household items stolen from the Foxfire Drive house were used at the Garth Road residence and are covered by the policy in question. Defendant replies by saying that the theft was from a dwelling not covered by the policy under the general theft exclusions.

The applicable provisions of the policy are as follows:

“COVERED C — UNSCHEDULED PERSONAL PROPERTY
“This policy covers unscheduled personal property usual or incidental to the occupancy of the premises as a dwelling and owned or used by an Insured, while on the described premises and, at the option of the Named Insured, owned by others while on the portion of the premises occupied exclusively by the Insured.
“This coverage also includes such unscheduled personal property while elsewhere than on the described premises, anywhere in the world:
“3. but the limit of this Company’s liability for the unscheduled personal property away from the premises shall be an additional amount of insurance equal to 10% of the amount specified for Coverage C, but in no event less than $1,000.
“SUPPLEMENTARY COVERAGES
“The following supplementary coverages shall not increase the applicable limit of liability under this policy:
“1. Automatic Removal: If, during the term of this policy, the Named Insured removes unscheduled personal property covered under Coverage C from the premises to another location within the Continental United States or the State of Hawaii, to be occupied as his principal residence, the limit of liability for Coverage C shall apply at each location in the proportion that the value at each location bears to the total value of all such property covered under Coverage C.
“Property in transit shall be subject to the limit of liability for unscheduled personal property away from the premises.
“This coverage shall apply only for a period of 30 days from the date removal commences and shall then cease.
“PERILS INSURED AGAINST
“COVERAGE C — UNSCHEDULED PERSONAL PROPERTY against direct loss to the property covered by the following perils as defined and limited, except as otherwise excluded.
“10. Theft, . . .
“a. General Theft Exclusions:
“This policy does not apply to loss:
“(2) in or to a dwelling under construction or of materials or supplies therefor until completed and occupied;
“c. Theft Exclusions applicable to property away from the described premises:
“This policy does not apply to loss away from the described premises of:
“(1) property while in any dwelling or premises thereof, owned, rented or occupied by an Insured, except while an Insured is temporarily residing therein;”

The crux of the controversy between the insured and the insurer appears to center on whether the theft exclusions apply to the automatic removal provision of the policy. The insurance company’s argument seems to be that since the section of the insurance policy listing the perils insured against contains no reference to the section describing supplementary coverage, the theft provisions do not apply to the automatic removal clause.

The difficulty with the insurance company’s argument is that no part of the “Supplementary Coverages” section is referred to in any part of the “Perils Insured Against” section. Therefore, under the insurer’s rationale, the supplementary coverage — contrary to the expectation created by the name “Supplementary Coverage ” — covers absolutely nothing; the subsection is superfluous to the insurance contract.

We cannot agree with the insurance company’s position. The settled rule of construction of insurance contracts was stated as follows in Aetna Life Insurance Co. v. Hare, 47 Ala.App. 478, 487, 256 So.2d 904, 912 (1972):

“. . . It is necessary to give effect to all parts of the policy and give a reasonable interpretation to all its provisions. An isolated sentence or term is not to be construed alone but in context with the other provisions of the policy. It is only in this way that the intent and purpose of the parties can be determined.” See also Smith v. Kennesaw Life & Accident Insurance Co., 284 Ala. 12, 221 So.2d 372 (1969).

It is not a reasonable interpretation of the policy to construe out of existence an entire section of the policy.

Furthermore, it is the rule in Alabama that an insured is entitled to the protection which he or she may reasonably expect from the terms of the policy. Lambert v. Liberty Mutual Insurance Co., Ala., 331 So.2d 260 (1976); Aetna Casualty & Surety Co. v. Chapman, 240 Ala. 599, 200 So. 425 (1941). The terms of the supplementary coverage in the policy certainly created an expectation on the part of the insured that his unscheduled personal property was covered from all the perils insured against, including theft, under the circumstances described in the supplementary coverage subsection.

The plain language of the automatic removal clause evokes an intent to extend coverage of unscheduled personal property located at the described premises for a period of thirty days when the insured moves to a new location in order to fill a gap in coverage before the insured has an opportunity to provide for insurance coverage at his or her new location.

