text:
    CITY OF RUSSELLVILLE, a Municipal Corporation in the State of Alabama v. VULCAN MATERIALS COMPANY, a corporation.
    No. 78-235.
    Supreme Court of Alabama.
    March 28, 1980.
    Charles A. Graddick, Atty. Gen., Sarah Kathryn Farnell, Benjamin Cohen, Asst. Attys. Gen., Montgomery, for appellant.
    Macbeth Wagnon, Jr. and Gary E. Mer-inger, of Bradley, Arant, Rose & White, Birmingham, for appellee.
   SHORES, Justice.

At issue in this case is the validity of a municipal ordinance challenged on both constitutional and statutory grounds. The ordinance purports to regulate the detonation of explosives within the police jurisdiction and corporate limits of the City of Russell-ville. It is challenged by Vulcan Materials Company, which operates a limestone quarry located at the city limits. Because we agree with the trial court that the ordinance is beyond the constitutional power of the City to enact, we affirm on that ground, and pretermit discussion of the numerous other issues raised on this appeal.

The history of this litigation, insofar as pertinent, is as follows:

Vulcan, or its predecessor in interest, has operated the limestone quarry in question since 1959. The process of removing limestone rock from the quarry requires the periodic use of explosives. The evidence introduced at trial tended to show that the quarry has detonated explosives without increase in the frequency or intensity of the blasting since 1959. It is located near two residential subdivisions which, it is alleged, were created prior to the beginning of the blasting, but which have been built up considerably since that time. Residents of the subdivisions testified at trial that the blasting caused them annoyance and property damage of various sorts and that petitions had been circulated around the neighborhood for years in an attempt to halt the blasting.

In 1976, the then Attorney General filed an action in the Circuit Court for Franklin County seeking to enjoin the blasting on the theory that it constituted a nuisance within the meaning of Code 1975, § 6-5-120. Following a trial on the merits, the trial court issued an interlocutory decree instructing Vulcan to conduct its blasting so as to limit the resulting particle velocities to 0.5 inch/second at a point 1600 feet from the blast, and 0.75 inch/second 1100 feet from the blast. -

On November 21, 1977, the City Council of Russellville, after consulting with an expert in the field of vibration damage to materials, adopted Ordinance 77-113, which reads in pertinent part:

All blasting within the police jurisdiction of Russellville shall be conducted so as to cause a particle velocity of no greater than 0.4 inch/second for any occupied dwelling located within the city limits of Russellville. [Emphasis added.]

At the time this ordinance was adopted, both Vulcan and the City mistakenly assumed that the nearest dwelling to the quarry within the city limits was located at a distance of 1100 feet from the quarry. Vulcan filed this action seeking to have enforcement of the ordinance enjoined and for a declaratory judgment that the ordinance is unconstitutional and beyond the authority of the City to enact. At trial, it introduced expert testimony to the effect that a restriction lower than 1.0 inch/second does not produce any greater safety margin than that provided by a restriction of 1.0 inch/second, that being the threshold particle velocity for materials used in building construction below which no damage will occur. The relief requested was denied by decree dated August 7, 1978.

It was subsequently discovered that the city limits extend further than the parties had assumed, and that the quarry is located partially within the city limits rather than entirely within the police jurisdiction, as had been believed. Also included within the city limits as properly drawn is a house owned by Vulcan and located merely 250 feet from the blasting. The dwelling is rented and occupied by one Lonnie Grissom. This discovery required application of the 0.4 inch/second particle velocity standard to a point 250 feet from the quarry rather than 1100 feet.

On October 16,1978, Vulcan and the City filed a Joint Stipulation of Facts in which the correct location of the city limits was agreed to, and in which it was stipulated that enforcement of the ordinance would make operation of the quarry economically unfeasible. Vulcan filed a motion for relief from judgment based on this new evidence, contending that the ordinance was an unreasonable and arbitrary exercise of the City’s police power which deprived it of due process rights under both the federal and state constitutions. Specifically, it contended that the ordinance imposed restrictions drastically more stringent than required by safety considerations, without taking into consideration the extent of the economic injury Vulcan would suffer from the restrictions. While recognizing the presumption of validity accorded municipal ordinances, it argued that the City should have balanced the need to protect its citizens from excessive blasting with the loss Vulcan would incur if forced to cease blasting completely, and should have considered the availability and effectiveness of other less drastic protective measures. A new decree was entered on December 19, 1978, striking the original decree and holding the ordinance unconstitutional and void. Meanwhile, on December 8,1978, the interlocutory decree in the nuisance action was amended to reduce permissible particle velocities to 0.45 inch/second, with “a tolerance of 10% on blasting intensity of 20% of number of blasts made each month,” to be measured at a point approximately 1600 feet from the quarry.

We have recently discussed a trial court’s permissible scope of review in reviewing an action of a municipal legislative body. In City of Birmingham v. Norris, 374 So.2d 854 (Ala.1979), p. 856, we affirmed the principle that:

“. . . [T]he right of a governing body to enact . . . ordinances is not unlimited, and the ordinance must bear some substantial relation to the public health, safety, morals, general welfare, and general convenience .... ******
“. . . [I]f the [ordinance] is fairly debatable, a court will not substitute its judgment for that of the municipal government body acting in legislative capacity . . . .” [Quoting from Allen v. Axford, 285 Ala. 251, 257, 231 So.2d 122, 127 (1969).]

While the courts are reluctant to interfere with the wide discretion vested in the municipal authorities in enacting ordinances for the public welfare, the duty rests upon the courts to determine their reasonableness, ánd if an ordinance is found to be unreasonable and but arbitrary fiat, a court will not hesitate to perform that duty and strike it down. Gilchrist Drug Co. v. City of Birmingham, 234 Ala. 204, 174 So. 609, 111 A.L.R. 103 (1937). Municipal authorities are given the power in this state to prevent and to abate nuisances, but they cannot, in the exercise of this power, declare a perfectly lawful business or trade to be a nuisance and abate it when the business, trade, or thing is not in law or in fact a nuisance, or is not carried on or operated in such manner as to be likely to become a nuisance. Spear v. Ward, 199 Ala. 105, 74 So. 27 (1917); Reynolds v. Vulcan Materials Company, 279 Ala. 363,185 So.2d 386 (1966). A court of equity may enjoin the enforcement of an unreasonable or invalid ordinance when the enforcement of the same would interfere with the conduct of business or other property rights. City of Birmingham v. Leo A. Seltzer, Inc., 229 Ala. 675, 159 So. 203 (1935).

The validity of a police power regulation, therefore, primarily depends on whether, under all the existing circumstances, the regulation is reasonable, and whether it is really designed to accomplish a purpose properly falling within the scope of the police power. Crabtree v. City of Birmingham, 292 Ala. 684, 299 So.2d 282 (1974). Cities may not, under the guise of the police power, impose restrictions that are unnecessary and unreasonable upon the use of private property or the pursuit of useful activities. Leary v. Adams, 226 Ala. 472, 147 So. 391 (1933). Otherwise expressed, the police power may not be employed to prevent evils of a remote or highly problematical character. Nor may its exercise be justified when the restraint imposed upon the exercise of a private right is disproportionate to the amount of evil that will be corrected. Bolin v. State, 266 Ala. 256, 96 So.2d 582, conformed to in 39 Ala. App. 161, 96 So.2d 592 (1957). In view of the evidence introduced at trial indicating that less restrictive standards than that applied by the ordinance in question would produce the same degree of safety without having the effect of prohibiting operation of the quarry, we agree with the trial court’s finding that the ordinance is unreasonable and, therefore, unconstitutional and void. For this reason, we affirm the judgment appealed from.

AFFIRMED.

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


source: Caselaw Access Project

author:
PER CURIAM.
      MADDOX, Justice TORBERT, Chief Justice

license: Public Domain

text:
    Brenda ZILLS, etc. v. Dr. Harry G. BROWN et al.
    78-322.
    Supreme Court of Alabama.
    March 28, 1980.

      Oren R. Lewis, Jr. and Gary R. Sheehan of Lewis, Wilson, Lewis & Jones, Arlington, Va., B. T. Gardner, Jr. of Stansell, Gardner & Stolsworth, Tuscumbia, for appellant.
    Robert 0. Cox of Poellnitz, Cox, McBur-ney & Jones, Florence, for appellees.
   PER CURIAM.

This appeal by plaintiff Brenda Zills, widow and administratrix of the estate of Thomas Jerry Zills, is from judgment entered upon a jury verdict in favor of defendants, The Florence Clinic, Dr. Harry G. Brown and Dr. W. S. Bradley, Jr., in a medical malpractice action. We reverse and remand.

Both plaintiff and defendants specify numerous issues in their respective briefs, but the dispositive issue in this case is whether the trial court erred to reversal when it applied the locality rule to exclude testimony in behalf of plaintiff by medical experts, more particularly the testimony of plaintiff’s medical expert witness, Dr. John Carpenter, Jr., concerning the standard of treatment administered to Thomas Zills by Dr. Brown.

This is a medical malpractice action seeking damages for the death of Thomas Zills resulting from the negligence of Drs. Brown and Bradley, both of whom are board certified urologists, for failing to timely diagnose and properly treat Zills’ cancer of the testicle (a type known as testicular seminoma) by timely and proper removal of the diseased testicle followed by radiation therapy. Although Zills had also been examined and treated by Dr. Brown’s partner, Dr. Bradley, he was the patient of Dr. Brown and primarily in the care of the latter doctor.

During the trial of this action four medical experts testifying in behalf of plaintiff were prohibited by the trial court from giving their respective opinions as to whether the treatment of Zills’ testicular seminoma administered by Dr. Brown was in accord with the requisite standard of medical care generally adhered to in treating that disease. The prohibition was based upon the fact that neither could state he was personally familiar with the standard of care followed by urologists, or other physicians, treating seminoma in the Florence, Alabama community. Three of those four experts are out-of-state physicians who are highly qualified regarding the care and treatment of patients afflicted with semino-ma; however, none of them are personally familiar with the standard of treatment obtaining in the Florence community.

