author: ALMON, Justice. JONES, Justice

text:
    JEFFERSON TRUCKING COMPANY, a corporation v. ALABAMA PUBLIC SERVICE COMMISSION et al.
    SC 2091.
    Supreme Court of Alabama.
    June 3, 1977.
    Rehearing Denied July 8, 1977.
    John W. Cooper, of Cooper & Huey, Birmingham, for appellant.
    William K. Martin, Montgomery, for ap-pellees Ross Neely Express Inc. and Bag-gett Transp. Co.
    Carl L. Evans and Jerry L. Weidler, Montgomery, for appellees Alabama Public Service Commission and its members.
   ALMON, Justice.

Jefferson Trucking Company, appellant, applied to the Alabama Public Service Commission to obtain a contract carrier permit (as opposed to a common carrier certificate). The Commission accepted the report of the examiner who heard the case and denied the application. Jefferson appealed to circuit court, which affirmed the Commission.

Jefferson presently serves National Gypsum Company as a contract carrier on an exclusive basis over interstate routes. National Gypsum has 62 manufacturing facilities, warehouses, and supply centers with sales exceeding $584,000,000. The appellant, Jefferson, has maintenance facilities located at National plant sites in National City, Michigan; Lorraine, Ohio; and Shoals, Indiana. Jefferson presently hauls interstate between National plants at Anni-ston, Alabama; and Shoals, Indiana. The Shoals, Indiana, plant manufactures gypsum board, which Jefferson hauls to various buyers in Alabama. The Anniston plant is a paper mill which manufactures gypsum board paper. Jefferson, by return trip, carries the gypsum board paper to the Shoals, Indiana, plant for use in its manufacturing process.

By way of Jefferson’s intrastate contract carrier application, it seeks to make more efficient use of its truck routes. The raw material for the Anniston plant is 240 tons per day waste paper derived partially (24%) from sources throughout Alabama, including Boy Scouts and church groups. Presently, all the waste paper moving intrastate is by National’s trucks (52%) or the vendors’ trucks (48%). Jefferson proposes to fill its empty trucks with waste paper on the route between its designation point for a load of gypsum board from Indiana and the Anni-ston plant where it would receive a load of gypsum board paper for its return trip to Indiana.

Jefferson’s application was opposed by two common carriers, Ross Neely Express, Inc. (RNX) and Baggett Transportation Company (Baggett). Neither RNX nor Baggett are currently hauling waste paper for National, though National admits it has not attempted to use common carriers. A witness for National stated that an assured supply of paper has to be coordinated with production requirements, and that over the years, common carriers have not proven satisfactory.

RNX and Baggett testified they are in need of the additional freight, as each has recently laid off personnel for lack of business, and are quite capable of handling the waste paper. RNX has handled a number of shipments of scrap paper, though not for National. Baggett hauled waste paper to the Anniston plant when it first opened in 1956, but lost the business when National started using its own fleet.

The examiner, in concluding that to grant the permit would not be consistent with public interest (Tit. 48, § 301(11)(B), Code of Alabama 1940, Recompiled 1958), made the following findings:

“The Examiner finds from the testimony and the record that both common carriers protesting this application hold what amounts to practically statewide authority from this Commission, that both carriers have terminals located throughout the State of Alabama, and each has a terminal located close by the shipper’s facilities outside of Anniston, Alabama. Both carriers have from time-to-time transported shipments of waste paper in the State of Alabama. Due to a decline of business, the carriers are not now utilizing their equipment to the fullest extent and have been forced to lay off employees. The Examiner is of the opinion that the Applicant has failed to show that it would be consistent with the public interest for a grant of this application and is of the opinion that the movement of paper could be adequately handled by common carriers. The Examiner is of the further opinion that the Applicant has failed to show any special need, such as a complete dedication of equipment or any other need, that could not be handled adequately by the existing common carriers. Existing authorized common carriers can provide all of the service which National’s witness testified National needs. The common carriers have expenses which must be met and obligations which they must fulfill under the terms of their certificates such as serving small shippers on LTL freight and outlying areas in the State of Alabama where there is very little existing service. In order for the common carriers to maintain the existing level of service and possibly seek to improve the level of service and to render a needed service to the public of the State of Alabama, they should be given the opportunity to transport truckload business, such as the waste paper testified to in this ease. Existing authorized common carriers should be given a reasonable opportunity to provide the service needed by National before new authority is granted to Jefferson. The record in this case is clear that National has not attempted to give authorized common carriers a reasonable opportunity to handle National’s intrastate shipments of waste and scrap paper in Alabama.”

Tit. 48, § 82, Code, supra, provides that the commission’s order shall be taken as prima facie just and reasonable, but that the circuit court shall set aside the order if the Commission “erred to the prejudice of appellant’s substantial rights in its application of the law,” as Jefferson contends it has. We review the order of the Commission as if it were on direct appeal to us, without any presumption as to the correctness of the judgment of the circuit court. A.P.S.C. v. Consolidated Transport Co., 286 Ala. 323, 239 So.2d 753 (1970), and cases cited therein.

Appellant Jefferson Trucking Co. brings to our attention the United States Supreme Court case of I.C.C. v. J-T Transport Co., 368 U.S. 81, 82 S.Ct. 204, 7 L.Ed.2d 147 (1961), and cases following J-T Transport: Meatpackers Express, Inc. v. U. S. et al., 244 F.Supp. 642 (D.C., Neb., 1965); Continental Contract Carrier Corp. v. U. S., D.C., 311 F.Supp. 390 (1970); Joe Jones, 103 M.C.C. 934 (1967); Service Transport, Inc., 115 M.C.C. 29 (1972). J-T Transport examined the effect of 1957 amendments to Interstate Commerce Act, Part II (49 U.S.C.A., § 301 et seq.). The amendments were precipitated by the case of U. S. v. Contract Steel Carriers, 350 U.S. 409, 76 S.Ct. 461, 100 L.Ed. 482 (1956) which “held that a contract carrier, rendering a specialized service in the sense that it hauled only a limited group of commodities over irregular routes, did not become a common carrier because it searched for new business within the limits of its license.” J-T Transport Co., supra, 368 U.S. at 85-86, 82 S.Ct. at 207. To prevent contract carriers from being able to handle many contracts over its given routes and thereby becoming in the nature of a common carrier, Congress amended the definition of contract carrier in § 203(a)(15) (49 U.S.C.A., § 303(a)(15)) and specified certain considerations in § 209(b) (49 U.S.C.A., § 309(b)). § 203(a)(15) now reads as follows:

“(15) The term ‘contract carrier by motor vehicle’ means any person which engages in transportation by motor vehicle of passengers or property in interstate or foreign commerce, for compensation (other than transportation referred to in paragraph (14) of this subsection and the exception therein), under continuing contracts with one person or a limited number of persons either (a) for the furnishing of transportation services through the assignment of motor vehicles for a continuing period of time to the exclusive use of each person served or (b) for the furnishing of transportation service designed to meet the distinct need of each individual customer.”

§ 209(b) was altered, inter alia, by adding the following:

“. . . In determining whether issuance of a permit will be consistent with the public interest and the national transportation policy declared in [this Act], the Commission shall consider [1] the number of shippers to be served by the applicant, [2] the nature of the service proposed, [3] the effect which granting the permit would have upon the services of the protesting carriers and [4] the effect which denying the permit would have upon the applicant and/or its shipper and [5] the changing character of that shipper’s requirements.”

The Court held in J-T Transport Co., supra, that because of these amendments, the Interstate Commerce Commission may not indulge in a presumption in favor of a common carrier over a contract carrier.

“. . . We see no room for a presumption in favor of, or against, any of the five factors on which findings must be made under § 209(b). The effect on protesting carriers of a grant of the application and the effect on shippers of a denial are factors to be weighed in determining on balance where the public interest lies. The aim of the 1957 amendments, as we read the legislative history, was not to protect the status quo of existing carriers but to establish a regime under which new contract carriage could be allowed if the ‘distinct need’ of shippers indicated that it was desirable.
“The proper procedure, we conclude, is for the applicant first to demonstrate that the undertaking it proposes is specialized and tailored to a shipper’s distinct need. The protestants then may present evidence to show they have the ability as well as the willingness to meet that specialized need. If that is done, then the burden shifts to the applicant to demonstrate that it is better equipped to meet the distinct needs of the shipper than the protestants.
“Moreover, as we read the Act, as amended in 1957, the standard is not whether existing services are ‘reasonably adequate.’ It is whether a shipper has a ‘distinct need’ for a different or a more select or a more specialized service. The protesting carriers must show they can fill that ‘distinct need,’ not that they can provide a ‘reasonably adequate service.’ ” 368 U.S. at 89-91, 82 S.Ct. at 209-210.

Our legislature has not adopted the above amendments. On the contrary, Tit. 48, § 301(11)(B) provides specifically that a contract “carrier may substitute or add contracts within the scope of his permit, . as the development of the business and the demands of the public may require” in the same manner as § 209(b) of the Interstate Commerce Act did prior to the amendments. Thus, parts of the above amendments are in contradiction to our statute. Jefferson Trucking would presumedly have us follow J-T Transport as to the remainder of the opinion, with the implication being that the Commission placed too heavy a burden of proof on the appellant, Jefferson Trucking Co.

In A.P.S.C. v. Consolidated Transport, supra, on which appellant also relies, we quoted extensively from A.P.S.C. v. Nunis, 252 Ala. 30, 39 So.2d 409 (1949), part of which we again quote:

“ ‘Attention is called to the difference in the finding necessary for contract carriers, that is, “consistent with the public interest,” and for common carriers, that there must be a “certificate of public convenience and necessity.” Section 301(8), Title 48, supra.
‘A contract carrier can give preferential service, and is not limited to schedules or routes: a common carrier is thus bound. . . . This carrier cannot extend the preferential service nor other advantages of a contract carrier.
“ ‘ ■ . . It is not a question of whether the public needs this service, as when a common carrier seeks a permit, but whether such service would be detrimental to the public interest.
“ ‘. • • We think this proposed service would be consistent with the public interest, unless it would probably depreciate materially the ability of the lone common carrier who may be equipped so to engage in serving the public, and who alone is protesting this application. . . ’ ” A.P.S.C. v. Consolidated Transport Co., supra, 286 Ala. at 330-331, 239 So.2d at 760-761.

