author: PAUL, Retired Circuit Judge.

text:
    Barbara H. PLASKETT v. John N. PLASKETT.
    Civ. 994.
    Court of Civil Appeals of Alabama.
    June 8, 1977.
    Rehearing Denied July 20, 1977.

      Harold P. Knight, Birmingham, for appellant.
    Ralph E. Slate, Decatur, for appellee.
   PAUL, Retired Circuit Judge.

This appeal is from a divorce decree. We affirm.

The parties were married on April 7, 1962, and are parents of a thirteen-year-old son. During the summer of 1975 they separated. Mr. Plaskett filed for divorce on the ground of incompatibility on July 10. Mrs. Plaskett contested the divorce but sought attorney’s fees and asked that she be given custody of the child if a divorce were granted.

The first trial was commenced on December 10,1975. At the hearing the trial judge adjudged Mrs. Plaskett guilty of contempt because of some altercations outside the court room, and then recused himself from further participation in the case.

This matter then proceeded to trial before another judge who heard the evidence ore tenus on March 31, 1976. On April 8, the court entered judgment granting the divorce on the ground of incompatibility; awarding custody of the son to Mrs. Plask-ett with Mr. Plaskett having visitation rights for two months in the summer, a week at Christmas and during spring school vacation; ordering Mr. Plaskett to pay $150 monthly child support as well as all reasonable medical expenses of the son; ordering the sale of the family home in a commercially reasonable time and manner to pay off family debts of approximately $7,000 and the mortgage of $20,000 with any surplus to be paid to the register for division with the personal property; and ordering a reference by the register for division of personal property and proceeds from sale of the house, after payments of the debts, “as equally as possible.”

On May 4 Mrs. Plaskett moved for a new trial. The court heard additional testimony and on August 9, 1976, amended its prior judgment so as to require the register to sell the home as soon as possible, to state that no debts incurred after March 31 could be included in family debts, and to grant visitation rights to Mr. Plaskett every weekend. On September 16 Mrs. Plaskett appealed. On September 22 supersedeas bond of appellant in the amount of $100 was filed and approved.

By order of August 13, 1976, the register ordered the parties to submit a list of all personal property, except clothing, together with value of each item by August 24. Mr. Plaskett submitted a list but Mrs. Plaskett did not. Reference was set for September 16. The report of reference filed September 17, 1976, indicates that the session was a stormy one. Apparently the parties were requested by the register to choose articles (from Mr. Plaskett’s list). The report has attached their choices. In substance, the register, under the choosing method, divided the personal property in the following manner: 1974 Buick to Mrs. Plaskett, 1969 Volkswagen to Mr. Plaskett, Mr. Plaskett retained his contributions to the incentive plan; otherwise each party received half the value of the personal property as listed and valued by Mr. Plaskett (approximately $10,000 each). Mrs. Plaskett on September 27 objected to the values of certain items and also stated some were the possessions of the son or members of her family and should not have been included in the division. No further proceedings appear in the record.

The record does not reveal whether the report of reference was ever submitted to the judge for his consideration. We must assume that it was not adopted or rejected. It should be noted that notice of appeal was filed on the date of reference and prior to the report. Therefore the trial judge had lost jurisdiction to act upon it, especially since a supersedeas bond was approved. This being true, any question of division of the property is not before this court of appeals.

From the testimony it is clear the parties were entitled to a divorce even though Mrs. Plaskett testified she still loved her husband and did not want a divorce. The record is replete with evidence sufficient to support a finding of incompatibility-

The relationship which led to the separation involved a visit made by Mrs. Plaskett to the San Francisco area. Prior to her marriage to Mr. Plaskett, Mrs. Plaskett had been employed by a man to keep his two children. In June of 1975 she told Mr. Plaskett she was going to Mobile to visit some friends for a few days. In fact, Mrs. Plaskett had flown to California at the expense of her former employer and remained there two weeks. Mrs. Plaskett contends she told her husband she was going to California and that while there she visited the man’s entire family. She testified that she had been in love with her former employer but things had changed since then. Upon her return to Alabama Mr. Plaskett filed for divorce.

There was some testimony by Mrs. Plask-ett concerning her husband’s relationship with a female employee at Wolverine but no other testimony to substantiate the existence or nature of that relationship.

This marriage was clearly at an end and most of the fault appears to stem from the conduct of Mrs. Plaskett. We find no error in the granting of the divorce. Dyal v. Dyal, 54 Ala.App. 206, 307 So.2d 17 (1975); Phillips v. Phillips, 49 Ala.App. 514, 274 So.2d 71, cert. denied, 290 Ala. 370, 274 So.2d 80 (1973).

The parties owned no realty other than the family home, which had an outstanding mortgage indebtedness of $20,000. The home was valued at between $35,000 and $40,000. Mrs. Plaskett testified she did not want the home for herself but for her son who had a mild learning disorder.

Mr. Plaskett was superintendent of the aluminum department at the Wolverine Tube Division of Universal Oil Products Company in Decatur. He received a monthly salary of $1,550. Monthly deductions included $459.52 for withholding, unemployment insurance and FICA; $11.33 for life, health and accident insurance; $25 for retirement; $4 for United Fund; $230 for Wolverine credit union ($7 for savings); and $50 for the company incentive investment plan. His net take home pay per month was $770.15. On February 29, 1976, Mr. Plaskett had accumulated $47 in a savings account with the credit union, On December 31, 1975, Mr. Plaskett had $3,740.04 invested in the incentive plan; the company had contributed $1,452.82 of this amount and Mr. Plaskett $1,630. If he withdrew anything within the first five years (before July, 1977), he would lose the entire company contribution and not be allowed to make any contributions himself for a year. He would be able to withdraw only 50% of the company contribution in 1977 and increasing amounts until 1982 when the total contribution could be withdrawn. This incentive plan was an investment subject to gains and losses in a trust fund.

The son of the parties had certain accounts in Tennessee banks totalling $1,763.99, most of which had been contributed by Mr. Plaskett’s father. The Bank of Loretto indicated by letter that one of these accounts (for $767.31) was held by Mr. Plaskett.

