author: HOLMES, Judge.

text:
    Andrew John STRASZEWICZ v. Kenneth Robert GALLMAN.
    Civ. 1190.
    Court of Civil Appeals of Alabama.
    Aug. 31, 1977.

      Harry L. Hopkins, Birmingham, for appellant.
    Ira D. Pruitt, Jr., Livingston, for appel-lee.
   HOLMES, Judge.

-This is an appeal'by Andrew Straszewicz, the natural father of Lucy Seale Straszew-icz (Seale), from a judgment rendered by the Probate Court of Sumter County, wherein it was found that the appellant had abandoned his child.

The single issue before this court is whether the evidence sustains the trial court’s finding of abandonment. We hold that it does not and, accordingly, reverse and remand.

Tit. 27, § 3, Code of Alabama 1940, in pertinent part, provides that consent of a child’s parents must be obtained for its adoption, unless the parents have abandoned the child. Seale’s stepfather, appel-lee herein, brought this action in the lower court alleging abandonment by Mr. Strasz-ewicz in order to enable the stepfather to proceed with Seale’s adoption. Mr. Strasz-ewicz had refused to consent to the adoption.

The record discloses the following:

Mr. Straszewicz and Mrs. Gallman were married in Livingston, Alabama, on July 22, 1967. Their daughter, Seale, was born on September 21, 1969, with a cleft lip. Operations have subsequently remedied this condition. At the time Seale was born, Mr. Straszewicz was an enlisted man in the United States Air Force, serving at Eglin Air Force Base in Fort Walton Beach, Florida.

In September of 1971, the parties were divorced and custody of Seale was awarded to Mrs. Gallman. The divorce decree ordered Mr. Straszewicz to make monthly child support payments of $100 and additionally granted him visitation periods with Seale at all convenient times during daylight hours, the minimum visitation being every other Saturday. Mrs. Gallman and Seale lived with her parents in Livingston, Alabama, subsequent to the divorce. While stationed at Eglin, Mr. Straszewicz did not exercise his visitation rights. Evidence revealed that before the divorce, he had not been particularly affectionate and was somewhat inattentive toward the. child.

In December of 1971, he was transferred to Thailand, where he served until January of 1973. At that time, he was sent to Ellsworth Air Force Base in South Dakota. He remained there until his discharge from the United States Air Force on November 28, 1973.

During the period of time from December, 1971, until December, 1973, Mr. Strasz-ewicz was physically present in Alabama only for approximately two weeks in January of 1972, during which time he remained in Birmingham, his parents’ home. He did not visit Seale during this two year period.

In October of 1973, Mrs. Gallman married her present husband, Mr. Kenneth Gallman. Their residence has been Livingston, Alabama, since their marriage.

Upon his discharge from the service, Mr. Straszewicz returned to Birmingham, Alabama, where in January of 1974, he had an operation which precluded his engaging in strenuous labor from some time thereafter. For approximately the next year, i. e.; early 1974 until February, 1975, Mr. Straszewicz held various jobs for short periods of time. The positions he held, e. g., a salesman for a printing company, a salesman for an automobile dealership, manager trainee for an auto painting company, etc., were all short lived and the wages therefrom were minimal at best.

From February of 1975 until August of that year, Mr. Straszewicz was unemployed, though he actively sought employment com-mensúrate with the rating he had obtained by passing a civil service examination. Sometime in August of 1975, he obtained a position as a police officer with the Tarrant City Police Department in Birmingham, Alabama.

From the time of the divorce in September of 1971 until September of 1975, Mr. Straszewicz never visited Seale. On one occasion, apparently in January of 1972, he did telephone to inquire whether he could see the child, but after being informed that he could, he failed to visit her.

Testimony showed that his ex in-laws, Mr. and Mrs. Seale, with whom Mrs. Gall-man resided from the divorce until her remarriage in October of 1973, did nothing to prohibit the exercise of his visitation rights. Moreover, although Mr. Straszewicz and his ex-wife’s post divorce relationship cannot be described as cordial, there was no evidence to show that bitter quarrels ensued upon their contact such as to actively discourage his exercise of his visitation rights. The evidence further disclosed that although Mr. Straszewicz was in Livingston, Alabama, which is approximately 135 miles from Birmingham, Alabama, for a portion of one day in 1974, he never attempted to contact his child.

While he was in Thailand, Mr. Straszew-icz did purchase a ring for Seale, which he sent to his mother, and she, in accordance with his instructions, mailed it to the child. He also sent Seale a birthday card and a doll from Ellsworth Air Force Base in South Dakota. Other presents have been given to the child during the pendency of this litigation.

Mr. Straszewicz’s child support payments of $100 per month were paid by allotment while he remained in the Air Force, the last such payment having been made in December of 1973. Thereafter, he failed to make another child support payment for approximately 19 months. In early August of 1975, prior to being apprised of any matters concerning Seale’s adoption, Mr. Straszew-icz sent Mrs. Galiman, for the monthly child support payment, two savings bonds of $100 and $25 face value, and a check for an amount equal to the difference between $100 and the cash value of the bonds. He explained this payment by stating that he had obtained both an income tax refund and also stable employment (his position with the Tarrant Police Department), and he therefore was in a financial position to reinstitute the child support payments.

On August 7, 1975, Mr. Gallman’s attorney sent Mr. Straszewicz a letter stating that Mr. Galiman wished to adopt Seale and, if Mr. Straszewicz would consent to the adoption, Mrs. Galiman would neither seek to have him held in contempt for nonpayment of child support nor attempt to procure a judgment for the arrearage.

Mr. Straszewicz, subsequent to receipt of the August 7 letter from Mr. Gallman’s attorney, sent Mrs. Galiman a $100 cashier’s check dated September 17, for the September child support payment. The check was not accepted by Mrs. Galiman and was returned to Mr. Straszewicz by her attorney. On September 19, 1975, Mr. Straszewicz was originally served with the complaint in this action. At the time of trial, he had paid the entire amount of the child support arrearage into a trust account to be held by Mr. Gallman’s attorney pending the outcome of the litigation.

The Probate Court of Sumter County found that Mr. Straszewicz had abandoned his child and that it was in the best interest of the child that she be adopted. It is from this decree that Mr. Straszewicz takes this appeal.

I

As previously stated, the sole issue before this court is whether the above evidence sustains a finding of abandonment. We deem our holding in Henderson v. Feary, Ala.Civ.App., 340 So.2d 808, cert. den. Ala., 340 So.2d 811 (1976), to be dispositive of this issue.

In that case, the father had neither visited his child nor made child support payments for approximately 18 months prior to the adoption. The delinquency in child support payments was occasioned by the father’s loss of his job and later inability to procure employment paying other than minimal wages. He had not received notice of the adoption proceeding and moved to have it set aside. Consequently, there having been no consent by the father, a showing of abandonment was necessary to sustain the adoption.

In holding that the facts enumerated above failed to constitute abandonment, this court stated:

“An abandonment . . within the purview of the adoption laws must be an intentional abandonment .
“[Voluntary abandonment does not include an act or a course of conduct pursued by a parent which is done through force of circumstances or dire necessity, but it is used more in the sense of a wilful act or course of conduct, such as would imply a conscious disregard or indifference to the child in respect to the parental obligations owed. . . . ” (35 A.L.R.2d 662, 668-69)

If the circumstances of Henderson, supra, do not constitute abandonment, assuredly those contained herein do not.

The evidence shows that Mr. Straszewicz did not visit Seale for approximately 4 years, from September of 1971, the date of the divorce, until September of 1975, the time this litigation initially commenced. However, for two of those years he was geographically removed from the state while on active military duty. He did display some concern for Seale during this time, as evinced by the gifts he sent to her. Moreover, he met his child support obligations during this period of time.

A 19 month lapse in Mr. Straszew-icz’s child support payments did occur from January of 1974 until August of 1975. However, similar to the facts in Henderson, supra, the period of nonpayment is coincidental to a period of unemployment or unstable employment for the father. It is important to note that in this instance, pri- or to being informed of any matters regarding Seale’s adoption, Mr. Straszewicz had reinstated the child support payments. He began the payments immediately after being informed that he had obtained a salaried position with the Tarrant Police Department. Additionally, he made another payment after receiving the letter from Mrs. Gallman’s attorney, but before being served with the complaint in this action. He also borrowed the funds to eliminate the child support arrearage, despite Mrs. Gall-man’s offer not to institute collection proceedings if he would merely consent to the adoption. Payment of approximately $2,000 in child support payments, when one could conceivably escape this obligation, does not appear consonant with a settled intent to forego all parental responsibilities. See Butler v. Giles, 47 Ala.App. 543, 258 So.2d 739. Moreover, making the child support payment in August before he had received any information concerning Seale’s adoption, i. e., before his action could be attributed to any ulterior motive, plainly points out that Mr. Straszewicz was both aware of and attempting to fulfill his parental duty of supporting his child. Taken in sum, Mr. Straszewicz’s actions do not manifest the conscious disregard and indifference the law requires to sever the parent-child bond.

