author: BLOODWORTH, Justice. FAULKNER, Justice JONES, Justice SHORES, Justice JONES, Justice

text:
    Jerry Kenneth GARRETT and Claudell Weathers Garrett v. RAYTHEON COMPANY, INC.
    77-606.
    Supreme Court of Alabama.
    Jan. 26, 1979.
    As Corrected on Denial of Rehearing March 16, 1979.

      Leo E. Costello, Birmingham, for appellants.
    E. Ted Taylor, Prattville, President, Alabama Trial Lawyers Assn., R. Ben Hogan, Birmingham, for amicus curiae, The Alabama Trial Lawyers Assn., in support of application for rehearing.
    Bibb Allen of London, Yancey, Clark & Allen, Birmingham, for appellees.
    Thomas W. Christian, Pres., Ala. Defense Lawyers Assn., Birmingham, Harold F. Herring, Executive Vice-Pres., Ala. Defense Lawyers Assn., Huntsville, Stancil R. Starnes, Sec.-Treas., Ala. Defense Lawyers Assn., Birmingham, for amicus curiae, Alabama Defense Lawyers Assn., in opposition to application for rehearing.
   BLOODWORTH, Justice.

When does the statute of limitations begin to run for injuries suffered as a result of radiation exposure? We conclude that it begins to run when the plaintiff is exposed to radiation and an injury occurs. This was the trial court’s conclusion when it held the plaintiff’s claim was barred by the statute of limitations. We agree and affirm.

On February 17,1978, appellant (plaintiff below) filed suit against defendants General Electric Corporation, Western Electric Company, Inc., Raytheon Company, P. R. Mallory Company, Inc., General Electric Company, Inc., American Telephone and Telegraph Company and South Cehtral Bell Telephone Company, Inc.

In his complaint he alleges in “COUNT ONE” the following:

“3. Plaintiff Jerry Kenneth Garrett states that prior to 1955, Defendants and each of them so negligently and carelessly designed, manufactured, fabricated, installed, repaired and maintained certain radar systems, component parts of radar systems, and installations of certain radar systems so as to cause said systems to be in a dangerous and defective condition. As a result of the aforesaid dangers and defective condition, said units emitted dangerous radiation.
“4. From, on or about 1955 until on or about 1957, Plaintiff Jerry Kenneth Garrett was exposed to massive doses of the aforesaid dangerous radiation without Plaintiffs’ knowledge and without Plaintiffs’ consent. As a direct and proximate result of said exposure to said radiation, Plaintiffs sustained injuries and damages as set forth in Paragraphs 5 and 6 hereof.
“5. Plaintiff Jerry Kenneth Garrett suffered the following injuries and damages, to-wit: Plaintiff’s hair fell out, his hair was caused to turn white, his facial and body hair was caused to fall out. His aging process has been materially altered. He has incurred reasonable expenses for the services of physicians, nurses, medicines, roentgenologists, and other related medical expenses, in a presently unascer-tained amount as the same are still being incurred. His risk of contracting cancer and leukemia have been greatly increased. His sexually active years have been materially shortened. Plaintiff has suffered humiliation, embarrassment, mental pain, anguish, anxiety, shock, and other injuries not presently diagnosed, the nature and extent of which Plaintiff will add by amendment when ascertained.
“6. Plaintiff Claudell Weathers Garrett claims loss of services, loss of consortium, and the loss of companionship of her husband who suffered the injuries and damages set forth in the previous paragraph hereof.
“7. Plaintiffs had no knowledge of the hazardous, dangerous, and defective condition of the aforesaid radar systems and of the harmful effects of radiation during the period of exposure. Plaintiffs did not know of the potential adverse medical effects of radiation exposure until the condition of Jerry Kenneth Garrett was diagnosed in March, 1977, when for the very first time, Plaintiff Jerry Kenneth Garrett was advised for the Very first time that his rapidly deteriorating condition was due to said radiation exposure.
“WHEREFORE PREMISES CONSIDERED, Plaintiff Jerry Kenneth Garrett demands judgment in the sum of $500,000.00 .. . ..”

Count Two is in wantonness. Count Three is under the Alabama Extended Manufacturer’s Liability Doctrine; Count Four alleges strict liability, while Count Five alleges negligence, wilfulness and wantonness; and Count Six avers that defendants negligently, wilfully and wantonly withheld information from plaintiff that the radar systems presented hazards.

Defendant Raytheon, appellee here, filed a motion to dismiss upon grounds of failure to state a claim upon which relief can be granted and the statute of limitations.

The trial court granted the motion to dismiss making the finding in compliance with Rule 54(b) whereupon plaintiff Garrett appealed.

The very basic and long settled rule of construction of our courts is that a statute of limitations begins to run in favor of the party liable from the time the cause of action “accrues.” The cause of action “accrues” as soon as the party in whose favor it arises is entitled to maintain an action thereon.

“We have held that the statute begins to run whether or not the full amount of damages is apparent at the time of the first legal injury. In Kelly v. Shropshire, 199 Ala. 602, 75 So. 291, 292 (1917), the rule was stated as follows:
“ ‘If the act of which the injury is the natural sequence is of itself a legal injury to plaintiff, a completed wrong, the cause of action accrues and the statute begins to run from the time the act is committed, be the actual damage [then apparent] however slight, and the statute will operate to bar a recovery not only for the present damages but for damages developing subsequently and not actionable at the time of the wrong done; for in such a case the subsequent increase in the damages resulting gives no new cause of action. Nor does plaintiff’s ignorance of the tort or injury, at least if there is no fraudulent concealment by defendant, postpone the running of the statute until the tort or injury is discovered.’
“Nor do the cases cited to us by appellant Home modify this rule. Corona Coal Co. v. Hendon, 213 Ala. 323, 104 So. 799 (1925) (flooding of basement causing rusting of heating plant) and West Pratt Coal Co. v. Dorman, 161 Ala. 389, 49 So. 849 (1909) (underground mining causing subsidence of surface land) merely state the well established rule that the statute will not begin to run until some injury occurs which gives rise to a maintainable cause of action.
“Reviewing the facts in this cause, we find that, as a result of the open space left in the roof, rainwater poured into the freezer and office of Schloss & Kahn on November 11, 1968; ice had to be removed with sledge hammers and shovels before the freezer could be used; the entire office had to be repainted; and finally, ice was discovered in the walls on December 17, 1968. Even without any subsequent damage, Schloss & Kahn as of December 17, 1968, at the latest, had suffered legal injury from the alleged negligent acts of November 8, so as to entitle it to maintain a cause of action against the third-party defendants. The statute of limitations began to run at that time.”

Home Insurance Co. v. Stuart-McCorkle, Inc., 291 Ala. 601, 608, 285 So.2d 468, 473 (1973).

The class of cases exemplified by Corona Coal Co. v. Hendon, 213 Ala. 323, 104 So. 799 (1925), and West Pratt Coal Co. v. Dorman, 161 Ala. 389, 49 So. 849 (1909), expresses the same rule although in a different context, and the basic principle is the same. Thus, there are cases where the act complained of does not itself constitute a legal injury at the time, but plaintiff’s injury only comes as a result of, and in furtherance and subsequent development of, the act defendant has done. In such cases, the cause of action “accrues,” and the statute of limitation begins to run, “when, and only when, the damages are sustained.” Over sixty years ago, Justice Sayre so expressed it in his opinion for the Court in Kelly, et al. v. Shropshire, 199 Ala. 602, 75 So. 291 (1917).

In West Pratt Coal plaintiff’s upper soil cracked open and settled down several years after mining had taken place beneath the surface. Plaintiff brought suit within one year after the soil settled. In stating that the statute had not run, the Court held that the plaintiff had nothing of which to complain until the enjoyment of the lot was interfered with by the settling of the soil, i. e., no cause of action had “accrued” until that time.

In Kelly, supra, this Court held that the statute of limitations had run against a plaintiff who sought damages more than six years after he had contracted with a surveyor to survey and map certain property and who, plaintiff claimed, had negligently mapped it. The Court held that plaintiff’s ignorance of the injury, when there was no fraudulent concealment, did not postpone the running of the statute until the injury was discovered.

The same rule has long been followed in this state with reference to medical malpractice. In Hudson v. Moore, 239 Ala. 130, 194 So. 147 (1940), this Court held, in an opinion authored by Justice Bouldin, that neither difficulty of ascertainment nor ignorance of the cause of action will toll the statute of limitations unless superinduced by fraud. In Hudson v. Moore, plaintiff sought damages in 1938 for an alleged negligent act in 1923 of leaving a gauze sponge in a patient’s body after a gall bladder operation. The court held the statute had run.

As recently as 1972, this Court, in Sellers v. Edwards, 289 Ala. 2, 265 So.2d 438 (1972), held that an action for malpractice for leaving in a bulldog clamp after surgery was governed by the medical malpractice statute of limitations, Act No. 766, Acts of Alabama, 1953, page 1027 [then found at Tit. 7, § 25(1), Code of Alabama 1940 (Recompiled 1958)]. That act specified a limitation of two years. The jury found for the defendant and on appeal the contention was made that there was error in the court’s charge that if the jury were reasonably satisfied that'the leaving of a clamp in the plaintiff’s body was unintentional, the two year statute of limitations would apply and their verdict would be for the defendant. This Court held, in an opinion authored by Justice Maddox, that the evidence in the case was clear to the conclusion that the cause of action was governed by the two-year statute of limitations and that the giving of the charge, if error, was harmless.

It was noted in Sellers v. Edwards, supra, “ * * * that the Legislature has the inherent power to determine the date and time within which an action may be brought unless the time fixed is clearly arbitrary or unreasonable.” (Emphasis added.)

Thus, in Alabama the so-called “Discovery Rule” has been specifically rejected by this Court in medical and professional malpractice suits. Moreover, the legislature has adopted specific statutes of limitations with respect to the medical profession, as well as the engineering and architectural professions, and we have held that the enactment of such legislation is within the inherent power of the legislature. We cannot reject such long settled and mature authority out of hand.

The difference between our land subsiding cases, such as Corona Coal, and the instant case is that no injury occurred at the time of the mining in the Corona Coal case while in the instant case the damage must have occurred at the time of exposure else defendant would not be liable. It is simply that all the progressive nature of the injury has not made itself manifest at the time of the last exposure. But, we have held that the statute begins to run “whether or not the full amount of damages is apparent at the time of the first legal injury” or not. Home Insurance Co. v. Stuart-McCorkle, Inc., supra.

