author: EMBRY, Justice. MADDOX, Justice SHORES, Justice

text:
    Dr. Charles E. MAY v. John A. MOORE, Jr., as Father and Personal Representative of the Infant Child Robert T. Moore, Deceased.
    80-671, 80-915.
    Supreme Court of Alabama.
    Dec. 30, 1982.

      James J. Duffy, Jr. and Carroll H. Sullivan of Inge, Twitty, Duffy & Prince, Mobile, and Edward P. Turner, Jr. of Turner, Onderdonk, Bradley & Kimbrough, Chatom, for appellant.
    Roscoe B. Hogan and James R. Pratt, III of Hogan, Smith & Alspaugh, Birmingham, and Joseph C. McCorquodale, III of McCor-quodale & McCorquodale, Jackson, for ap-pellee.
   EMBRY, Justice.

These are consolidated appeals by Dr. Charles E. May. In No. 80-671 he challenges the jury verdict and judgment awarding damages against him, in this medical malpractice action, and in favor of John A. Moore, Jr., as father and personal representative of his infant child, Robert T. Moore, deceased. The suit was for damages for the wrongful death of the infant proximately caused by the negligence of Dr. May in treating the infant during and following its birth.

In No. 80-915 he challenges the imposition of sanctions against him by the trial court for his, his representative’s and counsel’s failure to comply with the orders of the trial court regarding discovery.

We affirm both judgments.

Fannie Moore, mother of the deceased infant, was admitted to Jackson Hospital in Jackson, Alabama, on 17 October 1977 by Dr. Charles May with a diagnosis of pregnancy, last trimester, premature rupture of the fetal membrane, slight cervical bleeding and false labor. She was treated and released but again returned to that hospital on 25 October 1977 at which time she was readmitted with a diagnosis of premature rupture of the fetal membrane and loss of amniotic fluids. Delivery of her infant did not take place for over 48 hours. Immediately prior to delivery Dr. May checked the mother and informed her the baby would be delivered within the hour or the next hour. However, shortly after he left the room, the mother delivered precipitously in her hospital bed without the assistance of any physician and in less than sterile conditions. After delivery, the child stopped breathing and was resuscitated by the anesthetist on duty. Shortly afterwards a nurse came on duty and received a report from that anesthetist that the child had poor muscle tone, was cyanotic around the mouth and nose, was coughing up frothy white mucus which required frequent suction and the infant was making grunting noises on exhalation. The nurse continued to follow the child and noted a continuing bluish tinge around the mouth, a fast rate of respiration, loud grunting noises on exhalation together with substernal retractions. She notified Dr. May of the infant’s condition and continued to observe him. The infant showed signs of respiratory distress from birth and on 30 October cardiac pulmonary resuscitation had to be rendered when the infant ceased breathing and its heart quit beating. At that time the attending nurse on duty asked a licensed practical nurse to reach Dr. May by phone which could not be accomplished. Failing that, the police were called to notify him to come to the nursery. He called at around 3:20 a.m. and spoke with the nurse on duty at which time she requested that he come to the hospital. At about 4:00 a.m. he was again notified by telephone of the critical condition of the infant and was again requested to come to the hospital. Sometime shortly thereafter Dr. May arrived at the hospital; however, the attending nurse testified that she did not see him do anything at all for the baby at that time. During the early morning hours of 30 October, at approximately 8:15 a.m., Dr. May ordered the child transferred to the University of South Alabama. The infant’s condition continued to deteriorate with seizures, severe respiratory distress, anemia and body rigidity. On arrival of the transfer team from the neonatal center at the University of South Alabama, the infant was in an incubator and its extremeties appeared stiff. The transfer team did a general assessment of the infant’s condition and attempted to stabilize it for the return trip to the medical center.

At approximately 2:00 p.m. on 30 October, the child was transferred to the neonatal care center where, according to Dr. Hollis Wiseman, the pediatrician in charge of that center, the baby was critical if not terminal when it arrived. The diagnosis of Dr. Wiseman was sepsis, a generalized bacterial infection in a newborn infant, and probably meningitis, a part of the bacterial infection disease process. He also was of the opinion that the child had central nervous system injury, secondary either to the infection or to the deprivation of oxygen. The infant died at the University of South Alabama Medical Center the next day at some five days of age. In explaining the child’s death, Dr. Wiseman testified that it had developed congenital pneumonia as a result of the long period following rupture of the mother’s fetal membranes before delivery. The pediatric pathologist who performed the postmortem on this infant agreed with this conclusion and testified that when the fetal membranes rupture there is an escalating incident rate of infection which, after 48 hours, results in an 80 to 90% probability of infection.

In addition to the very high probability of infection resulting from premature rupture of the fetal membrane, the infant exhibited and developed signs of respiratory infection. In his testimony, Dr. May admitted that symptoms of grunting on exhalation, substernal retraction, increased respiratory rate and cyanosis are indications, or manifestations, of respiratory distress in newborn infants. Dr. Wiseman also testified that these symptoms are cardinal manifestations of respiratory distress in newborn infants. In response to these symptoms Dr. May failed to perform any laboratory tests, other than a blood count. Additionally, despite the fact the child showed indications of infection in the central nervous system, no antibiotics were prescribed, but rather than that being done, Dr. May prescribed caffeine sodium benzoate and decadron, as well as a procedure known as hypodermo-clysis.

A Birmingham pediatrician and clinical instructor at the University of Alabama Medical School testified that the treatment rendered the infant by Dr. May was totally inappropriate. He also noted that where 48 hours had lapsed from the rupture of the fetal membranes, birth had occurred under less than sterile conditions, respiratory distress had existed for more than two hours, blood cultures, skin cultures, spinal cultures and other tests should have been obtained and antibiotics started immediately. This doctor also testified that the administration of caffeine sodium benzoate is totally inappropriate care for the stimulation of respiration in the primary care setting, as the Jackson Hospital was, and that hypodermo-clysis is an antiquated and dangerous practice and should not have been used.

Not only was Dr. May’s failure to do any laboratory testing or to prescribe proper medication improper treatment, another physician in the community of Jackson pointed out the availability of the neonatal center at the University of South Alabama only seventy miles from Jackson, Alabama. He explained the availability of consultation services from which the latest information could be obtained immediately. In the opinion of that doctor, Dr. May violated the standard of care in Clarke County when he failed to transfer the child to the neonatal center, or, in the alternative, to do the proper testing and render the proper treatment there at the Jackson Hospital.

Both the Birmingham pediatrician and clinical instructor as well as Dr. Wiseman of the University of South Alabama neonatal care center, testified that the administration of appropriate treatment would have resulted in a better than 50% chance that the infant would live.

Dr. May urges error to reversal consisting of the following acts occurring in the trial of this case:

(1) that the trial court committed error by charging the jury that the defendant physician was held to a national medical neighborhood standard and

(2) the trial court committed error by permitting a Mobile physician, a Birmingham physician, and a Jackson, Alabama, physician to criticize Dr. May’s care and treatment of the infant when neither of them testified that he departed from local community standards, and

(3) that the trial court committed error by denying Dr. May’s motion for mistrial, when counsel for plaintiff requalified the jury venire on the subject of Dr. May’s insurance carrier, and

(4) that the trial court committed error when it denied Dr. May’s motion in limine on the subject of a missing hospital record to include the introduction of evidence concerning the medical care of one Joanna King over repeated objections interposed by defense counsel and

(5) that the trial court committed error and otherwise abused its discretion in imposing sanctions and taxing expenses incurred against Dr. May for plaintiff’s resistance to the petition for the writ of mandamus in this court to compel the judge to set aside his order imposing sanctions and taxing the expenses and fees against Dr. May.

We will address the alleged errors in the order presented:

WHETHER THE TRIAL COURT COMMITTED ERROR BY CHARGING THE JURY THAT THE DEFENDANT PHYSICIAN IS HELD TO A NATIONAL MEDICAL NEIGHBORHOOD STANDARD.

Before a detailed discussion of this point is undertaken, it is helpful to set out, verbatim, the trial court’s oral instructions on this subject in complete context:

“Under what is known as the Alabama Medical Liability Act the law provides in the pertinent part as follows:
“(A) In performing professional services for a patient, a physician’s duty to the patient shall be to exercise such reasonable care, diligence and skill as physicians, in the same general neighborhood, and in the same general line of practice, ordinarily have and exercised in a like case.
“(B) A physician shall not be considered an insurer of the successful issue of treatment or service.
“A physician owes his patient the duty to exercise that care, skill and diligence in the treatment of the patient which physicians in the same general community, and in the same general line of practice ordinarily have and exercised in a similar case, and under like circumstances.
“The language ‘Same general neighborhood’ refers to the national medical neighborhood or national medical community, of reasonably competent physicians acting in the same or similar circumstances.
“Negligence in this case is not to be decided based on what the jury thinks that reasonable men should, have done under the circumstances, but negligence in this case is whether or not Doctor May used such reasonable care, diligence, and skill as physicians in this same general line of practice ordinarily have and exercised in a like case.
“Where there are various recognized methods of treatment, the physician is at liberty to follow the recognized method of treatment which he thinks is best, although witnesses have given their opinion that some other method would have been preferable.
“A physician does not guarantee the success of his treatment, and he has fulfilled his duty to a patient if he prescribes a proper treatment, even though it does not produce good results. The word treatment as used in this charge covers all the steps taken to effect a cure of an injury, illness or disease. It includes examination and diagnosis as well as application of remedies.”

The defendant physician contends that even if the plurality suggestion in Zills v. Brown, 382 So.2d 528, 532 (Ala.1980), that Alabama should adopt a national standard of care for physicians who perform specialized or professional services, the locality rule would apply to a family practitioner in rural Clarke County such as Dr. May. He contends that to hold otherwise would discourage general practitioners from practicing in rural Alabama and would submit them to the standards of specialists practicing in urban medical centers.

