text:
    Bobby J. KEMP, et al. v. Wendell C. BRITT, et al.
    80-623.
    Supreme Court of Alabama.
    Feb. 12, 1982.

      Charles A. Graddick, Atty. Gen., and Philip C. Davis, Asst. Atty. Gen., for appellants.
    William J. Baxley & Joel E. Dillard of Baxley, Beck & Dillard, Birmingham, for appellees Britt, et al., and Holland, et al.
    Robert G. Wilson & W. D. Scruggs, Jr., Fort Payne, for appellees James Gillespie, et al.,
   JONES, Justice.

This appeal requires this Court’s construction of Section 5 of Act No. 79-688 and the applicable amendatory provisions of Act No. 80-724 (Code 1975, § 23-1-104).

Prior to 1979, ten Alabama counties did not maintain county road or highway departments and were known as “captive counties,” because the road and bridge work in each county was accomplished by the State and its employees. Act No. 79-688, however, transferred these functions to the counties, provided for a voluntary transfer of up to 75 per cent of the State highway personnel operating in the county to the new county system (at the same rate of pay), and directed that:

“[a]ll present and accumulated obligations due and payable to the present employees as a result of their employment with the State Highway Department shall be the obligation of the State of Alabama, including but not limited to accumulated sick leave, vacation time and retirement and any other accumulated benefits earned by the said employees, payment shall be made to the employees on or before effective date of the Act.”

At the time of the transfer, the State interpreted “obligations” as not including sick leave benefits. Such benefits, according to the State, were not “due and payable” upon an employee’s transfer; rather, such benefits were a continuing obligation of the State, payable for such leave taken by an employee or upon his retirement pursuant to § 36-26-36. This interpretation is the basis of this appeal.

Plaintiffs contend that the 1979 Act mandates the State’s payment of the accumulated sick leave benefits and that its refusal to pay impairs the obligation of Plaintiffs’ contracts with the State.

Subsequent to the trial of the first of the three cases, but prior to the rendition of a final order in that case, Act No. 79-688 was amended to read as follows:

“The state highway department shall furnish a list to each captive county with the name, position, rate of pay and length of service of all persons who are presently employed by the state highway department in the respective captive county. The respective counties may employ personnel not to exceed 75 percent of the employees on the list furnished by the state highway department for the construction, repair and maintenance of county roads and bridges in accordance with personnel policy as adopted by the respective counties. The remaining employees now employed by the state highway department in each said county shall remain an employee of the state highway department subject to the regular employment practices of said department. All persons employed by each respective county shall be paid at the same rate of pay as was paid by the state highway department. All present and accumulated obligations due and payable to the present employees as a result of their employment with the state highway department shall be the obligation of the state of Alabama, including but not limited to, accumulated sick leave, vacation time and retirement and any other accumulated benefits earned by the said employees. Payment shall be made to the employees on or before the effective date of this article. Provided, however, that the state highway department shall pay to the respective county governing body an amount equal to 100 percent of the value of the accumulated sick leave for the account of each employee who transfers to the captive county. Such funds shall be held in trust for the employee and shall be used to pay such employee for approved sick leave. In lieu of the funds being held in trust for future approved sick leave, the employee may elect to accept an amount equal to 50 percent of the value of the then accumulated sick leave in full settlement and payment of his accrued sick leave account. Approved sick leave shall be that leave so designated by any county merit system to which the employee may transfer, or such leave as approved by the county governing body, or the county engineer at the direction of the county governing body." (Emphasis supplied to indicate amendato-ry language of Act No. 80-724.)

It was stipulated that the outcome of this action will affect 380 employees and $602,-285.61 in accumulated sick leave benefits.

The trial court’s Final Order held that the 1980 Amendment had no effect upon the instant cases, because:

“[t]hese causes of action were commenced and were pending .. . when Act No. 80-724 was approved, and cannot in this Court’s opinion be taken away or compromised by subsequent legislation.
“. .. Accordingly, the Court finds and determines that all plaintiffs in all the above causes are entitled to be paid for 100% of the sick leave which they had accumulated upon the effective date of Act No. 79-688....”

We affirm.

In accord with the trial court’s holding in the instant cases is the early Supreme Court decision in Goulding Fertilizer Co. v. Blanchard, 178 Ala. 298, 59 So.2d 485 (1912). There, this Court, when asked to construe legislation relating to the reformation of description mistakes in deeds, held that such a task was unnecessary because:

“... at the time of [the act’s] passage this suit was already pending. The act is not remedial, but is, on the contrary, definitive of substantive rights, and cannot be applied to pending suits without violating section 95 of the Constitution, which declares that, ‘after suit has been commenced on any cause of action, the Legislature shall have no power to take away such cause of action, or destroy any existing defense' to such suit.’ ” Gould-ing, at 309, 310, 59 So.2d 485.

The State contends that the 1980 amendment is remedial in nature. Remedial legislation, the State says, does not “create, enlarge, diminish, or destroy contractual or vested rights but relate[s] only to remedies or modes or procedure [and is] not within the general rule against retrospective operation, but [is] generally held to operate retrospectively.” The State also says that “A remedial or procedural statute may also be applied to pending actions.”

While we agree with the substance of the State’s argument with respect to the characteristics of remedial legislation, we cannot say that the amendatory language now at issue is remedial. Indeed, the effect of Act No. 80-724 is to create substantive rights in employees who choose to transfer to the new highway departments of the various, heretofore “captive,” counties.

Under the terms of the 1979 “pre-amendment” legislation, payment for accumulated employee benefits was to be made to the employees. The 1980 Act, however, provided for an option to be exercised by each transferring employee: the payment of 100% of the employee’s accrued sick leave benefits to the county to which he or she transferred, or payment of 50% of “the value of the then accumulated sick leave in full settlement and payment of his accrued sick leave account.” This right of option was a creation of the 1980 amendment and is a substantive right in the affected employees — a right which is materially less than the right created by the 1979 Act.

This Court’s decision in Tennessee Coal & Iron Division, U. S. Steel Corp. v. Hubbert, 268 Ala. 674, 110 So.2d 260 (1959), was similarly concerned with amendatory language, but the amended legislation concerned workmen’s compensation awards. The amendment, passed after the workman’s injury and award but before his death from unrelated causes, stated, in part:

“ Tf a workman has sustained a permanent disability, the degree of which has been agreed upon by the parties or has been ascertained by the court,, and death results not proximately therefrom, his widow and/or dependent children shall be entitled to the balance of the payments which would have been due and payable to the workman.’ ” Hubbert, 268 Ala. at 676, 110 So.2d 260.

This right in the widow and/or dependent children was created by the amendment and had not existed prior to that time. This Court rejected the claimants’ interpretation of the amendment as remedial and held that the amendment created new substantive rights and was, therefore, prospective in operation.

With this in mind, we turn to Plaintiffs’ allegations that the amendment itself is unconstitutional, specifically with respect to § 22, which prohibits ex post facto laws or laws impairing the obligation of contracts, and to § 95, which states that “[ajfter a suit has been commenced on any cause of action, the Legislature shall have no power to take away such cause of action, or destroy any existing defense to such suit.”

We need not decide whether the 1980 Act is facially unconstitutional. The proscriptions addressed in sections 22 and 95 are in the context of substantive rights. As Hub-bert, supra, makes clear, where the new substantive rights created by the amendment have any prospective field of operation, the amendment is constitutionally sound. By the same token, sections 22 and 95 prohibit retroactive application of the amendment, as contended by the State.

We hold, therefore, that Plaintiffs’ rights to their accumulated benefits, which arose under the language of the 1979 Act, are unaffected by the amendatory language of Act No. 80-724. That being so, the accumulated sick leave benefits are “due and payable to the present employees as a result of their employment with the state highway department shall be the obligation of the state of Alabama....” Furthermore, payment of those benefits is due to be made to those employees; thus, the judgment appealed from is affirmed.

AFFIRMED.

All the Justices concur, except ADAMS, J., not sitting;

      . Cherokee, DeKalb, Jackson, Colbert, Cullman, Lauderdale, Lawrence, Winston, Franklin, and Baldwin.

        . Three civil actions, all of which were based upon these facts, and one of which was a class action, were consolidated by court orders on May 21, 1980, and October 24, 1980.


source: Caselaw Access Project

author:
      TORBERT, Chief Justice.
      EMBRY, Justice

license: Public Domain

text:
    William Richard STAREK, et al. v. TKW, INC., a Corporation.
    80-139.
    Supreme Court of Alabama.
    Feb. 19, 1982.
    Richard H. Ramsey, III, Dothan, for appellants.
    Alan C. Livingston of Lee & Mclnish, Dothan, for appellee.
   TORBERT, Chief Justice.

Appellants, William and Billie Starek, purchased a home, located at 805 Gonzales Drive, Dothan, Alabama, from Blackmon Construction & Realty, Inc. for $50,000.00. At the time of the purchase the Stareks mortgaged the home to United Federal Savings and Loan Association for $45,-000.00. The purchase and the loan were closed on January 20, 1978. The appellee, TKW, Inc., is a building material supplier who supplied material to Blackmon for the construction of the home. Invoices show that TKW began supplying building material for the construction of the house located at 805 Gonzales Drive on or about May 19, 1977. The last invoice is dated August 1, 1977, and final delivery of building material was made on August 11 or 12, 1977. Black-mon owed TKW $10,806.39 for building material supplied for the property. Blackmon was adjudicated bankrupt in early 1978. TKW filed a lien against the property on January 24, 1978. Suit was filed by TKW on July 11, 1978. Judgment for the amount due was entered in favor of TKW and a lien against the property was established. The property was ordered sold to satisfy the judgment and the lien.

Appellants raise four contentions in this appeal: (1) whether Blackmon and United Federal should have been joined as parties under ARCP 19; (2) whether the evidence supported the establishment of the lien; (3) whether the statute of limitations had run before the lien was filed; and (4) whether the court erred in admitting into evidence the fact that Joe Blackmon of Blackmon Construction & Realty, Inc. had previously sworn the debt was paid.