As Mr. Justice Faulkner’s dissent correctly states, the statute begins to run from the date of injury. See Brotherhood of Locomotive Firemen & Enginemen v. Hammett, 273 Ala. 397, 140 So.2d 832 (1962).

In Garren v. Commercial Union Insurance Co., 340 So.2d 764 (Ala.1976), we defined “date of injury” for statute of limitations purposes to be the day on which the plaintiff was last exposed to the damages which injured her. Justice Faulkner points out that this definition was derived from the workmen’s compensation act. It is incorrect, however, to assume that this ipso facto changes the definition of “date of injury” for non-workmen’s compensation cases.

Section 25-5-117 (Code 1975) provides:
“ * * * The date of the injury shall mean, for all purposes of this article, the date of the last exposure to the hazards of the disease in the employment of the employer in whose employment the employee was last exposed to the hazards of the disease.” ^

This provision was enacted in 1971. See Act No. 668, Acts of the Legislature 1971, vol. II, p. 1379.

The injury in this case occurred on the date or dates of exposure. This is not a case where an injury did not occur until it made itself manifest by its symptoms. Among our cases, continuous tort cases are significant in the limitation of actions context. It was thus that in American Mutual Liability Insurance Co. v. Agricola Furnace Co., 236 Ala. 535, 183 So. 677 (1938), this Court held that recovery for a continuous tort could be had only for those damages which occurred within the period of limitations. See also Howell v. City of Dothan, 234 Ala. 158, 174 So. 624 (1937). The cause of action was, therefore, not barred by the statute of limitations until one year after the last day on which the plaintiff was exposed to the dangerous conditions which caused the injury. Minyard v. Woodward Iron Co., 81 F.Supp. 414 (N.D.Ala.), aff’d, 170 F.2d 508 (5th Cir. 1948). This was, and is, the rule in all cases concerning continuous torts in Alabama.

In the recent cases of Harig v. Johns-Manville Products Corp., [1978, Court of Appeals of Maryland] 394 A.2d 299, and Raymond v. Eli Lilly & Co., 371 A.2d 170 (N.H.1977), it was noted in the opinions that the courts in those states had already recognized the “Discovery Rule” before it was extended to products liability cases. Although both are well reasoned opinions, they are based on those states’ recognition of a rule which has been specifically rejected by Alabama courts for the past 60 years.

It may be that Alabama’s rejection of the “Discovery Rule” is contrary to the weight of opinion generally. However, as this Court is committed to the proposition that the legislature has the inherent power to establish statutes of limitation, we have no other alternative than to leave it to the legislature to abrogate this rule and adopt a more equitable one should it see fit, so that a plaintiff’s claim will not be barred when he has no way to ascertain that he has been damaged by a deleterious substance because the result has not manifested itself until the statute of limitations has run.

Of course, Alabama does recognize that a fraudulent concealment by a defendant tolls the running of the statute until the tort or injury is discovered or could have been discovered by due diligence. Although plaintiff purports to make an effort to allege fraud in Count Six, the allegations fall far short of the requirements of Rule 9, A.R.C.P., that fraud be alleged “with particularity.” For instance, the count fails to allege that the failure to disclose was material — that defendant knew the hazards were harmful to plaintiff — that they permitted him nevertheless to be exposed to the hazards — which he did not discover nor could he have discovered with reasonable diligence until the statute had run.

It is thus that we hold that the statute of limitations of one year began to run when plaintiff was last exposed to radiation and plaintiff’s ignorance of the tort or injury, there being no fraudulent concealment, does not postpone the running of the statute until the tort or injury is discovered. If plaintiff was not injured in 1955-1957, then defendant committed no negligent act at that time which resulted in injury and defendant would not be liable. If plaintiff did become injured or damaged at that time, then the statute of limitations has run.

To reach the result espoused by the dissenters, however laudatory and attractive it may appear to be, would require overruling dozens of Alabama cases and departing from well-established principles of law laid down over the past 60 years. Moreover, and more importantly perhaps, it would result in usurping the inherent power of the legislature.

AFFIRMED.

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

FAULKNER, JONES, SHORES and BEATTY, JJ., dissent.

FAULKNER, Justice

(Dissenting).

I dissent.

The majority by their opinion have ignored the Constitution of Alabama, 1901, and have garbled the meaning of when a statute of limitations begins to run.

To the question, “When does the statute of limitations begin to run for injuries suffered as a result of radiation exposure,” the majority answers that the statute begins to run when the plaintiff is exposed to radiation and an injury occurs. Well, when, pray tell, does an injury occur when one is ex.posed to radiation? At the time of exposure? One year after exposure? 10 years? 20 years?

In the posture of this case, can the question be answered realistically, logically or legally? I say no. Under the majority reasoning, “the man who buries a time bomb” could argue successfully “that he could not be held responsible for a resulting death because the explosion and death of his victim did not occur until more than a year after he placed the bomb.” Cf. Ayers v. Morgan, 397 Pa. 282, 154 A.2d 788 (1959).

The problem of radiation exposure is one that does not fit squarely into traditional legal concepts, for the nature of the injuries is such that they are often not manifested until many years after exposure. This is the ease here. Garrett was allegedly exposed to radiation from 1955 to 1957, but his first physical problems did not appear until March, 1975. The circuit court granted defendant’s motion to dismiss on the theory that Garrett’s claims were barred by the statute of limitations and entered its order as a final judgment. I would reverse.

In 1955, 1956, and 1957 Garrett, a staff sergeant in the U.S. Army, was stationed at Fort Bliss, Texas, as a radar instructor. At that time he was allegedly exposed to massive quantities of radiation without his knowledge or consent. In March, 1975, a solid patch of hair fell out of his head and he began to experience other physical problems such as increased aging and loss of body hair. Garrett consulted numerous doctors but the nature of his problem was not discovered until March, 1977, when a radiologist determined that the cause of his medical problems was exposure to radiation while in the Army. His prognosis was rapid aging, an unusually high probability of contracting leukemia and cancer, and a materially shortened life expectancy.

On February 19, 1978, Garrett and his wife filed suit against Raytheon Co., Inc. and several other corporations. The complaint seeks a total of $5,075,000 in damages and alleges negligent, careless, and wanton design, manufacture, fabrication, installation, repair and maintenance of certain radar systems as well as negligent failure to conduct proper tests and the negligent, willful, and wanton withholding of information relative to the hazards presented by the radar systems. Additional counts sought recovery under the Alabama Extended Manufacturer’s Liability Doctrine and for strict liability in tort.

There is no question that this suit is governed by § 6-2-39(a)(5), Code Ala.1975, which states: “The following must be commenced within one year: . . .Actions for any injury to the person or rights of another not arising from contract and not specifically enumerated in this section.” This statute is, of course, read in conjunction with § 6-2-30, Code Ala.1975, which states: “All civil actions must be commenced after the cause of action has accrued within the period prescribed in this article and not afterwards, unless otherwise specifically provided for in this Code.” Thus the question for this Court is when does a cause of action for radiation exposure accrue. The majority holds that Garrett’s cause of action accrued at the time of exposure. Garrett asserts that the cause of action cannot accrue until the injury manifests itself thereby giving an individual notice that a possible tort has been committed.

In determining when a cause of action for personal injury accrues this Court has established the rule that “the time of limitation begins to run when the injury happens or damage accrues, and not from the date of the act causing the injury or damage.” (Emphasis added.) Brotherhood of Locomotive Firemen & Enginemen v. Hammett, 273 Ala. 397, 401, 140 So.2d 832, 834-5 (1962). That principle was reaffirmed in Garren v. Commercial Union Insurance Co., 340 So.2d 764 (Ala.1976) where we noted that the one year period applies to injuries resulting from continuous exposure to harmful events, such as repeated blasting or flooding. In Garren this Court defined the date of injury as “the last day on which plaintiff was exposed to the danger.” 340 So.2d at 766. Defendant urges, and the majority agrees, to apply this same definition of “date of injury” to situations involving radiation exposure. For the reasons detailed below I decline to extend Garren’s definition of date of injury to the case at bar.

First, it is apparent that the definition does not logically follow from the rule of accrual set out in Hammett. That case specifically stated that a cause of action does not accrue from the date of the act causing the injury or damage. That, however, is the net result of applying Garren’s definition of date of injury. In fact, Gar-ren’s definition was derived from the workmen’s compensation act, as specifically noted in that case. Section 25-5-117, Code Ala.1975, states: “The date of the injury shall mean, for all purposes of this article, the date of the last exposure to the hazards of the disease in the employment of the employer in whose employment the employee was last exposed to the hazards of the disease.” Garren logically referred to the statutory definition of date of injury for that case involved a statutory claim arising under the workmen’s compensation act. Ms. Garren, permanently and totally disabled from continuously breathing dust and lint, had already collected compensation benefits from her employer and was bringing a third party action pursuant to § 25-5-11. Consequently, this Court in its holding kept her statutory third party action in line with the statutory scheme of the workmen’s compensation act.

Workmen’s compensation, however, is in no way involved in this case. Garrett is seeking recovery for alleged common law torts. Defendant, nevertheless, points to § 25-5-197 of the workmen’s compensation act which deals specifically with occupational exposure to radiation, and seeks to apply its definitions to Garrett’s common law claims. That statute provides in pertinent part:

“In case of occupational exposure to radiation, as defined in this article, or of injury or disability resulting therefrom, all claims or compensation shall be forever barred, unless within one year after the employee first suffered disability therefrom and either knew or in the exercise of reasonable diligence should have known that the disability was caused therefrom, but in no event more than three years after date of the injury as hereinafter defined, the parties shall have agreed upon the compensation payable under this article, or unless within such period of time one of the parties shall have filed a verified complaint as provided in section 25-5-88. . . . The ‘date of the injury’ shall mean, for all purposes of this article, the date of the last exposure to the hazards of radiation in the employment of the employer in whose employment the employee was last exposed, within a period of five years prior to the date of the injury, to the hazards of radiation in each of at least 12 months.”