This is specious argument. It ignores the particular facts of, and the evidence in, this case. As countered by Moore, this is not a case in which a rural practitioner (conceding arguendo, that Jackson, Alabama, is a rural community) is criticized for failure to deal with a specialized problem, but, to the contrary, it is simply a woeful failure to diagnose and treat what is apparently a very common problem: respiratory infection in a newborn infant. The evidence shows the newborn was subjected to a very high probability of infection because of the premature rupture of the fetal membranes and manifested classic symptoms of respiratory infection. By his own admission, Dr. May demonstrated that these symptoms indicated respiratory distress in newborns. Confronted with those symptoms, and possessed of that knowledge, he failed to follow through with the necessary laboratory tests to confirm a diagnosis that he failed to make without them and further failed to prescribe antibiotics, the administration of which is common and ordinary in the treatment of that kind of infection.

A family practitioner of Jackson, and chief of staff at Jackson Hospital, testified about the significance of the premature rupture of fetal membranes; the increased incidence of infection when that occurs; reviewed the hospital chart of the infant and pointed to entries evidencing respiratory infection; the required diagnostic tests indicated, and the necessity that antibiotics be employed in treatment. His opinion, based upon his experience as a family practitioner in Jackson, conformed with that of a pediatrician of Mobile, and that of a Birmingham pediatrician and clinical professor of pediatrics. Thus it is clear that Dr. May was not held to the standards of an urban specialist but only to those of a reasonably competent physician acting under the same or similar circumstances. As stated in King v. Williams, 279 S.E.2d 618, 620 (S.C.1981), when abandoning the strict locality rule by adopting the standards of care set out by the Washington Supreme Court in Pederson v. Dumouchel, 72 Wash.2d 73, 431 P.2d 973 (1967):

“... The degree of care which must be observed is of course that of an average, competent practitioner acting in the same or similar circumstances. In other words, local practice within, geographic proximity is one, but not the only factor to be considered. No longer is it proper to limit the definition of the standard of care which a medical doctor or dentist must meet solely to the practice or custom or a particular locality, a similar locality, or a geographic area.”

It is also worthy of notation, as presented by the evidence, that Dr. May was not isolated from either adequate information or facilities. Aside from the fact that he testified to keeping abreast of current medical thinking through conferences and medical literature, Dr. May had available to him a 24 hour referral service through which any medical practitioner in the state can call a specialist and receive advice or assistance. Additionally, there was available to Dr. May a neonatal center, open 24 hours a day, at the University of South Alabama, which specializes in the treatment of children such as the infant here and is located only 70 miles from Jackson Hospital. A family practitioner in Jackson for 23 years testified that the failure of Dr. May to transfer the child to that neonatal center on the morning of 28 October was a deviation from the accepted standard of care in Clarke County. This court has recognized the effect of available resources on the standard of care in Drs. Lane, Bryant, Eubanks & Dulaney v. Otts, 412 So.2d 254 (Ala.1982) and Zills when it stated:

“... Distinctions in the degree of care and skill to be exercised by physicians in the treatment of patients based upon geography can no longer be justified in light of the presently existing state of transportation, communications and medical education and training which results in a standardization of care within the medical profession. There is no tenable policy reason why a physician should not be required to keep abreast of the advancements in his profession.” Zills at 532; Drs. Lane, etc. at 258.

Therefore, the trial court did not err in charging the jury that the defendant physician is held to a national medical neighborhood standard.

WHETHER THE TRIAL COURT COMMITTED ERROR BY PERMITTING A MOBILE PHYSICIAN, A BIRMINGHAM PHYSICIAN, AND A JACKSON, ALABAMA, PHYSICIAN TO CRITICIZE DR. MAY WHEN NONE TESTIFIED THAT HE DEPARTED FROM LOCAL COMMUNITY STANDARDS.

A local doctor from the City of Jackson testified on behalf of the plaintiff in this case. The uncontradicted evidence was that this doctor had been a family practitioner in Jackson, Alabama, for over 23 years; he was board certified in family practice; and during the course of his practice he had delivered some 2000 to 3000 babies. He was also Chief of the Medical Staff at Jackson Hospital when the infant Moore was born. The doctor testified that he was familiar with the facilities available at Jackson Hospital concerning the treatment of babies and was familiar with standard of care exercised by practicing physicians in Clarke County. He testified, that in his opinion, Dr. May deviated from the acceptable medical standard in Clarke County in his treatment of the infant.

“Q. And I believe you have also testified that it is your opinion that the failure to transfer this child in the early morning hours of October 28 — on October 28, 1977, was likewise a departure or deviation from the accepted standard of care in Clarke County, Alabama?
“A. Yes.
“Q. Was the failure by Dr. May to give antibiotics to this child, assuming that he was going to keep the child there and treat it at Jackson Hospital and not transfer it, was the failure to begin prophylactic antibiotics on the morning of October 28th a deviation from the acceptable standard of care in Clarke County, Alabama, at that time?
“A. Yes.
“Q. And the failure to commence these tests, that you have recited to the jury, in the early morning hours of October 28, 1977, is it also your opinion the failure [to] commence those tests, diagnostic tests, to determine the type infection, if any, this child had, provided you are going to keep the child and treat it there in Jackson Hospital, was that likewise a departure or deviation from the accepted standard of care in Clarke County on October 27, 1977?
“A. Yes.”

Notwithstanding the Jackson, Alabama doctor’s knowledge of the acceptable standard of care in Clarke County, we are inclined to find that the testimony of the Birmingham physician and the Mobile physician was also relevant and admissible. As was pointed out in Zills, the language “same general neighborhood ... refer[s] to the national medical neighborhood or national medical community, of reasonably competent physicians acting in the same or similar circumstances.” Zills at 532. As we noted earlier, Dr. May failed to diagnose and treat a very common problem: respiratory infection in a newborn infant. In this case, all doctors who testified about Dr. May’s treatment of the infant, had adequate knowledge of the standard of care utilized in the treatment of infants with respiratory distress, so their opinions of the proper treatment were properly received. For these reasons, we find no merit in defendant’s argument in this regard.

WHETHER THE TRIAL COURT COMMITTED ERROR BY ALLOWING THE PLAINTIFF TO QUALIFY THE JURY VENIRE ON THE SUBJECT OF DR. MAY’S INSURANCE CARRIER.

Defendant contends the trial court committed prejudicial error when it allowed the plaintiff to ask a second question to the jury venire concerning defendant’s liability insurance carrier.

During voir dire of the jury venire on this point the following questions were asked: (By the trial court)

“Q. ... Is any juror an officer, director, employee or policyholder of Mutual Assurance Society of Alabama?”

(Later, by counsel for plaintiff)

“Q. I would like to ask whether any member of the jury panel or anyone in their immediate family are policyholders, officers or employees or in any way have any interest in Mutual Assurance Society of Alabama?”

Although admittedly similar, the question propounded by plaintiff’s counsel was somewhat broader than the court’s question and encompassed a different inquiry. Plaintiff’s inquiry involved a request as to whether any prospective juror or a member of their family had an interest in Mutual Assurance Society of Alabama as opposed to whether the jurors alone had any connection with said company.

This court has reiterated on several occasions that the plaintiff is entitled, upon reasonable and proper motion, to have the jurors qualified as to their relation to, or interest in, any insurance company which would be liable, in whole or in part, for any judgment that might be entered against the defendant. Jones v. Crawford, 361 So.2d 518 (Ala.1978).

We opine that plaintiff’s very limited inquiry here was relevant and made in good faith. It is the rule of our cases that the limit of voir dire examination is largely discretionary with the trial court, Calloway v. Lemley, 382 So.2d 540 (Ala.1980), and we do not feel the circumstances here show an abuse of that discretion.

WHETHER THE TRIAL COURT COMMITTED ERROR WHEN IT DENIED DR. MAY’S MOTION IN LIMINE ON THE SUBJECT OF THE MISSING HOSPITAL RECORD TO INCLUDE THE INTRODUCTION OF EVIDENCE CONCERNING THE MEDICAL CARE OF ONE JOANNA KING OVER OBJECTIONS INTERPOSED BY DEFENSE COUNSEL.

Proof may be made concerning a party purposefully and wrongfully destroying a document which he knew was supportive of the interest of his opponent, whether or not an action involving such interest was pending at the time of the destruction. See Gamble, McElroy’s Alabama Evidence, § 190.05 (3d ed.1977). Additionally, the spoliation, or attempt to suppress material evidence by a party to a suit, favorable to an adversary, is sufficient foundation for an inference of his guilt or negligence. Southern Home Insurance Co. of the Carolinas v. Boatwright, 231 Ala. 198, 164 So. 102 (1935); see also, Gamble, McElroy’s Alabama Evidence, § 190.02 (3d ed.1977).

There was testimony to the effect that failure of Dr. May to properly treat the infant was almost concealed on the occasion of the loss of the child’s original chart. One Louise Boykin, the hospital administrator, had made a copy of the chart before it disappeared. She testified she made the copy of the chart because of the disappearance of another child’s chart before this, which child had also been a patient of Dr. May. Dr. May’s own counsel in questioning Mrs. Boykin brought out the fact that hospital charts of a number of Dr. May’s patients had disappeared prior to the treatment of this infant. She further testified that during the time she served as hospital administrator only the charts of Dr. May’s patients were missing, not those of other doctors.

At an oral deposition of Dr. May before trial, he produced two copies of the infant’s chart, both of which allegedly came from the original copy of Mrs. Boykin’s. He testified that one copy was received directly from her and the other from one Foster, who had obtained his copy from Mrs. Boy-kin. She denied ever giving Dr. May a copy of the record and compared her original copy of the two copies produced by Dr. May. She pointed out the discrepancies from her original copy of those copies produced by Dr. May and thus demonstrated that the copies produced by him could not possibly have come from her original copy.

Admittedly, the evidence adduced by plaintiff was circumstantial in nature; however, a fact may be established by either direct or circumstantial evidence, and the proof is sufficient if, from the facts and circumstances adduced, it can be reasonably inferred. State v. Ludlam, 384 So.2d 1089 (Ala.Civ.App.1980). Furthermore, questions as to the relevancy of testimony are ordinarily within the discretion of the trial court and, unless such discretion has been grossly abused, it will not be considered on appeal. The trial court found the testimony of Mrs. Boykin relevant to the issue of whether Dr. May might have tampered with the original medical chart of the infant Moore in attempting to conceal his guilt or negligence and we see no error in its decision.

