author: BEATTY, Justice.

text:
    NYTCO SERVICES, INC. v. Porter WILSON et al.
    SC 2232, 2241.
    Supreme Court of Alabama.
    Sept. 30, 1977.
    Rehearing Denied Dec. 2, 1977.

      John R. Matthews, of Ball, Ball, Duke & Matthews, Montgomery, for appellant NYTCO Services, Inc.
    Maury D. Smith, Charles M. Crook and Charles S. Coody, Montgomery, for J. E. McDonald.
    A. R. Powell and Griffin Sikes, Andalusia, for appellees.
   BEATTY, Justice.

This is a consolidated appeal by NYTCO Services, Inc. (NYTCO) and J. E. McDonald from judgments rendered by a jury in favor of eighty-two plaintiffs joined under Rule 20, ARCP.

In 1972 NYTCO, formerly New York Terminal Warehouse Company, Inc., entered into a field warehousing lease agreement with Covington Grain Company, Inc. (Cov-ington Grain) in Andalusia, Alabama under which NYTCO leased a bagged goods warehouse and five outside storage bins (silos). The bagged goods warehouse, a portion of which was used as Covington Grain’s office, had a storage capacity of 15,000 bushels of grain and the five storage bins had p, capacity of 110,000 bushels. These represented all of Covington Grain’s storage facilities at this location.

The plaintiffs were farmers in Covington and surrounding counties, and during the 1974 soybean harvesting season they delivered soybeans to Covington Grain under three different kinds of agreements. Some farmers delivered soybeans according to previously made contracts for sale at a specified price, some delivered soybeans for sale at the market price and some delivered soybeans for a price to be agreed upon later. This third type of agreement is the subject of this action. The record discloses that under this third type of agreement the customer, after delivering his soybeans to Covington Grain, could purchase an equivalent quantity of soybeans with a five cents per bushel handling charge plus a one and a half cent per bushel per month storage charge. The receipts most farmers received for their deliveries were various Covington Grain weight tickets; however, some received Covington Grain statement sheets. The weight tickets had the words “Bought of” printed on them together with the name of the farmer and some had the word “Hold” written on them. A number of the statement sheets had the words “Store,” “Stored,” or “On Storage” written on them together with the name of the farmer.

Most of the soybean agreements were made with Morris Rabren but some were made with Mary Wishum, who was employed by Covington Grain as a bookkeeper for whom she did general office work. She was also employed by NYTCO to prepare certain reports which were sent from the Covington Grain facility to NYTCO’s Atlanta office. NYTCO required her to prepare a receiving report and a daily report of the grain held for the purpose of issuing warehouse receipts. These reports together with a warehouse receipt application would be the basis for the issuance of warehouse receipts by NYTCO. Although Ms. Wis-hum’s written instructions required that she prepare and send a daily report each day, she prepared one only when goods were actually stored under warehouse receipts in accordance with her oral instructions from NYTCO supervisor, Mr. Obie Jones. According to Ms. Wishum’s testimony, she did not make up any daily reports for a period of time during the 1974 crop growing season. Ms. Wishum’s salary was determined and paid by Covington Grain but her check was issued and deductions were made by NYTCO.

When NYTCO leased the Covington Grain facilities, it required that J. E. McDonald, the third party defendant, and Morris Rabren, execute a personal indemnity agreement for certain losses. J. E. McDonald was a stockholder, a member of the Board of Directors and the Secretary-Treasurer of Covington Grain. In addition to attending stockholders’ meetings regularly and visiting the facility once a week, he dealt with Covington Grain as a customer in 1974. Morris Rabren, who was also a stockholder, was the President and General Manager of Covington Grain during the 1974 crop-growing season.

On October 21,1974 following an application to the State of Alabama Department of Agriculture and Industries, NYTCO received a Public Warehousemen’s Permit for its facility at Covington Grain. In addition, NYTCO had placed about twelve signs at various places on the premises which stated:

PUBLIC NOTICE

THIS IS A PUBLIC WAREHOUSE

PROPERTY IN THIS WAREHOUSE IS COVERED BY WAREHOUSE RECEIPTS ISSUED IN ACCORDANCE WITH THE LAWS OF THIS STATE.

NEW YORK TERMINAL WAREHOUSE CO. INC.

PUBLIC WAREHOUSEMEN

NEW YORK CHICAGO ATLANTA

DALLAS MEMPHIS LOS ANGELES

Some of these signs were placed on the storage bins, one was placed on the bagged goods warehouse in which the business office was located, and NYTCO’s Warehouse-men’s Permit was displayed on a bulletin board on the outside of Covington Grain’s business office. The record shows that Mr. Obie Jones, a general supervisor of NYTCO, testified that the purpose of these signs about the premises was to protect the lender, such as the Commercial Bank of Andalusia.

The record also discloses that Covington Grain never had a Warehousemen’s Permit. However, Covington Grain’s domestic corporation franchise tax return for 1974 stated that it was in the business of “Grain-Storage, Sales & Service.” Mary Wishum testified that she told some of the plaintiffs that they could store their beans at the facility. According to the record, Mary Wishum also stated that she never knew what was in the bins and that she always accepted Morris Rabren’s word as to what was in the storage bins.

Morris Rabren, President of Covington Grain, testified that he had been “hedging” on board of trade contracts (i. e. dealing in the soybean futures market) and that most of the plaintiffs knew this. Although the record is not clear on this point, it appears that Rabren would sell soybeans which had been left on storage. When the market declined in 1974-75, apparently Rabren sustained losses through his hedging.

Franklin Tillman, a field representative of NYTCO, was responsible for inspecting the facility at Covington Grain which he did about once a month. Another NYTCO representative, Howell Cone, also visited the facilities periodically and prepared written auditor’s reports of these visits. These reports indicate that Howell Cone visited the facility on June 25, 1974, October 1, 1974 and on January 15, 1975. On January 21, 1975 the storage bins were padlocked by NYTCO representative Franklin Tillman. The record shows that on this date there were 19,964 bushels of soybeans actually present in the bins but the Commercial Bank of Andalusia held warehouse receipts for 27,000 bushels. In addition, the plaintiffs allege that at this time they had receipts for 161,000 bushels of soybeans at the facility. On January 31, 1975 Covington Grain filed a bankruptcy petition and thereafter notice was given by the United States District Court of those proceedings. The plaintiffs have filed claims in the bankruptcy proceedings but they have not recovered either money or beans.

The plaintiffs then brought this action against NYTCO, Rabren and Ms. Wishum alleging breach of contract, conversion, fraud, negligence and wantonness for the losses of their soybean deliveries. NYTCO then filed a third-party complaint against J. E. McDonald, and a cross-claim against Ra-bren, on the indemnity agreement they both made. The case was removed to Federal District Court by a defendant but because that Court lacked jurisdiction it remanded the case back to the Circuit Court of Covington County. Prior to trial the defendants filed motions for change of venue but they were denied. The trial commenced on August 2, 1976 and the jury rendered verdicts for the plaintiffs for $1,184,509.71 which were reduced to $1,169,-509.71 by an amended judgment because of an error. The jury also found McDonald liable for the total verdicts on the third-party complaint, and Morris Rabren liable for the total verdicts on NYTCO’s cross-claim. NYTCO and J. E. McDonald have made a consolidated appeal.

The appellants argue that the trial court made numerous errors in denying their motions for directed verdict, motion for judgment N.O.V. and motion for new trial; however, these can be reduced to three basic contentions:

1) That the transactions in question were sales rather than bailments,

2) That Rabren and Ms. Wishum did not accept plaintiffs’ soybeans for NYTCO under agency rules, and

3) That the trial court abused its discretion in denying defendants’ motions for change of venue.

The first question presented is whether the transactions were sales or bail-ments because if they were sales, with passage of title, then there could be no recovery against NYTCO under the theories of negligence, conversion, fraud, and wantonness as alleged. The appellants argue that the transactions were present sales with a price to be fixed in the future under Ala. Code tit. 7A §§ 2-106(1), 2-204(3), and 2-305. The references cited by appellants in Ala.Code, tit. 7A apply to those transactions in which the parties agree to a present sale with the price to be fixed in the future; however, those sections do not contemplate the plaintiffs’ right at their discretion to require a return of the same or equivalent fungible goods as we have here, and thus this renders those sections inapplicable to this controversy. Further, the fact that the Covington Grain weight tickets and statements had words representing that plaintiffs’ soybeans were being stored refutes the argument that the transactions were sales.

In addition, the record discloses that the option to require a return of goods or to sell the soybeans at the market price belonged to the plaintiffs. Under the authority contained in decisions from the courts of several midwestern grain producing states, if the option is retained by the depositor the transaction will be construed as one of bailment. Arndt v. Crowell, 138 Okl. 251, 280 P. 815 (1929); Latta v. Transit Grain Co., 222 S.W.2d 467 (Tex.Civ.App.1949). In Burke v. Boulder Milling & Elevator Co., 77 Colo. 230, 235 P. 574 (1925), a leading and well reasoned grain case the Colorado Supreme Court commented:

The understanding was that there was to be no sale until such time as plaintiff demanded a price satisfactory to the mill. If that condition did not arise (and plaintiff had it in his power to see that it did not) the mill was obliged to return the wheat. ‘If the owner of goods deliver them to another with the understanding that there is to be no sale until the happening of a certain condition, this is a bailment, and the title does not pass until and unless the condition happens.' Furst v. Commercial Bank, 117 Ga. 472, 475, 43 S.W. [sic] 728. . . .
He might so fix the price as to compel return of the wheat; hence his right, under the admitted facts, to force the return of the grain was absolute, and under all the authorities this was no sale but a bailment.