An inherent feature of this statute is that it establishes a maximum time limit of three years from the date of last exposure. I note, however, that the leading authority in this field, in what remains the seminal article on statute of limitation problems in radiation exposure cases, has observed that even a ten year overall limitation period “is unrealistic in view of current scientific knowledge of the delayed biological effects of nuclear radiation.” Estep and Van Dyke, Radiation Injuries: Statute of Limitation Inadequacies in Tort Cases, 62 Mich.L.Rev. 753, 790 (1964). Consequently, to engraft this statutory scheme onto unrelated common law claims is illogical and unsupportable.

Thus we come back to the underlying difficulty in this case: the nature of radiation exposure and its resulting injuries. Unlike blasting and flooding, more familiar continuous exposure torts, an individual may be exposed to radiation without his ever knowing it or having an opportunity to discover it in the exercise of the utmost diligence. See G. Hutton, Legal Considerations on Ionizing Radiation 35 (1966). We are dealing here instead with an insidious “silent trespass.” Unlike Ms. Garren’s pulmonary problems, radiation injuries often do not manifest themselves until many years after exposure. An individual may lead a normal, healthy life for years without apparent physical damage and then suddenly experience visible effects of radiation exposure. See B. Stason, S. Estep, & W. Pierce, Atoms and the Law 17 (1959).

Under these circumstances, the only justifiable and logical application of the statute of limitations is an adherence to our traditional rule of accrual, that the time of limitation begins to run when the injury happens or damage accrues, with an injury “happening” when physical damage manifests itself. Paraphrasing the United States Supreme Court, to hold otherwise “would mean that at some past moment in time, unknown and inherently unknowable even in retrospect” Garrett was charged with knowledge of the “slow and tragic disintegration” of his health. His “failure to diagnose within the applicable statute of limitations a disease whose symptoms had not yet obtruded on his consciousness would constitute waiver of his right to compensation at the ultimate day of discovery and disability.” Urie v. Thompson, 337 U.S. 163, 169, 69 S.Ct. 1018, 1024, 93 L.Ed. 1282 (1949). Such a result would fly in the face of our constitutional provision “ . that every person, for any injury done him, in his person . . . shall have a remedy by due process of law . . ” Ala.Const. of 1901, Art. I, § 13.

A further problem presents itself and it is exemplified by Garrett’s own situation as he describes it. Basically, Garrett claims that although his first “injury” appeared in March, 1975, when a patch of hair fell out of his head, his problem was not diagnosed until two years later. Difficulty of diagnosis is a natural concomitant of injuries resulting from an act some twenty years before. Thus, to prevent a plaintiff’s remedy from being wholly elusive, I would hold that the cause of action accrues and the statute of limitations begins to run when the injury happens and damage accrues, provided that the plaintiff knew or in the exercise of reasonable diligence should have known the nature of his injury or illness. Under this caveat, the statute is tolled only for those plaintiffs who made a serious attempt to determine the nature of their illness but were unable to do so for reasons beyond their control. See Estep and Van Dyke, supra at 767.

By my holding, I am mindful that the “discovery rule” has gained prominence in recent years in situations where plaintiffs have not suffered discoverable injury until sometime after the acts which in fact caused the harm. The rule has been adopted in this state for medical malpractice, § 6-5-482, Code Ala.1975. Our workmen’s compensation statute applies it in a limited form to occupational diseases, § 25-5-117, Code Ala.1975, and occupational exposure to radiation, § 25-5-197, Code Ala.1975, quoted supra. Numerous cases from various jurisdictions have applied the discovery rule to injuries and diseases analogous to those allegedly suffered by Garrett. In Florida, the discovery rule allowed a plaintiff to recover for injuries resulting from exposure to x-rays five years prior to suit. City of Miami v. Brooks, 70 So.2d 306 (Fla.1954). Compare Buck v. Mouradian, 100 So.2d 70 (Fla.App.1958), where an action for excessive exposure to x-rays was not allowed as plaintiff admitted she had visible burns at the time of exposure five years before. The discovery rule governs in claims under the Federal Employers Liability Act as held in Urie v. Thompson, supra, a case which has often been cited as the “enlightened view” when state law was not clear. See also Brush Beryllium Co. v. Meckley, 284 F.2d 797 (6th Cir. 1960) (berylliosis, Ohio law not clear); Ricciuti v. Voltarc Tubes, Inc. 277 F.2d 809 (2d Cir. 1960) (berylliosis, Conn, law); U. S. v. Reid, 251 F.2d 691 (5th Cir. 1958) (medical malpractice — failure to advise of incipient tuberculosis, Ga. law under Federal Tort Claims Act); Sylvania Electric Products v. Barker, 228 F.2d 842 (1st Cir. 1956) (berylliosis, Neb. law); American Airlines, Inc. v. McCombs, 555 P.2d 1028 (Okl.1976) (chemical bronchitis, early emphysema, and early pulmonary fibrosis); Consolidation Coal Co. v. Brown, 474 S.W.2d 416 (Tenn.1971) (silicosis); Inland Steel Co. v. McCarey, 467 S.W.2d 137 (Ky.1971) (silicosis); Hutchinson v. Semler, 221 Or. 437, 361 P.2d 803 (1961) (silicosis); Ayers v. Morgan, 397 Pa. 282, 154 A.2d 788 (1959) (sponge left after surgery). Most recently the Court of Appeals of Maryland applied the discovery rule to an action for cancer allegedly resulting from exposure to harmful asbestos over a period of fifteen years ending in 1955. Harig v. Johns-Manville Products Corp., 394 A.2d 299 (Ct.App. Md., 1978).

I recognize that my result would force defendants into the difficult position of defending actions taken years before. This hardship, however, does not operate against the defendant alone. Garrett would have to prove that acts twenty years ago took place and caused his injuries. It would be a difficult action to prosecute, but I feel that, in light of the avowed public policy of this state as expressed in our Constitution, he ought, at least, to have the opportunity to present his claims in a court of law.

I would reverse.

BEATTY, J., concurs.

JONES, J., concurs in the result.

JONES, Justice

(Dissenting):

I concur in the result of the dissenting opinion of Mr. Justice Faulkner. I agree fully with what he has written except for his analysis of Garren v. Commercial Union Insurance Co., 340 So.2d 764 (Ala.1976). He states that “. . . Garren’s definition [of date of injury] was derived from the workmen’s compensation act, as specifically noted in that case. The confusion that led Mr. Justice Faulkner into an attempt to rationalize “around” Garren is the fact that Garren references Tit. 26, § 313(42), Ala. Code 1958, for the proposition that “The date of injury is the last day on which plaintiff was exposed to the danger.”

Although I concurred in Garren (and I have not changed my mind), had I been more careful in my study of this opinion, I would have influenced my Brothers to delete this definition from the opinion, or else I would have concurred specially. Not only is the reference to § 313(42) misplaced, but the definition of date of injury is itself misleading; and this is evidenced by the last sentence of the opinion which limits the plaintiff’s damages to those injuries suffered by her during the last day of her employment within the statutory period of limitations. But the reference to § 313(42) is misplaced because the third-party common law action in Garren does not draw upon the Workmen’s Compensation Act for its definition of date of injury. Indeed, if it did, the partial summary judgment should have been reversed and the damages recoverable upon trial if any would have been for the full injuries incurred and not merely for those incurred during the twelve months next preceding the filing of the complaint. Then, too, Garren is not a “discovery of injury” case.

Perhaps even more disturbing than the rejection of the discovery rule, however, is the majority’s failure to follow the current well-established rule that no cause of action arises until injury results. We do not know from this “motion to dismiss” posture when the injury occurred. That this fact question is consumed by the majority as a matter of law is eloquently expressed in Ms. Justice Shores’ dissenting opinion.

SHORES, Justice

(dissenting):

I agree that this court, many years ago, rejected the “discovery rule” in a number of cases. I also agree that the statute of limitations normally begins to run when the cause of action accrues. A cause of action for personal injury accrues when injury proximately results from the negligent act of the defendant. In this case, the allegations are that the plaintiff suffered various injuries at an unstated time. The complaint charges the defendant with wrongful acts prior to 1955. It does not state when those acts resulted in injury to the plaintiff. It merely alleges that he was unaware of the cause of those injuries until that cause was diagnosed in 1977.

Under these allegations, I cannot say that the suit was not brought within the time provided by law from the date of the injury. If the suit was filed within the statutory period measured from the date the injuries were suffered by the plaintiff, it is timely. This, however, is a fact question not resolved by this record. The majority would equate exposure to radiation with the injury. This may or may not be so and this, too, is a fact question. As I understand our cases, they have consistently held that no cause of action arises until injury results. The majority opinion assumes that the injury occurred simultaneously with the plaintiff’s exposure to the radiation. The defendant’s exposure of the plaintiff to radiation would not create a cause of action in the plaintiff until injury resulted from that exposure.

Cases of this kind present difficult questions and frequently courts are called upon to resolve them with rules not designed for such questions. In view of the result reached by the majority, I join my brothers in inviting the Legislature to adopt a rule to apply in cases like this; but, in the meantime, I would adhere to the traditional rule that treats the date of the injury as the date from which the statute commences to run.

On Rehearing

OPINION CORRECTED. APPLICATION FOR REHEARING OVERRULED.

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

FAULKNER and BEATTY, JJ., dissent.

Dissenting opinion by JONES, J., extended.

JONES, Justice

(dissenting):

On original deliverance, my dissent was prepared before the majority opinion was supplemented to include its reference to Garren. I addressed only what I perceive as an erroneous reference to Garren in Mr. Justice Faulkner’s dissent, with which I am otherwise in agreement. Mr. Justice Faulkner’s reference is an attempt to “write around” Garren into which he was unwittingly led by Garren’s misreference to § 25-5-117.

Garren is a common law “products liability” case. In Garren, the only statute of limitations issue involved is whether plaintiff is barred from recovery of all damages incurred within the last twelve months except for one-day’s exposure where she waited until the last day of the one-year period to file suit. The trial court granted partial summary judgment excluding all damages except for the remaining one day within the one-year period since the last date of exposure. Our holding, in affirming, comports completely with the common law rule of Agrícola and Minyard, cited by the majority. Garren’s reference to § 25-5-117 is unfortunate and misplaced. If this section is applicable in a non-workmen’s compensation context, the summary judgment in Garren could not have been affirmed. Indeed, if Garren were a workmen’s compensation case (an unwarranted assumption), the issue there addressed could not have arisen, because in that event the employer would never have contended that any portion of the plaintiff’s claim was barred. The avowed purpose of § 25-5-117 (including § 25-5-147 and § 25-5-197) is to conform insidious disease injuries to workmen’s compensation concepts by statutorily equating last date of exposure to date of accidental injury. And, in so doing, plaintiff’s recovery is limited by the statutory scheme of benefits without further apportionment of damages measured by the unexpired portion of the period within which the claim is filed. This changed the common law materially: It statutorily fixed the date of injury into a date certain; whereas the common law rule leaves this fact question of date of injury, and thus date of accrual of the cause of action, for individualized determination.

