text:
    John TAYLOR v. James D. MASON, Jr.
    79-593.
    Supreme Court of Alabama.
    Dec. 2, 1980.

      Frank W. Riggs and William D. Little, III, Montgomery, for appellant.
    Philip H. Butler, Montgomery, for appel-lee.
   JONES, Justice.

John Taylor, Defendant below, appeals from a judgment based on a claim charging him with misrepresentation and breach of express warranty in connection with the sale of a truck. A jury returned a Plaintiff’s verdict in the amount of $17,825.33. Taylor challenges the propriety of certain evidentiary rulings by the trial court. We reverse and remand.

The tractor-truck which is the basis of this action was sold on June 13, 1978, by John Taylor to James D. Mason, Jr., for the sum of $38,500.00. According to Mason, Taylor, through his employee-salesman, William Talley, represented to Mason that the tractor-truck was a 1978 Peterbilt glider kit on a 1977 White Freightliner running gear; that the running gear of the 1977 Feightliner had low mileage with little wear; and that it had a 400 Cummins diesel engine. Subsequently, the engine was found to be a 350 Cummins diesel, and the suspension system was discovered to be considerably worn.

Mason suffered an accident on August 8, 1978, when his truck overturned. Because of this mishap, Appellee’s commercial vehicle was inoperative or “down” for repairs from August 9,1978, through November 17, 1978, or approximately 15 weeks.

Mason contended that the accident resulted from the condition of the truck as misrepresented at the time of its sale.

I. Admission and Sufficiency of the Evidence.

Taylor contests the admission by the trial court of Mason’s evidence from another truck driver as to his approximate gross profits during that period when Mason’s truck was under repair.

In Wilson & Co., Inc. v. Sims, 250 Ala. 414, 34 So.2d 689 (1948), it is stated:

“The plaintiff sought to rest recovery for the loss of use of the truck on proof of loss of profits during the period it was laid up for repairs, but this is not permissible in this kind of a case. The weight of authority does not support such a theory nor have our own courts sanctioned it. The following text in American Jurisprudence, Vol. 5, p. 908, § 751, states what we conceive to be the pertinent rule: ‘While the loss of prospective profits may, in certain circumstances, be considered as an element of damages for injury to a commercial vehicle, the weight of authority is to the contrary. In no event, however, may one recover for loss of profits that are purely speculative or problematical.’ ”

Wilson & Co., Inc. v. Sims, 250 Ala. 414, 415, 34 So.2d 689 (1948).

The “certain circumstances” mentioned in the quoted text refer to cases where an award of lost profits is sustained when no substitute motor vehicle can be obtained in the market while plaintiff’s vehicle is being repaired. Wilson, supra; 42 C.J. Motor Vehicles p. 1294, § 1171 (1927), and cases cited at nn. 52, 53, p. 1298, § 1179, n. 32.

Appellee concedes his failure to proffer any evidence in the trial Court concerning the unavailability of other commercial vehicles for rent or lease during his “down” time. Consequently, upon the authority of Wilson, Mason’s claim for lost profits, as here postured, is without merit. The admission by the trial Judge of evidence going to another driver’s lost profits was clearly error.

II. Appellee’s Subrogation Agreement.

Taylor next asserts that the trial Court erred in allowing Mason to testify, over objection, as to his subrogation agreement with his property damage insurer, under which the insurer would be compensated for its payments out of any award granted. We agree.

Any fact, incapable of affording a presumption or reasonable inference of a material fact or inquiry, involved in triable issues between the parties, is inadmissible in evidence. Fincher v. State, 58 Ala. 215 (1877). See, also, ARCP 43(a).

As a general rule, a defendant is precluded from introducing evidence that the plaintiff had insurance coverage or has been indemnified for the accident in question. Lengle v. North Lebanon Township, 274 Pa. 51, 117 A. 403 (1922). See Gamble, McElroy’s Alabama Evidence, § 189.04(2), 3rd Ed. (1977). Cognizant of the general rule, we note that under our facts it was the Plaintiff’s evidence of his subrogation agreement with his insurer which was admitted by the trial Court.

Our interpretation, whether it be applied to a plaintiff or defendant, is that, again, all evidence must have some tendency to shed light on the inquiry in issue. Ward v. State, 52 Ala.App. 392, 293 So.2d 307 (1974). Any such effect by Plaintiff’s evidence of his subrogation agreement on the issues of liability or damages totally escapes us. Consequently, we hold that it was improperly admitted.

Thus, for the prejudicial errors noted and discussed above, this cause is due to be, and hereby is, reversed and remanded.

REVERSED AND REMANDED.

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

      . We note that counsel for each of the parties ground their respective arguments on their opposing interpretations of the second paragraph of ARCP 17(a), which deals with the “real party in interest” in subrogation cases. Any discussion of this point is pretermitted because the only ruling invoked, which is the predicate for the issue here presented, relates to the admission into evidence of Plaintiff’s insurance subrogation agreement in the absence of the insurer as a party plaintiff. Neither party raised any issue relating to the inclusion of the insurer as the real party in interest.


source: Caselaw Access Project

author: MADDOX, Justice.

license: Public Domain

text:
    James DANIEL v. Bertha THOMAS.
    79-717.
    Supreme Court of Alabama.
    Dec. 2, 1980.

      John R. Formby, Jr., Wetumpka, for appellant.
    No brief for appellee.
   MADDOX, Justice.

This is an appeal from the judgment of the Circuit Court of Elmore County which construed the will of Thomas Daniel. The specific language in that will, which is the subject of the instant case, is as follows:

CLAUSE A
... I give, devise and bequeath to my daughter, Bertha Thomas, her home place, where she now resides, about 8 acres of land, also 20 acres on the North end of the South half of the NW Vi of Section 3, Township 18, Range 18, being the Northend of Thomas Gossom tract, also the South end of Lot no. 28 of the Thomas Daniel subdivision in west Wet-umpka, Alabama, being where Tom Howard now lives.
CLAUSE B
******
I give, devise and bequeath to Bertha Thomas, my daughter to receive $10.00 month from my estate as long as she lives, at her death, payments to cease, the home place where she now lives is to go to Mary Irene Brewer, my daughter. The 20 acres of farm lands and the City Lot is to be given to her son James Daniel, my grandson.

The trial court found as follows:

... The court is of the opinion that the intention of Thomas Daniel at the time he drew the Will was that Bertha Thomas be awarded a life estate in the homeplace and at the termination of the life estate the property would belong to Mary Irene Brewer, the daughter of Thomas Daniel, in fee simple and absolute and that the 20 acres on the north end of the south half of the NW Vi of Sec. 3, T. 18, R. 18, being the North end of Thomas Gossum tract was to belong to Bertha Thomas, the daughter of Thomas Daniel, in fee simple and absolute; .. .

The parties are in agreement that the property devised generally in the clause designated as “Clause A,” is the same property referred to in the clause designated as “Clause B.” We have used “Clause A” and “Clause B” for convenience. Both Clause A and Clause B actually are contained in the same paragraph of the testator’s will. The testator, by one sentence in Clause A, without specifying the extent of the estate, generally devised three parcels to Bertha Thomas, viz., the homeplace, the twenty acres and the city lot. In Clause B, the testator used language which indicates that he intended that the general devise to Bertha Thomas of the three parcels was of an estate less than an absolute fee, and that he intended for Bertha Thomas to have only a life estate in the parcels, with a devise over to Brewer of the homeplace, and to his grandson, James Daniel, of the twenty acres and the city lot.

There was no testimony presented at trial; therefore, the basic issue presented is whether the trial court erred in its construction of the will and its application of Alabama law.

We agree with the finding made by the trial court that the will “does contain ambiguities,” but, as we shall point out later, we conclude that the learned trial judge misapplied the law in this case.

An ambiguity in the will is created because the testator made a general devise of the property in Clause A without specifically defining the extent of the estate created, and in Clause B, he used language which indicates that he intended the general devise in Clause A to be an estate less than an absolute fee. The law to be applied in determining the testator’s intent when the testator uses language similar to that used here, is contained in this court’s case of Bell v. Killian, 266 Ala. 12, 93 So.2d 769 (1957), wherein this court stated:

Under our cases, a general devise of this nature which fails to specifically define the extent of the estate created, does not necessarily import an absolute fee if subsequent provisions of the will indicate that the testator intended a lesser estate. Patterson v. First National Bank of Mobile, supra [261 Ala. 601, 75 So.2d 471]; Higdon v. Higdon, 243 Ala. 571, 574, 11 So.2d 140; Schowalter v. Schowalter, supra [217 Ala. 418, 116 So. 116]; Hatcher v. Rice, supra [213 Ala. 676, 105 So. 881].
The applicable rule is thus stated in Patterson v. First National Bank, supra, 261 Ala. page 607, 75 So.2d at page 475.
“It is well settled that where a will does not expressly define the estate of the first taker, a devise over after his death is definitive of his estate and will be given effect in keeping with the intention of the testator, if not unlawful. Higdon v. Higdon, 243 Ala. 571(6), 11 So.2d 140.”
The reasoning which supports this rule is sound. As with all canons of construction the purpose of the rule is merely to guide the courts in ascertaining the intention of the testator. In order to determine this intent it is obvious that the will must be considered as a whole. Therefore, when the testator makes a general devise without defining the extent of the estate which he wishes to create, and he subsequently provides for a remainder in the same property, it seems only logical to assume that he intended to qualify or limit the initial gift. There is no repug-nancy between such provisions and none should be read into the will by the courts.