Therefore, the trial court was not in error in denying defendants’ motion for directed verdict since there was at least a scintilla of evidence that there was a bailment as to Covington Grain.

The appellants also contend that the trial court erred in denying their motions for directed verdict, motion for judgment N.O.V. and motion for new trial because Morris Rabren was not an agent of NYTCO and Ms. Wishum did not have authority to accept plaintiff’s beans on behalf of NYT-CO. There is no evidence in the record which will furnish an inference that Morris Rabren had any express authority to act on behalf of NYTCO.

On the other hand, Mary Wishum was clearly under the control of NYTCO when she prepared receiving reports and daily reports of the grain held for the purpose of issuing warehouse receipts and in general when she transacted business for NYTCO according to her instructions. However, the appellants argue that Ms. Wishum had only limited authority and that she did not have express or implied authority to accept plaintiffs soybeans (those in controversy) on behalf of NYTCO. The record reveals that Ms. Wishum’s written instructions were as follows:

1. You are to assist the Storekeeper in charge of the warehouse. You are, as required, to receive and hold on behalf of this company, as Public Warehousemen, all property that is stored in the warehouse. Such storage must be in accordance with the laws of the State, the requirements of the Uniform Warehouse Receipts Act, and the Rules and Regulations of this company, without exception.
2. You are to cooperate with the Storekeeper in the operation of the warehouse to insure that the property stored is at all times under our exclusive dominion and control.
3. You are to observe all the rules and regulations of this company and all special instructions issued by this company concerning the operation of the warehouse.
4. You are to certify that all reports required by this company are accurate and correct by signing all such reports.
5. You are to forward Daily Reports at the close of each and every business day whether or not goods have been received in or delivered from the warehouse.
6. You are to have knowledge of all property stored in the warehouse and you are to certify to the truth and accuracy of the quantity and description of the property reported received by signing the Receiving Records.
7. You are not to permit anything to be removed from the warehouse unless you have written permission of this company or have special instructions from this company governing the delivery of property held in the warehouse.

The Court of Appeals in Ridgeway v. Sullivan-Long & Hagerty, Inc., 39 Ala.App. 341, 98 So.2d 665 (1957), made these comments in determining if agency exists:

Numerous tests have been set forth in the cases as an aid in determining the ultimate fact of agency. The tests furnish assistance, but no definite answer since proposed in relation to the facts of a particular case.
‘Control’ is a factor often mentioned.
Another question sometimes in effect propounded is, does the special employer have the right to exercise control regardless of whether he does so.
And in Martin v. Anniston Foundry Co., 259 Ala. 633, 68 So.2d 323, 327, the following observation is made:
‘In cases of this nature, consideration must be given to the character of the service to be rendered, the duration of employment, and the one who is paying the employee. . . . The true criterion is the exercise of power to control the employee at the time of the commission of the act. . . . ’ (emphasis added).
It is the reserved right of control rather than its actual exercise that furnishes the true test of relationship. Tuscaloosa Veneer Co. v. Martin, 233 Ala. 567, 172 So. 608. (emphasis added). (39 Ala.App. at 344, 98 So.2d at 667-668)

Although there is evidence that Ms. Wis-hum had express authority to act for NYT-CO pursuant to her written instructions, there is no evidence in the record that will furnish an inference that she had express authority to accept plaintiffs’ soybeans on behalf of NYTCO.

Whether or not Ms. Wishum possessed implied authority depends upon whether she possessed authority to do that which was proper, usual and necessary to the exercise of any authority expressly granted to her. W. B. Davis Hosiery Mill, Inc. v. Word Lumber Co., 49 Ala.App. 492, 273 So.2d 469 (1972). Because Ms. Wishum did not have any express authority to accept plaintiffs’ soybeans on behalf of NYTCO, she could not have had such implied authority within the line and scope of her employment.

Here, there is no dispute that NYT-CO placed twelve signs about the premises at the Covington Grain facility. The appellants, however, contend that these facts made neither Rabren nor Ms. Wishum an agent by estoppel as argued by plaintiffs. They cite us to Johnson v. Shenandoah Life Insurance Co., 291 Ala. 389, 281 So.2d 636 (1973); Standard Oil Co. v. Gentry, 241 Ala. 62, 1 So.2d 29 (1941); and Union Oil Co. v. Crane, 288 Ala. 173, 258 So.2d 882 (1972). In Johnson v. Shenandoah Life, supra, this Court quoted with approval from Automotive Acceptance Corp. v. Powell, 45 Ala. App. 596, 234 So.2d 593 (1970):

‘The doctrine of apparent authority does not rest upon what one thinks an agent’s authority may be, or what the agent holds out his authority to be; rather, the doctrine of apparent authority is based on the principal’s holding the agent out to a third person as having the authority under which he acts. . . .’

The court continued by observing:

It seems to be generally held that an agent’s apparent authority must be based upon the conduct of the principal and not of the agent. . . . (291 Ala. at p. 394, 281 So.2d at p. 640)

In Pearson v. Agricultural Ins. Co., 247 Ala. 485, 25 So.2d 164 (1946), cited at length in Union Oil, supra, this Court commented:

While some suggestion has been made that a distinction exists between apparent authority and authority grounded on estoppel, 2 C.J.S., Agency, § 96, p. 1208, our cases and authority generally base the two upon the same elements.
‘ “As between the principal and third persons, mutual rights and liabilities are governed by the apparent scope of the agent’s authority which the principal has held out the agent as possessing, or which he has permitted the agent to represent that he possesses and which the principal is estopped to deny.” (emphasis added).
‘When one has reasonably and in good faith been led to believe, from the appearance of authority which a principal permitted his agent to exercise, that a certain agency exists, and in good faith acts on such belief to his prejudice, the principal is estopped from denying such agency. * * * ’ Halle v. Brooks, 209 Ala. 486, 487, 96 So. 341, 342.
‘The apparent authority of the agent is the same, and is based upon the same elements as the authority created by the estoppel of the principal to deny the agent’s authority; that is to say, the two are correlative, inasmuch as the principal is estopped to deny the authority of the agent because he has permitted the appearance of authority in the agent, thereby justifying the third party in relying upon the same as though it were the authority actually conferred upon the agent. This has been the view of practically all the cases on the point. * * * ’

2 AmJur. p. 86, § 104. (emphasis added). Although there is no evidence that Morris Rabren had express authority to act on behalf of NYTCO, the twelve NYTCO signs, with other circumstances to which we refer hereafter, provide a scintilla of evidence that Rabren was an agent of NYTCO through agency by estoppel principles. Regarding Ms. Wishum, the twelve NYTCO signs, with other circumstances to which we refer hereafter, again provide a scintilla of evidence that she was an agent of NYTCO through agency by estoppel.

Even though there is a scintilla of evidence that both Morris Rabren and Ms. Wishum were agents of NYTCO by estop-pel, the plaintiffs must show that they relied upon NYTCO before they can recover. In Standard Oil, supra, the plaintiff was injured when he slipped and fell at defendant’s service station. Plaintiff’s evidence tended to show that he had relied upon the apparent operation by the company, Standard Oil, through its sign, license and telephone listing and that he continued to do business at the station. This Court held:

Of course plaintiff must have relied upon such representations by the company. . . (emphasis added).

The record discloses that all the plaintiffs stated they either dealt with or relied upon Covington Grain, Morris Rabren, or Mary Wishum. Thus, there was a scintilla of evidence as to each plaintiff that he relied upon Covington Grain, Morris Rabren, or Mary Wishum. Furthermore, since NYTCO can only act through its agents, who here were Morris Rabren and Ms. Wishum, plaintiffs’ reliance upon Rabren and Wis-hum raises a reasonable inference that they were relying upon NYTCO. J. C. Lysle Milling Co. v. North Alabama Grocery Co., 201 Ala. 222, 77 So. 748 (1917). Moreover, the record discloses that the plaintiffs, from the presence of the NYTCO signs in and around the area, the warehousemen’s permit, and general access by Rabren and Ms. Wishum over the premises, in exercising their duties with respect to deliveries of soybeans, had reasonable cause to believe that Rabren and Ms. Wishum had authority to accept plaintiffs’ soybeans on behalf of NYTCO. Therefore, the trial court did not err when it denied the defendants’ motions for directed verdict and submitted the issue of agency to the jury.

The appellants also contend that the trial court abused its discretion in denying their motions for change of venue. The appellants recite the facts considered at the change of venue hearing and cite Ala.Code, Tit. 7, § 65, the general change of venue provision. However, this Court in Mathis v. Board of School Commissioners of Mobile County, 289 Ala. 552, 268 So.2d 822 (1972), observed:

It has long been established in Alabama that the denial of a motion for a change of venue in a civil action is not such a ruling of the trial court as may be reviewed by this court on an appeal from a final judgment in the cause.

Therefore, we cannot here review appellants’ contention that the trial court abused its discretion in denying the motions for change of venue.

The appellants raise several additional grounds on which the trial court committed error. First, they assert that it was error to admit into evidence Rabren’s statements to some of the plaintiffs that NYT-CO bonded Covington Grain. The trial court was not in error in admitting this evidence because under the evidence of Ra-bren’s agency for NYTCO it is inferable that Rabren also had the authority to explain to customers the relationship between Covington Grain and NYTCO, both of whom occupied the same premises.

The appellants argue that these statements disclose a violation of the Statute of Frauds, Tit. 20, § 3(3), Ala.Code. Such an argument overlooks the fact that the plaintiffs have not sought to enforce any such oral contract as suggested by those statements made by Rabren and referring to a bond.