Likewise, plaintiff also adduced evidence through testimony of Mrs. Boykin showing Dr. May’s connection with the missing records of one Joanna King, another of his patients. The record clearly indicates that the testimony was allowed solely for purposes of impeachment based on the prior denial of Dr. May that he ever had in his possession any part of the original record of Joanna King when in fact Mrs. Boy-kin produced circumstantial evidence that he did. Such evidence was relevant and was for the jury to make its determination concerning the weight to be given it.

We opine such testimony was limited in nature and was in nowise prejudicial to the defendant.

WHETHER THE TRIAL COURT COMMITTED ERROR AND OTHERWISE ABUSED ITS DISCRETION IN IMPOSING SANCTIONS AND TAXING EXPENSES AND FEES AGAINST DR. MAY FOR HIS FAILURE TO COMPLY WITH THE TRIAL COURT’S ORDERS.

This issue pertains to the second appeal filed by Dr. May. Defendant contends that Rule 37(b)(2), ARCP, does not authorize the imposition of sanctions of the kind and sort enumerated in that order of the trial court entered 2 March 1981. We disagree and affirm.

Prior to trial, and during the course of discovery, it was established that the original hospital records concerning the infant’s treatment had disappeared. Fortunately, Louise Boykin, the hospital administrator, made a copy of those records before their disappearance. When it was discovered that counsel for Dr. May had copies of the records differing from Mrs. Boykin’s copy, the depositions of Dr. May and his investigator, Wes Foster, were taken to discover the origin of their copies. Both individuals, upon advice of Dr. May’s counsel, refused to answer questions concerning the missing records and, therefore, plaintiff filed motions requesting the court to order a response to the questions and the production of Dr. May’s file concerning this matter. The trial court granted these motions. The deposition of Wes Foster was rescheduled, at which time, upon advice of Dr. May’s counsel, Mr. Foster continued to refuse to answer the questions propounded to him and refused to produce the investigation portion of Dr. May’s file concerning the missing hospital records. Plaintiff’s counsel suggested to the court that an in camera inspection would be appropriate. In response, counsel for Dr. May refused to allow the trial court to conduct an in camera inspection. On 8 October 1980, the trial court issued an order recognizing that the deponent, Wes Foster, on advice of Dr. May’s counsel, had disregarded the court’s orders of 17 September and 3 October, and therefore was in contempt of court. On that first date mentioned above the trial court ordered the records to be produced within seven days and indicated that continued refusal to comply with the order would result in sanctions.

Dr. May challenged this order by filing a petition for the writ of mandamus in, and moving this court to stay the trial court’s prior discovery orders. This court, on 30 January 1981, denied the petition and dissolved its previously issued stay. Thereafter, Dr. May and his investigator did not produce the requested material within the time allowed by the trial court and upon motion of the plaintiff, that trial court granted sanctions.

Contrary to the position taken by defendant, the order was not directed solely to Wes Foster, but rather was directed to the defendant, his counsel and his representative. The court noted specifically that the failure of Mr. Foster to comply with the court’s orders was upon instructions from James J. Duffy, Jr., attorney for defendant, Dr. Charles May.

Therefore, because the deponent did not act on his own or through his individual attorney, but rather as the representative of a party in direct compliance with the directions and instructions of a party’s attorney, Rule 37(b)(2) applies. This finding is consistent with the holding in Haney v. Woodward and Lothrop Inc., 330 F.2d 940, 942 (4th Cir.1964) in which the federal court of appeals dealt with the failure of the defendant’s insurer, by and through its claim manager, Robert Ford, to produce investigation records pursuant to subpoena. The court in speaking to this factual situation and its relationship to sanctions provided for and in Rule 37 stated:

“We need not distinguish between the Defendants as parties and the insurer and Ford as third persons, for they acted as one and by the same attorney throughout the entire discovery steps.”

The federal fourth circuit court of appeals imposed sanctions pursuant to Rule 37, FRCP, which is identical to the Alabama rule.

The defendant also takes the position that sanctions were not appropriate since the defendant eventually complied with the 8 October 1980 order. However, final production is not determinative, but rather the discovery rules permit sanctions when a party fails to obey court orders. State of Ohio v. Arthur Andersen & Co., 570 F.2d 1370 (10th Cir.1978). The ultimate, and reluctant, production of material after the time allowed by order of the court does not absolve the defendant of the charge that he wilfully failed to obey a valid court order. In the circumstances presented, the sanctions imposed by the trial court were just and authorized by the rule.

Lastly, the defendant takes the position that even if sanctions were appropriate, the taxing of expenses and fees resulting from the resistance of the plaintiff to the petition for mandamus were in appropriate sanctions. The federal tenth circuit court of appeals in State of Ohio, supra, was posed a similar question and noted that the plaintiff in order to secure production of the requested documents had to oppose the defendant in both the Court of Appeals and the Supreme Court. That court, as we do here, determined that the awarding of appellate expenses and attorney fees was just and proper under Rule 37(b)(2), FRCP. Specifically, the court took note of the following portion of that rule:

“In lieu of any of the foregoing orders or in addition thereto, the court shall require the party failing to obey the order to pay the reasonable expenses, including attorneys fee, caused by the failure, unless the court finds that the failure is substantially justified or that other circumstances make an award of expenses unjust.”

As noted, Alabama’s rule is identical to this federal rule. Enforcement of the rule requires sanctions for disobedience of valid court orders. The trial court did not abuse its discretion when it imposed them.

There being no error requiring reversal, the judgment is due to be and is hereby affirmed in both No. 80-671 and No. 80-915.

AFFIRMED.

FAULKNER, JONES, BEATTY and ADAMS, JJ., concur.

MADDOX, ALMON and SHORES, JJ., concur specially.

TORBERT, C.J., not sitting.

MADDOX, Justice

(concurring specially).

I still adhere to the views I expressed in Zills v. Brown, 382 So.2d 528, 533 (Ala.1980), on the application of the community standard to be used when a physician’s exercise of due care is in issue, but I concur in the result reached in this case.

SHORES, Justice

(concurring specially):

I adhere to the views expressed in Drs. Lane, Bryant, Eubanks and Dulaney v. Otts, 412 So.2d 254 (Ala.1982).

ALMON, J., concurs.

      . As indeed it has. Drs. Lane, Bryant, Eubanks & Dulaney v. Otts, 412 So.2d 254, 257, 258 (Ala.1982).


source: Caselaw Access Project

author: FAULKNER, Justice.

license: Public Domain

text:
    John THRASHER v. Billy Joe BARTLETT and State Farm Fire and Casualty Company.
    81-571.
    Supreme Court of Alabama.
    Dec. 30, 1982.

      Charles C. Pinckney of Lange, Simpson, Robinson & Somerville, Birmingham, for appellant.
    Ralph Bland of Bland, Bland & Weldon, Cullman, for appellees.
   FAULKNER, Justice.

This is an appeal by John Thrasher, who attempted to intervene in the case below filed by Billy Joe Bartlett against State Farm Fire & Casualty Company, Inc. Bartlett, whose house in Cullman was destroyed by fire on April 2, 1981, filed the suit against State Farm in the Circuit Court of Cullman County on August 10. His complaint sought judgment for payments due under a homeowner’s policy issued by State Farm to Bartlett.

On October 1, Thrasher, who owned furniture in Bartlett’s house, filed a motion to intervene. Thereafter, on October 8, the Court entered the following order:

“ORDERED, the motion of John Thrasher to intervene is granted, subject to a motion to dismiss filed by either the plaintiff or the defendant.”

State Farm then filed a motion to dismiss intervention on October 13, and on October 16, Bartlett likewise filed a motion to dismiss intervention. After a hearing, the Court, on October 28, deferred a ruling on the motions to dismiss the intervention “to allow Thrasher to amend his motion to intervene.” On December 4, Thrasher filed an amended motion to intervene. He filed a second amendment to the motion to intervene on January 4, 1982, and attached thereto a copy of the insurance policy upon which the original plaintiff, Bartlett, filed suit against State Farm. The pertinent part of the policy stated:

“COVERAGE B — PERSONAL PROPERTY
“We cover personal property owned or used by any insured while it is anywhere in the world. At your request, we will cover personal property owned by others while the property is on the part of the residence premises occupied exclusively by any insured. In addition, we will cover at your request, personal property owned by a guest or a residence employee, while the property is in any residence occupied by any insured.”

On January 8, the following order was entered:

“ORDERED, the Court having considered the Motion to Intervene and the Second Motion to Intervene, filed by John M. Thrasher and after a hearing, said motions to intervene are denied.”

On February 19, Bartlett and State Farm filed a joint motion for dismissal with prejudice. The motion alleged that the parties had reached a full and complete settlement. On February 25, the trial court entered the following order:

“ORDERED, by Agreement, the parties having settled their differences, this case is dismissed, with prejudice; cost to the Plaintiff.”

On February 26, Thrasher filed suit against Bartlett and State Farm in the United States District Court for the Northern District of Alabama. State Farm made a motion to dismiss the federal court suit on March 17, asserting that the Cullman County case is res judicata of Thrasher’s claim against State Farm and against the proceeds of the State Farm policy.

Thereafter, on April 5, Thrasher filed his notice of appeal from the judgment of January 8, to the Supreme Court of Alabama. State Farm filed its motion to dismiss the appeal on the grounds that the appeal was not timely filed.

The controlling question in this appeal is whether the trial court’s judgment denying Thrasher’s motion to intervene was “final” so as to require notice of appeal to be filed within forty-two days of the date of the judgment. The following dates are pertinent to determination of the motion to dismiss the appeal:

January 8, 1982 — Court order purporting to deny Thrasher’s motions to intervene
February 25, 1982 — Case dismissed with prejudice
April 5,1982 — Thrasher’s notice of appeal filed

As seen above, Thrasher’s notice of appeal was not filed within 42 days of the January 8 order, but it was filed within 42 days of the February 25 order which dismissed the claim of Bartlett against State Farm.