In view of Nunis, supra, and Consolidated Transport, supra, the Alabama Public Service Commission is not at liberty to indulge in presumptions. See also A.P.S.C. v. Decatur Transfer & Storage, Inc., 257 Ala. 346,. 58 So.2d 887 (1952); Osborne Truck Lines, Inc. v. A.P.S.C., 284 Ala. 166, 223 So.2d 284 (1969); Redwing Carriers, Inc. et al. v. Floyd & Beasley Transfer Co., Inc., Ala., 341 So.2d 939 (1977). On the other hand, our legislature has not mandated specific considerations as Congress has done, and we must still begin with the assumption that the Commission’s order is prima facie just and reasonable.

The specialized service or distinct need in question here is National Gypsum’s desire to coordinate supply with production requirements and to make pick-ups when the vendors of scrap paper are ready, not the need for any specialized equipment that is unavailable from common carriers. National now has 14 tractors and 19 trailers domiciled at its Anniston plant with two units dedicated exclusively to hauling waste paper. If the services of Jefferson were made available, National would reduce its private fleet, though apparently not eliminate it.

Jones, Vice-President of Baggett (protes-tante testified that Baggett had previously hauled scrap paper for National between Birmingham and Anniston before National instituted its private fleet. In 1974 Bag-gett opened a terminal at Anniston, one block from the National plant.

Poster, appearing for RNX, testified that RNX had carried shipments of scrap paper in vans during January and February, 1975, just before the hearing, though it had never handled shipments for- National. RNX has a terminal within 3 or 4 miles of the National plant and would be willing to hold a shipment there. It holds out overnight service and will furnish services 24 hours a day, 7 days a week.

As we noted earlier, the examiner found that “the movement of paper could be handled adequately by common carriers” and that “[ejxisting authorized common carriers can provide all of the service which National’s witness testified National needs.”

While National has shown a preference for private or contract carriage over common carrier, neither Jefferson nor National has shown a need that cannot be filled, as distinct from reasonably adequately serviced, by common carriers. The added plus in Jefferson’s favor — that approval of its application would increase efficiency and conserve energy — is a factor to be considered, but is outweighed by the needs of the common carriers in light of their ability to provide the service.

The decision of the circuit court is affirmed.

AFFIRMED.

TORBERT, C. J., and BLOODWORTH, MADDOX, FAULKNER, SHORES, EM-BRY and BEATTY, JJ., concur.

JONES, J., dissents.

JONES, Justice

(dissenting):

I respectfully dissent.

If ever a set of facts overwhelmingly cried out in favor of granting an application for a contract carrier permit, it is presented in this case. National Gypsum is in need of a hauler. Jefferson Trucking is exclusively dedicated to National’s hauling needs. National is currently supplying its own needs for incoming scrap paper; and this practice evolved from its past bad experience with common carriers. If Jefferson obtains the contract carrier permit, a substantial portion of this specialized and distinct hauling need will be shifted from National to Jefferson — a management policy decision which National alone is competent to make. In no event will it go to Baggett or RNX, neither of whom has had or has sought this freight.

National’s decision to deal exclusively with Jefferson (or, if the permit is denied, to continue the use of its own equipment) is not an arbitrary one in favor of Jefferson; nor is it biased against these particular protesting common carriers. The uncontro-verted testimony of National’s plant manager makes clear that the volume of paper used, the timeliness of its use, and lack of storage space require a highly proficient operation in the supplying of this raw material in the manufacturing process. The continuous and uninterrupted plant operation is dependent upon the right amount of scrap paper at the right time at the right place. This need can be met, in the opinion of National, in only two ways: First, as National is now operating by using its own equipment; or, second, through the service of a contract carrier over whom National has virtually exclusive control. Only Jefferson fits the latter choice; and this for the reason that Jefferson devotes 100% of its trucking operation to the service of National. This particular arrangement places Jefferson in practically the same position in meeting National’s hauling needs as if National were using its own rolling stock.

The cases make clear (the very ones cited in the majority opinion) that the statutory criteria for granting the permit is complied with unless it would not be consistent with the public interest. Just how the protestants have met the burden of showing “not consistent with public interest”, either from the record or from the rationale of the majority opinion, totally escapes me. If I understand the majority opinion, it holds that increased efficiency of production and energy conservation are matters not in the public interest, notwithstanding the absence of valid countervailing considerations.

It becomes increasingly apparent to me that a lot more people talk “free enterprise and competitive economy” than really believe or practice those precepts. These are ideals to be given lip service but that seem to have fewer and fewer practicing adherents in the day-to-day market place. This tendency to abandon traditional concepts of a free economy consists in society’s compulsion to overregulate itself. Regulations— and the accompanying regulatory agencies — whose avowed purpose is to insure competition in a free enterprise system (thus permitting monopolies under controlled structure) become the very tools to destroy that which it was conceived to protect. The servant has become the master; the guardian the prey; the hunter the hunted; and the means the end. The shield of protection is transformed into the sword of destruction.


source: Caselaw Access Project

author: BEATTY, Justice.

license: Public Domain

text:
    Gerald COURINGTON v. BIRMINGHAM TRUST NATIONAL BANK, a corporation, et al.
    SC 2185.
    Supreme Court of Alabama.
    June 3, 1977.
    John F. Kizer, Jr., Birmingham, for appellant.
    Warren B. Lightfoot and Robert G. Johnson, Birmingham, for appellee.
   BEATTY, Justice.

This is an appeal from an order of the Circuit Court of Jefferson County granting summary judgment for the defendant. We affirm.

After voluntarily terminating his employment with his former employer, Birmingham Trust National Bank, plaintiff applied to that bank for sums of money to which he was entitled from an Employee’s Profit Sharing Plan of which plaintiff was a participant. Although his own contributions were returned to him, the bank refused to pay plaintiff that amount of money which the bank itself had contributed to plaintiff’s account. He brought this action to recover the employer’s matching contribution. By amendment two additional plaintiffs were later added, individually and as a class action (these other defendants did not file notice of appeal and hence are not parties to this appeal).

Following the overruling of its motion to dismiss, the defendant bank filed an answer setting up as its defense a provision in the Employee’s Profit Sharing Plan under which, it contended, plaintiff forfeited the bank’s matching contribution by engaging in direct competition with his former employer. Motion for summary judgment was then made by defendant, based upon the pleadings, depositions of the three plaintiffs, and the affidavit of Steven D. Schepker; in due course this motion was granted on October 7, 1976.

It appears from the record and from the briefs that there was in existence during the plaintiffs’ terms of employment with defendant and at the time of termination a profit-sharing plan containing forfeiture provisions. Before January 1,1974, the applicable provision provided in part:

Section 6. Cancellation of Benefits

Notwithstanding any other provisions of the Plan, in the event that any Participant or Former Participant, whether actively employed, terminated with vested benefits, or retired under the Plan, shall either (i) engage, or have engaged, in direct competition with an Employing Company, either individually or as an officer, director, agent, or employee of another person, firm, or corporation, (ii) disclose, or have disclosed or removed, or have removed, from the premises of an Employing Company information of a confidential nature or, (iii) misappropriate, or have misappropriated, funds or assets of an Employing Company, such Participant or Former Participant shall be entitled, if the Administrative Committee so determines, to receive pursuant to the Plan only his Employee Contributions; and the remainder of the Individual Account of such Participant or Former Participant shall constitute a Forfeiture and should be removed from his Individual Account and reallocated in the manner provided in Article V above.

An amended provision became effective on January 1, 1974:

Section 6. Cancellation of Benefits

Notwithstanding any other provisions of the Plan, in the event that any Participant or Former Participant, whether actively employed, terminated with vested benefits, or retired under the Plan, shall either (i) engage, or have engaged, in direct competition with an Employing Company, either individually or as an officer, director, agent, or employee of another person, firm, or corporation within Jefferson County, Alabama, or in any other county in the State of Alabama, and the Administrative Committee, in its sole discretion, determines that such competition will cause, or is likely to cause, injury to the business and profits of such Employing Company, (ii) disclose, or have disclosed or removed, or have removed, from the premises of an Employing Company information of a confidential nature or, (iii) misappropriate, or have misappropriated, funds or assets of an Employing Company, such Participant or Former Participant shall be entitled to receive pursuant to the Plan only his Employee Contributions; and the remainder of the Individual Account of such Participant or Former Participant shall constitute a Forfeiture and should be removed from his Individual Account and reallocated in the manner provided in Article V above;

The appellant invokes Title 9, § 22, Alabama Code, for the invalidity of the forfeiture provision of this Plan:

Every contract by which any one is restrained from exercising a lawful profession, trade, or business of any kind, otherwise than is provided by the next two sections, is to that extent, void.

In brief he argues that the record does not show that plaintiff-employees were employed by a written contract; that the record is likewise silent on whether they ever read the pension plan agreements “before this Court;” and that the record does not show that the plaintiffs acquiesced or mutually agreed with their bank-employer to the “binding effect of the forfeiture clause. . ” That reasoning appears inconsistent, for on the one hand appellant relies upon a contractual obligation of the bank to pay funds it contributed (nowhere is it suggested that the bank made a gift of its contributing share); otherwise there would be no need to invoke Title 9, § 22 which applies to contracts. On the other hand, appellant appears to maintain that there was no contract because the employees did not agree to the Plan, or at least with its forfeiture provision. If the employees did not agree to the Plan there would be no contract whatsoever, and their recovery would proceed upon a different theory, if any. If they did agree to the Plan, still the question of the bank’s obligation to pay its matching share would depend upon the application of Title 9, § 22 and its exceptions delineated in Title 9, § 28:

One who sells the good will^of-a business may agree with the buyer, and one who is employed as an agent, servant, or employee may agree with his employer, to refrain from carrying on or engaging in a similar business and from soliciting old customers of such employer within a specified county, city, or part thereof, so long as the buyer or any person deriving title to the good will from him, and so long as such employer carries on a like business therein.