Second, the appellants argue the plaintiffs failed to meet the burden of proof as to the counts alleging negligence. The record shows that there was a scintilla of evidence that the appellants were negligent in caring for plaintiffs’ soybeans. The appellants also contend that the plaintiffs were estopped to deny the title of a purchaser for value acting in good faith under Ala.Code, Tit. 7A, § 2-403; however, no purchaser for value is asserting title to the soybeans.

Third, the appellants contend that no contract of bailment existed between the parties. We have previously shown that there was a scintilla of evidence that a bailment contract existed.

[6] Fourth, the appellants contend that, since NYTCO never had possession over the soybeans, no action for conversion can be maintained. As we have previously shown, NYTCO had possession over the soybeans through their agents, Morris Rabren and Mary Wishum.

[7] Fifth, the appellants argue that the plaintiffs are estopped to assert Rabren’s conversions of the soybeans against NYT-CO. Because Rabren was an agent of NYTCO, his actions are attributable to NYTCO. Further, the plaintiffs did not act in any manner which would lead Rabren to believe he owned the soybeans.

[8] Sixth, the appellants argue that there were no confidential relations between NYTCO and the plaintiffs to warrant a recovery for fraud under Ala.Code, Tit. 7, §§ 108 and 109. That argument is irrelevant here because of the relationship between the plaintiffs and NYTCO based on agency of Rabren through ostensible authority, given to him by NYTCO, and his consequent ostensible authority upon which plaintiffs could rely.

Seventh, the appellants argue that the punitive damages could not have been awarded because no conversion or fraud was proven. Both conversion and fraud were supported by a scintilla of evidence, hence there was no error in awarding punitive damages.

Finally, the appellants argue that the verdicts are contrary to the court’s instructions. A review of the record discloses that the verdicts are not contrary to the court’s instructions.

We have carefully considered all the issues raised by the appellants and do not find any prejudicial error which would require a reversal of the trial court’s judgment.

Accordingly, the judgment is affirmed.

AFFIRMED.

MADDOX, FAULKNER and SHORES, JJ., concur.

ALMON, J., concurs in result.


source: Caselaw Access Project

author: MADDOX, Justice.

license: Public Domain

text:
    W. D. DUNNING et al. v. Earl BOYES.
    SC 2417.
    Supreme Court of Alabama.
    Sept. 30, 1977.
    Rehearing Denied Nov. 18, 1977.
    Otto E. Simon, Mobile, Mozart G. Ratner, Washington, D.C., for appellants.
    Bert S. Nettles, Mobile, for appellee.
   MADDOX, Justice.

This is an interlocutory appeal involving controlling questions of law as to which the parties substantially disagree. Those questions are:

1. Are defamatory communications made in the course of, and relevant to, a federal grievance proceeding absolutely privileged?

2. Is referring to a person as “a known Bigot” actionable?

The trial court, by refusing to grant the defendants’ motion to dismiss a libel action, in effect, held that Alabama should recognize only a qualified privilege to communications made in the course of a labor grievance proceeding, and that whether the reference to the plaintiff as “a known Bigot” was libelous, was a question for a jury. We affirm.

The defendants claim that the federal preemption doctrine has special application to grievance proceedings conducted pursuant to collective bargaining contracts governed by federal law, “for those proceedings serve Congress’ purpose of promoting industrial peace.” Pertinent statements by either party in the presentation or resolution of a grievance, they say, are privileged, and they claim that to subject the parties to the risk of state tort liability for such statements “would cabin their freedom to present their positions with reference to the grievance in a manner they consider most effective.”

The libel action arose out of a letter, Appendix A, written in connection with a grievance proceeding. The letter states, among other things, that the Union, after investigation, “finds no justifiable cause” for denial of a step increase to one Kyser. It attributes denial of Kyser’s step increase to “Racial Overtones,” and asserts:

“He [Kyser] had no trouble until Earl Boyes, a known Bigot, arrived at the Station.”

The defendant filed a motion to dismiss, as follows:

“Defendants move to dismiss the complaint for lack of jurisdiction over the subject matter. The letter referred to in the complaint, which is attached hereto and incorporated herein by reference, was written and delivered as a step in the grievance procedure of the collective bargaining contract between the United States Postal Service and defendant labor organizations cited therein. Said contract, its administration and utterances in the course thereof are governed exclusively by federal labor law, the Postal Reorganization Act, 84 Stat. 733, 39 U.S.C. 1201, et seq. The Supremacy Clause of Article VI of the Constitution of the United States preempts state court jurisdiction over alleged common law defamation in labor disputes in the United States Postal Service, which is the subject matter of the complaint herein. Letter Carriers v. Austin, 418 U.S. 264 [94 S.Ct. 2770, 41 L.Ed.2d 745] (1974).”

I

We hold that defamatory communications made in the course of, and relevant to, a federal grievance proceeding are not absolutely privileged. Therefore, we refuse to follow the rule of absolute privilege suggested in General Motors Corp. v. Mendicki, 367 F.2d 66 (10th Cir. 1966). We follow instead what we consider is a better rule, that of a qualified privilege, as set out in Bird v. Meadow Gold Products, Inc., 60 Misc.2d 212, 302 N.Y.S.2d 701 (1969). We believe that the rule we announce follows what the Supreme Court of the United States has established as a general rule— that a party to a labor dispute may recover for defamatory statements made during the course of the dispute if he can establish that the statement was made maliciously, with knowledge that it was false or with reckless disregard for whether it was false or not. Linn v. United Plant Guard Workers of America, 383 U.S. 53, 86 S.Ct. 657, 15 L.Ed.2d 582 (1966). There, Mr. Justice Clark, writing for the Court, opined:

“Finally, it has been argued that permitting state action here would impinge upon national labor policy because the availability of a judicial remedy for malicious libel would cause employers and unions to spurn appropriate administrative sanctions for contemporaneous violations of the Act. We disagree.” ******
“ * * * As was said in Garrison v. State of Louisiana, 379 U.S. 64, 75, 85 S.Ct. 209, 216, 13 L.Ed.2d 125: ‘[T]he use of the known lie as a tool is at once at odds with the premises of democratic government and with the orderly manner in which economic, social, or political change is to be effected.’ We believe that under the rules laid down here it can be appropriately redressed without curtailment of state libel remedies beyond the actual needs of national labor policy.

As stated by the Supreme Court in Linn, the most repulsive speech enjoys immunity provided it falls short of a deliberate or reckless untruth.

“Malicious libel enjoys no constitutional protection in any context,” the Court said in Linn. “After all, the labor movement has grown up and must assume ordinary responsibility,” the Court added.

II

The defendants say that even assuming that the communication is not privileged, it is not actionable, because the defamatory characterization “known Bigot” is not a statement of fact, but a “pejorative opinion: ‘rhetorical hyperbole,’ like calling one’s adversary a ‘scab,’ or a ‘blackmailer,’ or a ‘Fascist,’ or ‘unfair.’ ” The defendants contend:

“In Farmer v. Carpenters, Local 25, 45 L.W. 4263, 4267 [430 U.S. 290, 97 S.Ct. 1056, 51 L.Ed.2d 338] (March 7, 1977), the Supreme Court again explained in the strongest terms why such defamation must be immune to state libel law:
“ ‘The potential for undue interference with federal regulation would be intolerable if state tort recoveries could be based on the type of robust language and clash of strong personalities that may be commonplace in various labor contexts.’
To dub one who is believed guilty of racial discrimination a ‘racial Bigot’ is not particularly ‘robust’ language and is certainly not confined to labor circles. Indeed, it is common parlance, typical of media commentators. To entertain this complaint is indeed ‘intolerable.’ ”

We disagree with the defendants’ argument. Like the Supreme Court of the United States, we are aware that “robust language” is sometimes used in labor disputes, but it is for a jury to say whether there was an abuse of the qualified privilege under all the facts and circumstances of the case. It would be inappropriate to determine this question on a motion to dismiss unless it were shown that the plaintiff could not recover under any set of circumstances, or that no issue of a material fact remained in the ease, if the motion to dismiss were treated as a motion for summary judgment. Whether the qualified privilege was abused by the defendants is a jury question.

The plaintiff may be able to prove that the characterization of him was a deliberate or reckless untruth. The jury could infer that the characterization meant that Boyes discriminated against Kyser because of Kyser’s race. If the charge were true, it could have meant that Boyes was guilty of violating Federal laws and regulations. See 42 U.S.C. 2000e-16 (1974), and Postal Service, 39 C.F.R. § 447.25 (1976)..

AFFIRMED.

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

APPENDIX A

AZALEA CITY BRANCH NUMBER 469

NATIONAL ASSOCIATION OF LETTER CARRIERS

(AFFILIATED WITH AFLr-CIO)

P. 0. Box 1692

MOBILE, ALABAMA 36601

May 9,1976

Certified Mail 803015*

Postmaster

250 St. Joseph St.

Mobile, A1 36601

This is an appeal to step 2a of a grievance decision by Assistant Superintendent Cottage Kill Station (204-B) Earl Boyes, on May 7,1976, concerning Johnnie Kyser, full time regular letter carrier PF1-5 of the Mobile, A1 Postal Service.

The time limit for processing at step la was extended by Mutual Consent.

Management has violated the National Working Agreement, including but not limited to, Article 3 which incorporates Public Law 91-375, Article 2 and Article 9 Section 5. The grievance was filed timely by Mr. Kyser. Management’s responce was “That it was untimely and there had been no official notification.”

On April 22, 1976, George Ñaman, Superintendent Cottage Hill Station, Told Mr. Kyser. “That he had denyed his step increase; due to substandard performance.”