Rule 24, Alabama Rules of Civil Procedure, states:

“(a) Intervention of Right. Upon timely application, anyone shall be permitted to intervene in an action: (1) when a statute confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.
“(b) Permissive Intervention. Upon timely application anyone may be permitted to intervene in an action: (1) when a statute confers a conditional right to intervene; or (2) when an applicant’s claim or defense and the main action have a question of law or fact in common. When a party to an action relies for ground of claim or defense upon any statute or executive order administered by a federal or state governmental officer or agency or upon any regulation, order, requirement or agreement issued or made pursuant to the statute or executive order, the officer or agency upon timely application may be permitted to intervene in the action. In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original' parties.”

According to the evidence presented in this case, this Court finds that Thrasher’s motions to intervene were “of right.”

7A C. Wright & A. Miller, Federal Practice and Procedure (Civil), Section 1923 at 627 (1969), states:

“The matter has been much more complicated when review is sought of a denial of intervention, but there are clear signs that the courts are moving to a simpler and more sensible rule. It is clear enough what the rule ought to be. Any denial of intervention should be regarded as an appealable final order — as it surely is so far as the would-be intervenor is concerned — but the appellate court should affirm unless intervention of right was erroneously denied.... ”

The United States Supreme Court likewise held that where the appellant may intervene as of right, the order of the Court denying the intervention is appealable. Sam Fox Publishing Co. v. United States, 366 U.S. 683, 81 S.Ct. 1309, 6 L.Ed.2d 604 (1961); Sutphen Estates, Inc. v. United States, 342 U.S. 19, 72 S.Ct. 14, 96 L.Ed. 19 (1951).

We therefore hold that an order denying intervention as of right is appealable. Rule 54(a) defines “judgment” as an “order from which an appeal lies.” The denial of a motion to intervene is an appealable order; thus, it is a judgment under Rule 54.

Rule 54(b), Alabama Rules of Civil Procedure, provides as follows:

“(b) Judgment Upon Multiple Claims or Involving Multiple Parties. When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. Except where judgment is entered as to defendants who have been served pursuant to Rule 4(f), in the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.”

Thrasher relies on Rule 54(b) in stating that his notice of appeal was given within forty-two days from the order of the court entered on February 25, 1982, wherein Bartlett and State Farm settled the case. Thrasher, however, is misconstruing the intent of the rule. We are inclined to follow the holding of County of Fresno v. Andrus, 622 F.2d 436 (9th Cir.1980), where the Court recognized that the denial of a motion to intervene as of right is a final order within the meaning of 28 U.S.C. § 1291.

Rule 4, Alabama Rules of Appellate Procedure, states in pertinent part:

“(a) Appeals Generally. (1) Except as otherwise provided herein, in all cases in which an appeal is permitted by law as of right to the Supreme Court or to a court of appeals, the notice of appeal required by Rule 3 shall be filed with the clerk of the trial court within 42 days (6 weeks) of the date of the entry of the judgment or order appealed from.”

Thus, Thrasher did not make a timely appeal from the January 8, 1982, order. This appeal is hereby dismissed.

APPEAL DISMISSED.

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


author: SHORES, Justice.

text:
    J.T. ATTAWAY v. Godwin DAVIS, Jr., et al.
    81-587.
    Supreme Court of Alabama.
    Dec. 30, 1982.

      Kenneth L. Funderburk of Phillips & Funderburk, Phenix City, for appellant.
    J. Pelham Ferrell and Charles E. Floyd, Phenix City, for appellees.
   SHORES, Justice.

This is an appeal from an order entered on a complaint for declaratory judgment in favor of plaintiffs Godwin Davis, Jr., and William R. Davis (Davis brothers) and against J.T. Attaway and the State of Alabama. The complaint sought to have the court declare that Attaway had no leasehold interest in real estate owned by the Davis brothers and condemned by the State of Alabama.

On August 6,1979, the State of Alabama filed a petition in the probate court of Russell County, Alabama, seeking to condemn for highway purposes several tracts or parcels of land located in Phenix City. In its petition, the State alleged that the Davis brothers were the owners of certain of the tracts or parcels and that Attaway claimed a leasehold or other interest in a portion of those parcels. The land was used as a trailer or mobile home park.

By order dated October 19, 1979, the judge of probate of Russell County granted the State’s petition to condemn and, in accordance with Ala.Code 1975, § 18-1-15, appointed three commissioners to assess the damages and compensation for the taking of the various properties.

On November 19,1979, the commissioners so appointed filed their written report in the probate court, which fixed the damages and compensation for the taking of the realty in question here at $153,350.00. On December 20, 1979, the judge of probate entered his final order condemning the realty and setting the damages at the amount assessed by the commissioners.

From that order, Attaway took an appeal in his name and in the name of the Davis brothers to the circuit court of Russell County for the purpose of having a trial de novo on the amount of damages awarded by the probate court.

The Davis brothers, claiming that Atta-way had no leasehold or other interest in the realty at the time of the granting of the State’s petition to condemn, filed a complaint for declaratory judgment in the circuit court. The complaint asked that: (1) The condemnation proceedings in the circuit court by way of Attaway’s appeal be stayed, pending a final judgment in the declaratory judgment action; and (2) the court declare that Attaway has no leasehold or other interest in the real estate in question and, thus, no interest in the damages or compensation.

The trial court, hearing the evidence ore tenus, entered a final judgment, finding specifically (1) that, prior to the filing of the condemnation petition, Attaway abandoned or forfeited any interest, leasehold or otherwise, he may have previously had in the realty owned by the Davis brothers; (2) that no agreement existed either before or after the filing of the condemnation petition by which the Davis brothers agreed to compensate Attaway for any improvements Attaway may have placed on the realty; and (3) that Attaway has no present or future interest in the award of damages or compensation for the taking of the realty in question.

Prom that judgment Attaway perfected this appeal. We affirm.

Appellant’s first contention is that the Davis brothers’ action for declaratory judgment constituted a substitute for the appeal taken by Attaway from the order of condemnation entered in the probate court and, thus, was improper. We disagree.

The issue of appellant’s interest in any of the award of compensation and, thus, his standing to take an appeal of the condemnation to the circuit court is not an issue of that appeal. An appeal of a condemnation from the probate court to the circuit court raises only the issues of the right to condemn and the amount of damages or compensation. Cloverleaf Land Co. v. State, 276 Ala. 443, 163 So.2d 602 (1964); Jefferson County v. Berkshire Development Corp., 277 Ala. 170, 168 So.2d 13 (1964). Normally, it is not within the province of the jury on appeal to make distribution of the award among the several claimants of the tract. City of Dothan v. Wilkes, 269 Ala. 444, 114 So.2d 237 (1959).

Thus, the issues raised in the instant action for declaratory judgment were never resolved by the probate court, and, therefore, this action has not been made a substitute for an appeal. The apportionment of the gross award is a matter of dispute between the owner of the fee interest and any other persons claiming a leasehold, mortgage, or other interest in the realty in question. City of Dothan v. Wilkes, supra, 114 So.2d at 240. See, generally, 4 Nichols, The Law of Eminent Domain, § 12.36[1] (3d ed. 1981).

As previously stated, one claiming a leasehold or other interest may take an appeal and have a trial de novo in the circuit court and, thus, affect the amount of compensation of all other persons having an interest in the realty. Because this effect may be adverse to these other persons, who may have been satisfied with the award of the probate court, an action for declaratory judgment will lie for a determination of the interests of the various parties and, therefore, their standing to bring an appeal in the circuit court.

In the instant action, the trial court found that Attaway had abandoned any leasehold interest he may have had in the condemned realty prior to the filing of the petition of condemnation by the State. That finding is supported by the evidence and is hereby affirmed. Therefore, he had no standing to appeal to the circuit court the condemnation order.

Appellant next contends that the action for declaratory judgment was improper because it involved the determination of a factual question. Again, we do not agree.

The primary declaration sought by the complainant was a determination of the legal interest, if any, of Attaway in the condemned property. The resolution of that issue, as it turned out, revolved around the purely factual issue of abandonment by the lessee, Attaway.

Ala.Code 1975, § 6-6-228, provides that issues of fact may be determined in an action for declaratory judgment. In the resolution of those issues of fact, a party to a complaint for declaratory judgment is entitled to a jury trial if he would have had such a right in the cause of action for which the action for declaratory judgment may be considered a substitute. Reed v. Hill, 262 Ala. 662, 80 So.2d 728 (1955).

Appellant, however, in his responsive pleadings, never demanded a jury trial. Therefore, the factual determinations were properly made by the trial court.

Finally, appellant contends that, if the trial court had the right to determine the issue of abandonment, the judgment finding such abandonment is not supported by the facts. We cannot agree. In fact, the evidence was largely without dispute that the appellant moved all of his units from the property and stopped paying rent on the property several months before the condemnation proceedings were commenced and notified one of the Davis brothers some six months before that, from that day forward, he would not be responsible for anything and that his rent check for the month of February, 1979, would be the last one he would pay. Under this evidence, the trial court was justified in finding that Attaway had abandoned any remaining interest, if any, he had in the leasehold.

Because the issue resolved below was a purely factual one, and because the judgment of the trial court is supported by the evidence, its judgment is affirmed.

AFFIRMED.

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


text:
    Otis WILLIAMS, a minor, etc., et al. v. David WOODMAN.
    81-588.
    Supreme Court of Alabama.
    Dec. 30, 1982.

      J. William Thomason of Thomason & Russell, Bessemer, for appellants.
    Bibb Allen of London, Yancey, Clark & Allen, Birmingham, for appellee.
   SHORES, Justice.

Plaintiff Otis Williams appeals from a summary judgment in favor of defendant Dr. David Woodman in a medical malpractice claim.

