author: HURLEY, Judge.

text:
    STATE of Florida, Appellant, v. C.H., a child, Appellee.
    No. 81-694.
    District Court of Appeal of Florida, Fourth District.
    Nov. 3, 1982.

      Jim Smith, Atty. Gen., Tallahassee, and Trela J. White, Asst. Atty. Gen., West Palm Beach, for appellant.
    Robert C. Furr of Robert C. Furr, P.A., Boca Raton, for appellee.
   HURLEY, Judge.

This appeal concerns the constitutionality of section 777.03, Florida Statutes (1981), a law which permits certain family members to aid a related fugitive without fear of criminal prosecution. The trial court invalidated the statute, finding it void for vagueness and violative of the Equal Protection Clause. We reverse.

Section 777.03, Florida Statutes (1981), states in pertinent part:

Whoever, not standing in the relation of husband or wife, parent or grandparent, child or grandchild, brother or sister, by consanguinity or affinity to the offender, maintains or assists the principal or accessory before the fact, or gives the offender any other aid, knowing that he had committed a felony or been accessory thereto before the fact, with intent that he shall avoid or escape detection, arrest, trial or punishment, shall be deemed an accessory after the fact, and shall be guilty of a felony of the third degree .... [Emphasis added.]

Instead of using their common, ordinary meanings, i.e., blood for consanguinity and marriage for affinity, the trial court turned to Black’s Law Dictionary and found that affinity has a secondary, more abstruse definition. Then, the court applied this technical definition and found that it produced “obvious absurdities.” For example, the court noted that “the sister-in-law of a man’s wife would receive immunity from prosecution ... but a blood cousin, who may well have been an inseparable companion since birth, would not. An aunt or uncle who lived within one’s household for many years would not receive the protection of this statute, but other rather distant relatives by affinity would receive its blessings.” Thus, the court concluded that the statute was so vague that it produced irrational results.

We begin our analysis by noting two fundamental principles of statutory construction. First, “this Court has the duty if reasonably possible, consistent with protection of constitutional rights, to resolve all doubts as to the validity of a statute in favor of its constitutionality, and if reasonably possible a statute should be construed so as not to conflict with the constitution.” Powell v. State, 345 So.2d 724, 725 (Fla.1977). Second, “[w]ords used by the legislature are to be construed in their ‘plain and ordinary sense.’ ” Reino v. State, 352 So.2d 853, 860 (Fla.1977) (quoting Pedersen v. Green, 105 So.2d 1 (Fla.1958)).

Applying these principles to section 777.03, we hold that “consanguinity” and “affinity” are synonymous with “blood” and “marriage.” These everyday definitions preserve the underlying legislative purpose of safeguarding the family unit from conflicting loyalties and, at the same time, obviate the “absurdities” envisioned by the trial court. Also, this construction is consistent with the well known maxim that “courts will not ascribe to the Legislature an intent to create absurd or harsh consequences, and so an interpretation avoiding absurdity is always preferred.” City of St. Petersburg v. Siebold, 48 So.2d 291, 294 (Fla.1950).

The purpose of the modifying phrase “by consanguinity or affinity” (by blood or marriage) is to expand the statute’s list of relatives to include “in-laws” and “step-relatives.” In addition to the list of blood relatives, the statute also immunizes parents-in-law, grandparents-in-law, children and grandchildren-in-law, brothers-in-law, and sisters-in-law. Additionally, the statute immunizes various step-relatives, e.g., step-parents, step-brothers and sisters and step-children. In other words, the phrase “by consanguinity or affinity” is merely a substitute for a cumbersome listing of “in-laws” and “step-relatives” who are entitled to the statute’s protection. Thus, we hold that section 777.03, Florida Statutes (1981), is not void for vagueness; its list of protected relatives is sufficiently definite so that people of common understanding and intelligence need not guess at its meaning. See State v. Rodriquez, 365 So.2d 157 (Fla.1978).

Next, we turn to the trial court’s holding that the statute violates the Equal Protection Clause. Essentially, the court concluded that the statute draws an arbitrary and irrational line among those individuals who are granted immunity from prosecution. This conclusion was predicated on the finding that the statute’s classification does not, in every potential application, demonstrate a substantial and reasonable relationship to the promotion and preservation of the family structure. Again, we respectfully disagree.