The question of whether Blackmon and United Federal should have been joined as parties under ARCP 19 is answered by statute. “In such actions [materialmen’s lien actions], all persons interested in the matter in controversy, or in the property charged with the lien, may be made parties; but such as are not made parties shall not be bound by the judgment or proceedings therein.” Code 1975, § 35-11-223(a).

While the holder of the legal title must be a party, Lily Flagg Building Supply Co. v. J. M. Medlin & Co., 285 Ala. 402, 232 So.2d 643 (1970); Sorsby v. Woodlawn Lumber Co., 202 Ala. 566, 81 So. 68 (1919); Hughes v. Torgerson, 96 Ala. 346, 11 So. 209 (1892); Roman v. Thorn, 83 Ala. 443, 3 So. 759 (1888), the lien claimant has the option of joining the mortgagee or other parties who have an interest in the property. If he does not join them, however, they are not bound by the judgment. Lily Flagg Building Supply Co. v. J. M. Mediin & Co., 285 Ala. at 407-08, 232 So.2d at 648. TKW brought its action against the holders of legal title, the Stareks. There is no evidence in the record which indicates that Blackmon has an interest in the property. TKW could have joined United Federal but did not; that decision was within the discretion of the lienholder under the statute. The Stareks’ first contention does not warrant reversal.

Next, we deal with the contention by the Stareks concerning the sufficiency of the evidence, including the admission into evidence of statements made by Joe Blackmon of Blackmon Construction & Realty, Inc. that the debt was paid. While the general rule of law protects a purchaser who is without notice of the existence of a lien, the issue here is whether the evidence was sufficient to establish that the purchaser had actual or constructive notice of the existence of facts which give rise to a material-man’s lien.

While a lien for repairs or improvements to an existing structure filed after the sale of the entire building to a purchaser who had no knowledge of the outstanding debt does not have priority over the purchaser (see, Martin v. Clark, 154 Ala. 425, 46 So. 232 (1908); see also, Guaranty Pest Control, Inc. v. Commercial Investment & Development Corp., 288 Ala. 604, 264 So.2d 163 (1972)), a lien filed on a new building does have priority over a purchaser regardless of actual notice. This is true because a purchaser of a new building has constructive notice that material used to build the structure may not be paid for. Therefore, one who purchases a new home prior to the running of the six-month statute of limitations is put on constructive notice that the filing of a lien is still statutorily permissible. This position, while appearing harsh, is the rule of law in Alabama. In Grimsley v. First Ave. Coal & Lumber Co., 217 Ala. 159, 115 So. 90 (1927), this Court stated:

“It cannot be said that one may purchase a newly constructed house before the time provided for the perfecting of the material and mechanics’ liens thereon had expired, and defeat the purpose of the statute. It is immaterial whether such a sale was bona fide or fraudulent, the property is subject to the lien when perfected and enforced as provided by the statute.
“And the fact that the work was in progress is notice to all who dealt with said property or contracted therefor with its owner that the right under the statute exists, and sales or conveyances made within the time prescribed by the statute would be subject to the right. The declared priorities of section 8833 of the Code have not the effect of permitting a sale or conveyance by deed within the period of the statute that would defeat the mechanics’ and materialmen’s liens given by section 8832 of the Code. If something is done of a substantial and conspicuous character to make it apparent to bona fide purchasers that the building has actually commenced ... that is notice relating to commencement of the work.
“In Rockel on Mechanics’ Liens, at page 393, § 150, it is said:
‘The fact that the work is in progress ... is a notice to all of the rights of the mechanic, and all conveyances made during that time are made subject to the mechanic’s rights.... It is immaterial whether the sale was fraudulent ..., or bona fide the property is subject to the lien that may thereafter be perfected within the time limited by statute.... ’
“When a new house is constructed, as indicated in LeGrand v. Hubbard, 216 Ala. 164,112 So. 826, it is notice to all the world, within the lien period, of the rights of the mechanic and materialman. It is actual and constructive notice to subsequent lienholders and incumbranc-ers, and affects purchasers for value with such notice.”

217 Ala. at 161-63, 115 So. at 91-93 (citations omitted). This principle of law was approved in Lily Flagg Building Supply Co. v. J. M. Medlin & Co., 285 Ala. 402, 232 So.2d 643 (1970), wherein this Court stated:

“We readily agree with the principle of law stated in Grimsley v. First Ave. Coal & Lmbr. Co., supra, that a materialman’s lien attaches and is created at the time the work on the building or improvement commences, and it is not defeated by a subsequent sale or conveyance of the property, provided the lienor perfects his lien in accordance with the requirements of law, and it is immaterial that the conveyance was executed before suit is brought to enforce the lien.”

285 Ala. at 407, 232 So.2d at 648.

TKW is a materialman and properly filed its lien. Code 1975, § 35-11-211, states that “[sjuch lien as to the land and buildings or improvements thereon, shall have priority over all other liens, mortgages or incumbrances created subsequent to the commencement of work on the building . ... ” (Emphasis added.) This statute omits any reference to subsequent purchasers. Therefore, the cases interpreting this statute provide that the holder of a materi-alman’s lien has the obligation to show that the subsequent purchaser had either actual or constructive notice. In this case, the trial court found that the Stareks had constructive notice.

Materialmen in this state were given protection by the Alabama Legislature. This decision simply follows previous interpretations of the statute by this Court and follows the general policy of the statute, which is “to secure to the materialman and the laborer the just reward of their material and labor ... based upon the general equitable principle that one should not enjoy the benefit thereof without just compensation therefor.” Lily Flagg Building Supply Co. v. J. M. Medlin & Co., 285 Ala. at 405, 232 So.2d at 646.

We are aware of the fact that in his testimony, Joe Blackmon, the president of the now bankrupt Blackmon & Realty Construction, Inc., acknowledged that when the house was sold he had signed an affidavit stating that TKW had been paid when in fact TKW had not been paid. This misrepresentation by Blackmon to the Stareks and United Federal cannot affect the rights of TKW, nor did its introduction into evidence at the trial prejudice the Stareks. The statutory lien gave TKW a right against the property. If not for the statute, TKW would have no protection for recovery of the value of material it supplied. The trial judge decided, after hearing the case, ore tenus, that TKW was entitled to a judgment for $10,806.39 and that the property in question be condemned and sold to satisfy the lien. The trial court’s decision should not be disturbed on appeal unless plainly and palpably erroneous or manifestly unjust. Pritchett v. Nathan Rodgers Construction & Realty Corp., 379 So.2d 545, 548 (Ala.1979); Hill v. Abyssinia Missionary Baptist Church, 370 So.2d 1389, 1391 (Ala.1979); Donnelly v. Doak, 346 So.2d 414, 416 (Ala.1977). The decision of the trial court is supported by ample evidence in the record, as documents admitted at trial and testimony taken during the trial substantiate the award.

The last contention of the Stareks concerns the statute of limitations. An examination of the record shows that the lien was filed within six months “after the last item of work or labor [had] been performed or the last item of any material, fixture, engine, boiler, or machinery [had] been furnished for [the] building .... ” Code 1975, § 35-11-215, and the action for the enforcement of the lien was “commenced within six months after the maturity of the entire indebtedness secured thereby .... ” Code 1975, § 35-11-221.

Upon reading these statutes we find that they show that there are two time periods which are important: A six-month time period after the last delivery of material for the filing of the lien, and a six-month time period after the maturity of the indebtedness for the filing of suit to enforce the lien. See, Howell v. Hallett Manufacturing Co., 278 Ala. 316, 178 So.2d 94 (1965); Home Federal Savings & Loan Association v. Williams, 276 Ala. 37, 158 So.2d 678 (1963).

The record shows that the last delivery of material occurred on August 11 or 12, 1977, and the lien was filed on January 24, 1978. Therefore, the lien was filed within six months after the last delivery of material. Code 1975, § 35-11-215.

The record is not as clear as to the precise date when the debt for the material used to construct the house matured. Maturity of a debt can be defined, as the date the debt accrued so as to be due and payable. See, Home Federal Savings & Loan Association v. Williams, 276 Ala. at 41, 158 So.2d at 681. Apparently, the trial court considered January 20, 1978, the date of the closing, to be the date that TKW expected payment of the debt. There is evidence in the record that Blackmon and TKW agreed that payment was to come from the proceeds of the closing. See, Home Federal Savings & Loan Association v. Williams, 276 Ala. at 42-43, 158 So.2d at 682-83. Suit was filed on July 11, 1978, which was within the six-month statute of limitations. Code 1975, § 35-11-221. “A reviewing court must indulge all reasonable presumptions in favor of the trial court’s findings when evidence is heard ore tenus, and this Court will not substitute its judgment for that of the trial court on the effect of conflicting evidence dealing with a pivotal question of fact.” Howell v. Hallett Manufacturing Co., 278 Ala. at 318, 178 So.2d 96. The judgment of the trial court is affirmed.

AFFIRMED.

MADDOX, JONES, ALMON, SHORES and BEATTY, JJ., concur.

FAULKNER, EMBRY and ADAMS, JJ., dissent.

EMBRY, Justice

(dissenting):

I respectfully dissent.

The majority states the issue to be whether the evidence was sufficient to establish that the purchaser had actual or constructive notice of the existence of facts which give rise to a materialmen’s lien. Yet, because the majority makes the blanket assertion of an ironclad rule that purchase of a newly-built house constitutes constructive notice of a materialmen’s lien, no true inquiry has been made into whether the particular facts and circumstances of this case can be fairly said to have put the Stareks on notice of the possible existence of a materialmen’s lien.