In the case at bar the plaintiff was moving his principal residence from Garth Road to Foxfire Drive and had moved a portion of his household goods when the theft occurred. This is the sort of situation obviously contemplated by the drafters of the automatic removal policy provision. Such a construction gives to the terms of the policy a clear, plain, certain and unambiguous meaning and raises no doubts as to the proper construction of the policy. Otherwise, the provisions would be in conflict: the automatic removal provision would give coverage and the theft exclusion would take it away. Doubt created by such obvious ambiguity would require a strict construction against the insurer and a liberal construction in favor of the insured. Green v. Merrill, 293 Ala. 628, 308 So.2d 702 (1975); Trans-Continental Mutual Insurance Co. v. Harrison, 262 Ala. 373, 78 So.2d 917 (1955).

Consequently, we hold that the insured’s theft loss at the Foxfire Drive residence is covered by the homeowner’s policy in question.

The defendant insurer next says that even if the insured homeowner is entitled to recover, the trial court’s judgment should be reversed because it is based on the cost of replacing the stolen items rather than on the actual cash value of the items. The policy states that West American Insurance Company agrees to insure Mr. Biggs:

“. . .to the extent of the actual cash value of the property at the time of loss, but not exceeding the amount which it would cost to repair or replace the property with material of like kind and quality within a reasonable time after such loss, . . .” (Emphasis added.)

The insured testified that the actual cash value of the items of personal property that were stolen was $2,838.50. He said that as to some of the items he did not take into consideration depreciation and considered the purchase price as its value to him at the time of the theft. The insurer offered no evidence as to the value of the items stolen from the Foxfire Drive residence. Consequently the only evidence of value before the court was the testimony of the insured.

As authority for its contention that the insured failed to prove the actual cash value of the items covered by the policy, the insurer relies on Aetna Fire Insurance Co. v. Kennedy, 161 Ala. 600, 50 So. 73 (1909), wherein the supreme court said:

“The burden is on the plaintiff, in a suit on an insurance policy, to show the value of his interest in the property destroyed, and unless he produce evidence from which the jury can ascertain the value of his interest he is not entitled to recover more than nominal damages.” 161 Ala. at 605, 50 So. at 74.

The facts of the case at bar do not fall within the principle stated in Kennedy. The insured testified that the actual cash value to him at the time of the theft was $2,838.50, the amount the trial court awarded in its judgment. The insurer offered no evidence to the contrary. We think the trial court’s judgment awarding plaintiff $2,838.50 for his loss is supported by the evidence.

The judgment of the trial court is affirmed.

AFFIRMED.

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


text:
    Ex parte WEST AMERICAN INSURANCE COMPANY.
    SC 2669.
    Supreme Court of Alabama.
    July 29, 1977.
   FAULKNER, Justice.

WRIT DENIED.

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


author: HARRIS, Judge. DeCARLO, Judge

text:
    Dorothy Gray ELMORE v. STATE.
    1 Div. 635.
    Court of Criminal Appeals of Alabama.
    March 30, 1976.
    Rehearing Denied May 4, 1976.

      Donald E. Brutkiewicz, Mobile, for appellant.
    William J. Baxley, Atty. Gen., and William A. Davis, III, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was put to trial upon an indictment which, omitting the formal parts, reads as follows:

“The GRAND JURY of said County charge, that, before the finding of this indictment DOROTHY GRAY ELMORE whose name is to the Grand Jury otherwise unknown than as stated, did while intoxicated, drive a motor vehicle upon or along Old Pascagoula Road a public highway in Mobile County, Alabama, against the peace and dignity of the State of Alabama. CHARLES R. BUTLER, JR., District Attorney for the 13th Judicial Circuit of Alabama (County of Mobile)”.

She was represented by retained counsel at arraignment and trial. She pleaded not guilty.

The jury returned a verdict in the following form:

“We, the jury, find the defendant guilty of driving while intoxicated, as charged in the indictment.”

The indictment was brought pursuant to the provisions of Title 36, Section 2, Code of Alabama 1940, which provides among other things that upon conviction the accused shall be fined not less than $100.00 nor more than $1,000.00.

It is to be noted that the jury did not assess a fine or decline to fix a fine. The trial judge assessed a fine of $150.00 and in lieu of the payment of the fine, he sentenced appellant to the Mobile County Jail for a term of fifty (50) days.

Title 15, Section 335, Code of Alabama 1940, provides as follows:

“In prosecution by indictment, the jury shall fix and determine the amount of the fine; and no judge shall remit or reduce the fine so fixed, unless he spreads his reasons for so doing in full on the minutes of the court.”

Under this section the trial court had no authority to impose a fine.

If the jury fails to impose or assess a fine, the trial judge is without authority to do so. Carpenter v. State, 50 Ala.App. 543, 280 So.2d 804.