The defendant in Garren (not the employer but a third-party defendant) did not contend that the cause of action was barred by the one-year statute — only that recovery was barred for that portion of the injury resulting from defendant’s alleged negligent acts more than one year before the filing of the suit. Our holding, in affirming the partial summary judgment, necessarily accepted this contention.

In sum, Garren represents the ultimate in legal incongruities: On the one hand, its holding correctly applies the common law continuing tort apportionment of damages rule (allowing recovery of damages resulting from the wrong inflicted within the period of limitations — one day); while on the other hand, its holding is grounded on the date of injury definition statutorily prescribed for workmen’s compensation cases (allowing full scheduled recovery regardless of the date of filing within the statutory period). The difference between one day and 364 days makes no difference in a workmen’s compensation case. In a non-workmen’s compensation case, for insidious disease (continuing tort), each day that expires from the last date of injury carries with it a bar to one day’s claim. How can anyone fail to understand that this is the precise holding of Agrícola?

It is evident that the trial bar of this State does not misunderstand it. So well is this distinction understood that it has never been contended, by the most ardent defense counsel, that the workmen’s compensation claimant who files his claim on the last day of the one-year period following his last day of exposure is entitled to one cent less in benefits than the equally disabled claimant who files on the first day following his exposure. But no defense lawyer worth his salt would fail to make this contention in the same factual context in a non-workmen’s compensation case. Indeed, this is precisely what was contended in Garren. That my power of articulation is so weak that I cannot explain this simple and elementary concept, and the factual context in which it is presented in Garren, is frustrating; but I tried.

My frustration is further compounded by the fact that this side issue is purely peripheral to the central policy issue here presented. It is not my purpose here to redebate the “discovery of injury” theory. With this policy issue already resolved, my efforts are directed solely to improving the quality of the opinion. In this same spirit, then, I suggest to the student of the law of torts that he read the majority opinion as if it contained no reference to the statutory date of injury definition or that such reference is surplusage and totally unnecessary to the opinion.

When so read, its holding is legally defensible. It says that each day of Plaintiff’s exposure constitutes a consummated injury; and, thus, the statute of limitations of one year commences to run on that date. As to Plaintiff’s knowledge of such injury, it is analagous to the surgical scalpel left in the operation incision. There is no chain of events yet to flow from the negligent act to subsequently inflict the injury. All elements essential to the accrual of the cause of action are completed contemporaneously with each exposure.

It is unlike the underground mine situation where the overlaying surface property is damaged ten years (for example) after the last alleged negligent act of the mine operator. There, the alleged negligence subsequently set into motion an additional chain of events (decaying timbers, rock falls, and, ultimately, surface breaks, etc.) which did not culminate in injury until some subsequent time. Thus, the accrual of the cause of action did not occur until the subsequent injury. But, here, the injury and the exposure occurred at the same time — not as a question of fact, but as a matter of law. The fact that the injury may progress, or that its progression may not be of sufficient severity to manifest itself until years after the last date of exposure, does not alter the fact that an injury requisite to accrual of the cause of action has occurred contemporaneously with the exposure.

The holding of the majority, when so interpreted, is logical and with precedential support; but it is not without serious and overwhelming problems. It reduces date of injury (and thus accrual of the cause of action) to a legal conclusion without regard to when the injury in fact occurs. The holding of the majority says, or it may be fairly interpreted to say, that one so exposed can bring his action within the year of last exposure and be entitled to at least nominal damages without medical proof of radiation damage — injury being presumed as a matter of law; or, having timely filed his claim, he may be able to delay trial to await the manifestations of injury and medical proof. But this, at least in part, is the other side of the policy question. In a purely philosophical vein, perhaps the holding will serve as an added impetus to those who advocate abolition of all radiation facilities. At any rate, for now Alabama’s victims of radiation exposure, whose injuries are not manifested within one year, are denied relief.

      . Garren refers to § 25-5-117 (old Tit. 26, § 313(42)), which relates to occupational diseases other than pneumoconiosis and radiation. Garren involves inhalation of minutes particles of cotton lint (byssinosis), a lung disease of the pneumoconiosis group covered by § 25-5-147, assuming the applicability of the Workmen’s Compensation Act.

      . The medical literature seems to indicate that, except in cases of extreme exposure (in which the injury is readily apparent), exposure victims, including those whose injury will ultimately result in total disability and death, show no pathological evidence of radiation damage until many years following the last exposure. Query: What constitutes injury? Who should make this determination: The legal community or the scientific community? The answer to this question is the point of our difference. The majority obviously feel more qualified to answer this query than I do.


source: Caselaw Access Project

author: BLOODWORTH, Justice. MADDOX, Justice

license: Public Domain

text:
    In re Guy SPARKS, Attorney at Law v. Robert M. PARKER, Presiding Judge, 7th Circuit, State of Alabama. Ex parte Guy Sparks and the Calhoun County, Alabama, Bar Association, etc., Petitioners.
    77-667, 77-687.
    Supreme Court of Alabama.
    Feb. 9, 1979.
    Rehearing Denied March 9, 1979.

      Guy Sparks, Richard B. Emerson, Anni-ston, for Calhoun County Bar Association, petitioners.
    William J. Baxley, Atty. Gen. and Rosa G. Hamlett, Asst. Atty. Gen., for respondent, opposed.
    William H. Morrow, Jr., Montgomery, Gen. Counsel for Alabama State Bar, ami-cus curiae.
   BLOODWORTH, Justice.

Petitioners-appellants seek a writ of mandamus requiring Judge Robert M. Parker, Presiding Judge of the Seventh Judicial Circuit, to vacate, modify or set aside his order of December 27, 1977, establishing an indigent defense system for the circuit and requiring him to vacate his order of June 28, 1978, denying appellants’ motion to vacate the original order, or, in the alternative, an appeal of the June 28, 1978, order denying the motion to vacate the original order.

Pursuant to §§ 15-12-2 and 15-12-3, Code of 1975, the order of December 27, 1977, was entered by Judge Parker with the advice and consent of the Indigent Defense Commission of the Seventh Judicial Circuit of Alabama and after consultation with the Indigent Defense Committee of the Calhoun County Bar Association. Under the indigent defense system instituted by the court, it was ordered that the “team system” be utilized for indigent felony appointments. Fifty-two eligible Calhoun County attorneys were appointed to four teams, each team consisting of thirteen attorneys and each team being eligible for appointment during three months of each year. In misdemeanor and juvenile cases, the order provided that attorneys would be appointed alphabetically.

In essence, appellants are challenging the orders establishing the indigent defense system in Calhoun County, seeking to have this Court determine that § 15-12-21 through § 15-12-23, Code of 1975, are unconstitutional. They argue that by compelling the service of court appointed attorneys for the compensation provided by these sections, these provisions of Alabama law are unconstitutional. (Sections 15-12-21 through 15-12-23 are attached as Appendix A.)

The first issue is whether mandamus or appeal is proper. We conclude that the proper procedure for review of the order below is appeal. Judge Parker issued the December 1977 order to fulfill a clear legal duty imposed upon him by §§ 15-12-2 and 15-12-3 to establish and administer an indigent defense system. Although mandamus will lie where there has been an abuse of discretion to compel the proper exercise thereof [Foshee v. State, 210 Ala. 155, 97 So. 565 (1923), Ex parte Morrow, 259 Ala. 250, 66 So.2d 130 (1953), East v. Todd, 284 Ala. 495, 226 So.2d 153 (1969)], the system established under the December order appears on its face to be fair and reasonable and cannot be characterized as arbitrary or capricious. Therefore, since the order was made within the statutory authority and within the judge’s discretion, mandamus will not lie but appeal is the proper remedy.

The second issue is whether the constitutional rights of indigent defendants to adequate representation are infringed by Judge Parker’s order establishing an indigent defense system as authorized by the laws of this state. In presenting this claim, appellants assert that if attorneys are underpaid, they cannot satisfactorily perform the constitutional guarantee of right to counsel. However, no facts or data are shown in the record in support of this contention. Moreover, Judge Parker indicated in his June 28, 1978, order that the trial court “has not observed any great disparity between appointed and retained counsel” and notes that “[t]he same attorneys that are appointed are also the ones that are retained.” Addressing a similar contention, the New Jersey court made the following observations in State v. Rush, 46 N.J. 399, 405-407, 217 A.2d 441, 444-445 (1966):

“As to the right of an accused, appellant contends that counsel, if unpaid, cannot by his performance satisfy the constitutional guarantee of the right to the aid of counsel. We know of no data to support a claim that an assigned attorney fails or shirks in the least the full measure of an attorney’s obligation to a client. Our own experience, both at the bar and on the bench, runs the other way. A lawyer needs no motivation beyond his sense of duty and his pride.
“Nor can it be said that assigned counsel are less qualified than counsel privately retained. As in other callings, some men acquire reputations for excellence. In numbers they are few, and sometimes it is not clear why fortune has chosen them alone. It is understandable that a defendant will seek a lawyer of wide repute if he can afford him, but of course the Constitution does not assure every man, indigent or not, that only a leader of the bar will speak for him. Even the State cannot command such representation; most criminal cases are prosecuted by young men who have yet to be acclaimed but who are not in the least unequal to their responsibility on that account. Nor does preeminence at the bar necessarily bespeak special experience in criminal matters. In the State courts, criminal work is not too rewarding financially. Very few specialize in that area, and overall the well known lawyers have had but sporadic exposure to it.
“Nor is prior experience in criminal matters essential. The law is a vast field and no man is in command of all of it. Lawyers, as do judges, move from scene to scene absorbing the special features of each. A capacity to that end goes to the essence of the practice of law. A lawyer’s training equips him for it, and his every experience sharpens that skill. And although a new scene may demand a greater initial effort, the newcomer may well bring a zeal and a freshness long lost to a tired or comfortable expert.
“Moreover, few cases really turn upon the skill of the advocate. The facts and the applicable law are quite compelling, and a lawyer who has both on his side will do well against anyone. No doubt a small number of cases are lost through lack of skill or poor preparation, but while the legal profession, like all others, suffers to a degree from the inept and the indolent, the phenomenon cannot be said to be related to a system of assignment of counsel. Further, illogical though it may be, judges tend to have a larger sense of responsibility for the performance of lawyers they assign than for the performance of counsel privately retained, and to the extent that this is true, there may be an advantage for the indigent accused.”