The fourth is Dr. John Carpenter, Jr., who: (1) is a specialist in the treatment of cancer; (2) is on the faculty and staff of the School of Medicine of the University of Alabama at Birmingham; (3) is a consulting physician participating in the medical information system via telephone (MIST) at the Medical Center of that school of medicine, in which capacity he has daily contact with physicians from all parts of the state and assists them in the diagnosis and treatment of cancer; (4) has consulted with numerous doctors in North Alabama in the general vicinity of Florence concerning the treatment of various types of cancer; (5) has lectured on at least one occasion in Florence at a cancer seminar; and (6) testified he was familiar with the degree of care, skill and diligence which is ordinarily used by physicians treating cancer in North Alabama and in the vicinity of Florence.

The trial court refused to allow Dr. Carpenter to testify to the quality of the treatment administered Zills by defendants because Dr. Carpenter could not state he knew:

“ * * * the degree of care, skill and diligence which was ordinarily possessed and used by physicians and surgeons in the general vicinity or general community of Florence, Alabama, during the period of 1974, 1975 with reference to their treatment of seminoma.”

Apparently, the trial court based its ruling on the further fact that Dr. Carpenter could not testify he knew whether physicians and surgeons in the Florence vicinity or community treated seminoma in the same manner as other types of cancer were treated during the years 1974 and 1975.

In medical malpractice actions, Alabama adheres to the so-called “same general neighborhood” rule regarding the standard of care owed the patient by the physician. The rule has been stated as follows:

“In attending a patient a physician or surgeon undertakes to exercise that degree of care and skill as physicians and surgeons in the same general neighborhood, pursuing the same general line of practice ordinarily exercise in like cases. * * * ” (Emphasis added.) Parrish v. Spink, 284 Ala. 263, 266, 224 So.2d 621, 623 (1969). See also § 6-5-484(a), Code 1975.

The plaintiff argues, and conceded at trial, that Alabama follows the so-called “strict locality” rule. This is inaccurate. The “strict locality” rule limits the standard of care owed to that degree of care exercised by physicians in the same geographical locality or community who are engaged in the same type practice. There is a significant distinction between the “strict locality” rule and the “same general neighborhood” rule, inasmuch as the latter is a liberalization of the former. See generally, An-not. 37 A.L.R.3d 420 (1971).

It is apparent from the record there was confusion as to which rule the trial court was applying. The confusion is occasioned by the trial court’s use of interchanging terms such as Florence, Alabama, community, neighborhood, vicinity, locality, etc. Furthermore, these terms were never defined by the trial court when plaintiff’s experts were asked by it whether they knew the standard of care exercised by physicians or surgeons in the Florence, Alabama, community in treating seminoma during 1974,1975. It appears, from a reading of the transcript, in its entirety, the trial court was applying a very strict locality rule regardless of the words or phrases it used when referring to the standard of care.

Plaintiff vigorously urges that Alabama should abolish its present rule and adopt a rule of a national standard of care or, at least, a state-wide standard of care for physicians, particularly for specialists. We cannot, in this appeal, address that argument as error, because the record does not reflect a proper challenge to the “same general neighborhood" rule. We will, however, comment on this later in this opinion.

Plaintiff contends she argued extensively, before trial, that the present Alabama “same general neighborhood” rule does limit the standard of care owed by doctors and should be abolished; however, such arguments are not a part of the record. This court is bound by the record before it; and the burden is on the appellant to perfect and prosecute the appeal as required by law and the rules of this court and to see that all proceedings before the trial court are contained in the record on appeal. See Wilson v. Smith, 289 Ala. 374, 267 So.2d 446 (1972); J. H. Morris, Inc. v. Indian Hills, Inc., 282 Ala. 443, 212 So.2d 831 (1968). Plaintiff further omitted to preserve a challenge to Alabama’s “same general neighborhood” rule by failing to properly object, stating adequate grounds, to the trial court’s oral instructions or its refusal of her written requested instructions to the jury regarding this question. See Lollar v. Alabama-Power Co., 371 So.2d 9 (Ala.1979); Odom v. Linsey, 365 So.2d 664 (Ala.1978).

We recognize that locality rules regarding standards of medical care, whether strict or liberalized, have come under attack in many jurisdictions, as well as by certain legal commentators. See, e. g., Speed v. State, 240 N.W.2d 901 (Iowa 1976); Blair v. Eblen, 461 S.W.2d 370 (Ky.1970); Shilkret v. Annapolis Emergency Hospital Association, 276 Md. 187, 349 A.2d 245 (1975); Shier v. Freedman, 58 Wis.2d 269, 206 N.W.2d 166 (1973). See generally, Annot., 37 A.L.R.3d 420 (1971); Annot., 21 A.L.R.3d 953 (1968); Medical Specialties and the Locality Rule, 14 Stan.L.Rev. 884 (1962); The Rise and Gradual Fall of the Locality Rule in Medical Malpractice Litigation, 18 De Paul L.Rev. 408 (1969). By holding that plaintiff did not properly preserve a challenge to Alabama’s locality (general neighborhood), rule, we are not determining that we could not examine the validity and viability of that rule if a proper challenge to it was presented for our review.

From the record, it is apparent that plaintiff attempted to try the case within Alabama’s “same general neighborhood” rule as that rule was interpreted by the trial court. It is also clear the trial court committed reversible error in its application of the rule when Dr. Carpenter was not permitted to give his opinion regarding the standard or quality of care Thomas Zills received from defendant doctors.

It appears without question that Dr. Carpenter was competent to testify as a medical expert about the treatment administered to Thomas Zills regardless of which rule is applied as to defendant doctors’ duty of care. Ordinarily, the law requires expert medical testimony as to what is or is not the proper practice, treatment, or procedure, in a medical malpractice case; the lack of such evidence is a lack of proof of negligence and is fatal to a plaintiff’s case. Parrish v. Spink, supra. Some of the exceptions to this rule are stated in Parrish. Among other exceptions are those instances where a recognized standard or authoritative medical text or treatise is employed to prove what is or is not proper practice, treatment, or procedure. The trial court’s application of the locality rule made it impossible, as a practical matter, for plaintiff to meet the burden of proof concerning the proper degree of care owed Zills. The trial court held, essentially, that the only persons qualified to render expert testimony about the quality of the treatment administered Zills were those physicians qualified to treat seminoma, a rare cancer, in a very narrow region ambiguously referred to as the Florence community, during the period 1974, 1975.

This application of the locality rule, if applied consistently (it was not), made the two defendant doctors the only medical experts qualified to testify about the proper standard of care owed Zills. Obviously, the rule was not applied consistently when one of the defense witnesses, a local pathologist, was held competent to testify about the quality of treatment Zills received even though that pathologist did not treat semi-noma or cancer. No error was preserved in this respect, however, because plaintiff did not object to the questions put to that witness on this subject.

As mentioned earlier, the “same general neighborhood” rule is a liberalized modification of the “strict locality” rule. Again, see generally, Annot., 37 A.L.R.3d 420 (1971). Jurisdictions applying the “neighborhood” rule recognize that an inadequate standard of care might result if the degree of care exercised should be merely that of the community in which the defendant practices. See Geraty v. Kaufman, 115 Conn. 563, 162 A. 33 (1932). See also, Fitzmaurice v. Flynn, 167 Conn. 609, 356 A.2d 887 (1975). In Geraty, the Connecticut court recognized that a physician might reasonably be expected to know the practices and methods of physicians in similar communities outside his own community and, therefore, it would be proper for a physician to testify to the general practice throughout the state. See also, Katsetos (Estate of Katsetos) v. Nolan, 170 Conn. 637, 368 A.2d 172 (1976). Other courts hold that an out-of-state expert may testify if the expert is familiar with the standard of care observed in defendant’s community, or a similar community, even though the standard of care observed is that of skilled physicians and surgeons in the “vicinity” of the defendant’s community. See, e. g., Riley v. Layton, 329 F.2d 53 (10th Cir. 1964) (applying the law of Utah). Even where there is adherence to a “strict locality” rule, some jurisdictions only require expert witnesses to possess such knowledge of the applicable standard of care as to enable the witness to render an informed opinion. Certainly, these jurisdictions do not require medical experts to practice or reside in defendant-physician’s community. See, e. g., Raitt v. Johns Hopkins Hospital, 274 Md. 489, 336 A.2d 90 (1975). See also Loftus v. Hayden, 391 A.2d 749 (Del.1978).

Although we cannot so hold in this case, for reasons previously stated, we are inclined to the view that Alabama’s “same general neighborhood” rule does in fact encompass a national standard of care for reasonably skilled physicians acting in the same or similar circumstances, unless there is evidence that demonstrates such a national medical neighborhood standard could not, because of justifiable circumstances, be adhered to. We deem the language “same general neighborhood” to refer to the national medical neighborhood or national medical community, of reasonably competent physicians acting in the same or similar circumstances. We are of the opinion that Alabama’s neighborhood rule, which was recently codified in § 6-5-484(a), Code 1975, is an enlightened one which takes into account the realities extant in the present day national medical world, community, or neighborhood; no matter which term one chooses. The rule logically recognizes that today there is no lack of opportunity for a physician or surgeon to keep abreast of the advances made in his profession and to be familiar with the latest methods, procedures, and practices adopted.

Locality rules have always had the practical difficulties of: (1) a scarcity of professional people in a locality or community qualified to testify; and (2) treating as acceptable a negligent standard of care created by a small and closed community of physicians in a narrow geographical region. 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.

In this case, Dr. Carpenter had adequate knowledge of the standard of care utilized in the treatment of cancer in the “neighborhood” of Florence, Alabama, so that he should have been allowed to give his informed opinion of the proper treatment Zills should have received. When Dr. Carpenter was not permitted to give such testimony, reversible error occurred.