For the error noted the case is reversed and remanded for a new trial.

There are other matters raised on this appeal but we will forego treating them as they will not likely arise upon another trial.

REVERSED AND REMANDED.

All the Judges concur, except DeCARLO, J., who dissents with an opinion.

DeCARLO, Judge

(dissents).

In deference to an excellent opinion written by my learned brother, I would respectfully suggest that this case be affirmed and the cause remanded for proper sentence.

From the opinion, we see that the jury returned a general verdict and under Winn v. State, 38 Ala.App. 156, 79 So.2d 75, this court could affirm and remand for proper sentence.

Under T. 15, § 336, Code of Alabama 1940 (Recompiled 1958), the trial court had authority after a general verdict to pronounce punishment but not a fine. Here the judge assessed a fine which was transposed into comparable time when the fine could not be paid.

The facts in Winn, supra, are somewhat similar to the ones outlined here. In Winn we have a conviction for gaming on Sunday. There the jury returned a general verdict of guilt and the judge imposed a fine of $10.

Judge Price wrote, as my brother has written here, that the court was without authority to assess a fine but determined the case should be affirmed and the cause remanded for proper sentence.

Mindful of the danger that this meager effort may be understood to be presumptuous, I urge my brothers to affirm and remand for proper sentence.

In view of the foregoing, I respectfully dissent.


author: EMBRY, Justice.

text:
    In re Dorothy Gray ELMORE v. STATE of Alabama. Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    SC 1850.
    Supreme Court of Alabama.
    July 9, 1976.
    As Corrected On Denial of Rehearing Aug. 6, 1976.
    William J. Baxley, Atty. Gen., and William A. Davis, III, Asst. Atty. Gen., for the State, petitioner.
    Donald E. Brutkiewicz, Mobile, for respondent.
   EMBRY, Justice.

In this case, Dorothy Gray Elmore, was indicted, tried and found guilty by a jury, of driving while intoxicated. However, the jury neither assessed a fine nor declined to fix one. The trial court assessed one of $150 and in lieu of payment sentenced defendant to jail for a term of fifty days.

On appeal the Court of Criminal Appeals reversed and remanded for new trial, Ala.Cr.App., 348 So.2d 262. It held:

“Title 15, Section 335, Code of Alabama 1940, provides as follows:
“ ‘In prosecution by indictment, the jury shall fix and determine the amount of the fine; and no judge shall remit or reduce the fine so fixed, unless he spreads his reasons for so doing in full on the minutes of the court.’
“Under this section the trial court had no authority to impose a fine.
“If the jury fails to impose or assess a fine, the trial judge is without authority to do so. Carpenter v. State, 50 Ala.App. 543, 280 So.2d 804.”

The case is before us to review that decision. We reverse and remand for revision of the opinion in order for the Court of Criminal Appeals to remand to the trial court for proper sentence. This is not to say, however, that the authority to grant probation or suspend sentence is not within the discretion of the trial court. Code of Ala., Tit. 42, § 19; Ex parte Smith, 252 Ala. 415, 41 So.2d 570.

It is true, if the jury fails to impose or assess a fine the trial court is without authority to do so; also, it is without authority to impose a sentence to be served in lieu of payment of the illegally imposed fine. However, where the jury finds the defendant guilty, and fails to assess a fine, imposition of punishment is left to the court under the terms of Code of Ala., Tit. 36, § 2. Grace v. State, 57 Ala.App. 586, 329 So.2d 643 (1976); Winn v. State, 38 Ala.App. 156, 79 So.2d 75 (1954); Code of Ala., Tit. 15, § 336.

REVERSED AND REMANDED IN ACCORD WITH THIS OPINION.

HEFLIN, C. J., and BLOODWORTH, FAULKNER and ALMON, JJ., concur.

ON REHEARING

By reversing and remanding this case we do not foreclose the right of the Court of Criminal Appeals to consider the various contentions of the appellant regarding other errors she alleges occurred in the trial of this action; not heretofore addressed by the Court of Criminal Appeals.

OPINION CORRECTED.

APPLICATION FOR REHEARING OVERRULED.

HEFLIN, C. J., and BLOODWORTH, FAULKNER and ALMON, JJ., concur.


author: HARRIS, Judge.

text:
    Dorothy Gray ELMORE v. STATE.
    1 Div. 635.
    Court of Criminal Appeals of Alabama.
    Aug. 31, 1976.
    Rehearing Denied Oct. 5, 1976.