On May 14, 1977, Otis Williams, a thirteen-year-old boy, was riding a motorcycle which collided with an automobile driven by an uninsured motorist, Herbert Morgan. As a result of the accident, Otis suffered a fracture of the right femur. Otis, through his father, George Williams, filed suit against Nationwide Mutual Insurance Company, Williams’s insurer, seeking recovery under the uninsured motorist provision of the policy. The defendant, Nationwide, in turn, filed a third-party complaint against Herbert Morgan, the uninsured motorist upon whose conduct Nationwide’s liability was based. The jury rendered a verdict in favor of Otis and against Nationwide on October 3, 1978, in the amount of $10,000. The jury returned a verdict for Nationwide and against Morgan in the amount of $10,-000 at this same time. Nationwide paid $10,000 into the court, and plaintiffs withdrew it. Thus, the judgment was satisfied. Butler v. GAB Business Services, 416 So.2d 984 (Ala.1982).

Otis subsequently filed the present suit against Woodman, an orthopedic surgeon, on November 5,1980; the complaint alleged negligence in the treatment of the leg injury sustained in the automobile accident made the basis of the first suit. Otis contends that, as a result of Dr. Woodman’s negligence in treating his fractured leg, he was forced to undergo surgery on his right leg in an attempt to lengthen it and surgery on his left leg to arrest further growth of that leg.

Dr. Woodman denied liability and filed a motion for summary judgment, based on the record of the suit against Nationwide and the following stipulation of facts:

“ITEM ONE: We stipulate that the plaintiff was involved in a motor vehicle accident on May 14, 1977 and received, in said motor vehicle accident, an injury to his right leg.
“ITEM TWO: That on September 21, 1977 the plaintiff, acting by and through his father and next friend, George Williams, commenced an action in the United States District Court for the Northern District of Alabama, Southern Division, against Nationwide Mutual Insurance Company, a corporation, claiming that Nationwide Mutual Insurance Company was indebted to him on a policy of insurance. A copy of the plaintiff’s complaint filed in the United States District Court is attached hereto as Exhibit A to this stipulation and is incorporated in this stipulation by reference.
“ITEM THREE: The suit filed against Nationwide in the United States District Court claimed damages for injury by the plaintiff in the automobile accident which occurred on May 14, 1977.
“ITEM FOUR: That on October 3, 1978 a jury verdict was rendered in favor of the plaintiff and against the defendant, Nationwide Mutual Insurance Company in the sum of $10,000.00 plus interest which judgment was paid but not marked satisfied on the court records.
“ITEM FIVE: That the plaintiff, acting by and through his father and next friend, commenced this action on November 5, 1980 against Dr. David Woodman claiming that Dr. Woodman was negligent in his treatment of the plaintiff for the injury received in the automobile accident made the basis of the prior action against Nationwide. Dr. Woodman was charged with negligence in the treating of the plaintiffs injury to his leg sustained in the accident of May 14, 1977.”

The trial court granted Dr. Woodman’s motion for summary judgment, holding that “[t]he damages complained of here against Woodman were included in the damages recovered in that ease.” This appeal followed.

The following rules of law are well settled and unchallenged:

Where one is guilty of negligence and this negligence concurs or coalesces with the negligence of another, and the two combine to produce an injury, each is liable for the damages, and the negligence of each is considered the proximate cause of the injury producing the damages. Aplin v. Dean, 231 Ala. 320, 164 So. 737 (1935).

Also, as stated in Watt v. Combs, 244 Ala. 31, 12 So.2d 189 (1943):

• “The general rule is that it is no defense, in actions for injuries resulting from negligence, that the negligence of third persons contributed to cause the injury to the plaintiff if the negligence of the defendant was an efficient cause, without which the injury would not have occurred. Stated differently, where a defendant is guilty of negligence which causes an injury, and the plaintiff is free from negligence contributing thereto, the fact that the negligence of a third person also contributed does not relieve the defendant from liability for his negligence.”

244 Ala. at 37, 12 So.2d 189.

Holding that the original tortfeasor may be held liable for the aggravation of the injury caused by a physician’s negligence is but a natural extension of that rule and is the product of the familiar rule that a wrongdoer is responsible for the reasonably foreseeable consequences of his tor-tious act, including the negligent conduct of others. See 74 Am.Jur.2d Torts, § 64 (1974).

Alabama follows this rule and held in O’Quinn v. Alston, 213 Ala. 346, 104 So. 653 (1925):

“[WJhere one is injured by the negligent or wrongful act of another, and uses ordinary care in endeavoring to be healed, and in the selection of medical and surgical help, but his injury is aggravated by the negligence or unskillfulness of the latter, the party causing the original injury will be responsible for the resulting damages to its full extent.”

Likewise, in Nall v. Alabama Utilities Co., 224 Ala. 33, 138 So. 411 (1931), O’Quinn was followed, and the original tortfeasor was held responsible for the injuries caused by the negligence of the physician treating the injury. The Court said: “[S]uch malpractice cannot stand as an efficient intervening cause, and the person responsible for the injury through negligence will be held liable for the aggravated injury and damage, as well as that originally resulting.” 224 Ala. at 34, 12 So.2d 189.

It is equally well settled and without contradiction that: “The discharge or satisfaction of a judgment against one of several persons each of whom is liable for a tort, breach of contract, or other breach of duty, discharges each of the others from liability therefor.” Restatement of Judgments § 95 (1942). See also Restatement (Second) of Torts § 886 (1979).

This rule has been applied where the original tortfeasor satisfies a judgment that includes damages for aggravation of the injury because of the negligence of an independent tortfeasor. Comment (c), Restatement of Judgments § 95 (1942).

Where a judgment against a defendant liable for the entire harm is satisfied, that extinguishes the obligation of another wrongdoer, and “the fact that the plaintiff recovered only part of the damages to which he was entitled is immaterial.” 2 Freeman on Judgments § 578, p. 1225.

Do these rules bar an action for negligence on the part of the physician under the facts in this case? That is to say, is satisfaction of the judgment in the first case a bar to this action against the physician treating the injury?

Dr. Woodman asserts that, under these rules, the action against him is barred. He is correct that the rule prevailing in the majority of states is that the release of one tortfeasor (or satisfaction of judgment against one tortfeasor) discharges others who have caused or contributed to the same injury, whether the tortfeasors. be joint, concurrent, or successive. See annotation “Release of One Responsible for Injury as Affecting Liability of Physician or Surgeon for Negligent Treatment of Injury,” 39 A.L.R.3d 260 (1971).

The cited annotation deals with cases involving the effect of a general release of the original tortfeasor. However, the legal effect of a judgment is not dissimilar. Either bars a subsequent claim against the physician.

The'rule is based upon the common-law concept of unity of discharge and has been the subject of much criticism by the commentators. Prosser, Torts § 46 (2d ed. 1955); 1 Harper and James, Torts § 10.1 (1956); 2 Williston, Contracts § 338A (3d ed. 1957); 4 Corbin, Contracts § 931 (1951); Wigman, “Release to One Joint Tortfeasor,” 17 Ill.L.Rev. 563 (1923).

As a consequence, perhaps, of this criticism, a “sizeable” number of courts now support a rule that a release of a judgment against the one responsible for the injury does not necessarily, and as a matter of law, preclude an action against the negligently treating physician. 39 A.L.R.3d, supra, citing Ash v. Mortensen, 24 Cal.2d 654, 150 P.2d 876 (1944); Derby v. Prewitt, 12 N.Y.2d 100, 236 N.Y.S.2d 953, 187 N.E.2d 556 (1962); Selby v. Kuhns, 345 Mass. 600, 188 N.E.2d 861 (1963); Knutsen v. Brown, 96 N.J.Super. 229, 232 A.2d 833 (1967); Daily v. Somberg, 28 N.J. 372, 146 A.2d 676 (1958); Couillard v. Charles T. Miller Hospital, Inc., 253 Minn. 418, 92 N.W.2d 96 (1958); McKenna v. Austin, 134 F.2d 659 (D.C.Cir.1943); Vace v. Whitaker, 86 N.M. 79, 519 P.2d 315 (1974).

Although these cases reject the traditional rule, they do so for different reasons. In one, Derby v. Prewitt, the Court of Appeals of New York said the traditional rule was based upon two grounds: The first, that the injury resulting from the joint action of the wrongdoers is a single injury and constitutes the basis for a single cause of action; and, second, the law presumes that release of one tortfeasor constitutes full satisfaction of the entire claim and any additional claim would amount to double recovery for the same injury. The court went on to hold that the injury inflicted on the plaintiff by the taxidriver in the accident and the subsequent negligence of the physician were two separate and distinct causes of action.

The Supreme Court of New Jersey reached a similar result in Daily v. Somberg, supra, holding that the two defendants were independent tortfeasors and that a fact question was presented as to whether the plaintiff had been fully compensated by the amount recovered from the original tortfeasor.

While these cases are persuasive and may find favor with this Court in the proper case, we do not find error in the record before us.

Dr. Woodman argues correctly that the law does not and should not permit double recovery for a single injury. He is also correct that, under our law, an injured party has the right to recover from the original wrongdoer all of his injuries and damages, including maltreatment and subsequent injuries. It is also true, as he asserts, that a settlement and release of judgment against the original tortfeasor is presumed in law to have compensated the injured party for subsequent malpractice of the treating physician. We are not prepared to agree with him that the presumption is conclusive.

If the plaintiff in this case had shown that the negligence of the physician had produced a new and independent injury subsequent to the entry of judgment in the federal court, for which the plaintiff could not have claimed damages in that action, it would be difficult to see how that subsequently accruing cause of action could be barred by the prior action. Stated differently, if the plaintiff had shown that no claim for the physician’s negligence could have been asserted in that action because it occurred subsequent to the entry of judgment or the plaintiff neither knew nor could have discovered the alleged wrongdoing of the physician prior to taking the judgment (or executing a release) in the prior action, the judgment should not be a bar to a subsequent claim against the physician for an act of negligence occurring after entry of the judgment.

That is not the case before us. The complaint alleges only that the plaintiff was injured in a motor vehicle collision on May 14, 1977; the defendant was engaged in the practice of orthopedic surgery and “on said date” treated the plaintiff and negligently treated the plaintiff, etc. No allegation of negligence occurring after the federal case was disposed of was made. Additionally, no objection was made to the express finding by the trial court that “[t]he damages complained of here are included in the damages recovered in that case.”