The record shows that the Plan provided that an eligible employee:

shall participate when he files with the Administrative Committee on a prescribed form such information as shall be required by the Administrative Committee, which shall include the Employee’s acceptance of the terms and conditions of the Plan and his authorization to deduct Employee Contribution, if any are to be made by him.
Each Eligible Employee, upon becoming a Participant, shall be conclusively deemed to have consented to all the terms and conditions of the Plan, as the same may be hereafter amended, and shall be bound thereby with the same force and effect as if he were a party thereto.

We are convinced that any argument to the effect that the appellant did not contract, or did not acquiesce, in the Plan is untenable. The record discloses an acknowledgement of receipt of “Request for Participation and Authorization for Employee Contributions,” “Designation of Beneficiary” and “Elective Cash Payment” forms signed “G M Courington,” and dated November 8, 1966. The “Request .” form contained three blank spaces for dates, one for a specification of the percentage of basic compensation to be deducted, and one for the employee’s signature:

In consideration of my employment and of the undertakings of my employer as set forth in the Birmingham Trust National Bank Employees’ Profit Sharing Plan and Trust Agreement, dated August 8, 1966 and effective as of January 1, 1966, I hereby apply for participation in and with respect to the said plan and trust agreement and hereby accept and assent to and agree to be bound by all of the provisions of the said plan and trust agreement and of all amendments thereto, whenever made.
I was born on the 4th day of Sept., 1936. The date upon which I was employed by the Birmingham Trust National Bank or the Bank for Savings and Trusts (as the case may be), and since which time I have been in continuous service, as defined in said profit sharing plan and trust agreement, was March 1st, 1957. If this statement of my birth date or my employment by the Birmingham Trust National Bank or the Bank for Savings and Trusts is incorrect, I agree that all my interest under said profit sharing plan and trust agreement shall be determined according to the correct date.
Under the provisions of Article IV, Section 1, of the said profit sharing plan and trust agreement, I hereby authorize the Bank to deduct 4% of my basic compensation once each month effective January 1, 1967. I understand and agree that the first of such deductions shall be made January 31, 1967 and on the last day of each month thereafter. This authorization shall continue in effect until rescinded or changed by me in writing, pursuant to the provisions of Article IV, Section 1, of said profit sharing plan and trust agreement.
I acknowledge receipt of a copy of the Birmingham Trust Employees’ Profit Sharing Plan and Trust Agreement.
WITNESS my hand and seal this 8th day of Nov, 1966.

As the form shows, the blanks were executed, the signature being “G M Couring-ton.” One who has executed a written contract in ignorance of its contents cannot set up his ignorance to avoid the obligation in the absence of fraud or misrepresentation. Grady v. Williams, 260 Ala. 285, 70 So.2d 267 (1953). An Election of Cash Payments under the Plan, dated November 8, 1966, was signed “G M Courington.” A change of beneficiary under the Plan was executed on October 10, 1967 by “G M Courington.” An option to change the percentage of contributions was executed on October 31,1969 by “G M Courington,” and another executed on November 3,1970 by “G M Courington.” Although the appellant stated in his deposition that he had not read the agreement and thus did not have personal knowledge of the “competition” clause, he did state that there were discussions among employees about “who is a competitor and who is not a competitor,” because “some people would get paid their profit sharings and some wouldn’t.” We believe that this evidence, taken as a whole, establishes acquiescence in the Plan, if not outright agreement, on the part of appellant.

In Williston on Contracts, § 98 (Rev. ed.), it is stated:

. [t]he whole objective theory of contracts, as distinguished from the subjective theory, is based on analogy to estoppel. This is apparent whenever a person is held bound by a contract because of his manifestations when his manifestations are contrary to his actual state of mind. .

Acquiescence is a form of estoppel, Bankers’ Trust Co. v. Rood, 211 Iowa 289, 233 N.W. 794 (1930), and is applicable when there is some element of neglect. City of Lafayette v. Keen, 113 Ind.App. 552, 48 N.E.2d 63 (1943). Even if appellant had not actually read the Plan (and his executed “Request for Participation” expressly states: “I acknowledge receipt of a copy of the Birmingham Trust Employees’ Profit Sharing Plan and Trust Agreement”), his acquiescence was manifested by the availability to him of all the material facts concerning it. Colburn v. Mid-State Homes, Inc., 289 Ala. 255, 266 So.2d 865 (1972).

Nothing in the record suggests that the bank would have been obliged to make contributions to the Plan without the participation of the appellant, and his conduct was certainly calculated to induce the belief that he understood the Plan and agreed to participate in it.

In 17 C.J.S. Contracts § 41 at p. 672, it is stated:

. If ah offer is made by delivering to another a paper containing the terms of a proposed contract, and the paper is accepted, the acceptor is bound by its terms; . . and, this is true as a rule whether or not he reads the paper, .

Cf. Denson v. Kirkpatrick Drilling Co., 225 Ala. 473, 144 So. 86 (1932).

The next question is whether the forfeiture provision of the Plan is rendered invalid under Title 9, §§ 22 and 23. The appellant testified by deposition that he left the employ of Birmingham Trust National Bank on October 14, 1972 to accept a job with Central Bank, and that his new and old employers solicit the same customers and do business in the same business community.

Forfeiture-by-competition clauses appear to be widely used in the business community, and in those cases in which their validity has been challenged, the Courts have, with few exceptions, upheld them. Such a case was Golden v. Kentile Floors, Inc., 512 F.2d 838 (5th Cir. 1975). There, following a voluntary resignation and employment with a competitor of his former employer, the employee demanded benefits from the latter which had been denied by the profit-sharing committee. At issue was that part of the Sherman Act which invalidates “every contract ... in restraint of trade. . ” The Court noted that not every restraint on trade was prohibited:

[t]he authorities . . . generally draw a clear and obvious distinction between restraints on competitive employment in employment contracts and in pension plans. The strong weight of authority holds that forfeitures for engaging in subsequent competitive employment, included in pension retirement plans, are valid, even though unrestricted in time or geography. The reasoning behind this conclusion is that the forfeiture, unlike the restraint included in the employment contract, is not a prohibition on the employee’s engaging in competitive work but is merely a denial of the right to participate in the retirement plan if he does so engage. (Emphasis Supplied.)

The Court cited as authority Brown Stove Works, Inc. v. Kimsey, 119 Ga.App. 453, 167 S.E.2d 693 (1969), a similar case which involved a non-contributing profit-sharing plan. That case also drew a distinction between a contract which placed a restraint upon the right to enter into a competitive activity as a means of earning a livelihood, and an agreement which made refraining from competitive activity a condition precedent to participation in a profit-sharing plan. The Georgia court saw no restraint of trade in the presence of a contract restriction which did not “preclude the employee from engaging in competitive activity, but simply provides for the loss of rights or privileges if he does so. . . .”

Whether such provisions are reasonable restrictions was explored in the Golden opinion, supra, at 846:

[t]he forfeiture was designed . to protect the company and other member employees against competition from former employees who leave the company, voluntarily engage in competitive employment, and yet simultaneously seek to obtain deferred compensation from a trust established and funded by Kentile for the benefit of personnel whom Kentile would reward for company loyalty and consequent company success.
. Kentile sought to insure that the plaintiff would not freely compete against it and at the same time obtain resources which the company, in its judgment, might utilize more advantageously in favor of other employees.

Similar reasoning was employed in Miller v. Associated Pension Trusts, 396 F.Supp. 907 (E.D.Mo.1975), in which the denial of profit-sharing benefits to a former employee who competed was upheld:

. [s]uch a provision is designed to protect the integrity of the plan, and is therefore valid since any competitive actions on the part of a former employee would in all probability have a detrimental effect upon the profit sharing aspect of the plan. . . The effect of the plan’s provision is not that of a restrictive covenant which would bar the employee from earning a living but rather provides him with a choice as to whether he wishes to compete with his former employer at the expense of losing his accrued benefits.

The second federal circuit recently ruled that a forfeiture-for-competition clause constituted a valid liquidated damages provision for the breach of the employees’ covenant not to compete. USAchem, Inc. v. Goldstein, 512 F.2d 163 (2 Cir. 1975), citing Bradford v. New York Times Co., 501 F.2d 51 (2 Cir. 1974). In Bradford, an “Incentive Compensation Plan” provided that the participant, in consideration of payments made to him (based upon units accrued during employment), would not compete. The participant entered into a non-competition agreement under the plan and when he later joined a competitive enterprise, his former employer invoked a provision allowing a discontinuance of benefits. The Court did not find this provision unreasonable, viewing it as a provision for liquidated damages, and made these additional observations:

. Bradford’s resignation did not terminate his employer’s obligations. He was to receive annual installments of stock for a ten-year period so long as he abided by his promise not to compete. There was a continuing consideration being paid for his loyalty and good will. While this was a restraint upon his liberty, it can hardly be described as unreasonable. Had he persevered, his reward would have been great indeed. . Here, Bradford paid nothing but merely disabled himself from collecting the continuing payments made by the Times.

The cases which concern covenants not to compete are, of course, distinguishable from cases, like the instant case, which involve only provisions for forfeiture in the event of competition. Their similarities lie in the refusal to find any restraint of trade in either type.

In Barr v. Sun Life Assurance Company of Canada, 146 Fla. 55, 200 So. 240 (1941), a forfeiture-for-competition provision applied to renewal premiums on life insurance policies the former employee had sold during his employment, and was invoked when he obtained employment with a competing company. Distinguishing such an agreement from one in restraint of trade the court stated:

There is nothing in this contract which precludes the employee from accepting other like employment from another employer after the termination of his contract with Sun Life Assurance Company of Canada. Therefore, it is not a contract in restraint of trade . Nor did this contract deprive [him of] the privilege of engaging in that vocation and work for which he was trained and which he was qualified to perform. The provision of the contract simply recognized the fact that the employer was entitled to have the good will and co-operation of the employee not only as long as the employee was employed by that employer, but for the full period of ten years during which he would receive commissions on renewal premiums and that the employee should be bound not to place himself in a position where he could not be reasonably expected to render that service. .