266 Ala. at 17-18, 93 So.2d 769. The trial court was correct in finding that Bertha Thomas has “a life estate in the homeplace and about 8 acres of land surrounding the same and at her death said property shall be vested in Mary Irene Brewer, the daughter of Thomas Daniel, in fee simple and absolute.”

The trial court erred in finding “that the 20 acres on the north end of the south half of the northwest quarter of Sec. 3, T. 18, R. 18, being the north end of the Thomas Gossum tract, is vested in Bertha Thomas, the daughter of Thomas Daniel, in fee simple and absolute.”

It is inconsistent for the trial court to treat part of the property as being devised to Bertha Thomas as a life estate and part of the property as being devised to her in fee simple absolute since all of the property was devised to her by the same language. See Hacker v. Carlisle, 388 So.2d 947 (Ala.1980). The rationale of the Bell decision is equally applicable in determining the testator’s intent regarding each parcel.

The court should have found that the testator intended that the twenty-acre tract and the city lot were devised to Bertha Thomas as a life estate, with a remainder in the testator’s grandson, James Daniel.

The judgment of the trial court is due to be affirmed, in part, and reversed, in part; and the cause is due to be remanded for proceedings not inconsistent with this decision.

AFFIRMED, IN PART; REVERSED, IN PART; AND REMANDED.

TORBERT, C. J., concurs in the result.

JONES, SHORES and BEATTY, JJ., concur.


author: JONES, Justice.

text:
    Ben PALMER and wife, Ida Palmer v. Cora PALMER et al.
    79-373.
    Supreme Court of Alabama.
    Dec. 5, 1980.

      Charles A. Sullins of Sullins & Robins, Huntsville, for appellants.
    Arthur Fite, Jr. of Fite, Davis and Fite, Hamilton, for appellees.
   JONES, Justice.

Appellants Ben Palmer and wife Ida appeal from a jury verdict adjudging Appel-lees to be the owners of 10 acres of property-the subject matter of this dispute. We reverse and remand.

In 1939, Ben Palmer purchased 19 acres of land for $450.00. The 19 acres were divided by a public road, with approximately 10 acres located north of the road and 9 acres being south of the road. Ben Palmer already owned an additional 80-acre tract which joined the 10 acres on the north side of the road and gave his 80-acre tract access to the public road for the first time.

In 1949, Ben’s brother, Chester, asked Ben to sell him the 9-acre parcel south of the road. There was never any conversation or discussion between the brothers about Chester’s buying the 10 acres north of the road. According to Ben, he agreed to sell his brother the 9 acres for $200.00.

■ Ben and his wife, together with his brother Chester, went to the courthouse in Hamilton and asked Probate Judge Frank Pierce to make the deed for them. According to Ben, he and Chester told the Judge that Chester was buying the land south of the road (the 9 acres), and to make the road the property line. The Judge gave the form deed to one of his secretaries who filled it in. Ben and his wife then signed the deed and gave it to Chester. Neither Ben nor his wife ever again, until immediately prior to this action, saw the deed. Ben maintains that all of the parties were unaware that the deed purported to convey the entire 19-acre tract to Chester rather than just the 9 acres south of the road which had been agreed upon.

Chester took immediate possession of the 9 acres south of the road, while Ben retained possession of the 10 acres north of the road. Ben, in exercising continued possession and apparent ownership of the 10 acres, rented the land to different people who throughout the years used it partly as farmland. In 1957, Ben rented the farmland portion of the disputed tract to the government for a period of 10 years. That lease was extended for an additional 5-year period.

In 1973, Ben cleared the farmland portion of the 10 acres. Additionally, Ben sold pulpwood off the land, hunted thereon, and gave others permission to hunt there. Ben sold a right-of-way from the north side of the county road completely across the 10-acre tract to Alabama Power Company. At the same time, Chester sold a right-of-way from the south side of the road across all of his land. Chester died in 1969. In 1973, Ben and his wife signed a right-of-way deed giving the county access to the north side of the road. Chester’s wife, Cora Palmer, signed the same deed conveying to the county a right-of-way on the south side of the road.

Everyone in the community, including Chester Palmer, during his lifetime, and Cora, after her husband’s death, recognized the land in question as belonging to the Appellants because of their possession and control thereof. Cora and her son, Billy Gene, who now has record title to the disputed ten acres, both testified that they knew Appellants had claimed the land since the sale by Appellants to Chester Palmer.

In 1978, as a result of tax reappraisals, property owners in Marion County were notified as to what pr operty was assessed to them and what they were paying taxes on. Many people discovered that they had paid taxes for years on property they did not own. The reappraisal revealed that Chester Palmer, and since his death, his wife, were assessed on the 10 acres in question since 1949.

I. Sufficiency of the Evidence to Sustain the Jury’s Verdict.

Appellants contend, and we agree, that a review of all the testimony in the case below establishes by a clear preponderance of the evidence that the jury’s verdict was palpably wrong and manifestly unjust.

The law is well settled that a presumption of validity accompanies a jury verdict on appeal. But, while this may be the rule, it is not absolute. In Insurance Company of North America v. Mays, 278 Ala. 20, 24, 174 So.2d 700, 704 (1965), Justice Lawson, quoting from an earlier case, said:

“ ‘... this court has not renounced its duty nor neglected its power to revise the verdicts of juries and the conclusions of trial judges on questions of fact, where, in our opinion, after making all proper allowances and indulging all reasonable intendments in favor of the court below, we reach a clear conclusion that the finding and judgment are wrong....’”

Put another way, an appellate court should revise a jury verdict or judge’s findings if it is “convinced by a preponderance of the evidence that the verdict is wrong and unjust.” Prescott v. Martin, 331 So.2d 240 (Ala.1976). See Clark v. Clark, 280 Ala. 644, 197 So.2d 447 (1967); Tallapoosa River Electric Co-op., Inc. v. Burns, 271 Ala. 435, 124 So.2d 672 (1960); Barber v. Stephenson, 260 Ala. 151, 69 So.2d 251 (1954). Taking into consideration all reasonable inferences and presumptions, our thorough review of the record below leaves us with the conclusion that the jury verdict cannot be supported by the evidence adduced before the trial Court. Although the trial Court erred in submitting the reformation issue to a jury, we need not remand for a nonjury trial of this issue in view of our decision concerning the sufficiency of the evidence.

II. Reformation of the Deed.

Unlike settled rules which govern the substantive law of property, rules of construction are subordinate and yield to the intention of the parties, particularly the intention of the grantor, where such intention can be ascertained. Dickson v. Van Hoose, 157 Ala. 459, 47 So. 718 (1908); Meir-Nandorf v. Milner, 34 Idaho 396, 201 P. 720 (1921); Miller v. Miller, 91 Kan. 1, 136 P. 953 (1913). Surely, Appellant’s intentions were to convey only the 9 acres requested by Chester Palmer. The credible evidence of record overwhelmingly supports this conclusion.

Mistake of fact is a well-recognized ground for interposition of a court of equity. 13 Am.Jur.2d Cancellation of Instruments § 31 (1964). Where it appears that by a mutual mistake of all parties the instrument does not conform to or express their intention or agreement, as where by mistake some material part of the instrument is omitted or the deed is drawn to convey a different interest or a greater or lesser estate than was agreed upon, relief may be had in equity against the other party to the conveyance or his privies. 23 Am.Jur.2d Deeds §§ 155, 158 (1965).

Although a deed in terms expresses the intention of the parties, if there is a material mistake as to the property to which those terms apply, such as to its identity, situation, boundaries, title, amount, value, and the like, a court of equity may grant appropriate relief. Goodrich v. Lathrop, 94 Cal. 56, 29 P. 329 (1892).

We are convinced by the great weight (indeed on this issue the evidence is virtually without dispute) of the evidence that Ben and Chester acted under a mutual mistake when their sale was consummated in 1949. Reformation of their deed, therefore, is a proper remedy.

On remand of this cause, the trial Court, in its discretion, dictated by the necessities of the circumstances, may direct that further proceedings be held in order to more specifically delineate the legal description of the 9-acre tract intended to be conveyed.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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


text:
    George D. HOWARD, Sr. v. Charles D. JORDAN.
    79-756.
    Supreme Court of Alabama.
    Dec. 5, 1980.

      Robert R. Kracke of Kracke, Bashinsky, Woodward & Thompson, Birmingham, for appellant.
    Walden M. Buttram, Gadsden, for appel-lee.
   JONES, Justice.

George D. Howard, Sr., appeals from the trial Court’s granting of summary judgment in favor of Appellee, Charles D. Jordan, finding Appellant liable to Appellee on a promissory note in an amount of $29,-396.37. We affirm.