At most, the facts reveal that Mr. Strasz-ewicz failed to make child support payments for 19 months and neglected to visit his child, when practical to do so, for approximately the same length of time. In this instance, such a course of conduct does not constitute abandonment. Schwaiger v. Headrick, 281 Ala. 392, 203 So.2d 114.

Mrs. Gallman seeks to distinguish Schwaiger and Butler, supra, on the grounds that in those cases a conflict between the divorced parties or between one of them and the other’s family members justified the alleged abandoning parent’s lack of visitation. Since hostility such as to preclude Mr. Straszewicz’s exercise of his visitation rights was absent in this instance, Mrs. Gallman concludes that his lack of visitation, in conjunction with the other evidence, is sufficient to sustain the trial court’s finding of abandonment. We cannot agree. A finding of abandonment must be premised on more unequivocal conduct than that displayed by Mr. Straszewicz. Lankford v. Hollingsworth, 283 Ala. 559, 219 So.2d 387.

This court is cognizant of the difficult decision with which the trial court is confronted in ruling on a matter of this nature, wherein the best interest of the child, albeit irrelevant to the issue at hand, exerts an ever present influence on the litigation. Nevertheless, we are bound to view the evidence in accordance with the established legal principles as enunciated in prior decisions. So viewing the evidence in this instance requires reversal of the judgment rendered below.

REVERSED AND REMANDED FOR ENTRY OF A JUDGMENT NOT INCONSISTENT WITH THIS OPINION.

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

      . For a prior decision regarding this matter, see Straszewicz v. Galiman, Ala.Civ.App., 342 So.2d 1322 (1977). After our prior decision, the parties submitted the transcript of the testimony previously given in the circuit court to the probate court. The probate court rendered its decision on this record and it is from this that Mr. Straszewicz appeals.


source: Caselaw Access Project

author: BRADLEY, Judge.

license: Public Domain

text:
    TRAX, INC., a corporation v. John P. TIDMORE and Cary Tidmore.
    Civ. 1192.
    Court of Civil Appeals of Alabama.
    Aug. 31, 1977.
    Edwin K. Livingston, Montgomery, for appellant.
    J. Garrison Thompson of Pitts & Pitts, Selma, for appellee.
   BRADLEY, Judge.

This appeal is from an order of the Circuit Court of Hale County dismissing the case or complaint after a remand from the supreme court for new trial.

The case commenced when appellant here filed a two count complaint against appel-lees, one in detinue and one for conversion. The alternative value of the object of the suit — a Caterpillar tractor — was said to be $9,130.19. An answer and counterclaim was filed. The counterclaim claimed possession of the tractor and also charged conversion of it. The jury found for the defendants on their counterclaim and assessed damages of $5,000 and fixed the alternative value of the tractor in the amount of $22,-000. The motion for new trial was denied and appellant appealed.

The supreme court held that no implied warranty existed in connection with the sale of the tractor, assuming there had been a sale of the tractor by Trax to Tidmore, and reversed the case for a new trial. And, specifically said that on a new trial the question of a sale was to remain open.

On the day of the retrial and shortly before the commencement thereof, the ap-pellees here, through their attorney, filed a handwritten motion to dismiss the appellant’s complaint and their counterclaim. The basis of their motion to dismiss appellant’s complaint is that appellant is a non-qualified foreign, corporation and, based on Title 10, Section 21(89), Code of Alabama 1940 (Recomp.1958), cannot recover the property in question. Section 21(89) provides as follows:

“All contracts or agreements made or entered into in this state by foreign corporations which have not qualified to do business in this state shall be held to be void at the suit of such foreign corporation or any person claiming through or under such foreign corporation by virtue of said void contract or agreement;

The trial court granted the motion and dismissed the complaint. The appellant appealed that order to the supreme court. The supreme court upon motion transferred the case to this court apparently based on the assertion that the alternative value of the tractor was $9,130.39.

Appellant argues here that the order appealed from is erroneous for three reasons: (1) section 21(89) does not apply to possesso-ry actions but applies only to actions on the contract, and cites to us the recent case of Jones v. Americar, Inc., 283 Ala. 638, 219 So.2d 893 (1969); (2) that the appellees failed to timely assert the defense of the statute, i. e. Title 10, Section 21(89), and have thereby waived it; and (3) the evidence does not support the appellees’ contentions and therefore the trial court erred in dismissing the action. Since we consider the first issue dispositive of the appeal, we will not discuss the other two issues.

In answer to appellant’s contention that section 21 (89) applies only to contract actions, appellees reply that the Jones case is inapt authority for the reason that the contract in the case at bar was entered into in Alabama, whereas the place of making the contract was not an issue in the cited case. True, the place where the contract was entered into was not an issue in the Jones case because that issue was not raised on appeal; however, in view of what the supreme court said about maintaining an action for conversion and trover in the Alabama courts, we think this issue would not have changed the decision had it been raised.

The supreme court in Jones said:

“We think that which is prohibited in the Alabama statutes are suits on contracts by unqualified corporations.”

The action that was appealed from in the Jones case was based on conversion and trover, not contract; and the supreme court therefore upheld the right of an out-of-state unqualified corporation to pursue these actions in the Alabama courts.

Likewise, in the case at bar, the action was not on the contract, but was one seeking recovery of the D-8 tractor or its alternate value. Based on the decision in Jones, we hold that the appellant can maintain its action in detinue in the Circuit Court of Hale County, Alabama. For the error committed in dismissing appellant’s complaint, the judgment of the trial court is reversed and the case remanded.

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


text:
    Myra Mae TURNER, surviving widow of Ted James Turner v. The DRUMMOND COMPANY, INC., a corp.
    Civ. 1085.
    Court of Civil Appeals of Alabama.
    July 6, 1977.
    Rehearing Denied Aug. 3, 1977.

      Edward F. Morgan, Tuscaloosa, for appellant.
    Wilbor J. Hust of Zeanah, Donald & Hust, Tuscaloosa, for appellee.
   HOLMES, Judge.

This is a workmen’s compensation case.

Myra Mae Turner, the widow of the deceased employee, Ted James Turner, takes this appeal from a judgment entered in favor of appellee-employer.

Mrs. Turner contends her husband had not left the premises of the appellee-em-ployer, The Drummond Company, Inc., at the time of the accident which resulted in his death and that she therefore, is entitled to death benefits as provided by Alabama’s Workmen’s Compensation Law. She further states that even if her husband had left the premises of Drummond at the time of his accident, she, nevertheless, is entitled to workmen’s compensation benefits, because the facts of this case fall within one of the recognized exceptions to the general rule that an employee is not entitled to workmen’s compensation benefits for injuries sustained while going to or coming from his place of employment. We disagree with both of these contentions.

The record reveals the following:

The Drummond Company is engaged in the coal processing business. It crushes, separates, washes, and stores coal. Turner had been employed as a supply man in the Drummond warehouse for approximately one month at the time of his injury.

The warehouse where Turner worked is within the preparation plant of The Drum-mond Company. Drummond’s washer and preparation plant are located at the western end of the “haul road,” a dirt road running in an east west direction from the Searles Road. Searles Road is a Tuscaloosa County blacktop which runs in a northeasterly direction. The western end of the haul road terminates at the Black Warrior River, approximately 6 miles from the county blacktop.

Mitchell-Neely maintains a coal crushing operation on the Black Warrior River. Mitchell-Neely’s crusher is located at the very end of the haul road and is adjacent to Drummond’s preparation plant. The only access to the Drummond preparation plant and the Mitchell-Neely crusher is via the haul road.

Coal is hauled to the Drummond preparation plant by trucks from points east of the plant. Drummond’s office is also located on the haul road and is approximately 6 miles east of the preparation plant.

Turner, appellant’s decedent, worked the 11:00 P. M. to 7:00 A. M. shift at Drum-mond on October 10, 1974. After being relieved of his duties in the storeroom by N. B. Obenchain, Drummond’s purchasing agent, and after getting the automobile he was driving “jumped,” Turner left for home. On the haul road, at a point approximately 2 miles east of Drummond’s preparation plant and 4 miles west of Drum-mond’s main office, Turner veered into the path of a 950 Ford tandem trailer truck carrying an estimated 17-18 tons of coal. The truck’s destination was the Mitchell-Neely crusher. Turner subsequently died from the injuries sustained in the accident.

At the time of the accident, Drummond neither owned nor leased any land adjacent to the haul road, other than that where the preparation plant, washer, and main office were located. However, pipes which were used to pump water for Drummond’s “sludge” ponds were laid parallel to the haul road. These pipes extended eastward approximately 15,000 feet from the preparation plant.

Abston Coal Company, Gulf States Paper Company, U.S. Plywood, and Champion Paper Company own property adjacent to the haul road.

The haul road was described as a very wide dirt road, sufficiently wide to simultaneously accommodate 3 or 4 trucks the size of the one involved in the accident. It has been in existence for at least 34 years.