      Donald E. Brutkiewicz, Mobile, for appellant.
    William J. Baxley, Atty. Gen., and William A. Davis, III, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

The Supreme Court reversed and remanded this case on July 9,1976. An application for rehearing was filed in that Court and on August 6, 1976, the Court said:

“By reversing and remanding this case we do not foreclose the right of the Court of Criminal Appeals to consider the various contentions of the appellant regarding other errors she alleges occurred in the trial of this action; not heretofore addressed by the Court of Criminal Appeals.”

The evidence for the State shows that on November 15,1974, John W. McCormick, Jr., Deputy Sheriff of Mobile County, along with his partner Deputy McAfee, were on routine patrol on the Old Pascagou-la Road in Mobile County. He testified that they approached the intersection of McDonald Road and Old Pascagoula. They turned south on McDonald Road at which time a car swerved over into their lane of traffic and forced them partially off the road.

He described the automobile as an old white Oldsmobile and he fixed the time at approximately 5:20 to 5:30 p. m. He further stated that they turned around and the traffic was pretty heavy at that time and it took them a few minutes to get turned around. They headed back down toward Pascagoula to try to find the car that ran them off the road. He stated that they came upon the automobile approximately a mile and a half from the point where they first saw it. He said that the car was stopped with the nose down into a ditch at Old Pascagoula and A1 Johns Road, that appellant was seated behind the steering wheel and there was a boy in the car with her.

He further testified that he observed appellant at that time and she seemed disoriented and her speech was slurred and he smelled a strong odor of alcohol in the automobile. He noticed that there was some beer in the car but it was not open. He expressed his opinion that she was intoxicated.

On cross-examination he testified that he could not identify appellant as being the driver of that car that almost ran them off the highway. He stated that he did not see appellant driving a car on a public highway. He further stated that the stopped car in which appellant was sitting under the steering wheel was white over a dark blue Oldsmobile and that he could only identify the car by its color. He further testified that he could not state that he had seen appellant driving this automobile in Mobile County on that date or any other date.

Roy Price testified that he was a deputy sheriff of Mobile County and had been so employed for five years. He stated that he was a patrolman and that he was assigned to patrol Area 19 in Theodore to Dauphin Island and from Irvington to Bayou Road to the bay.

He further testified that part of his duties consisted of conducting examinations of motorists to determine whether or not they were intoxicated. He stated that he took a course in Montgomery approximately two years before the date of November 15, 1974 and a refresher course in 1975. He stated that the course he took was to learn how to operate a photo electric intoximeter. He said that this instrument was used in Mobile County in the State of Alabama and had been certified by the State Board of Health. He further testified that he had run this test on approximately 150 to 200 people. He was asked what was involved in running the test and he went into an elaborate discussion of what he did from a checklist that was in his possession and that he used this test list on appellant. He stated that he had a permit or certificate from the State Board of Health to operate this photo electric intoximeter. He further stated that appellant was arrested at 5:45 p. m. and the test was given at 6:17 p. m. and that the machine had been checked by Inspector Myers on November 6, 1974, nine days before he conducted the test on appellant. He said that the test showed an alcohol level of .20.

The appellant’s counsel moved to exclude this witness’s testimony on the ground that the proper predicate had not been laid either for the function of the machine or the ability of the operator. The Court overruled the motion to exclude this witness’s testimony.

On cross-examination Mr. Price testified that he had no independent recollection of this lady at all except that he remembered her by sight, that he only had the checklist to go on. He further testified that he did not see appellant driving an automobile on a public highway in Mobile County on the date of the alleged offense. He further stated that he observed appellant for about 20 minutes before he administered the test and that she did not smoke or have anything to drink during that period of time.

Counsel for appellant in his motion to exclude told the Court that the witness had testified three times he never saw the woman driving the automobile on a public road in Mobile County, that the car was stopped when the officers came upon her and that there was no showing or proof that appellant had not had anything to drink from the time that the officers first saw her until they came upon the automobile partially in the ditch.

It is crystal clear as shown by Title 36, Section 1, that the definition of “highway” means “Every way or place of whatever nature open to the use of the public as a matter of right for purposes of vehicular travel. The term ‘highway’ shall include the full width of the right of way of any public road, street, avenue, alley, or boulevard, bridge, viaduct or trestle, and the approaches thereto, within the limits of the state of Alabama. The term ‘highway’ shall not be deemed to include a roadway or driveway upon grounds owned by private persons.” The evidence is clear and unequivocal that no officer saw appellant operating an automobile upon a public highway in Mobile County on the date that she was arrested and therefore the motion to exclude should have been granted.