We are in full accord with these views. In that case, although the New Jersey Supreme Court determined for policy reasons that members of the bar would not be required to discharge the state’s obligation to provide indigent defendants with counsel, the New Jersey court did not find their system of assignment unconstitutional, holding, viz:

“We are satisfied our system of assignment yields representation equal to that obtained by defendants who retain their own counsel. This is not to say that another approach would not be more desirable. Rather our point is that what we have meets the constitutional demand, and to recur to the precise point counsel here seeks to make, we are satisfied that our assignment system does not fall short because assigned counsel are unpaid.” (Footnote omitted.) (Emphasis supplied.)

The third issue raised is whether the indigent defense system violates the constitutional rights of counsel appointed to defend indigents accused of crimes in that it contravenes Amendment 328(6.10) of the Alabama Constitution, requires the provision of services without just compensation [Ala. Const., Art. I, §§ 6, 13, 23; U.S.Const., 5th and 14th Amendments], compels involuntary servitude [Ala.Const., Art. I, § 32; U.S. Const., 13th Amendment], and violates constitutional guarantees of equal protection [U.S.Const., 14th Amendment].

We now proceed to discuss these issues. Appellants contend that the indigent defense system contravenes Amendment 328(6.10) of the Alabama Constitution of 1901 which states in part:

“Adequate and reasonable financing for the entire unified judicial system shall be provided. Adequate and reasonable appropriations shall be made by the legislature for the entire unified judicial system, exclusive of probate and municipal courts.”

Appellants argue that because the legislature has not provided the “adequate and reasonable financing” specified, attorneys should therefore be relieved of the duty to provide representation for indigent defendants. In Morgan County Commission v. Powell, 292 Ala. 300, 293 So.2d 830 (1974), this Court reiterated the principle of the separation of powers of government into three branches with separate functions, holding:

“Within their respective spheres each branch of government is supreme. State v. Stone, 224 Ala. 234, 139 So. 328. Judicial power and legislative power are coordinate, and neither can encroach upon the other. Ex parte Huguley Water System, et al., 282 Ala. 633, 213 So.2d 799. The authority to determine the amount of appropriations necessary for the performance of the essential functions of government is vested fully and exclusively in the legislature. Abramson v. Hard, 229 Ala. 2, 155 So. 590. Section 72, Alabama Constitution of 1901, provides: ‘No money shall be paid out of the treasury except upon appropriation ' made by law * * * >

It is therefore not within the sphere of the judicial branch to determine what appropriations are to be made although, of course, it would be within our purview to determine if the appropriations made are “adequate and reasonable” for the unified judicial system or so inadequate as to constitute the taking of property (services) without due process of law in the context of this ease. We do not find such to be the case on this appeal.

Turning now to the other constitutional claims advanced by appellants concerning the rights of appointed counsel under the system set up by Judge Parker’s order, it is helpful to examine briefly the history of the obligation of the attorney to represent indigents upon order of the court.

Representation of indigents upon court order is an ancient tradition of the legal profession, dating back to the fifteenth century in England and to pre-Revolutionary America. Counsel appointed to represent indigents have often received nothing for their services and have rarely received more than statutory fees which seldom adequately compensate a lawyer for even his expenditure of time, much less the value of his professional skill and attention.

In England, the obligation of the lawyer to serve upon court assignment apparently developed as a matter of common law. It was not until 1695 that there developed a statutory recognition of this obligation when a statute was passed requiring the courts to appoint counsel upon the request of a person accused of treason. 7 and 8 W.3, c.3, s.l (1695).

In colonial America, however, there appears to have been a more extensive statutory recognition of the obligation of counsel to represent indigents upon court order. Several statutes were passed requiring the assignment of counsel upon request of accused persons unable to retain counsel; these statutes presupposed the existence of an obligation on the part of attorneys to serve when assigned. Thus, a Pennsylvania statute of 1718 provides for assignment of counsel in a large number of capital crimes. 3 Statutes at Large of Pennsylvania 1712-1724, pp. 199, 201 (Busch, 1896). See Commonwealth ex rel. McGlinn v. Smith, 344 Pa. 41, 45 n. 1, 24 A.2d 1, 3 n. 1 (1942). A Delaware statute of 1709 and a South Carolina statute of 1731 provided for assignment of counsel in the case of any capital offense — a category which included many more offenses than it does today. See Bea-ney, Right to Counsel in American Courts 16-17 (1955).

After the Revolutionary War, there was additional statutory, as well as common law, recognition that counsel might be ordered to represent indigent accused persons. A New Jersey statute of 1795 required the courts in all cases of indictment to assign counsel to persons not able to procure counsel. See Beaney, op. cit. supra at 18-22. Finally, federal statutory recognition of the obligation of counsel to serve when assigned came in 1790, when, following the English act a hundred years before, Congress passed a statute requiring assignment of counsel at the request of any person accused of treason or other capital crime. 1 Stat. 118 (1790).

In addition to the ancient common law and statutory recognition of the obligation of attorneys to serve indigents, for a limited and often inadequate compensation, the great majority of courts which have passed on the question have denied claims of appointed counsel for nonstatutory just compensation, reaffirming the principle that representation of indigents under a court order without fee is a traditional obligation of the bar and therefore a condition under which lawyers are licensed to practice as officers of the court. See Posey & Tompkins v. Mobile County, 50 Ala. 6 (1873) and 21 ALR 3d 819.

Therefore, although the statutory compensation which exists in most states usually contains limitations which in most cases prevent a lawyer from receiving what his time is worth, constitutional standards of just compensation have generally been found inapplicable. A Fifth Amendment “taking” of property does not occur when the state simply requires an individual to fulfill a commitment he has made. Kunhardt & Co. v. United States, 266 U.S. 537, 45 S.Ct. 158, 69 L.Ed. 428 (1925); Hurtado v. United States, 410 U.S. 578, 93 S.Ct. 1157, 35 L.Ed.2d 508 (1973). An applicant for admission to practice law may rightfully be deemed to be cognizant of the traditions of the profession which he is joining, and to know that one of these traditions is that a lawyer is an officer of the court obligated to represent indigents for little or no compensation upon court order.

In Powell v. Alabama, 287 U.S. 45, 53, 53 S.Ct. 55, 65, 77 L.Ed. 158, 172 (1932), the United States Supreme Court found that attorneys were obligated to accept compulsory appointments to defend indigent defendants, stating:

“Attorneys are officers of the court, and are bound to render service when required by such appointment.”

Reinforcing this view of the lawyer’s obligation to represent indigent defendants is the unique position of the Alabama Bar Association and the Board of Bar Commissioners as this Court pointed out in Wright v. Turner, 351 So.2d 1, 4 (Ala.1977):

“Members of the Board of Bar Commissioners do have some functions which derive directly from legislative enactments. See Tit. 46, § 25, Code of Alabama 1940. It is clear, however, from the terms of the Code that their duties are, for the most part, dependent upon Supreme Court approval.
“This dependency was underscored in the opinion authored for the Court by Justice Shores in Board of Commissioners, Alabama State Bar v. State ex rel. Baxley, 295 Ala. 100, 109, 324 So.2d 256, 262 (1975): ‘Although the Board (of Bar Commissioners) was created by the legislature, it was created as an arm to this court and any action by the Board is subject to review or approval by this court. The legislature has not created an entity which is not subject to control or regulation, the Board is subject to the control of this court.”

As an “arm of the court” the Board of Bar Commissioners, and consequently the members of the Alabama State Bar as well, enjoy certain state privileges. Although the members of the Board receive neither salary nor emolument by virtue of their membership on the Board, they do receive reimbursement of actual expenses from the state and the members of the state bar benefit from the services so provided. A concomitant obligation upon the bar of this state is to furnish legal services to indigents at the statutory compensation provided in order to enable the state to discharge its duty to provide adequate representation for indigent defendants imposed upon the state by Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 733 (1963); U. S. v. Wade, 338 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970); Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967); Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973); Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972); Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963); Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977); In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967) (juveniles).

While the furnishing of services without just compensation might not be demanded of a citizen who is not an officer of the court or who does not enjoy special privileges from the state or who is not otherwise required to fulfill a commitment to the state, members of the Alabama Bar are in a unique position and, for this reason, are obligated to render their services for limited compensation.

Having traced some of the historical obligation of the attorney to represent indigents and having examined the unique position of the Alabama State Bar due to privileges enjoyed from the state, we now proceed to consider the four cases on which appellant places heavy reliance, namely: State ex rel. Partain v. Oakley, 227 S.E.2d 314 (W.Va.1976); State v. Green, 470 S.W.2d 471 (Mo.1971); State v. Rush, 46 N.J. 399, 217 A.2d 441 (1966); and Smith v. State, 394 A.2d 834 (N.H.1978).

At the outset we note that in none of the first three cases did the highest appellate courts of either West Virginia, Missouri, or New Jersey hold that the asserted constitutional rights had been violated. Instead, in each instance, for policy considerations, the courts ordered that, effective approximately one year from the date of each opinion, attorneys should be relieved of the duty of accepting compulsory appointments to represent indigents if the respective state legislatures failed to provide assistance either by providing public defenders or by providing additional compensation. In Smith, the New Hampshire Supreme Court (in an opinion authored by Justice Grimes) specifically held that the people of New Hampshire decided that the burden of paying the cost of indigent defense should be borne by the people as witnessed by their adoption of the constitutional provision which provides in pertinent part, viz:

“. . . Every person held to answer in any crime or offense punishable by deprivation of liberty shall have the right to counsel at the expense of the state if need is shown . . .

The constitutional convention’s history of that provision shows it was adopted to place the cost on the State and to relieve the attorney of his historical obligation.