Charles D. Jordan was the sole stockholder of Green Valley Timing Association, Inc., which sold a drag strip operation to the Defendant, George D. Howard, Jr., son of Appellant. Green Valley Timing Association, Inc., required a promissory note to be executed by George D. Howard, Jr., and guaranteed by his father, George D. Howard, Sr. Subsequently, payments on the note were not made when due, and suit was initiated by Jordan as the sole stockholder and assignee, in liquidation, of the assets of Green Valley Timing Association, Inc. (George D. Howard, Jr., has not been proceeded against because of a bankruptcy petition filed by him.) Appellant has admitted, pursuant to a request for admission, that his signature does appear on the promissory note and guaranty agreement.

I. The Trial Court’s Granting of Summary Judgment.

Appellant argues that the trial Court committed reversible error by granting Plaintiff-Appellee’s motion for summary judgment. We cannot agree.

Summarily stated, Appellant’s contention of trial Court impropriety is founded on four factors:

1) The insufficiency of Appellee’s affidavit in support of his motion for summary judgment, due to its failure to allege the assignment of all interests in and to said note.
2) That a substantial issue of fact did exist regarding the propriety of the assignment of said note to Appellee.
3) That a substantial issue of fact did exist regarding the execution of the guaranty agreement, and that cases involving such agreements are not proper ones for summary judgment.
4) That a substantial issue of fact did exist regarding Appellee’s proof of his assignment from Green Valley Timing Association, Inc.

A basic axiom in cases involving motions for summary judgment is that when such a motion is made, as provided by ARCP 56, the adverse party may not rest upon mere allegations or denials in his original pleadings, but must set forth by affidavit, or otherwise, sufficient facts showing a genuine issue for trial. ARCP 56(e). We note in this case Appellant’s failure to follow this procedural mandate. Significantly, Appellant’s answer to the complaint below controverted neither the allegations of the guarantor status of the Defendant nor those of the assignee status of the Plaintiff.

The only evidence presented to the trial court was Appellee’s affidavit supporting his motion for summary judgment and Appellant’s answers to Appellee’s request for admissions. This Court stated in Imperial Group, Ltd. v. Lamar Corporation, 347 So.2d 988 at 989-90 (Ala.1977), that “. .. it can be perilous for the opposing party neither to proffer any countering evidentiary materials nor to file an affidavit.”

The evidence for the trial court’s consideration on Appellee’s motion for summary judgment presented no triable issues of fact; therefore, judgment for Appellee was, as a matter of law, the only appropriate response by the trial court. Accordingly, this cause is due to be, and hereby is, affirmed.

AFFIRMED.

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

      . We note, for emphasis, that Appellant’s insistence that these issues of fact are presented (that is, whether Defendant below acquired the legal status of guarantor and whether Plaintiff below acquired the legal status of assignee) is misplaced, in that neither of these allegations of Plaintiff’s complaint is controverted in Defendant’s answer. Thus, as to these issues, Plaintiff bears no further burden as to their proof. Rule 8(d), ARCP.


author: PER CURIAM.

text:
    LANGHAM SMALL MOTORS v. Garland THOMAS.
    Civ. 2211.
    Court of Civil Appeals of Alabama.
    Sept. 17, 1980.
    Rehearing Denied Oct. 22, 1980.
    Marvin Rogers of Zeanah, Donald & Hust, Tuscaloosa, for appellant.
    R. Michael Booker of Shores & Booker, Birmingham, for appellee.
   PER CURIAM.

This is a workmen’s compensation case.

Plaintiff was injured on July 5, 1977 while working for the defendant, Langham Small Motors. Defendant paid plaintiff temporary total disability compensation from July 6, 1977 until April 3, 1978 through its insurance carrier, Employers Insurance Company (hereinafter referred to as Employers). Defendant terminated payment of such benefits to plaintiff on April 3, 1978. Over a year later, on April 24, 1979, plaintiff filed suit seeking compensation benefits for permanent partial disability. Plaintiff alleged in his complaint that defendant’s actions led him to believe that defendant was admitting its liability to plaintiff for permanent partial disability compensation and that such liability would not be contested. Therefore, defendant was estopped from raising the defense that plaintiff’s claim for compensation was time-barred under § 25-5-80 of the 1975 Code of Alabama on the grounds that it had not been filed within one year after plaintiff had received his last compensation payment from Employers. The trial court found that the statute of limitations contained in § 25-5-80 had been tolled by defendant’s conduct and that plaintiff had suffered a twenty percent permanent partial disability to the body as a whole but made no finding that plaintiff had suffered a permanent partial loss of ability to earn. In addition, it permitted plaintiff alone to decide whether such compensation would be payable in one lump sum or in periodic installments.

Defendant assigns as error (1) the trial court’s determination that the defendant or its insurance carrier, Employers, committed acts which tolled the running of the statute of limitations contained in § 25-5-80 on plaintiff’s claim, (2) its failure to determine whether plaintiff suffered an impairment of his earning capacity, and (3) its decision to allow plaintiff to elect whether he wished to be compensated in one lump-sum payment or by periodic payments. Because we consider the resolution of the first assignment of error as determinative of all the issues presented by this appeal, we have no occasion to consider the merits of the second and third assignments.

In Dorsey v. United States Pipe & Foundry Co., Ala.Civ.App., 353 So.2d 797, rev’d, Ala., 353 So.2d 800 (1977), our supreme court stated:

[W]hen acts are done by the employer which lead the employee to believe that liability under the statute [i. e. § 25-5-80] is admitted and will not be contested, or where the acts of the employer either falsely misrepresent to the employee or fraudulently conceal from him the truth of the facts upon which the liability of the employer depends, the running of the statute of limitations may be tolled, and it is immaterial whether the employee relies upon actual fraud or mere estoppel.

See also L. W. Limbaugh Mining & Construction Co. v. Youngblood, Civ. 2072 (Ala.Civ.App., April 16,1980).

The trial court found as a fact that: [UJnder the ... circumstances of this case, .. . the acts of the Defendant [led] the Plaintiff to believe that liability under the Statute was admitted and would not be contested.

But it made no finding of fact nor does the record disclose any evidence that the insurer falsely represented to plaintiff or fraudulently concealed from him the truth of the facts upon which defendant’s liability depended. We are, therefore, concerned only with whether the insurer led the employee to believe that liability had been admitted and would not be contested.

The pertinent evidence shows that the plaintiff-employee had two separate conversations with Ricky Smith, an agent of Employers, in which Smith offered to settle plaintiff’s claim for permanent partial disability benefits for $2,500 and, later, $3,000 after the insurer had terminated plaintiff’s temporary total benefits. Plaintiff rejected both offers and enlisted the aid of an attorney, Mr. Stephen Heninger, to pursue his claim for compensation from Employers. Heninger subsequently wrote two letters to Employers, one dated August 28, 1978 and the other October 16, 1978, requesting an explanation from Employers as to why Mr. Thomas’s temporary total disability benefits had been terminated and in what manner it calculated the amount it was willing to pay plaintiff in settlement of his claim. Employers’ assistant claims manager, Richard D. Turner, supplied this information to Heninger in a letter dated October 25,1978 and offered to settle plaintiff’s claim for $3,045, which sum was calculated according to the method set out in our workmen’s compensation law to determine the benefits to be paid for a ten percent permanent partial disability, since a physician had stated that plaintiff had suffered a ten percent permanent partial disability to the body as a whole. Heninger rejected this offer, however, upon directions from plaintiff on December 28, 1978. Turner addressed two subsequent letters to Heninger, one bearing the date of December 29,1978 and the other of March 26, 1979. In the December letter Turner enclosed copies of several doctors’ reports, including those of plaintiff’s physician, Dr. Whitehurst, but made no further settlement offers, although he did invite plaintiff to forward to Employers any other medical reports for Employers’ consideration. Turner’s March letter, written approximately one week before the statute of limitations ran on plaintiff’s claim, repeated Employers’ offer to settle plaintiff’s claim for $3,045 and suggested that plaintiff immediately forward any medical reports he might possess to substantiate a higher permanent partial disability rating to Employers for its consideration.

In reviewing judgments in workmen's compensation cases this court will not weigh the evidence as to any fact found by the trial court. American Tennis Courts, Inc. v. Hinton, Ala.Civ.App., 378 So.2d 235 (1979). Nevertheless, there must be some evidence to support the trial court’s findings of fact. Id. We can discern no such evidence in the case at bar.

It must be concluded that the finding of the court that admissions of liability by the employer had tolled the running of the statute of limitations was based upon the letters from the insurer to plaintiff's attorney as heretofore described.

We find the trial court to have erred in such finding as a matter of law.

It is the general rule that evidence of an offer to compromise or settle a disputed claim will not be received as an admission of the party making the offer. 29 Am.Jur.2d Evidence § 629 (1967). The rule has been stated by our supreme court as follows: “An offer or agreement to pay, or even a payment, in the way of compromise, is not an admission of indebtedness nor of any fact from which indebtedness may be inferred.” Hughes v. Daniel, 187 Ala. 41, 65 So. 518 (1914). It has been said that the law protects offers of compromise. Indemnity Co. of America v. Pugh, 222 Ala. 251, 132 So. 165 (1931). To refute the rule is to discourage extra-judicial settlements.