Having decided that a locality rule was improperly applied and the case should be remanded for new trial, the other allegations of error by plaintiff are pretermitted from consideration and need not be addressed.

For the reasons assigned the judgment is due to be, and is hereby reversed, and the case remanded for further proceedings not inconsistent with this opinion.

REVERSED AND REMANDED.

BLOODWORTH, FAULKNER, JONES and EMBRY, JJ., concur.

ALMON, SHORES and BEATTY, JJ., concur in result.

MADDOX, J., concurs specially.

TORBERT, C. J., dissents.

MADDOX, Justice

(concurring specially).

I concur in the result only, because I cannot agree with the plurality’s suggestion that Alabama should adopt a national standard of care for physicians who perform specialized professional services. On the other hand, neither can I agree with the Chief Justice, who dissents, because I think that he interprets Alabama’s “same general neighborhood” rule much too narrowly. Because I am unable to agree with either the plurality or the dissent, I feel compelled to delineate the specific area of -my disagreement, and by way of this special concurrence, I hope to point out why I think Alabama’s “same general neighborhood” rule, coupled, as it is, with the “same general line of practice” requirement, is not that difficult to apply, and why I think that an expert witness should be permitted to testify, if he can state that he is familiar with the standard of care ordinarily practiced by other physicians, actual or hypothetical, who are similarly situated with the defendant physician, that is, with regard to the general character of the community in which the defendant physician practices, and as to the general line of practice in which he is engaged. I will also suggest how such a rule would carry out the original intent of the so-called “locality rule,” by providing the fact finder with credible evidence of the standard of care a “hypothetical” doctor, acting under the same or similar circumstances, would have exercised.

First, let me state that I do not believe that the “locality rule” was designed to immunize doctors from liability for their negligent acts. At best, it was fashioned to help the fact finder decide when a doctor had failed to follow the appropriate standard of care.

The latest chapter in the history of the “locality rule” was written in 1976, when the legislature adopted the Alabama Medical Liability Act, which, on the one hand, was designed to assist providers of medical services in coping with an ever increasing number of medical malpractice suits, but which, on the other hand, provided that providers of medical services should adhere to a prescribed standard of care, which, as regards physicians, surgeons and dentists, was stated as follows:

“(a) In performing professional services for a patient, a physician’s, surgeon’s or dentist’s duty to the patient shall be to exercise such reasonable care, diligence and skill as physicians, surgeons, and dentists in the same general neighborhood, and in the same general line of practice, ordinarily have and exercise in a like case. . . .” Code Í975, § 6-5-484.

This standard of care which the legislature adopted follows very closely the standard of care specified and formulated in prior court decisions, and commonly denominated the “locality rule.” Because the standard of care established by the legislature does track former court decisions, I would be persuaded to follow the reasoning of the Chief Justice, and indeed that of the trial judge, but for the fact, as I have stated before, that I think both the trial judge and the Chief Justice interpret the “same general neighborhood” rule much too restrictively. I especially feel that the Chief Justice is mistaken when he suggests that the result we reach today effectively overrules prior decisions. I do not think so.

I think that the problem with the “locality rule” results from the fact that courts, from the beginning, have taken a simple rule and have made it much too complex. The original purpose of the so-called “locality rule” was to allow an expert to assist the jury by testifying to the standard of care a “hypothetical” physician, similarly situated, would have exercised. In ordinary negligence cases, the jurors themselves are able to determine what a “reasonable man” would have done, but when they are asked to determine whether a professional person has been negligent or not, they need assistance from other professionals to determine what a “reasonable professional” would have done, under similar facts and circumstances. The “locality rule” was designed to assure a doctor that he would be measured against a doctor similarly situated — no more, no less.

In an ordinary negligence case,' the jury is instructed that negligence is the doing of an act, or the failure to do an act, which a reasonable, prudent man would not have done, or would have done, under similar facts and circumstances. In a medical malpractice case, the “reasonable, prudent man” test is inappropriate, but why shouldn’t an expert, who is shown to have sufficient knowledge of the profession and how it is practiced, as Dr. Carpenter was here, be permitted to give his opinion on the standard of care which a reasonable, prudent physician, acting under similar facts and circumstances, would have done or would not have done? Wouldn’t such a question give' to a defendant doctor the benefit of having his conduct measured against a “hypothetical doctor” who was practicing in the “same general neighborhood” and in the “same general line of practice?” I think so; therefore, I think the defendant doctor would get all the protection the “locality rule” was ever designed to give him.

Certainly, the “locality rule,” fashioned for a particular purpose, was not designed to immunize, but was drafted as it was to make sure that a doctor, whether practicing in a small community or in an urban medical complex, would be measured against a “hypothetical doctor,” who was similarly situated.

Construed in this manner, the rule would provide that professionals called as witnesses would be better able to understand the scope of the rule, courts would be better able to apply it, and jurors, properly instructed, would be better able to comprehend whether the defendant was liable.

TORBERT, Chief Justice

(dissenting).

I respectfully dissent from that portion of the plurality opinion which holds that the trial judge improperly applied the locality rule and committed reversible error in refusing to admit the testimony of Dr. Carpenter on the ground that he lacked adequate knowledge of the standard of care utilized in the treatment of cancer in the “neighborhood” of Florence, Alabama. I would hold that the trial court properly applied the locality rule as it is set forth in our case law and in the 1975 Code of Alabama, and I therefore would affirm.

The degree of care and skill to which a physician is held under Alabama law is that degree of care and skill that physicians in the same general neighborhood pursuing the same general line of practice ordinarily exercise in like cases. Black’s Law Dictionary defines “neighborhood” as: “A place near; an adjoining or surrounding district; a more immediate vicinity; vicinage.” Citing Connally v. General Construction Company, 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322. Black’s Law Dictionary (5th ed. 1979).

The plurality opinion, in dicta, states: Although we cannot so hold in this case, for reasons previously stated, we are inclined to the view that Alabama’s “same general neighborhood” rule does in fact encompass a national standard of care for reasonably skilled physicians acting in the same or similar circumstances, unless there is evidence that demonstrates such a national medical neighborhood standard could not, because of justifiable circumstances, be adhered to. We deem the language “same general neighborhood” to refer to the national medical neighborhood or national medical community, of reasonably competent physicians acting in the same or similar circumstances.

The expansive interpretation which the plurality prefers to give to the term “same general neighborhood” is in direct conflict with the interpretation given to that term by the Fifth Circuit Court of Appeals applying Alabama law. In Watkins v. United States, 589 F.2d 214 (5th Cir. 1979), that court, applying Alabama law, took note that the plaintiff’s witness qualified as an expert on the subject of the standard of • care of physicians in the “same general neighborhood” as the defendant doctor. The “same general neighborhood” as applied by the Fifth Circuit in that case had reference to the city and surrounding areas in which the defendant doctor practiced:

Dr. Corley, who qualified as an expert in medical practices in both the military and the Huntington [Huntsville?], Alabama area, indicated that the practice of pré-scribing a large amount of Valium to an unknown patient without asking the patient if he had a history of mental problems and without checking for records with a psychiatric clinic on the same military installation fell below the standard of care in the medical community. A doctor’s treatment is negligent if it falls below that standard of care.

Watkins v. United States, 589 F.2d 214 at 217 (5th Cir. 1979) (emphasis added). In Lea v. Family Physicians, P.A., 517 F.2d 797 (5th Cir. 1975), the Fifth Circuit Court of Appeals, applying Alabama law, held that there was insufficient evidence to present a jury issue as to whether the physician was negligent in failing to give the patient specific instructions to report any worsening of her condition, but took note that the climax of the testimony given by plaintiff’s expert' witness was as follows:

Q. . I’ll ask you whether or not you have a professional opinion as to whether the care and treatment given Mrs. Lea by Dr. Grant or Dr. Haynes during the time she was under their care was good, acceptable medical care and treatment in the general vicinity of Pell City, Alabama, by general practicing doctors?
A. Yes, sir, I think it was.

Lea v. Family Physicians, P.A., 517 F.2d 797 at 801 (5th Cir. 1975).

The term “same general neighborhood” as it has evolved and has been interpreted by the courts of Alabama and federal courts applying Alabama law was codified by the legislature in Code 1975, § 6-5 — 484.

In performing professional services for a patient, a physician’s, surgeon’s or dentist’s duty to the patient shall be to exercise such reasonable care, diligence and skill as physicians, surgeons, and dentists in the same general neighborhood, and in the same general line of practice, ordinarily have and exercise in a like case.

Code 1975, § 6-5-484 (emphasis added).

The interpretation of the “same general neighborhood” as the same community or city in which the doctor practices and its surrounding areas is solidly entrenched in Alabama case law. The legislature of Alabama manifested in Code 1975, § 6-5-484, its intention to adopt the locality rule as it is set forth in the case law of Alabama. This express manifestation of legislative intent should not be ignored by this Court. The abandonment of the locality rule is a legislative, not a judicial, prerogative. Bly v. Rhoads, 216 Va. 645, 222 S.E.2d 783 (1976).

The plurality argues that its broad interpretation of the locality rule is dicta and that its reversal of the trial court is in fact based on the following: “In this case Dr. Carpenter had the adequate knowledge of the standard of care utilized in the treatment of cancer in the ‘neighborhood’ of Florence, Alabama so that he should have been allowed to give his informed opinion of the proper treatment Zills should have received.” Unless the plurality is implicitly giving the term “neighborhood” the expansive interpretation favored by the plurality in dicta, then the record fails to support the above statement of the plurality:

BY THE COURT:
Q. Do you know the degree of care, skill, and diligence which was ordinarily possessed and used by physi-. cians and surgeons in the general vicinity or general community of Florence, Alabama, during the period of 1974, 1975, with reference to the treatment of seminoma?
A. No.