Certain family debts had been incurred over the years. These debts total $7,197.56. It appears the trial court was referring to these debts when it spoke of approximately $7,000 in family debts which should be paid out of the proceeds from the sale of the family home. Mr. Plaskett was paying $423.00 per month on the debts in addition to $167.72 per month on the home.

Mrs. Plaskett worked for only a month or two during the marriage of the parties. After they separated she worked for a time at the County Meat Market. At the time of the March hearing she was working for Decatur Credit Union where her weekly take home pay was $74 but she left that job after two months. At the time of the August hearing she was working as a receptionist and assistant for a dentist at $100 per week. She had registered in the dental assistant program at a local junior college to begin in September of 1976. She could not continue to work while in school but would be eligible for $100 monthly unemployment compensation. While attending school she would receive free books and tuition, $1 weekly transportation expense, and $60 weekly stipend as long as she maintained her grades at a certain level. She testified that she needed $452 a month as living expenses, including $150 for food and $100 for utilities. She had no medical or hospital insurance.

An orthopedic surgeon stated that he had performed surgery on Mrs. Plaskett in 1974 in which some lumbosacral vertebra in her back were fused together and some entrapped nerve roots in her spine were decompressed. As a result she has only limited movement of her back and a 15-20% physical impairment to the body as a whole. Mrs. Plaskett also testified she experienced partial paralysis of the left hand and might be suffering from a liver disease.

It is difficult to determine exactly which aspects of the divorce decree Mrs. Plaskett complains of. She apparently contends the court erred in not granting her alimony, failure to award adequate child support and in ordering sale of the home. She made no request for alimony or general relief by any pleading prior to trial. Neither did she make such request orally at trial nor allege the absence of alimony as error in her motion for new trial.

An award of alimony as incident to the granting of a divorce is not mandatory but at the discretion of the trial court. Rich v. Rich, 256 Ala. 339, 54 So.2d 554 (1951); Garlington v. Garlington, 246 Ala. 665, 22 So.2d 89 (1945). Misconduct of a wife, even though not grounds for a divorce, may be considered as in a measure abridging her claim to an allowance of alimony. Owens v. Owens, 281 Ala. 239, 201 So.2d 396 (1967); Sanford v. Sanford, 271 Ala. 508, 125 So.2d 1 (1960).

In light of the part Mrs. Plaskett played in the downfall of the marriage, her future prospects of earnings and her present living expenses, we find no palpable error committed in the failure to award alimony. Of course we are aware that without such allowance Mrs. Plaskett will not be able to seek alimony in the future. Davis v. Davis, 274 Ala. 277, 147 So.2d 828 (1962); Wells v. Wells, 230 Ala. 430, 161 So. 794 (1935).

Mrs. Plaskett contends she should be allowed additional money for child support. The amount of child support is a matter for the discretion of the trial court and will not be revised on appeal except for an abuse of that discretion. Phillips v. Phillips, 277 Ala. 2, 166 So.2d 726 (1964); Colombaro v. Colombaro, 54 Ala.App. 157, 306 So.2d 23 (1975). We find no abuse of discretion here.

Next, Mrs. Plaskett contends she should have received the home until she remarries or the son becomes self-supporting, all the household goods and furnishings, and half of the money in the Wolverine incentive plan. Mrs. Plaskett filed this appeal before the register divided the personal property, including the household gpods and furnishings, automobiles, and the Wolverine incentive plan funds. As we have stated above, no order has been entered by the court adopting the decision of the register. In such state the matter is not appealable. See 27A C.J.S. Divorce § 157; 76 C.J.S. References §§ 193 et seq.

Insofar as the order to sell the home is concerned, we note that the division of property is also a matter vested in the sound judicial discretion of the trial court and will not be reversed on appeal absent palpable abuse. Segars v. Segars, 334 So.2d 684 (Ala.Civ.App.1976). A court may order the sale of the family home and divide the proceeds between the parties after the payment of the mortgage and family debts. Shell v. Shell, 48 Ala.App. 668, 267 So.2d 461, cert. denied, 239 Ala. 751, 267 So.2d 467 (1972); Rayburn v. Rayburn, 46 Ala.App. 552, 246 So.2d 82 (1971). We find no palpable abuse here.

Mrs. Plaskett’s final contention is that she was entitled to an award of attorney’s fees. Such matter is within the discretion of the trial court. Smith v. Smith, 57 Ala.App. 615, 330 So.2d 439 (1976); Pruett v. Pruett, 333 So.2d 580 (Ala.Civ. App.1976). We find no error in this regard.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.

      . Sitting by order of the Chief Justice pursuant to § 6.10 of the Judicial Article, Amendment No. 328 of the Constitution.


source: Caselaw Access Project

author: EMBRY, Justice.

license: Public Domain

text:
    Ex parte Barbara H. PLASKETT.
    SC 2754.
    Supreme Court of Alabama.
    Aug. 19, 1977.
   EMBRY, Justice.

WRIT DENIED.

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


author: BRADLEY, Judge.

text:
    Ralph HARRELSON v. Wayne GOWIN.
    Civ. 1067.
    Court of Civil Appeals of Alabama.
    June 8, 1977.
    Order of Reversal July 11, 1977.

      Earl V. Johnson, Andalusia, for appellant.
    Edward M. Price, Jr., Dothan, for appel-lee.
   BRADLEY, Judge.

This is an appeal by the defendant from a judgment in favor of the plaintiff for $1,830 and costs.

Wayne Gowin and Clarence Manley filed an action against Ralph Harrelson in the Circuit Court of Houston County claiming that on July 31, 1974 Harrelson had represented to them that Harrelson was the lawful owner of a 1972 Oldsmobile four door Cutlass and, based on that representation, they had purchased the vehicle for $1,830. The complaint further alleged that the vehicle purchased was actually a 1971 Oldsmobile and by such misrepresentation Harrel-son had breached his warranty of title.