The appellant has not demonstrated wherein the trial court erred in reaching that conclusion, and the record does not reveal any refutation of the claim of the physician that the plaintiff fully recovered all of his damages in the prior case. While we can doubt how that could be so, we cannot reverse a trial court without a showing of error.

The judgment of the trial court is affirmed.

AFFIRMED.

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


author: BEATTY, Justice.

text:
    CITY OF JASPER, a Municipal Corporation, Jack Nicholson and Bill Trotter, as Members of the City Commission v. C.L. (Red) DAUGHERTY, et al.
    81-611.
    The Supreme Court of Alabama.
    Dec. 30, 1982.

      Morris W. Savage and Charles R. Stephens of Bankhead, Savage & Stephens, Jasper, for appellants.
    Hoyt Elliott, Jasper, for appellees.
   BEATTY, Justice.

This is an appeal by the defendants from circuit court orders dealing with a change in the form of government of the City of Jasper. We reverse and remand.

On March 8, 1946, the City of Jasper began operating under the commission form of government and has continued under that form. This controversy arose out of a special election held on June 23, 1981, in which that city’s electorate voted to abandon the commission form in favor of the mayor-council form of municipal government. Without detailing the process of pleading and hearings in this action, it is sufficient to state that the trial court held that an election to select municipal officers be held in the City of Jasper on the second Tuesday in July 1982. Following an appropriate motion and a hearing in this Court, the orders of the Circuit Court of Walker County were stayed on June 16,1982, pending this appeal. Subsequently, the record on appeal and the briefs of the parties were filed and the case has been submitted for decision on briefs.

The basic question presented concerns the time when the election of the mayor and council shall be held following a change to that form of government from the commission form. All parties concede that this issue is governed solely by the intention of the legislature, the difference between them being the process through which that intention is discerned.

That position on legislative intention is well established in this state, for cities exercise only such power as is conferred upon them by law, Alexander v. State ex rel. Carver, 274 Ala. 441, 150 So.2d 204 (1963), legislative sanction being indispensable to their existence, New Orleans, Mobile & Chattanooga R. Co. v. Dunn, 51 Ala. 128 (1874), and to their authority. City of Mobile v. Mobile L. & R. Co., 141 Ala. 442, 38 So. 127 (1904). Indeed, the power of the legislature under the state Constitution is supreme in prescribing the powers and duties of municipalities. Trailway Oil Co. v. City of Mobile, 271 Ala. 218, 122 So.2d 757 (1960).

The plaintiffs maintain that the first election of new municipal officials was due to be held in July 1982 (approximately one year following the abandonment of the commission form) and that those elected at that time would hold officé until the 1984 quadrennial election when another election would be held at that time to select the mayor and council for the next four years. Plaintiffs reach this result by a scholarly historical consideration of municipal statutes on the subject of elections reaching back to the 1907 Code. Their principal argument centers around the existence of Code of Ala.1975, § 11—44-15, which, they contend, did not exist in the statutes previously, was not enacted by the legislature by any single Act but was enacted as part of the whole Code, and the presence of which makes the election process ambiguous. Plaintiffs’ argument continues by asserting that §§ 11-44-155, 11-44-156 and 11-40-11 must be construed against the historical backdrop of municipal election statutes which demonstrate a legislative intention to make the term “general municipal election” mean, in the context of a change like the one in question, that the officials are to be elected at the next regular municipal election, take office on the first Monday in October thereafter, and then hold office until the first Monday in October of the next quadrennium year when their successors would be elected. In other words, after the regular election to be held during the year following the 1981 abandonment election, the next quadrennium election, to be held in 1984, would select the mayor and aldermen for the first four-year terms.

It is true, as plaintiffs maintain, that the language of § 11-44-156 of the Code of 1975, which cites Acts 1915, No. 699, p. 770, as its parent authority, does not conform to the language of the original 1915 Act, the latter having been changed. Indeed, the original 1915 language states:

“Sec. 2. The Governor shall, within thirty days after receiving notice of the results of said election, appoint a mayor and the requisite number of aldermen who shall reside within the territorial limits of such city, and who shall possess the qualifications prescribed by law for such city, and who shall hold office thereafter until their successors are elected and qualified in the manner now or hereafter prescribed by law, and such officers so appointed shall hold office until the next regular election and until their successors are qualified.” (Emphasis added.)

This language was substantially carried over into the Ala.Code of 1940 (Recomp.1958) as Tit. 37, § 126. The salient differences in the legislative language lie in the process of selecting the first mayor and aldermen. The present section, § 11-44-156, removed the governor as the selecting authority but the language was changed to “next general municipal election after an election approving the abandonment of the commission form.” (Emphasis added.)

As the plaintiffs point out, historically the statutes governing municipal elections have used different terms to describe those elections, sometimes referring to “regular” municipal elections, and at other times to “general” elections. Cf. §§ 1063, 1064 and 1065 of the Code of 1907. Section 1068 of that Code, for example, called for the election of the mayor and aldermen “at the general election to be held on the third Monday in September 1908 and biennally thereafter.” The use of such terms was carried into the Code of 1923 in §§ 1754, 1757, 1758 and 1760. It should be noted, however, that these sections did not expressly pertain to the election process following a change from the commission form. It is also interesting to note that, following an election opting for the commission form of government, the Code of 1923, § 2341 provided for gubernatorial appointment of three commissioners with staggered terms: “one to hold office for a term from the date of his appointment and qualification until the first Monday in October of the year next succeeding his appointment,” etc. This procedure apparently conformed to the provisions of Code of 1923, § 2364 governing the election of commissioners which was that:

“[a]n election shall be held on the third Monday in September of the year next succeeding the year in which this article was adopted, and on the same date of every succeeding year for the member of the board of commissioners whose terms shall expire in that year, the commissioner then elected shall hold office for a term of three years from the first Monday in October of said year and until his successor shall be elected.... ” (Emphasis added.)

These statutes indicated a legislative intent to select the new commissioners without delay. Section 27 of the Alabama Code of 1940 prescribed “regular municipal elections” for “the third Monday in September, 1940, and quadrennially thereafter.” Respecting the adoption of the commission form of government, section 41 of the 1940 Code states that the terms of new commissioners elected thereunder “shall commence immediately upon their election,” and they are to hold office

“until the first Monday in October of the third year following ... and an election shall be held on the third Monday in September of the year preceding the expiration of the term of office of the three commissioners, at which election three commissioners shall be elected for a period of one, two and three years, respectively. ...”
(Emphasis added.).

From this background we direct our attention to the presently existing legislative enactments which pertain to changes in the form of municipal government. Code of Ala.1975, §§ 11-44-1 through 11-44-162 concern the commission form of government. Article 4 of that chapter deals with the subject of abandonment, and § 11-44-155 thereof recites:

“The election thereupon shall be conducted, the vote canvassed and the result declared in the manner now provided by law for other municipal elections, and if the majority of the votes cast shall be in favor of such proposition, then the provisions of the general municipal law with respect to the aldermanic form of government shall become effective October 1 of the general municipal election year next following said election, and the president of the board of commissioners of said city or town shall transmit to the governor of Alabama, to the secretary of state and to the judge of probate of the county, each, a certificate stating that such proposition was adopted by said city or town.” (Emphasis added.)

This statute is followed by an enactment relating to mayors and aldermen, § 11-44-156:

“At the next general municipal election after an election approving the abandonment of the commission form of government, there shall be elected a mayor and the requisite number of aldermen in accordance with the general municipal law under which the city or town will be organized upon the effective date of the abandonment of the commission form of government.” (Emphasis added.)

The significant language in this section likewise refers to “the next general municipal election after an election approving the abandonment of the commission form of government.”

Code of Ala.1975, § 11-40-11, refers specifically to the time when the change in the form of government takes effect:

“No change from the commission form of municipal government to the mayor-council form of municipal government hereafter directed by vote of the electors of any municipality in this state shall become effective until October 1 of the general municipal election year next following the election at which such change is voted. The term of any commissioner which might expire before such date is hereby extended until such date when the form of government changes.” (Emphasis added.)

The question thus presents itself: What is meant by the clause “shall [not] become effective until October 1 of the general municipal election year next following the election at which such change is voted”? E.g., Connor v. State ex rel. Boutwell, 275 Ala. 230, 153 So.2d 787 (1963). To ascertain that answer we must take note that by Acts 1961, No. 663, p. 827, § 2; Acts 1971, No. 159, p. 434, now Code of Ala.1975, § 11-46-21, the legislature specifically declared that:

“(a) The regular municipal elections in cities and towns shall be held on the second Tuesday in August 1964, and quadrennially thereafter....
“(c) Municipal officers elected at regular elections shall assume the duties of their respective offices on the first Monday in October following their election unless otherwise provided in this article.”

This section presently appears in slightly modified form in the 1982 Cumulative Supplement:

“(a) The regular municipal elections in cities and towns shall be held on the second Tuesday in July 1980, and quad-rennially thereafter....
(c) Municipal officers elected at regular elections shall assume the duties of their respective offices on the first Monday in October following their election unless otherwise provided in this article and shall serve until their successors are elected and qualified. (Acts 1961, No. 663, p. 827, § 2; Acts 1971, No. 159, p. 434; Acts 1980, No. 80-94, p. 140, § 1; Acts 1982, No. 82-458, § 2.)”

The legislature has also enacted § 11-43-2 (Acts of 1980, No. 80-94, p. 140, § 1) which pertains to the election of mayors and aldermen:

“In all cities and towns at the general election to be held on the second Tuesday in July, 1980, and quadrennially thereafter, there shall be elected a mayor....
“The aldermen in such cities or towns shall be elected by the city or town at large at the first general election held on the second Tuesday in July, 1980, and quadrennially thereafter....” (Emphasis added.)