In Flammer v. Patton, Fla., 245 So.2d 854 (1971), the Florida court construed a similar forfeiture provision in the non-contributory pension plan of a retired finance company employee who later accepted employment as a bank loan officer. Although that court held the restriction in the forfeiture provision unreasonable because of its unlimited duration, the court did not void the entire forfeiture provision.

The distinction in the type of contracts is meaningful when we apply it to our own Title 9, §§ 22, 23 and 24, for by those enactments a contract “by which any one is restrained from exercising a lawful . business ... is void,” except that (1) the seller and buyer of the good will of a business may agree “to refrain from carrying on . .a similar business so long as the buyer . . carries on a like business . . (2) “one who is employed as an agent, servant, or employee may agree with his employer to refrain . from soliciting old customers of such employer within a specified county, city, or part thereof, so long as . such employer carries on a like business therein . . and (3) partners may “agree that none of them will carry on a similar business. . . .”

In interpreting these sections our Court, like many others, has applied a test of reasonableness to the restrictions thus allowed, and has looked to the facts of the particular case to determine whether the restriction against entry into a competing business is reasonably necessary for the other’s protection. Mason Corporation v. Kennedy, 286 Ala. 639, 244 So.2d 585 (1971); White Dairy Company, Inc. v. Davidson, 283 Ala. 63, 214 So.2d 416 (1968); Hill v. Rice, 259 Ala. 587, 67 So.2d 789 (1953). Much of the judicial scrutiny of such an employment restraint is based upon a recognition that it

. [tjends not only to deprive the public of efficient service, but to impoverish the individual and make him a public charge at the expense of the taxpayer. Modern thought, would perhaps place the emphasis on the plight of the individual, who might be needlessly pauperized while ready, able and willing to work at his usual occupation for the support and independence of himself and his family. [Hill v. Rice, supra, at 593, 67 So.2d at 795, quoting from Kadis v. Britt, 224 N.C. 154, 29 S.E.2d 543].

We do not, however, apprehend the existence of any such risk in the situation before us as it clearly does not involve a restriction upon the employee’s entry into a competitive endeavor. Here, the former employer is not prevented from earning a living. His accrued profit-sharing benefits contributed by the employer are continued should he leave the employer for a different and noncompeting undertaking. It is only when he competes that those contributions of the employer are forfeited. In the words of Kentile, supra, the defendant

. sought to insure that the plaintiff would not freely compete against it and at the same time obtain resources which the company . . might utilize more advantageously in favor of other employees. .

If the participating employee wishes to leave his employment, he is free to do so, and if he leaves for another. position, he loses none of his accrued benefits, unless by electing to enter a competitive enterprise he makes the choice to lose that portion contributed by his former employer who must continue to offset the effect of his competition with it in order to continue the Plan for the benefit of those who remain

Thus, we find that the agreement before us does not fall within the type proscribed by the “restraint of trade” provisions of our Title 9. We pretermit any discussion of the effect upon this contract of fraud or duress since no such issue is raised. We note also that the parties have made no issue of the fact of competition between the former and present bank employees.

Plaintiff-appellant has cited us to California authority which has held invalid forfeiture-by-competition clauses in retirement benefits as contravening that state’s statutory prohibition against contracts in restraint of trade. Aside from the fact that the California statutes, unlike our own, contain no exceptions such as those found in §§ 22-24 of Title 9, Alabama Code, we do not agree with the reasoning of that distinguished court that the employee’s being less free to engage in a lawful business causes the agreement to fall within the classification of those in restraint of trade.

Finally, in Mason, supra, cited by the plaintiff, our Court held that evidence supported the trial court’s findings that the agreement not to enter competitive employment was unreasonable. In reviewing that evidence we observed that the record did not “appear to indicate that Kennedy [the employee] received any additional compensation or benefits for signing the [non-competition] agreement,” and we suggested that a second non-competition agreement made after termination likewise might not have been supported by consideration. We have earlier expressed ourselves on the contractual aspect of the instant case. Mason did not involve the type of agreement before us here.

The action of the trial court in granting summary judgment having been proper, the judgment is due to be affirmed, and it is so ordered.

AFFIRMED.

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


author: BLOODWORTH, Justice. JONES, Justice

text:
    CRITERION INSURANCE COMPANY v. Harold ANDERSON, who sues as Administrator of the Estate of Gina Baker, Deceased.
    SC 2186.
    Supreme Court of Alabama.
    June 3, 1977.
    Richard A. Ball, Montgomery, for appellant.
    Richard H. Gill, Montgomery, for appel-lee.
   BLOODWORTH, Justice.

Insurer Criterion Insurance Company appeals from a summary judgment for plaintiff, Administrator of the Estate of Gina Baker, deceased, the insured. We reverse and remand.

The undisputed facts are stated in the following paragraphs from the trial court’s judgment:

“On May 25, 1974 Gina Elizabeth Baker, age 2, was a passenger in her parents’ car. In a collision with a car driven by Ben E. Thornton, Gina Baker was killed and her mother and father were seriously injured. It is agreed that the collision was the fault of Thornton. Both Mr. and Mrs. Baker sued Thornton and recovered judgments of $13,000 and $10,000 respectively. Thornton had a policy of liability insurance with the Home Indemnity Co. in the limits of $10,000/$20,000, which was exhausted in satisfaction of the two judgments. Defendant concedes that these judgments were in no way excessive in view of the serious injuries to the two plaintiffs.
“Thereafter, plaintiff, the administrator of the estate of Gina Baker, filed suit against Thornton and obtained a judgment of $10,000. Payment of that judgment was refused by the Home on the ground that there was no coverage remaining to pay the estate of Gina Baker. It is stipulated that there has been no recovery from any source by Gina Baker’s estate other than funeral expenses from defendant Criterion under its medical payments coverage.
“Suit was brought against Criterion which had issued a policy of uninsured motorist insurance to Gina’s father Richard Baker, under which Gina was an insured.”

On cross motions for summary judgment, the trial court held that Thornton was an uninsured motorist with respect to the claim by the estate of Gina Baker and awarded the estate $10,000 plus interest from the date of the filing of the claim. The trial court indicated that it is “. a policy of the Alabama law to provide a recovery by an injured party of at least up to the $10,000 minimum assuming damages in that amount.”

Criterion appeals contending that Thornton was not an uninsured motorist because he had coverage with the limits prescribed by Tit. 36, § 74(46)(c), Code of Alabama 1940 (Recompiled 1958), as amended, which has been incorporated into the Uninsured Motorist Act, Tit. 36, § 74(62a). It argues that the provisions of § 74(46)(c) for $20,000 per-accident minimum coverage and for $10,000 per-person minimum coverage is controlling.

This is a case of first impression in Alabama and involves the meaning of the term “uninsured motor vehicles” in Tit. 36, § 74(62a), supra, which states:

“No automobile liability or motor vehicle liability policy insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance or use of a motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto, in limits for bodily injury or death set forth in subsection (c) of section 74(46) of this title, under provisions approved by the commissioner of insurance, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom . . . [Italics supplied.]

Tit. 36, § 74(46)(c), supra, is that portion of the Motor Vehicle Safety-Responsibility Act which excepts from the security requirements of § 74(46)(a) the operator or owner of a vehicle involved in an accident

“. . .if such owner had in effect at the time of such accident an automobile liability policy with respect to the motor vehicle involved in such accident; * * * provided, however, every such policy or bond is subject, if the accident has resulted in bodily injury or death, to a limit, exclusive of interest and costs, of not less than $10,000 because of bodily injury to or death to one person in any one accident and, subject to said limit for one person, to a limit of not less than $20,000 because of bodily injury to or death of two or more persons in any one accident, and, if the accident has resulted in injury to or destruction of property, to a limit of not less than $5,000 because of injury to or destruction of property of others in any one accident.”

In sum, Section 74(62a) merely requires that insurers provide uninsured motorist coverage in the same minimum limits required under the provisions of § 74(46)(c) for liability policies.

The issue is whether Thornton’s automobile was an “uninsured motor vehicle” as to the Insured even though it was covered by liability insurance in the minimum limits prescribed by Tit. 36, § 74(46)(c), supra. We hold that it was not an “uninsured motor vehicle.”

The Insured’s policy defined “uninsured automobile” as follows:

“(1) an automobile with respect to the ownership, maintenance or use of which there is, in at least the amounts specified by the financial responsibility law of the state in which the insured automobile is principally garaged, no bodily injury liability bond or insurance policy applicable at the time of the accident with respect to any person or organization legally responsible for the use of such automobile, or with respect to which there is a bodily injury liability bond or insurance policy applicable at the time of the accident but the company writing the same is or becomes insolvent; or
“(2) a hit-and-run automobile as defined; but the term ‘uninsured automobile’ shall not include:
(i) an insured automobile . . . [Italics supplied.]

Our holding in this case gives effect to this definition insofar as it pertains to the facts of this case, since it is not inconsistent with the uninsured motorist provisions of our Motor Vehicle Safety-Responsibility Act.

Moreover, our holding is consistent with our prior decisions.

In Higgins v. Nationwide Mutual Insurance Co., 291 Ala. 462, 466-67, 282 So.2d 301, 305 (1973), this Court wrote that:

“It is reasonable and safe to state that ‘an “uninsured automobile” is ordinarily defined to include motor vehicles with respect to which neither the owner nor the operator carries bodily injury liability insurance, and “hit and run” automobiles.’ ...”

Additional instances in which other courts have found vehicles to be “uninsured” were noted in Wilbourn v. Allstate Insurance Co., 293 Ala. 466, 468, 305 So.2d 372, 373 (1974):

“It is well-settled and common knowledge that a motorist or a vehicle carrying no liability insurance is ‘uninsured.’ Courts have also found motorists were ‘uninsured,’ in other situations: (1) policy limits are below the statutory minimum, (2) the policy fails to cover the injury involved, (3) the insurer becomes insolvent after the policy is issued so there is no insurance applicable to, or at the time of, the accident, (4) the owner or operator of the vehicle causing the accident is unknown, commonly classified as a ‘hit-and-run’ case. . . .” [Italics supplied.]