Harrelson moved the court to transfer the case to Covington County, his permanent residence. The motion for change of venue was denied. Harrelson then filed an answer in which he admitted he was the owner of the vehicle and that he had sold it to the plaintiffs but denied that he had represented the vehicle to be a 1972 Oldsmobile rather than a 1971 Oldsmobile.

Trial was had before the court sitting without a jury. Manley was dismissed as a party plaintiff and a judgment was rendered against Harrelson and in favor of Gowin in the amount of $1,830. Harrelson’s motion for new trial was denied.

The evidence shows that on July 31, 1974 Gowin purchased from Harrelson a vehicle represented by the bill of sale to be a 1972 Oldsmobile Cutlass four door sedan. The sale took place at the Auto Auction in Do-than, Alabama, which was owned by Manley. The serial number of the vehicle as it appeared on the bill of sale and tag registration receipt was 3G87H2R102248.

The vehicle was transferred several times to dissatisfied customers, finally coming back into Manley’s possession. Manley, suspecting the car had been stolen, requested J. R. Pate, an Alabama State Trooper assigned to the Motor Vehicle Theft Unit, to inspect the vehicle. Pate testified that in July 1976 he examined the vehicle in question and found that the vehicle identification number, attached to the dashboard of the car, was 3G87H2R102248; this number indicated the vehicle was a 1972 Oldsmobile Cutlass two door coupe. However, the secondary number of the vehicle, which should have corresponded with the vehicle identification number, indicated the car was a 1971 Oldsmobile Cutlass four door sedan. Pate said in his opinion the dashboard from a 1972 Oldsmobile Cutlass had been placed in a 1971 Oldsmobile Cutlass.

Appellant Harrelson contends the trial court committed reversible error in denying his motion for change of venue to the county of his residence and in its assessment of damages against him.

Harrelson says that at the time the contract was made and at the time suit was filed he was a resident of Covington County, and furthermore he has never been a resident of Houston County. Relying on Rule 82(b)(1)(A), ARCP, he says the proper venue for the contract action was Coving-ton County, his county of residence. He did not waive venue (see Jordan v. Guaranty Pest Control, Inc., 292 Ala. 601, 298 So.2d 244 [1974]), and therefore reversal is required, Assured Growth Corp. v. Tomberlin, Ala.Civ.App., 334 So.2d 918 (1976).

We think it is subdivision (c) of Rule 82, ARCP, rather than subdivision (b), which controls in the instant case. The first sentence of section (c) states:

“Where several claims or parties have been joined, the suit may be brought in any county in which any one of the claims could properly have been brought.”

The complaint can be viewed as stating two causes of action, one in tort for misrepresentation and one in contract for breach of warranty of title. According to Rule 82(b)(1)(A), a personal action other than an action in contract may be brought either in the county where the act complained of occurred, here Houston County, or in the county of the permanent residence of the defendant, here Covington County. Since the Circuit Court of Houston County had proper venue of the misrepresentation cause of action, under Rule 82(c) venue was also proper for the breach of warranty action.

The committee comments to Rule 82 state:

“These rules provide for a more liberal joinder of claims and of parties than has hitherto been possible in Alabama. These joinder provisions will be greatly restricted if venue must be proper as to every claim and every party which is joined, and authorization of liberalized joinder having been contemplated by the enabling act, such restriction is not considered to have been intended by the legislature.”

Although this comment seems to refer to a situation where an ancillary claim has been joined to the original action, we think the comment applies with equal validity to the situation where, as here, two claims have been alleged initially in the complaint. The trial court committed no error in refusing the requested change of venue.

Harrelson’s main contention appears to be that the trial court treated the case as one sounding in tort when in fact it was one sounding in contract. As a consequence, says Harrelson, the trial court erred in its assessment of damages.

As already stated, Gowin alleged a misrepresentation of material facts which induced him to purchase the vehicle in question in the complaint and the misrepresentation was proven at trial. Furthermore, Gowin failed to prove that Harrelson did not have title to the car when he sold it. Thus, the trial court did not err in awarding damages for misrepresentation rather than for breach of warranty of title.

With regard to the amount of damages, the supreme court in Hall Motor Co. v. Furman, 285 Ala. 499, 504, 234 So.2d 37, 41 (1970), said:

If a fraud is not perpetrated grossly, maliciously, oppressively, and with an intent to deceive, the damages to be recovered are such as will compensate for actual damages received. Foster v. Kennedy’s Adm’r, 38 Ala. 359; Berry v. Wooddy, 16 Ala.App. 348, 77 So. 942.”

In the case at bar we found no evidence that the fraud was grossly, maliciously or oppressively perpetrated; hence the measure of damages in this instance would be the actual damages received.

Mr. Gowin testified that he paid $1,830 for a 1972 Oldsmobile Cutlass four door sedan and that the fair market value of such a vehicle at the time he bought it was between $1,800 and $1,900. He also stated that at this time the fair market value of a 1971 Oldsmobile Cutlass would be about $600 less than he paid for what he thought was a 1972 Oldsmobile Cutlass. Another witness testified that the market value of a 1972 Oldsmobile Cutlass four door sedan at the time Gowin purchased it would be between $1,800 and $1,900. This same witness testified that the fair market value of a 1971 Oldsmobile Cutlass in 1974 would be about $1,200.

The maximum amount of actual damages that could have been awarded by the trial court was $630; hence the judgment as to damages is erroneous. The judgment will be reversed unless appellee, Gowin, shall within thirty days after this date file a remittitur reducing the judgment from $1,830 to $630. If the appellee shall timely file such remittitur, the judgment will be reduced and affirmed for the sum of $630.

AFFIRMED CONDITIONALLY.

HOLMES, J., and PAUL, Retired Circuit Judge, sitting by special appointment, concur.

Order of Reversal

This cause having been affirmed conditionally on June 8, 1977 and the appellee ordered to file with the Clerk of the Court of Civil Appeals of Alabama within 30 days from this date a remittitur of all damages in excess of Six Hundred and Thirty Dollars ($630) or the judgment of the Circuit Court would be reversed and annulled and the cause remanded to said Court for further proceedings therein, and remittitur having not been filed with this Court,

IT IS THEREFORE ORDERED AND ADJUDGED that the judgment of the Circuit Court be reversed and annulled and the cause remanded to said Court for further proceedings therein.