Moreover, in the instant case, there is insufficient evidence of record to reach a result similar to the courts’ decisions in Oakley, Rush, and Green.

In State ex rel. Partain v. Oakley, for example, much more evidence was furnished the West Virginia court concerning the burden imposed on the attorneys of that state. The West Virginia Bar Association supplied data descriptive of the caseload per lawyer by appointment in the various circuits of that state. The West Virginia court, based on that information, found that those attorneys were not suffering an oppressive loss of income by virtue of their representation of indigents but, because the situation was rapidly approaching such a state, the court stated that an order would subsequently be entered relieving attorneys from their duty to represent indigents.

Comparable information to that on which the West Virginia court based its policy decision is not of record in the present case. The record contains only affidavits of Calhoun County attorneys, most of which state only the percentage of time each attorney spent on indigent cases making no reference to caseload or actual hours worked on such cases.

This Court appreciates and is most sensitive to the plight of the attorneys of Calhoun County, shared by their brother and sister attorneys throughout the state, and finds that the failure of the legislature to provide adequate funds to compensate attorneys to the extent of the true value of their services is unjustifiable. Nevertheless, the statutes in question do not infringe upon the constitutional rights of appellants for the reasons we have given and the June 28, 1978, order denying appellants’ motion to vacate, modify or set aside the order establishing the circuit’s indigent defense system is affirmed.

MANDAMUS DENIED. APPEAL AFFIRMED.

All the Justices concur.

On Rehearing

APPLICATION FOR REHEARING OVERRULED.

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

MADDOX and FAULKNER, JJ., dissent.

MADDOX, Justice

(dissenting).

After further reflection, I am convinced the majority opinion is wrong. I hereby withdraw my concurrence with it.

The majority’s opinion is premised upon the erroneous concept “that representation of indigents under a court order without fee is a traditional obligation of the Bar and therefore a condition under which lawyers are licensed to practice as officers of the court.” There may be an “obligation of attorneys to serve indigents,” but, at most, it is only a moral obligation, not a legal one, unless the attorney is directed to perform such services by a court. If so directed, however, are attorneys required to serve without compensation? I think not. In any event, several attorneys have challenged the statement that they agreed to perform services free of charge as a condition of their licensure. They are now joined by the Alabama State Bar. The Alabama State Bar, in an amicus curiae brief in support of the application for rehearing, states:

“As was stated in the case of County of Dane v. Smith, [13 Wis. 585] Supreme Court of Wisconsin (1861), ‘We do not believe that the legislature have the power generally to say to the physician, the surgeon, the lawyer, the farmer, or anyone else, that he shall render this or that services, or perform this or that act in the line of his profession or business without remuneration.’ ”

I agree. Can the state appropriate the services of a physician, a surgeon, a farmer or anyone else, without compensation? The answer is obviously in the negative. Neither should attorneys be forced to perform services as a public defender without just compensation.

I would grant rehearing.

FAULKNER, J., concurs.

APPENDIX A

§ 15-12-21. Appointment and compensation of counsel — Trial court.

(a) If it appears to the trial court that such defendant is entitled to counsel, that such defendant does not expressly waive the right to assistance of counsel and that such defendant is not able financially or otherwise to obtain the assistance of counsel, the court shall appoint counsel to represent and assist the defendant; and it shall be the duty of such appointed counsel, as an officer of the court and as a member of the bar, to represent and assist said defendant.

(b) Counsel appointed in such cases shall be entitled to receive for their services a fee to be fixed by the trial court. The amount of such fee shall be based on the number of hours spent by the attorney in working on such case and shall be computed at the rate of $20.00 per hour for time expended in court and $10.00 per hour for the time reasonably expended out of court in the preparation of such case. Such counsel shall also be entitled to be reimbursed for any expenses reasonably incurred in such defense. The total fees and expenses to any one attorney in any one case, including fees for services rendered in preliminary hearing and in ancillary proceedings, shall not, however, exceed $500.00.

(c)Within a reasonable time after the conclusion of the trial or ruling on a motion for a new trial or after an acquittal or other judgment disposing of the case, counsel shall submit to the trial court a bill for services rendered, not to exceed the amount provided in subsection (b) of this section, and such bill, if approved by the trial court, shall be submitted by the clerk of the court to the state comptroller for audit and allowance and, if approved by the comptroller, shall be forwarded to the state treasurer for payment. (Acts 1963, No. 526, p. 1136, §§ 2, 3; Acts 1971, No. 2420, p. 3851.)

§ 15-12-22. Same — Appeals.

(a) In all criminal cases wherein a defendant has been convicted of a serious offense in which an appeal lies directly to the supreme court or court of criminal appeals and the defendant expresses his desire to appeal such conviction, the court shall cause to be entered upon its minutes a recital of notice of appeal, and the court shall then ascertain and make findings in reference to the appeal concerning those items listed in section 15-12-20.

(b) If it appears that the defendant desires to appeal and is unable financially or otherwise to obtain the assistance of counsel on appeal and the defendant expresses the desire for assistance of counsel, the trial court shall appoint counsel to represent and assist the defendant on appeal. The presiding judge of the court to which the appeal is taken shall have authority to appoint counsel in the event the trial court fails to appoint and in the event it becomes necessary to further provide for counsel. It shall be the duty of such counsel, as an officer of the court and as a member of the bar, to represent and assist such defendant in the appeal.

(c) Counsel appointed for the appeal shall be entitled to receive for their services a fee to be" fixed by the appellate court. The amount of such fee shall be based on the number of hours spent by the counsel in working on such appeal and be computed at the rate of $20.00 per hour for time expended in court and $10.00 per hour for time reasonably expended out of court in the preparation of such appeal. Such counsel shall also be entitled to be reimbursed for any expenses reasonably incurred in preparing and handling such appeal. The total fees and expenses awarded to any one attorney in any one case, including fees on the trial of the case in the lower court, on the appeal and in any ancillary proceedings, shall not, however, exceed $1,000.00.

(d) Within a reasonable time after the disposition of the appeal, counsel shall submit to the appellate court a bill for services rendered, not to exceed the amount provided in subsection (c) of this section, and such bill, when approved by the presiding judge or chief justice of the appellate court, shall be submitted by the clerk of the appellate court to the state comptroller for audit and allowance and, if approved by the comptroller, forwarded to the state treasurer for payment. (Acts 1963, No. 526, p. 1136, §§ 4, 5; Acts 1971, No. 2420, p. 3851.)

§ 15-12-23. Same — Postconviction proceedings.

(a)In proceedings filed in the district or circuit court involving the life and liberty of those charged with or convicted of serious criminal offenses, including proceedings for habeas corpus and coram nobis or other postconviction remedies, and in appeals, post-trial motions in such proceedings, the trial or presiding judge or chief justice of the court in which such proceedings may be commenced or pending may appoint counsel to represent and assist those persons so charged or convicted if it appears to the court that the person charged or convicted is unable financially or otherwise to obtain the assistance of counsel and desires the assistance of counsel and it further appears that counsel is necessary in the opinion of such judge to assert or protect the rights of such person.

(b) It shall be the duty of such counsel as provided in subsection (a) of this section to represent and assist the person in such proceeding.

(c) The counsel appointed in such proceedings shall be entitled to receive for his services a fee to be fixed by the judge appointing him. The amount of such fee shall be based on the number of hours spent by counsel in working on such proceedings and be computed at the rate of $20.00 per hour for time expended in court and $10.00 per hour for time reasonably expended in preparation of such proceedings; provided, that the total amount of compensation to counsel for such proceedings shall not exceed $300.00, nor shall the total amount awarded to any one attorney for any one case, including fees on the trial of the case in the lower court, on the appeal and in any ancillary proceedings, exceed $1,000.00.

(d) Claim for such fee shall be submitted, approved and paid in the same manner as provided in subsection (d) of section 15-12-22. (Acts 1963, No. 526, p. 1136, § 7; Acts 1971, No. 2420, p. 3851.)


author:
SHORES, Justice.
      BEATTY, Justice

text:
    Martha BONDS v. Jesse BROWN, Director of the Arab Hospital, a corp., et al.
    77-696.
    Supreme Court of Alabama.
    March 9, 1979.

      F. L. Treanor, Jr., Huntsville, for appellant.
    H. Nelson Camp, Huntsville, for appel-lees.
   SHORES, Justice.

Martha Bonds brought an action for negligence and wantonness against Arab Hospital, a Corporation, and its administrator. The case went to trial before a jury. At the conclusion of plaintiff’s evidence, the hospital requested a directed verdict or, in the alternative, summary judgment. The trial court indicated its willingness to grant a directed verdict but allowed the plaintiff to amend her complaint to include a claim for relief based on an alleged breach of contract. By her amended claim, plaintiff alleged that the hospital had agreed to provide her “safe and sufficient surroundings including room, bath facilities and board,” and breached this contract by failing to properly maintain the bathroom. The trial court then granted a directed verdict for the defendants on all counts. Plaintiff appealed.

The accident occurred on March 31, 1976, between 6:00 and 7:00 p. m., in the bathroom adjacent to plaintiff’s hospital room. She had been a patient at the hospital for eleven days prior to the day of her accident. The bathroom, in which she fell, opened to her room and to an adjoining room used by other patients.

Testimony showed that the plaintiff was helped to the bathroom door by her son, Terry. As she entered the bathroom, she said she lost her footing and fell. She attributed her fall to the slippery condition of the tile floor. After she fell, she observed the general condition of the bathroom and testified that the floor had a soapy substance on it, which she believed to be shaving cream. The plaintiff had used the bathroom regularly without incident during her entire stay in the hospital, and had used it approximately two hours before she fell, at which time it was clean. The plaintiff and her son, who was with her for an hour or more before she fell, agreed that they heard no activity in the bathroom for a period of at least two hours prior to her accident.

On a defendant’s motion for directed verdict, the trial court must view the evidence in the light most favorable to the plaintiff. Vintage Enterprises, Inc. v. Cash, 348 So.2d 476 (Ala.1977). Having done so, it is proper to grant the directed verdict in accordance with ARCP 50(a), only where the strongest tendencies of all the evidence fall short of raising a reasonable inference of the mov-ant’s liability. Coburn v. American Liberty Ins. Co., 341 So.2d 717 (Ala.1977); Alabama Power Co. v. Taylor, 293 Ala. 484, 306 So.2d 236 (Ala.1975). If, at the close of all the plaintiff’s evidence, the proof, taken at face value, did not present at least a scintilla of evidence on each of her claims for relief against either of the defendants, a directed verdict was proper.