The amount of traffic on the road was characterized “light to moderate” and “heavily traveled” by different witnesses. Traffic is heaviest at the change of shifts at Drummond. Coal hauling vehicles constitute a large portion of the traffic on the road. Some of these coal hauling vehicles, because of their size, are prohibited from using county roads. In addition to coal hauling vehicles, the road is used by personnel of other companies that own property on the road. The road is also used for access to hunting and fishing areas.

A number of roads intersect the haul road. “Yield Right of Way” and “Stop” signs control access from these roads to the haul road. Additionally, a number of these intersecting roads are marked with signs stating, “Private No Trespassing.”

At one time, families maintained residences on the haul road. However, the last families moved from the area in the sixties. Tuscaloosa County has not maintained the road since 1968, at the latest. Drummond grades the road, maintains adjacent berms in accordance with federal regulations, and frequently waters the road to diminish the dust. Abston and Mitchell-Neely also constructed some berms on the road.

Appellant filed her claim seeking workmen’s compensation benefits on October 6, 1975. Trial was conducted in the Circuit Court of Tuscaloosa County on July 29, 1976. After hearing testimony, the trial judge physically inspected the haul road and later entered judgment for Drummond. Relevant portions of the judgment state:

“At the time of the accident referred to herein the said Ted James Turner was not performing any duties for his employer, the defendant, the Drummond Company, and this accident and the injuries resulting therefrom did not arise out of or in the course of his employment with the defendant. The accident occurred on a public road used by the public generally, including individual land owners and other companies operating in the vicinity, since at least 1934.
“. . . Therefore, the Court concludes that the plaintiff is not entitled to benefits under the Workmen’s Compensation Laws of Alabama . . .”
Mrs. Turner filed appeal from that judgment.

I

As previously stated, Mrs. Turner contends that the accident which claimed her husband’s life occurred on the premises of Drummond.

“The word ‘premises’ is an elastic and inclusive term . . . and it does not have one definite and fixed meaning, but its meaning is to be determined by its context and is dependent on circumstances in which used, . . .” Allen v. Genry, 39 Ala.App. 281, 285, 97 So.2d 828, 832 (1957).

This court has previously stated that the term “premises,” as used in the workmen’s compensation statutes, must be related to the control or to the right of control of the employer over the employee. Russellville Gas Company v. Duggar, 47 Ala.App. 661, 260 So.2d 393 (1971), cert. den., 288 Ala. 309, 260 So.2d 395 (1972). Here, the facts disclose no such right of control by Drummond.

Turner had been relieved of all duties and was no longer under the control of his employer at the time of the accident. He was not rendering service to his employer at the moment of collision. Rather, he was traveling on what the trial court found to be a public road at a location 2 miles from where he performed his duties. Indeed, he was engaged in an activity of his own choosing at the time of the accident. The evidence is sufficient to sustain a finding by the trial court that the accident did not occur on the premises of the employer within the meaning of the statute. See Hayes v. Alabama By-Products Corporation, 242 Ala. 148, 5 So.2d 624 (1942); Sloss-Sheffield Steel & Iron Co. v. Thomas, 220 Ala. 686, 127 So. 165 (1930); Russellville Gas Company, supra.

Appellant also states that it is irrelevant that her husband was not at his exact place of employment, for the Supreme Court of Alabama, in the case of Overton v. Belcher, 232 Ala. 396, 168 So. 442 (1936), held that a workman is entitled to workmen’s compensation benefits for injuries sustained within a reasonable time after his employment while he is near his place of employment. That decision is inapplicable to the facts of this case.

In Overton, the injury in question occurred to the employee while he was utilizing transportation provided by the employer. Alabama decisions recognize an exception to the general rule that an employee is not entitled to workmen’s compensation benefits for injuries sustained while going to or coming from work. Such exception may exist when the employee is injured while traveling by a mode of transportation furnished by his employer. Jett v. Turner, 215 Ala. 352, 110 So. 702 (1926). The decision in Hayes v. Alabama By-Products Corporation, supra, expressly limits the applicability of Overton to situations where the employer has provided transportation to the employee. Here, Turner was traveling by private automobile. Hence, the facts of this case do not fall within the exception set forth in Overton.

We do not perceive appellant’s reliance on Baggett Transp. Co. v. Holderfield, 260 Ala. 56, 68 So.2d 21 (1953), to be well founded, even though the injury for which the employee received benefits occurred approximately one mile from the premises of the employer. The employee’s injuries occurred when members of the employer’s striking work force followed the employee from his place of employment to a point one mile from the premises where they forced his automobile off the road and shot him. The court found that the assault began at the entrance to the place, i. e., upon the employer’s premises, and was a continuing course of action to the location where the employee sustained his injuries. Here, no such argument was feasible. Turner was completely separated from his employer’s premises prior to the time he sustained his injuries. Able and distinguished counsel for appellant’s first contention is therefore without merit.

II

Mrs. Turner also argues that the facts herein fall within one or more exceptions to the general rule that an employee is not entitled to workmen’s compensation benefits for injuries sustained when going to or coming from work. She contends that an employee proceeding home after hours is within the protection of the Workmen’s Compensation Act while he is within the zone of danger associated with his employment. Barnett v. Britling Cafeteria Co., 225 Ala. 462, 143 So. 813 (1932); 1 A. Larson, Larson’s Workmen Compensation Law, § 15.22 (1972). She also states that where the injury results from the special hazards of the route which the employee must traverse going to or coming from his place of employment such hazards become hazards of employment. See Larson’s Workmen’s Compensation Law, supra, § 15.13 and numerous cases cited therein. We cannot agree with either of these contentions.

11(a)

In Barnett v. Britling Cafeteria Co., supra, the employee sustained her injury by slipping on the sidewalk immediately in front of the employer’s place of business while on her way to report for duty and just before entering the way used by all employees to enter the premises. The sidewalk was a sidewalk used by the public generally, but was also used by the employer as a necessary connection with its business. It was the only entrance to the employer’s business, and the employer also “made use of it for other purposes in connection with its business.”

While recognizing the general rule that an employee is not entitled to workmen’s compensation benefits while en route to or from his place of employment, the court held workmen’s compensation benefits recoverable by the employee.

“[T]here is an exception to the general rule, and the employment is not limited by the actual time when the workman reaches the scene of his labor and begins it nor when he ceases, but includes a reasonable time, space, and opportunity before and after while he is near his place of employment. . A workman might be on the premises of another than his employer, or in a public place, and yet be so close to the scene of his labor, within its zone, environments, and hazard as to be, in effect, at the place and under the protection of the act. Barnett v. Britling Cafeteria Co., supra, 225 Ala. at 463,143 So. at 813.

The court noted that although the employee was upon a public street when injured, so much of the sidewalk as was in front of the employer’s business “was a necessary adjunct and used in connection with the business” so as to constitute “to a limited degree, and purpose, a part of the defendant’s premises.”

We do not perceive the facts of this case to fall within the Barnett doctrine. First, the location of the accident was two miles from Drummond’s preparation plant. Drummond neither owned nor leased any land adjacent to the road except where its preparation plant, washer, and main office were located. We are unable to equate a point two miles from an employer’s premises with a point immediately adjacent to the entrance to the employer’s establishment. Although not stated in the Barnett opinion, presumably the sidewalk on which the employee was injured extended for a number of blocks. We doubt that the same result would have been reached by the Supreme Court of Alabama in Barnett had the employee’s injuries been sustained two miles or even two blocks from the Britling premises.

Implicit in the court’s rationale in Barnett is the recognition that although Bri-tling might not have possessed legal title to the sidewalk in question, it exerted such control over and used the portion of the sidewalk in question to such an extent that it constituted a portion of Britling’s premises. Once the employee reached the point in question, she came within the “zone, environments, and hazard” of her employment. The cases which the court cited in support of its decision likewise involved situations wherein the injury occurred at a location well within the control of the employer; e. g., 20 to 40 feet from the employer’s main gate, immediately in front of the employer’s factory, etc.

Here, the record is devoid of any evidence which reveals an exercise of control by Drummond over the road at the point in question comparable to that exercised by Britling over the sidewalk in Barnett or by any employer over the scene of the accident in the cases cited in Barnett.

Drummond graded the road. However, the road was utilized by a number of other companies, as well as sportsmen desirous of entering the area for hunting and fishing. The road was also used by telephone and other utilities’ trucks. Perhaps a different conclusion would be warranted had the accident occurred immediately in front of the preparation plant or washer. However, we cannot state that the record discloses sufficient control by Drummond over the road at the point in question to bring the facts of this case within the Barnett doctrine.

H(b)

Appellant also contends that where the injury results from the special hazards of the route which the employee must traverse in going to or coming from his place of employment, such hazards become hazards of employment. This theory which permits recovery by the employee is termed the “proximity” or “threshold” rule. Larson’s Workmen’s Compensation Law, supra, at 4-15-16.