It should be noted that this rule concerning purchase of a newly-constructed home is not taken from the language of the lien statute, but rather has been established by the courts in the cases that applied the statute. The general rule announced in those cases is that materialmen’s liens, filed subsequent to the sale of property, cannot take precedence over the innocent purchaser unless that purchaser has actual or constructive notice of the claim of lien. Guaranty Pest Control, Inc. v. Commercial Investment & Development Corp., 288 Ala. 604, 264 So.2d 163 (1972); Lilly Flagg Building Supply Co. v. J. M. Medlin & Co., 285 Ala. 402, 232 So.2d 643 (1970); Grimsley v. First Avenue Coal & Lumber Co., 217 Ala. 159, 115 So. 90 (1927). I would not allow the obvious equity of this rule to be undercut by the rigid and oppressive exception relied upon by the majority: imposing constructive notice of a lien upon one who buys a newly-built home. I cannot accept the notion that the legislature intended the materialmen’s lien statute to weight the scales of justice so heavily against the innocent purchaser, and would therefore overrule the cases which carve out this exception to the general rule.

Materialmen are most often in a superior position to that of the home buyer in protecting themselves against losses of the nature we are considering. To hold that the purchase of a new home, alone, is constructive notice of unfiled materialmen’s liens places too heavy a burden on the home buyer.

Support for this conclusion is found in the materialmen’s lien statute itself. Section 35-11-218 requires a subcontractor who does not deal directly with the property owner to give the owner written notice that he claims a lien. The purpose of this provision is to enable the owner to protect his interest. Rayborn v. Housing Authority of Washington County, 276 Ala. 498, 164 So.2d 494 (1964). The relationship of subcontractor to owner is similar to the relationship of materialman to an innocent purchaser. The property owner and home purchaser are both strangers to the transaction creating the debt to a materialman, and thus cannot protect their interest without notice given them.

Furthermore, to permit a materialman to enforce its interest against a purchaser without notice presents serious due process questions. Several courts have ruled that their states’s materialmen’s lien statutes are unconstitutional because they deprive property owners of a significant property interest without meeting the due process requirements of notice and a hearing. United States General, Inc. v. Arndt, 417 F.Supp. 1300 (E.D.Wis.1976); Clement v. Four North State Street Corp., 360 F.Supp. 933 (D.N.H.1973); Gunter v. Merchants Warren National Bank, 360 F.Supp. 1085 (D.Me.1973); Roundhouse Construction Corp. v. Telesco Masons Supplies Co., 168 Conn. 371, 362 A.2d 778, vacated and remanded, 423 U.S. 809, 96 S.Ct. 20, 46 L.Ed.2d 29 (1975), reaffirmed, 170 Conn. 155, 365 A.2d 393, 395 (1976). Barry Properties, Inc. v. Fick Brothers Roofing Co., 277 Md. 15, 353 A.2d 222 (1976). Those courts, basing their decisions on Sniadach v. Family Financial Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969), and its progeny, have held a debtor must be given notice before being deprived of his or her property interest. Although the constitutionality of the Alabama materialmen’s lien statute is not here at issue, due process requirements indicate that an innocent purchaser for value must have some sort of notice before his or her property may be attached.

For the reasons assigned, I would reverse the judgment below.

FAULKNER and ADAMS, JJ., concur.


author: BEATTY, Justice.

text:
    The RANGER INSURANCE COMPANY, et al. v. HARTFORD STEAM BOILER INSPECTION AND INSURANCE COMPANY.
    No. 80-479.
    Supreme Court of Alabama.
    Feb. 19, 1982.
    James R. Shaw and John S. Civils, Jr. of Huie, Fernambucq, Stewart & Smith, Birmingham, for appellants.
    Joe C. Carroll of Lange, Simpson, Robinson & Somerville, Birmingham, for appellee.
   BEATTY, Justice.

Plaintiffs, Ranger Insurance Company and the owners of a motel then operating as the Holiday Motel, filed suit against numerous defendants, including Hartford, etc., seeking damages for property loss arising from a fire at the motel on August 21, 1977, and for any resulting loss of profits. In addition, Ranger Insurance Company, which had the fire loss coverage, made a subrogation claim for amounts paid under its insurance policy. Prior to the fire, on August 8, 1977, employees of defendant Hartford Steam Boiler Inspection and Insurance Company (hereinafter Hartford) inspected the steam boilers, water heaters and other equipment in the motel. This general inspection was conducted in the boiler room where a water heater, allegedly connected with the fire, was located. Plaintiffs claimed that Hartford negligently inspected or failed to inspect the equipment properly once the duty to inspect was undertaken. That is, the inspection allegedly failed to locate, detect or otherwise ascertain the defective condition which caused the fire. According to plaintiffs, then, the fire was a proximate consequence of the allegedly negligent inspection. On November 30, 1979, Hartford’s motion for summary judgment was granted by the trial court. Plaintiffs appealed that judgment. We affirm.

Plaintiffs contend that their complaint of negligent inspection stated a valid claim against Hartford, and therefore, the trial court erred in granting summary judgment. Relying primarily upon Beasley v. MacDonald Engineering Company, 287 Ala. 189, 249 So.2d 844 (1971), plaintiffs argue that once Hartford voluntarily undertook to conduct an inspection of plaintiff’s premises it was thereafter charged with the duty to perform the undertaking in a reasonable manner. Liability would arise from the negligent performance of the voluntary undertaking, i.e., the inspection.

Although we recognized in Beasley the common law right of recovery for negligent inspection, that case concerned a right of recovery by injured workers against a workmen’s compensation insurance carrier for negligent safety inspections. The duty assumed by the carrier was the employer’s duty to its employees to provide a reasonably safe place to work. That is, the carrier was liable to third persons, e.g., employees, for negligent performance of the undertaking. In the instant case, however, plaintiffs do not present a situation where an injured employee or some other third person claims negligent inspection by the insurer, but claim under a first person theory in which the insured alleges that it is entitled to benefit from the insured’s inspection. Plaintiffs urge this court to ignore the relationship between the parties and to extend the common law right of recovery for negligent performance of a voluntary undertaking to claims based upon a first person theory of liability.

In Hartford Steam Boiler Inspection and Insurance Company v. Pabst Brewing Company, 201 F. 617 (7th Cir. 1912), the United States Court of Appeals for the Seventh Circuit addressed the issue of negligent inspection in a tort action brought by an insured against its insurer, Hartford. The court stated that “[t]he service and duty [of Hartford] are not derived from the insurance contract, and it is not essential to define their origin as contractual or otherwise. This doctrine of duty incurred and of liability for injurious negligence in its performance is of common-law origin.” Id. at 630. The recognition of this general principle, however, was followed by an exception:

[N]o such rule of duty obtains in favor of the assured where the inspections are attributable alone to the policy provision for the sole benefit of the insurer, which would leave no ground for a finding of fact that they were understood between the parties to be made and accepted as inspection service for direct benefit to the Brewing Company [insured].... [Id. at 629.]

The facts of this case fall within that exception. It is undisputed that Hartford voluntarily inspected the equipment in question. Nonetheless, according to the Seventh Circuit in Pabst, in order to establish a legal duty owed by Hartford, plaintiffs must have evidence that the insurance inspection was an undertaking for the benefit of plaintiffs (the insured). No such evidence has been presented. The insurance policy between the parties sets out the definitive terms governing any inspections by Hartford. In particular, Section 11 of the policy provides:

The Company shall be permitted but not obligated to inspect, at all reasonable times, any Object designated and described in the Declarations forming a part of the policy. Neither the Company’s right to make inspections nor the making thereof nor any report thereon shall constitute an undertaking, on behalf of or for the benefit of the named insured or others, to determine or warrant that such Object is safe or healthful. [Emphasis added.]

The courts must enforce unambiguous insurance contracts as they are written and cannot defeat express provisions in a policy by judicial interpretation. Westchester Fire Insurance Company v. Barnett Millworks, Inc., Ala., 364 So.2d 1137, 1140 (1978). Clearly, the inspection by Hartford was never intended to be an undertaking for the benefit of the insured. Hartford conducted a limited insurance inspection of insured objects for its own use arid benefit, e.g., to determine whether to insure the equipment and, if so, to calculate the correct insurance premium, not a general safety inspection for the benefit of the insured.

In addition to the inspection disclaimer in the insurance contract, the record further reveals, through evidence that inspections were performed by at least two other independent insurance companies, that plaintiffs did not rely upon the inspection made by Hartford. Testimony also indicates that plaintiffs relied upon maintenance workers to inspect the equipment on the premises. We held in United States Fidelity & Guaranty Company v. Jones, Ala., 356 So.2d 596 (1977), that reliance is not a requisite of the tort of negligent inspection; however, that case concerned a third person, i.e., an injured worker suing his employer’s insurance company. The plaintiffs in the instant case, as parties to the insurance contract, had knowledge of the terms of the agreement, a factor not present in Jones. Nonreliance by the plaintiffs, then, is relevant in proving the absence of any duty owed by Hartford. In fact, the court in Pabst specifically noted that reliance or the lack thereof by the insured, which is understood by the insurer, is of “probative force to show both the undertaking of duty and relation of the parties upon which the action for negligence in performance thereof may be predicated.” 201 F. at 629.

No tort exists when no legal duty is owed from the alleged tortfeasor to the party claiming injury. Twine v. Liberty National Life Insurance Company, 294 Ala. 43, 311 So.2d 299 (1975). Finding that the contract here negates the existence of any duty owed by Hartford to conduct safety inspections for plaintiffs, we hold that plaintiffs have not stated a claim for negligent inspection. The trial judge did not err in granting summary judgment in favor of Hartford. Therefore, that judgment must be, and is, affirmed.

AFFIRMED.

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

      .The owners are now deceased, and their estates have been substituted for them in this action. The Holiday Motel is now the Hiway Host Motor Lodge, Inc.


text:
    The HEN HOUSE, INC., an Alabama Corporation v. William Gary ROBERTSON and Mary Vann Robertson.
    80-543.
    Supreme Court of Alabama.
    Feb. 19, 1982.