This rule does not affect the use of an express admission of the fact of responsibility, even though contained in an offer of settlement or compromise. Millsap v. Williamson, 294 Ala. 634, 320 So.2d 649 (1975). However, there is no express admission of liability contained in the letters in this case, and they could not properly be considered as a legal admission of fact. It is important, particularly in workmen’s compensation cases, that extra-judicial settlements be explored and reached if possible. To interpret offers to do so, as in this case, as admissions of liability would seriously deter such intercourse between parties.

There is no evidence to refute or toll the running of the statute of limitations in this case. The claim of plaintiff is therefore time-barred from suit.

The judgment of the trial court is reversed and the case is remanded with direction to enter judgment in favor of defendant upon its plea of the statute of limitations.

REVERSED AND REMANDED WITH DIRECTION.

All the Judges concur.


author: JONES, Justice-.

text:
    Ex Parte Garland THOMAS. (Re LANGHAM SMALL MOTORS v. Garland THOMAS).
    80-85.
    Supreme Court of Alabama.
    Dec. 19, 1980.
   JONES, Justice-.

WRIT DENIED-NO OPINION.

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


author: BRADLEY, Judge.

text:
    Susan Mango HORSLEY v. Joe Norris HORSLEY.
    Civ. 2222.
    Court of Civil Appeals of Alabama.
    Sept. 17, 1980.
    Rehearing Denied Nov. 5, 1980.

      Thomas B. Hanes, of Hanes, Hanes & Bolin, Birmingham, for appellant.
    E. Ray Large, of Large & Donovan, Birmingham, for appellee.
   BRADLEY, Judge.

The appeal is from an order of the circuit court construing a provision in a prior divorce decree plus ascertaining the arrear-age in child support payments.

The parties to this proceeding were divorced in August 1977. The parties had one child, three years old, custody of whom was awarded to the father.

An agreement was entered into by the parties and made a part of the divorce decree. The portion of the agreement that is in dispute is paragraph 2 thereof, which is as follows:

2. Plaintiff, SUSAN MANGO HORS-LEY, agrees to contribute up to ONE THOUSAND TWO HUNDRED DOLLARS ($1,200.00) per year to the minor child’s expenses in attending any kindergarten, day care center, parochial or private schools until the child reaches the age of nineteen (19) years. In the event said child should attend college then said payment shall continue until the child reaches an undergraduate degree. It is further agreed that in the event said child shall attend a public school and not incur any school expenses, then the Plaintiff shall deposit the sum of ONE HUNDRED DOLLARS ($100.00) per month in the existing trust fund savings account at City Federal Savings & Loan Association with the said child as beneficiary and LOUIS MANGO, SR. as guardian. Said payments are not to be construed as child support.

On August 31,1979 the father filed a rule nisi petition seeking to have the mother held in contempt for failure to comply with the terms of paragraph 2 of the agreement. After a hearing the trial court construed paragraph 2 to require the mother to pay child support to the father and ascertained the arrearage. She appeals; we affirm.

An agreement between the parties to a divorce action with respect to child support when adopted by the court and made a part of the final decree is merged into the decree, and such decree is as effective as any other decree with the same terms whether there was an agreement to that effect. Hutton v. Hutton, 284 Ala. 91, 222 So.2d 348 (1969).

The agreement was made a part of the court’s divorce decree and such decree is to be enforced as other court decrees with the same terms are enforced. Wise v. Watson, 286 Ala. 22, 236 So.2d 681 (1970).

The trial court construed paragraph 2 of the agreement to require the wife to pay child support to the husband/father and also determined the amount of child support that the wife was in arrears. The wife contends here that the trial court erroneously construed paragraph 2 to require her to pay child support to the father and that the amount of the arrearage found to be due is unsupported by the evidence.

Judgments and decrees are to be construed like other written instruments, and, if there is any uncertainty, the court must construe them so as to express the intent of the parties. Price v. Price, Ala.Civ.App., 360 So.2d 340 (1978); Reeder v. Reeder, Ala.Civ.App., 356 So.2d 202 (1978). Such intent can be derived from the provisions of the agreement. Reeder v. Reeder, supra.

Also, where a judgment or decree is so obscure that it fails to express the exact determination of the court, reference may be had to the pleadings, other proceedings to which it refers, and the entire record, to ascertain its true meaning. Brown v. Brown, 276 Ala. 153, 159 So.2d 855 (1964).

A careful examination of paragraph 2 of the agreement discloses that the wife agrees in the first portion of the paragraph to pay up to $1,200 a year if the child is in a private school; then, in the second part of the paragraph, she agrees to pay $100 per month to a trust fund of which the child is a beneficiary if the child is attending a public school.

The evidence shows that at the time the agreement was made, the child was three years old and enrolled in a day care center for which the mother was paying $100 a month. The evidence also shows that the mother made one payment of $100 after the divorce.

It would not be unreasonable to conclude, as the trial court obviously did, that the parties intended that the mother, who was employed at the time of the agreement and earning approximately $200 per week, was to pay $100 per month toward the support of the child whether the child was in private or public school.

Even though the first part of paragraph 2 required the wife to pay up to $1,200 per year if the child was in a private school, the second part clearly required of her the payment of $100 per month to a trust fund if the child was in public school. And, the mother was paying $100 per month for the child to be cared for in a private school at the time of the agreement. Clearly, the parties intended that the wife pay $100 per month for the child’s support whether the child was in a private or public school. Thus, the trial court correctly interpreted paragraph 2 of the agreement.

The mother’s final contention is that the amount of arrearage found by the trial court is unsupported by the evidence.

After interpreting the divorce decree to mean that the mother was obligated to pay $100 per month toward the support of the child, the trial court found that in a two year period, i. e. two years had elapsed from the divorce decree to the filing of the rule nisi petition, the mother had made one payment of $100. Simple arithmetic shows that the total amount due from the mother was $2,400 ($100 time twenty-four months). Then when you subtract from that amount the $100 she paid, you get a balance due of $2,300. This is the amount the trial court found to be in arrears. We hold that its finding is supported by the evidence.

For the above reasons, the judgment of the trial court is affirmed.

AFFIRMED.

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


text:
    Ex Parte Susan Mango Horsley Re Susan Mango HORSLEY v. Joe Norris HORSLEY.
    80-121.
    Supreme Court of Alabama.
    Dec. 19, 1980.
   JONES, Justice.

WRIT DENIED-NO OPINION.

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


author: WRIGHT, Presiding Judge.

text:
    Maureene Bass DEES v. Morris S. DEES.
    Civ. 2114.
    Court of Civil Appeals of Alabama.
    Nov. 19, 1980.

      Maury Smith, Julia S. Waters and Charles M. Crook of Smith, Bowman, Tha-: gard, Crook & Culpepper, Montgomery, for appellant.
    Vaughan H. Robison, David B. Byrne, Jr. and Ernest C. Hornsby of Robison & Belser, Montgomery, for appellee.
   WRIGHT, Presiding Judge.

This is a divorce case. The wife appeals. The primary issue is whether the trial court erred in its application of § 30-2-51, Code of Alabama (1975) to the facts of the ease or abused its discretion in the award of alimony and division of property. We find the trial court erred and remand for further consideration in light of our decision.

This case took some ten days for trial. The record is comprised of some 250 pages of pleading and orders, some 1,650 pages of testimony and over 200 exhibits which include several lengthy depositions and many documents and tax records. A divorce was granted on the ground of incompatibility and irreconcilable differences. After perusing the record, with its charges, counter-charges and other testimony relating to the conduct of the parties during their ten years of marriage, we have concluded that it would serve no useful purpose to relate the details of that conduct here. To the contrary, we are of the opinion that to do so would be detrimental to the best interest of the parties and in particular to their children. We therefore find from the record that the only reasonable conclusion is that the parties were so equally at fault in contributing to the failure of the marriage that the element of fault should be disregarded, even in respect to consideration of division of property and award of alimony. Gamble v. Gamble, 53 Ala.App. 168, 298 So.2d 254, cert. denied, 292 Ala. 721, 289 So.2d 260 (1974).

The court below apparently was of the same opinion. Though making extensive finding of fact relative to the origin of the husband’s estate, it made no finding of fault. The trial court awarded to the wife the primary custody of the nine-year-old daughter, with monthly support in the amount of $1,500. Other benefits and expenses of the child were ordered to be paid by the father. He was given liberal visitation and temporary custody rights. The wife was awarded one-half of all household property acquired during the marriage, all gifts from the husband, an automobile, personal property which she brought to the marriage and $120,000. The $120,000 was ordered to be paid by the husband at the rate of $2,000 per month or in larger sums at his election.

It is evident from the finding of fact and the judgment based thereon that the court below so literally applied § 30-2-51 that it refused to consider the more than $3,500,-000 estate of the husband in determining its alimony award to the wife and in failing to award to her a division of property.

Section 30-2-51, Code of Alabama (1975) as amended in 1979 reads as follows:

If either spouse has no separate estate or if it be insufficient for the maintenance of such spouse, the judge, upon granting a divorce, at his discretion, may order to such spouse an allowance out of the estate of the other spouse, taking into consideration the value thereof and the condition of the spouse’s family; provided, however, that the judge may not take into consideration any property acquired prior to the marriage of the parties or by inheritance or gift unless the trial judge finds from the evidence that such property, or income produced by such property, has been used regularly for the common benefit of the parties during their marriage. (Emphasis ours.)