The plaintiff contended her injuries were caused by the negligence of the hospital in maintaining the bathroom. Specifically, she claims the hospital breached its duty to exercise reasonable care to provide and maintain reasonably safe premises for her use as a patient. See, e. g., Foodtown Stores, Inc. v. Patterson, 282 Ala. 477, 213 So.2d 211 (1968); May-Bilt, Inc. v. Deese, 281 Ala. 579, 206 So.2d 590 (1967); Delchamps, Inc. v. Stewart, 47 Ala.App. 406, 255 So.2d 586 (1971).

In slip and fall cases, the plaintiff-invitee has the burden of proof on the issue of the negligence of the defendant-invitor. Delchamps, Inc. v. Stewart, supra.

In S. H. Kress & Co. v. Thompson, 267 Ala. 566, 569, 103 So.2d 171, 174 (1957), that burden was defined as follows:

“. . . So to prove negligence on the part of the defendant it is necessary to prove that the foreign substance was on the floor a sufficient length of time to impute constructive notice to the defendant, or that he had actual notice, or that he was delinquent in not discovering and removing it. In the absence of such proof, the plaintiff has not made out a prima facie case that the defendant was negligent in the maintenance of its floors.

In the instant case, plaintiff offered no evidence that the hospital had actual notice of the condition she claims existed in the bathroom. She offered no evidence from which it might be reasonably inferred that the hospital was delinquent in not discovering and removing the offending substance from the bathroom floor. Finally, no evidence was offered to support a claim that the foreign substance was on the floor a sufficient length of time to impute constructive notice of its presence to the hospital. See: Great Atlantic & Pacific Tea Co. v. Bennett, 267 Ala. 538, 103 So.2d 177 (1958); Great Atlantic & Pacific Tea Co. v. Weems, 266 Ala. 415, 96 So.2d 741 (1957); Great Atlantic & Pacific Tea Co. v. Popkins, 260 Ala. 97, 69 So.2d 274 (1953).

Because the plaintiff failed to present any evidence from which it might reasonably be inferred that the hospital was on notice of the bathroom’s condition, the trial court properly granted the directed verdict in favor of the hospital on the negligence claim. Coburn v. American Liberty Ins. Co., supra.

The court was equally correct in granting a directed verdict in favor of the defendants on the attempted contract claim. There was no evidence offered to support a claim for relief on the contract theory. In fact, the amended complaint did no more than restate in contract terms a breach of duty imposed by law, i. e., it simply restated the negligence claim. See: Berry v. Druid City Hospital Board, 333 So.2d 796 (Ala.1976); Green v. The Hospital Building Authority of City of Bessemer, 294 Ala. 467, 318 So.2d 701 (1975).

We find no error and affirm the judgment appealed from.

AFFIRMED.

TORBERT, C. J., and BLOODWORTH, MADDOX, FAULKNER, JONES and AL-MON, JJ., concur.

EMBRY and BEATTY, JJ., dissent.

BEATTY, Justice

(dissenting):

This case presented both a tort and contract claim. I believe the directed verdict on the tort claim was proper, however I am unable to agree that there was no scintilla of evidence present to create a jury question on the contract claim.

The contract claim alleged that the hospital had agreed to provide the plaintiff “safe and sufficient surroundings including room, bath facilities and board,” and had breached this contract by failing to properly maintain the bathroom. Under our rule of notice pleading this together with the demand for judgment was sufficient to state a claim. Rules 8(a), 84, Form 3, ARCP. The majority opinion states, however, “the amended complaint did no more than restate in contract terms a breach of duty imposed by law, i. e., it simply restated the negligence claim.” I do not understand the law to be that one may not base a contract upon a duty that exists legally, nor do I believe it is unheard of to ask for relief in the alternative. See Rule 8(a), ARCP.

It takes no citation of authority to underscore the fact that hospitals do not give their services away. They undertake to provide them in return for a remuneration. Accordingly, when a patient enters into a relationship with a hospital he has a right to assume certain conditions of that relationship which he and the hospital understand to be basic. That a contract may be in fact formed here is not fantasy, but rather obvious.

The majority held that “[tjhere was no evidence offered to support a claim for relief on the contract theory.” I believe however that the evidence adduced at trial could support inferences that the plaintiff was accepted into the hospital for a consideration, that the hospital in fact impliedly agreed by accepting her to maintain the premises in a safe and sufficient condition and that a breach of that contract resulted in her injury. We have held before that such inferences are sufficient to send the case to a jury, and indeed sufficient to support a judgment. See Berry v. Druid City Hospital Board, 333 So.2d 796 (Ala.1976).

In Berry, supra, we reversed a trial court’s entry of judgment N.O.V. The complaint in that case presented two counts on a contract claim. These counts stated in pertinent part:

“. . . Plaintiff further alleges that defendants entered into an implied contract with the plaintiff wherein and whereby, for a consideration, the defendants impliedly contracted, undertook, promised or agreed to treat, observe and care for the said plaintiff’s condition. Plaintiff further alleges that the said defendants did not perform or fulfill its implied contract properly to treat or care for the said plaintiff or to assist in the treatment of her condition, or to give the plaintiff the required treatment and needed medication; but on the contrary, the defendants in violation of its contract allowed the plaintiff to remain in the emergency room in an unattended condition and that the plaintiff was thereby permitted to fall off the stretcher upon which she had been placed. . .
“. . . that the defendants entered into an implied contract with the plaintiff wherein and whereby, for a consideration, the defendants impliedly contracted, undertook, promised or agreed to treat, observe and care for the said plaintiff’s sick condition. Plaintiff further alleges that said defendant after having accepted said contract did not fulfill or perform its contract to treat, nurse, observe and care for said plaintiff as impliedly agreed, or to give the plaintiff the service agreed to, but on the contrary, in violation of the terms of said contract, the defendants failed to give the plaintiff assistance, supervision and attention, and left the plaintiff on a stretcher unattended in the emergency room, all in violation of the terms of the implied contract . . . ”

This complaint, the plurality opinion stated, allowed the inference that the plaintiff had been “accepted in the emergency room for treatment . that there was an implied contract, via the defendant’s conduct in accepting the plaintiff for treatment, to give her attention [while in the emergency room] and that breach of this contract caused the plaintiff damage.” A special concurrence, in which four justices concurred, states that Count One of the complaint was “almost exactly” like the complaint in Paul v. Escambia County Hospital Board, 283 Ala. 488, 218 So.2d 817 (1969). Because, they implied, there was a remedy in Paul, there was a remedy in Berry, supra, as well. It is clear then, that a majority of this Court in Berry agreed that a claim was sufficient where there can be inferred from the evidence an implied contract, its breach, and damage to the plaintiff from that breach. In light, then, of Berry supra, Paul, supra, and that case law which requires the Court on such a motion to indulge every inference in favor of the nonmoving party, Alford v. City of Gadsden, 349 So.2d 1132 (Ala.1977); Beloit Corp. v. Harrell, 339 So.2d 992 (Ala.1976), I would reverse and remand this implied in fact contract claim to the jury.

Moreover, I see no reason that a contract in law could not be implied in this situation. The reasoning behind the refusal of this Court to so imply has never been really explained. See Berry v. Druid City Hosp. Bd., 333 So.2d 796 (Ala.1976); Green v. Hospital Building Authority of City of Bessemer, 294 Ala. 467, 318 So.2d 701 (1975). One voice on this Court has steadfastly maintained that the shyness we exhibit for a contractual duty implied in law results from a misreading of Garig v. East End Memorial Hosp., 279 Ala. 118, 182 So.2d 852 (1966). See Green, supra (Embry dissenting); Em-bry, “Ex Contractu Actions Against Public Hospitals for Personal Injury,” 38 Alabama Lawyer 305 (July, 1977) at 308. In his dissents to Green, supra, and Lorence v. Hosp. Bd. of Morgan County, 294 Ala. 614, 320 So.2d 631 (1975), Justice Embry stated

[t]he breach of duty imposed by law may be tortious or tortious breach of contract; express, implied by law or implied in fact, either of which is subject to proof and the remedy is a matter of election by the party complaining .

Quoting in Green, supra, from 66 Am. Jur.2d, Restitution and Implied Contracts, § 2, (1973) at 942-943, Justice Embry stated:

The liability exists from an implication of law that arises from the facts and circumstances independent of agreement or presumed intention. The intention of the parties in such case is entirely disregarded, while in cases of express contracts and contracts implied in fact the intention is of the essence of the transaction. As has been well said, in the case of actual contracts the agreement defines the duty, while in the case of quasi-contracts the duty defines the contract. .

Apart from my own views that the facts of this case would sufficiently present an issue of contract implied in fact, I agree with Justice Embry’s views that a duty implied in law might be found from our inspection of those well defined services which a patient expects to receive and hospitals expect to render. Green, supra. I believe that in this case a duty of due care in the maintenance of the bathrooms could be implied. It is then for the jury to decide whether or not this contracted duty was breached by the hospital in this case. For these reasons I would reverse the directed verdict on the contract claim and return the case to the jury.

EMBRY, J., concurs.

      . While the present case involves a motion for directed verdict and not a motion for judgment N.O.V., the precedential value of cases viewing a motion of one kind for that of the other is excellent. This follows because both motions test the sufficiency of evidence in the same way, that is by use of the “scintilla rule.” Rule 50(e), ARCP; McLarty v. Wright, 56 Ala.App. 346, 321 So.2d 687 (Civ.App.1975).


author: BEATTY, Justice.

text:
    CARBINE CONSTRUCTION COMPANY, INC., a corporation v. Bill COOPER, Individually and d/b/a Bill Cooper Roofing Company.
    78-31.
    Supreme Court of Alabama.
    March 9, 1979.
    Gary P. Smith, Birmingham, for appellant.
    No brief for appellee.
   BEATTY, Justice.

This is an appeal from a final judgment for the plaintiff, and involves the review of the trial court’s discretionary authority in awarding expenses incurred in taking a deposition.