The United States Supreme Court set forth the basic principles of equal protection analysis in Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78-79, 31 S.Ct. 337, 340, 55 L.Ed. 369 (1910):

1. The equal-protection clause of the 14th Amendment does not take from the state the power to classify in the adoption of police laws, but admits of the exercise of a wide scope of discretion in that regard, and avoids what is done only when it is without any reasonable basis, and therefore is purely arbitrary.
2. A classification having some reasonable basis does not offend against that clause merely because it is not made with mathematical nicety, or because in practice it results in some inequality.
3. When the classification in such a law is called in question, if any state of facts reasonable can be conceived that would sustain it, the existence of that state of facts at the time the law was enacted must be assumed. One who assails the classification in such a law must carry the burden of showing that it does not rest upon any reasonable basis, but is essentially arbitrary.

Given this scope of review, a court cannot object to a statutory classification merely because a more precise line could be drawn to effectuate the act’s underlying policy. Hamilton v. State, 366 So.2d 8 (Fla.1978). Rather, the court must limit its inquiry to whether there is a rational basis for the statutory classification. In our view, section 777.03 fully satisfies this test. The statute represents a legislatively determined balance between two competing societal interests. The first is society’s interest in apprehending suspected offenders. The second is society’s interest in safeguarding the family unit from unnecessary fractional pressures. Section 777.03 achieves a balance between these two goals by restricting its application to a select group of family members and by conferring immunity so that these individuals need never choose between love of family and obedience to the law.

Furthermore, the statute is not defective because it fails to immunize all relatives. Where the state attempts to achieve a balance between two reasonable, but conflicting policies, it “may take one step at a time” without violating equal protection guarantees. Geduldig v. Aiello, 417 U.S. 484, 495, 94 S.Ct. 2485, 2491, 41 L.Ed.2d 256 (1974). There is no merit to the claim that a classification which rationally furthers the State’s purpose is arbitrary simply because the “line drawn by a legislature leaves some out that might well have been included,” Village of Belle Terre v. Boraas, 416 U.S. 1, 8, 94 S.Ct. 1536,1540, 39 L.Ed.2d 797 (1974), or that the line drawn includes some who do not merit inclusion. Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 316, 96 S.Ct. 2562, 2568, 49 L.Ed.2d 520 (1976). Put another way, section 777.03, Florida Statutes (1981), is not defectively underinclusive because some relatives who might be motivated to aid an offender because of family ties are not exempted from prosecution. Conversely, the statute is not fatally overinclusive because some immunized family members might render assistance to an offender for reasons other than familial affection.

In the final analysis, it must be remembered that section 777.03 does not involve a fundamental familial right. Cf. Moore v. City of East Cleveland, 431 U.S. 494,499, 97 S.Ct. 1932, 1936, 52 L.Ed.2d 531 (1977). If the Legislature had chosen not to enact section 777.03, no one could maintain that there is a constitutionally protected right to hide or give other assistance to a fugitive simply because of a blood or marital relationship. This is the crux of today’s decision. Section 777.03, Florida Statutes (1981), immunizes criminal conduct. And since the statute’s narrow classification is predicated on a rational state policy, it is not open to expansion or re-evaluation by the judicial branch. “[0]ur duty [is] to give effect to legislative enactments despite any personal opinions as to their wisdom or efficacy. No principle is more firmly embedded in our constitutional system of separation of powers and checks and balances.” Moore v. State, 343 So.2d 601, 603-04 (Fla. 1977).

To summarize, we reverse the order of dismissal because we find that section 777.-03, Florida Statutes (1981), is neither unintelligibly vague in violation of the Due Process Clause, nor irrationally conceived in violation of the Equal Protection Clause. Thus, the order on appeal is reversed and the cause is remanded for further proceedings consistent with this opinion.

GLICKSTEIN and DELL, JJ., concur.

      .A violation of the Due Process Clause of the federal and state constitutions. U.S.Const. amends. V & XIV, § 1; Fla. Const, art. I, § 9.

      . U.S. Const, amend. XIV, § 1; Fla. Const, art. I, § 2.