“In order for the threshold doctrine to apply and include a given employee under the provisions of the workmen’s compensation law, the injury must have been caused by a hazard or danger to which the employee was regularly exposed because of his employment and the accident must have occurred in an area immediately adjacent to the employer’s premises.” Fabre v. Travelers Insurance Company, La.App., 286 So.2d 459, 463 (1973).

See also cases cited in Larson’s Workmen’s Compensation Law, supra, § 15.13, pp. 4-7, 4-10, footnote 23.

Although the “threshold” theory has been accepted by a majority of jurisdictions in some degree, Alabama appellate courts have never determined its applicability to this jurisdiction. We neither accept nor reject the rule presently, for irrespective of its merits, the facts of the case do not warrant its application.

When there is any legal evidence or reasonable inference therefrom to support the findings of fact by the trial court in a workmen’s compensation case, such finding will not be disturbed on appeal. Federal Mogul Corporation v. Moses, Ala. Civ.App., 341 So.2d 162 (1976); Patterson v. Whitten, 57 Ala.App. 297, 328 So.2d 301 (1975). Moreover, such findings are. strengthened when, as here, the trial court has personally viewed evidence which is not before this court. Fuller v. Blackwell, 246 Ala. 476, 21 So.2d 617 (1945). There is evidence from which the trial court could reasonably have concluded that the location of the accident was not sufficiently proximate to Drummond’s premises or otherwise under Drummond’s control to warrant invocation of the doctrine. Numerous cases have permitted compensation benefits where the injuries sustained did not occur on the employer’s premises, but only when the public way on which the injuries occurred was either immediately adjacent to or otherwise within the control of the employer. Naranja Rock Co. v. Dawal Farms, Fla., 74 So.2d 282 (1954); Jaynes v. Potlatch Forests, Inc., 75 Idaho 297, 271 P.2d 1016 (1954); Fabre v. Travelers Insurance Company, supra; Doyle v. Penton Lumber Co., 56 So.2d 774 (La.App.1952); Johannsen v. Acton Constr. Co., 264 Minn. 540, 119 N.W.2d 826 (1963); Nelson v. City of Saint Paul, 249 Minn. 53, 81 N.W.2d 272 (1957); Daly v. Edwards Engineering Corp., 107 N.J.Super. 183, 257 A.2d 730 (1969); Industrial Commission of Ohio v. Barber, 117 Ohio St. 373, 159 N.E. 363 (1927); Montgomery v. State Industrial Accident Commission, 224 Or. 380, 356 P.2d 524 (1960). See also Greydanus v. Industrial Accident Commission, 63 Cal.2d 490, 47 Cal.Rptr. 384, 407 P.2d 296 (1965); Templet v. Intracoastal Truck Line, Inc., 255 La. 193, 230 So.2d 74 (1969); Oliver v. Wyandotte Industries Corporation, 308 A.2d 860 (Me.1973); Barker v. Wagner Mining Equipment Co., 6 Or. App. 275, 487 P.2d 1162 (1971); 50 A.L.R.2d 363.

Additionally, the trial court could have reasonably concluded either that the injuries sustained were not peculiar to the employment or that there were no particular dangers which rendered the route hazardous, and that, therefore, under the facts of this case, the threshold rule does not apply. See Harris v. William J. Burns Int. Detective Agency, Inc., 94 Idaho 440, 489 P.2d 1320 (1971); Templet Intracoastal Truck Line, Inc., supra; Stoskin v. Board of Education of Montgomery County, 11 Md.App. 355, 274 A.2d 397 (1971); Barker v. Wagner Mining Equipment Co., supra.

The case is due to be and is hereby affirmed.

AFFIRMED.

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

ON REHEARING

In his brief accompanying his application for rehearing, appellant correctly notes that this court in its original opinion stated that Drummond neither owned nor leased any land adjacent to the haul road, other than that where the preparation plant, washer, and main office were located. Appellant points out the record reveals that Drum-mond actually leased property at the eastern end of the haul road for its pits. Appellant is correct. However, such fact does not alter this court’s original decision. In a workmen’s compensation case we do not weigh the evidence and, in fact, must sustain the finding below if there is any legal evidence to support such finding. Here, as stated in our original opinion, sufficient evidence exists to sustain the finding of the trial court.

OPINION EXTENDED; APPLICATION FOR REHEARING OVERRULED.

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


author: MADDOX, Justice.

text:
    Ex parte Myra Mae TURNER, etc.
    SC 2781.
    Supreme Court of Alabama.
    Sept. 30, 1977.
   MADDOX, Justice.

WRIT DENIED.

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


text:
    John ELLENBURG, Jr. v. HARTSELLE CITY BOARD OF EDUCATION et al.
    Civ. 1202.
    Court of Civil Appeals of Alabama.
    Sept. 14, 1977.

      Joseph E. Carr, IV, Montgomery, for appellant.
    Julian Harris, Special Asst. Atty. Gen., Decatur, for appellees.
   BRADLEY, Judge.

This is an appeal from a judgment by the Circuit Court of Morgan County denying appellant’s petition for a writ of mandamus. Appellant’s petition for mandamus sought to compel the reversal of an order by the Alabama State Tenure Commission affirming a decision by the Hartselle City Board of Education to cancel appellant’s contract as a principal in the city school system. Appellant has obtained “continuing service status” under the Teachers’ Tenure Law, Title 52, Section 351, et seq. of the Code of Alabama 1940 (Recomp.1958).

On May 11,1976 the Hartselle City Board of Education notified appellant by letter that the Board proposed to cancel his contract as principal of Burleson Elementary School. The reasons given for the proposed cancellation were: falsehoods, insubordination, neglect of duty, lack of cooperation, and wilfully creating dissension. In its notice to appellant the Board recited twelve specifications as evidence of the reasons for cancellation. On June 5, 1976 the Board held a full hearing at which appellant appeared and evidence was presented on behalf of both parties. On June 9,1976 appellant was notified by the Board of its unanimous resolution cancelling appellant’s contract. Appellant then filed notice of appeal to the Alabama State Tenure Commission. A hearing on the matter was held by the Tenure Commission and it sustained the decision of the Hartselle School Board. Appellant then sought a writ of mandamus in the circuit court. From the circuit court’s final judgment denying the writ, this appeal followed.

Appellant urges on appeal that the notice he received from the Board failed to apprise him of the charges against him thus depriving him of his constitutional right to procedural due process. Appellant also contends that his dismissal was based on the exercise of his constitutionally protected right of free speech. Furthermore, appellant insists that the action of the Board of Education was arbitrary and unjust in that it was taken for political or personal reasons, and that the grounds for cancellation were unsupported by the evidence. On the basis of these contentions, appellant asserts that the circuit court improperly denied appellant’s petition for mandamus.

The record reveals the following facts.* Before the 1975-76 school year a decision was made to create a city school system for Hartselle. Burleson Elementary School, of which appellant was principal, was one of several schools removed from the Morgan County school system and placed in the newly created city system. A large segment of the community, including appellant, opposed this change. Nonetheless, appellant applied for the newly created post of Superintendent of City Schools. Appellant did not receive this position and he acknowledged that he was extremely disappointed at not receiving it. When a superintendent and assistant superintendent were brought in from outside the existing school system, appellant stated to several persons that he would “show that a mistake had been made in not appointing him.” These events were the prelude to a series of incidents which lead to the cancellation of appellant’s contract.

The first such incident was a dispute between appellant and the new superintendent. This dispute occurred in August of 1975 and involved the superintendent’s decision not to replace a teacher who had left her job at appellant’s school. Appellant spoke of this decision in a critical manner to third parties despite the fact that the superintendent had asked him not to. When the superintendent confronted appellant about his behavior, the appellant at first denied he had spoken to others about the matter, then later admitted it, stating that it had been his purpose to “do the superintendent in” but now he was going to cooperate.

The next incident occurred on October 9, 1975 when appellant attended a workshop for principals in Muscle Shoals, Alabama without notifying the superintendent. Another principal from Hartselle who attended the workshop did notify the superintendent pursuant to a request made by the latter that principals notify him or the assistant superintendent when they planned to be absent from their schools. Testimony did reveal that principals were encouraged to attend such workshops and appellant would have received permission to go had he asked for it.

Appellant was again absent from his school on November 24 and December 2, 1975. Neither absence had been reported in advance to the superintendent. The superintendent questioned appellant about these absences but appellant gave no satisfactory explanation for them. Although appellant had not claimed sick leave for these absences on the payroll which immediately followed them, he did, after being questioned by the superintendent, claim sick leave for those two days on a subsequent payroll.

On November 7, 1975 the superintendent and his assistant superintendent met with the appellant to discuss a report that they had received accusing appellant of not cooperating with the administrator in charge of special education. At that meeting appellant did not admit that he had failed to cooperate with the administrator but he did state that his actions in resistance to administration policy were the result of his deep disappointment in not having been selected as superintendent. However, appellant again promised to improve his attitude and behavior.