R. 886.

BY THE COURT:
Q. Do you know whether the physicians and surgeons in the Florence vicinity or general community treated semi-noma the same as they did other types of cancer in the years 1974 and ’75?
A. Specifically about seminoma in Florence, I do not know.
MR. LEWIS: WE OBJECT TO THE “FLORENCE”, IF IT PLEASE THE COURT.
BY THE COURT:
Q. Well, the question is not specifically Florence but in the general vicinity or general community of the Florence area and with the specific years ’74 and ’75.
A. I would say I do not know.
THE COURT: All right.

R. 887.

The plurality’s holding implicitly overrules a long line of Alabama cases which have adopted the “same general neighborhood” standard and have interpreted that phrase to mean the city or community in which a doctor practices and the surrounding areas. If the plurality wishes to rewrite Code 1975, § 6-5-484, so that a national standard of care rather than “the same general neighborhood” standard is used to judge a doctor’s conduct, the plurality should at least recognize explicitly that they are overturning the established Alabama case law on this subject and ignoring the Alabama statute on point.

I would hold that the trial court properly applied the locality rule as set forth in the case law of Alabama and codified in the 1975 Code of Alabama, and that the trial court properly refused to admit the testimony of Dr. Carpenter and therefore the ruling of the trial court should be affirmed.

      . To become a board certified urologist a doctor must graduate from a medical school accredited by the American Medical Association, complete an internship and residency in urology in programs accredited by the American Medical Association, and pass both oral and written national board examinations concerning urological diseases and treatment.

        .Moore v. Smith, 215 Ala. 592, 111 So. 918 (1927); Orange v. Shannon, 284 Ala. 202, 224 So.2d 236 (1969); Parrish v. Spink, 284 Ala. 263, 224 So.2d 621 (1969); Lea v. Family Physicians, P.A., 517 F.2d 797 (5th Cir. 1975); Watkins v. United States, 589 F.2d 214 (5th Cir. 1979).

      . Code 1975, § 6-5-184.

      . Note 1, supra.

      . Note 1. supra.


author: BEATTY, Justice.

text:
    CRAWFORD COAL COMPANY, INC. v. Edward E. STEPHENS and wife, Ruth E. Stephens. CRAWFORD COAL COMPANY, INC. v. Rufus Joel KING and Norma Jo King.
    Nos. 78-328, 78-329.
    Supreme Court of Alabama.
    March 28, 1980.

      McCoy Davidson, of Roberts & Davidson, Tuscaloosa, for appellant.
    J. Paul Whitehurst, of Henley, Clarke & Watson, Northport, for appellees.
   BEATTY, Justice.

Plaintiffs, Mr. and Mrs. Edward E. Stephens and Mr. and Mrs. Joel King, filed suit for damages against Crawford Coal Company [“Crawford”] alleging that Crawford’s negligence or wantonness in conducting its strip mining operations proximately resulted in injury to their real property. Plaintiffs also alleged that the mining operation was a private nuisance. After a consolidated trial on the merits, a jury returned verdicts in favor of both sets of plaintiffs. Defendant now appeals from the denial of its motion for a new trial. We affirm.

The record reveals that defendant moved into Coaling, Alabama to strip mine in April of 1976. In conjunction with its strip mining operation, Crawford utilized explosives to remove the overburden from deposits of coal in the earth. Plaintiffs, who lived near the blasting sites, initially were disturbed by the noise of the blasting and the vibration they felt in their dwellings after some of the explosions. A few months after Crawford had begun strip mining in the area, plaintiffs began to notice certain defects in their residences which allegedly had not been present before. For example, Mr. and Mrs. Stephens testified that large cracks appeared in the foundation of their house, as well as in the floor, the doors, the walls and the fireplace. Some of the inside doors would not fit squarely into their openings, and a number of nails pulled out of the walls. Also, the floor “buckled up” through the center of the house and several cabinets pulled away from the walls. Mr. and Mrs. King’s testimony indicated that they experienced similar difficulties beginning in the summer of 1976.

Crawford Coal moved out of the vicinity of plaintiffs’ homes in the latter part of the summer of 1977. Mr. Stephens testified that before Crawford began blasting, his property was worth $40,000; after defendant left the area, Stephens opined that his property was only worth $25,000. Mr. King’s testimony indicated that the value of his property before the blasting started was $45,000; afterwards, he estimated the value at $25,000. The record also contains evidence concerning the expenditures necessary to repair the damage to the houses. Maxie Holloway testified that the cost to repair the Stephens residence would be about $6600, while approximately $11,000 would be required to correct the defects in the King home. Another witness, Joe Bell, estimated that the cost to repair the damage to either of the houses would be slightly in excess of $3,000.

After Crawford Coal moved out of the vicinity of the plaintiffs’ property, another company, Basin Coal Company, moved into the same general area and began strip mining. Basin also used explosives in mining the area, and Mr. and Mrs. Stephens both testified, over defendant’s objection, that the blasting done by Crawford was more severe than that done by Basin. Mrs. King’s later testimony to the same effect was admitted without objection.

At the conclusion of the evidence, the trial court gave a number of written instructions requested by plaintiffs. Among these were several on the issue of damages which, in effect, authorized the jury to award damages to plaintiffs for the permanent injury to their property. For example, plaintiffs’ Instruction 3 states:

The Court charges the jury that if, after consideration of all the evidence in the ease they should find the issues in favor of the plaintiffs, that [sic] they must award damages to the plaintiffs for the permanent injury to their land, and the measure of damages is the difference between the value of the land immediately prior to the blasting, and the value of the land immediately after the damage caused by the blasting.

After deliberation, the jury returned a general verdict in favor of plaintiffs King for $21,000, and a general verdict for plaintiffs Stephens in the amount of $16,000. Judgment was entered on these verdicts.

Crawford first contends that the trial court erred in admitting certain evidence over its objection:

(1) the testimony by Mr. and Mrs. Stephens generally comparing the severity of Crawford’s blasting to that done by Basin; and

(2) testimony by Professor Thomas A. Simpson to the effect that the blasting done by Crawford was done in an improper manner and that the improper blasting techniques were the cause of the damage to plaintiffs’ houses. It appears to us that the evidence was properly admitted and, in any event, any error committed by the trial court was error without injury under ARAP 45.

Defendant, in objecting to the questions to Mr. and Mrs. Stephens regarding the comparative severity of the blasting conducted by Crawford, did not specify any ground of objection. Defendant now asserts that the evidence was inadmissible because there was no showing that the conditions under which it blasted were substantially similar to those present when Basin was blasting. The long-standing rule in Alabama is that when “the ground of objection to the admission of evidence was general or no ground was stated, the action of the lower court in overruling such objection will be sustained unless the evidence is ‘patently inadmissible.’ ” Tankersly v. Webb, 263 Ala. 234, 236, 82 So.2d 259, 261 (1955). The testimony by the Stephenses in this case was not “patently inadmissible,” for other legal evidence could have established that the required similarity of conditions existed at the time of the blasting done by Basin and that done by Crawford. Although the specific objection showing the absence of the proper predicate might properly have been sustained, under the circumstances of this case we find no error in the trial court’s admission of the testimony. See Housing Authority of the City of Decatur v. Decatur Land Co., 258 Ala. 607, 64 So.2d 594 (1953). In any event, any error on the part of the trial court was rendered harmless by the subsequent introduction, without objection, of Mrs. King’s testimony that Basin’s blasting was mild compared to Crawford’s. See Schoen v. Schoen, 271 Ala. 156, 123 So.2d 20 (1960).

Defendant next asserts that some of the expert testimony of Professor Simpson constituted impermissible expressions of opinion upon ultimate issues in the case. It is alleged that the trial court erred in admitting the following evidence over defendant’s objection:

Q. Mr. Simpson, what is your opinion as to whether or not the blasting activities were heavier than reasonably necessary?
[COUNSEL]: We object.
THE COURT: Overrule.
Q. You may state.
A. I feel that the blasting was unduly — was not done in a proper manner.
[COUNSEL]: We move to exclude, that.
THE COURT: Overrule.
Q. And Professor Simpson, do you-have an opinion as to whether or not the overburden consisting of rock and dirt which you described in the blasting operation at Coaling of Crawford Coal Company in Coaling could have been removed with less heavy blasting than the blasting done by the defendant corporation as indicated by the records you have exam-. ined?
[COUNSEL]: We object.
THE COURT: I will let him express an opinion.
Q. Do you have an opinion?
A. Yes.
Q. You may answer.
A. My opinion is that the blasting was done in an improper manner. It was overloaded. It could have been done with less explosives.
Q. Do you have an opinion, Professor Simpson, if the damage that was done to the plaintiffs’ homes, to the King home and to the Stephens home by the blasting as you have testified that the blasting must have been improperly done?
A. Yes, I have.
Q. What is your opinion?
[COUNSEL]: We object.
THE COURT: Overrule.
Q. What is your opinion?
A. My opinion is the blasting was improperly done or there would not be damage to the houses.

The objections to the questions concerning whether the blasting was heavier than was reasonably necessary were properly overruled. Virtually identical questions were approved by this Court in Harbison-Walker Refractories Co. v. Scott, 185 Ala. 641, 64 So. 547 (1914), and in Marigold Coal, Inc. v. Thames, 274 Ala. 421, 149 So.2d 276 (1963). Professor Simpson’s testimony to the effect that improper blasting techniques caused the damage to the houses was also properly admitted. The witness, a professional engineer and geologist familiar with the effects of blasting on surrounding structures, had examined the physical condition of plaintiffs’ property after the injury and before the property had been repaired. As he had formed an expert opinion about the cause of the damaged condition of the premises, it was not error for the trial court to allow Professor Simpson to express that opinion. See Crawford Johnson & Co. v. Pryor Motor Co., 219 Ala. 108, 121 So. 388 (1929).