The Postal Reorgamozation Act states that “employes will reach maximum pay step for their respective labor grades after not more than 8 years satisfactory service in such grades.”

After investigation the Union finds no justifiable cause for denying the step. Mr. Kyser has been at the Post Office for 4 years. There are two counselings and four complaints in his file.

This record does not indicate a serious unsatisfactory service in the performance of his duties. In fact! It displayes a good job. However, it does smack of Racial Overtones. He is the only denyed a step increase in the station. He is also Black. He had no trouble until Earl Boyes, a known Bigot, arrived at the Station.

The Union requests that Mr. Kyser be granted the step increase. The Union also requests that 8% interest be Paid.

/s/ Johnnie Kyser

W. D. Dunning Johnnie Kyser

Shop Steward Aggrieved

NALC

/s/ W. D. Dunning


author: BLOOD WORTH, Justice.

text:
    B. J. OYLER v. Porter GILLILAND and Ellen Gilliland.
    SC 2300.
    Supreme Court of Alabama.
    Nov. 10, 1977.

      Robert B. French, Jr., Fort Payne, for appellant.
    W. M. Beck, Sr. of Beck & Beck, Fort Payne, for appellees.
   BLOOD WORTH, Justice.

Defendant, B. J. Oyler, appeals from a judgment for plaintiffs, Porter and Ellen Gilliland, enjoining him from interfering with the use of a road and ordering him to remove all obstructions he had placed therein. We affirm in part and reverse in part and remand with directions.

The road in question has been in existence on defendant’s property for more than fifty years. During this period, plaintiffs and their “predecessors in interest” have used this road to get to their landlocked farm. In 1966, plaintiffs purchased property contiguous to the landlocked tract. The road in question also goes to this recently purchased property. In either 1974 or 1975, defendant placed obstructions in the road, and plaintiffs brought suit to enjoin any interference with the road and to force defendant to remove the obstacles.

After a hearing, ore tenus, the court ruled inter alia: that the road had been used as a “public road part of the time”; that the road in question was the only reasonable way to get to the plaintiff’s property; and, that, it having been used for more than twenty years, it was a “perpetual easement” running with the land.

On this appeal, defendant contends the road is not a “public road,” since it has not been shown that the road was used thusly for twenty years continuously without his permission.

Defendant also maintains that the plaintiffs failed to show that the use of the road was not permissive, and that the trial court’s finding that the road is a “public road part of the time” is a contradiction in terms. Defendant further contends the road was originally an easement of necessity, since it was the only way plaintiffs could reach their property. However, when plaintiffs purchased the contiguous property in 1966, defendant argues that the road ceased being an easement of necessity. Since an easement by prescription only arises after twenty years, he contends that plaintiffs have no such easement because the twenty-year period required to establish an easement by prescription does not begin to run until the easement of necessity terminates.

On the other hand, plaintiffs contend that they have a prescriptive easement. Plaintiffs also contend this is the only practical way of ingress and egress. Finally, plaintiffs contend that the presumption on appeal is in favor of the trial court’s findings because much of the evidence was in dispute.

It is well settled that a distinction exists between “easements of necessity” and “prescriptive easements.” 28 C.J.S. Easements § 18k, p. 674.

“A way of necessity is just what it purports to be, a way arising by implication of law out of the necessities of the case and which, being based upon necessity, ceases to exist when the necessity for it ceases. It is not a way based upon continuous adverse user. The existence of a right of way by necessity is based upon principles of law which negative the existence of a way by continuous adverse user or the existence of a permanent established way. The acquisition of a way by adverse user is based upon the theory of the hostility of the use to the title of the person over whose lands it is acquired. It recognizes that the owner could have put a stop to its acquisition at any time before it was acquired, but by his laches and acquiescence has slept upon his rights for such a period he may not institute suit by reason of the statute of limitations, a doctrine which has become incorporated in the jurisprudence of this state as a rule of substantive law; while a way of necessity is based upon an implication of an intended grant, and the use of it is based entirely upon such implication or consent to its use. The basis of a way by prescription is adverse possession and use and the basis of a way by necessity is the implication of permissive use.’’ [Emphasis supplied.]

Waubun Beach Ass’n. v. Wilson, 274 Mich. 598, 265 N.W. 474, 478 (1936).

Both sides have stipulated that, prior to 1966, this road was an “easement of necessity.” Thus, the question becomes, was this easement of necessity terminated in 1966 when plaintiffs bought the adjoining property.

Although the parties stipulated this was an easement by necessity until 1966, the evidence is in dispute as to the feasibility, practicality, and indispensability of reaching plaintiffs’ property by way of another route since 1966. The trial judge ruled in favor of the plaintiffs on this issue. This, then, was a question of fact which we cannot disturb unless it is plainly erroneous or manifestly unjust. State v. Reynolds Metals Company, 280 Ala. 561, 196 So.2d 408 (1967). Here, we think there was sufficient evidence to support the finding.

“While ordinarily a right of way of necessity continues until some other lawful way has been acquired, and cannot be extinguished so long as the necessity continues to exist, nevertheless, a way of necessity ceases as soon as the necessity to use it ceases.” 28 C.J.S. Easements § 54b, p. 718. (Citations omitted.)

It is not entirely clear what the trial judge meant when he found that the road “has been used as a public road part of the time.” However, it does not appear to us, upon a reading of the whole “Final Judgment,” and an examination of the evidence, that the trial judge found the road to be both a “public road” and an “easement of necessity.” We have already stated that upon an examination of the evidence, we find sufficient evidence to clearly support that aspect of the judgment finding the road to be an “easement of necessity.” It is that part of the judgment which we affirm. However, the trial court was in error in his application of the law to the facts in finding the easement to be perpetual and in perpetually enjoining defendant from obstructing it. This, for the reason that such easement may be extinguished as provided by law.

This case is affirmed in part, reversed in part, and remanded for entry of a judgment in conformity herewith.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED WITH DIRECTIONS.

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


author: BLOODWORTH, Justice.

text:
    Paul COLEMAN and C & G Excavating, Inc. v. Louise GALBREATH.
    SC 2442.
    Supreme Court of Alabama.
    Nov. 10, 1977.

      Robert B. French, Fort Payne, for appellants.
    Neal D. Huebsch of Huebsch, Bowen & Vason, Eustis, Fla., for appellee.
   BLOODWORTH, Justice.

Appellants, Paul Coleman and C & G Excavating, Inc., appeal from a judgment for appellee, Louise Galbreath, holding that appellee is the owner of twenty-five shares of stock in C & G Excavating, Inc., and the owner of one share jointly with appellant, Coleman. We affirm.

In September 1974, Coleman and Gal-breath formed C & G Excavating, Inc., a Florida corporation, for the purpose of mining coal. They were sole stockholders with twenty-five shares issued to each and one share issued to them jointly. The shares were marked “fully paid and non-assessable.” Coleman and Galbreath served as sole directors and officers of the corporation, as well. Each was active in the day-to-day activities of the corporation. Coleman, as president, supervised the operation, and Galbreath, as secretary and treasurer, handled the bookkeeping.

Dissention developed in January 1975, and appellants filed suit in March 1975, contending, inter alia., that appellee Gal-breath had not paid $2,500.00 for her stock and the one share issued jointly and that the stock should, therefore, be returned to the corporation. Appellee Galbreath’s answer denied that she had failed to pay for the stock to which she had subscribed. She contended that she had paid for it as follows: (1) Coleman, who owed Galbreath for services rendered prior to the formation of the corporation, collected $2,000.00 from his debtor, Snyder, and, in the presence of Gal-breath, deposited the money on her behalf in the corporate account; (2) Galbreath contributed services for the balance. Both parties agree that resolution of this issue is to be decided in accordance with the applicable Florida law. It would serve no useful purpose to discuss the applicable Florida law since we conclude that a resolution of this issue is essentially factual.

The case was heard, ore tenus, in the Circuit Court of DeKalb County on the narrow issue of the stock ownership, i. e., whether Galbreath had paid for her stock. The court held, inter alia, that appellant, Coleman, had failed to meet the burden of proving that appellee Galbreath had not paid for the stock. The court further held:

“Although much of the testimony is in dispute, certain undisputed conduct of the parties supports a finding that Gal-breath’s stock was issued for full consideration. The stock was issued to her with the inscription, ‘fully paid and non-assessable.’ As a director, Coleman participated in the issuance of this stock. With Coleman’s consent and acquiescence, Gal-breath served as a director and officer of the corporation. As such, she attended meetings of the board of directors and signed minutes and other instruments incident to such meetings. Coleman and Galbreath both signed as stockholders when the corporation sought to obtain credit for the purchase of machinery in January, 1975. Moreover, Coleman admitted in his testimony that he had recognized Galbreath as a stockholder, director, and officer during the latter part of 1974.
“When these undisputed facts are considered together with other evidence which tends to support the stock payment method outlined by Galbreath, the conclusion is that the stock issued to her was for full consideration.”

Appellants’ contentions on appeal are almost entirely centered around factual disputes. It has, of course, long been our rule that where the trial judge hears the evidence, ore tenus, his findings of fact cannot be disturbed on appeal unless they are plainly erroneous or manifestly wrong. Jefferson Home Furniture Co., Inc. v. Jefferson Furniture Co., Inc., 349 So.2d 5 (Ala. 1977). Here, we cannot say, after a careful review of the evidence, .that the trial judge’s findings of fact were plainly and palpably incorrect. Therefore, his judgment must be affirmed.

AFFIRMED.

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


author: EMBRY, Justice.

text:
    Harry Meyer KATZ, M.D. v. ALABAMA STATE BOARD OF MEDICAL EXAMINERS and Leon C. Hamrick as its Chairman.
    SC 2599.
    Supreme Court of Alabama.
    Nov. 10, 1977.