      Sam R. Shannon, Jr. and Joseph L. Boo-haker, Birmingham, for appellant.
    James R. Bowles, Tallassee, for appellees.
   BEATTY, Justice.

This is an appeal from an order of the Circuit Court of Elmore County denying the defendant’s motion for relief from judgment filed under Rule 60(b), ARCP. We reverse and remand with directions.

The judgment from which relief was sought was a default judgment. The defendant’s sole contention on appeal is that the default judgment was void because the plaintiffs failed to give the required three-day notice due a party who has appeared in the action under Rule 55(b)(2), and that, therefore, defendant was entitled to Rule 60(b) relief. Whether the defendant had “appeared in the action” is the question, then, which is dispositive. The answer to that question requires a review of the proceedings between the parties.

The Robertsons (and others not material here) entered into a lease of premises with The Hen House, Inc., as tenant. A dispute arose between them. On October 24, 1980, the Robertsons filed an action against The Hen House, Inc., No. CV-80-435, in the Circuit Court of Elmore County seeking damages for breach of that lease agreement. A copy of this summons and complaint was served upon the president of The Hen House, Inc., on November 11, 1980.

No pleading or other document was filed in this case by the defendant; consequently on December 15,1980, the plaintiffs filed an application and affidavit for entry of a default judgment, and on December 23, 1980, the circuit court entered a default judgment against the defendant and in favor of the plaintiffs.

On March 16, 1981, the defendant filed a motion for relief from judgment. In this motion the defendant alleged, among other things, that it was never notified of either the plaintiffs’ application for default judgment or the trial court’s action in granting it, even though counsel for the parties had discussed the case during the period of pleadings. Moreover, the defendant maintains that circumstances disclose a “constructive appearance” which in law would have required the requisite three days’ notice before taking a default judgment.

Those circumstances include several other lawsuits between these parties together with a letter from defendant’s counsel to plaintiffs’ counsel. According to defendant’s counsel, defendant sent its own summons and complaint to the Elmore County circuit clerk on October 22, 1980, with the request that it be filed. This action also alleged a breach of the same lease which was the subject of the plaintiffs’ action which was filed two days later. However, the defendant’s action was not filed until October 27, 1980, when it was given the designation: CV-80-438. Because the plaintiffs here did not file an answer to CV-80-438, the effect of this exchange, according to the defendant, was that CV-80-435, the plaintiffs’ action, was a response to defendant’s CV-80-438.

The letter referred to above, dated November 14, 1980, acknowledged receipt of a copy of plaintiffs’ summons and complaint (CV-80-435), called attention to defendant’s action (CV-80-438) and invited negotiations to clear up any misunderstandings “in a way that will permit your clients to receive their rent on a regular basis.”

The circumstances also include another lawsuit filed by the plaintiffs against the defendant, this one being a wrongful de-tainer action filed in the district court of Elmore County, No. DV-80-255, and alleging a breach of the same lease agreement which was the subject of the two circuit court actions. The defendant appeared in this action by filing a motion to dismiss and an answer.

It was not until March 5, 1981, that the defendant learned of the default judgment rendered in CV-80-438 whereupon on March 16,1981, it filed the motion for relief of judgment. Following the denial of that motion the defendant gave notice of appeal, and as parts of the record on appeal sought to have included the complaints in CV-80-435, CV-80-438, DV-80-255, and the answer contained in DV-80-255, as well as defendant’s memorandum brief submitted to the trial court in support of defendant’s motion for relief from the default judgment. The trial court, after a hearing prompted by the plaintiffs’ rejection of this designation, ordered the circuit clerk to include in the clerk’s record only the pleadings in CV-80-435, i.e., the plaintiffs’ action on the lease.

On the question of whether or not the defendant made an appearance in this case, CV-80-435, the relevancy of the complaints in other cases, even though they were not consolidated with CV-80-435, has been decided in our case of Cockrell v. World’s Finest Chocolate Co., Inc., Ala., 349 So.2d 1117 (1977) and Dial v. State, Ala.Civ.App., 374 So.2d 361 (1979). See also Lawler Mobile Homes, Inc. v. Ellison, Ala.Civ.App., 361 So.2d 1092 (1978).

In Cockrell, supra, this Court expressed its policy favoring the determination of cases on the merits and disfavoring default judgments. In that case a default judgment had been granted without notice to the defendant who had filed a document as an “answer.” A majority of this Court held that the filing of that document was an “appearance” which necessitated notice to the defendant, and that the default judgment rendered without proof of such notice was due to be vacated regardless of whether or not the defendant had shown a meritorious defense to the action.

Pointing out that courts have refused to apply an overly technical and restrictive definition of “appearance,” the Court of Civil Appeals in Dial v. State, supra, found the existence of multiple actions, civil and criminal, in which the district attorney knew that the defendant was represented by the same lawyer, to whom the district attorney had recommended continuances in all pending cases, constituted an “appearance” in the case in which a judgment by default had been entered. See also United States v. One 1966 Chevrolet Pickup Truck, 56 F.R.D. 459 (1972). The Court of Civil Appeals found persuasive the federal cases dealing with multiple actions between the same parties and pertaining to Rule 55 judgments:

They hold that where two actions have been filed and plaintiff knows that counsel who appeared for the defendant in the first action also represents the same defendant in the second action where no formal appearance is made, by legal construction, there is a technical appearance under Rule 55(b)(2) requiring notice. See, Gomes v. Williams, 420 F.2d 1364 (10th Cir. 1970); Press v. Forest Laboratories, Inc., 45 F.R.D. 354 (S.D.N.Y.1968).

In Press, supra, the federal district court vacated a default judgment when it was later shown that the defendant’s representatives, who had made an earlier appearance in a case involving the same parties and general subject matter, had sufficient contact with the plaintiff’s attorney to constitute an appearance. In H. F. Livermore Corp. v. Aktiengesellschaft Gebruder Loepfe, 432 F.2d 689 (D.C.Cir.1970), it was held that a defendant had “appeared” in an action when the parties had exchanged letters seeking a settlement, and a default was ordered set aside when the defendant had not received the required notice.

Given the subject matter of the cases filed in district and circuit court, and the defendant’s counsel’s correspondence with plaintiffs’ counsel, it is our conclusion that defendant in this case had also filed an “appearance” for the purposes of Rule 55(b)(2). Having made an appearance, it was necessary that he be given notice in order to perfect the default judgment.

The plaintiffs argue, however, that the final orders in the cases, DV-80-255 and CV-80-438 are res judicata and bar recovery for the defendant in any event. Such an argument is premature since the plea of res judicata, if made subsequently and successfully, would be applied to the merits of this controversy. Those merits, of course, have not been considered by virtue of the default which proceeded only upon the plaintiffs’ complaint.

Having found that the defendant “appeared” for the purposes of Rule 55, we adhere to our view contained in Cockrell, supra, that the failure of notice requires the reversal of the trial court’s order on the defendant’s Rule 60(b) motion. Accordingly, that order is reversed and the trial court is directed to vacate the default judgment heretofore entered. It is so ordered.

REVERSED AND REMANDED WITH DIRECTIONS.

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


text:
    LIBERTY LOAN CORPORATION OF GADSDEN, a Corporation v. Rita MIZELL.
    80-597.
    Supreme Court of Alabama.
    Feb. 19, 1982.

      Thomas M. Goggans of Piel, Bright & Goggans, Montgomery, for appellant.
    Frank M. Wilson of Beasley & Wilson, Montgomery, for appellee.
   BEATTY, Justice.

The defendant appeals from a judgment based upon a jury verdict for the plaintiff in the amount of $15,000.00. We reverse and remand.

The litigation arose out of attempts by defendant to collect money under a promissory note and security agreement between defendant, plaintiff and her husband. Plaintiff and her then husband each signed that agreement and a real estate mortgage.

Following a default in the payment of the loan, the defendant, apparently by mail, sent a delinquency notice to the debtors on December 27, 1979; another was sent to plaintiff herself on June 25, 1980. In July 1980 a representative of the defendant telephoned plaintiff’s office without result. He then telephoned plaintiff’s apartment on two occasions. The conversations which ensued were brief; the representative identifying himself and giving the purpose of his call, and plaintiff expressing to him her opinion that the debt was not hers, but was that of her husband. Mr. Sheldon, plaintiff's former husband and a signatory to the loan documents, on January 21, 1980, had filed a petition in the United States Bankruptcy Court for relief under 11 U.S.C. Chapter 13. The defendant’s representative knew this at the time of his call to her on July 17, 1980, and gave this knowledge as the reason for his call. He then telephoned plaintiff’s attorney to inquire whether or not plaintiff herself was in bankruptcy and was advised by someone in that office that she was not. Whereupon on that date defendant’s representative mailed a form letter to plaintiff notifying her that her account had been sent to an attorney with instructions to file suit against her. It called attention to the added expense involved and added:

Even at this late date, we are willing to work with you to bring your account to a current status. We believe that it is to your advantage to avoid unnecessary costly legal proceedings.

The representative contacted the plaintiff again on July 29, 1980, informing her that he had contacted her attorney and had sent her account to defendant’s attorney.

On July 30, 1980, plaintiff’s attorney sent a letter to the defendant’s representative, with a copy to defendant’s attorney, pointing out that plaintiff and her husband had divorced, that under the decree the former husband was to satisfy all indebtedness incurred by him during the marriage, and taking the position that the defendant’s delinquent account concerned a debt owed by plaintiff’s former husband, not by plaintiff. That decree, which was later admitted into evidence, actually recites:

4. That the wife shall pay the outstanding indebtedness to Troy State University incurred by her for educational expenses and that the husband shall pay all other marital bills ... incurred by the parties prior to the date of any decree to be rendered in this cause and that the husband shall hold the wife harmless from liability for same. [Emphasis added.]