In Wilbourn, this Court held that a motor vehicle was not “uninsured” as to an injured party whose injuries exceeded $10,000 where it was covered by a liability policy with the minimum limits and $10,000 was paid to the injured party. The Court stated that the vehicle was “underinsured,” but not “uninsured.”

The Insured contends, however, that this Court should extend the definition of uninsured motor vehicles to cover situations in which the tortfeasor’s liability coverage is exhausted before each insured recovers at least $10,000, assuming, of course, damages in that amount or more. The Insured proposes that, subject to the limits of the uninsured motorist coverage available, the uninsured motorist coverage should be used to provide each injured party a recovery of damages up to at least $10,000. The assumption underlying the Insured’s argument, and the trial court’s holding, is that the policy of the Alabama uninsured motorist statute is to assure to each injured party the availability of a minimum of $10,000 coverage.

We think that assumption to be incorrect. The statute mandates a minimum of $10,-000 coverage only in the case of accidents resulting in bodily injury to or the death of one person. Where an accident results in bodily injury to or the death of two or more persons, the statute mandates a minimum coverage of $20,000 for the accident. The statute clearly contemplates situations in which the recovery of each individual might be less than $10,000. It appears, therefore, that the policy behind the statute is to assure the availability of minimum coverage for each accident, not for each injured person. The minimum which the legislature intended to make available was available in the present case under Thornton’s liability policy. For this reason we cannot hold that he was an “uninsured motorist.”

The Insured cites Porter v. Empire Fire and Marine Insurance Co., 12 Ariz.App. 2, 467 P.2d 77 (1970), in support of the trial court’s judgment. That case presented basically the same issue as that presented here, but allowed the insured to recover under his uninsured motorist insurance because he had recovered less than $10,000 under the tortfeasor’s liability coverage, which was in compliance with Arizona’s Financial Responsibility Act, but which was exhausted by payments to others injured in the same accident.

The Arizona court stated that it relied heavily on the general policy of Arizona courts to effectuate a strong legislative policy favoring uninsured motorist coverage. This Court has followed a similar policy, but such policy does not give this Court a license to extend uninsured motorist coverage beyond the requirements of the uninsured motorist statute. The Arizona court held that the purpose of the uninsured motorist statute was to provide a minimum coverage of $10,000 per person. But that argument, as we have already pointed out, fails to take into account the statutory provisions for a per-accident minimum amount of $20,000.

Porter appears to differ from the present case in one important respect: but for the court’s decision, the insured there would have fared better had he been injured by an uninsured motorist, rather than by one with minimal liability coverage. Here, the Insured would have been in the same position in either event.

As even the Arizona court said, the legislative purpose behind the uninsured motorist statute was to put the insured in the same position he would have been in if the tortfeasor had been a liability insurance policyholder.

Our own Court of Civil Appeals held in Higgins v. Nationwide Mutual Insurance Co., 50 Ala.App. 691, 695, 282 So.2d 295, 300 (1973), aff’d Higgins, supra:

“. . . it appears to us from the plain and unambiguous wording of the statute, that it is the basic purpose of the Uninsured Motorist Act, and thus the public policy of the State as to this matter, that Alabama citizens purchasing automobile liability insurance be able to obtain for an additional premium the same protection against injury or death at the hands of an uninsured motorist as they would have had if that motorist had obtained for himself the minimum liability coverage required by the Safety Responsibility Act. . . .” [Italics supplied.]

Porter, supra, has been expressly rejected by several courts, among them the Missouri Court of Appeals in Brake v. MFA Mutual Insurance Co., 525 S.W.2d 109 (1975), where the facts and contentions were similar to those in this case. There the court stated:

“Uninsured motorist statutes are to be liberally construed to accomplish their highly remedial purpose, which is ‘ “ ‘to give the same protection to the person injured by an uninsured motorist as he would have had if he had been injured in an accident caused by an automobile covered by a standard liability policy.’ ” ’ Under the guise of construction, however, the courts are not at liberty to extend and enlarge the scope of the Uninsured Motorist Law by declaring an insured motorist to be an uninsured motorist, unless the statute itself clearly provides an exception to cover the case. MFA’s policies afford protection against injuries, etc. inflicted by an uninsured highway vehicle. The policies define such a vehicle as one with respect to the use of which there is no bodily injury insurance applicable at the time of the accident with respect to the person legally responsible for its use. The statute relates to uninsured motor vehicles and provides no exception which would cover the case before us. Here the tort-feasor’s motor vehicle was covered by a liability insurance policy which complied with the minimum requirements of the Safety Responsibility Law.
“The term ‘uninsured motor vehicle’ as used in § 379.203, par. 1 and the term ‘uninsured highway vehicle’ as used in the MFA policies, are not ambiguous, as claimed, but are terms of common meaning and understanding. ‘Un’ means not. An uninsured vehicle is one which is not insured. . . . Where language in an insurance policy is unambiguous and does not offend against public policy it must be accorded its plain meaning and it must be enforced as written. ‘For, to do otherwise would be to make a new contract for the parties * * * in contravention of the long-recognized and oft-invoked rule that “[c]ourts are without authority to rewrite contracts, even insurance contracts, although it may appear that in some respects they operate harshly or inequitably as to one of the parties. * * * » > ff

525 S.W.2d at 112. Accord: Simonette v. Great American Insurance Co., 165 Conn. 466, 338 A.2d 453 (1973); Detrick v. Aetna Casualty and Surety Co., 261 Iowa 1246, 158 N.W.2d 99 (1968); Kemp v. Fidelity & Casualty Co. of New York, 504 S.W.2d 633 (Tex.Civ.App.1973). See also Golphin v. Home Indemnity Co., 284 So.2d 442 (Fla.App.1973); Lund v. Mission Insurance Co., 270 Or. 461, 528 P.2d 78 (1974).

Our holding here that a vehicle, covered by a liability policy with the minimum limits prescribed by the Motor Vehicle Safety-Responsibility Act, is not an uninsured vehicle as to any injured party might, in some cases, result in the situation in which an insured under an uninsured motorist policy is better off to be injured by an uninsured motorist than by a motorist with minimum liability coverage. Such an anomaly might result where the tortfeasor injures several persons who are each insured under different uninsured motorist policies or where the tortfeasor injures one or more persons who have the coverage of several uninsured motorist policies available to them, this, because of our “stacking” decisions. See Lambert v. Liberty Mutual Insurance Co., 331 So.2d 260 (Ala.1976), and cases cited therein. Nevertheless, the law is full of anomalies, and the mere possibility of such an anomaly hardly justifies a different result than that which we reach in this case.

Here, no anomaly exists, for, as the evidence shows, there was only one uninsured motorist policy applicable to the accident. Consequently, the Insured was in exactly the same position as if Thornton had carried no liability insurance. Under Thornton’s policy and under the applicable uninsured motorist policy, the per-aecident limit was $20,000. Thus, we conclude, as did Justice Maddox writing for the Court in Wilbourn, supra, that the tortfeasor was not an “un insured” motorist, but was simply “underin-sured” with respect to the insured’s damages.

REVERSED AND REMANDED.

TORBERT, C. J., and MADDOX, AL-MON, SHORES, EMBRY and BEATTY, JJ., concur.

JONES, J., dissents.

FAULKNER, J., concurs in dissent of JONES, J.

JONES, Justice

(dissenting):

I respectfully dissent.

Admittedly, the question presented by this appeal is a close one. Its answer is dependent solely upon an interpretation of the Uninsured Motorist Statute; and the interpretation varies according to the eyes from whom the statute is viewed. I am reminded of the old farmer who was reluctant to pursue his claim under an accident policy for a snake bite injury because he was convinced that the snake “bit me on purpose.”

The majority opinion views “uninsured motorist” from the perspective of the tort-feasor’s liability coverage. So viewed, it is true that the tort-feasor had the statutory minimum coverage of 10/20. But, when viewed from the vantage point of the injured insured under the uninsured motorist coverage, the statutory phrase “for the protection of persons insured thereunder” sets the philosophical tone of the spirit and context of the Act; and, from that view, the injured plaintiff is not protected unless the uninsured motorist coverage is invoked.

FAULKNER, J., concurs.


author: SHORES, Justice.

text:
    STATE FARM FIRE AND CASUALTY CO., a Corp. v. HARTFORD ACCIDENT AND INDEMNITY CO., a Corp. ALABAMA FARM BUREAU INSURANCE CO., a Corp. v. HARTFORD ACCIDENT AND INDEMNITY CO., a Corp.
    SC 2043, SC 2050.
    Supreme Court of Alabama.
    June 24, 1977.

      C. William Gladden, Jr., of Balch, Bing-ham, Baker, Hawthorne, Williams & Ward, Birmingham, for State Farm Fire and Cas. Co.
    Jerry 0. Lorant, Birmingham, for Alabama Farm Bureau Ins. Co., a Corp.
    John B. Tally, Jr., Birmingham, for Hartford Acc. and Indem. Co., a Corp.
   SHORES, Justice.

This case arose out of serious burns suffered by two boy scouts, one of whom subsequently died, when their tent caught fire during a camp-out near Hanceville, Alabama. Two volunteer scout leaders, James Hale and Curtis Kreitner, were charged with negligence in suits brought on behalf of the two boys.

This appeal involves solely questions of insurance coverage between insurers providing liability insurance for the two scout leaders. Hartford Accident and Indemnity Company (Hartford) provided liability insurance for Boy Scouts of America. The two scout leaders were covered under the Hartford policy. Each of them also had a homeowners policy providing liability coverage for the incident. Hale’s policy was with State Farm Fire and Casualty Company (State Farm) and Kreitner’s policy was with Alabama Farm Bureau Insurance Company (Farm Bureau).

State Farm filed an action for declaratory judgment in which it alleged that its insured, Hale, failed to give notice of an occurrence and notice of suit to State Farm as required by the terms of its policy. It also contended that Hartford had the primary duty to defend Hale and asked the court to declare that the Hartford policy provided the only coverage for claims against Hale.