IT IS FURTHER ORDERED that the appellee, Wayne Go win, pay the costs accruing on said appeal in the Court below, for which costs let execution issue.


text:
    George ORUM v. EMPLOYERS CASUALTY COMPANY, a corp.
    Civ. 1127.
    Court of Civil Appeals of Alabama.
    July 27, 1977.

      Alva C. Caine, Birmingham, for appellant.
    John B. Tally, Jr., Birmingham, for appel-lee.
   BRADLEY, Judge.

This appeal presents a question of first impression in Alabama: whether an injured employee must reimburse his employer’s workmen’s compensation carrier for benefits received upon obtaining a settlement from a third party tortfeasor.

On January 8, 1975 George Orum, while an employee of Graphite and Carbon, Inc., was injured on the job when his feet slipped into a load of graphite he was hauling, causing them to be crushed and injured. Employers Casualty Company, a corporation, the workmen’s compensation insurer for the employer, paid to Orum $4,478.55 as compensation for temporary total disability and medical benefits of $4,838.15.

On January 6, 1976 Orum filed a complaint in the Circuit Court of Jefferson County against J. I. Case Company, Inc. claiming that he was injured while operating a machine manufactured by Case; that his injuries were caused by the negligence of the manufacturer in designing, building and distributing such a defective machine; and $100,000 as damages. Orum also alleged a breach of warranty and asked for a similar sum as damages. On motion of Case the matter was transferred to the United States District Court for the Northern District of Alabama.

After removal of the action to the federal court, Employers Casualty Company filed a motion to intervene in said proceeding on the following ground:

“4. The intervenor is subrogated to the rights of the plaintiff to the extent of the payments so made and is entitled to recover the sum so paid out of any judgment which the plaintiff may recover against the defendant for or by reason of the injuries described in the plaintiff’s complaint.”

Orum settled with Case without going to trial. The federal court entered an order permitting Orum’s claim against Case to be dismissed with prejudice and also allowed Employers to dismiss with prejudice its claim against Case. Upon request, the court then dismissed Employers’ claim against Orum but without prejudice to any right of recovery it might have against him.

On October 21, 1976 Employers Casualty Company filed an equity action against George Orum in the Circuit Court of Jefferson County alleging, among other things, that Orum had settled with Case in the third party action for $21,500; that it had received no part of the settlement; and that it was entitled to recover of Orum $4,478.55 paid to him as compensation benefits for temporary total disability under Title 26, Section 312, Code of Alabama 1940 (Recomp.1958): That section provides in pertinent part:

“If the injured employee [recovers] damages against such other party the amount of such damages so recovered and collected shall be credited upon the liability of the employer for compensation, and if such damages so recovered and collected should be in excess of the compensation payable under article 2 of this chapter there shall be no further liability on the employer to pay compensation on account of such injury or death, and the employer shall be entitled to reimbursement for the amount of compensation theretofore paid on account of such injury or death.”

Orum moved for a dismissal of the complaint on two grounds; first that Employers’ claim was barred due to its failure to pursue its subrogation rights against Case in the federal court and therefore it was estopped from asserting such a claim against Orum; and second, that Employers had waived any claim against Orum because Employers voluntarily dismissed its claim against Case in the federal court. This motion was overruled and an answer was filed; thereupon the court, after entering a pre-trial order in which it was agreed to submit the matter on the pleadings, held pursuant to the authority of Title 26, Section 312 that Employers was entitled to recover of Orum the $4,478.55 previously paid to him as compensation benefits for temporary total disability. Orum appeals from that decree.

Orum’s position appears to be that since Employers did not participate in his settlement with Case and did not pursue its sub-rogation claim against Case, as Orum contends Employers had a right to do, Employers cannot now expect to be reimbursed for the benefits paid by it to Orum out of Orum’s settlement with Case. Orum further says that Employers, by not participating in the settlement and by dismissing its action against the tortfeasor, waived its subrogation rights under Title 26, Section 312, Code of Alabama 1940 (Recomp.1958).

Employers, also relying on Title 26, Section 312, says in response that there was no waiver of its right of recovery against the employee to whom it had previously paid compensation benefits by the dismissal with prejudice of its claim against the third party tortfeasor. Employers maintains it had a choice to pursue its claim against Orum in the federal court or, as it did, to file a new action against Orum in the state court to recover the amount it had paid to him as compensation benefits.

Title 26, Section 312 authorizes an injured employee, or in case of his death his dependents, to bring an action against a third party tortfeasor to recover damages within the time allowed by law, and gives to the employer or its insurer, should the employee or his dependents fail to bring the action within the time allowed, an additional six months within which to file such an action. This aspect of section 312 has been construed to mean that the employee or his dependents have exclusive authority to bring the action. It is only when they fail to prosecute the action within the time allowed by law that the employer or its insurer has a right to proceed against the third party tortfeasor. Liberty Mutual Insurance Co. v. Lockwood Greene Engineers, Inc., 273 Ala. 403, 140 So.2d 821 (1962). In the case at bar the employee did file an action against the third party tortfeasor in the Circuit Court of Jefferson County. The action was transferred to the federal court and the insurer intervened. The insurer informed both the employee and the third party tortfeasor that it was exercising its subrogation rights to the extent of the compensation benefits it had paid to the employee and expected to recover this amount out of any judgment which the employee recovered.

We are persuaded that Employers, by its intervention petition, was not proceeding adversely against the tortfeasor and thereby usurping the employee’s action, but was merely protecting its statutory right to share in the proceeds of any recovery by the employee by making both the employee and third party tortfeasor aware of its interest to the extent of the compensation benefits previously paid to the employee. Such a procedure seemingly complies with section 312, and Liberty Mutual Insurance Co., supra, and does not appear to contravene the pronouncements of Hughes v. Newton, 295 Ala. 117, 324 So.2d 270 (1976), or Liberty Mutual Insurance Co. v. Manasco, 271 Ala. 124, 123 So.2d 527 (1960). We conclude that procedurally Employers followed the proper course of action.