      . Affinity is distinguished into three kinds: (1) Direct, or that subsisting between the husband and his wife’s relations by blood, or between the wife and the husband’s relations by blood; (2) secondary, or that which subsists between the husband and his wife’s relations by marriage; (3) collateral, or that which subsists between the husband and the relations of his wife’s relations.

      . The courts as well as the legislative branch have crafted multiple decisions to further the state interest of protecting the family unit. For example, in Hill v. Hill, 415 So.2d 20 (Fla.1982), the Supreme Court ruled “that the protection of the family unit and its resources requires us to answer the question [whether Florida should eliminate interspousal immunity for intentional torts] in the negative. Id. at 21. The court noted that “[t]he family continues to be an unofficial sociological governmental structure necessary and vital to our free, independent society.... Protection of the family unit is a significant public policy and we are greatly concerned by any intrusion that adversely affects the family relationship or the family resources.” Id. at 23.


source: Caselaw Access Project

author: PER CURIAM. JONES, Justice

license: Public Domain

text:
    Charles M. WALKER and Mary R. Walker v. CLEARY PETROLEUM CORPORATION, et al.
    80-592.
    Supreme Court of Alabama.
    June 18, 1982.
    Rehearing Denied Oct. 22, 1982.
    William H. Atkinson of Fite, Davis & Atkinson, Hamilton, for appellants.
    Perry Hubbard and J. Foy Guin III of Hubbard, Waldrop, Tanner & deGraffen-ried, Tuscaloosa, for appellees.
   PER CURIAM.

This is an appeal from a judgment based on a directed verdict entered in favor of Defendants (several corporations) at the close of Plaintiffs’ evidence.

Appellants (Plaintiffs) Charles and Mary Walker own a three-acre tract of land in Fayette County. This land is part of a 320-acre area upon which Appellees (Defendants) with the permission of and by order of the State Oil and Gas Board, conducted “forced pooling,” or “forced integration,” of the individual tracts and drilled for the gas thereunder.

Charles Walker, a merchant marine and the ship’s “electronics man” was aboard a ship in the Indian Ocean at the time of the Board’s hearing on whether to allow the forced pooling of the large tract which included Plaintiffs’ property. Notice of the hearing was by publication as allowed by Code 1975, § 9-17-7, and prescribed by the Board’s internal rules. Charles Walker, however, who had refused on two occasions to enter an “agreement” with Appellees, was the only landowner with whom Appel-lees did not have an “agreement” with respect to the various tracts of land contained within the 320-acre tract.

Even though the publication and alleged attempts to personally reach Charles Walker failed to notify him of the hearing, the Board found that proper notice had been given, proceeded with the hearing, and issued the order to proceed with the unitization.

Appellants filed suit in the circuit court, claiming wrongful removal of gas from their property and wrongful failure to pay them for the gas removed.

The trial court entered a directed verdict for Defendants. The Walkers’ motion for a new trial claimed that the notice provided by the Board with respect to the hearing had failed to afford Charles Walker due process of law. The motion was denied, and the Walkers appeal.

We reverse and remand.

The Walkers submit one issue on appeal: “Whether the taking of their gas was wrongful because the notice provided prior thereto failed to meet the due process requirements of the United States Constitution.”

Section 9-17-7(b) states that the notice required to be given prior to the hearings of the State Oil and Gas Board may be “given in the manner and form as may be prescribed by the board.” The Walkers maintain that the “state action” of the Board in force pooling several tracts of land requires the protection of the due process guarantees of the U.S. Constitution, and that the notice rules adopted by the Board fall short of that standard.

Rule L-10 provides for notice to be given:

“Notice. Notice of each public hearing before the Board shall be given by publication once in a newspaper of general circulation published in Birmingham, Montgomery, and Mobile, Alabama, at least ten (10) days prior to such hearing. In addition, when such hearings shall pertain to specific land and have less than statewide application, or shall pertain to one (1) field or pool, such notice shall also be published in a newspaper of general circulation in the county or counties wherein the affected land lies, provided such county or counties have a daily or weekly newspaper of general circulation. Such publication may also be made in other newspapers, as deemed advisable by the Board. Publication fees and expenses incurred by the Board for such notices shall be prorated among petitioners in a manner that will account for each petitioner’s portion of such notices and shall be promptly paid by each petitioner of the Board. Proof of notice shall be by affidavit of the publisher or editor, or their duly authorized agent, of the newspaper in which publication is made.”