This statute appears in the chapter of Code of Ala.1975 dealing with the general governance by the mayor-council form, and not to the changeover to that form from the commission form. Nevertheless its specific terms on the date for the general election conform to those contained in the 1982 Supplement as § 11-46-21. The immediate predecessor to the current version of § 11-43-2 likewise conforms in terms on those dates to the immediate predecessor statute of the present § 11-46-21. In spite of the historical legislative use of “regular” elections and “general” elections, plaintiffs do not attribute to that varying usage any legal significance in the immediate framework within which we must be concerned in this case. Rejecting any significant difference, the plaintiffs urge that by enacting § 11-44H56, the legislature doubtless intended to adopt a procedure which would select the new municipal governing body at the first “regular” or “general” election routinely held following the change of the form of municipal government, which they insist would occur in July of the year following the changeover, with those elected taking office on the first Monday in October following. This follows, the plaintiffs contend, from a consideration of the history and contemporary body of municipal law pertaining to the subject of municipal elections.

We are, of course, bound not to substitute our own philosophy of government for the prerogative of the legislature in such matters. Our responsibility is solely to determine the legislative will, and our duty is to give effect to it. Champion v. McLean, 266 Ala. 103, 95 So.2d 82 (1957). Sometimes it is necessary to ascertain that will by construction, as when the language used is ambiguous and thus the legislative intent is unclear, requiring explanation. Ex parte Alabama Public Service Commission, 268 Ala. 322, 106 So.2d 158 (1958). When such an ambiguity exists and construction is called for, the purpose and object of the enactment, as well as the language used, may be examined. McWhorter v. State Board of Registration for Professional Engineers and Land Surveyors ex rel. Baxley, 359 So.2d 769 (Ala.1978). When no such ambiguity exists, however, but the statutory language is clear and unambiguous, it is not necessary to resort to such purposes or objects, or to legislative history, in order to find the intent of that body. Town of Loxley v. Rosinton Water, Sewer and Fire Protection Authority, Inc., 376 So.2d 705 (Ala.1979). In that case the legislative purpose lies in the clearly expressed legislative language and must be given effect without any attempt at judicial improvement. Fletcher v. Tuscaloosa Federal Sav. & Loan Ass’n, 294 Ala. 173, 314 So.2d 51 (1975); League of Women Voters v. Renfro, 292 Ala. 128, 290 So.2d 167 (1974). See also Drake v. Pennsylvania Threshermen & Farmers Mut. Cas. Ins. Co., 265 Ala. 444, 92 So.2d 11 (1957).

We have carefully reviewed the development of the law of municipal elections as explained by the plaintiffs. We have especially noted their argument concerning the presence in the 1975 Code of § 11-44-156, referred to earlier, and their criticism of that section as being foreign to the 1915 Act, to § 2400 of the Code of 1923, and to Tit. 37, § 126 of the Alabama Code of 1940. We are mindful of plaintiffs’ observance that:

“[I]t is difficult to perceive of the Legislature intending to mean that on change from the Commission form to the Mayor-Council form the new officers to serve the incoming Mayor-Council form would not be elected until a quadrennium election next occurring after the citizens of Jasper voted nearly four years in advance of the quadrennium to change from Commission to Mayor-Council form of government. ...”

It appears, in contradistinction, however, that such a result was precisely what the legislature intended in the exercise of what is clearly a legislative prerogative. Indeed, the clear legislative pattern which has emerged from the earlier plans has been to set general or regular elections, those for which the law fixes a time, McAdams v. Ne Smith, 252 Ala. 178, 40 So.2d 84 (1949), by date. Thus, at least since 1961 whenever a municipal election statute has referred to the holding of a “regular municipal election,” that clause has been legislatively determined as either the “second Tuesday in August 1964, and quadrennially thereafter,” or on the “second Tuesday in July 1980, and quadrennially thereafter.” Because the abandonment of the commission form and the assumption of the aldermanic form was to become “effective October 1 of the general municipal election year next following said election,” the legislature intended that the election of city officials and their assumption of office be held, if held after July 1980, in the quadrennial year following 1980, i.e. the election of officials to be held on the second Tuesday in July 1984, and those elected to take office on October 1, 1984, which is the same date when the new form of government takes effect. Moreover, in its wisdom the legislature has through § 11-40-11 expressly made the “term of any commissioner which might expire before such date ... extended until such date when the form of government changes.” Under this latter portion of § 11-40-11, then, the legislature has affirmatively directed the result which, plaintiffs argue, could not have been intended.

It follows from what we have stated that the trial court was in error when it ordered that an election be held in the City of Jasper on the second Tuesday in July 1982 to elect a mayor and aldermen, and that those officers thereby elected take office on the first Monday in October following their election. For the reasons we have stated, that order is reversed and this cause is remanded for an order not inconsistent with this opinion.

REVERSED AND REMANDED.

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


author: BRADLEY, Judge.

text:
    Clarence S. PRITCHETT, Jr. v. G & B LOG COMPANY.
    Civ. 2629.
    Court of Civil Appeals of Alabama.
    July 1, 1981.
    Rehearing Denied Aug. 19, 1981.

      Sam E. Loftin of Davis & Loftin, Phenix City, for appellant.
    Dana E. Schmaeling of Webb, Crumpton & McGregor, Montgomery, for appellee.
   BRADLEY, Judge.

This is a workmen’s compensation case.

Clarence S. Pritchett, Jr. was an independent truck driver hauling logs under an oral contract exclusively for G & B Log Company. Mr. Pritchett purchased his own truck and trailer rig in March 1976 and immediately began to transport cut timber only for G & B Log Company in accordance with the company’s directions. Depending upon the type of logs which he was hauling, Pritchett would be paid for transporting the logs according to their total weight or to the total number hauled. G & B Log Company and Pritchett orally agreed that Pritchett’s truck and trailer would have to be maintained in a good and safe working condition at all times and that he alone would be responsible for repairing the truck and trailer and keeping it in said condition. During the first part of July 1978 James Hemby, a friend of Pritchett’s, was driving the truck and trailer with a full load of logs on an Alabama highway when a loose “bolster” attached to the side of the trailer broke, permitting the logs to fall off the trailer and to become entangled in its wheels. The truck turned over on its side damaging both the cab and the trailer. After the accident, Pritchett transported the cab and trailer to A & J Body Shop in Phenix City, Alabama for repairs. The body shop was not connected with G & B’s business and G & B did not reimburse Pritchett for any expenses which he incurred in having his truck and trailer repaired at the shop.

On the morning of July 24,1978 Pritchett went to A & J Body Shop to inspect his truck to see what repairs needed to be made to it. During this inspection, Pritchett noticed a loose bolster off the trailer, he slipped and fell on his buttocks. Pritchett did not experience any pain from this accident until later in the day. Before the day was over, Pritchett visited his family physician, Dr. Blake. The doctor determined that Pritchett had suffered a hernia on the left side of his body. Later the hernia was repaired.

Pritchett continued to complain of pain in his back and right leg. A myelogram was performed in November 1978 and it was discovered that Pritchett had a herniated disc in his lower back. The disc was removed.

Pritchett filed suit against the workmen’s compensation insurer for G & B Log Company seeking workmen’s compensation benefits. G & B Log Company was added later as a party-defendant.

After an ore tenus hearing the trial court dismissed the insurer for G & B Log Company as a defendant and denied plaintiff’s claim against G & B Log Company on the ground “[t]hat at the time and place the accident occurred, the plaintiff was not acting within the line and scope of his employment nor did the accident arise out of and in the course of his employment.” Plaintiff appeals.

The contention on appeal is that the trial court erred in finding that plaintiff’s injuries were not the result of a job related accident and thus he was not entitled to workmen’s compensation benefits. We disagree for the reason that the case of Deaton Truck Line, Inc. v. Acker, 261 Ala. 468, 74 So.2d 717 (1954), appeal after remand 266 Ala. 611, 98 So.2d 429 (1957) is contrary to the plaintiff's contention and supports the trial court’s conclusion.

In the cited case the supreme court had occasion to review an award of workmen’s compensation benefits to the widow and minor children of Emory Acker, a truck driver who owned a tractor-trailer truck in which he transported freight. Mr. Acker executed a written lease agreement with appellant, Deaton Truck Line, whereby Acker agreed to transport freight “both intrastate and interstate, under the authority of the Company and for no other person, firm or corporation.” Paragraph six of the agreement obligated Acker to keep his truck “in good mechanical condition and repair at his own expense.” Acker returned to Deaton’s Birmingham, Alabama truck terminal from a freight hauling trip to New Orleans, Louisiana on May 4, 1950. Three days later, on Sunday, May 7, 1950, he and a friend took the gas tank off his truck in order to repair a leak in the tank. While repairing the tank in his family residence, Acker was killed by a gas explosion.

The court conceded that Acker was probably “an employee of Deaton rather than an independent contractor”; however, it reversed the trial court’s award of workmen’s compensation benefits to his widow and minor dependents.

In order for an accident to be compen-sable under the Workmen’s Compensation Law of this state, it must arise out of and in the course of employment. ...
Our interpretation of the written agreement here involved is that while the motor vehicle was out of service and being repaired, it was under the sole jurisdiction and control of Acker, whose duty it was to have it repaired at his own expense. He was privileged to select the place where, and the person by whom the repairs should be made.
At the time Acker was killed, the motor vehicle was out of service and out of commission so far as the work of transportation was concerned and incapable of earning compensation for him under his contract of employment. Acker selected the place where the repairs were to be made, at his home, a place where Deaton had no connection and where the business of Deaton did not require the presence of Acker. He elected to make the repairs himself.
We are constrained to the conclusion, therefore, that Acker’s death did not occur in the course of his employment by Deaton. Prayther v. Deepwater Coal & Iron Co., 216 Ala. 579, 114 So. 194; McDonald v. Denison, 51 N.M. 386, 185 P.2d 508; Stuhr v. State Industrial Accident Commission, 186 Or. 629, 208 P.2d 450; Jarman v. Trucking, Inc., 286 Mich. 492, 282 N.W. 218; Pappas v. Yant Const. Co., 121 Neb. 766, 238 N.W. 531; Pettet v. Monroe County Emergency Work Bureau, 248 App.Div. 797, 289 N.Y.S. 29; McKay v. Crowell & Spencer Lumber Co., La.App., 189 So. 508; Rector v. Ragnar-Benson, Inc., 313 Mich. 277, 21 N.W.2d 129. [Emphasis supplied.]