On August 13, 1980, defendant filed an action against plaintiff in the District Court of Montgomery County to recover the balance due it on the loan agreement. An employee of the sheriff’s department took the summons and. complaint to the plaintiff’s apartment complex. He obtained her correct address from the manager but, finding no one at home, returned to the sheriff’s office where he found instructions to serve the process upon plaintiff’s attorney. Plaintiff later found a message from the sheriff’s department on her door asking-her to pick up some papers at the courthouse. She telephoned and requested the sheriff’s office to serve the papers upon her attorney, which was done.

The complaint was amended on August 29, 1980, and on September 16, 1980, it was dismissed on the present defendant’s motion. That same day the present plaintiff filed a complaint in circuit court containing Count I alleging an invasion of her privacy, Count II alleging malicious prosecution, and Count III alleging libel. In the due course of pleading, the defendant filed a motion for summary judgment against plaintiff on plaintiff’s complaint and against plaintiff on defendant’s counterclaim to recover the alleged sum due under the loan agreement. This motion was denied.

Meanwhile, on December 17,1980, a hearing was held in the bankruptcy court to determine whether the statutory co-debtor stay of execution provided by Section 1301 of the Bankruptcy Code should be lifted. That court found from the evidence that plaintiff had executed a promissory note and security agreement on May 18, 1979, and was liable to defendant for any sum due under said note. The findings continued:

It further appears that this debtor’s plan does not provide for any payment to Liberty Loan Corporation and that accordingly the codebtor stay provided by Section 1301 of the Bankruptcy Code should be lifted as provided by Section 1301(c)(2).
It is accordingly ORDERED that the codebtor stay be and is hereby lifted as to Rita Mizell and the creditor Liberty Loan Corporation is free to proceed according to law.

The case proceeded to jury trial. At the conclusion of plaintiff’s evidence, the defendant’s motion for a directed verdict was denied. Following the jury’s verdict in favor of plaintiff, the defendant moved for a judgment notwithstanding the verdict and a new trial on the ground, among others, that the verdict and judgment were contrary to the evidence. Those motions were denied. This appeal ensued.

In the count charging an invasion of privacy, plaintiff alleged that her husband had borrowed the money; that he had filed for bankruptcy; that defendant was aware of this, but nevertheless contacted plaintiff at home and at work on numerous occasions demanding payment of a past due account which she advised was not hers; that defendant filed suit against her, made numerous threats to plaintiff, notified one or more credit rating companies that she owed a past due debt, and otherwise harassed plaintiff with threats of suit and collection for a debt that was not owed by plaintiff.

The tort of invasion of the right of privacy, insofar as it applies to actions of a creditor in regard to his debtor, is “the wrongful intrusion into one’s private activities in such manner as to outrage or cause mental suffering, shame or humiliation to a person of ordinary sensibilities.” Norris v. Moskin Stores, Inc., 272 Ala. 174, 132 So.2d 321 (1961), quoting from Smith v. Doss, 251 Ala. 250, 37 So.2d 118 (1948). As Norris cautioned, however, not every effort by a creditor to collect a debt rises to the level of a lawsuit by the debtor:

The mere efforts of a creditor ... to collect a debt cannot without more be considered a wrongful and actionable in-trusión. A creditor has and must have the right to take reasonable action to pursue his debtor and collect his debt....

As Norris pointed out, some courts have applied a rule of “reasonableness” in judging the extent to which a creditor may act in pursuing collection and cited cases exemplifying unreasonableness. Those cases disclose patterns of repeated conduct equating deliberate harassment, or systematic campaigns designed to vilify the debtor or expose him to public*ridicule.

This case contains no facts from which any such inference could reasonably be made. The creditor sent two notices of account delinquency, one of which was addressed to plaintiff when the account was past due. One telephone call was made to her office, and there is no evidence that it was untoward. Two calls were made to plaintiff’s home. In the first the company representative identified himself and his purpose; the plaintiff denied liability and referred him to her attorney. When he telephoned her attorney, he inquired whether plaintiff was in bankruptcy and received a negative answer. He then sent plaintiff a letter advising that her account had been turned over to a lawyer. This notice was given to plaintiff by telephone almost two weeks later.

The district court action was filed the next month claiming the balance of the account. The complaint had the wrong address; the process server obtained the correct address from the apartment manager and left a message for her, but nothing else transpired in any way to humiliate or harass plaintiff. Plaintiff herself testified that the company representative did not subject her to any abuse during their telephone conversations. In short, nothing occurred in the nature of an invasion of privacy; nothing occurred that was calculated to offend a person of ordinary sensibilities. The preponderance of the evidence, to say the least, was against proof of the allegations of Count 1.

We reach the same conclusion with respect to Count II charging malicious prosecution.

It is axiomatic that a charge of malicious prosecution must be supported by proof of a lack of probable cause and malice, Boothby Realty Company v. Haygood, 269 Ala. 549, 114 So.2d 555 (1959), and it is clear that evidence implying the existence of neither of these elements was adduced below.

Was there probable cause for the institution of the action filed in district court to enforce the debt? If that action was brought with probable cause, then the malicious prosecution action would not arise no matter what the result in the former action was. Turner v. J. Blach & Sons, 242 Ala. 127, 5 So.2d 93 (1942). And for the defense of probable cause to prevail, the defendant in the subsequent action must have reasonably entertained the opinion that, upon adjudication, the claim he put forth in the former action would prevail. Gamble v. Webb Quarterback Club, Ala.Civ.App., 386 So.2d 455 (1980), cert. denied, Ex parte Gamble, Ala., 386 So.2d 459 (1980). As stated in Boothby, supra, 269 Ala. at 554, 114 So.2d 555:

One of the reasons for this rule is that public policy requires that all persons shall resort freely to the courts for redress of wrongs and to enforce their rights, and that this may be done without the peril of a suit for damages in the event of an unfavorable judgment by jury or judge. If this were not the case, a large proportion of unsuccessful civil actions would be followed by suits for malicious prosecution, and there would be a piling of litigation on litigation without end. [Citations omitted.]

Conceding, as the plaintiff insists, that the defendant knew of the bankruptcy proceedings, those proceedings were not instituted by the plaintiff but by her husband. Plaintiff freely and voluntarily executed the promissory note and security agreement, the failure of which gave rise to the district court action. The language of each agreement contemplated more than one signatory, and upon signing each became liable as a joint maker. Elrod v. Trussell, 266 Ala. 383, 96 So.2d 813 (1957). See also Code of 1975, § 7-3-413. And, while the parties’ divorce decree did place the obligation to pay the indebtedness upon the husband, that decree did not state that she was not indebted. Indeed, the decree required the husband to indemnify plaintiff by holding her “harmless.” It is true that Section 1301 of the Bankruptcy Code provides for an automatic stay of proceedings against a co-debtor; however, that provision is not a final adjudication but only a postponement of further proceedings by the creditor:

The protection [to the debtor] is limited, however, to ensure that the creditor involved does not lose the benefit of the bargain he made for a cosigner. He is entitled to full compensation ... provided for by the agreement under which the debtor obtained his loan.. .. The creditor is delayed, but his substantive rights are not affected.
Under the terms of the agreement with the codebtor who is not in bankruptcy, the creditor has a right to collect all payments to the extent they are not made by the debtor at the time they are due. To the extent to which a Chapter 13 plan does not propose to pay a creditor his claims, the creditor may obtain relief from the court from the automatic stay and collect such claims from the codebt- or.... [5 Bkr.—L.Ed. § 45:9 at 6; see also In re Betts, 8 B.R. 799 (Bkrtcy.S.D. Ohio 1981).]

Thus, even though the district court action to enforce the debt was later dismissed on the present defendant’s motion, its knowledge of plaintiff’s husband’s bankruptcy did not impute a lack of probable cause to prosecute that action against this plaintiff, a co-debtor, for the effect of the bankruptcy law did not act on the legality of her debt but only postponed collection in order to assure that her co-debtor, the bankrupt, was insulated from “indirect pressure from his creditors exerted through friends or relatives that may have cosigned an obligation of the debtor.” 5 Bkr.—L.Ed. § 45.9 at 6. As we have shown, that postponement was lifted by the bankruptcy court following a hearing which found the plaintiff liable to the defendant on the promissory note. In weighing the defendant’s action in light of the facts as they appeared at the time of the district court action, and considering that action in accord with the defendant’s exercise of its legal rights, we cannot conclude that any evidence was shown which created an inference of lack of probable cause. Such a course of conduct, moreover, could not furnish an inference of malice. Emerson v. Lowe Mfg. Co., 159 Ala. 350, 49 So. 69 (1909).

Finally, our examination of the record convinces us that there was a failure of proof of Count' III which charged this defendant with defaming plaintiff by publishing false statements that plaintiff was indebted to defendant, refused to pay it, and that her credit was bad. It has been shown that plaintiff did owe the debt to defendant. Truth is an absolute defense to defamation. Ripps v. Herrington, 241 Ala. 209, 1 So.2d 899 (1941). Moreover, the plaintiff did not allege or prove any special damage. In this jurisdiction “words charging nonpayment of debts ... are actionable without special damage being shown, when they refer to merchants, tradesmen, or others in occupations where credit is essential.” Harrison v. Burger, 212 Ala. 670, 672, 103 So. 842 (1925). Plaintiff, a psychiatric social worker, does not have an occupation falling within that category. Indeed, according to her own testimony, her damage consisted of embarrassment and attorney’s fees.

Our previous recital of the facts amply discloses an absence of any facts establishing an actionable publication. We have not found in the record, nor have we been pointed to, any publication made by the defendant to any credit bureau or similar organization, but even if such report had been made, it would have been protected by the defense of truth. Jakob v. First Alabama Bank of Montgomery, Ala., 361 So.2d 1017 (1978). Additionally, it appears that such a report to a credit agency is generally held to be qualifiedly privileged, i.e., not actionable if made in good faith by a party having an interest in the matter to another having a corresponding interest. See 53 C.J.S. Libel and Slander § 119 (1948). Nothing in the facts before us indicates any lack of good faith on the part of the defendant in its conduct to collect this debt, nor was there any communication containing matter which would tend to defame. Neither the late notices nor the telephone messages contained any such inferences. No verbal abuse of any kind was disclosed. The attempted service of process by the deputy sheriff contained nothing in the way of defamatory matter. Plaintiff herself communicated the fact of defendant’s lawsuit against her to her friends and associates at work, not defendant. Under these facts no prima facie case of defamation was established.