      A1 Pennington, of Pennington & Pennington, Mobile, for appellant.
    William J. Baxley, Atty. Gen. and L. G. Kendrick, Asst. Atty. Gen. and John T. Mooresmith, Sp. Asst. Atty. Gen., for appel-lee.
   EMBRY, Justice.

The decisive issue raised here is whether a denial of a petition for reinstatement to the practice of medicine by the Alabama State Board of Medical Examiners (Board) is appealable to this court under Tit. 46, § 278, Code (1940, 1973 Cum.Supp.). We answer no and accordingly dismiss the appeal.

In 1971, holding a license to practice medicine in Alabama and in Florida, Dr. Harry Meyer Katz was convicted in Florida of medicare fraud, a crime involving moral turpitude. The Alabama Board subsequently served Katz with a formal complaint informing him of its intention to revoke his license and of a hearing date for him to show cause why such action should not be taken. Before the hearing date, without admitting guilt of any ground for revocation of his Alabama license, Katz surrendered that license and withdrew from the practice of medicine.

In 1973, Katz petitioned the Board for reinstatement, a hearing was had, and his petition denied. In March of 1977, Katz again petitioned for reinstatement; a hearing was had at which Katz submitted evidence of changed circumstances, his activities in the medical field outside Alabama from the time his license had been surrendered and requests from citizens of the Bayou La Batre area that he return to their area for the practice of medicine. Again, his petition was denied.

It is a court reporter’s transcript of that last hearing which is the “Record” in this case. It is from the denial of reinstatement evidenced by a resolution of the Board from which Katz appeals, purportedly under the provisions of Tit. 46, § 278, Code (1940, 1973 Cum.Supp.):

“Right of appeal; time. — An appeal may be taken to the supreme court of the state of Alabama by the person whose certificate is ordered suspended or revoked from any order suspending or revoking a certificate of qualification made by said board within 30 days after rendition thereof.”

The Board has moved to dismiss this appeal because the denial of Katz’s petition for reinstatement is not an “order suspending or revoking a certificate of qualification.”

No case has been cited by the parties that directly answers the issue raised here relating to § 278, Tit. 46, and our search for authorities interpreting this statute has proved futile. Hence, we must construe § 278, Tit. 46, in the context of this ease, for the first time.

No authority need be cited to support the rule of statutory construction that the interpreting court’s duty is to ascertain the intent of the legislature from a reading of the statute. As recently announced in Tillman v. Sibbles, 341 So.2d 686 (1977):

“ * * * in all cases in which this court is called upon to interpret a legislative enactment, the underlying consideration is to ascertain and effectuate the intent of the legislature as expressed in the statute. * * * ”

At first glance it is clear the legislature intended § 278, Tit. 46, to be an appeal statute. However, this has no effect on our ability to construe it as permitting an appeal in this case. It is well recognized that ordinary principles of statutory construction also apply in construing an appeal statute. 4 Anf.Jur.2d, Appeal and Error, § 7. Applying these principles of statutory construction we hold that the language of § 278, Tit. 46, contemplates an appeal to this court only from an order of the Board suspending or revoking a certificate of qualification. Therefore, an appeal from the Board’s denial of a petition for reinstatement to practice medicine will not lie.

Katz is not in total disagreement with our construction of § 278. However, he argues that the case of Barnes v. State ex rel. Ferguson, 274 Ala. 705, 151 So.2d 619 (1963), is precedent for allowing appeals to this court from orders by the Board denying reinstatement. We disagree. Barnes is distinguishable from the present case in one very important aspect: in Barnes, the “appeal” by Ferguson, from the Board’s order denying a request for a certificate of qualification to practice under the reciprocity statute, § 267, Tit. 46, Code, as amended, was to the circuit court by petition for writ of mandamus. The appeal to this court was from a judgment of the circuit court granting a preemptory writ of mandamus commanding the Board to issue Ferguson the certificate.

This distinction supports our view that Katz could seek the writ of mandamus from the circuit court to obtain a review of the Board’s alleged abuse of discretion in denying his petition for reinstatement. If judgment or discretion is abused, or exercised in an arbitrary or capricious manner, mandamus will lie to compel a proper exercise thereof. Barnes v. State ex rel. Ferguson, supra.

Though not compelled to do so, we think it desirable to speak beyond the narrow issue of whether denial of Katz’s reinstatement to practice medicine in Alabama is appealable to this court under § 278. It is appropriate to comment for the reason that, from a review of that which is denoted as the “Record” on this appeal, a possibility for arbitrary and unreasonable action and abuse of discretion exists in the procedures followed by the Board in its hearing conducted for the purpose of considering Katz’s petition for reinstatement. It is well settled law that due process must be observed by all boards, as well as courts. State Tenure Commission v. Madison County Board of Education, 282 Ala. 658, 213 So.2d 823 (1968). This principle was the basis of our decision in Greenfield v. Hamrick, 341 So.2d 136 (Ala.1976), where § 277, Tit. 46, Code, was held unconstitutional insofar as it authorizes a revocation or suspension of a certificate to practice medicine without notice and an opportunity to be heard: due process of law. Procedural due process requires:

“ * * * an orderly proceeding appropriate to the case or adapted to its nature, just to the parties affected, and adapted to the ends to be attained; one in which a person has an opportunity to be heard, and to defend, enforce, and protect his rights before a competent and impartial tribunal legally constituted to determine the right involved; representation by counsel; procedure at the hearing consistent with the essentials of a fair trial according to established rules which do not violate fundamental rights, and in conformity to statutes and rules, conducted in such a way that there will be opportunity for a court to determine whether the applicable rules of law and procedure were observed; revelation of the evidence on which a disputed order is based and opportunity to explore that evidence, and a conclusion based on the evidence and reason. * * * ” 2 Am.Jur.2d, Administrative Law, § 353.

The hearing before the Board in this case falls short of the procedural due process requirements enunciated. The right to engage in the practice of medicine in Alabama is a property right that may be denied only if the denial is consonant with due process of law. Barnes, supra. The denial of this right through due process procedures on reasonable grounds is a modification of the common law under which:

“ * * * the practice of medicine was open to all who desired to follow it in any of its branches, subject only to liability for damages in a case of lack of skill on the part of the practitioner, and to the right of government to proceed by quo warranto to prevent incompetents from following the business. * * * ” 61 Am. Jur.2d, Physicians, Surgeons, Etc., § 5, p. 126.

Subject to the due process requirements we have enunciated, the provisions of § 6, Act No. 161, 2 May 1975, that amended § 271, Tit. 46, Code (1940), provide the broad framework within which those due process requirements may be met.

So there may be no question that denial of reinstatement to the practice of medicine is not grounded upon unreasonable or arbitrary bases, review of that question should be on the state of the evidence, after full due process hearing, regarding: the likelihood of an applicant violating the provisions of § 270, Tit. 46, Code (1940); whether the period of time an applicant has not been permitted to practice is sufficient penalty for past offenses; and whether the applicant is presently a competent physician.

An appeal to this court being the inappropriate remedy by which appellant may seek relief by way of reinstatement to the practice of medicine, this appeal is due to be, and is, dismissed.

MOTION TO DISMISS GRANTED AND APPEAL DISMISSED.

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

      . As we noted in Fraternal Order of Police, Strawberry Lodge # 40 v. Entrekin, 294 Ala. 201, 314 So.2d 663, enactment of an Administrative Procedures Act by the legislature would be of material aid in solving many of the problems presented by cases such as this one. We note with satisfaction that a committee of the Alabama Bar Association is preparing a proposed bill to create a uniform procedure for adoption of rules by state administrative agen-cíes, for the conduct of the contested cases before administrative agencies, and for the judicial review of state agency rules and determinations. It would materially assist all litigants in the administrative law field if such a bill be enacted into law together with the establishment of a State Register wherein proposed rules may be noticed, and published when promulgated.


author: FAULKNER, Justice.

text:
    Marlin E. HAMMOND, as Administrator, etc. v. REALTY LEASING, INC., et al. (two cases). In re Marlin E. HAMMOND, as Administrator, etc., et al. v. REALTY LEASING, INC., etc. Ex parte Marlin E. Hammond, as Administrator, etc., Application for Writ of Mandamus.
    SC 2719, SC 2720 and SC 2736.
    Supreme Court of Alabama.
    Nov. 10, 1977.

      Francis H. Hare, Jr. for Hare, Wynn, Newell & Newton, Birmingham, and Farmer, Farmer & Price, Dothan, for appellant-petitioner.
    Jere C. Segrest, Dothan, for appellee-re-spondent.
   FAULKNER, Justice.

Two minor children of Marlin E. Hammond, while playing in a vacant lot without the invitation of the defendant property owner, drowned in a pond. The plaintiff’s original complaint, alleging simple negligence, was dismissed with leave to amend within ten days by the Houston Circuit Court. Instead of pursuing his option to amend, the plaintiff perfected appeal to this court. On February 25, 1977, this court affirmed the dismissal. Hammond v. Realty Leasing, Inc., 342 So.2d 915 (Ala.1977).

On March 10 the plaintiff filed a petition to amend the original complaint, asserting defendant’s wanton misconduct and negligent creation or maintenance of a dangerous instrumentality as amended grounds of recovery. The petition to amend was granted on May 30. However, upon reconsideration ex mero motu, the petition to amend was denied on June 6.

Plaintiff seeks review of the trial court’s action both by appeal and mandamus. These cases were consolidated for the purpose of review.

The issues here for review are:

(1) Whether appeal or mandamus is the appropriate method of review.