As in most Alabama statutes, there is no legislative record of the purpose and intent of the proviso added in 1979 which now concludes this statute. It has had no appellate court interpretation in its short tenure. As the latter portion of the statute was added at the same time the old statute was made applicable to both spouses, it might be conjectured that the intent was to protect the separate estate of a wife owned prior to marriage or since acquired by inheritance or gift. However, we are not permitted conjecture. We must interpret a statute according to its terms when unambiguous. Quick v. Utotem of Alabama, 365 So.2d 1245 (Ala.Civ.App.1979).

The trial court found as fact that “all of the assets presently owned by the husband have been shown by the testimony adduced in this cause to be assets held prior to the marriage of the parties or to have been acquired in exchange for assets owned by the husband prior to the marriage.” It reached this conclusion after extensive factual finding as to how the initial fortune of the husband was accumulated and tracing its exchange, trading, sale and conversion over the ten-year marriage. For the purpose of our decision for reversal, it is not necessary for us to decide whether the legislature intended that property owned prior to the marriage which has been traded, exchanged, sold, invested, added to, taken from or otherwise used and changed in form may be traced through the years and remain “property acquired prior to the marriage.” The proposition presents interesting aspects which we do not now decide.

We do decide that the trial court erred in its application of the statute, because the facts are preponderant that “such property, or income produced by such property, has been used regularly for the common benefit of the parties during their marriage.”

It appears rather axiomatic, considering a marriage in its common law aspect, that the activities by which a husband seeks to manage his estate, use the property for growing cattle and crops, produce goods and income, improve it, and increase its value, are activities engaged in for the common benefit of his family and marriage partner. The husband did all these things during the marriage. For more than half the marriage, the only funds received by and used for the benefit of the family were either income from or sale of the husband’s estate. As the trial court pointed out in its findings, the husband’s estate actually diminished in net value due to spending of the family, bad investments, taxes and loss of market value of stocks.

Though the husband was an attorney by profession, he had no material income-producing practice until placed on salary and expenses as a staff attorney for The Southern Poverty Law Center in 1975. He founded and secured the initial endowment for the Center. He now has a $65,000 annual salary from that organization, which when combined with other annual income, such as $160,000 interest received from $1,875,000 in tax-free bonds, provided an income in 1978 of $232,000. His family enjoyed the benefit of that income.

The evidence also established that the husband used for the homestead of his family a 210-acre farm. It was the place of residence of his family throughout the marriage. During the early years of the marriage, two additions were made to the home located thereon, doubling its size. It now contains over 6,000 square feet, including six bedrooms and four baths. There was also added a swimming pool and tennis court. The property has been appraised at $415,000.

Though the large land holdings, totaling some 1,800 acres of farm land, were purchased by the husband prior to the marriage, they have been improved, cultivated, leased and otherwise used as a part of the •husband’s business investments during the marriage. They have increased substantially in value, thus increasing the wife’s rights of dower and inheritance during the continuation of the marriage.

The evidence clearly shows the parties enjoyed a standard of living commensurate to the wealth and high income of the husband. The wife, though possessing a degree in dramatic arts, has not been employed during the marriage. She was employed prior to the marriage in the husband’s business at a small salary. During the ten years of marriage, she has traveled extensively with her husband, served as hostess in entertaining their friends and business associates, worked in community Little Theatre and other volunteer civic work and maintained a home for the husband and their several children.

The wife has no estate or substantial income of her own though she is presently engaged in a small partnership business. She is without the means of maintaining herself and a home for her child in the style to which she has been accustomed as the wife of a multi-millionaire with a yearly income approaching or surpassing a quarter million dollars.

It is recognized that the award of alimony and a division of property in the granting of a divorce are matters for the discretion of the trial court. Plaskett v. Plaskett, 348 So.2d 784 (Ala.Civ.App.), cert. denied, 348 So.2d 789 (Ala.1977). However, it is also recognized that the exercise of such discretion must be based upon equitable principles and is thus subject to review on appeal if the result is arbitrary and unjust. Reynolds v. Reynolds, 376 So.2d 732 (Ala.Civ.App.1979), Smith v. Smith, 369 So.2d 1235 (Ala.Civ.App.1979).

We have said that the alimony statutes serve a legislative policy the purpose of which is to preserve, insofar as possible, the economic status quo of the parties as it existed during the marriage even though the marriage is judicially terminated. Orr v. Orr, 374 So.2d 895 (Ala.Civ.App.), cert. denied, 374 So.2d 898 (Ala.1979). It is evident that the award of alimony in this case, when considered in light of the annual income of the husband, and the estate from which most of that income is derived, does not serve that legislative policy. The gross award to the wife is only about one-half of the husband’s largely tax-free annual income. We find it thus to be inequitable and unjust.

The judgment of the trial court insofar as the award of what is termed therein as alimony in gross must be reversed. The matter is remanded to the trial court for further consideration in light of this opinion that the provisional aspect of § 30-2-51 does not limit consideration of the total estate of the husband in ordering to the wife an allowance from the estate of the husband, including his income therefrom. We further suggest to the court that alimony in gross and periodic alimony are awarded for different purposes and may be derived from different sources.

“Alimony in gross” is the present value of the wife’s inchoate marital rights-dower, homestead and distributive share, which are being terminated by the divorce. “Periodic alimony” is to provide for the current and continuous support of the wife. Both forms of alimony may be awarded in a proper case. Hager v. Hager, 53 Ala.App. 306, 299 So.2d 740, rev’d, 293 Ala. 47, 299 So.2d 743, on remand, 53 Ala.App. 740, 299 So.2d 751 (1974).

For error in applying the law to the facts and abuse of discretion, the judgment is reversed as to the award of alimony to the wife. The matter is remanded for reconsideration of the evidence in light of this decision.

Plaintiff’s attorneys are hereby awarded $2,500 as attorney fees on appeal.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED WITH DIRECTION.

BRADLEY and SCRUGGS, JJ., concur.

SCRUGGS sitting for HOLMES, J., who recuses himself.

      . An only child, though each had adult children by previous marriages.

      . Though stated by the court to be alimony in gross, it provided that in the event of remarriage, the payment would end. It also provided that if the wife died before payment or remarriage, any unpaid balance would be due her estate. In view of apparent contradictory legal effects contained in this award, it might well be questioned whether it was in fact alimony in gross. However, counsel does not present that question in this appeal.

        . Mack v. Mack, 389 So.2d 1156, decided by this court on September 24, 1980, referred to but did not apply § 30-2-51.


text:
    KEY LIFE INSURANCE COMPANY OF SOUTH CAROLINA v. William R. BURNS.
    Civ. 2428.
    Court of Civil Appeals of Alabama.
    Nov. 19, 1980.

      Gerald R. Paulk and Jack Livingston of Livingston, Porter & Paulk, P.C., Scotts-boro, for appellant.
    John F. Proctor of Thomas- & Proctor, Scottsboro, for appellee.
   BRADLEY, Judge.

This is an insurance case.

On March 27,1979 William R. Burns filed a complaint against his employer, R. D. Hicks, seeking workmen’s compensation benefits. Plaintiff amended his complaint by adding Key Life Insurance Company of South Carolina as a party defendant and claiming that while employed by Hicks there was in force a blanket accident insurance policy issued by Key Life to Hicks to cover employees injured while in his employment, that during his employment by Hicks he was accidentally injured, and that he has been continuously and totally disabled and prevented from performing every duty of his occupation of timber cutter since that time.

The trial was had before the court sitting without a jury. Judgment was entered for plaintiff on the accident insurance policy count and against the plaintiff on the workmen’s compensation claim. Key Life Insurance Company appeals; we affirm.

The evidence shows that plaintiff, William R. Burns, was employed by R. D. Hicks as a timber cutter. On August 10, 1977, while cutting timber, a tree fell against Burns’s left leg breaking it between the knee and the ankle. Burns was taken to Erlanger Hospital in Chattanooga, Tennessee where he was treated by Dr. Wallace Grissom, an orthopedic surgeon.

Dr. Grissom operated on Burns’s left leg and later placed a cast on that leg. Burns remained under the care of Dr. Grissom until September 13,1978. During this period Burns was continuously and totally disabled and Key Life paid him disability benefits in accordance with the insurance policy.

On September 13, 1978, Dr. Grissom told Burns he could try to go back to work. However, Dr. Grissom said that he did not believe that Burns could safely walk on unlevel ground. Key Life terminated disability payments to Burns at this time on the basis of Dr. Grissom’s release of Burns to try to work.

On September 29, 1978 Burns asked Billy Armes for a job as a timber cutter. Armes agreed to let Burns try the work even though Burns told him of his previous injury and was limping when he was hired. During the few days that Burns worked for Armes, he would frequently have to stop working due to the pain and swelling in the left ankle. At these times Armes and the other employees would help Burns with his work. Armes testified that Burns could not do the work and that he was planning on terminating Burns’s employment.

About one week after Burns went to work for Armes, he reinjured his left ankle while walking in the woods when he either stepped in a hole or twisted his ankle. Burns was seen again by Dr. Grissom for this second injury. Burns has not been able to work since this second injury.