Although defendant moved for a directed verdict at the conclusion of the evidence, the denial of that motion is not made a ground of appeal; instead defendant has appealed from the denial of its motions for JNOV and a new trial and has argued the insufficiency of the evidence. Had defendant raised before us the denial of its motion for a directed verdict, that would have furnished a ground for reversal, as we have shown. Cf. Garmon v. King Coal Co., Inc., Ala., 409 So.2d 776 (1981). However, we are likewise clear to the conclusion that the evidence failed to establish a prima facie case on any count and thus it was error to deny the motion for JNOV. We have no alternative but to reverse the judgment and remand the cause to the trial court with directions to enter a judgment for the defendant. It is so ordered.

REVERSED AND REMANDED WITH DIRECTIONS.

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

      . Under Section 1301 of the Bankruptcy Code, the right of a creditor to proceed against a co-debtor is postponed until the manner of repayment is resolved.


text:
    CEDARWOOD ASSOCIATES, L. T. D., an Alabama Limited Partnership; Larry C. Herring, as General Partner for Cedarwood Assoc., L. T. D. v. Virgil TRAMMELL, Jr., Sara Jones Trammell, Marguerite Jones Shannon, John D. Trammell.
    80-605.
    Supreme Court of Alabama.
    Feb. 19, 1982.

      L. Tennent Lee, III, of Cleary, Lee, Porter, Evans & Rowe, Huntsville, for appellants.
    Patrick H. Boone of Perdue, Johnson, Boone & Johnson, Birmingham, for appel-lees.
   BEATTY, Justice.

This is an appeal by defendants Cedarwood Associates, L.T.D., and Larry C. Herring, as general partner for Cedarwood, from a Jefferson County Circuit Court’s ruling for plaintiffs in an action for specific performance of a contract for the sale of land. The trial judge determined that the defendants (hereinafter Cedarwood) had breached their contract with Plaintiffs and ordered Cedarwood to execute a warranty deed of the property involved to the plaintiffs, with defendants’ waiver of their right of redemption. We affirm.

The first parcel of property involved consists of some thirty-one acres in Jefferson County sold January 3, 1974, by plaintiffs Marguerite Shannon and Sara Trammell to Cedarwood who executed a series of five promissory notes in favor of the sellers Shannon and Trammell as partial payment for this parcel. To secure prompt payment, defendants executed a purchase money mortgage in the amount of $212,500.00 in favor of the sellers. The second parcel involved is a fifteen-acre tract conveyed on January 3, 1974, by plaintiffs Virgil Tram-mell, Jr., and John D. Trammell to defendants in exchange for five promissory notes, payable on a scaled schedule, and a purchase money mortgage for $89,250.00.

For the first three years, only interest payments became due, and these were paid by Cedarwood. When the date arrived for the payment of two of the ten principal promissory notes, January 7, 1978, and the payments were not made, plaintiffs wrote to defendants stating that foreclosure would be commenced on February 11, 1978, if no agreement could be reached. An agreement was reached and committed to writing on March 1, 1978. The agreement declared the mortgages and two notes to be in default and provided for delaying the payment of each of the ten notes for twelve months; however, the defendants were to meet specific conditions. In essence, these conditions stipulated that defendants make certain payments on the two notes on May 15, 1978, to plaintiffs and in the event defendants failed to do so, defendants would execute a warranty deed conveying all their rights, title and interest in the two parcels to Virgil Trammell, Jr., and waive their right of redemption. This agreement was modified in a writing which extended the date of payment to August 15, 1978. The plaintiffs claim that Cedarwood violated the agreement by the failure to make payments it was obligated to make under the notes and the agreement and by the failure to reconvey the property to Trammell. Cedarwood alleged there were subsequent verbal agreements by which Virgil Trammell agreed to waive the balance due on the Sara Trammell/Marguerite Shannon mortgage. Under these agreements allegedly made in May 1978 and February 1979 with defendant Herring, there was no default. The agreements, according to defendant Herring, stated that Trammell would accept the interest payment on his own mortgage and partial payment on the Tram-mell/Shannon mortgage as payment in full for the years in question.

The plaintiffs filed suit on December 13, 1979, alleging breach of contract. Defendants counterclaimed alleging the existence of a verbal agreement and modifications. Foreclosure was initiated and consummated on April 14, 1980.

The trial court held an ore tenus hearing on October 6, 1980. After hearing the witnesses and upon consideration of the pleadings and evidence, the trial judge entered a final judgment on October 14, 1980, finding Cedarwood in breach of the written contracts and agreement, plaintiffs’ entitlement to a fee simple title in the parcels of land, and denying defendants’ counterclaim. A motion to alter, amend or vacate the judgment was denied by the trial court and defendants filed this appeal.

The issues presented are:

(1) At the time of foreclosure, had plaintiffs waived their right to foreclose by accepting partial payment on the matured notes;

(2) After the execution of his mortgage, may a mortgagor agree to waive or release his right of redemption; and if so,

(3) Did the parties enter into an agreement to allow a lesser payment in exchange for defendants’ right of redemption if later payments were not met?

(1)Defendants/appellants contend that forfeitures under a mortgage may be waived by continued recognition and receipt of partial payments, and that even without the testimony in the record concerning subsequent oral agreements modifying the payment terms, the course of conduct carried on by Virgil Trammell sufficiently constituted a waiver. Plaintiffs/appellees dispute any waiver and contend that in order for a contract to be validly modified, there must be mutual assent to the new terms by both parties and that there was not a mutually bargained for verbal modification.

The evidence appellants presented at trial in support of their contention consists mainly of testimony of the general partner in Cedarwood, Larry Herring, who stated that Virgil Trammell, acting as the agent for Marguerite Shannon and Sara Trammell, agreed to waive the balance due on the Shannon/Trammell mortgage in 1978 and 1979 if full interest payment was made on the Shannon/Trammell mortgage for the respective years. In addition, appellants contend that Virgil Trammell understood that if any part of the principal was to be paid it would require a sale of all or part of the property by Cedarwood, thus explaining the waiver of payments.

Appellees, on the other hand, presented testimony of appellant Herring that tended to show Cedarwood breached the written agreement and was therefore in default. Herring did testify that the notes of 1978 and 1979 were never paid in full, and appel-lees consistently denied that there were ever any verbal modifications agreed on or a waiver by all parties. Appellees argue that in dealings such as these, when obligations are not paid by the due date as set forth in a written agreement, foreclosure is the proper remedy.

(2) Appellants contend that, without their receiving something more, the satisfaction of the debt in exchange for their conveyance of the right of redemption makes the exchange an agreement without consideration, and therefore void. The trial court’s order requiring reconveyance of the land simultaneously with a conveyance of the mortgagor’s right of redemption, according to appellants, should be reversed.

Appellees argue that unless appellants can prove some, type of fraud in the inducement for the March 1, 1978, agreement concerning the right of redemption, it is enforceable. Although a waiver of the right of redemption should be considered carefully by the courts, such a waiver is not invalid per se if it is based upon a bona fide agreement entered into after the execution of the mortgage. See Stoutz v. Rouse, 84 Ala. 309, 4 So. 170 (1888), holding that a bona fide purchase of the right of redemption which is entered into subsequent to the mortgage will be upheld by the courts, unless procured by fraud.

(3) Appellants argue that public policy disfavors any agreement which operates to destroy a debtor’s right of redemption after foreclosure, and that the right to redeem is a creature of law and not of contract. Moreover, they contend that subsequent oral modifications rendered inoperative the provision of the March 1, 1978, agreement requiring conveyance of the property along with the right of redemption.

Appellees point to a clause in both mortgages to refute appellants’ public policy argument. That clause forbids any modification of the mortgage unless such alterations are in writing signed by the parties, and according to appellees, effectively bars any verbal modifications such as those alleged by appellants. This writing, entered into March 1, 1978, evidenced appellees’ agreement to extend the time for payment in consideration of appellants’ agreement to reconvey the property in the event of failure to pay. Appellees produced a letter from Herring to appellees’ attorneys in which the general partner of Cedarwood applauded the written agreement as being comprehensive of all verbal commitments. Appellees further contend that unless the record shows the agreement was procured by fraud or undue influence, it is totally acceptable and enforceable. No such evidence is contained in the record.

The law in Alabama concerning the issue before us was aptly stated by Justice Somerville in 1887 in Stoutz v. Rouse, supra, and holds true today, as well:

“The right of redemption is the creature of law, and not of contract. The parties are not, therefore, permitted by special agreement to disannex from the mortgage at the time of its execution, that which the law has declared shall be annexed to it to prevent the undue oppression of debtors by creditors. And a like rule has been applied for similar reasons to the statutory right of redemption.—Palmer [Parmer] v. Palmer [Parmer], 74 Ala. 285.
“But the reason of this rule, however, does not apply to any fair and bona fide purchase of the right of redemption which is entered into subsequently to the execution of the mortgage. Although courts of equity will scan such a purchase with watchfulness, it will still be upheld, unless procured by fraud, actual or constructive, including any unconscientious advantage, or undue influence, or on a consideration which is grossly inadequate.—Hitchcock v. U. S. Bank, 1 Ala. 386; 443; McKinstry v. Conly, 12 Ala. 678.
“It is sometimes said that a purchase of the equity of redemption will be sustained only when it is based on an adequate consideration. — Thomas on Mortg. § 678; 2 Jones Mortg. (3rd Ed.) § 1045. There is much reason, however, in the rule, that in the absence of fraud, undue influence, or unconscionable advantage, the mortgagor may, at any time after the execution of the mortgage, by a new and separate contract, sell or release his equity of redemption to the mortgagee, for a consideration that is not grossly inadequate. This we incline to hold to be the better rule. ...
“... Why may not the mortgagor and mortgagee provide by a fair contract, without resort to the courts, for doing precisely what the law would do for them? Shall the law prohibit the parties from contracting bona fide at an agreed price, to do what it will compel by legal process? We think not, unless the relation of the parties is used to acquire some undue influence by which the creditor unfairly oppresses the debtor, or the sale made is based on a grossly inadequate consideration, for the legal effect of the transaction is that of a sale with the privilege of re-purchase within two years, and not of a mortgage, or security for a debt. This is not an unfair sale of the equity of redemption, nor an unreasonable fettering of it within the meaning of the law. It merely converts it by contract into the statutory right of redemption, in order to save the expenses of foreclosure incident to a suit in chancery. The law highly favors the compromise of law suits, whether pending or threatened, upon the soundest principles of public policy.”
84 Ala. 309, 311-312, 4 So. 170 (1888).