In December of 1975 it was publicized in Hartselle that the teaching contracts for the following year would be distributed to the teachers on December 19, 1975. Although he had notice of this fact, appellant failed to deliver the contracts to the teachers at Burleson Elementary School on that date. Because other teachers in the school system received their contracts on that date, the superintendent called appellant to express his concern over the latter’s failure to deliver the contracts. This concern was premised on the fact that the contracts were to be returned to the school board by January 5, 1976. After the superintendent’s call, appellant personally delivered the contracts to the teachers of Burleson School during the Christmas holidays.

Another confrontation between appellant and the superintendent occurred at a meeting between the two on January 16, 1976. At that meeting the assistant superintendent informed appellant that he would have to support the decisions of the superintendent. Appellant informed both the superintendent and the assistant superintendent that he (appellant) did not think he was required to support final decisions made by the superintendent. He also stated that he did not think he could be fired for failing to support such decisions. At that time, appellant also charged that he was being harassed by the assistant superintendent. The assistant superintendent denied this allegation but appellant insisted he could prove it in court. This meeting terminated without any resolution of the problems which existed between appellant and his superiors.

On April 15, 1976 the superintendent’s office notified all principals that their school custodians would not work on Good Friday. When appellant’s secretary conveyed this information to him, appellant telephoned the business manager of the city school system and told the latter of arrangements which appellant had already made to have the janitor of Burleson School work on that date. The business manager told appellant that the janitor was not to work on that date. Appellant then attempted to contact the superintendent with regard to this matter but could not reach him. Later, appellant sent a payroll to the business manager which demonstrated that the janitor of Burleson School had worked on Good Friday. The superintendent wrote appellant a letter stating that the janitor would not be paid out of payroll funds. Appellant went to see the superintendent and stated that he considered the superintendent’s letter “threatening.” The superintendent told appellant that appellant’s actions in permitting the janitor to work were insubordinate. At this point in the conversation appellant informed the superintendent that if the latter wished to prefer charges against him, the superintendent could do so, but if he did, appellant would cause the superintendent to be fired.

Although numerous, the aforementioned events do not exhaust the charges and countercharges which were made at the hearing before the Hartselle School Board. There was additional testimony that appellant had frequently arrived late at the school; that he had failed to attend a local teachers’ workshop at which his presence was required; that he had made numerous derogatory remarks to third parties about the superintendent and the latter’s ability to run the school system; that he had told the mayor of Hartselle that his (appellant’s) actions toward the superintendent had been wrong; and that on one occasion in an argument over the superintendent’s policy for salary payments, appellant had said to the superintendent, “You are omnipotent you tell me.” However, most of this testimony was contradicted by various witnesses or denied outright by appellant. None the-, less, it further indicates the acrimony and discord which lead to the cancellation of appellant’s contract.

Appellant contends that the circuit court improperly denied appellant’s petition for mandamus. The circuit court’s denial was based on our supreme court’s recent decision in Alabama State Tenure Commission v. Mountain Brook Board of Education, Ala., 343 So.2d 522 (1976). That case stated that a circuit court’s review of a petition for mandamus against an order by the Tenure Commission was limited to the following inquiries. First, were the procedural requirements of Title 52, Section 351, e£, seq. of the Alabamá Code complied with. And second, was there sufficient evidence before the Tenure Commission to support its decision to uphold or reverse a board of education’s conclusions. In the instant case, the circuit court found that the two pronged inquiry established by Mountain Brook Board of Education should be answered in the affirmative and thus denied appellant’s petition. The circuit court did not err in this denial.

The first inquiry which must be examined on appeal from decisions by the Tenure Commission involves whether proper procedural requirements were complied with. Although appellant maintains that he was denied procedural due process because the notice he received was defective, an examination of this assertion demonstrates that it is unfounded.

Briefly, appellant claims that he was not informed by the Board’s letter on May 11, 1976 that he would be required to defend his removal on the grounds of “other good and just cause” and that it was on such grounds that his contract was cancelled.

At the outset, the record demonstrates that “other good and just cause” was not the sole basis for appellant’s removal. Additional evidence was such that the Board might well have found he was guilty of the other acts with which he was charged — specifically, acts of insubordination and neglect of duty. Moreover, “other good and just cause” would encompass the additional grounds which the Board set out in its letter to appellant as reasons for his removal. Those grounds were falsehoods, lack of cooperation, and wilfully creating dissension.

Although no Alabama court has provided a detailed definition of “other good and just cause,” 68 Am.Jur.2d Schools § 183 states:

“. . . Indeed, it has been said . ‘good cause’ in a statute of this kind [Tenure Act] is by no means limited to some form of inefficiency or misconduct on the part of the teacher dismissed, but includes any ground put forward by a school committee in good faith and which is not arbitrary, irrational, unreasonable, or irrelevant to the committee’s task of building up and maintaining an efficient school system. Limited only by the statutory provision that they must be good and just causes, the jurisdiction and discretion to determine what these causes may be rests in the hands of the school authorities.”

In Cooper v. Perry County Board of Education, 264 Ala. 251, 86 So.2d 832 (1955) our supreme court stated:

“. . . The Supreme Court of Indiana in Stiver v. State ex rel. Kent [211 Ind. 380, 1 N.E.2d 1006], . . . interpreted the term ‘other good and just cause’ as used in the Teachers’ Tenure Law, to include any cause which bears a reasonable relation to the teacher’s fitness or capacity to discharge the duties of his position. That Court held that ‘lack of cooperation’ is legal cause within the provision ‘other good and just cause.’”

And in State Tenure Commission v. Madison County Board of Education, 282 Ala. 658, 213 So.2d 823 (1968), “lack of cooperation” was held to be legal cause within the provision “other good and just cause.”

Other reasonable grounds for dismissal such as “falsehoods” and “wilfully creating dissension” are not arbitrary, irrational, or irrelevant to the task of maintaining an efficient school system. Provided such charges are made in good faith by the school board, they may be properly considered within the scope of “other good and just cause.”

Furthermore, it should be noted that the letter notifying appellant of the proposed cancellation of his contract specified in a detailed manner the events (and dates thereof) upon which the cancellation was based; it informed him of the right to counsel and the right to confront witnesses at the hearing; and finally, it stated the time and place at which the hearing would be held. Nor were any new charges made at the hearing. Appellant was represented by counsel at that hearing; his attorney was allowed to cross examine opposing witnesses; and appellant presented nine witnesses in his own behalf. Thus, in view of existing principles of law and the facts involved in the present case, it cannot be said that appellant was denied the right to procedural due process. The circuit court did not err in holding that the procedural requirements of Title 52, Section 351 et seq. were complied with.

Once it is determined that the procedural requirements of the Teachers’ Tenure Act have been complied with, a second inquiry is necessary in order to decide whether there was sufficient, evidence before the Tenure Commission to support its affirmation (or reversal) of the Board’s original action in terminating a tenured teacher’s contract. With regard to this second inquiry, appellant urges that his dismissal was based on the exercise of his constitutionally protected right of freedom of speech and, therefore, was arbitrarily unjust.

Teachers have the right to criticize their employers. Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972). However this right is not absolute. Pred v. Board of Public Instruction of Dade County, 415 F.2d 851 (5th Cir. 1969). Indeed, the constitutionally protected right of a public school teacher to criticize the school administration and to comment on matters of public concern is a limited right which must be balanced against the need for an orderly administration of the school system. Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968); Moore v. Winfield City Board of Education, 452 F.2d 726 (5th Cir. 1971). Moreover, the right of a teacher to criticize the ideas or actions of his superiors is subject to the requirement that it be done in good faith and not with the intent to bring such superiors into disrepute. Moore v. Winfield City Board of Education, supra; Lusk v. Estes, 361 F.Supp. 653 (N.D.Tex.1973).

In the instant case testimony taken at the hearing before the Hartselle School Board would authorize the conclusion that the appellant’s statements criticizing the superintendent and the assistant superintendent were not made in good faith, but rather, were made because of appellant’s disappointment at not being selected superintendent. In addition, many of appellant’s statements could reasonably be interpreted as having been made to bring his superiors into disrepute.

Furthermore, there is substantial evidence to support the conclusion that appellant’s termination was not motivated by his exercise of the right of freedom of expression. Evidence was presented that appellant had engaged in acts of insubordination and neglect of duty and that on several occasions he had failed to cooperate with those who administered the school system. Proof of such acts might very well be deemed disruptive to the orderly and efficient administration of the school system thus warranting the cancellation of appellant’s contract on grounds other than the exercise of his right of free speech.

An additional basis for appellant’s claim that the circuit court erred in finding that there was sufficient evidence before the Tenure Commission to justify its order upholding the Hartselle School Board’s action is that the court and the Tenure Commission failed to recognize that the Board’s action was taken for political or personal reasons.