Dr. Grissom stated that Burns’s second injury resulted in some scar tissue formed from the first injury tearing loose. He said the second injury was due to the first injury and Burns could not perform any job requiring continuous walking on uneven ground.

Dr. Grissom further stated that Burns would not get any better and that his present condition resulted from his initial injury in 1977. Dr. Grissom testified that when he released Burns in September 1978, he told him that he did not think Burns could ever do the work that he had been doing but that he could try.

Burns is forty-two years old and cannot read or write. He has been a timber cutter for the past twenty years. He has done a little farming and has worked in a factory. However, his regular occupation is that of timber cutter.

During the trial Burns was asked to show the court his left ankle and he did so. The court was also asked to lift a chain saw which was similar to the one Burns had used in his work and it did so.

The trial court stated in its final decree that observation of plaintiff and his leg “almost precludes any finding other than that of total disability.”

Key Life says that the trial court erred in finding that Burns was totally disabled within the meaning of Section II of the policy in question.

Section II of the Key Life policy provides:

If “such injuries” shall, from the date of the accident, continuously and totally disable the Injured Person and prevent him from performing every duty pertaining to his business or occupation, and if regularly attended by a licensed doctor of medicine or osteopathy, other than the Injured Person, the Company will pay at the rate of Indemnity shown in the Benefits Schedule for the continuous period of total disability directly caused thereby but not exceeding the maximum period shown in the Benefits Schedule.

In support of its contention, Key Life argues (a) that Burns was not continuously disabled, (b) that it could not be said that Burns was unable to perform every duty of his occupation, and (c) that Burns was not regularly attended by a licensed doctor of medicine or osteopathy. Accordingly, Burns cannot recover because he has not shown that he meets the requirements of Section II of the policy.

Key Life says that Burns was not continuously disabled as required by Section II of the policy because he returned to work as a timber cutter and was reinjured.

The trial court found, and the evidence fully supports its finding, that Burns went to work for Armes on a trial basis, i. e. to see if he was physically able to work as a timber cutter. As it developed, Burns was not able to work at his former occupation due to the injury suffered to his left leg in 1977 while employed by R. D. Hicks. Based on these findings the trial court concluded that Bums was totally and continuously disabled from the first injury to the date of trial.

The rule is that a person need not be helpless in order to be considered totally disabled. Wilkey v. Aetna Life Insurance Co., 269 Ala. 308, 112 So.2d 458 (1959); Volunteer State Life Insurance Co. v. Davis, 31 Ala.App. 167, 14 So.2d 162 (1943).

“Total disability” has been defined as:

The term “total disability” is a relative term, depending in a measure upon the character of the occupation and the capabilities of the insured, and to a large extent upon the circumstances of the particular case. Ordinarily it is a question of fact, and not of law. Where the policy insures against accidental injuries “wholly and continuously disabling him [the insured] from transacting any and every kind of business pertaining to his occupation,” to constitute total disability, it is not necessary that an injury should render the insured physically unable to transact any kind of business pertaining to his occupation, but it is sufficient if the injury is such that common care and prudence require him to desist from transacting such business in order to effect a cure. This is a duty he owed to the insurer as well as to himself. [Bracketed portion theirs; citations omitted.]

Travelers’ Insurance Co. v. Plaster, 210 Ala. 607, 98 So. 909 (1924).

As noted above, the determination of whether a person is “totally disabled” within the meaning of that term is a question for the trier of fact. The trial court found that Bums was totally and continuously disabled to perform his duties as a timber cutter. The evidence shows that Burns limped from the beginning of his employment with Armes and, although he displayed exceptional effort to do the work, the walking, carrying the heavy chain saw and standing for long periods would cause his foot to swell and be very painful. He could not, as a result of swelling and pain to the left foot, do the work required of a timber cutter. Furthermore, the effort to do the work caused the tearing of scar tissue in the original injury when Burns stepped on uneven ground causing him to fall. The most that can be said of the few days that Burns attempted to work for Armes is that he made an unsuccessful attempt to return to his long-standing occupation of timber cutter and he failed due to his original injury. A person is not precluded from being considered totally disabled as a result of an unsuccessful attempt to return to work. Volunteer State Life Insurance Co. v. Davis, supra.

Key Life says next that Burns was not prevented by his injury from performing every duty of his occupation as is required by Section II of the policy in order to be considered totally disabled.

The evidence shows that Burns is a timber cutter and as such is required to walk on unlevel ground through thick underbrush and climb over fallen trees and other obstacles, to carry a heavy chain saw and at times hold it over his head to use resulting in both feet being firmly planted on the ground, and to stand for long periods of time. It was amply demonstrated that Burns could do none of these things for any length of time without his ankle swelling and causing severe pain. Key Life’s contention that Burns was not prevented from performing every duty of his occupation is without foundation in the evidence.

Key Life’s third contention based on Section II of the policy in question is that Burns was not regularly attended by a doctor.

The evidence shows that Burns was not regularly attended by a physician or osteopath after September 13, 1978, when Dr. Grissom told Burns that he could try to return to work and not to return to him unless necessary. However, Dr. Grissom testified that Burns had reached maximum recovery and there was nothing more he could do for him. The remaining testimony of Dr. Grissom and the testimony of Burns supports this statement by Dr. Grissom.

The purpose of the disputed clause in Section II of the policy is to enable the insurer to satisfy itself that the insured is actually disabled, but where there is ample proof of disability and proof that further care or attendance by a doctor is useless, the purpose is satisfied and enforcement will not be required. Russell v. Prudential-Life Insurance Co. of America, 437 F.2d 602 (5th Cir. 1971); Hodgson v. Mutual Benefit Health & Accident Ass’n, 153 Kan. 511, 112 P.2d 121 (1941); Reserve Life Insurance Co. v. Poole, 99 Ga.App. 83, 107 S.E.2d 887 (1959).

The final issue raised by Key Life is whether it should be held liable under the policy issued to Hicks when Burns was rein-jured while in the employ of Armes.

The policy provides in pertinent part:

THE COMPANY HEREBY AGREES to pay benefits ... for losses resulting from accidental bodily injuries . .. suffered by those persons actually in the employ of the Policyowner named above, whose names for the period of insurance granted hereunder, including renewal thereof, appear on the payroll records of the Policyowner during the effective period hereof.

It is without dispute that at the time Burns reinjured his left ankle, he was working for Armes and not Hicks. But, the evidence would support a finding not only that Burns had never recovered from the first injury and was totally and continuously disabled as a result of that injury, but that the second injury was nothing more than an aggravation of the first injury and was due entirely to that first injury. That being so, the trial court properly found for Burns.

The rule in Alabama is that where a loss insured against occurs while a person is in the insured’s employment the insurer is liable under the policy even though the employment is thereafter terminated. Metropolitan Life Insurance Co. v. Brown, 27 Ala.App. 602, 177 So. 178 (1937).

. In the case at bar the trial court found that Burns had been continuously and totally disabled from performing the duties of his occupation since the first injury in 1977; hence Key Life would be liable under its policy even though Burns did attempt to work for Armes and while so employed did reinjure his left ankle; the point being that liability occurred as the result of the first injury, and termination of the employment with Hicks would have no effect on Key Life’s liability.

For the reasons above stated, the judgment of the trial court is affirmed.

AFFIRMED.

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


author: HARRIS, Presiding Judge.

text:
    Willie Dee PRITCHETT v. STATE.
    6 Div. 119.
    Court of Criminal Appeals of Alabama.
    Sept. 4, 1979.
    Walter W. Furner, of Furner, Boyce, Nave & Thomason, Bessemer, for appellant.
    Charles A. Graddick, Atty. Gen. and Willis E‘ Isaac’ Asst Atty‘ Gen’’ for aPPellee-
   HARRIS, Presiding Judge.

Appellant filed a pro se petition for writ of error coram nobis seeking to overturn a 1977 conviction for robbery and a sentence of fifteen years in the penitentiary. His original conviction was affirmed by this court without an opinion in September or October, 1977.

On June 11,1979, appellant filed his petition for writ of error coram nobis in which he alleges, among other things, that the trial judge before whom he was tried was the Deputy District Attorney who presented his case to the grand jury that returned the indictment against him. A copy of the indictment is in the record before us and is signed by the Deputy District Attorney but the record is silent as to the name of the trial judge before whom he was tried and convicted.

It is clear from the record that the trial judge who presided over the petition for writ of error coram nobis was the same person who, as Deputy District Attorney, presented the robbery charge to the grand jury. The trial judge dismissed the coram nobis petition without an evidentiary hearing on June 15, 1979.

The petition further alleges that he was represented by ineffective court-appointed counsel who failed to file a motion pointing out the disqualifications of the trial judge.

Since the petition was facially sufficient, petitioner should have been afforded a hearing on the merits upon issue being properly joined. Populus v. State, 51 Ala. App. 166, 283 So.2d 617.

This cause is hereby remanded to the trial court with directions to conduct an eviden-tiary hearing on all the issues raised in the petition.

The trial court is further directed to order that a full record be made of this hearing, which should be conducted expeditiously, and a transcript of these proceedings be promptly forwarded to this court.