(2) Whether an amendment of the complaint asserting additional grounds of recovery should be allowed where this court has previously affirmed the dismissal of the complaint.

Mandamus is the appropriate method of review where the amendment will not result in undue delay or unduly prejudice the defendants. Huskey v. W. B. Goodwyn Co., Inc., 295 Ala. 1, 321 So.2d 645 (1975). As Justice Jones said in Huskey, the plaintiff does “. . . not have a long history of delays in this trial . . . [and] the amended complaint still arises from the same general fact situation involved in the original complaint.” 295 Ala. at 5, 321 So.2d at 647. Therefore, we will review this case on mandamus rather than on appeal.

Amendments under Rule 15, Alabama Rules of Civil Procedure, are to be freely allowed, and this court has repeatedly said that Rule 15 must be liberally construed. E. g., Alabama Farm Bureau Mut. Casualty Ins. Co. v. Guthrie, 338 So.2d 1276 (Ala.Sup.Ct.1976); Stead v. Blue Cross-Blue Shield of Alabama, 294 Ala. 3, 310 So.2d 469 (1975).

However, Rule 15 does not allow a party to amend his or her original complaint after an unsuccessful appeal.

“Where, although given an opportunity to amend, the pleader has stood upon his pleading and appealed from a judgment of dismissal, he will not normally be able to amend either in the appellate court, or in the trial court if the order of dismissal is affirmed, unless the mandate of the appellate court expressly permits such amendment.” 3 Moore’s Federal Practice, 2d Ed., ¶ 15.11.

“To hold otherwise would enable the liberal amendment policy of Rule 15(a) to be employed in a way that is contrary to the philosophy favoring finality of judgments and the expeditious termination of litigation.” 6 Wright & Miller, Federal Practice and Procedure, § 1489, p. 445. The decision in Hammond did not provide for any further amendment of the complaint.

Petition for writ of mandamus is denied.

WRIT DENIED.

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

      . The action was reinstituted in the Circuit Court on March 16, since on that date the clerk of the Circuit Court received the Supreme Court’s Certificate of Affirmance.


author: HOLMES, Judge.

text:
    STATE of Alabama v. INTERNATIONAL TRADE CLUB, INC., a non-profit corporation.
    Civ. 1267.
    Court of Civil Appeals of Alabama.
    Nov. 9, 1977.

      William J. Baxley, Atty. Gen., State of Ala., Herbert I. Burson, Jr., Counsel, B. Frank Loeb, Asst. Counsel, Dept, of Revenue and Asst. Attys. Gen., State of Ala., for appellant.
    Vincent F. Kilborn of Kilborn & Gibney, Mobile, for appellee.
   HOLMES, Judge.

This is a tax case.

This case originated from a final assessment of sales tax entered by appellant-State of Alabama in the amount of $6,381.57. Taxpayer appealed the final assessment to the Circuit Court of Mobile County. That court found the taxpayer was not liable for the tax. Specifically, the trial court found that the fifteen percent service charge collected by the taxpayer from its members is not a part of the “gross receipts of sales” under Tit. 51, § 786(2)(f), Code of Alabama 1940, and therefore not subject to tax. It is from that decree that the appellant appeals.

The pertinent facts, as set out in a written stipulation of facts, reveal the following:

Taxpayer-appellee is a non-profit corporation operating a club for the use and benefit of its members. Since its formation in 1966, the appellee has collected a fifteen percent service charge from its members in lieu of cash tips left on the table. This charge is a part of the total check which a member signs after completing his meal. Proceeds from this charge go into a gratuity pool for the employees.

The bylaws of appellee require a minimum fifteen percent service charge to be added to each check with no cash tips being allowed. Although this charge is mandatory, there are occasional instances where members have varied the amount because they were pleased or displeased. If a member designates an additional amount, it goes into the pool unless it is designated to a specific waiter or bartender, in which case it goes to him over and above his regular share of the pool.

The gratuity pool is maintained by appel-lee which is funded by the service charges received by the waiters, waitresses, bartenders, and busboys. The waiters and waitresses were paid $4 per shift plus their share of the gratuity pool, i.e., eighty-five percent of the service charge which is fifteen percent of the meal cost. The other fifteen percent of the service charge is credited on the appellee’s payroll against the salary of the busboys who service the dining room. The busboys were paid the federal minimum hourly wage for the period in question.

The two bartenders were paid a guaranteed salary of $182 and $185, respectively, per week. The service charges which are received by the bartenders, on the tickets which they service, are credited against their guaranteed salaries. Although the bartenders cannot receive less than their guaranteed salary, they can receive more if the service charges with which they are credited exceed their guaranteed salary. As with the waiters and waitresses, fifteen percent of the service charges to be received by the bartenders is paid into the gratuity pool on behalf of the busboys.

The appellee, during the period in litigation, collected and paid the appellant sales tax on all sales, with the exception that appellee did not pay sales tax upon the fifteen percent service charge. It is upon that omission that the appellant issued its assessment and upon which this appeal is based.

The appellee contends the service charge is not subject to sales tax because the transaction is simply a substitute for a cash tip given to the waiter or employee and therefore is not subject to tax.

The appellant, however, argues that the service charge is a taxable “labor or service cost” as set out under Tit. 51, § 786(2)(f), Code of Alabama 1940, as follows:

“The term ‘gross proceeds of sales’ means the value proceeding or accruing from the sale of tangible personal property (and including the proceeds from the sale of any property handled on consignment by the taxpayer), including merchandise of any kind and character without any deduction on account of the cost of the property sold, the cost of the materials used, labor or service cost, interest paid, or any other expenses whatsoever, and without any deductions on account of losses; . . . ” [Emphasis supplied.]

The appellant therefore contends that the service charge is tantamount to a labor or service cost and should be included in the “gross proceeds of sales” and subject to sales tax. The question before this court is one of first impression and we therefore look to other states for guidance.

The Supreme Court of Wisconsin in Big Foot Country Club v. Wisconsin Department of Revenue, 70 Wis.2d 871, 285 N.W.2d 696 (1975), recognized that a fifteen percent add-on service charge is a mere codification by the club’s bylaws of the social custom of tipping. The court also said that this would not be subject to the sales tax.

However, the court went further and stated that the result would be different if the service charge was used to bring the wages paid to employees up to a minimum wage level. Accord Anders v. State Board of Equalization, 82 Cal.App.2d 88, 185 P.2d 883 (1947). .

In the present case, it is undisputed that fifteen percent of the service charge collected is credited against appellee’s payroll for minimum wages paid to the busboys. It is clear that the service charge, to the extent of the minimum wages, was a part of the appellee’s gross receipts and therefore properly subject to the sales tax.

Turning now to the bartenders, we noted above that they have a guaranteed salary which can be increased if the service charges with which they are credited exceed their guaranteed salary. Put another way, they will receive eighty-five percent of the service charges on their tickets only if such a figure exceeds their guaranteed salary. If such a figure does not exceed the salary, they will receive the guaranteed salary. The question then becomes what happens to the accumulation from the service charges when the bartenders receive the guaranteed salary.

The court in Green v. Surf Club, Inc., Fla.App., 136 So.2d 354, cert. den., 139 So.2d 694 (Fla.1962), aptly stated that:

“There may be situations wherein the collection of a fixed service charge is taxable, such as where the assessment and collection thereof has no relationship to the sums received by the service personnel but is retained by the employer as a portion of the gross proceeds on the sale of food and beverage. The determinative question in each instance should be whether or not the ‘dealer’ receives a benefit from the involuntary charge. If he does, he should be taxed. If he does not, no tax should be levied.” [Emphasis supplied.]

Clearly, the appellee received a benefit from the service charge concerning the bartenders. If the service charges with which they are credited exceed their guaranteed salary, the appellee does not have to pay them their guaranteed salary. But if such charges do not exceed the salary, appellee must pay the salary. However, whatever service charges have been credited to them could be used by the appellee to offset the cost of their guaranteed salary. Therefore, the sums retained by appellee constitute “gross receipts of sales” under Tit. 51, § 786(2)(f), Code of Alabama, and are subject to tax.

Lastly, we now turn to the service charge as it relates to the waiters and waitresses. As set out above, they received $4 per shift plus their share of the gratuity pool, i.e., eighty-five percent of the service charge on meals. Appellee argues that the service charge is simply a substitute for a cash tip and is not subject to tax. We agree.

The social custom in this case has been transformed into a club bylaw. This fifteen percent is a reasonable amount and corresponds to the usual amount left by the general public in public restaurants. See Big Foot Country Club v. Wisconsin Department of Revenue, supra.

Although this fifteen percent is called a service charge, it is more appropriately viewed as a gratuity or tip for the waiters and waitresses. As such, it is not part of the gross receipts of the appellee.

In summary, the service charge as it relates to the busboys and bartenders does not constitute a gratuity or tip and therefore falls within the term “gross receipts of sales” as defined in Tit. 51, § 786(2)(f), Code of Alabama 1940. The service charge as it relates to waiters and waitresses does constitute a gratuity and is without the purview of Tit. 51, § 786(2)(f). The trial court is thereby reversed in part and the cause remanded for further proceedings not inconsistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED FOR ENTRY OF A JUDGMENT NOT INCONSISTENT WITH THIS OPINION.

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


author: BRADLEY, Judge.

text:
    T. W. STONE, Jr. v. Bill ECHOLS et al.
    Civ. 863.
    Court of Civil Appeals of Alabama.
    Nov. 10, 1976.
    Rehearing Denied Dec. 15, 1976.

      Frank W. Riggs, Montgomery, Phillip Henry Pitts, Selma, George P. White, Cen-treville, for appellant.
    John M. Milling, Jr., Montgomery, for appellees.
   BRADLEY, Judge.