Title 52, Section 358 provides in part that “cancellation [of a tenured individual’s contract] may not be made for political or personal reasons.” However, our supreme court in Marshall County Board of Education v. State Tenure Commission, 291 Ala. 281, 280 So.2d 130 (1973), construed this language to mean that no teacher should be transferred or have his contract cancelled if this action was grounded exclusively or primarily on political or personal reasons. Further, the court stated that such reasons would require personal bias, prejudice, or antipathy on the part of one or more Board members toward the teacher which influenced that member’s decision in exercising the quasi-judicial function of voting on a transfer or cancellation.

In this case there is no evidence that appellant’s contract was cancelled exclusively or primarily for “political or personal” reasons. Nor is there evidence of bias, prejudice, or antipathy on the part of any Board members. In fact, during the year prior to the creation of the Hartselle city school system, a school advisory board (all of whom, with one exception, became members of the Hartselle City Board of Education) voted to have their chairman write a letter in praise of the appellant.

The circuit court did not err in finding that there was sufficient evidence before the Tenure Commission to permit the Commission to make a determination that appellant’s discharge was not for “political or personal” reasons.

Finally, appellant contends that the circuit court was in error in that the existence of one or more of the statutory grounds for cancellation was unsupported by the evidence before the Tenure Commission.

As stated earlier, the circuit court’s review in matters involving the cancellation of a tenured individual’s contract is limited to an examination of whether there was sufficient evidence before the Tenure Commission to support its conclusion that the decision of a board of education should be upheld. Although much of the evidence in this case was in conflict, the record before this court indicates that the grounds for cancellation were sufficiently supported by the evidence within the aforementioned rule of review to require an af-firmance of the judgment of the circuit court.

AFFIRMED.

WRIGHT, P. J., and HOLMES, J„ concur.

      . Title 52, Section 358 of the Alabama Code provides:
      “Cancellation of an employment contract with a teacher on continuing service status may be made for incompetency, insubordination, neglect of duty, immorality, justifiable decrease in the number of teaching positions, or other good and just cause . . .

      . “Insubordination imports wilfull disregard of express or implied directions or such a defiant attitude as to be the equivalent thereto.” 21A Words and Phrases, Insubordination 554.

      . Black’s Law Dictionary (4th ed. 1968), defines “neglect” as a “refusal or unwillingness to perform one’s duty.”


text:
    O. D. KING v. Irene P. ADAMS.
    Civ. 1111.
    Court of Civil Appeals of Alabama.
    Aug. 3, 1977.
    Rehearing Denied Sept. 14, 1977.

      L. Wayne Collier, Montgomery, for appellant.
    Scott Q. Kirkland of Alton, Leavell & Boggs, Montgomery, for appellee.
   BRADLEY, Judge.

The parties to this appeal are coterminous landowners. Irene P. Adams sued 0. D. King in the Circuit Court of Montgomery County for draining across her land two ponds located on his property, causing her property to flood. She alleged that as a consequence of his action she lost an opportunity to sell the property. After trial a jury returned a verdict in favor of Mrs. Adams, awarding her no compensatory damages but $500.00 punitive damages and ordering Mr. King to reseal the two ponds within eight months’ time. Mr. King appeals.

The only question properly presented for decision is whether in an area outside a municipality an upper landowner owes a duty to a lower landowner to prevent surface water from flowing upon the lands of the latter.

The two properties in question are part of a natural watershed. The Adams property is the lowest in the area and thus serves as a catchment for surface water from surrounding lands. Mrs. Adams has owned the parcel of land which is the subject of the suit for about eight years; Mr. King has owned his for about four years.

When King purchased his property it contained two ponds which had existed over forty years. These ponds were not fed by a stream or well, but were constructed with dams so as to catch surface water falling onto the land or draining from other properties elevated above his. As a result of the two ponds and encircling dams, surface water which otherwise would have drained onto and across the Adams property was prevented from reaching the Adams property. A natural drainage ditch exists across the Adams property through which any water which reaches that parcel flows.

In August 1975 King decided to drain the ponds. The dams containing the two bodies of water were broken and the Adams land was flooded due to the heavy drainage for perhaps ten to twelve hours. Mr. and Mrs. Adams testified that their land has remained wet ever since the ponds were drained. A civil engineer who testified as an expert witness estimated the land would have remained wet from the drainage of the ponds for approximately ten days. However, since the dams and ponds are no longer collecting surface water from higher ground, that water now follows the natural contours of the watershed and drains into the ditch running across the Adams property, the same way water flowed before the ponds and dams were built. Any dampness along the ditch is due to natural drainage of the area and not to drainage from the two ponds, which are now dry except during periods of rain.

Mrs. Adams said that she had contracted with another person to sell her parcel of land for $10,000. When the property flooded, the contract of sale was cancelled by the prospective purchaser. Both Mr. and Mrs. Adams stated that the property is worth less now than it was before the ponds were drained, but neither could say how much less. The expert witness testified that the drainage of the ponds had not affected the value of the property in any way.

The two ponds were used primarily for fishing. Mr. King said the ponds had become so overgrown with weeds that fishing was impossible; he drained the ponds in order to clear the weeds and improve his property. Evidence adduced on behalf of the Adamses indicated that King drained the ponds in order to prevent Mrs. Adams from selling her property.

After Mrs. Adams had presented her case Mr. King moved for a directed verdict. This motion was denied. He now says that the trial court erred in denying his motion as to the equitable relief sought by Mrs. Adams. King’s position is that since an upper landowner owes no duty to a lower landowner to maintain impediments which inhibit the natural flow of surface water to the benefit of the lower landowner, the trial court erred by requiring him to repair the dams to his ponds.

Our research discloses that the precise question raised by King has never been litigated in this state. The decision most directly on point is Powell v. Edwards, 237 Ala. 572, 187 So. 716 (1939). There a railroad embankment had for more than thirty years diverted the drainage of surface water flowing naturally down the slope of the terrain into a stream. When an increased flow of water began to wash away the embankment, the railroad cut two culverts through the embankment to lessen and disperse the flow of water. The plaintiff claimed his land was injured by the consequent flooding and deposits of soil and debris which washed down from the higher lands. The defendant responded by denying the plaintiff had a cause of action, since the culverts merely restored the natural flow of surface water which the railroad embankment had intercepted. The defendant’s request for the affirmative charge was denied by the trial court. Relying on a single Iowa decision, the supreme court said:

“The mere fact that a lower proprietor has had the benefit of gratuitous improvements diverting the natural flow of waters away from his lands certainly confers on him no legal right to have such status quo maintained for his benefit. Brainard v. Chicago, R. I. & P. R. Co., 151 Iowa 466, 131 N.W. 649; 67 C.J. 875.” 237 Ala. at 573, 187 So. at 717.

The trial court properly refused to give the affirmative charge, however, since it was possible that the installation of the culverts caused much greater damage than would have been the case had the natural flow of water not been interrupted. It. was for the jury to determine what injury had been suffered by the plaintiff as a result of the railroad’s action in cutting the culverts.

We conclude from this decision that although an upper landowner has no duty to protect a lower landowner from the flow of surface water, an upper landowner nonetheless may be responsible for damage sustained by the property of a lower landowner as a result of a change in the status quo. Although the court in Powell v. Edwards did not state a reason for its conclusion, that decision is clearly in line with the modified civil rule which the- supreme court had adopted with regard to the flow of surface water in rural areas. See City of Mountain Brook v. Beatty, 292 Ala. 398, 404, 295 So.2d 388, 392 (1974). Therefore, we think Powell v. Edwards is controlling in the case at bar.

The civil rule with regard to the flow of surface water is based on the fact of nature that water seeks a lower level; thus, lower land is legally subservient to higher land to receive surface water which naturally flows from the higher to the lower. By contrast, under the common-law rule, surface water is regarded as a “common enemy” and a landowner may restrict or control such water in any way he deems necessary to protect his land, regardless of injury to adjacent property. See Cohen, Water Law in Alabama — A Comparative Survey, 24 Ala.L.Rev. 453, 479 (1972); Surface Water Rights in Alabama, 10 Ala.L. Rev. 154 (1957). The supreme court in Hughes v. Anderson, 68 Ala. 280 (1880), combined both principles in a modified civil rule and held that the owner of higher land has an easement across lower lands for the discharge of “waters which flow naturally, without any act of man.” It then stated that a landowner is permitted, for agricultural purposes, to:

“ . . . drain his ground which is too moist, and discharging the water according to its natural channel, may cover up and conceal the drains through his lands — may use running streams to irrigate his fields, though he thereby diminishes, not unreasonably, the supply of his neighbor below — and may clear out impediments in the natural channel of his streams, though the flow of water upon his neighbor be thereby increased.” 68 Ala. at 285.

Decisions subsequent to Hughes v. Anderson narrowly applied that decision’s qualification of the civil rule allowing a landowner to improve his land at the expense of a lower landowner under certain circumstances. Thus, a person’s land was held to be subservient to adjacent elevated lands only to the extent nature made it subservient, and lower land was required to receive from higher lands only that water which would flow upon it due to the natural terrain. See, e. g. Nininger v. Norwood, 72 Ala. 277 (1882); Crabtree v. Baker, 75 Ala. 91 (1883).