Neither the facts nor the issue is disputed. Carbine Construction Company, Inc. (Carbine) was employed as general contractor by Eltinge, Grazidio and Sampson Development Company (EGSmetro), the owners, to construct certain buildings in a shopping center. Bill Cooper Roofing Company (Cooper) became the sub-contractor who agreed to construct the roofs of those buildings. After Cooper had commenced work on the roofs it was discovered that he had mistakenly used materials which did not comply with the specifications. A sample of the roof work was sent to a Birmingham testing laboratory, apparently on the authority of the owners, and the results of that test then were sent to Richard Klep-per, an independent roofing consultant located in Sacramento, California, who was employed by EGSmetro.

After a dispute arose between the parties Cooper brought an action for damages against Carbine and EGSmetro. While the case was pending Carbine decided to depose Klepper because of his knowledge of material facts. The deposition was to be taken in San Francisco. The plaintiff, Cooper, moved for a protective order, and following a hearing on the motion the trial court entered an order containing the following:

In consideration of the matters presented, it appears that the expenses in taking the witness’ deposition in San Francisco, California, together with the time and expense of the Defendant’s attorney and the Plaintiff’s attorney incurred in traveling to California would be significantly greater than the expense incurred by the said Defendant in taking the witness’ deposition in Birmingham, Alabama. The Court is, therefore, of the opinion that if the said Defendant elects to take the witness’ oral deposition in San Francisco, California, the expense thereof to the Plaintiff will constitute an undue burden and expense to the said Plaintiff unless the Plaintiff’s attorney’s expenses are reimbursed by the said Defendant.
It is, therefore, ORDERED ADJUDGED and DECREED by the Court as follows:
1. In the event that the Defendant, Carbine Construction Company, elects to take the oral deposition of Mr. Richard Klepper in San Francisco, California, as noticed, the said Defendant shall reimburse the Plaintiff for the Plaintiff’s attorney’s reasonable expenses incurred by him in attending said deposition.

The sole question on this appeal is whether the trial court abused its discretion in requiring that Carbine pay the plaintiffs lawyer’s expenses in making the California trip to take the deposition of EGSmetro’s expert witness. We hold that it did.

Upon a showing of good cause, our Rule 26(c), ARCP on discovery, by its express terms allows “the court in which the action is pending . . . may make any order which justice requires to protect a party or person from . . . undue burden or expense, . . . ” We have recognized, moreover, that a trial court possesses a broad discretion in the discovery process, even though it is a reviewable discretion. Campbell v. Regal Typewriter Co., 341 So.2d 120 (Ala.1976). In a given case the equities of the parties may require an adjustment in the relative costs, expenses and attorneys fees. Any order allowing such an adjustment, however, is conditioned upon a showing of good cause, that is must be based upon “a clear showing of the necessity or justification therefor. . . . ” See generally, 23 Am.Jur.2d, Depositions and Discovery, § 250 (1965) at 639.

The matter of protective orders involving extraterritorial expenses is not a novel one in federal courts. In Machinoimport v. Clark Equipment Co., 11 F.R.D. 55 (S.D.N.Y.1951) a corporate plaintiff had exercised its option to examine the officers and employees of the corporate defendant. The defendant then served notice to depose in New York the plaintiff’s officers and employees, these people being residents of the U.S.S.R. The plaintiff moved for an order allowing it expenses and attorneys fees. After weighing the equities of the parties, and taking into consideration the nature of the case and the relative conveniences, the court denied the motion, stating at 60:

It [plaintiff] is seeking a substantial recovery and should bear the necessary expense of litigation. As it has been aptly stated: “Every law suit is burdensome and expensive to the party litigants, but where it is found necessary to bring about a fair, impartial and thorough administration of justice, all sources of information must be made available regardless of expense or inconvenience resulting therefrom.” (citations omitted)

Continental Casualty Co. v. Houdry Process Corp., 18 F.R.D. 75 (E.D.Pa.1955) is a similar case. A building contractor failed to complete a job in Oklahoma so the plaintiff, which had issued a completion bond, finished the job at a loss and sued the manufacturer of the unit which was to have been installed. The plaintiff in Pennsylvania gave notice of its intent to depose two of the contractor’s employees in Texas and two of the owner’s officers in Oklahoma. The defendant moved for a protective order requiring plaintiff to pay the expenses of its counsel in connection with these depositions, having local counsel at the deposition concededly being an unsatisfactory arrangement. In denying the request the court said at 76:

[I]t seems perfectly obvious that if the plaintiff had not first noticed the taking of the depositions of the witnesses here involved, the defendant would have been almost compelled to have done so. The fact is that neither party can prepare or try his case satisfactorily without their testimony. The depositions of these witnesses, or some of them, will no doubt be offered at the trial, probably by the plaintiff, but nevertheless the discovery feature is an important one and will undoubtedly be useful to both parties.

The court also noted an absence of marked hardship to the defendant.

Other federal cases on the question have reached the same result, that is, they have refused relief under such motions absent a showing of special circumstances, e. g., Interlego A.G. v. Leslie-Henry Co., 32 F.R.D. 9 (M.D.Pa.1963) or unusual or impelling circumstances. Towe v. Sinclair Refining Co., 188 F.Supp. 222 (D.Md.1960).

No such unusual, special or impelling circumstances appear in this case. The trial court simply concluded that the expenses of the San Francisco deposition, together with the plaintiffs and defendant’s lawyers’ time and expenses in travel there, would be greater than the expense incurred by the defendant Carbine’s taking the witness’ deposition in Birmingham. Since there is nothing in the record to the contrary, we may presume that the ordinary state of affairs existed and that the defendant Carbine was willing to pay the trip expenses and fees of its own lawyer. That aspect aside, the trial court had before it the relative expenses of an expert’s trip to Alabama (he preferred California but would have come to Birmingham at EGSmetro’s request) or the plaintiff’s lawyer’s trip to San Francisco. There is nothing in the record or in the trial judge’s order to suggest anything unusual or impelling in that relationship, or to show that the expense of one was appreciably different from the other. Indeed, both sides would have benefited in their preparation from the witness’ testimony and thus their individual expenses would have been justified, for aught that appears.

It follows that the trial court’s order requiring the defendant Carbine to pay the plaintiff Cooper’s lawyer’s expenses in taking the deposition of EGSmetro’s expert witness was an abuse of discretion. Accordingly, the case is reversed and remanded to the trial court for an order not inconsistent with this opinion.

REVERSED AND REMANDED.

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


author: WRIGHT, Presiding Judge.

text:
    Patricia MOSES et al. v. PITNEY BOWES, INC., a corporation.
    Civ. 1467.
    Court of Civil Appeals of Alabama.
    Sept. 27, 1978.
    Rehearing Denied Nov. 1, 1978.

      James L. Shores, Jr. and R. Michael Booker, Birmingham, for appellants.
    James C. Stivender, Jr., of Inzer, Suttle, Swann & Stivender, Gadsden, for appellee.
   WRIGHT, Presiding Judge.

This is a workmen’s compensation case. Plaintiffs appeal from judgment denying compensation for the death of the employee under § 25-5-51, Code of Alabama (1975) for that his death was caused by his intoxication and willful violation of the law. The issue on appeal is whether there is evidence to support the judgment.

The evidence was heard by the judge without a jury. As in all workmen’s compensation cases, our review of the trial court’s judgment is by certiorari and thus limited to questions of law. Agricola Furnace Co. v. Smith, 239 Ala. 488, 195 So. 743 (1940). We look to determine only if there is any legal evidence to sustain the judgment. Glover v. Howell Plywood Co., 50 Ala.App. 22, 276 So.2d 608 (1973). It is not within our province to determine the weight to be given the evidence. That is for the trial court. Goodyear Tire and Rubber Co. of Alabama v. Downey, 266 Ala. 344, 96 So.2d 278 (1957).

There was evidence tending to show the following: Deceased employee was employed by defendant as a sales representative in the Gadsden office. He was killed on November 7, 1975 when the automobile he was driving struck a bridge abutment. The automobile first came in contact with the bridge approach guard rail on the right side of the highway at a distance of 186 feet from the bridge. It scraped along the rail, came off for a distance and hit it again, scraped for a distance, came off and swerved abruptly to the left across two paved traffic lanes into the bridge. There were tire burns left on the pavement when the automobile suddenly changed direction before striking the bridge. There were no marks indicating application of brakes at any time. The impact demolished the front of the automobile and broke the large steel reinforced concrete abutment several feet down toward its base. The estimated speed at time of impact was 60 to 65 miles per hour.

The scene of death was only a short distance from a lounge where alcoholic beverages were served. The deceased had been in the lounge within an hour or hour and a half prior to his death. He was in the lounge for about an hour at noon and had two miniatures of bourbon (3.2 oz.) mixed with 7-Up. He was served no food.

A physician had placed the deceased in a hospital some two weeks prior to his death and had treated him for acute alcoholism. Tests indicated that his liver was damaged and he was instructed to refrain from alcoholic drink. Valium was prescribed to ease withdrawal difficulties. It was the opinion of the doctor that the deceased was considerably more susceptible to the intoxicating' effects of alcohol because of his liver condition.

There was offered into evidence a properly certified report of the results of a blood alcohol test performed by a state toxicologist upon a sample of blood taken from the body of the deceased. The sample had been taken by a licensed mortician who is also the coroner of Blount County. The request for the taking of the sample came from the coroner of Etowah County where deceased was killed. After objection and argument, the report of the test was accepted in evidence.

Plaintiffs have stated the issues on appeal to relate to the admissibility of the report of the results of the blood test. Though plaintiffs subdivide the primary issue into three, we consider there is only one basic issue stated, i. e.: Is a report of the result of a blood test for intoxication made by a state toxicologist admissible in evidence in any case unless the blood was taken by persons authorized, and tested in the manner provided by § 32-5-193, Code of Alabama 1975?

Though plaintiffs have stated this to be the issue on appeal, we do not find it a dispositive issue even if the admission of the report was erroneous. It is our decision that the evidence we have related, together with its reasonable inferences, is, without consideration of the report of intoxication, sufficient to support the judgment of the trial court. We therefore pretermit determination of whether the report was erroneously received in evidence until a more appropriate time. Defense Ordinance Gorp. v. England, 52 Ala.App. 565, 295 So.2d 419 (1974). Rule 61, ARCP, Rule 45, ARAP.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.