Hartford filed an answer and counterclaim against State Farm in which it asserted that State Farm was obligated to defend and provide coverage for Hale; that the State Farm policy provided primary coverage for claims against Hale; and the Hartford policy provided coverage only for liability in excess of the limits of the State Farm policy. Hartford also filed a third-party complaint against Farm Bureau and its insured, Curtis Kreitner. It averred that the coverage in its policy provided for Kreitner, like Curtis, would be in excess of the coverage provided for Kreitner under the Farm Bureau policy. Farm Bureau filed answer in which it denied any coverage for its insured, Kreitner, because of his failure to give timely notice of the occurrence as provided in the Farm Bureau policy-

After a hearing on the merits, the court issued its final judgment, in which it held:

(a) The Hartford policy provided excess coverage for Hale and Kreitner;

(b) Hale gave proper notice to State Farm under the terms of the State Farm policy; and

(c) Kreitner gave proper notice to Farm Bureau under the terms of the Farm Bureau policy.

The court held, therefore, that State Farm and Farm Bureau were liable to their insured up to the limits of each policy, and that Hartford was liable for any excess.

State Farm and Farm Bureau appealed from this judgment. The issues on appeal involve the question of whether the notice provisions of the State Farm and Farm Bureau policies were complied with, whether the coverage in those policies was primary coverage, and whether Hartford waived its rights against State Farm and Farm Bureau.

The accident causing injury to the two boy scouts occurred on May 5, 1973.

The record indicates that Hale, State Farm’s insured, first reported the accident to State Farm in the late fall of 1973. He testified that a Sears investigator told him he should contact his homeowners insurance carrier. (When suits were finally filed arising out of the fire, named defendants, among others, included the manufacturer of the tent, Sears Roebuck and Company which sold the tent, as well as Hale and Kreitner.) It was Hale’s testimony that he called a Mr. Calvert, State Farm’s agent, and told him about the accident. Calvert inquired as to what it had to do with his homeowners insurance. Hale said he did not know, and Calvert said he did not know either.

In January, 1974, suits were filed against Hale and others arising out of the injuries to one of the boys. Service was served on Hale in that suit on January 81,1974. Hale gave a statement to a State Farm representative on March 12, 1974, and signed a non-waiver agreement. He gave a deposition in that suit on April 22, 1974, and was represented by an attorney retained by State Farm. When the next suit was served on him, on May 17, 1974, he called Mr. Calvert, State Farm’s agent, who advised him to call State Farm’s office in Birmingham. It was his testimony that he heard someone in the background say “ ‘We won’t talk to him.’ ” The receptionist advised him to get in touch with his lawyer. She gave Hale the telephone number of the lawyer retained by State Farm. Hale never reached this attorney by telephone and had no further contact with State Farm until he received a letter from the attorney advising him that he had no coverage under the State Farm policy because he had violated the policy provisions with regard to notice.

Kreitner, a Farm Bureau’s insured, testified that he talked to a Hartford investigator not more than ninety days after the accident, and was told not to discuss it with anyone else. In July, 1974, he was told by Hartford that he should report the accident to his homeowners insurer. Kreitner was not aware that any claim would be made against him in either of the cases involving injury to the boys until June, 1974, when service of process was served on him. He then reported the accident to Farm Bureau within thirty days of service of process.

Hartford wrote to all of the individual defendants on July 19, 1974, asking for the names of their homeowners insurance carriers.

From these facts, the trial court concluded that neither Hale nor Kreitner had violated the notice provisions of their provisions:

“(1) In the event of an accident or occurrence, written notice containing-particulars sufficient to identify the Insured and also reasonably obtainable information with respect to the time, place and circumstances thereof, and the names and addresses of the injured and of available witnesses, shall be given by or for the Insured to this Company or any of its authorized agents as soon as practicable. “(2) If claim is made or suit is brought against the Insured, the Insured shall immediately forward to this Company every demand, notice, summons or other process received by him or his representative.” The counterpart in Farm Bureau’s policy reads:
“When an occuirence takes place on this coverage, notice shall be given by or on behalf of the Insured to this Company or any of its authorized agents as soon as practicable.”

Our recent case of Southern Guaranty Insurance Company v. Thomas, Ala., 334 So.2d 879 (1976), authored by Justice Blood-worth, reviews prior cases on the notice issue involved here and succinctly sets out the law of this state on that subject:

“The terms ‘as soon as practicable’ and ‘immediately’ . . . have been generally construed to mean that notice must be given ‘within a reasonable time’ in view of all the facts and circumstances of the case. See, e. g., American Liberty Ins. Co. v. Soules, 288 Ala. 163, 171, 258 So.2d 872, 879 (1972); Pan American Fire & Casualty Co. v. DeKalb-Cherokee Counties Gas District, 289 Ala. 206, 214, 266 So.2d 763, 771 (1972); Annot., 18 A.L.R.2d 443, 462ff.
“Where facts are disputed or where conflicting inferences may reasonably be drawn from the evidence, the question of the reasonableness of a delay in giving notice is a question of fact for the jury. Provident Life & Accident Insurance Co. v. Heidelberg, 228 Ala. 682, 154 So. 809 (1934). . . .
“It is implicit in what has been said up to this point that under Alabama law there are only two factors to be considered in determining the reasonableness of a delay in giving notice to an insurer: the length of the delay and the reasons for the delay. . . .” (334 So.2d at 882, 883).

Farm Bureau and State Farm urge us to hold as a matter of law that each of their insureds violated the notice provisions of their respective policies. The general rule, and that followed in this state, is:

“. . . Generally the question of whether notice has been given without unnecessary and unreasonable delay is one of fact for the jury, although under proper circumstances it may become a question of law.” Appleman, Insurance Law and Practice, Vol. 8, § 4734 (1962).

Whether notice was given within a reasonable time must be determined by the circumstances of each case. Allstate Insurance Company v. Fogg, 293 Ala. 155, 300 So.2d 819 (1974).

In the instant case, Mr. Hale testified that he did not know what his homeowners policy had to do with the accident which became the basis of the suit. He did not know that it provided coverage. The same was true with respect to Mr. Kreitner. He testified, also, that he did not think he was going to be sued because of the accident. Under the circumstances, we cannot hold, as a matter of law, that the notice to the insurers came too late. The trial court heard all of the evidence and concluded that, under all the circumstances of the case, notice was timely. In Stonewall Insurance Company v. Lowe, 291 Ala. 548, 284 So.2d 254 (1973), this court, speaking through Justice Faulkner, held that where the insured testified that he did not think there would be a claim filed against him arising out of an accident, the issue of timely notice was properly submitted to the jury. That case held that the test was whether the insured acted as a reasonable and prudent man under the circumstances. We cannot say, as a matter of law, that a reasonable and prudent man would have acted any differently than Mr. Hale and Mr. Kreitner did under the circumstances of this case. We affirm the trial court’s judgment on this issue.

The second issue argued on appeal is whether the Hartford policy provided primary or excess coverage. The trial court held that the coverage was excess and that State Farm and Farm Bureau were the primary insurers. The Hartford policy contains the following provision:

“If other collectible insurance with any other insurer is available to the insured covering a loss also covered hereunder, except insurance purchased to apply in excess of the limit of liability hereunder, the insurance hereunder shall be in excess of and not contribute with such other insurance. If collectible insurance under any other policy(ies) of the company is available to the insured covering a loss also covered hereunder, the company’s total liability shall in no event exceed the greater or greatest limit of liability applicable to such loss under this or any other such policy(ies).”

Both State Farm and Farm Bureau policies contain pro-rata clauses.

The court held in Continental National American Group v. Burleson, 283 Ala. 671, 220 So.2d 611 (1969), that a policy containing a pro-rata clause is required to exhaust its policy limits before any payment is required by an “excess” policy. In Burleson, this court cited, with approval, United States Fidelity & Guaranty Co. v. Slifkin, (N.D.Ala.), 200 F.Supp. 563 (1961), which held:

“. . . the overwhelming majority of the decisions from other jurisdictions have given full effect to the ‘excess insurance’ clauses, making the insurer with the ‘pro rata’ clause primarily liable to the full extent of its policy. . . .” (200 F.Supp. at 579)

A strikingly similar case, both on the facts and the policy provisions, was decided by the Supreme Court of Washington. General Insurance Company of America v. State Farm Insurance Company, 75 Wash.2d 200, 449 P.2d 391 (1969). In that case, a boy scout was injured while on an outing. Suit was brought on his behalf against the scoutmaster, at the time of the accident, General Insurance Company had in effect a policy insuring the Boy Scouts of America, Blue Mountain Council. That policy, like Hartford’s, contained an excess clause. State Farm had issued a homeowners policy to the scoutmaster which contained a pro-rata clause. There, the Washington Court said the question to be determined was which insurer had the primary liability. The court held:

“In a liability insurance policy having a ‘pro rata’ clause, there is an expressed recognition of primary liability to the extent of the policy coverage. The ‘pro rata’ clause becomes effective only when there is other insurance.
“In a liability insurance policy having an ‘excess clause,’ it is expressed that if there be other insurance, the policy does not furnish coverage unless liability exceeds the amount of the other insurance.
“The two provisions are not repugnant.” (449 P.2d at 393)

This is consistent with our holding in Burle-son, supra, and the trial court so held, correctly so. Its judgment in that regard is affirmed.

The last argument made by State Farm and Farm Bureau is to assert that, even if their policies do provide primary coverage for their respective insureds, Hartford has waived its right to contribution from them because Hartford conducted the defense of the insureds. In the first place, Hartford’s policy required it to defend Hale and Kreit-ner. It provides:

“. . . the company shall:
“(a) defend any suit against the insured alleging such personal injury or injury to or destruction of property and seeking damages on account thereof, even if such suit is groundless, false or fraudulent; but the company may make such investigation, negotiation and settlement of any claim or suit as it deems expedient;”

All three companies agree that Hale and Kreitner were insured under the Hartford policy. Hartford did what its policy obligated it to do in investigating and defending the actions against the scout leaders. By doing what it was obligated to do, it can hardly be held to have waived any provision of its policy. Again, the trial court so held, and its judgment is, therefore, due to be affirmed.

AFFIRMED.

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


text:
    In the Matter of the ESTATE OF Thomas R. AMASON, Deceased. Nettie T. AMASON and Marion Clyde Amason v. Elaine A. WALKER et al.
    SC 2124.
    Supreme Court of Alabama.
    June 24, 1977.