Then in King Land & Improvement Co. v. Bowen, 7 Ala.App. 462, 61 So. 22 (1913), the court of appeals resurrected the liberal doctrine of Hughes v. Anderson that “under some exceptional circumstances” an upper landowner may increase the burden on a lower estate:

“ . . . at a particular point by concentrating into one channel and depositing, at that point, in greater volume and with greater rapidity and more injury than nature, water which had theretofore naturally flowed by divers natural channels over a wider area on the same lower estate.” 7 Ala.App. at 477, 61 So. at 27.

The court characterized the Hughes decision as “asserting a dangerous doctrine, yet one that is essential to promote progress and development.” The factors to be balanced are the benefit derived by the upper landowner opposed to the detriment sustained by the lower landowner. It concluded that the rule with regard to drainage ditches is as follows:

“This exceptional right or ‘license’ in the upper proprietor to thus increase the burden of the lower estate, in this particular, must in all cases be exercised, as said, ‘with a prudent regard for the welfare of his neighbor,’ and itself arises only under exceptional circumstances and conditions; and as to whether they in fact exist and as to whether, if they do exist, they are sufficient to warrant the exercise of the right or ‘license,’ is to be determined by the jury, in each case, under proper instructions from the court, wherein they would be charged with the duty of determining whether the particular drain or ditch, which caused the damage, was necessary to the improvement of the upper land, whether one elsewhere or in some other method would not have reasonably accomplished the same benefit to the upper estate and resulted in no, or less, damage to the lower, and whether the value of the improvement to the upper land, as a result, so outweighed the detriment to the lower in particular and general good as to authorize it, and whether the upper owner in digging and locating and directing on his own land, the drain (first, so shown to be necessary) acted with proper care and regard for the rights of the lower owner, such care and regard as would prevent, if he could do so reasonably and consistently with the purposes in view, and if he could not, as would minimize, as far as he reasonably could consistent with such purposes, the damage and injury to the lower estate.” 7 Ala.App. at 477-78, 61 So. at 27.

In Vinson v. Turner, 252 Ala. 271, 40 So.2d 863 (1949), the supreme court adopted as its opinion the King Land & Improvement Co. decision, thereby conclusively establishing in this jurisdiction the modified civil rule regarding surface water in rural areas.

In light of this line of decisions and Powell v. Edwards, supra, we think the trial court erred in requiring King to maintain the ponds on his property for the benefit of Mrs. Adams. These cases make it clear that an upper landowner is free to interfere with the flow of surface water for the purpose of improving his or her property, as King alleged he did. The only duty an upper landowner owes to a lower landowner when so improving the elevated property is not to unduly burden the lower property by causing unnecessary damage and not to interfere with the lower landowner’s possessory rights. If the upper landowner breaches this duty, then he or she is answerable to the lower landowner for damages. But in no event is the upper landowner required to restore the status quo. That portion of the final judgment requiring King to rebuild his dams within eight months is reversed.

Appellant King next challenges the validity of the jury’s verdict. He says that reversal is required because the jury awarded punitive damages without making a specific award of compensatory or nominal damages. However, King failed to make any objection to the jury’s verdict or the entry of judgment thereon to the trial court by any sort of post-trial motion. Therefore he has failed to preserve any error for our review.

It is axiomatic that a trial court will not be put in error where no objection has been made and it has not had an opportunity to rule on the alleged error. Prather v. Nashville Bridge Co., 286 Ala. 3, 236 So.2d 322 (1970); Southern Cement Co. v. Patterson, 271 Ala. 128, 122 So.2d 386 (1960); Defore v. Bourjois, Inc., 268 Ala. 228, 105 So.2d 846 (1958). Jury verdicts are no exception to this rule. Gipson v. Smith, 261 Ala. 477, 75 So.2d 85 (1954); Life & Casualty Insurance Co. v. Womack, 228 Ala. 70, 151 So. 880 (1933); Patterson v. Irvin, 132 Ala. 557, 31 So. 474 (1902); cf. Hosey v. Robinson, 293 Ala. 194, 301 So.2d 69 (1974).

King next claims that the trial court erred by setting out a penalty of $1,000 per day in the event he failed to close the dams within the time specified by the decree. Since that aspect of the decree is reversed, we do not decide this issue.

King’s final issue is that the evidence is insufficient to support the verdict and judgment. This issue was not argued in brief; therefore we will not discuss it.

The judgment of the trial court is affirmed in part, reversed and rendered in part.

AFFIRMED IN PART; REVERSED AND RENDERED IN PART.

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

      . King Land & Improvement Co. v. Bow n, 7 Ala.App. 462, 475, 61 So. 22, 27 (1913).


author: TYSON, Presiding Judge.

text:
    Willard L. CARY, alias v. STATE.
    6 Div. 440.
    Court of Criminal Appeals of Alabama.
    June 28, 1977.
    Rehearing Denied July 26, 1977.
    Larry Waites and V. Aubrey Mince, Jr., Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and Joseph G. L. Marston, III, Asst. Atty. Gen., for the State.
   TYSON, Presiding Judge.

The indictment charged the appellant, Willard L. Cary, alias, with the robbery of John Raiford Medders. The jury found the appellant “guilty as charged” and fixed punishment at twenty years imprisonment. The trial court then entered judgment which set sentence in accordance with this verdict.

Officer David Hanks of the Midfield Police Department testified that on May 15, 1976, he received a call around 10:00 p. m. to go to 1223 Twelfth Avenue, Midfield, Alabama. Upon arrival he found Mrs. J. R. Medders in the front yard, bound hand and foot, with tape on her mouth. Mr. Medders was found inside the residence beaten very badly, but still breathing. Mr. Medders subsequently died.

Mrs. Medders testified that the appellant had rented a house from her husband which was located next door. In March, 1976, the appellant and his family moved to Walker County, leaving all of his furniture and belongings. The appellant also left owing Mr. Medders some money. Mr. Medders collected “Wheat Pennies” and “Barr Dollars.” The appellant was aware of this and had seen them in the Medders’ home. Mrs. Medders testified that on May 15, 1976, two men over six feet tall drove up in a white van and asked Mr. Medders if they could buy some bricks. The two men then pulled guns out and said, “This is a holdup.” They tied up Mrs. Medders in the bedroom, and she testified that she could hear them beating her husband in the next room. A pistol was taken by one of the men from Mrs. Medders’ poeketbook, and she was beaten with it several times. Mrs. Medders identified State’s Exhibit No. 7 as the pistol which was taken from her poeketbook.

James Welch, the appellant’s father-in-law, testified that on May 15, 1976, the appellant, his wife, two children, two men and another woman were at his home. That same day Welch left for Florida and did not return until May 16, 1976. Welch testified that they were driving a white van. At this time the appellant was making Oklahoma his home and was just visiting in Alabama.

Wanda Cassidy, the appellant’s former wife, testified that the appellant and his family lived with her for several days in Tulsa, Oklahoma. The appellant then rented a home across the street from Cassidy. Cassidy introduced the appellant to Rick and Skip Ashlock, two work-release convicts. Cassidy testified that the appellant told the Ashlock brothers that Medders would be easy to rob. Cassidy, the Ash-locks and the Cary family left for Jasper, Alabama, on May 14, 1976, in a white van. On May 14,1976, they arrived at the appellant’s father-in-law’s home. After Welch (appellant’s father-in-law) left for Florida, the Ashlock’s left in the white van and did not return until 10:30 or 11:00 p. m. that evening. The appellant, according to Cassi-dy, told her that they had gone to rob Medders. The Ashlocks, Cassidy testified, returned with blood on their clothes, carrying “Wheat Pennies,” a bunch of one dollar bills, pistols, and jewelry. Within an hour of their arrival they left for Oklahoma. The Ashlocks were dropped off in Eufala, Oklahoma, and the rest went back to Tulsa. Cassidy drove -to Eufala a couple of days later and took the Ashlocks to Houston, Texas, where they sold a pistol to one Jimmy MeLane (State’s Exhibit No. 7).

Darlene Cary, the appellant’s wife, said she did not see any blood on the Ashlocks when they returned after the alleged robbery.

The appellant denies any knowledge of the robbery.

The sole issue presented by the appellant is whether the trial court erred in refusing to allow the cross-examination of Wanda Cassidy regarding possible bias, interest, and motive in giving her testimony.