Defendant Crawford also argues that the lower court erred in instructing the jury that the measure of damages for injuries to realty is the difference between the reasonable market value of the property before and after the property was injured. Although Crawford concedes that the charge was correct as a general proposition of law, it is urged that under the facts of this case the jury should have been instructed on the effect of the evidence of the cost to repair the property. While we may agree with the defendant arguendo that the charge was incomplete because it did not cover the law of damages for temporary injury to realty (See Fuller v. Fair, 202 Ala. 430, 80 So. 814 (1919)), nevertheless defendant has not demonstrated that the trial court’s alleged error probably injured its substantial rights as is required under ARAP 45. See, e. g., Holley v. Seaboard Air Line Railroad Co., 291 Ala. 510, 283 So.2d 168 (1973). The mere fact that an incomplete instruction, otherwise proper, was given does not mandate reversal when, as here, the case was submitted to the jury on evidence that would have justified damages in excess of those actually awarded.

We have examined the remaining contentions advanced by defendant and have concluded that they lack, merit. As a result the decision of the trial court must be, and is, affirmed.

AFFIRMED.

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


author: MADDOX, Justice.

text:
    Cecil Edward CALLOWAY v. Chan Vest LEMLEY.
    No. 78-447.
    Supreme Court of Alabama.
    March 28, 1980.

      J. Earl Langner, Birmingham, for appellant.
    Edgar M. Elliott, of Rives, Peterson, Pet-tus, Conway, Elliott & Small, Birmingham, for appellee.
   MADDOX, Justice.

Plaintiff sued the defendant seeking damages for personal injuries allegedly sustained in a motor vehicle collision. From a judgment entered pursuant to a jury verdict for the defendant, plaintiff appeals and raises four issues:

(1) Was opposing counsel’s reference to plaintiff’s expert witness as a “hired gun” unduly prejudicial?

(2) Did the court err in refusing to instruct the jury on the definition of an “expert,” as requested by the plaintiff?

(3) Did references by the defendant’s counsel to the plaintiff’s insurance carrier prejudice the plaintiff? and,

(4) Did the trial court err to reversal in not permitting the plaintiff’s counsel on voir dire to question prospective jurors as to whether they were able to avoid sympathy for the defendant because the driver of his vehicle was killed in the incident.

The facts are fairly simple. Plaintiff, accompanied by his son, was driving his tractor-trailer rig northbound on U. S. Highway 31 in northern Jefferson County. Terry Lemley, the nephew and employee of the defendant, was driving the defendant’s van southbound on the same highway. The vehicles collided. Terry Lemley was killed instantly. Plaintiff suffered injuries to his neck and spine for which he brought suit.

The crucial factual issue at trial was which vehicle, immediately prior to collision, crossed the center line of the road. Law enforcement authorities testified that in their opinion, the plaintiff was on the wrong side of the road. Plaintiff presented the testimony of one Dr. Antrim, an accident reconstruction expert, who testified that it was his opinion that Terry Lemley was driving on the wrong side of the road.

I

During final arguments, counsel for the defendant made the following remarks concerning plaintiff’s expert witness:

“MR. ELLIOTT: And not only that, he hasn’t ever driven a tractor-trailer rig in his life. And he comes up here and purports to reconstruct — you know, lawyers, we’ve been around here awhile. We’ve got what you called ‘Hired Guns’, that is, you hire somebody who says he’s an expert, and it doesn’t take a lot of qualifications to be able to testify. It’s up to the jury to either accept it or reject it, and you train him at somebody’s expense, and he’s hired at — If I have ever seen what we call a ‘hired Gun’, it’s Dr. Antrim in this case. Why do I say that? Here is a man who admitted that he testified in favor of a drunk who sued the Alabama Power Company—

“MR. LANGNER: Now, wait—
“MR. ELLIOTT: —When he ran off the road and hit a post. He did—
“MR. LANGNER: He didn’t say that at all.
“MR. ELLIOTT: —Certainly he did.
“MR. LANGNER: And I don’t — That’s got nothing to do with our case, what he did in some other case.
“THE COURT: Let me give him a ruling. The Court’s ruling is that the objection in that form, any ruling that I make might be viewed as a comment on the evidence.
The jury heard what was said in that regard; it’s not for the Court to say, but I’ll overrule, and I’ll caution the jury that this is argument. All right.
“MR. ELLIOTT: It is argument, and it’s something that you need to consider when you decide whether you are going to believe Dr. Antrim or you are going to believe Deputy Creel.”

We will not address the question whether plaintiff’s counsel properly stated his objection. It is clear that the court overruled it and cautioned the jury that counsel’s remarks were argument and that they heard the evidence.

We do not find the reference to Dr. An-trim as a “hired gun” prejudicial error to reverse. The record shows that Dr. An-trim’s qualifications as an “accident reconstruction expert” were hotly contested. Dr. Antrim had testified only once before — in a trial in which he testified for a plaintiff who had sued the Alabama Power Company for injuries he received when he ran into a power pole. There was evidence presented that the plaintiff in that prior case had been driving while intoxicated, Also, it was acknowledged by the plaintiff’s counsel during his rebuttal argument that the expert is a hired professional who deserves to be compensated for his services.

“In argument to the jury, counsel may not argue as a fact that which is not in evidence, but he may state or comment on all proper inferences from the evidence and may draw conclusions from the evidence based on his own reasoning.” Adams v. State, 291 Ala. 224, 228, 279 So.2d 488, 492 (1973). Witnesses may not be abused, however, or facts from other cases indiscriminately injected into the case at bar. See, Birmingham Electric Co. v. Bryan, 25 Ala. App. 556, 150 So. 560 (1933). By finding that the reference to a “hired gun” is not prejudicial, we should not be understood as approving its usage in a case where experts testify and are compensated for their .services.

We do find that the plaintiff was not prejudiced or the witnesses abused by counsel’s remarks in this case.

II

Plaintiff alleges the court erred in refusing to submit to the jury the following requested instruction:

“REQUESTED CHARGE 22: The Court charges the jury that an expert witness is one who by education, training and/or experience has attained such skill, knowledge or experience of some science, profession, business or occupation, not of common knowledge to the average layman.”

The court, during his oral charge, advised the jury to weigh the credibility of all the witnesses and make their judgment accordingly. Both parties presented expert testimony.

The requested instruction, taken verbatim from Alabama Pattern Jury Instructions 15.07 would have been appropriate to give, but it was not prejudicial error for the trial judge to refuse it, especially since the plaintiff did not request the court to instruct the jury on the weight to accord an expert’s testimony. See APJI 15.09.

III

On several occasions, defendant’s counsel made reference to the plaintiff’s insurance carrier, thé Travelers Insurance Company. Travelers originally retained Dr. Antrim to investigate the incident only a few hours after it occurred.

It is true that counsel may not make reference to another party’s insurance for the sole purpose of showing the jury that the party will not have to pay a judgment personally if one is returned against him, [Gwin v. Church, 272 Ala. 674,133 So.2d 880 (1961)]; however, one may make reference to an insurance carrier for the purpose of showing the fact that the witness has been retained by the carrier for the purpose of preparing evidence to be used in the case.

We find the plaintiff was not prejudiced by the references to his own insurance carrier.

IV

It is axiomatic that while “ . . . wide latitude should be accorded the parties in their voir dire examination of prospective jurors touching their qualifications, interest or bias, the extent of the examination is largely discretionary with the trial court.” Thompson v. Havard, 285 Ala. 718, 724, 235 So.2d 853, 859 (1970). We have examined the voir dire examination conducted by both parties and find no abuse of the trial court’s discretion.

The judgment below is due to be affirmed.

AFFIRMED.

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


author: JONES, Justice.

text:
    STATE of Alabama v. Richard H. MOORE et al.
    No. 78-586.
    Supreme Court of Alabama.
    March 28, 1980.

      James C. Wood, Sp. Asst. Atty. Gen., Mobile, for appellant.
    Samuel L. Stockman, of Stockman & Bedsole, Thomas A. Johnston, III, of Howell, Johnston, Langford, Finkbohner & Lawler, Mobile, for appellees.
   JONES, Justice.

Appellant, State of Alabama, initiated proceedings to condemn a portion of a tract (where the owners/Appellees operate a fast food establishment) in order to widen U. S. Highway 98 which abuts the subject property. The project also called for construction of a raised median which would eliminate the direct access to Appellees’ establishment previously used by westbound traffic oh the highway.

The Probate Court issued an order condemning the property and assessing damages at $70,000. Both sides appealed to the Circuit Court of Mobile County. The trial Court entered judgment for Appellees upon a jury verdict, assessing damages against the State in the amount of $100,000. The State appeals, alleging the trial Court erred in refusing the following requested jury charge:

“I charge you that the defendants have no property right in the continuation or flow of traffic directly into their property from traffic westbound on U. S. Highway 98 and you should not consider the erection of the median strip as an element of damage in this case.”

The Court, instead, charged the jury that the loss in traffic flow to condemnees’ business, though not a separate item of damages, was a factor to be considered in arriving at condemnees’ compensable damages as a result of the partial taking.

The State contends that the reduced flow of traffic to Appellees’ fast food establishment resulting from the construction of a median strip as part of the overall highway improvement was improperly considered by the jury in assessing damages to be awarded Appellees as a result of the partial taking. Citing a number of cases from other jurisdictions in support of its position, the State contends, further, that there exists no Alabama authority on point. We disagree.

The well-established general rule of compensation in a condemnation proceeding where only a part of a tract is taken is that the owner is entitled to the difference between the value of the entire tract immediately before the taking and the value of the part of the tract remaining after the taking. St. Clair County v. Bukacek, 272 Ala. 323,131 So.2d 683 (1961); Blount County v. Campbell, 268 Ala. 548, 109 So.2d 678 (1959); Morgan County v. Hill, 257 Ala. 658, 60 So.2d 838 (1952); McRea v. Marion County, 222 Ala. 511, 133 So. 278 (1931). In determining the value of the property after the taking, the jury should consider any factor or circumstance which would lessen the value in any way, and this includes the effect that the completed project for which the land is condemned may produce on the remaining tract. St Clair County v. Bukacek, supra; Blount County v. Campbell, supra; Pike County v. Whittington, 263 Ala. 47, 81 So.2d 288 (1955); McRea v. Marion County, supra.