We now turn to the question whether Orum must reimburse Employers the $4,478.55 he has received in workmen’s compensation benefits from the $21,500 settlement with Case.

Orum apparently concedes that had the action in the federal court been prosecuted to final judgment, under section 312 Employers would have been entitled to recover the amount it paid in benefits to Orum. However, he argues, since the claim against the third party tortfeasor was settled, and therefore not reduced to judgment, Employers is not entitled to recover the $4,478.55. This argument is based on the provision in section 312 for the recovery of damages by the employee against the third party tortfeasor. Orum maintains that damages can mean only a money judgment, and therefore section 312 precludes reimbursement from a settlement.

This same argument was rejected by the Supreme Court of Alaska in Stafford v. Westchester Fire Insurance Co., Alas., 526 P.2d 37 (1974), overruled on other grounds Cooper v. Argonaut Insurance Companies, Alas., 556 P.2d 525 (1976), when an injured employee sought to avoid reimbursing his employer’s workmen’s compensation carrier upon obtaining a settlement from a third party tortfeasor. Like our statute, the Alaska statute provides that upon the recovery of damages from the third party tortfeasor, an employee or his representative shall promptly reimburse his employer for benefits paid. The Alaskan court said:

“Stafford asserts first that a compromise settlement does not involve ‘recovery of damages’ within the ambit of AS 23.30.015(f). . . .
“We find . . . Stafford’s argument untenable. One of the dominant themes of Alaska’s Workmen’s Compensation Act is the avoidance of double recovery, which theme is reflected in the requirement of AS 23.30.015(g) that the total amounts paid by the compensation carrier be returned to it when damages are recovered by the employee from a third person. Professor Larson, in discussing this theme which is commonly found in compensation acts, states that the
“claimant should not be allowed to keep the entire amount both of his compensation award and of his common-law damage recovery. The obvious disposition of the matter is to give the employer so much of the negligence recovery as is necessary to reimburse him for his compensation outlay, and to give the employee the excess.
“This principle applies equally when a suit is settled as when a final judgment is rendered. . . . We are not persuaded that Stafford’s construction of the term ‘recovery’, as used in AS 23.30.-150(g), (sic) should be adopted.” 526 P.2d, at 40.

This court in Baggett v. Webb, 46 Ala.App. 666, 248 So.2d 275, cert. den. 287 Ala. 725, 248 So.2d 284 (1971), recognized the prohibition against an employee’s double recovery by the provision of Title 26, Section 312 requiring an employee to reimburse the employer from damages recovered. Therefore, in accord with the rationale of the Alaska Supreme Court, we conclude that Orum’s argument as to the difference between a recovery of damages by settlement and by judgment is unacceptable, since it could authorize a double recovery for the employee. Such is not now permitted in Alabama.

Orum also says that Employers should have proceeded against the third party tortfeasor to collect the compensation benefits paid to him rather than attempting to recover the benefits from him. Such a proposition not only is contrary to Title 26, Section 312, but also is contrary to the pronouncements of our supreme court in Liberty Mutual Insurance Co. v. Lockwood Greene Engineers, Inc., supra; and Liberty Mutual Insurance Co. v. Manasco, supra.

In Manasco the supreme court said that where the employee has filed suit against the third party tortfeasor within the time allowed by law, neither the employer nor his insurer can maintain an action against the wrongdoer to recover monies either one has paid to the employee. The court then said that the employer or carrier is entitled to be reimbursed out of any recovery obtained by the employee from the tort-feasor. That same conclusion is found in Hughes v. Newton, supra.

Although Orum’s theory of the case is contrary to the settled law in Alabama, it is interesting to note that Employers takes the position that it could have proceeded against the third party tortfeasor at the same time and in the same action that Orum was prosecuting against the tort-feasor; furthermore, Employers says that it could have proceeded against the tortfeasor even after Orum settled him claim with the tortfeasor. This position, also, is contrary to section 312 and the above cited Alabama cases. In the factual context of the present case, Employers could not proceed against the tortfeasor while Orum had his action in fieri, nor could Employers proceed against the tortfeasor after Orum and the tort-feasor settled their case because then section 312 requires Employers to be reimbursed out of Orum’s recovery.

For the reasons stated above the judgment appealed from is affirmed.

AFFIRMED.

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


text:
    Jerry PHILLIPS v. Charles FROST.
    Civ. 944.
    Court of Civil Appeals of Alabama.
    Aug. 3, 1977.
    Ralph E. Slate, Decatur, for appellant.
    J. N. Powell, Jr., Decatur, for appellee.
   BRADLEY, Judge.

Appellant, Jerry Phillips, appeals from a verdict and judgment rendered against him in the amount of $5,950 and from the denial of his motion for a new trial.

Appellee, Charles Frost, sued Phillips and others in the Circuit Court of Morgan County for work and labor done and on an open account. Phillips replied by saying that he did not owe Frost any money, that Frost had contracted to build a garage for a certain price, and that Frost had failed to perform the work in a workmanlike manner. Frost then denied that there was an agreement for the construction of the garage for a certain price. Trial was had on the case as made by the pleadings and a jury verdict was returned in favor of Frost and against Phillips for $5,950. Phillips’ motion for new trial was overruled and he appeals. , .

The facts show that Frost agreed to build a building for Phillips to be used as an automobile body repair shop.

Frost testified that the original agreement was for him to build a thirty foot by sixty foot concrete block building, later changed to a thirty foot by seventy-five foot building, with a steel roof supported by metal trusses. The estimated cost of such a building placed on a concrete slab was $4,200. Frost stated however that he told Phillips the cost of the insulation that was to be placed under the roof and the cost of the doors was unknown; also that the installation of the bathroom would be extra.

Construction of the building was commenced by Frost after Phillips had leveled the lot. During the course of the construction, Frost stated Phillips made several changes in the building. For example Phillips asked that the electrical wiring be changed from one phase to three phase, which entailed additional costs. Also more concrete was poured in an area of the shop where Frost was told by Phillips a body straightening machine was to be installed. Then there was a change in the size of the doors in one end of the building, again requiring additional costs.