Rule L-ll prescribes the contents of the notice:

“Such notice shall be in the name of the State Oil and Gas Board of Alabama. Such notice shall state the docket number, the time and place of hearing, and shall briefly state the general nature of the petition or motion to be considered. Such notice shall also state the name of the petitioner or movant or at least one of them if more than one, and, unless such petition or motion is intended to apply to or affect the entire State, it shall accurately describe by appropriate section, township, range and county the lands that may be affected by such petition or motion.”

Appellants’ primary contention rests upon the reasoning in several landmark decisions of the United States Supreme Court. Quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950), Appellants first point out that “[the Due Process Clause] require[s] that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case.” Mullane, 339 U.S. at 313, 70 S.Ct. at 656. Quoting Bank of Marin v. England, 385 U.S. 99, 87 S.Ct. 274,17 L.Ed.2d 197 (1966), Appellants also contend that the “notice required is one ‘reasonably calculated, under all the circumstances, to apprise the interested parties of the pend-ency of the action.’ ” Bank of Marin v. England, 385 U.S. at 102, 87 S.Ct. at 276. Appellants submit that the notice rules promulgated by the Board were not calculated to bring this matter to their attention. See Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971).

Conceding the viability of notice by publication in Alabama (ARCP 4.3), Appellants contend that “publication is permitted only in those instances where more desirable methods have been ineffectual,” and that those “more desirable methods” were not exhausted in attempts to give Charles Walker adequate notice.

Initially, we note that the published “notice” rules of the Board are pursuant to the statutory language of § 9-17-7(a):

“The board shall prescribe its rules of order or procedure in hearings or other proceedings before it under this article.”

The Board, however, has made no attempt to require personal service; rather, it elected to limit its notice requirements to notice by publication.

While the statute itself fails to require the Board to prescribe notice rules that meet requisite constitutional due process standards, the issue now before us is whether the Board’s notice rule falls short of the constitutional test as applied to the facts of the instant case. When that application is made, we find that notice by publication did not meet the constitutional test.

Appellees concede they knew that Charles Walker was aboard ship at the time the notice by publication of the Board’s hearing was made. In his capacity as “electronics man,” Walker was solely responsible for the radar, radio telephones, radio telegraph, and direction finder. These facts constrain us to conclude that any reasonable attempt to contact Walker while he was aboard ship would have been successful.

Furthermore, notwithstanding the legal efficacy of publication as a viable form of notice, this Court has, when necessary in order to comport with constitutional standards, found notice by publication to be unacceptable. In Whitfield v. Sanders, 366 So.2d 258 (Ala.1978), we quoted controlling language from Mullane:

‘[W]hen notice is a person’s due, process which is a mere gesture is not due process. The means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it.’ [Mullane, 339 U.S. at 314-315, 70 S.Ct. at 657].” Whitfield, 366 So.2d at 259.

Charles Walker was the only landowner with whom Appellees had not executed an agreement containing the terms for the unitization. We cannot say that the notice by publication was the proper means that “one desirous of actually informing [Walker] might reasonably [have adopted] to accomplish it,” when Charles Walker’s identity was known, his general whereabouts were known, and his specific location could have been ascertained. The unreasonableness of the attempted notice by publication is further heightened by the incongruity of the use of four Alabama newspapers which Appellees knew, or should have known, would never reach Walker. Therefore, the notice was a “mere gesture.”

While § 9-17-7 gives discretion to the Board in promulgating its rules and regulations, the statute also says:

“(d) Should the board elect to give notice by personal service, such service may be made by any officer authorized to serve process or by any agent of the board in the same manner as is provided by law for the service of summons in civil actions in the circuit courts of this state. Proof of the service by such agent shall be by the affidavit of the person making personal service.”

Facially, then, the statute falls short of constitutional requirements.

The ultimate test here, however, is the propriety of the notice in the instant case. We do not attempt to decide under what extreme circumstances notice by publication would be constitutionally adequate for due process. We decide under the facts of this case, however, that publication was an inadequate method of notice.