Pike County v. Whittington, supra, concerned a property owner whose combination residence, grocery store, and filling station abutted U. S. Highway 231 prior to a partial taking and a relocation of the highway. In that case, too, the condemnor argued that the loss of traffic was not a proper item for consideration by the jury in assessing the value of the condemnee’s property before and after the taking. The Whitting-ton Court quoted with approval the following statement from McRea v. Marion County, supra:

“While the county may not be under any duty to the property owner to maintain the highway near his residence, store, or other business enterprise, nor through his property, and may change its location through it, it cannot take any of his property to do so without his consent, or the payment of just compensation and damages as required by the Constitution and law. The amount of such compensation under the amended section 7489 and damage are measured by the effect of the project as a whole upon the value of the entire tract. The circumstance that thereby the improvements and business enterprises are made less accessible to the highway, whereas they were situated upon it before the new work, may, or may not, affect the market value of the entire tract. That is not an element of damage but a circumstance to enter into the question of the effect of the improvement upon the entire tract. The circumstance that thereby traffic no longer goes by or near the location of the store and other improvements on the land need not necessarily depreciate the market value of the six hundred and twenty acres. But the jury should be informed of the circumstance and have the question left to their ultimate decision.” 222 Ala. at 515,133 So. 278, quoted in Pike County v. Whittington, supra, 263 Ala. at 50, 81 So.2d at 290 (Emphasis added).

After considering a number of other Alabama cases, the Whittington Court held:

“These authorities point unwaveringly to the conclusion that the relocation of the highway, thereby diverting the flow of traffic from in front of appellee’s place of business, is a circumstance to enter into the question of the amount of the condemnee’s damage and this circumstance is one of which the jury should be informed and the question left to their ultimate decision.” 263 Ala. at 51, 81 So.2d at 292.

The issue in the instant case, like that presented in Pike County v. Whitting-ton, supra, is whether the loss in traffic flow to the condemnees’ business resulting from a partial condemnation can be taken into consideration, not as a separate item of damage, but as a circumstance “to enter into the question of the effect of the [taking] upon the entire tract.” If there is a distinction between the case at bar and Whittington, it is only that in Whittington the reduced traffic flow resulted from diversion of the improved highway away from the condemnee’s business whereas here the reduction in flow of traffic is due to the construction of a raised median which would prevent westbound traffic from having direct access to condemnees’ business. This is a distinction without a difference; and, accordingly, Whittington compels our affirmance of the Court below.

AFFIRMED.

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


text:
    U-HAUL CO. OF ALABAMA, a Corporation v. Charles LONG.
    No. 78-587.
    Supreme Court of Alabama.
    March 28, 1980.

      Carl E. Chamblee, Birmingham, for appellant.
    James R. Shaw, of Huie, Fernambucq, Stewart & Smith, Birmingham, for appel-lee.
   BEATTY, Justice.

This is an appeal by the plaintiff from a judgment for the defendant based upon the defendant’s counterclaim.

The plaintiff, U-Haul, brought an action for conversion against the defendant, Long, claiming $2,000.00 in damages for the value of a U-Haul trailer. It also claimed damages for loss of rental income from January 3, 1975 to May 6, 1976 and also punitive damages in the amount of $5,000.00, or a total of $12,090.00.

The defendant counterclaimed, alleging trespass and conversion by the plaintiff in taking a riding lawn mower belonging to the defendant, and demanded $38,000.00 as compensatory and punitive damages.

The plaintiff is an Alabama corporation engaged in renting automobile trailers, trucks and moving equipment. The defendant was engaged in a service station business and was a franchised dealer renting U-Haul equipment. In March, 1975 the defendant terminated his service station business to engage in a wrecker business. In that business he retained a contract with the City of Birmingham whereby his wrecker service was obliged to tow in abandoned, wrecked, stolen or confiscated automobiles and other vehicles for the City. Although the dealer contract itself provided for the surrender of all U-Haul equipment upon termination, there was evidence that this particular equipment was obtained earlier by the defendant from another local dealer pursuant to an agreement with a U-Haul agent, Byrum, in exchange for the defendant’s promise to notify U-Haul about its equipment which was towed in. After the defendant’s service station was closed the defendant used the trailer at the wrecker service lot in connection with that business. When on May 7, 1976 the trailer was removed from the defendant’s residence by the plaintiff, it contained the riding mower locked inside.

The evidence concerning the arrangement for the defendant to retain the trailer and use it was in sharp dispute. On the one hand the plaintiff contended that there was no such arrangement. Byrum denied making such a contract, and testified that he found the trailer on a “tip,” and that it was removed from a partially hidden location at the defendant’s residence. Both the then president of U-Haul and his immediate predecessor denied the existence of any such contract with the defendant. The defendant, on the other hand, contended that the trailer was lent to him through an arrangement with Byrum in exchange for his promise to notify U-Haul when their equipment had been hauled to the wrecker storage lot, in order to hold down their storage charges assessed by the City. The defendant testified that the trailer was kept at his wrecker service lot for almost the entire fourteen months it had been in his possession and in plain view of U-Haul’s field representatives who would come there to pick up other equipment. None of these, he stated, ever asked him to return it. He had placed the mower inside the trailer and moved it from the wrecker lot to his residence where it was later found.

Shortly after the trailer was picked up, the defendant telephoned Byrum and demanded the return of the mower. Although he knew it was the defendant’s mower, Byrum directed him to U-Haul’s attorney. Demand was then made to the lawyer but the mower was not returned. As to that the president of U-Haul testified that it was company policy to require proof of ownership or it would let the courts decide the issue of ownership.

The evidence also disclosed that U-Haul of Alabama did not own the trailer in question and the president, Ohman, did not know the identity of the real owner, except that it would be an investor-employee of one of the U-Haul corporations. Although the company could trace a trailer in approximately three weeks, their records did not show that any tracer had been made on this trailer and Ohman did not know of any having been made during the sixteen months it was out of service. Mr. Ohman also testified that the type of contract described by the defendant, allowing him to use the trailer, would not have been shown in the company’s activity record for that trailer.

The defendant testified that his mower was about one year old and had cost between $500 and $600 when new. Mr. By-rum testified that it had been used by the U-Haul Company at its moving center to pull trailers around, from the “four by six” size weighing close to 500 pounds to the “six by twelve” size, a steel trailer six feet wide by twelve feet long.

The U-Haul trailer in question was a discontinued model which had been manufactured at a cost of $470.00 in 1968, and had a replacement cost of $945.00. The company claimed a rental of $6.00 per day for every day the trailer was in the defendant’s possession, but the evidence showed that prior to that time it had never been rented a full thirty days in any one month and in the months of September, October and November prior to his possession it had not been rented one day.

After hearing the evidence the jury rejected the plaintiff’s claim, found for the defendant on his counterclaim, and awarded him damages in the sum of $12,500.00. Judgment was entered accordingly. The plaintiff’s motion for judgment notwithstanding the verdict or, in the alternative, for a new trial, was denied, and this appeal ensued.

The plaintiff has posed a number of issues for our consideration, but these really involve only two questions: (1) whether the damages award was excessive; and (2) whether the trial court erred in refusing certain jury instructions on the law of qualified refusal to surrender personal property.

In connection with the first issue, the plaintiff contends that the jury’s award, some twenty-four times the value of the defendant’s property, was unfair and clearly not justified as a punishment. This argument, we respectfully submit, overlooks the position the jury was in under the law and the evidence. Here the jury could have found that the plaintiff’s use of the mower was a conversion through an illegal user or misuser. Scott Paper Co. v. Novay Cherry Barge Service, Inc., 48 Ala.App. 368, 265 So.2d 150 (1972); Jesse French Piano and Organ Co. v. Johnston, 142 Ala. 419, 37 So. 924 (1904). Although under that class of conversion no demand and refusal is necessary, there were here three separate demands for the mower’s return. It was never returned but, instead, was put to use in the plaintiff’s business, and, having been denied to the defendant from the date of its taking, May 7, 1976, was never returned. And all of this occurred under circumstances in which the plaintiff itself admittedly did not have title to the very trailer from which the defendant’s mower had been removed by the plaintiff, and, in fact, had made no attempt to trace its whereabouts. Without belaboring the evidence here, the jury could have believed also that the officials at U-Haul had made no effort to identify or to locate the owner; indeed the agent Byrum knew within a few days after the taking that the defendant was the owner, and Mr. Ohman knew in 1977, after reading the defendant’s deposition, that the defendant’s mower was the one detained by the company. This evidence justified the jury in concluding, as it must have, that the misuse was a knowing and intentional violation of the defendant’s legal rights, or was accomplished in disregard of them. Cf. Ray Hughes Chevrolet Inc. v. Gordon, 294 Ala. 638, 320 So.2d 652 (1975) (claim of $15,000 punitive damages, counterclaim for $216.62; jury verdict and judgment for $14,783.38 damages.) On the appeal of that case this Court did not find excessive the amount of damages as fixed by the jury in its discretion.

Punitive damages need bear no particular relationship to actual damages; whether they are excessive depends upon whether or not the judicial conscience is shocked. Foster v. Floyd, 276 Ala. 428, 163 So.2d 213 (1964). Unless they are so excessive as to indicate prejudice or passion their award will not be reversed, Pinckard v. Dunnavant, 281 Ala. 533, 206 So.2d 340 (1968). Upon this record we cannot state that the jury was incorrect or that the trial court erred in overruling the plaintiff’s motion for a new trial. Walker v. Cardwell, Ala., 348 So.2d 1049 (1977).