This is an appeal from a verdict and judgment in the Circuit Court of Montgomery County for the plaintiff in the amount of $4,000 arising out of a claim for damages resulting from an automobile accident. Plaintiff asked for a new trial on the ground that the damages were inadequate. The motion was denied, and from this ruling the plaintiff appeals to this court. Inasmuch as the appeal concerns the adequacy of the damages, only those facts relating to that subject will be discussed.

We hold that the verdict of the jury and judgment entered thereon is not so clearly contrary to the preponderance of the evidence as to be obviously wrong and unjust, and affirm.

Plaintiff Stone, a sixty-four year old male, was injured on August 27, 1973 as a result of a collision between his automobile and a tractor trailer truck driven by defendant Robert L. Turner and owned by defendant Echols Trucking, Inc., a corporation. The collision occurred on U.S. 231, just north of Troy, Alabama. Stone was taken by ambulance from the accident scene to Edge Memorial Hospital in Troy, Alabama where he stayed for ten days. Stone had multiple bruises over his body and a small laceration over his left eye. The attending physician testified at trial that Stone had hairline fractures of the T-8 and T-9 vertebrae, though other doctors testified they found no evidence of fractures. Additionally the physician found Stone to be extremely nervous. While in the hospital, Stone received medication for pain and a prior existing heart condition as well as tranquilizers and anti-depressants for severe emotional disturbance. After the stay in the Edge Memorial Hospital, Stone was transferred to the Perry County Hospital where he remained under the care of his personal physician for another eighteen days.

Stone’s personal physician, Dr. DeRamus, testified that he found the lacerations over Stone’s left eye had healed and the x-rays showed no signs of chipped or fractured vertebrae. He treated Stone for pain and had him fitted for a back brace. However, his main concern was for Stone’s severe depression and nervousness. Stone could not talk about the accident without becoming nervous and upset and weeping; an increased dosage of medication was required to calm him down. Dr. DeRamus referred Stone to a psychiatrist, Dr. Morton, who was later replaced by Dr. Silber-man; to an orthopedic surgeon, Dr. Wilson; and to a cardiologist, Dr. McElroy. Additionally, Stone visited his ophthalmologist to correct troubled vision in his right eye, but this visit was not related to the accident.

Stone first saw Dr. Morton in October 1973. He was diagnosed as having psychoneurosis, which the psychiatrist described in deposition as an anxiety state with reactive depression. Symptoms are spontaneous crying, apprehension, depression, tearfulness and tension, all of which Stone exhibited. Dr. Morton said Stone’s mental state was triggered by the accident, a psychologically traumatic event for Stone because of his fear of being trapped and burned alive in an automobile. This fear stemmed from two previous experiences in Stone’s life: his witnessing a man trapped in a burning automobile begging someone to be merciful and shoot him, and the death of Stone’s father shortly after having been trapped and undiscovered for two days inside a wrecked automobile.

Dr. Silberman began treating Stone in 1975, after Dr. Morton’s death. Dr. Silber-man testified that Stone complained of having backache and stomach pain, becoming easily upset and crying, tiring easily, and having nightmares about the automobile accident. He prescribed medication for Stone’s emotional state. As of the time of trial, Dr. Silberman’s evaluation was that Stone was improving but still had nervous problems. Stone’s anxiety and depression could be attributed to advancing age, to physical injury such as Stone had suffered, or to stress due to business problems. The complaints of backache and stomach pain were probably somatic and often accompanied depression; as the depression improved so would the somatic complaints. Dr. Sil-berman concluded that the symptoms of which Stone complained were reoccurring and might never completely disappear. He said Stone’s business judgment could be affected by such a condition.

Dr. Wilson, the orthopedic surgeon, testified that he did not find any evidence of fractures of the T-8 and T-9 vertebrae, but did find degenerative changes in the spine due to osteoarthritis, a condition which results from age. He said there is no permanent aggravation of this condition without injury and he found none, although a person with such a condition who suffered a blow to the spinal area would, in his opinion, exhibit symptoms longer than would a person who was not so afflicted. Dr. Wilson prescribed no medication but did caution against heavy lifting or manual work on Stone’s part. He said the pain suffered by Mr. Stone after the accident could have been caused by the arthritic condition, the accident, or wearing the back brace.

Dr. McElroy, the cardiologist, treated Stone prior to the accident in May 1973 for heart murmur and angina pectoris, a type of thoracic pain. He prescribed medicine for heart pain and an associate prescribed medication for nervousness and depression. After the accident Mr. Stone still had angina pain and was nervous. In August 1974 Dr. McElroy found Stone to have a leaking mitral valve and a slight enlargement of the heart. The medication prescribed for nervousness and depression was trianil and valium. Dr. DeRamus testified that Dr. McElroy had advised Stone prior to the accident to go slowly in undertaking any new business ventures.

Stone’s wife and his personal physician both testified that emotionally Stone was a different man after the accident. Whereas before the accident he had been a self-confident, aggressive, decisive person, after the accident he easily became upset, as evidenced by symptoms such as weeping while watching television programs. He did not sleep well because of nightmares and had difficulty concentrating and making business decisions. Driving an automobile would leave him exhausted. While his psychological state appears to have improved under treatment, Dr. Silberman testified that further treatment is required.

In his brief Stone claimed that he had incurred expenses as a result of the accident in the amount of $3,414.53. This figure included all of the doctor and hospital costs outlined above, ambulance and wrecker service, a motel bill for his wife of $18.72, a telephone bill for alleged necessary calls of $90.46, and a drug bill for medicine of $307.14. An additional $4,500 was claimed for loss of the wrecked automobile. The only evidence of the car’s value was Stone’s testimony that the car originally cost $5,927.09 when purchased new one and one-half years prior to the accident. His opinion was that the car was worth $4,500 before the accident and a total loss after the accident. There was no other evidence relating to the value of Stone’s wrecked car.

We now face that always difficult problem of determining whether or not a damage verdict is inadequate. The supreme court has given us guidelines to assist us in arriving at a solution to this problem. We quote extensively from Yarbrough v. Mallory, 225 Ala. 579, 144 So. 447 (1932):

“In Montgomery Light & Traction Co. v. King, 187 Ala. 619, 65 So. 998, L.R.A. 1915F, 491, Ann.Cas.1916B, 449, a case of personal injury, involving damages not measurable by any legal standard, and the question for review was inadequacy of the damages awarded, this court, after quoting and approving the opinion in Moseley v. Jamison, 68 Miss. 336, 8 So. 744, 745, declared: ‘In a case like this a trial court is by the law — which protects and provides for trials by jury — invested with no right to set aside such a verdict upon the ground of excessiveness or inadequacy alone unless the amount allowed by the verdict is so excessive or inadequate as to plainly indicate that the verdict was produced “by passion or prejudice or improper motive.” ’
“The basic reason for disturbing the verdict of a jury because of excessive or inadequate damages is precisely the same as for disturbing it because not supported by the evidence, or because opposed to the clear and convincing weight of the evidence. In the one case the inquiry is directed to one feature of the verdict; the damages awarded.
“Speaking of the power and duty of the trial court in dealing with a verdict for inadequate damages, this court recently held: ‘That the credibility of witnesses is involved, that opinion evidence of value, not conclusive upon the trier of fact, is to be considered, and that there is no yardstick to measure the damages for physical pain and suffering, does not withdraw the case from the supervisory power of the trial court over the verdicts of juries. In all these matters he is in like position with the jury, and clothed with the power and duty to relieve against verdicts, which, allowing all reasonable presumptions in their favor, are still found to be clearly wrong and unjust from any cause, whether by reason of passion and bias, or from mistake, inadvertence, or failure to comprehend and appreciate the issues.’ Birmingham News Co. v. Lester, 222 Ala. 503, 504, 133 So. 270.
“The review of this ruling is governed by Cobb v. Malone & Collins, 92 Ala. 630, 9 So. 738, viz.: The trial court will not be reversed for refusing to disturb the verdict, ‘unless, after allowing all reasonable presumptions of its correctness, the preponderance of the evidence against the verdict is so decided as to clearly convince the court that it is wrong and unjust.’ ” 225 Ala. at 581 and 582, 144 So. at 448 and 449.

In the case at bar the principal area of contention with regard to inadequacy of the damages centered on Stone’s expenses for doctors and hospitals and the value of his damaged automobile. The case was tried both below and here on the theory that Stone’s medical expenses were not all related to the accident but were the result largely of preexisting physical and emotional problems. This being the case the trier of fact had the duty of assessing each witness’s testimony regarding the origin and extent of Stone’s injuries proximately caused by the negligence of the defendants and giving such weight thereto as it considered to be due.

As to the value of the vehicle, the only testimony on this subject was from Stone himself. Where the jury hears opinion testimony on value, it is their prerogative to give to that testimony such weight as their general knowledge and experience dictates. Andrews v. Frierson, 144 Ala. 470, 39 So. 512 (1905). Furthermore, where that opinion testimony comes from one who stands to gain unduly (Stone here), the jury is authorized to give minimum value to such testimony. Alabama Great Southern R. Co. v. Russell, 35 Ala.App. 345, 48 So.2d 239, rev. on other grounds 254 Ala. 701, 48 So.2d 249 (1949).

Keeping in mind these principles of law and giving the required presumptions to the trial court’s refusal to order a new trial because of inadequate damages, this court, acknowledging the possibility that it might have decided differently had it been sitting as a trial court, cannot say that the verdict of the jury and judgment entered thereon is so clearly contrary to the preponderance of the evidence as to be obviously wrong and unjust. We therefore affirm the trial court’s judgment.