      J. H. Crow, III, Birmingham, for appellants.
    William B. Hairston, Jr., Birmingham, for appellees.
   SHORES, Justice.

Letters Testamentary were issued in 1973 to Marion Clyde Amason and Elaine A. Walker in the estate of Thomas R. Amason, deceased. On November 3, 1974, Marion C. Amason removed the administration of the estate of the decedent to the Jefferson Circuit Court, In Equity, Case No. 188-293. On January 6, 1975, Elaine A. Walker, one of the co-executors under the will, petitioned the court for a final settlement of the estate. On January 15, 1975, the other co-executor, Marion Clyde Amason, also petitioned the court for a final settlement of the estate. On February 20, 1975, a hearing was had before a Special Master on a supplemental petition for final settlement filed by Elaine A. Walker and on the petition for final settlement filed by Marion Clyde Amason. The Special Master filed his report to the court on February 21,1975. Elaine A. Walker filed an exception to the report of the Special Master on February 28, 1975. On March 5, 1975, a petition for declaratory judgment was filed by Elaine A. Walker as a trustee under the last will and testament of Thomas R. Amason, asking the court to declare a trust on monies held by Elaine A. Walker, to authorize satisfaction of a real estate mortgage, direct payment of funds held in escrow, determine the competency of Elaine A. Walker to act as trustee of the trust, and to determine the competency of Nettie T. Amason to manage her own affairs. Nettie T. Amason filed an answer and counterclaim to this petition for declaratory relief on February 16, 1976.

The record before us does not disclose what action, if any, the court has taken on these several petitions.

During June, 1976, Nettie T. Amason and Marion Clyde Amason filed a petition in the estate proceedings asking the court for a declaration of right concerning their interest in the estate of Thomas R. Amason, and asking the court to adjudge and decree that Elaine A. Walker, Francis M. Amason and William R. Amason be ordered to execute a settlement agreement. Elaine A. Walker filed a motion to strike this petition filed by Nettie T. and Marion Clyde Amason. On September 24, 1976, the trial court entered a decree, which is as follows:

“IN THE MATTER OF; THE ESTATE OF THOMAS R. AMASON, DECEASED
CIRCUIT COURT, TENTH JUDICIAL CIRCUIT OF ALABAMA, EQUITY DIVISION CASE NO. 188-293
“DECREE
“This cause came on to be heard on this instant date upon ‘Motion To Strike’ as filed on June 8, 1976. At the hearing Petitioners, Nettie T. Amason and Marion Clyde Amason, were allowed to file an ‘Amendment’ and counsel for Elaine A. Walker orally readdressed the ‘Motion to Strike’ to the ‘Amendment’.
“The Court heard statements and arguments of counsel and the findings of the Court are set forth hereinafter.
“Accordingly, it is CONSIDERED, ORDERED, ADJUDGED and DECREED by the Court as follows:
“ONE: The ‘Motion To Strike’ is hereby granted and the ‘Petition For Declaratory Relief’ as filed on June 4, 1976 and the ‘Amendment’ as filed on this instant date are each hereby stricken.
“DONE and ORDERED this 24th day of September, 1976.”

This appeal is from that decree, taken by the two persons who filed it in the estate proceedings, Nettie T. and Clyde Amason. Other parties to the estate proceedings, including Elaine A. Walker and others, have filed a motion to dismiss the appeal, asserting that the decree set forth above is not an appealable judgment, that the trial court has before it all of the matters raised in the petition, among others, and that no final decree has been entered in the estate proceedings, in which the pleading stricken by the court is but a part.

We agree. This court has frequently held that a final judgment is necessary to give the court jurisdiction to entertain an appeal. Title 7, § 754, Code, provides for appeals to the Supreme Court from final judgments. A final judgment or decree has been defined as one which puts an end to all controversies litigated or which ought to have been litigated with respect to a particular controversy. Vacalis v. Lowry, 279 Ala. 264, 184 So.2d 345 (1966).

The decree in this case, from which appeal is sought, does no more than strike a pleading filed in the estate proceeding. It is apparent from the scant record before us that many issues have been raised in that proceeding which are not disposed of by the court’s decree striking the petition filed by Mrs. Amason and Mr. Amason. We are, therefore, without jurisdiction to entertain the appeal. Byrd v. Sorrells, 265 Ala. 589, 93 So.2d 146 (1957).

Nothing in the new Alabama Rules of Appellate Procedure affects these general principles except Rule 5, which allows a party to request permission to appeal from an interlocutory order in civil actions under limited circumstances. That rule sets out the circumstances contemplated by the rule, and requires that:

“. . .A petition to appeal from an interlocutory order must contain a statement by the trial judge that he is of the opinion that the interlocutory order involves a controlling question of law as to which there is substantial ground for difference of opinion, that an immediate appeal from the order would materially advance the ultimate termination of the litigation and that the appeal would avoid protracted and expensive litigation.

There has been no attempt by the parties bringing this appeal to come within the provisions of ARAP 5.

Because the decree appealed from is not final, the motion to dismiss the appeal is due to be and the same is hereby granted.

APPEAL DISMISSED.

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


text:
    L. Lamar SNOW v. Dorothy DePonti TRABITS and Arthur Trabits, Separately and Severally.
    SC 2306.
    Supreme Court of Alabama.
    June 24, 1977.

      Ray G. Riley, for Tonsmeire, McFadden, Riley & Parker, Mobile, for appellant.
    Irvin J. Langford, for Howell, Johnston, Langford, Finkbohner & Lawler, Mobile, for appellees.
   SHORES, Justice.

This is the second appeal in this case. In Trabits v. Snow, 294 Ala. 313, 316 So.2d 336 (1975), this court reversed and remanded a judgment of the trial court ordering specific performance of a contract for the sale of land. There, the court held that Mrs. Tra-bits’ husband had not assented to the contract pursuant to the requirements of Title 34, § 73, Code. The opinion expressly pointed out, however, that the constitutionality of that statute had not been raised at trial nor on appeal.

When the case was reversed and remanded, the plaintiff, Snow, amended his complaint to raise the constitutionality of the statute. Mrs. Trabits filed a motion for summary judgment, relying on the transcript of the prior proceedings and upon the opinion of this court rendered on the first appeal. Snow filed an affidavit in opposition to Trabits’ motion for summary judgment, averring that he would give additional evidence (over and above that which was offered on the first trial) that would show that Arthur Trabits, Mrs. Trabits’ husband, did sign the contract as the husband of Dorothy Trabits, and not simply as a witness to her signature.

On November 22,1976, the Trabits moved to amend their answer by adding two additional defenses: (1) that the plaintiff and defendants were under a mutual misconception as to a material fact, and (2) that the contract was void and unenforceable because of a unilateral mistake by the defendants. The court allowed this amended answer on December 22, 1976. An identical amended answer had been offered in the original proceedings in this case, some three weeks after the case was tried, and the court refused to allow such amended answer.

In the meantime, on December 14, 1976, Snow filed a motion for summary judgment, and offered in support thereof the pleadings on file, the transcript of the prior proceedings, an affidavit, which if believed, tended to support his assertion that Mr. Trabits did sign the contract, not as a witness to his wife’s signature merely, but as an indication of his assent to the sale of the property. The motion for summary judgment filed by Snow also raised the constitutionality of Title 34, § 73, Code.

Thereafter, on December 22, 1976, the court denied Snow’s motion for summary judgment and granted the motion for summary judgment in favor of the Trabits. The appeal is from this judgment.

As stated, the original appeal was from a judgment ordering specific performance in favor of Snow and against the Trabits. The trial court, having heard the evidence, concluded that Snow was entitled to have conveyed to him the property described in the judgment, which constitutes all of the property owned by Mrs. Trabits on Dog River, except 150 feet. In that proceeding, the trial court obviously concluded that Title 34, § 73, had been complied with. This court reversed that judgment and remanded the cause. On remand, the trial court granted the Trabits’ motion for summary judgment, based upon the transcript in the prior proceeding and the opinion of this court rendered on the first appeal. Judgment was entered on December 22, 1976, and this appeal was taken on January 10, 1977.

This court issued its opinion in Peddy v. Montgomery, 345 So.2d 631 (1977), holding Title 34, § 73, Code, unconstitutional. The present appeal was argued and submitted on May 10, 1977. Neither the trial court, nor the parties, had the benefit of the court’s opinion in Peddy at the time the motion for summary judgment was granted in favor of the Trabits, nor during the preparation of briefs on appeal. The court, therefore, allowed counsel for both sides to file supplemental briefs following oral argument.

The issue presented is, therefore, whether the trial court properly granted the Trabits’ motion for summary judgment in light of Peddy ? We hold that it did not. In Ped-dy, the court held that a married woman’s contract for the sale of her property is not void for failure to have her husband’s signature evidencing his assent to the conveyance. That decision renders moot the question of whether Mr. Trabits signed the contract involved here, simply as a witness or as a husband, evidencing his assent to his wife’s contract to convey her land. The husband’s signature is no longer necessary to validate a wife’s contract to convey land owned by her, as a witness or otherwise.

Mrs. Trabits insists, however, that the trial court should not be reversed for having granted the motion for summary judgment filed by her and her husband because it was proper, even in light of Peddy, as to Mr. Trabits. We are not impressed by this argument. In support of it, Mrs. Trabits relies on Housing Authority of City of Prichard v. Malloy, Ala., 341 So.2d 708 (1977). In that case, the defendant-appellant argued that the trial court erred in refusing to grant a general motion for directed verdict in its favor, when it at the same time admitted that it owed the plaintiff part of the amount of his claim. In refusing to reverse, this court said:

“ . . The trial Judge could not, on the one hand, direct the jury to render a verdict for The Housing Authority on the case in its entirety (which was the only motion before him), and, on the other hand, direct the jury to render a verdict for Malloy as to a portion of his claim (which was uncontested except as to the amount).” (341 So.2d at 709)

The holding in Malloy is that a general motion for directed verdict under ARCP 50 can go only to the ease in its entirety and, that to preserve review on individual issues, a motion must be made for a directed verdict on each of such issues. Therefore, it is not authority for the position taken by Mrs. Trabits on this appeal.