In Gamble v. State, 36 Ala.App. 581, 60 So.2d 696, this Court held:

“Evidence of defendant’s drunken condition sometime after alleged offense was committed is not admissible, unless it is first shown that defendant had no access to intoxicating liquor in meantime.”

The Court, in Gamble, supra, held it reversible error to allow a witness to state that when he saw the defendant he was intoxicated or drunk and smelled of whiskey.

The record is entirely silent as to whether or not appellant had consumed any intoxicating liquor or beverages from the time the officers first saw the automobile which they alleged almost ran them off the highway until the time they came upon the automobile a mile and a half distance away.

It will be noted that in the Gamble case some 25 minutes elapsed from the time that officers first saw the defendant until they stopped him, whereas in the present case some 32 minutes elapsed from the time she was arrested until the test was administered.

More importantly, we think the testimony of Deputy Price should have been excluded as the proper predicate was not laid for his testimony. Ex parte Patton, Ala., 337 So.2d 321, rendered on June 18, 1976, wherein the Court said:

“Nowhere is it shown that duly adopted methods or regulations of the State Board of Health were followed in administering the test. The trial court therefore had before it no certified methods promulgated by the Board of Health for the administration of the test and consequently was unable to ascertain standards against which the evidence could be measured.
“While it is unnecessary for the prosecution to resort to the P.E.I. test in order to make a prima facie case [Broxton v. State, 27 Ala.App. 298, 171 So. 390 (1936); McMurry v. State, 28 Ala.App. 253, 184 So. 42 (1938)], the results of the test, which we hold were inadmissible, were highly prejudicial.
“Our decision in the instant case does not stand for a proposition that every legislative delegation of power gives rise to a mandatory duty to promulgate administrative' standards in order for that power to be validly exercised. But our inability here to ascertain the validity of the results obtained from a technologically sophisticated device due to questionable operator technique, demonstrates the absolute necessity for written procedural methods governing its use. In this regard, unwritten standards of the Board of Health are no better than no standards at all. See Sun Ray Drive-In Dairy, Inc. v. Oregon Liquor Control Comm., 16 Or. App. 63, 517 P.2d 289 (1973). The need for written standards becomes particularly acute where, as here, a finding of criminal conduct may well turn upon adherence to and rigid compliance with such standards.
“Our decision, moreover, is not to be construed as a rejection of results of the Photo-Electric Intoximeter when introduced as evidence against persons charged with driving while under the influence of intoxicating liquor. Although intoxication levels obtained from the P.E.I. and similar blood-alcohol content measuring devices have been fraught with evidentiary challenges as to their probative value in criminal proceedings; see State v. Bessette, 130 Vt. 438, 296 A.2d 179 (1972); we have been willing to accept these results and statutory presumptions which attach therefrom where the record is devoid of matters which substantially draw into doubt their accuracy. Rivers v. Black, 259 Ala. 528, 68 So.2d 2 (1953); Bonner v. State, 52 Ala.App. 346, 292 So.2d 460 (1974). Furthermore, the legislature has declared that the results of P.E.I. tests ‘shall be admissible as evidence.’ Tit. 36, § 155(a), supra. Accordingly, in passing on a conviction which was based in part on the results of a P.E.I. test, the only concern of this court is to ascertain whether the will of the legislature has been obeyed. We hold that an affirmative response to that inquiry cannot follow where there are no written standards governing the manner in which P.E.I. tests are to be performed by state law enforcement agencies.
“It would be a simple matter to profer a duly certified and authenticated copy of methods or regulations duly adopted or approved by the State Board of Health. When such copy is admitted in evidence, then the proponent could ask the witness predicatory questions.”
* * * * Us *

Nowhere in this record can it be found a duly certified and authenticated copy of methods or regulations adopted or approved by the State Board of Health was ever introduced in evidence. For the errors noted, this case is

REVERSED AND REMANDED.

All the Judges concur.

       When the legislature declares that certain evidence is admissible, the courts are bound by that declaration. This rule prevails until the admission of that evidence runs afoul of the state or federal constitutions. Evidence can be so unreliable and inconclusive as to violate due process of law. Flurry v. State, 52 Ala.App. 64, 289 So.2d 632 (1973); United States v. Fay, 2 Cir., 284 F.2d 426 (1960); Blackburn v. State of Alabama, 361 U.S. 199, 80 S.Ct. 274, 4 L.Ed.2d 242 (1960).”