Because of the close similarity of the facts in the cited case and the case at bar, we consider Deaton to be dispositive of the issue on appeal. Here, as in Deaton, the owner of the tractor-trailer truck had sole dominion and control over his truck while it was out of service and being repaired. Both Pritchett and Acker were under a duty to repair their damaged vehicles at their own expense. Each driver had the right to and did select both the place where and the person by whom any repair to his vehicle would be effected. At the time Pritchett was injured and at the time Acker was killed, their trucks were incapable of hauling freight and earning compensation for them pursuant to their contracts of employment with G & B and Deaton, respectively. Thus, we too are constrained to hold that plaintiff’s injuries did not occur in the course of his employment by G & B Log Company. Because there is legal evidence to support the judgment of the trial court, its judgment must be affirmed. See Orkin Exterminating Co. v. Williams, Ala.Civ.App., 389 So.2d 935 (1980).

AFFIRMED.

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


author: FAULKNER, Justice. FAULKNER, Justice.

text:
    Ex parte Clarence S. PRITCHETT, Jr. (Re Clarence S. PRITCHETT, Jr. v. G & B LOG COMPANY).
    80-869.
    Supreme Court of Alabama.
    Aug. 6, 1982.
    Rehearing Denied Nov. 19, 1982.
    Sam E. Loftin, Phenix City, for petition er.
    Dana E. Schmaeling of Webb, Crumpton & McGregor, Montgomery, for respondent.
   FAULKNER, Justice.

The petition for writ’ of certiorari to the Court of Civil Appeals was granted for the purpose of determining whether or not this Court’s judgment in Deaton Truck Line v. Acker, 261 Ala. 468, 74 So.2d 717 (1954), should be overruled. A majority of this Court is of the opinion that Deaton should be overruled. Therefore, the judgment of the Court of Civil Appeals, based on the authority of Deaton, is reversed.

G & B Log Company, is in the business of cutting and selling logs. In March, 1976, Pritchett was employed by G & B as a truck driver. The truck and trailer used by him to haul G & B’s logs were purchased by Pritchett when he began working for G & B. The owner of G & B, Roy Black, helped Pritchett secure financing for the truck and trailer with the Bank of Dadeville.

Pritchett entered into an oral agreement with G & B to the effect that his truck and trailer would be used to haul logs exclusively for G & B. He was paid every two weeks according to the mileage driven or by the weight of the loads hauled, depending on the type of logs. Part of the agreement between Pritchett and G & B was that Pritchett would make all repairs to his truck and equipment and keep them in good repair and safe operating condition. He was responsible for all gas, oil, and maintenance on his equipment. The amount of compensation paid to Pritchett by G & B was based in part upon the fact that Pritch-ett furnished the gas, oil, maintenance, and insurance on the truck and trailer. He was instructed by G & B that his equipment must be kept in a safe operating condition. Pritchett was notified that the workmen’s compensation insurance carrier, Corporate Group Services, would inspect his truck from time to time to ascertain whether or not it was in good and safe operating condition.

In July, 1978, Pritchett’s truck and trailer were wrecked while hauling logs for G & B. According to the evidence, the logs are held on the trailers by five inch or six inch pipes which are called “standards” or “bolsters,” and one of these “bolsters” broke on Pritch-ett’s trailer, causing the logs to spill out and causing the trailer and truck to turn over on their sides.

The damaged truck and trailer were taken to A & J Body Shop in Phenix City, Alabama, for repairs. Pritchett was checking the trailer out on July 24, 1978, “to see what had to be fixed on it, what had to be replaced according to the cables and bolsters and things like that ... what had to be done to get it back in operating condition”. Attempting to remove a damaged and loose bolster, Pritchett slipped and fell from the trailer to the ground. As a result of this fall, he suffered an acute hernia of the left groin and a herniated disc in his back which have rendered him permanently and totally disabled.

G & B instructed Pritchett that when he had repaired his truck to return to work, that his job would be held open for his return. G & B did not supervise or instruct Pritchett on how or where the repairs should be made. According to the original agreement between Pritchett and G & B, it was Pritchett’s duty to keep the truck repaired.

Pritchett received workmen’s compensation benefits from July 24, 1978, until May 15, 1980, at which time those benefits were stopped. A lawsuit was filed after the compensation payments were discontinued. The trial court found that Pritchett was an employee of G & B and that he was permanently and totally disabled because of the injuries received on July 24, 1978. However, in denying his claim for workmen’s compensation, the court concluded that Pritchett’s injuries did not arise out of and in the course of his employment. From that ruling an appeal was taken to the Court of Civil Appeals. The Court affirmed the trial court on the authority of Deaton.

In Deaton Truck Line v. Acker, 261 Ala. 468, 74 So.2d 717 (1954), this Court was presented with almost identical facts as presented by Pritchett. Acker leased his truck to Deaton Truck Lines. It was his duty to keep the truck in good and safe operating condition. Deaton had the right to, and did, inspect the truck before each trip, and if the truck was not in satisfactory condition, Deaton could refuse to allow it to make a trip.

Here are the facts leading to Acker’s death, as set out in the Deaton opinion:

“Acker drove the truck when it was being used in hauling freight for Deaton Truck Line, Inc. His last trip ended on the afternoon of Thursday, May 4, 1950, at which time he arrived at the lessee’s terminal in Birmingham from New Orleans, Louisiana. He met his death three days later, on Sunday, May 7, 1950. Just prior to his death, Acker and a friend removed the gasoline tank from the truck and carried it into the kitchen of Acker’s home located in or near Bessemer, some ten or twelve miles distant from Deaton’s terminal in Birmingham. Without the knowledge of, and not under the supervision, direction or control of Deaton, Acker undertook to repair a leak in the gas tank which had been removed from the truck. While so engaged, an explosion occurred which resulted in Acker’s death.”

Under these facts Justice Lawson, writing for the majority, and acknowledging that Acker was an employee of Deaton, held that Acker’s death did not occur in the course of his employment with Deaton. Result — no workmen’s compensation death benefits to Acker’s widow and minor children.

Chief Justice Livingston filed a lone dissent in Deaton. This is what he wrote:

“My brothers could not agree with the foregoing opinion prepared by me, which would have affirmed the case, but instead have adopted the opinion of Lawson, J. I must, therefore, respectfully dissent. In short, my reasons may be stated as follows:
“Acker rented or leased the truck to Deaton. He could have done so without more, that is, without agreeing to drive it or furnish a driver, and without agreeing to keep it in repair, in which event, Dea-ton would have been compelled to repair it, if and when necessary, in order to use it. Instead, Acker agreed with Deaton to furnish a driver and to keep the truck in repair. The consideration paid Acker by Deaton was, in part, for repairs when necessary. Deaton had the right to inspect the truck, and presumably the right to prevent it being used when it failed to pass inspection. Under the evidence in the case, it is my opinion that at the time he was killed Acker was an employee of the Deaton Truck Line, and his death was caused by an accident which arose out of and in the course of his employment. Under the evidence in this particular case, I think that it is inconsistent to say that Acker was a servant or employee of Deaton, but that the accident resulting in his death did not occur in the course of his employment. Repairing the truck was a part of the job he contracted to do. If he had been killed while driving the truck, our authorities are clear to the effect that his death would have been compensable under our Workmen’s Compensation Law. He was killed repairing the truck which he had contracted to keep in repair, and in my humble judgment, his death arose out of and in the course of his employment.”

We agree with the view of the Chief Justice in Deaton. We find it inconsistent to hold on the one hand that Pritchett was an employee of G & B Log Company, and on the other hand, to hold that he was not acting within the line and scope of his employment when he was injured. At the time of Pritchett’s injury, he was engaged in keeping the truck and trailer in good repair. That was as much a part of his employment with G & B Log Company as transporting the logs at the company’s direction. At that time he was engaged in the furtherance of his employer’s business.

Our position, by adopting the Chief Justice’s dissent in Deaton (a position which we consider to be reasonable, logical, and within the public policy of this jurisdiction), is supported by numerous other courts throughout the United States. Cf. Mosley v. Royal Indemnity Co., 68 F.2d 220 (5th Cir.1934); Employers Liability Assurance Corp. v. Henderson, 37 Ga.App. 238, 139 S.E. 688 (1927); Shell Oil Co. v. Industrial Accident Commission, 18 Cal.Rptr. 540, 199 Cal.App.2d 426 (1962); Harding v. Herr’s Motor Express, Inc., 315 N.Y.S.2d 693, 35 A.D.2d 883 (1970); Tallent v. M.C. Lyle & Son, 187 Tenn. 482, 216 S.W.2d 7 (1948). We will not prolong this by citing any more cases.

The judgment of the Court of Civil Appeals is reversed, and the case is remanded to it for entering an order reversing and rendering the judgment of the trial court.

REVERSED AND REMANDED.

JONES, ALMON, SHORES, EMBRY and ADAMS, JJ., concur.

TORBERT, C.J., and BEATTY, J., dissent.

MADDOX, J., not sitting.

ON APPLICATION FOR REHEARING

FAULKNER, Justice.

The original opinion reversed and remanded. Counsel for G & B Log Company state in their brief on application for rehearing that the trial court did not find the average weekly wage of Pritchett, and did not find any loss of ability to earn on his part.

The order of this Court is changed to read as follows:

“The judgment of the Court of Civil Appeals is reversed and the case is remanded to it for entering an order of reversal and remanding the case to the trial court for further proceedings consistent with this opinion.”

OPINION EXTENDED; APPLICATION FOR REHEARING OVERRULED.

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

MADDOX, J., not sitting.

      . It is quite evident that the Chief Justice prepared the original opinion for conference and then failed to get the votes. Justice Lawson’s view prevailed.


text:
    Clarence S. PRITCHETT, Jr. v. G & B LOG COMPANY.
    Civ. 2629.
    Court of Civil Appeals of Alabama.
    Dec. 22, 1982.
   BRADLEY, Judge.

Upon remand to this court by the Supreme Court of Alabama, 424 So.2d 623, it is considered that this cause should be reversed and remanded to the Circuit Court of Russell County for further proceedings in accordance with the opinion of the supreme court on August 6, 1982 and November 19, 1982.

REVERSED AND REMANDED WITH DIRECTIONS.

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