According to Frost’s testimony, the total cost of the materials used to construct the shop amounted to $5,296 and his labor cost was about $2,000. He stated that at the time work stopped on the shop, $800 had been paid to him, leaving a balance owing of about $6,400.

Phillips testified that when he first talked to Frost about building a body shop, they talked about a thirty foot by seventy-five foot building with metal siding. During the discussion it was agreed to change from metal siding to concrete block for the walls, and steel trusses were also agreed to for the support of a metal roof. Insulation was to be placed under the roof and two nine foot by twelve foot doors were to be installed. Phillips says they also discussed at this first meeting the preparation of the paint room and the installation of a bathroom. Phillips considered the $4,200 price to include all of these items which had been discussed at the first meeting.

Phillips then stated that when he confronted Frost with the fact the building was not complete and that more time had been taken in the construction than had been agreed upon, Frost said that this was all he would do unless he was paid extra, and because of what was invested in the construction of the shop, there was no way Phillips could get the building for $4,200. Frost said more work would mean more cost to Phillips. Frost did no more work on the shop after this exchange.

The sole issue for review here is whether or not the trial court erred in admitting testimony during the trial that concerned an offer of compromise or settlement prior to trial.

The objected to question and answer occurred on cross-examination of Phillips by Frost’s counsel and is as follows:

“CROSS EXAMINATION
“EXAMINATION BY MR. POWELL:
“Q How much did you offer to pay him?
“A Yesterday I offered him all of what — that plus 3,500 more yesterday.
“MR. SLATE: Judge, I believe that was in the nature of a compromise.
“MR. POWELL: Let the witness answer.
“THE COURT: You went into it, Mr. Slate. I think it is quite open now.
“Q (BY MR. POWELL) Tell the Jury how much you offered him?
“A At which time?
Q Both times?
“A I offered him 3,000 yesterday morning, and I offered him thirty-five yesterday.”

Appellant argues that the trial court erred to reversal by admitting testimony on a settlement offer and particularly questions the court’s statement that appellant had opened the matter for such questions. Appellant, however, did not favor this court with any citations of authority to support his arguments, but since appellee raised no question about this omission no further comment will be made.

We feel quite certain that the trial court, in overruling the objection and stating that appellant had broached the subject first, was referring to that portion of the record beginning on page 322 where appellant was being examined by his own counsel as follows:

“Q What did he say?
“A He said, ‘All of that would cost you more. This is all we are doing.’
“Q Did he say at that time about you owing him anything over the $4,200?
“A He said he didn’t know how much I would owe him after that, but he said there was no way I could get this building for $4,200.
“Q Had ya’ll had any discussion from the night in his kitchen until that night?
“A No, sir.
“Q Did you say when he said that about the 4,200?
“A I told him he agreed to that. He said, ‘This building was going to be a cost plus ten.’ I said, ‘You told me you could build the building for 4,200.’
“Q What did he say?
“A He said, ‘You are not going to get it. I will tear it down before I will let you have it for that.’
“Q What did you say?
“A We got in a heated discussion, and I told him — well, that he wasn’t going to tear it down.
“Q Did he ever come back on the job?
“A No, he did not.
“Q Did you and he have a discussion after that about payment?
“A Yes, sir.
• “Q Where was that?
“A At my father-in-law’s service station.
“Q You and Mr. Frost?
“A Yes, sir.
“Q What did ya’ll say to each other there?
“A Mr. Frost — 1 called him down and was going to try to settle with him just to keep from having to go to court and get it settled up.
“MR. POWELL: Let him answer the question.
“MR. SLATE: I will decide whether I want him to answer the question, Mr. Powell.
“MR. POWELL: Judge, let him answer the question. He said—
“Q (BY MR. SLATE) Did you and him have a discussion about the price of it there at the service station?” (Emphasis added.)

In National Security Fire & Casualty Co. v. Hodgin, 55 Ala.App. 268, 314 So.2d 871 (1975), we said:

“. . .An offer by one party to the other in a civil action to settle or compromise their differences is inadmissible in evidence as a general rule.”

But, we have also taken the position that the trial court will not be placed in error for admitting evidence over objection where substantially the same evidence has been admitted at some other stage of the proceedings. Bentley v. Independent Life and Accident Insurance Co., 47 Ala.App. 15, 249 So.2d 631 (1971); Harvey Ragland Co. v. Newton, 268 Ala. 192, 105 So.2d 110 (1958).

In the case at bar, appellant, on direct examination by his own attorney, answered as follows without objection:

“A Mr. Frost' — I called him down and was going to try to settle with him just to keep from having to go to court and get it settled up.” (R. 323).

This answer by appellant in response to questions propounded by his attorney shows that he intended to try to settle the controversy he had with the appellee over the amount owed on the shop building and thereby avoid a trial. This is the testimony the trial court referred to when it permitted appellant to be cross-examined about the settlement offer and also when it told appellant’s counsel that he had opened up the subject of pre-trial settlement offers. We would also point out that later on in the trial of this case appellant was questioned on redirect examination as follows:

“Q Mr. Powell kept going over this meeting at the service station when you offered forty-eight total. That would have been forty-eight less the eight hundred you have done paid, and you said you offered that to try to keep from going to court and having a hassle?
“A Yes, sir, it would have been cheaper to do it that way than it would to pay for a lawyer and everything and come to court and your time and everything.
“Q You offered that in the way of a compromise and not because you owed it, didn’t you?
“A Yes, sir, that is true.
“Q You never did even promise him in there to pay him over the contract price other than this offer to compromise out there?
“A No, I did not.
“Q You did offer after the dispute and so forth to try to avoid going to court and so forth, you did offer him that?
“A Yes, I did.”

For the reasons given we conclude that the trial court did not err in permitting cross-examination of the appellant on the subject of out-of-court settlement offers where substantially the same evidence had been elicited from him both prior to and subsequent to the occurrence in question.