The record shows that Walker is entitled to receive, and was offered, the entire value of the oil and gas taken from his land, reduced only by actual, reasonable expenses in producing the oil and gas, Appellees state that this money will be given to Walker any time he wants it. Since Walker has not suffered any economic damages, the most he could receive under the facts of this case would be nominal damages. See, Welch v. Evans Brothers Const. Co., 189 Ala. 548, 66 So. 517 (1914); Williams v. Clark, 50 Ala.App. 352, 279 So.2d 523, cert, denied, 291 Ala. 803, 279 So.2d 526 (1973).

In addition, the rule in this state is that a valid award of nominal damages will, in the proper case, support an additional award of punitive damages. See, Mid-State Homes, Inc., v. Johnson, 294 Ala. 59, 311 So.2d 312 (1975); Rushing v. Hooper-McDonald, Inc., 293 Ala. 56, 300 So.2d 94 (1974); Maring-Crawford Motor Co. v. Smith, 285 Ala. 477, 233 So.2d 484 (1970); Ramos v. Fell, 272 Ala. 53, 128 So.2d 481 (1961). Therefore, if the failure to give notice was the result of malice, fraud, willfulness, or a reckless disregard of Walker’s rights, then Appellant would be entitled to punitive damages, upon a showing of nominal damages, even though he has suffered no real economic loss.

In conclusion, the judgment based on the directed verdict is reversed and the cause is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

TORBERT, C.J., and MADDOX, AL-MON, SHORES, EMBRY and BEATTY, JJ., concur.

FAULKNER, JONES and ADAMS, JJ., concurring in part and dissenting in part.

JONES, Justice

(concurring in part and dissenting in part).

I agree with the order of reversal and remand; but I disagree with the holding of the majority relating to the issue of damages. I write separately to express a different view. I begin with some additional observations concerning the nature of the constitutional violation — the lack of due process notice.

It matters not that actual notice to Walker would not necessarily have produced a different result at the hearing, nor that the Board had the authority to override his objections had he known of the hearing, appeared at the hearing, and strenuously objected. “Nonconsenting” and “lack of due process notice” do not somehow equate so that the nonconsenting result neutralizes the constitutional deficiency of lack of due process.

It is the Walkers’ right to be notified, their right to appear at the hearing, and their right to be heard which are fundamentally guaranteed by the due process clause of the Constitution. When taken to its logical conclusion, Defendants’ contention would not only avoid the necessity of notice, but the necessity for the hearing as well. If notice to an affected interest holder is inconsequential, because he ultimately has no power to prevent the taking as a matter of right, then the hearing itself partakes of the same lack of legal significance.

If “majority rule” is the basis of the Board’s determination of the unitization issue, once a majority of the interest holders consent, no further proceeding, including notice to the nonconsenting interest holders (or the hearing itself, for that matter), need be required. The constitutional due process mandate cannot be reduced to such meaningless proportions.

It is the fundamental nature of the right to be present, and to be heard at the hearing, that mandates the notice requirements, and that subjects those who proceed with the taking of property, absent those notice requisites, to the imposition of damages. Likewise, the law does not impose upon Plaintiffs the burden of proving special damages in this situation. To do so would be tantamount to leaving the Walkers rem-ediless where they have suffered the clear violation of a fundamental right.

The payment for the Walkers' proportionate share of the gas removed from the well (the unitization project) reimburses their economic loss, but does not necessarily represent the damages suffered as a result of the unlawful interference with their property interest through the deprivation of their due process rights. See § 6-5-210. While the law affords no specific standard of measurement for such damages, I would hold that, upon a retrial of this case, Plaintiffs are entitled to a directed verdict on the issue of liability, and that the jury should be instructed to award Plaintiffs damages which, in its discretion, would fairly and reasonably compensate them for the unlawful interference with their property rights under the circumstances.

To allow nominal damages only is tantamount to leaving the Plaintiffs remediless in the face of a clear violation of their constitutional rights.

FAULKNER and ADAMS, JJ., concur.

      . At the time of the forced pooling, Charles Walker was not married and was the sole owner of the property. Charles Walker married Mary R. Walker on December 11, 1978.