Remanded for further proceedings in accordance with this opinion.

All the Judges concur.

       After the trial court’s return following remand, the Court of Criminal Appeals dismissed this appeal as moot on November 5, 1979.


author: CLARK, Retired Circuit Judge. CLARK, Retired Circuit Judge.

text:
    Yvette Rena HOWARD v. STATE.
    1 Div. 101.
    Court of Criminal Appeals of Alabama.
    May 27, 1980.
    On Rehearing Aug. 19, 1980.
    Rehearing Denied Oct. 7, 1980.

      W. Gregory Hughes, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen. and Michael E. McMaken, Sp. Asst. Atty. Gen., for appellee.
   CLARK, Retired Circuit Judge.

This is an appeal from a judgment of conviction and a sentence to ten years imprisonment for manslaughter in the first degree of Barbara Young upon a trial by a jury on an indictment charging murder in the first degree. The case was consolidated for trial, on motion of defendant, with a case against the same defendant on an indictment for assault with intent to murder Betty Jo Pettaway. The jury found defendant not guilty in the other case.

The undisputed evidence shows that Barbara Young was killed by one or both of two shots of a pistol fired by defendant, that Betty Jo Pettaway was hit by another shot from the pistol fired by defendant, and that the three shots occurred in rapid succession.

The only seriously contested issue in the homicide case was as to the asserted defense of self-defense, or defense of defendant’s mother, or both, included within the defendant’s plea of not guilty.

There is no claim by either party that there is any repugnancy between the verdict in the instant case and the verdict of not guilty in the other case, but we note, to avoid question, that probably the verdict of the jury in the other case was based upon a finding in effect that defendant did not intentionally shoot Betty Jo Pettaway and that Betty Jo Pettaway was hit by a shot intended for Barbara Young.

The tragedy occurred on a Sunday evening, April 22, 1979, in the backyard of a “hit house,” a term employed by the witnesses as a house, a residence, at which liquor was sold without a license and gambling by cards was promoted.

The two alleged victims and defendant and her mother, Rosena Howard, engaged in a game of cards in a back room of the house, at which at the time were approximately twenty-five persons, most of whom were imbibing freely. At some point in the card game, defendant’s mother accused the alleged victim of the homicide of cheating. After the game broke up, defendant’s mother and Barbara Young started fighting inside the house. The fight was broken up by the intervention of others; defendant, her mother and a friend then went outside. Betty Jo Pettaway and Barbara Young followed them outside and a fight between defendant and Barbara broke out again. While the fight was going on outside, defendant’s mother obtained a pistol from her purse and struck Barbara over her eye with it. The pistol was taken from defendant’s mother by a man and given to a female from whom defendant obtained the pistol and fired the three shots while her mother and Barbara Young were fighting and while Barbara had defendant’s mother by the hair.

Many details are omitted from this summary of the evidence, which perhaps would be more confusing than helpful. There is no need for them in connection with our consideration and determination of the issues presented on this appeal, other than as they may hereafter be mentioned with reference to some of such issues in particular.

Defendant objected to the introduction in evidence of the pistol, and three empty cartridges therefrom, and accompanying expert testimony to the effect that the pistol was the one fired by defendant and that the empty cartridges had been fired therefrom. Notwithstanding appellant’s insistence to the contrary, we find that the evidence well traced the pistol and the three cartridges from the custody of defendant’s father, who testified in the case, through the hands of three officers to the witness who testified as a ballistics expert. As defendant contends, there was some discrepancy in the evidence as to who was the person who delivered the gun and empty cartridges to the expert, but there could hardly be any reasonable doubt as to the correct identity of the pistol and the empty cartridges. Furthermore, a determination of guilt or innocence of defendant could not conceivably have turned upon any possible misidentification of the particular pistol fired by defendant or any one of the three particular cartridges fired from the gun. As appellant well argues in other parts of her brief, no other pistol was involved; no cartridge other than the three cartridges was involved. Although evidence as to the identity of the pistol and the three cartridges and the fact that they were fired from the same pistol could have well been left out of the case, appellant’s contention with reference to its admission in evidence is without merit.

Contrary to appellant’s argument, we find that the statement made to the officers after defendant was taken into custody have all of the pre-Miranda and post-Miranda requirements for the admission in evidence of confessions or other inculpatory statements.

Another insistence of appellant is to the effect that although the body of the deceased was definitely shown by a testifying pathologist, on post-mortem examination, to be the body of Barbara Young there was no evidence to the effect that such Barbara Young was the same Barbara Young that had been killed by defendant. There is no semblance of any reason for believing that the body of the Barbara Young that was killed by defendant could have been misidentified as the body of the Barbara Young whom the pathologist examined. This contention is without merit.

The trial court refused the following written charge requested by defendant:

“44. I charge you, members of the jury, that the law requires the State to prove beyond a reasonable doubt that the Defendant acted in the absence of self-defense.”

It should be clear that the burden is not upon the defendant to prove his asserted defense of self-defense. In any homicide case in which there is evidence of self-defense, that is, evidence sufficient to present a jury issue as to self-defense, the burden is upon the State to satisfy the jury by the evidence beyond a reasonable doubt that defendant is guilty, and this burden is not transferred from the State to defendant by reason of applicability to the particular case of the defense of self-defense or defense of another. Even so, if any virtue is to be found in defendant’s requested charge 44, it is an oversimplification of the principles of law pertaining to the subject as comprehensively set forth in Vaughn v. State, 293 Ala. 365, 304 So.2d 6 (1974), on remand, 53 Ala.App. 744, 304 So.2d 12, cert. denied, 423 U.S. 857, 96 S.Ct. 109, 46 L.Ed.2d 83. A similar charge set forth in Wilkins v. State, 57 Ala.App. 55, 325 So.2d 926 (1975):

“The court charges the Jury that where the Defendant introduces evidence of self-defense to justify the killing of deceased, the burden is upon the State to prove beyond a reasonable doubt that the killing was not in self-defense, and unless the State has done so in this case, you must find the defendant not guilty.”

was held to be “too broad as to the burden on the State.” Charge 44 is subject to the same infirmity. Its refusal was not error.

Appellant urges error by reason of the court’s refusal of defendant’s requested charge No. 10:

“I charge you, members of the jury, that the Prosecution must prove its charge, and prove it beyond a reasonable doubt, by evidence. The assertions of counsel are not evidence.”

Appellant relies upon Morse v. State, 49 Ala.App. 203, 269 So.2d 916 (1972). In Lamar v. State, Ala., 356 So.2d 680, rev’g Ala.Cr.App., 356 So.2d 677, Justice Shores makes it clear that what was held in Lane v. State, 85 Ala. 11, 4 So. 730 (1887), relied upon in Morse v. State, supra, as to a similar charge, should be restricted to the circumstances shown in Lane in which there had been an improper argument by the prosecuting attorney. There is no contention here that there was any improper argument by counsel for the State. The record shows affirmatively that no objection was made as to any argument by counsel for either party. Charge 10 was properly refused. Brown v. State, Ala.Cr.App., 369 So.2d 56 (1979).

A part of the transcript of the court’s oral charge is as follows:

“There is one other thing in the oestion [sic except as to the supplied emphasis] of self-defense that the law says a person in self-defense is justified only in using such force as is necessary to repel an attack on him and that in the eyes of the law, if you attacked me with your fist, I don’t have the right to shoot you to stop the attack.”

The transcript also shows that at the conclusion of the court’s oral, charge the following occurred:

“... Are there any exceptions to the oral charge?
“MR. COPELAND [State’s counsel]: Maybe you could clarify. Since we are dealing with so many, it would be possible to have an assault to murder on the one and a lesser murder on the other. That it can change with the passing of just a few seconds.
“THE COURT: You mean transferring from the one she says she was shooting at to the one she hit?
“MR. HUGHES [Counsel for Defendant]: In addition to those, we would accept [sic] one portion of the Court’s charge, and I possibly could have misunderstood it when the Court said that if one were attacked by somebody with fists, that certainly there would be no right to retaliate with a gun or shoot him. I would ask the Court to add to that, that it would depend on the circumstances under which there was an attack by fists or whatever.
“THE COURT: I charge you Ladies and Gentlemen .... ”

The transcript shows that in continuing to charge the jury, the court further instructed the jury as to the point mentioned by State’s counsel, as quoted above, but did not again discuss the point made by defendant’s counsel, as quoted above.

The portion of the court’s oral charge quoted above as to the right of a person to shoot another who has attacked him with his fist is not a correct statement of the law, although it can be a very powerful and persuasive statement that the State would have the right to make in argument to a jury in its plea that a defendant should be found guilty of a homicide notwithstanding the defense of self-defense.

A correct statement of the precise applicable principle is found in the opinion of Chief Justice Stone in Scales v. State, 96 Ala. 69, 76, 11 So. 121 (1891-92):

“... Fisticuff blows do not, as a rule, inflict the grievous bodily harm, which, other means of escape being cut off, will excuse the slaying of the assailant. ‘When a man is struck with the naked hand, and has no reason to apprehend a design to do him great bodily harm, he must not return the blow with a dangerous weapon.’ — Shorter v. People, 2 Comstock, N.Y. 193.. ..”