AFFIRMED.

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


text:
    Manuel CHANEY v. GENERAL MOTORS CORPORATION.
    Civ. 1134.
    Court of Civil Appeals of Alabama.
    Aug. 3, 1977.

      Carl W. Stolsworth, Tuscumbia, for appellant.
    Ralph M. Young, Bradshaw & Barnett, Florence, for appellee.
   BRADLEY, Judge.

Manuel Chaney initiated this action when he filed a complaint alleging that the General Motors Corporation sold him an automobile with a warranty that the automobile was “fit for the purpose for which it was sold.” He also alleged the automobile was defective when sold because a steering coupling shield had not been installed in the steering mechanism of the car, and as a result of this defect the automobile overturned and he was injured.

The case was tried without a jury. At the conclusion of Chaney’s evidence, General Motors orally requested a directed verdict, which was granted. Chaney’s motion for new trial was denied and he appeals.

The only evidence offered by Chaney at trial was his testimony and two letters he received from the General Motors Corporation. •

In 1971 Chaney purchased a new Chevrolet Impala. In March 1973 he received a letter from General Motors informing him he should have a steering coupling shield installed on his Chevrolet “to prevent the possibility of a partial loss of steering control should a stone lodge between the steering coupling and frame of your car.” The letter further cautioned:

“Such an incident could occur when you drive your car on an unpaved road surface if a stone should be thrown up into the engine compartment where it can lodge between the steering coupling and the frame. If this should happen, it may cause increased steering effort or interference with steering control of your ear. It is possible that it could even result in a partial loss of steering control.
“If, before you have this shield installed, you are required to drive on gravel roads, particularly those which are extremely wavy, rutted or filled with chuck holes, you should not drive at speeds which will cause your car to pitch excessively. You should reduce your speed so that the front frame cross-member will not contact the road surface and scoop up loose stones or gravel from the roadway.”

A second letter, dated August 1973, repeated this information.

Chaney promptly returned his automobile to his local dealer upon receipt of the letter in March but was unable to have the safety shield installed because the dealer lacked the necessary parts. Between March 1973 and the date of the accident, July 13, 1973, Chaney repeatedly attempted to have the safety shield installed, but with no success.

On July 13, 1973 Chaney was traveling alone in the automobile on a paved road at a speed of approximately fifty to sixty miles an hour when he drove over gravel which was lying on the pavement from an adjacent unpaved driveway. After crossing the gravel on the highway Chaney attempted to maneuver the vehicle to the left when, according to him, the steering column locked momentarily. When the steering column unlocked he lost control of the vehicle and the car struck a culvert and overturned. The vehicle was totally destroyed and Chaney was injured.

Chaney said he had no problem with the steering column of the automobile prior to the accident. He also said the mechanic who examined the vehicle after the accident told him the frame beneath the car was not damaged, indicating no foreign object had lodged there. Chaney was on his way to have the tires aligned when the accident occurred.

General Motors introduced into evidence two of the tires, the right rear and the left front, which had been on the automobile; both tires were flat with ruptured casings. On cross-examination Chaney said that when he lost control of the car the car did not handle as if a tire had burst.

At the close of Chaney’s evidence, General Motors moved for a directed verdict on the ground that Chaney had failed to show a causal connection between the defect and the injury and thus to make a prima facie case. On appeal Chaney maintains the trial court erred in granting General Motors’ motion in that first, the requisite causal connection between defect and injury was established by circumstantial evidence, and second, the evidence showed the essential elements necessary for a prima facie case of products liability.

We note at the outset that the motion requested and granted was one for a directed verdict under Rule 50, ARCP. However, since the case was tried without a jury, we believe the movant should have asked the trial court to dismiss under Rule 41(b), ARCP, which provides in pertinent part:

“. . . After the plaintiff, in an action tried by the court without a jury, has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence.”

■Thus, we will treat the motion made and granted as a Rule 41(b) motion. See James v. DuBreuil, 500 F.2d 155 (5th Cir. 1974); Fidelity & Casualty Co. v. Key Biscayne Bank, 488 F.2d 438 (5th Cir. 1973); Martin v. E. I. duPont De Nemours & Co., 281 F.2d 801 (3rd Cir. 1960).

A Rule 41(b) motion to dismiss is not the equivalent tó a Rule 50 motion for a directed verdict, nor is the role of the trial court the same. The committee comments to Rule 41 state:

“. . . In a jury case, Rule 50 applies and the court is limited to a question of law (thereby preserving jury trial right) as to the sufficiency of plaintiff’s prima facie case. In a non-jury case, the court, under Rule 41(b), as ultimate trier of fact, is free to weigh the evidence and the credibility of the witnesses.”

Allred v. Sasser, 170 F.2d 233 (7th Cir.1948), is quite similar to the case at bar. The case was tried by the court without a jury. At the conclusion of the plaintiff’s evidence, and without any evidence being offered by the defendant, the court granted the defendant’s motion to dismiss under Rule 41(b), Federal Rules of Civil Procedure. The plaintiff appealed, contending that the trial court should have viewed his evidence in an aspect most favorable to him, together with all reasonable inferences. So construed, he said, the evidence did not support the trial court’s findings. The United States Court of Appeals for the Seventh Circuit rejected the plaintiff’s position, holding:

“In this case the trial court was the trier of the facts, and in considering the evidence was not bound to view it in a light most favorable to the plaintiff, with all attendant favorable presumptions, but was bound to take an unbiased view of all the evidence, direct and circumstantial, and accord it such weight as he believed it entitled to receive.” 170 F.2d, at 235 (citations omitted).

In essence, Chaney makes the same argument as plaintiff Allred when he contends that there was circumstantial evidence which established the causal link between the admitted defect and the proven injury. While it would have been error had the trial court directed a verdict in favor of General Motors at the conclusion of Chaney’s evidence in a jury-tried case, it was not error here where the court was the trier of fact. The trial court was not required to view the evidence most favorably for Chaney but rather to take an unbiased view of all the evidence, to weigh and evaluate the evidence, and resolve the case on the basis of the preponderance of the evidence. See 5 Moore’s Federal Practice (2d ed.) § 41.-13[4], pp. 41-193; Wright & Miller, Federal Practice and Procedure: Civil § 2371, pp. 224-25. In our view the evidence does not clearly preponderate in favor of Mr. Chaney.