      . Although Plaintiffs’ claim is grounded upon § 6-5-210 (rights above and below surface), I would invite the reader’s attention to a viable and growing field of law commonly denominated as “constitutional torts.” Such claims ordinarily find their source in the factual context of a civil action against a government employee, alleging, for example, a fourth amendment violation. See Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). For a comprehensive treatment of Bivens, see Dolan, Constitutional Torts and the Federal Tort Claims Act, 14 U.Rich.L.Rev. 281 (1980). For a general discussion of the broader subject of civil damages arising directly from constitutional violations, see Comment, Bivens and the Creation of a Cause of Action for Money Damages Arising Directly from the Due Process Clauses, 29 Emory L.J. 231 (1980). Because of our own constitutional due process requirements, coupled with the civil remedy afforded by § 6-5-210, I do not deem it necessary to predicate the instant holding on the federal case precedents. See Whitman, Constitutional Torts, 79 Mich.L.Rev. 5 (1980).


author: TORBERT, Chief Justice. TORBERT, Chief Justice.

text:
    Herbert Ray EVERS v. MEDICAL LICENSURE COMMISSION OF ALABAMA.
    81-157.
    Supreme Court of Alabama.
    July 23, 1982.
    As Modified on Denial of Rehearing Oct. 22, 1982.

      Albert W. Copeland and Dexter C. Hobbs of Copeland, Franco, Screws & Gill, and John A. Henig, Jr., Montgomery, for appellant.
    George Hardesty, Jr., Sp. Asst. Atty. Gen., for appellee.
   TORBERT, Chief Justice.

This case on appeal involves the statutory construction of the term “conviction” as used in Code 1975, § 34-24-360(4), which concerns the revocation or suspension of a physician’s license to practice medicine.

Appellant, Dr. Herbert Ray Evers, is a licensed and practicing physician who was convicted, by a jury, under two indictments for violating Code 1975, § 20-2-70(a), of the Alabama Uniform Controlled Substances Act. After Evers’s convictions the Attorney General filed a complaint with the Medical Licensure Commission, asking the Commission to hold a hearing and thereafter enter an order suspending or revoking Evers’s license to practice medicine in the State of Alabama.

Meanwhile, Evers filed a complaint in the Montgomery Circuit Court, seeking a declaratory judgment as to the definition of the term “conviction” and seeking a temporary injunction to keep the Commission from proceeding on the merits of the Attorney General’s complaint until a ruling on the declaratory judgment action.

A preliminary injunction was granted by the circuit court and is still in effect pending this appeal. However, as to the definition of the term “conviction,” the trial court ruled against appellant and issued an order defining “ ‘conviction of a felony,’ as used in § 19(4) of the Medical Licensure Commission Act, [as] a judgment of conviction entered by the trial court.” Evers appeals.

The only issue in this case is whether a physician’s license may be suspended or revoked when a judgment of conviction is entered by the trial court, or whether the word “conviction” means conviction followed by affirmance on appeal.

Code 1975, § 34-24-360(4), provides:

“The medical licensure commission shall have the power and duty to suspend for a specified time, to be determined in the discretion of the commission, or revoke any license to practice medicine or osteopathy in the State of Alabama whenever the licensee shall be guilty on the basis of substantial evidence of any of the following acts or offenses:
“(4) Conviction of a felony; a copy of the record of conviction, certified to by the clerk of the court entering the conviction shall, be conclusive evidence; ...”

Appellant submits that the word “conviction” as used in this statute means “final conviction” and thus that Evers’s license cannot be suspended or revoked until his conviction can no longer be reversed or set aside on appeal. Appellee contends that the language “conviction of a felony; a copy of the record of conviction, certified to by the clerk of the court entering the conviction, shall be conclusive evidence” means conviction at the trial level.

We must consider the use of the word “conviction” in light of the plain, clear Ian-guage of the statute, the context in which the word is used, the purposes of the statute and the weight of authority construing its meaning in analogous situations. See, Ex parte Alabama State Bar, 285 Ala. 191, 193-94, 230 So.2d 519 (1970).

Looking at the statute, we find that the use of the phrase “Conviction of a felony” has significance, because it points out the stage in the course of a criminal proceeding when the Medical Licensure Commission can take action. The phrase “a copy of the record of conviction, certified to by the clerk of the court entering the conviction, shall be conclusive evidence” sets out the offer of proof which must be submitted in order to establish the grounds for action by the Commission.