During the cross-examination of Cassidy by the appellant, the following exchange occurred (R. pp. 96-97):

“Q. No. Did you call your lawyer?
“A. Yes, sir.
“Q. Okay. And he told you, did he not, that if you would come to Alabama to testify that you wouldn’t be prosecuted. Isn’t that correct?
“MR. REYNOLDS: We object.
“THE COURT: Sustained.
“A. My lawyer—
“Q. (By Mr. Waites) Well, you understand that you are not going to be prosecuted, don’t you?
“A. Yes, sir.
“Q. And you understand that you are not going to be prosecuted because you are testifying; isn’t that correct?
“MR. REYNOLDS: Judge, I object to that.
“THE COURT: Sustained.
“MR. WAITES: We except, if it please the Court, I think it goes to bias.
“THE COURT: Sustain objection.
“MR. WAITES: We except.
“Q. (By Mr. Waites) But you have been told that you were not going to be prosecuted?
“A. Let me say this. When I first—
“MR. REYNOLDS: Judge, I object. Just answer the question.
“THE COURT: Just answer the question.
“THE WITNESS: Repeat the question, please.
“Q. (By Mr. Waites) You have been told you were not going to be prosecuted. Is that correct?
“A. Yes.” [Emphasis added]

The possibility of bias or interest on the part of this witness was squarely before the jury for their consideration. Allen v. State, 55 Ala.App. 549, 317 So.2d 517. As may be seen, Cassidy testified on two occasions during cross-examination that she understood she would not be prosecuted. Therefore, when a witness admits her bias or interest, no purpose is served by further cross-examination. Nations v. Harris, 214 Ala. 339, 108 So. 29; Smith v. State, 41 Ala.App. 528, 138 So.2d 474.

The balance of this questioning being largely repetitious, no error is shown. Wright v. State, 49 Ala.App. 539, 274 So.2d 95; Browder v. State, 54 Ala.App. 369, 308 So.2d 729, cert. denied 293 Ala. 746, 308 So.2d 735; Washington v. State, 57 Ala. App. 465, 329 So.2d 155; Colston v. State, 57 Ala.App. 4, 325 So.2d 520.

The record being free from error, the judgment is

AFFIRMED.

All the Judges concur.

      . Wheat pennies are the pennies produced during and prior to 1958 which featured a wheat design on the back.

      . Barr Dollars are treasury notes issued in 1963 during the month that Joseph Barr was Secretary of the Treasury.


author: FAULKNER, Justice.

text:
    Ex parte Willard L. CARY, alias.
    SC 2764.
    Supreme Court of Alabama.
    Sept. 30, 1977.
   FAULKNER, Justice.

WRIT DENIED.

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


text:
    Clete KING v. STATE.
    6 Div. 157.
    Court of Criminal Appeals of Alabama.
    May 4, 1976.
    Rehearing Denied June 1, 1976.
   AFFIRMED, without opinion.

Certiorari Granted and Cause Remanded Ala., 349 So.2d 618.


author: BEATTY, Justice. ALMON, Justice

text:
    In re Clete KING v. STATE of Alabama. Ex parte Clete King.
    SC 1901.
    Supreme Court of Alabama.
    Dec. 30, 1976.
    Rehearing Denied Feb. 4, 1977.
    Benjamin E. Pool, Montgomery, for petitioner.
    William J. Baxley, Atty. Gen., and Ellis D. Hanan, Asst. Atty. Gen., for the State, respondent.
   BEATTY, Justice.

This case is before us on petition for writ of certiorari after application to the Court of Criminal Appeals for a rehearing was denied, 349 So.2d 618.

Clete King was found guilty by a jury of the charge of selling, removing or concealing property covered by a lien, in violation of Tit. 14, § 363, Alabama Code, and sentenced to three years in the state penitentiary. Upon the denial of his motion for a new trial he appealed to the Court of Criminal Appeals which affirmed his conviction and later denied his application for rehearing. 55 Ala.App. 306, 314 So.2d 908. We denied his petition for writ of certiorari in that case. 294 Ala. 762, 314 So.2d 912.

Then King filed a petition for writ of error coram nobis which the trial court denied after an evidentiary hearing. This denial was appealed to the Court of Criminal Appeals which affirmed the trial court without opinion. Application for a rehearing was denied and this petition for certio-rari followed.

From the record of the trial court on this petition, the briefs and oral argument we perceive that the principal issues here concern the nature and availability of post-conviction relief, whether it is found under Rule 60(b), ARCP or common law coram nobis and whether the petitioner has met the requirements thereunder,

Noting that the case comes to us on certiorari from the Court of Criminal Appeals, we cannot go to the record since we are limited by findings of fact of that court. Grant v. City of Mobile, 291 Ala. 458, 282 So.2d 291 (1973). From what is before us, however, we cannot determine whether that court’s decision recognized that King had a remedy either under 60(b) or the common law standards set out in Johnson v. Williams, 244 Ala. 391, 13 So.2d 683 (1943) and case law thereunder, but failed to establish it, or whether it decided no remedy existed for King either under Rule 60(b), or common law coram nobis, despite the facts established in the trial court as set out in the record. From this record, however, it appears that the petitioner may have raised a serious constitutional issue. For this reason, we must remand the case to the Court of Criminal Appeals in order to allow that court to make such a determination as the record justifies.

Cause remanded to the Court of Criminal Appeals for further consideration in conformance with this opinion.

REMANDED.

HEFLIN, C. J., and BLOODWORTH, MADDOX, FAULKNER, JONES, SHORES and EMBRY, JJ., concur.

ALMON, J., dissents.

ALMON, Justice

(Dissenting):

Petitioner appealed to the Court of Criminal Appeals from a denial of his petition for writ of error coram nobis. The Court of Criminal Appeals affirmed without opinion and denied the application for rehearing without opinion.

In the petition for writ of certiorari no constitutional questions are raised. Petitioner failed to utilize Rule 39(k), Rules of Appellate Procedure, which is the vehicle designed to present to this court additional facts. Rule 39(k) is as follows:

“(k) Scope of Review. The review shall be that generally employed by cer-tiorari and will ordinarily be limited to the facts stated in the opinion of the particular court of appeals. If the petitioner is not satisfied with that statement of facts, he may, on application for rehearing in that court, present any additional or corrected statement of facts and request that court to add or correct those facts in its opinion on rehearing. If the court fails to accede to this request, petitioner may copy the statement in the petition to this court, with references therein to the pertinent portions of the clerk’s record and reporter’s transcript, and it will be considered along with the statement of facts in the opinion of the appellate court, if found to be correct.
“The application of the law to the stated facts is included in the scope of review.”

This is a no opinion case where no constitutional grounds are asserted and where Rule 39(k) is not utilized; nothing is presented for review. The petition for writ of certiorari should have been denied. Ex parte Phelps v. State, Ala., 339 So.2d 124.


author: HARRIS, Judge.

text:
    Clete KING v. STATE.
    6 Div. 157.
    Court of Criminal Appeals of Alabama.
    April 19, 1977.
    Rehearing Denied May 24, 1977.
    Benjamin E. Pool, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Ellis D. Hanan, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

This case was affirmed by this Court on May 4, 1976, without an opinion. Application for rehearing was overruled on June 1, 1976, without an opinion.

The case reached the Supreme Court on a petition for certiorari and the case was remanded for this Court to consider Constitutional issues raised by appellant under the common law coram nobis or under Rule 60(b) of the Alabama Rules of Civil Procedure.

When the case was originally submitted to this Court we carefully searched the record for errors, including Constitutional questions, which injuriously affected the substantial rights of appellant and found none. We determined that the case did not warrant a formal opinion.

The Rules of Civil Procedure have no application in criminal proceedings. See the Committee’s Comments following Rule 1 and Burns v. State, 57 Ala.App. 662, 327 So.2d 920.

The common law writ of error is still a part of our criminal system of justice and is constantly resorted to in proper cases..

At the coram nobis hearing Mr. Robert L. Petrey, the loan officer at the First National Bank of Montgomery who handled the loan transaction with Mr. King, testified that “Based upon the information that I have from the First National Bank I was .mistaken when I testified that I issued a check to Mr. King in the afternoon. The records indicate that the check was issued in the morning, the date the loan was made. And as far as the serial number on the automobile is concerned I cannot testify whether it was given to me by Cíete King or by Willie Smith, who was an officer with the bank at that time.”

Mr. Petrey further stated that he testified to what he believed to be the truth at the time of Mr. King’s original trial.

In denying the writ the Court stated that appellant had ample opportunity to have the bank records available at his original trial and was negligent in not' doing so.

There is no allegation in the petition and, of course, no proof that the State knowingly used perjured testimony to convict appellant on the original trial.

In Ex parte Brannan, 41 Ala.App. 500, 139 So.2d 349 and Horsley v. State, 42 Ala. App. 567, 172 So.2d 56, this Court held that to obtain coram nobis relief from a conviction on the ground of perjured testimony the testimony must be shown to have been knowingly used by the prosecution and the convict must not have been negligent.

The fact that a witness gave contradictory testimony does not establish that a defendant was convicted on false or perjured testimony. Echols v. State, 276 Ala. 489, 164 So.2d 486.

It is our considered judgment that the trial court correctly denied the petition for writ of error coram nobis and the case is due to be affirmed.

AFFIRMED.

All the Judges concur.


author: EMBRY, Justice.

text:
    Ex parte Clete KING.
    SC 2630.
    Supreme Court of Alabama.
    July 8, 1977.
   EMBRY, Justice.

WRIT DENIED.

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