The conflicting evidence presented on these issues in the trial court made an ore tenus case for our review. When the evidence is heard ore tenus, the judgment is presumed correct and will not be disturbed on appeal unless it is plainly and palpably erroneous. Sandlin v. Sanders, Ala., 360 So.2d 977 (1978); Davis v. Linden, Ala., 340 So.2d 775 (1976). In this case the trial judge examined numerous exhibits and heard testimony from several witnesses before he rendered the judgment. On the record, his findings were not plainly and palpably wrong; and therefore, his judgment is due to be affirmed.

AFFIRMED.

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


text:
    AMERICAN INSTITUTE OF PSYCHOTHERAPY, SCHOOL OF PROFESSIONAL PSYCHOLOGY v. ALABAMA BOARD OF EXAMINERS IN PSYCHOLOGY, a State Agency; Crystal K. Kelley, Robert D. Sanders, William F. Vitulli, C. J. Rosecrans and Arnold Mindingall.
    80-890, 80-912.
    Supreme Court of Alabama.
    Feb. 19, 1982.
    Patrick H. Graves, Jr. and Gary C. Huc-kaby of Smith, Huckaby & Graves, Huntsville, for appellant.
    Randolph P. Reaves of Wood, Minor & Parnell, Montgomery, for appellees.
   BEATTY, Justice.

On January 24, 1980, the American Institute of Psychotherapy (hereinafter Institute) applied to the Alabama Department of Education for a license to operate a private school under Code of 1975, § 16-46-5(d). The license was issued on June 12, 1980, but dated January 18, 1980, in order to conform with the date on the bond required for application. On December 5, 1980, the Board of Examiners in Psychology filed a petition for review with the Board of Education challenging the licensure. Subsequently, the individual members of the Board of Examiners filed their petition for review. The Board of Education dismissed both petitions.

The Board of Examiners and its individual members filed their petition for a writ of mandamus or, alternatively, a writ of cer-tiorari in the Circuit Court of Montgomery County, naming the Institute as the sole party defendant. The Board of Education was later added as a party defendant. The petition requested the trial court to require the Board of Education to grant it a hearing, pursuant to Code of 1975, § 16-46-9, on whether the Institute should be licensed.

The Institute moved to dismiss, contending that plaintiffs did not have standing to bring the action, that the court was without jurisdiction, and that the request for review by the Board of Education was not timely filed.

The parties submitted the case to the trial court upon a stipulation of the facts and the pleadings. The trial court issued the writ of mandamus to the defendant Alabama State Board of Education and directed that agency to grant the individual plaintiffs a hearing. That order was based upon a finding that, while the Board of Examiners did not have standing to challenge the actions of the Board of Education, the individual members of the Board of Examiners did have such standing. The Institute appealed to this Court. The Board of Examiners cross appealed. We reverse and remand with directions.

The trial court erred in refusing to grant the Institute’s motion to dismiss. The requests for review by the Board of Examiners and its members were not timely filed. Code of 1975, § 16-46-9 (Supp.1981) provides, in part:

Any person or school aggrieved by the actions of the Alabama state department of education with respect to exemption, issuance, denial, deferral, probation, suspension, or revocation of a license or permit provided for in sections 16-46-3, 16-46-5, and 16-46-6, may file within 30 days a petition for review by the Alabama state board of education. [Emphasis added.]

In the present case the license in question was issued on June 12, 1980. However, the petitions for review were not filed with the Board of Education until December 5, 1980, approximately six months after licensure. Because the 30-day period for filing had lapsed, we find that the Board of Education properly dismissed the petitions.

The Board of Examiners contends that the 30-day time limitation did not begin to run until it received actual notice of the action taken by the Board of Education. Proceeding under that argument, the Board of Examiners claims that it filed within the 30-day period because it did not receive actual notice of the licensure until November 14, 1980. We cannot agree.

It is clear from the terms of Code of 1975, § 16-46-9, that the time period commences as soon as any of the actions specifically referred to in the statute occur. Under that statute notice is clearly not a condition precedent to the running of the time limitation. When the intention of the legislature is so apparent from the face of the statute that there can be no question as to its meaning, there is no room for construction. Custred v. Jefferson County, Ala., 360 So.2d 285, 289 (1978). While we are mindful that our decision may place an administrative burden upon those who wish to avail themselves of the terms of § 16-46-9, nevertheless the legislature has set forth the time limitations, and our duty requires us to follow the legislative will.

Because we find the petitions were not timely filed with the Board of Education, the other issues raised in this appeal need not be addressed. The trial court’s order issuing the writ of mandamus is reversed and that court is directed to grant the Institute’s motion to dismiss this action.

REVERSED AND REMANDED WITH DIRECTIONS.

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


author: EMBRY, Justice.

text:
    STATE of Alabama v. UNITED STATES STEEL CORPORATION.
    80-482.
    Supreme Court of Alabama.
    Feb. 26, 1982.
    Robert E. Paden of Paden, Green & Pa-den, Bessemer, Edward L. Hardin, Jr., Birmingham, for appellant.
    William C. Knight, Jr. and William F. Murray, Jr. of Thomas, Taliaferro, Forman, Burr & Murray, Birmingham, for appellee.
   EMBRY, Justice.

This appeal is from a judgment entered in an eminent domain proceeding in which United States Steel Corporation (USS) was awarded the sum of $538,895 in damages for its lands taken for construction of interstate highway 1-59 in Birmingham. The State of Alabama argues that the trial court erred in denying the State’s motion for a mistrial based on a prejudicial question asked by the attorney for USS and in denying the State’s request that testimony be admitted regarding enhancement of the value of USS’s remaining land by relocation of a county road. We find no reversible error in either of these rulings by the trial court and therefore affirm.

In June 1974, the State of Alabama filed an application for an order of condemnation in the Probate Court of Jefferson County, Bessemer Division, seeking to acquire, by eminent domain, four parcels of land owned by USS for the construction of 1-59, including all access rights between the interstate highway and the parcels remaining after condemnation. The probate court held a hearing, granted the petition for condemnation, and appointed three commissioners to determine just compensation for the property. The commissioners filed a report and the probate court entered an order on 11 September 1974 confirming the commissioners’ award of $449,505.

The State appealed to the circuit court, demanding a trial by jury. USS cross-appealed. Following depositions and other discovery, the circuit court held a pretrial conference. Among the matters discussed was whether evidence of the possible rerouting and construction of Powder Plant Road to intersect with 1-59 should be considered. The circuit court determined in its pretrial order that: “Any benefit from the proposed building or rerouting by a county of an access road after the institution of a state condemnation proceeding for a limited access highway is not to be considered in computing condemnation damages in said state condemnation proceedings.” From late 1975 until 1979, the case remained relatively inactive and was continued for trial several times. Following additional discovery, the State once again raised the issue of the rerouting of the county road. The trial court again ruled that compensation should be awarded without regard to the proposed rerouted road.

After a jury trial, a verdict was returned making an award of $538,895 in damages to USS. Judgment was entered on that verdict and the State’s motion for a new trial was overruled. The State then timely perfected this appeal.

The State’s principal witness, Sidney W. Smyer, Jr., testified that the total severance damages of the four parcels was $265,-100. He admitted on cross-examination, however, that despite his opinion that the highest and best use of Parcel I before the taking was commercial and residential, the area was zoned industrial, which classification would result in a higher valuation; that USS had lost 2,400 feet of frontage on a four lane federal highway and only had access at one interchange after the taking; and that the noise and traffic of an interstate could well damage, rather than enhance, remaining properties of USS.

It was also during cross-examination of Smyer that the question was asked which the State argued was grounds for a mistrial:

Q. Are you familiar with Bessemer State Technical College?
A. I know where it is.
Q. It is property similar to that owned by U. S. Steel in that area?
A. Yes.
Q. Before the taking. Is your answer yes?
A. Yes.
Q. Are you aware that they sold nine acres to the state for $16,000 an acre—
Mr. Paden: I’m going to object to that and ask for a mistrial.
The Court: Sustain the objection.
Mr. Knight: On what basis?
Mr. Paden: On the basis that it is [not?] a comparable sale. It is not an arm’s length sale. We would like to argue it outside the presence of the jury.
(Jury not present.)
Mr. Paden: At this time I ask the court to declare a mistrial. That is certainly inadmissible evidence in the form of a statement by counsel for U. S. Steel; it was made for the purpose of prejudicing this jury against the state of Alabama where it was a transaction between two state agencies. There is no question that a sale where there is a condemning party is not an arm’s length transaction. And sales between a state agency and adjoining property owners is not admissible.

The trial court sustained the objection, denied a mistrial, and instructed the jury not to consider the question.

While it is true that “in a condemnation proceeding, the price paid by the condemnor for other lands which are to be used for the same purpose as the lands being condemned is inadmissible, and its admission is reversible error,” State v. Hodge, 280 Ala. 422, 424, 194 So.2d 827 (1967), it is also true that an appellant must show prejudice from such error. “Where there is no answer to a question, any error in asking the question is harmless,” Id. Mr. Smyer never answered the objectionable question.