Chaney secondly says the trial court erred in dismissing the action against him because he made out a prima facie case under the requirements of Atkins v. American Motors Corp., Ala., 335 So.2d 134 (1976). Again, this position misapprehends the operation of a Rule 41(b) motion. As stated in Ellis v. Carter, 328 F.2d 573, 577 (9th Cir. 1964):

“. . . [T]he trial court was not required to deny the 41(b) motion even if the evidence, viewed in a light most favorable to the plaintiff, made a prima facie case. If, from the record as it stood at the close of plaintiff’s case, the court was convinced that the evidence preponderated against Ellis, it was empowered to grant Carter’s motion.”

The judgment of the trial court is affirmed.

AFFIRMED.

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

      . Rule 41(b), FRCP, requires the trial court to make a finding of fact if it renders judgment on the merits against the plaintiff. Rule 41(b), ARCP, eliminates the mandatory provision and states that the trial court may make findings pursuant to Rule 52(a), ARCP.

      . Allred v. Sasser, 170 F.2d 233 (7th Cir. 1948).

      . Emerson Electric Co. v. Farmer, 427 F.2d 1082 (5th Cir. 1970); Weissinger v. United States, 423 F.2d 795 (5th Cir. 1970).

        .Emerson Electric Co. v. Farmer, supra note 3; Ellis v. Carter, 328 F.2d 573 (9th Cir. 1964).


author: HOLMES, Judge.

text:
    Joseph L. NIX v. Betty Margaret NIX.
    Civ. 1157.
    Court of Civil Appeals of Alabama.
    Aug. 3, 1977.

      Douglas Burns and Gary F. Burns, Gadsden, for appellant.
    Hubert L. Taylor, Rowan S. Bone, Gadsden, for appellee.
   HOLMES, Judge.

This is a divorce case.

The husband appeals from that portion of the divorce decree ordering the parties to sell a farm and equally divide the proceeds therefrom. We affirm.

The record reveals the following:

The parties were married in January of 1974. The marriage was the second marriage for both parties. The prior marriage of each of the parties had been long and had been terminated by the death of a spouse.

At the time of their marriage, the parties moved into the home of the husband where he and his first wife had resided. The parties lived there for approximately seven months to one year, at which time the husband sold the residence.

The parties then moved into a home where the wife and her first husband had lived. In addition to this home, the wife, at the time of the parties’ marriage, also possessed $59,000 in church bonds and a certificate of deposit. These investments yielded $3,300 annual income. She also owned two homes for which she received monthly mortgage payments of $72 and $76.

When they moved from the husband’s prior residence, he sold the dwelling. He gave one-half of the proceeds from this sale to his children and used the remaining $16,-500 to purchase a farm. Thereafter, he had title to the farm placed in the name of himself and his wife, appellee herein.

The parties separated after living together for two years and seven months. At the time of the separation, the husband removed the majority of the household items which he had purchased during the marriage from the house. Additionally, he had his wife’s name removed from two of the joint savings accounts. The value of these accounts was $13,000.

The wife was not employed during the marriage. The husband has been employed by Republic Steel Company for approximately 20 years. His expected income for the year in which the divorce was granted was $24,000.

On November 24, 1976, the trial court granted the plaintiff husband’s request for a divorce. The decree stated that the parties were the joint owners of the farm and provided as follows:

“The parties are allowéd sixty (60) days during which time they may sell the described property or otherwise dispose of the said property, and divide the proceeds therefrom equally between the parties. At the expiration of sixty (60) days from the date of this decree, if the parties have not been able to divide the property or the proceeds therefrom, then the Clerk of this Court is directed to sell the same at public auction, . .

From a denial of his motion for a rehearing, the husband filed this appeal.

The husband contends statements by the trial court indicate it made the division herein complained of because of its mistaken belief that to require the wife to transfer her interest to the husband would constitute a violation of the principle which prohibits courts from awarding alimony to the husband in the absence of a statute authorizing such an award. Put another way, he states the trial court required the farm to be disposed of and the proceeds divided because of its erroneous notion that the law prohibited a transfer of the wife’s interest to the husband. The record fails to support this contention.

Moreover, the division of property is supported by the evidence. The husband was allowed to retain $13,000 from the joint savings account, a pickup truck, and the major portion of the personal property which he had purchased for the home. Furthermore, there is some evidence that the wife expended portions of her funds to support herself, the husband’s children, and the husband.

The division of property does not have to be equal but must be graduated to the nature of the case. Dickson v. Dickson, 57 Ala.App. 732, 331 So.2d 740 (1976); Crane v. Crane, 57 Ala.App. 685, 331 So.2d 699 (1976). We have examined the cases cited by able counsel for the husband and do not find this case to be within the category of cases wherein the trial court has crippled the husband by compelling a sacrifice of his property where the wife possessed an ample separate estate. See Sides v. Sides, 284 Ala. 39, 221 So.2d 677 (1969); Leo v. Leo, 280 Ala. 9, 189 So.2d 558 (1966). We find the instant case to be similar to Caylor v. Caylor, Ala.Civ.App., 344 So.2d 173 (1977), wherein this court affirmed an award to the wife even though the parties had only been married for a short duration.

A division of property lies within the sound discretion of the trial court and will not be reversed on appeal absent a showing of a plain and palpable abuse of discretion. Searcy v. Searcy, Ala.Civ.App., 340 So.2d 1134 (1976); Conwell v. Conwell, 56 Ala.App. 188, 320 So.2d 694 (1975). No such abuse of discretion is here shown. For this court to reverse in this instance we would have to substitute our judgment for that of the trial court. This the law of Alabama does not permit. Sutton v. Sutton, 55 Ala.App. 254, 314 So.2d 707 (1975).

AFFIRMED.

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