The following are the jury charges requested by the plaintiff and refused by the trial court:

I charge you that where personal property is withheld from the true owner or his agent for a reasonable time after demand, for the purpose of enabling the holder to determine who has the right of possession, the detention is reasonable and does not constitute a conversion. If you believe from the evidence that Plaintiff withheld the personal property for a reasonable time after demand, then the Plaintiff is not guilty of conversion.
I charge you that a limited or qualified refusal to surrender possession of personal property to one entitled thereto, is not per se a conversion, but the refusal must be a reasonable qualification or requirement and stated in good faith. If you believe from the evidence that Plaintiff’s refusal after demand to deliver the personal property to be a reasonable qualification or requirement and stated in good faith, then the Plaintiff is not guilty of conversion.

These requested charges are hypothesized upon the jury’s belief from the evidence. Neither requested charge is predicated upon the jury’s being reasonably satisfied from the evidence. The correct phraseology for charges in civil cases is that the jury “be reasonably satisfied from the evidence.” Atlanta Life Insurance Company v. Stanley, 276 Ala. 642, 165 So.2d 731 (1964); 18A Ala.Dig., Trial, §§ 228(3), 234(3), (4), 237(3). Thus the trial court did not err in refusing these charges.

Let the judgment be affirmed.

AFFIRMED.

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


text:
    Ex parte R. H. MOORE, Sr., Petitioner. In re CASTLEBERRY CONSTRUCTION COMPANY, INC., a corp. v. CURB SPECIALISTS, INC., a corp., and R. H. Moore, Sr., d/b/a Moore’s Asphalt Paving Co.
    79-5.
    Supreme Court of Alabama.
    March 28, 1980.

      Ralph E. Coleman, Birmingham, for petitioner.
    John F. DeBuys, Jr., of Odom, May & DeBuys, Birmingham, for respondents Cast-leberry Construction Co., Inc. and Honorable William C. Barber.
   MADDOX, Justice.

In this original petition for mandamus, two basic issues are presented:

Is subject matter jurisdiction proper for the enforcement of a mechanic’s lien in the county where the land is located?

Once a suit has been filed to enforce a mechanic’s lien in the county where the land is located, is a bill for declaratory judgment improper in another county when the basic issues in the two actions are the same and the parties are the same?

Our answer to both questions is in the affirmative, and we hold that mandamus is due to be granted.

Briefly, the facts are as follows:

Petitioner R. H. Moore, Sr. does business in the name of Moore’s Asphalt Paving Company. Moore and another party, Curb Specialists, Inc., supplied materials and made improvements to a tract of land in Shelby County known as Sunnydale Estates, which was being developed as residential property.

The owner of the subject property, Baker Dairy Farms, Inc., had transferred Lots 11 and 12 in the subdivision to Castleberry Construction Company on August 16, 1978, by deed which was recorded on August 28, 1978, in Shelby County. Castleberry constructed houses on the lots. Moore’s Asphalt filed a mechanic’s lien against the tract known as Sunnydale Estates in the Probate Court of Shelby County on September 1, 1978, and on October 13, 1978, filed an action at law in the Circuit Court of Shelby County to enforce the lien and secure a judgment against Johnny O’Grady and Tommy Baker, parties with whom it contracted to provide the improvements to the property.

Curb Specialists filed its lien against the property on October 10, 1978, and on November 28, 1978, filed suit in the Circuit Court of Shelby County against O’Grady, Baker, and Baker Dairy Farms, Inc. to enforce that lien. Both actions were pending in Shelby County, when, on May 11, 1979, Castleberry Construction Company filed a bill for declaratory judgment in the equity division of the Circuit Court of Jefferson County, and named as defendants both Moore’s Asphalt and Curb Specialists, both residents of Jefferson County. Castleberry sought a declaration of the validity of the two liens, and alleged that it could not grant a marketable title to Lots 11 and 12 because of the continuing existence of the two liens.

Moore’s Asphalt filed a motion to dismiss and a plea in abatement in the declaratory judgment action, and alleged that the Circuit Court of Jefferson County did not have subject matter jurisdiction, and that the subject matter of the declaratory judgment action was then pending in the Circuit Court of Shelby County. Moore’s Asphalt alleged that the Shelby County actions would be dispositive of all issues presented in the bill for declaratory judgment. The trial judge denied the motions and Moore’s Asphalt brought this petition for a writ of mandamus.

Is mandamus appropriate? We believe that mandamus is appropriate. In East v. Todd, 284 Ala. 495, 226 So.2d 153 (1969), this Court opined:

“As a general rule, mandamus does not lie where there is another plain, speedy, and adequate remedy available. The remedy which will supersede mandamus may be described in general terms as one competent to afford relief on the very subject matter in question, and which is equally convenient, beneficial, and effectual. 55 C.J.S. Mandamus § 17(b).”

Both Moore’s Asphalt and Curb Specialists, as lienholders, had a right to file actions to enforce their respective claims of liens in the Circuit Court of Shelby County because that was where the land was located. Code 1975, § 35-11-220. Even though Castleberry was not made a party defendant to the action filed by Moore’s Asphalt in Shelby County until after Castleberry had filed its own suit for declaratory judgment in Jefferson County, it is unquestioned that Castleberry may interpose any defense it may have regarding the validity of the Moore’s Asphalt lien in the Shelby County action. Code 1975, § 35-11-224.

The first court seized of the issues involved, if identical, whether by action for declaration, or other judgment, must be permitted to retain jurisdiction of the case. Foreman v. Smith, 272 Ala. 624, 133 So.2d 497 (1961); Auto Mutual Indemnity Co. v. Moore, 235 Ala. 426, 179 So. 368 (1938).

The lien suits would affect the property in which Castleberry claimed an interest. Castleberry was made a party to the Moore’s Asphalt action before the trial judge ruled on Moore’s Asphalt’s motion to dismiss and plea in abatement. Each of the issues raised in the declaratory judgment action can be litigated in the action in Shelby County.

The rule extant at the time of the adoption of the Rules of Civil Procedure was that jurisdiction of a declaratory judgment action will not be entertained if there is pending at the time of the declaratory judgment action another action or proceeding to which the same persons are parties, in which are involved and may be adjudicated the same identical issues that are involved in the declaratory judgment action. The Alabama Rules of Civil Procedure were adopted to effect an integrated procedural system vital to the efficient functioning of the courts and to secure the just, speedy and inexpensive determination of every action. Rule 1, ARCP. The trial judge should have abated the declaratory judgment action.

The writ of mandamus is due to be granted.

WRIT OF MANDAMUS GRANTED.

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


author: PER CURIAM.

text:
    Donald E. HORTON v. CONTINENTAL VOLKSWAGEN, INC., a corporation.
    78-739.
    Supreme Court of Alabama.
    April 4, 1980.
    James A. Yance of Cunningham, Bounds, Byrd, Yance & Crowder, Mobile, for appellant.
    Mylan R. Engel of Engel & Smith, Mobile, for appellee.
   PER CURIAM.

The plaintiff, Donald E. Horton, appeals from a judgment for the defendant, Continental Volkswagen, Inc., in the plaintiff’s action based upon fraud. We reverse and remand.

The action arose out of the plaintiff’s purchase in August, 1976, of a 1975 model Audi automobile from the defendant. The plaintiff alleged that while negotiating for the purchase he had inquired of the defendant’s representative whether there were any problems or defects in the vehicle to cause it to be the last 1975 model to be sold, and that he was told that there had been no problems with the vehicle, the reason that it was the last of the 1975 models being that it had been lost on the premises. Plaintiff allegedly learned later that defects in the electrical system had occurred in July, 1976, prior to sale, which had necessitated repairs. He further alleged reliance on the misrepresentations and demanded compensatory and punitive damages. Following the course of further pleading by both parties the case was tried to a jury who returned a verdict for the defendant.

The plaintiff has presented several issues for review; (1) whether the trial court erred in allowing the defendant to refer to the size of the defendant corporation during opening statement to the jury; (2) whether the trial court erred in allowing the defend- . ant to describe the owner of the defendant corporation in opening statement and in allowing the defendant in closing argument to state that the verdict would punish and destroy the owner, who was not a party to the litigation; (3) whether the trial court erred in allowing the defendant (in closing argument) to appeal to the self-interests of the jury; (4) whether the trial court erred in allowing the defendant to argue that a verdict (for the plaintiff) would encourage other lawsuits and destroy the defendant corporation and its owner; (5) whether the trial court erred in its oral charge by leaving the jury with the impression that (in a fraud case) the plaintiff must act to his detriment solely on the basis of the material fact which was alleged to be misrepresented and to the exclusion of all other material facts.

During his opening statement to the jury counsel for the defendant stated:

Now, we expect the evidence to show, ladies and gentlemen of the jury, that Continental Volkswagen, a small private domestic corporation, owned by Mr. William R. Alford—
I expect the evidence to show that he is the sole owner of that business and has been for twenty years, approximately 20 years. He is a local businessman and he has been living in Mobile for approximately 35 years.

And in closing argument defense counsel argued:

[H]e (referring to plaintiff’s counsel) is a good lawyer, and he is doing everything he can to convince you folks that Mr. Alford over there and Continental Volkswagen have done an enormous wrong and that you ought to go ahead and punish not only him but punish everybody else that might be in the automobile business.

Of course, it is a truism that opening statements are not evidence. Wilkey v. State ex rel. Smith, 238 Ala. 595, 192 So. 588 (1940). Nevertheless, counsel may not by an opening statement introduce immaterial and prejudicial matter. Brown v. Leek, 221 Ala. 319, 128 So. 608 (1930). On this subject much is left to the discretion of the trial court whose discretion is subject to review only when abused to the prejudice of the complaining party. State v. Hargrove, 282 Ala. 13, 208 So.2d 444 (1968). In this case the trial court overruled the objections to these portions of the opening statement. The objections asserted that the statements injected proof of size, as going to net worth, and referred to Mr. Alford who was not a party, as eliciting sympathy for the defendant. The trial court was incorrect in overruling these objections because the remarks necessarily contain the aspects of wealth (and therefore of net worth). The trial court’s earlier admonition to the jury that “What opening statements are are not evidence”, was insufficient to remove the prejudice created by such a reference. This case is analogous to those in which wealth was injected into evidence, e. g., Ware v. Cartledge, 24 Ala. 622 (1854); Southern Life & Health Ins. Co. v. Whitman, Ala., 358 So.2d 1025 (1978). Because this statement was prejudicial and not eradicated, the cause must be, and is, reversed and remanded. Having reached that conclusion, it is unnecessary to reach the other points raised by the plaintiff.