As presently postured, we must review the propriety of the trial court’s granting a motion for summary judgment in favor of Mrs. Trabits and against Snow, after eliminating any application of Title 34, § 73. In other words, assuming that the contract signed by Mrs. Trabits is not void because of failure to comply with that statute, now declared unconstitutional, is there a genuine issue of any material fact which would require a trial on issues not heretofore litigated? We think so.

After the cause was reversed and remanded, plaintiff Snow was allowed to amend his complaint to raise the constitutionality of Title 34, § 73. The Trabits were allowed to amend their answer to raise defenses which were disallowed in the first trial, presumably because such amended answer was not filed until after the evidence was taken in the case. This amended answer, which has now been allowed by the trial court, raises as defenses to the plaintiff’s complaint seeking specific performance, issues of mutual mistake as to a material fact at the time of entering into the contract in that the parties were mistaken as to the description of the land made the basis of the suit; and secondly, that the contract cannot be specifically enforced because the defendants were under a unilateral mistake regarding a material fact, in that the defendants believed that the property involved in the contract had a front footage on Dog River in the amount of 550 feet, while it actually had a front footage of 576.5 feet.

Although Snow argues that these matters were considered by the trial court in the first trial, that is not clear from the record. It is clear from the record in the first trial that these exact defenses were disallowed. The court has now allowed them, and they clearly create issues of a material fact, requiring a reversal of the order granting summary judgment.

REVERSED AND REMANDED.

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


text:
    Jeffrey Mac KEENER v. STATE of Alabama.
    SC 2388.
    Supreme Court of Alabama.
    June 24, 1977.

      Leon Garmon, Gadsden, for appellant.
    William J. Baxley, Atty. Gen. and Van-zetta Penn Durant, Asst. Atty. Gen., for the State.
   SHORES, Justice.

This proceeding to determine the paternity of an illegitimate child was brought under the provisions of Title 27, § 12(l)-(9), Code of Alabama. The cause was tried to a jury which returned a verdict finding that the defendant was the father of the child. The trial court then ordered the defendant to pay $25.00 per week to support the child.

The defendant appealed and asserts two arguments which he says require a reversal.

In his opening statement, the attorney for the state stated to the jury:

“. . .We expect to show you further that during the time that she was pregnant and also after the child was born that he did and said certain things that you will hear about that indicate that he knew and considered that he was the father of that child, and we also expect to show you the results of a blood test that was done at his request—
“Mr. Bone: If the Court please—
“Mr. Bone: At this time, if it please the Court, we ask the Court — we object to the statement that was made and we ask the Court to declare a mistrial. The blood test is not evidence and can not be used as evidence in this case or any other proceedings of this type. That’s not for the Jury.
“Mr. Keener: It’s a part of the actual Court file and was done under a court order. I don’t know specifically—
“Mr. Bone: The mistake has been made and I don’t see how it can be corrected.
“The Court: It’s not evidence for the State, it’s evidence for the Defendant if he wants to use it. He doesn’t have to.
“Mr. Keener: All right.
“The Court: I’m going to instruct the Jury to disregard any reference to any blood test and hope to cure it that way, but I’m not going to declare a mistrial.
“Mr. Bone: May it please the Court, I do not see what instructions this Court could give. The seed now has been planted and regardless of whether — what instructions you give to the Jury they are going to think and they have to think— I’m not going to put it into evidence, did not put it into evidence, but they’re going to think that the evidence will show by the .blood test that he is the father and I don’t see how it can be cured and I think any comments by the Court is going to make the matter worse.
“The Court: The results of the test can be received in evidence and the trial of the case, but only in cases where definite exclusion is established.
“Mr. Keener: Well, I obviously made an error, but I just assumed it was admissible, it was part of the Court file.
“Mr. Bone: I think, Judge, any comments made by the Court to try to correct it is going to worsen the matter. It actually puts me in a position of — if the Court does not declare a mistrial, of having to introduce it myself, which is the very way it’s worded, as you know, the paternity can not be excluded, the Defendant can not be excluded. In the way it’s worded the average layman is going to construe that to mean what I don’t want them to think that it means.
“Mr. Keener: Is there anyway, any language I can use to correct it to your satisfaction in the opening statement?
“Mr. Bone: Larry, I don’t — there again, I can’t afford to say anything about it and I’d rather that you didn’t and I don’t want the Court to comment on it. That’s the part that frightens me. I don’t know why.”

On appeal, the defendant asserts that the trial court should be reversed for refusing to order a mistrial because of the state’s reference to a blood test.

The record shows that the trial judge told the defendant’s attorney that he was “. going to instruct the Jury to disregard any reference to any blood test and hope to cure it that way, but I’m not going to declare a mistrial.”

The defendant strongly objected to the trial court’s so instructing the jury and objected to the state’s attorney withdrawing any reference to the blood test from the jury’s consideration. Clearly, under our cases, had the trial judge instructed the jury to disregard the remarks of the state’s attorney making reference to a blood test, such instruction would have had the effect of eradicating any harm that might have been caused by the remark. Birmingham Electric Co. v. Guess, 222 Ala. 280, 131 So. 883 (1930); Life & Casualty Ins. Co. v. Cain, 217 Ala. 301, 116 So. 154 (1928). The defendant, however, expressly objected to the court’s so instructing the jury, standing on his contention that the harm could not be eradicated by an admonition from the court to the jury to disregard the remark.

We cannot agree. True, the test for determining whether a statement made during trial is so highly prejudicial as to require a mistrial is whether the prejudicial effect or tendency of the remark can be counteracted by an appropriate instruction from the court, or whether, instead, it is beyond the reach of such remedial action. Kilcrease v. Harris, 288 Ala. 245, 259 So.2d 797 (1972). However, it is equally true that whether the statement or remark is so highly prejudicial as to require a mistrial is within the discretion of the trial court, and its determination of that issue should not be reversed unless its discretion is abused.

It is quite clear from the record that the trial judge believed that the harm done by the remark, if any, could be cured by his instructing the jury to disregard the remark. The defendant expressed his belief that such an instruction would only make matters worse. The decision to leave the jury unadmonished to disregard the remark was the defendant’s. We cannot, under these circumstances, reverse the trial court for refusing to declare a mistrial.

The defendant also argues that a reference to a blood test by the mother of the child, on cross-examination, requires reversal. The defendant’s attorney asked Ms. Mabry the state’s witness, the following question:

“Q You were trying to tell him that the baby was his?
“A He said when I find out after the baby is born and we have a blood test or anything and she’s mine I’ll give her my name.”

The question was put to the witness by the defendant, on cross-examination. The answer simply stated what the defendant had told the witness. No motion to exclude or any other objection was made to the answer given to the question. There is no ruling by the trial court for us to review.

The defendant also argues that there was insufficient evidence to support the jury’s verdict. Again, we disagree. There was evidence from which the jury could reasonably have concluded that the defendant was the father of the child involved. The paternity statute, Title 27, § 12(l)-{9), provides a procedure for establishing the paternity of a child. One of its purposes is to make provision for children born out of wedlock. Moore v. LeFlore, 288 Ala. 315, 260 So.2d 585 (1972). Although the statute requires the state to prosecute proceedings brought under the act, the proceeding itself is of a civil nature. A verdict that the defendant is the father of the child subjects the defendant to all of the obligations for the care, maintenance and education of the child as are imposed upon fathers of legitimate children. The measure of proof required to establish paternity is the same as in any civil case. The trial court correctly charged the jury that:

“The measure of proof required in this case is to your reasonable satisfaction from the evidence. .
“. . . [T]he burden of proof is upon the State to reasonably satisfy you from all the evidence in the case that Jeffery [sic] Mac Keener was the father of that child or is the father of that child . that’s the only issue that you’re trying . .

The state offered evidence which, if believed, was sufficient to establish that the defendant was the father of the child involved. We find no error to reverse.

The judgment appealed from is affirmed.

AFFIRMED.

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


text:
    STATE of Florida ex rel. MIAMI HERALD PUBLISHING COMPANY, etc., et al., Relators, v. The Honorable Emery J. NEWELL, Circuit Court Judge, Respondent.
    No. 48598.
    Supreme Court of Florida.
    Aug. 3, 1976.
    Rehearing Granted Nov. 23, 1976.
    Writ of Prohibition Absolute Dec. 6, 1976.
    Susan Diner, James D. Spaniolo, Dan Paul and Parker D. Thomson, of Paul & Thomson, Miami, for relators.
    Michael B. Davis of Walton, Lantaff, Schroeder, Carson & Wahl, West Palm Beach, for respondent.
    Ann E. Vitunac and Robert Sellars, Asst. State Attys., Starr & Brown, Thomas Bur-ford, West Palm Beach, Russell H. McIntosh, Judge, Jeffrey Allen Tew, Angus M. Stephens, Miami, Foley, Colton & Butler, West Palm Beach, Daniel Neil Heller, Miami, Kirkland & Ellis, Chicago, Ill., William G. Mateer, Orlando, Fleming, O’Bryan and Fleming, Fort Lauderdale, Steel, Hector & Davis, Miami, Harold B. Wahl, Jacksonville, William C. Ballard, St. Petersburg, MacFar-lane, Ferguson, Allison & Kelly, Tampa, James C. Goodale, Alexander Greenfeld, New York City, for interested parties.
   ON REHEARING GRANTED

Relators’ petition for rehearing is granted and the Clerk is hereby directed to issue the writ absolute directing Judge Newell to vacate his order.

WRIT OF PROHIBITION ABSOLUTE

WHEREAS, the Supreme Court of the State of Florida has directed that the Rule Absolute in Prohibition issue, this is, therefore, to command you, the said Honorable Emery J. Newell, Circuit Court Judge, to vacate your order dated December 16, 1975, in the case of State of Florida vs. John E. Timmons, et al, Case No. 75-1752 CF, and to notify this Court within ten (10) days of your compliance with this Writ.

WITNESS the Honorable Ben F. Over-ton, Chief Justice of the Supreme Court of Florida, and the Seal of said Court at Tallahassee, the Capital, on this the 23rd day of November, 1976.