Appellant relies upon George v. State, 145 Ala. 41, 40 So. 961 (1906), which is substantially in point as to what the trial court incorrectly stated in this case, as well as in that case. In George, the trial court had stated “that a blow from the hand or fist never justified the use of a deadly weapon.” The Supreme Court said, “The law is that a blow from the hand or fist under ordinary circumstances, neither justifies nor excuses the use of a deadly weapon.” (Emphasis supplied) It reversed the trial court for its failure to give defendant’s requested charge 1:

“Gentlemen of the jury, I charge you that an assault with the hand or fist never justifies or excuses a homicide under ordinary circumstances, and it is for you to decide whether the facts in this case are within the ordinary reason or not.”

It appears from George, supra, that there was no exception to the pertinent part of the court’s oral charge but that the erroneous instruction quoted therefrom was a material factor in the reversal by reason of the failure to give defendant’s requested charge 1.

As to the question under consideration, Dilburn v. State, 16 Ala.App. 371, 77 So. 983 (1918), is directly in point. It states in less than a one column opinion:

“The trial judge in his oral charge charged the jury:
“ ‘He [the defendant] would not be justified in using a deadly weapon if struck by the fist, or any other assault which would not likely cause serious bodily harm.’
“This was in effect charging the jury that under the evidence the defendant was not justified in using a deadly weapon, and that the blow struck by the fists was not likely to cause serious bodily harm, which was the very question then being submitted to the jury. The rule is that the killing of one who is the assailant must be under a reasonable apprehension of loss of life or of great bodily harm, and the danger must appear to be so imminent at the moment of the assault as to present no alternative of escaping its consequences except by resisting. Scales v. State, 96 Ala. 69, 11 So. 121. It was said in Shorter’s case [Shorter v. People] 2 N.Y. (Comstock) 193, 51 Am. Dec. 286, ‘When a man is struck with the naked hand, and has no reason to apprehend a design to do him great bodily harm, he must not return the blow with a dangerous weapon,’ and this expression was quoted with approval in the Scales Case, supra.
“But it is a question for the jury to satisfy itself of all the evidence in the case whether or not the defendant was in imminent and manifest danger either of losing his own life or of suffering grievous bodily harm, or that it appeared so to the mind of a reasonable man. 3 Greenl.Ev. § 116. That part of the oral charge of the court excepted to was in conflict with the foregoing views, and for that error the judgment must be reversed.”

The part of the court’s oral charge in the instant case to which an exception was taken contains the same vice as that found in the oral charge in Dilburn and requires a like result, a reversal.

There may be ground for misgiving in the conclusion just stated to be found in the action of defendant’s counsel, as shown by the transcript, in inviting the attention of the court to its erroneous instruction, but we think that to say that an exception was not taken properly and sufficiently would be hypercritical. Appellee has not taken any such position and is to be commended therefor, we think. Notwithstanding the language of the transcript stating that defendant said “accept” instead of “except to,” we are constrained to note that such reportorial error has occurred much more often in recent years than in preceding decades. We note also a misspelling of “question,” which, of course, is not attributable to defendant’s counsel. Perhaps, it would have been better for defendant’s counsel to have more definitely and positively excepted to the particular language of the court’s charge and done nothing more as was the action of defendant’s counsel in Dilburn, supra, or if he desired some amelioration of the erroneous instruction, requesting in writing a qualifying or explanatory charge as was done in George, supra. Even so, it is clear to us that defendant made known her exception to the particular erroneous instruction of the court in its oral charge and that he should not be denied the benefit of it. Even if appellee argued strongly to the contrary, our opinion would be the same. Appellee has taken no position to the contrary, and we feel that we are not justified in doing so.

We have considered appellee’s counter argument to appellant’s last insistence which chiefly is to the effect that defendant “was not entitled to assert the defense of self-defense.” We agree with appellee that the circumstances taken as a whole do not compellingly, or even strongly, disclose all of the essential elements of self-defense or the defense of another, but the case was tried almost exclusively on that issue. It was so treated by the parties and by the court. The issue was submitted to the jury. It was recognized by all concerned as the pivotal issue as to defendant’s guilt of manslaughter in the first degree. The jury found her guiltless of malice aforethought, as well as of deliberation and premeditation. For us to hold that there was no jury issue as to self-defense or defense of another would be equivalent to saying that it was not within the province of the jury to find that she was lawfully defending herself or her mother at the time she fatally shot the alleged victim. We are unable to say the submission of the issue to the jury was a mere exercise in futility upon full consideration of all the circumstances and the unanimity of view of all concerned, the State, the defendant and the court, as manifested by them or their representatives on the trial. For us to do so would be invasive of the province of the jury, which the trial court did not do except in one particular, in saying that “If you attack me with your fist, I don’t have the right to shoot you to stop the attack.” By this statement, the court pierced the heart of the only defense asserted by defendant, the only controverted issue in the case. We are not saying that without the giving of the erroneous instruction, the jury could not have well returned the same verdict that it did, but we have no doubt that it could not have found defendant not guilty without disregarding the instruction.

For the error indicated, the judgment of the trial court must be reversed and the cause remanded.

The foregoing opinion was prepared by Retired Circuit Judge Leigh M. Clark, serving as a judge of this Court under the provisions of § 6.10 of the Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the Court. The judgment of the trial court is reversed and the cause is remanded.

REVERSED AND REMANDED.

All the Judges concur.

ON REHEARING

CLARK, Retired Circuit Judge.

Appellee’s application for a rehearing is submitted in two parts.

PART ONE

A document filed by appellee on June 9, 1980, consists of an “application for rehearing,” a request for the “findings of additional facts” permitted by Rule 39(k), ARAP and “supportive brief and argument.” Eight separate categories of claimed “additional facts” are listed. In our opinion, they do not come within the purview of “additional facts” contemplated by the Rule. To a great extent they constitute conclusions or opinions reached by ap-pellee. Under these circumstances, no attempt to accede to the request is made.

The “supportive brief and argument” accompanying the application for rehearing is little different from that presented in the brief and argument on original submission. But for the matter presented in Part Two, the opinion and judgment on original submission should stand.

PART TWO

Concomitant with the filing of appellee’s application for rehearing a motion was presented by appellee under Rule 10(f), ARAP for the certification and transmittal by the Clerk of the Circuit Court to this Court of full, true and correct copy of the trial court’s oral charge, which motion was granted on June 10. The Clerk of the Circuit Court promptly complied with the order by transmitting to this Court a certified copy of the “full Oral Charge of the Court as Certified by the Court Reporter and filed in the office of the Clerk of the Circuit Court of Mobile County.”

The full oral charge of the trial court as now presented discloses that there was omitted from the transcript of the court’s oral charge on original submission the following:

“Now, of course, that could be changed by the fact if a 260 pound football tackle full back was attacking me, then to shoot to stop the attack to help a little 160 pound old man it might be different. But the law as a matter of law says that you are entitled to use only such force to repel an attack on on [sic] yourself, and as I told you just now, on a member of your immediate family.”

The part of the instruction quoted above, omitted from the transcript on original submission, is immediately after the following portion of the court’s charge furnishing the basis for the reversal on original submission:

“There is one other thing in the question of self-defense that the law says a person in self-defense is justified only in using such force as is necessary to repel an attack on him and that in the eyes of the law, if you attack me with your fist, I don’t have the right to shoot you to stop the attack.”

On July 7, 1980, appellee filed a supplemental brief in support of its application for rehearing, citing specifically the unfortunate omission on original submission of a material part of the court’s oral charge, as quoted above, that qualified what the court had just stated that we found was properly subject to the exception taken at the trial.

Appellee now says:

“The trial court’s oral charge was, when viewed in its entirety, and especially including the portion heretofore omitted, proper and correct and did not constitute grounds for reversible error.”

We are now presented with a greatly different question from that presented on original submission.

The signification of what the trial court said that formed a basis for our determination on original submission was materially qualified by what we have since learned the court said immediately thereafter. In its completeness on the particular subject, the instruction was not subject to the exception taken by defendant’s counsel, which ended by his statement, “I will ask the Court to add to that, that it would depend on the circumstances under which there was an attack by fists or whatever.” By the illustration given by the trial court, although a more appropriate one probably could have been given, the court made it clear that the principle of law it had stated was not applicable to all circumstances but that it “would depend on the circumstances under which there was an attack by fists or whatever.”

The charge as presented on original submission was offensive to the rationale of Scales v. State, 96 Ala. 69, 11 So. 121 (1891-92); George v. State, 145 Ala. 41, 40 So. 961 (1906) and Dilburn v. State, 16 Ala.App. 371, 77 So. 983 (1918). The charge in its fullness as now presented is free of such offense.

The application for rehearing should be granted and the judgment of the trial court affirmed.

APPLICATION FOR REHEARING GRANTED.

AFFIRMED.

All the Judges concur.


text:
    Ex Parte: Yvette Rena HOWARD. (Re: Yvette Rena Howard v. State of Alabama).
    80-53.
    Supreme Court of Alabama.
    Dec. 19, 1980.
   JONES, Justice.

Writ denied-no opinion.

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