REVERSED AND REMANDED.

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

BLOODWORTH, J., not sitting.


author: EMBRY, Justice.

text:
    William P. DEXTER et al. v. Wilmer E. BAKER et al.
    78-460.
    Supreme Court of Alabama.
    April 11, 1980.

      John W. Parker of McFadden, Riley & Parker, Mobile, for appellants.
    E. E. Ball of Owen & Ball, Bay Minette, for appellee Baker.
    Edward S. Sledge, III, of Hand, Arendall, Bedsole, Greaves & Johnston, Mobile, for appellee Arthur Mannich.
   EMBRY, Justice.

This is a fraud case that arose from the sale of a house and lot to William P. Dexter and wife Betty S. Dexter (now Betty S. Lee) by Wilmer E. Baker and wife Mary L. Baker. The Dexters’ action is against the Bakers and the Bakers’ real estate broker, Arthur Mannich. Verdict was directed by the trial court in behalf of defendants and judgment entered accordingly. The Dex-ters appeal from that judgment.

The dispositive issue on this appeal is whether under the evidence the case should have been submitted to the jury on the question of liability and compensatory and punitive damages. We hold that it should have been so submitted and therefore reverse.

The gist of the Dexters’ claim is that the property (house and lot) was represented to them to be in excellent condition, constructed according to, and meeting, Veterans Administration specifications, when in fact it did not. The Dexters say they relied upon these representations. Further, that certain latent defects in the premises were concealed from them which deceived and misled them; all to their substantial injury.

The action of the Dexters was bottomed on Sections 6-5-100 through -103, Code 1975:

§ 6-5-100
“Fraud by one, accompanied with damage to the party defrauded, in all cases gives a right of action.”
§ 6-5-101
“Misrepresentations of a material fact made willfully to deceive, or recklessly without knowledge, and acted on by the opposite party, or if made by mistake and innocently and acted on by the opposite party, constitute legal fraud.”
§ 6-5-102
“Suppression of a material fact whi<ih the party is under an obligation to communicate constitutes fraud. The obligation to communicate may arise from the confidential relations of the parties or from the particular circumstances of the case.”
§ 6-5-103
“Willful misrepresentation of a material fact made to induce another to act, and upon which he does act to his injury, will give a right of action. Mere concealment of such a fact, unless done in such a manner as to deceive and mislead, will not support an action. In all cases of deceit, knowledge of a falsehood constitutes an essential element. A fraudulent or reckless representation of facts as true, which the party may not know to be false, if intended to deceive, is equivalent to a knowledge of the falsehood.”

The tendency of the evidence in behalf of the Dexters was that the property was represented to be in excellent condition, was built to and met Veterans Administration specifications, and had been inspected and approved by the VA; that these representations were false and were known to be false and were made intentionally to deceive or were recklessly made with the intent to deceive. Further, that they, the Dexters, relied upon the representations as inducements for them to purchase the property; that the representations were false in that the property was neither built to VA specifications, nor did it meet same, but, to the contrary, it was defective regarding roof supports, insulation, electrical wiring, heating and air conditioning, water supply, the septic tank system and other items. Further, that many of these defects and deficiencies, although known to the Bakers and Mannich, were concealed from the Dexters in spite of inquiry concerning them.

The tendency of the evidence in behalf of defendants was in refutation of that of the Dexters; ergo, it presented a question for the jury.

The parties, on this appeal have filed extensive and exhaustive briefs and have also delivered strong oral arguments in support of their respective positions. Many questions have been raised, briefed, and argued; however, in view of our disposition of the controlling issue we pretermit discussion of these other numerous points. Suffice it to say that this case, under the evidence, and proper instructions from the trial court, is one for the jury as to liability as well as damages, both compensatory and punitive. See Boulevard Chrysler-Plymouth, Inc. v. Richardson, 374 So.2d 857 (Ala. 1979); Loch Ridge Construction Co. v. Barra, 291 Ala. 312, 280 So.2d 745 (1973).

Because the evidence is in conflict regarding liability of defendants to plaintiffs and the measure and extent of damages, if any, the judgment below must be reversed and the action remanded for retrial.

REVERSED AND REMANDED.

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


author: ALMON, Justice.

text:
    REDWING CARRIERS, INC. v. John D. FOSTER.
    78-523.
    Supreme Court of Alabama.
    April 11, 1980.

      James D. Harris, Jr. of Harris & Harris, Montgomery, for appellant.
    Hoyt W. Hill of Walker, Hill, Adams, Umbach & Herndon, Opelika, for appellee.

      . Justice Shores, sitting for Justice Bloodworth, has listened to the tape recording of oral argument.

   ALMON, Justice.

This is an appeal by permission of this Court under Rule 5(a), ARAP, from an order of the circuit court determining that it has jurisdiction of this cause, and that venue is properly in Lee County.

The plaintiff, Foster, purchased a tractor/truck from Redwing under a conditional sales contract. Foster is a resident of Alabama and Redwing is a Florida corporation which conducts business by agent in Lee County, Alabama. The conditional sales contract was signed by Foster in Alabama, but the contract states that it was executed in Florida and provides that “venue” for any suit brought on this contract is to be in Florida. The tractor/truck was then leased back to Redwing. The lease was executed in Alabama.

Foster was injured while driving this vehicle. He was pulling a trailer owned by Redwing. He alleges that Redw-ing negligently maintained the trailer and that this negligence caused the accident. The complaint also contained several contract counts which were severed from the tort counts. Redwing contends that those counts sounding in contract must be brought in Florida pursuant to the following provision in the Conditional Sales Contract:

“19. Venue for any legal proceeding brought by either Seller or Purchaser, for enforcement of any right or remedy under this agreement, shall be in Tampa, Hillsborough County, Florida, unless specifically waived by the Seller.”

In support of its position, Redwing cites Deeb, Incorporated v. Board of Public Instruction of Columbia County, 196 So.2d 22 (Fla.Dist.Ct.App.1967) which states that:

It is settled law in this state that the parties to an agreement may provide ■therein where suit may be brought to enforce it if such should become necessary.

196 So.2d at 24.

The Florida case involved a question of venue. Here, however, we are concerned with a jurisdictional question. There is a distinction between jurisdiction and venue. Jurisdiction refers to a court’s inherent power to decide a case, Boswell v. Citronelle-Mobile Gathering, Inc., 292 Ala. 344, 294 So.2d 428 (1974); Alabama State Bar Assoc. v. Watson, 289 Ala. 729, 272 So.2d 240 (1972); Ex parte Dothan-Houston County Airport Authority, 282 Ala. 316, 211 So.2d 451 (1968), while venue designates the geographical situs in which a court with jurisdiction may entertain a suit. Ex parte Dothan-Houston County Airport Authority, supra; Associated Grocers v. Graves Co., 272 Ala. 158, 130 So.2d 17 (1961).

In the instant case the agreement does not govern venue, rather it waives the jurisdictional privilege of any domicile that the parties may be entitled to, divesting all courts of the power to hear and determine the cause except the courts of Hillsborough County, Florida.

We must determine whether parties may contractually divest a court of its jurisdiction. In Alabama, parties cannot confer jurisdiction by consent. Koppers Company v. Gulf Welding and Construction, Inc., 285 Ala. 331, 231 So.2d 896 (1970). We have not been cited to a case in this jurisdiction, nor has our research revealed one which is exactly in point. The Court of Civil Appeals dealt with a similar situation in Hester v. Clinic Masters, Inc., 371 So.2d 915 (Ala.Civ.App.1979). There, however, the foreign court had already assumed jurisdiction of the cause. We adopt the majority rule stated in 56 A.L.R.2d § 4, p. 306, to the effect that:

contractual agreements by which it is sought to limit particular causes of action which may arise in the future to a specified place, are held invalid.

We consider contract provisions which attempt to limit the jurisdiction of the courts of this state to be invalid and unenforceable as being contrary to public policy. Parties may not confer jurisdiction by consent, nor may they limit the jurisdiction of a court by consent. This holding should not be confused with the rule that allows contracting parties, under certain circumstances, to agree that the substantive law of a certain state will govern the construction to be given a contract. 17 C.J.S. Contracts § 12(3).

We conclude that the trial court properly exercised jurisdiction in refusing to dismiss the contract counts of Foster’s complaint.

The order of the trial court is affirmed.

AFFIRMED.

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


text:
    HARPER PLASTICS, INC. v. REPLEX CORPORATION.
    No. 78-721.
    Supreme Court of Alabama.
    April 11, 1980.

      Allen Grocholski, of Holder, Moore & Grocholski, Fayette, for appellant.
    John A. Russell, III, Aliceville, for appel-lee.
   ALMON, Justice.

This is an appeal from a judgment denying appellant’s post trial motion entitled “motion for relief from judgment.” While not designated as such, this motion is clearly one under Rule 60, ARCP.

The motion sought to have the trial court set aside a final money judgment rendered against the appellant on January 30, 1979. The basis of the motion was that the trial court committed error in failing to grant appellant a continuance. Appellant had sought the continuance because certain witnesses allegedly could not be present on trial date.

The appellant did not appeal from the final money judgment, nor did it file a motion for new trial. All of the pertinent facts were known at the time the court denied the motion for continuance.

Rule 60, ARCP, is not a substitute for an appeal. Pace v. Jordan, 348 So.2d 1061 (Ala.Civ.App.), cert, denied, 348 So.2d 1065 (Ala.1977); Marsh v. Marsh, 338 So.2d 422 (Ala.Civ.App.1976).

Because the claim of error was not timely presented, the judgment of the circuit court denying the post-trial motion is affirmed.

AFFIRMED.

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