Furthermore, the jury’s award reflects no bias or prejudice. Not only is the award here close to that recommended by the commissioners to the probate court, but it also is well within the range testified to at trial. The primary witness for USS, Andrew B. Park, gave an appraisal of $737,-634 severance damages for the four parcels. Finally, the deposition of Mr. John D. Chi-chester taken on 18 September 1975 was read into the record. He stated total severance damages to be $788,503. Where the jury’s verdict is within the highest and lowest values placed upon the property by expert witnesses, this conclusion carries great weight. State v. Benderson, 366 So.2d 276 (Ala.1979). The record clearly shows, therefore, that the impropriety of the question was cured by the judge’s instruction to disregard it and, further, that it had no harmful effect.

The State’s other asserted error regards the trial court’s exclusion of any evidence regarding enhancement to the value of USS’s remaining lands by the relocation of Powder Plant Road. This ruling of the trial court is supported, however, by the well-settled rule in this state that valuation is established at the time of the taking. Kayo Oil Co. v. State, 340 So.2d 756 (Ala.1976); Jefferson County v. Adwell, 267 Ala. 544, 103 So.2d 143 (1958). The record shows that neither the state, nor the county, nor the municipality, expected to be able to fund the construction of this proposed relocation at the time this suit was commenced. Therefore, the trial court was also correct in this ruling.

For the foregoing reasons, the judgment below is due to be, and is hereby, affirmed.

AFFIRMED.

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


text:
    OPINION OF THE JUSTICES.
    No. 293.
    Supreme Court of Alabama.
    March 2, 1982.
   The House of Representatives

State of Alabama

The State Capitol

Montgomery, Alabama

Members of the House of Representatives:

We are in receipt of House Resolution No. 145 which is requesting an advisory opinion on House Bill 26, which is, in part, as follows:

“HR 145 REQUESTING AN ADVISORY OPINION OF THE JUSTICES OF THE SUPREME COURT RELATIVE TO H.B. 26.
“BE IT RESOLVED BY THE HOUSE OF REPRESENTATIVES OF THE LEGISLATURE OF ALABAMA, That we respectfully request the Honorable Chief Justice and Associate Justices of the Supreme Court or a majority of them, to give this body their written opinions on the following important constitutional question which has arisen concerning the pending bill, H.B. 26, a copy of which is attached to this resolution and made a part hereof by reference:
“1. Does H.B. 26 violate the 14th Amendment to the U. S. Constitution?
“RESOLVED FURTHER, That the Clerk of the House of Representatives is hereby directed to send sufficient true copies of the pending bill, H.B. 26, to the Clerk of the Supreme Court of Alabama, and to transmit this request to the Justices of the Supreme Court forthwith upon adoption of this Resolution.
“SYNOPSIS: This bill provides that certain judicial officers convicted of a felony shall receive a mandatory sentence of imprisonment equal to the minimum time prescribed for said felony.
A BILL
TO BE ENTITLED
AN ACT
“To provide that certain judicial officers convicted of a felony shall receive a mandatory sentence of imprisonment equal to the minimum time prescribed for said felony.
BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:
“Section 1. For the purposes of this act judicial officers shall mean Supreme Court Justices, Court of Criminal Appeal Judges, Court of Civil Appeal Judges, Circuit Court Judges and District Court Judges.
“Section 2. Any judicial officer convicted of a criminal act constituting a felony shall receive a mandatory sentence of imprisonment equal to the minimum time prescribed for said felony. This act, in no way, shall prohibit a longer sentence of imprisonment than the minimum prescribed by law.
“Section 3. The provisions of this act are severable. If any part of the act is declared invalid or unconstitutional, such declaration shall not affect the part which remains.”
“Section 4. All laws or parts of laws which conflict with this act are hereby repealed.
“Section 5. This act shall become effective immediately upon its passage and approval by the Governor, or upon its otherwise becoming a law.”

The answer to your inquiry is in the affirmative.

Generally, any law with respect to the punishment to be given must operate equally on every citizen or inhabitant of the state, and a statute is void as a denial .of equal protection of the laws which prescribes a different punishment or different degrees of punishment for the same acts committed under the same circumstances by persons in like situations.

While the legislature has a broad discretion to classify and provide a special punishment for a special class of offenders, such as minors, convicts and habitual offenders, there is no fact contained in your request for this opinion which shows the reasonable basis for a law which would single out members of the judiciary for special punishment as a class. It is a settled principle that “[wjhen the law lays an unequal hand on those who have committed intrinsically the same quality of offense and sterilizes one and not the other, it has made as an invidious a discrimination as if it had selected a particular race or nationality for oppressive treatment.” McLaughlin v. State of Florida, 379 U.S. 184, 194, 85 S.Ct. 283, 289, 13 L.Ed.2d 222 (1964).

We are of the opinion that there is no rational basis for classifying justices and judges of the state in a special category for purposes of punishment.

Respectfully submitted,

C. C. TORBERT, JR. Chief Justice

HUGH MADDOX

JAMES H. FAULKNER

RENEAU P. ALMON

JANIE L. SHORES

T. ERIC EMBRY

SAM A. BEATTY

OSCAR W. ADAMS, Jr. Justices


author: BRADLEY, Judge.

text:
    William DAVIS, as Director, Department of Industrial Relations, State of Alabama v. Gregory STEWART.
    Civ. 2532.
    Court of Civil Appeals of Alabama.
    April 15, 1981.
    Rehearing Denied May 20, 1981.
    George Cocoris, General Counsel, and Frank D. Marsh, Asst. General Counsel, Montgomery, for appellant.
    Kenneth B. Taylor, Jr. and William W. Campbell of Legal Services Corp., Florence, for appellee.
   BRADLEY, Judge.

This is an unemployment compensation case.

Gregory Stewart had been employed by Eby Construction Company in Iuka, Mississippi for approximately two weeks as a laborer digging out tracks for bulldozers when, on June 15, 1979, he was injured in an automobile accident while driving home from work. Stewart’s home was located in that area of northwestern Alabama known as the Tri-Cities. Stewart sustained a broken neck, a dislocated arm, and cuts on the back of his head as a result of the accident and was hospitalized for approximately two weeks. At the time he was released from the hospital, Stewart’s neck was in a cast and he was unable to work. On November 15, 1979 Stewart’s doctor released him for light work which would not require lifting objects weighing over ten pounds. After being told that he could seek light work, Stewart made no effort to seek work of any kind from his former employer. He said that he “took for granted that if I went back there I would have to be a [laborer] also.” He also stated in his application for unemployment benefits that he had not reapplied for work with his former employer because of the distance to Iuka, Mississippi, and that he wanted work in the area in which he lived.

Although he sought work in the Tennessee Valley area almost from the time his doctor released him for work, Stewart did not secure employment until March 1980. Shortly after Stewart obtained employment with TV A, Eby Construction Company contacted him and offered him a position. Stewart declined the offer.

The Alabama Industrial Relations Department (Department) paid Stewart unemployment compensation for the period January 12, 1980 to March 8, 1980, but refused to pay for the period November 24, 1979 to January 5, 1980. Stewart appealed the decision refusing to pay for the period above listed to the Circuit Court of Colbert County. After a de novo hearing the circuit court found for the claimant and awarded him $1,364 as compensation benefits. The Department’s motion for new trial was overruled.

The Department appeals to this court and contends here that claimant is disqualified from receiving unemployment compensation benefits pursuant to § 25-4-78(2)a(l), Code of Alabama 1975, and as a consequence that the trial court erred in awarding him benefits.

Section 25-4-78, Code of Alabama 1975, provides in part as follows:

An individual shall be disqualified for total or partial unemployment:
(2) Voluntary departure from work.— If he has left his most recent bona fide work voluntarily without good cause connected with such work.
a.l. However he shall not be disqualified if he was forced to leave work because he was sick or disabled, notified his employer of the fact as soon as it was reasonably practicable so to do, and returned to that employer and offered himself for work as soon as he was again able to work. . . .

We have held that the burden of proving that he is not disqualified from receiving unemployment compensation benefits pursuant to § 25-4-78 is on the claimant. Department of Industrial Relations v. Jaco, Ala.Civ.App., 337 So.2d 374 (1976). In order to sustain this burden, the claimant must prove: (1) that he was compelled to leave his work because he was sick or disabled, (2) that he notified his employer of his sickness or disability as soon as was practicable to do so, and (3) that he returned to his employer and offered himself for work.

In the case at bar the evidence shows that Stewart was injured in an automobile accident and was thus compelled to leave his employment and that he notified Eby of that fact. However, there is no evidence that Stewart returned to Eby after being released for work and offered himself for work under the medical restrictions that had been imposed on him. As a consequence of his failure to seek work from Eby after being released to go back to work, Stewart failed to satisfy the third requirement of § 25-4-78(2)a(1) and is, therefore, disqualified from receiving unemployment compensation benefits. See Fennessy v. Unemployment Compensation Board of Review, 184 Pa.Super. 492, 135 A.2d 814 (1957).

The trial court’s judgment awarding unemployment compensation benefits to Stewart is reversed and the cause is remanded for entry of judgment not inconsistent with this opinion.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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


author: FAULKNER, Justice.

text:
    Ex parte Gregory STEWART. (Re: William DAVIS, as Director, Department of Industrial Relations, State of Alabama v. Gregory STEWART).
    80-593.
    Supreme Court of Alabama.
    Feb. 5, 1982.
    Kenneth B. Taylor, Jr. and William W. Campbell of Legal Services Corp. of Alabama, Florence, for petitioner.
    George Cocoris, Gen. Counsel, and Frank D. Marsh, Asst. Gen. Counsel, Montgomery, for respondent.
   FAULKNER, Justice.

Writ quashed as being improvidently granted.

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