AFFIRMED.

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


author: ALMON, Justice.

text:
    In re T. W. STONE, Jr. v. Bill ECHOLS, Echols Trucking, Inc., a corporation, and Robert Lamar Turner. Ex Parte T. W. Stone, Jr.
    SC 2284.
    Supreme Court of Alabama.
    Sept. 9, 1977.
    Frank W. Riggs, Montgomery, for petitioner.

      John M. Milling, Jr., of Hill, Hill, Carter, Franco, Cole & Black, Montgomery, opposed.
   ALMON, Justice.

On August 27, 1973, T. W. Stone, Jr., plaintiff-petitioner, was involved in an accident with Robert T. Turner, a driver for Echols Trucking, Inc. A jury awarded Stone $4,000.00 damages. The trial court denied Stone’s motion for a new trial for an inadequate verdict. Stone contends he proved undisputed medical and property damages of $7,914.53, $4,500.00 of which consisted of the car he was driving. The Court of Civil Appeals affirmed the judgment. We granted certiorari based upon an alleged conflict with prior decisions: Hunter v. Schembs, 273 Ala. 304, 139 So.2d 614 (1962); Farmers & Ginners Cotton Oil v. Reliance Ins. Co., 341 So.2d 147 (Ala., 1976).

The Court of Civil Appeals opinion, Ala. Civ.App.Ms. No. 863, August 20,1976, notes that:

“. . . The case was tried both below and here on the theory that Stone’s medical expenses were not all related to the accident but were the result largely of pre-existing physical and emotional problems.”

In reviewing the Courts of Appeal, we are limited to the facts stated in that court’s opinion unless the petitioner utilizes Rule 39(k) Alabama Rules of Appellate Procedure. No attempt was made to invoke that rule. Union Camp Corporation v. Blackman, 289 Ala. 635, 270 So.2d 108 (1972). Whether the itemized medical expenses were proximately caused by Turner’s negligence was for the jury. Mobile City Lines, Inc. v. Proctor, 272 Ala. 217, 130 So.2d 388 (1961). We recognize, however, that a portion of these expenses were as a matter of law related to the injury and the jury must award substantial compensation for substantial injuries. Hunter v. Schembs, supra.

The more serious question relates to the car, a 1972 Pontiac. Stone testified that he bought it new for $5,927.09 approximately 18 months before the accident (his receipt was made an exhibit), that it was worth $4,500.00 before the accident and that “[i]t wasn’t worth a dime” after the accident. Stone’s testimony was the only evidence offered as to the value of the car.

As the Court of Civil Appeals noted, where a jury hears opinion testimony on value, its prerogative is to give to that testimony such weight as its general knowledge and experience dictate. Andrews v. Frierson, 144 Ala. 470, 39 So. 512 (1905). On the other hand,

“Where . . . the jury verdict cannot be justified upon any reasonable hypothesis presented by the evidence, it .ought to be set aside upon proper proceedings as being the result of compromise or mistake, for neither the court nor jury have the right to arbitrate or compromise differences between the parties. . ” Donavan v. Fandrich, 265 Ala. 439, 440, 92 So.2d 1, 2 (1957).

See also Farmers & Ginners Cotton Oil v. Reliance Ins., supra.

Thus, we are confronted with a situation where petitioner has at least some medical damages for which he claims $3,414.53. In dispute, though, is whether all the itemized expenses were proximately caused by the injury.

The petitioner’s car, according to the only evidence presented, was valued immediately before the accident at $4,500.00 and immediately after the accident was valueless.

In Farmers & Ginners Cotton Oil v. Reliance Ins., supra, we quoted from Mr. Justice Coleman’s opinion in State v. Crawford, 277 Ala. 568, 173 So.2d 109 (1965) as follows:

“ ‘In deciding this case, we are not unmindful of the rule that evidence of value is necessarily opinion evidence, and that it is not conclusive on courts and juries, even when without conflict. Dean v. County Board of Education, 210 Ala. 256, 97 So. 741; State v. Hunter, 270 Ala. 57, 116 So.2d 383. In this connection, however, there is also the rule that there is no “absolute” or “unrestricted” right in the trier of facts to disregard evidence of witnesses declared competent by the statute, § 367, Title 7, whether expert or not. Such evidence is not conclusive, as of course, but is to be considered like other evidence in connection with all the facts and circumstances and in the light of the knowledge and experience of the jury in finding the true value. O’Neill v. City of Birmingham, 221 Ala. 580, 130 So. 87.’ ” 341 So.2d at 148.

This case is like Farmers & Ginners Cotton Oil in that the jury returned a verdict unsupported by any evidence. Stone’s testimony is the only evidence of the value of the car and his testimony was uncontradict-ed. The jury’s verdict of $4,000.00 in light of uncontradicted testimony that the car was worth $4,500.00 is unsupported by the evidence and must be set aside. Farmers & Ginners Cotton Oil, supra.

The judgment of the Court of Civil Appeals is hereby reversed and the cause is remanded.

REVERSED AND REMANDED.

All the Justices concur.


text:
    T. W. STONE, Jr. v. Bill ECHOLS, Echols Trucking, Inc., a Corporation, and Robert Lamar Turner.
    Civ. 863.
    Court of Civil Appeals of Alabama.
    Oct. 5, 1977.
   BRADLEY, Judge.

Upon remand to this court by the Supreme Court of Alabama it is considered that this cause should be reversed in accordance with the opinion rendered by the supreme court on September 9, 1977, 351 So.2d 902, in the above styled cause, and remanded to the Circuit Court of Montgomery County for further proceedings.

REVERSED AND REMANDED.

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


text:
    William Herbert ORR v. Lillian M. ORR.
    Civ. 1006.
    Court of Civil Appeals of Alabama.
    March 16, 1977.
    Rehearing Denied April 12, 1977.

      John L. Capell, Montgomery, for appellant.
    W. F. Horsley, Opelika, for appellee.
   HOLMES, Judge.

The husband, by appropriate motion filed with the trial court, challenged the constitutionality of Tit. 34, §§ 31-33, Code of Alabama, Alabama’s alimony statutes. The trial court denied the husband’s motion.

The sole issue before this court is whether Alabama’s alimony statutes are unconstitutional. We find they are not unconstitutional and affirm.

The husband, through able counsel, contends that Alabama’s alimony statutes are unconstitutional in that they violate the 14th Amendment to the U.S. Constitution. The husband argues that the appropriate statutes provide for an award of alimony to females without providing for a corresponding award to males and, therefore, males are denied the right to equal protection under the law.

The same issue before this court was argued before the Supreme Court of Georgia in Murphy v. Murphy, 232 Ga. 352, 206 S.E.2d 458 (1974), cert. denied, 421 U.S. 929, 95 S.Ct. 1656, 44 L.Ed.2d 87 (1975). The Georgia Supreme Court discussed the same cases and rationale raised by the husband on this appeal. After careful study and consideration, we are of the opinion that we cannot improve on the language or reasoning of the Georgia court. We therefore adopt the following language found in the Georgia case as our own:

“In Kahn v. Shevin, 416 U.S. 351, 94 S.Ct. 1734, 40 L.Ed.2d 189 (1974), the United States Supreme Court approved the constitutionality of a Florida statute which grants widows an annual property tax exemption of $500 but offers no analogous benefit for widowers. [W]e believe the ratio decidendi of Kahn is dispositive of the issues presented here. See also Dill v. Dill, 231 Ga. 231, 206 S.E.2d 6; and, Husband M. v. Wife M., 321 A.2d 115, decided by the Supreme Court of Delaware, April 18, 1974.
“The United States Supreme Court determined the Florida statute involved in the Kahn case, providing different treatment of widows and widowers ‘ “rest[s] upon some ground of difference having a fair and substantial relation to the object of the legislation.” Reed v. Reed, 404 U.S. 71, 76, 92 S.Ct. 251, 254, 30 L.Ed.2d 225, quoting Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 40 S.Ct. 560, 561, 64 L.Ed. 989’ Id., p. 1737, of 94 S.Ct. The court there went on to say: ‘This is not a case like Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583, where the Government denied its female employees both substantive and procedural benefits granted males “solely for administrative convenience” . . .We deal here with a state tax law reasonably designed to further the state policy of cushioning the financial impact of spousal loss upon the sex for whom that loss imposes a disproportionally heavy burden.’
“The court also observed in its opinion that the financial difficulties confronting the lone woman exceed those facing the man and this disparity of earnings is likely to be exacerbated for the widow. ‘While the widower can usually continue in the occupation which preceded his spouse’s death, in many cases the widow will find herself suddenly forced into a job market with which she is unfamiliar, and in which, because of her former economic dependency, she will have fewer skills to offer.’ Id., p. 1737, of 94 S.Ct.” (206 S.E.2d at 459).

As the Georgia Supreme Court stated, the reasons noted above are equally applicable in the instance of a wife involved in seeking alimony pursuant to a divorce. It is the wife of a broken marriage who needs financial assistance for whom the alimony statutes of Alabama were designed. Again quoting from Murphy v. Murphy, supra:

“As noted in footnote 10 of the majority opinion of the court in Kahn, ‘ “We have returned to the original constitutional proposition that courts do not substitute their social and economic beliefs for the judgment of legislative bodies, who are elected to pass laws.” Ferguson v. Skrupa, 372 U.S. 726, 730, 83 S.Ct. 1028, 1031, 10 L.Ed.2d 93.’ ” (206 S.E.2d at 459, 460)

In accord is Whitt v. Vauthier, La.App., 316 So.2d 202 (1975).

The trial court is due to be and is affirmed.

AFFIRMED.

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