In Ex parte Alabama State Bar, this Court quoted the following from Commonwealth v. Lockwood, 109 Mass. 323, 325 (1872):

“The ordinary legal meaning of ‘conviction,’ when used to designate a particular stage of a criminal prosecution triable by a jury, is the confession of the accused in open court, or the verdict returned against him by the jury, which ascertains and publishes the fact of his guilt .... ”

We hold, in accordance with Ex parte Alabama State Bar, that a jury verdict finding a defendant guilty and the judgment of conviction entered thereon constitute a “conviction” under § 34-24-360(4).

We believe the policy of the statute is plain and the legislature intended the fact of conviction to be enough to cause the Medical Licensure Commission to conduct a hearing on the revocation or suspension of a physician’s license.

In making our decision we recognize appellant’s concern that because the statute does not provide for automatic reinstatement upon reversal of his conviction, a physician can lose his license on conviction and, even if his conviction is later reversed on appeal, the reinstatement of his license will lie within the discretion of the Commission. However, we do not believe the legislature intended such a harsh result.

Appellee states in its brief: “We submit as a general rule that whenever a judicial order is based on a previous order, and that previous order is reversed or set aside, then the subsequent order based upon it should likewise be reversed or set aside.” See ARCP 60(b)(5). We adopted this view in In Re McDonald, 292 Ala. 426, 429, 296 So.2d 141 (1974), wherein Justice Jones stated: “[I]t is axiomatic that his reinstatement will be both automatic and retroactive upon such reversal.”

We believe our decision is in accordance with the intent of the legislature when it passed Code 1975, § 34-24-360(4). See McDonald’s Corporation v. DeVenney, 415 So.2d 1075 (Ala.1982). The judgment of the trial court is affirmed.

AFFIRMED.

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

FAULKNER and EMBRY, JJ., dissent.

ON REHEARING

TORBERT, Chief Justice.

While we recognize that Rule 60(b)(5) does not apply to administrative proceedings, such as the one before us, we are of the opinion that the legislature intended that the physician’s license be automatically reinstated upon reversal of the conviction upon which the Commission’s revocation of that license was based.

OPINION MODIFIED; REHEARING DENIED.

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

FAULKNER and EMBRY, JJ., dissent.

      . Evers’s convictions have been affirmed by the Alabama Court of Criminal Appeals. A petition for a writ of certiorari to the Court of Criminal Appeals has been filed with this Court.


author: MADDOX, Justice.

text:
    BENEFICIAL MANAGEMENT CORPORATION OF AMERICA, a Delaware Corp.; Beneficial Finance Co. of Alabama, an Alabama Corporation; and W. James Murphy, an individual v. Raymond E. EVANS. Raymond E. EVANS v. BENEFICIAL MANAGEMENT CORPORATION OF AMERICA, a Delaware Corp.; Beneficial Finance Co. of Alabama, an Alabama Corporation; and W. James Murphy, an individual.
    Nos. 80-478, 80-478A.
    Supreme Court of Alabama.
    Aug. 27, 1982.
    Rehearing Denied Oct. 22, 1982.

      Crawford S. McGivaren, Jr., William A. Robinson, and Tony G. Miller of Cabaniss, Johnston, Gardner, Dumas & O’Neal, Birmingham, for appellants/cross-appellees.
    Eddie Leitman, Andrew P. Campbell and Christopher R. Murvin of Leitman, Siegal & Payne, Birmingham, for appellees/cross-appellants.
   MADDOX, Justice.

Of the numerous issues presented to this Court for our review in these cases, we find the trial court’s oral jury charge that damages are presumed where there is slander per se to be determinative; therefore, we do not find it necessary to consider all of the issues raised by the appellants because we have determined that the cases must be reversed.

On January 8, 1978, Raymond Evans (plaintiff below and appellee/cross-appel-lant in this proceeding), instituted an action against Beneficial Management Corporation (hereinafter “BMC”), Beneficial Finance Company of Alabama (hereinafter “BFC”) and W. James Murphy, an officer of both BMC and BFC, all defendants below and appellants before this Court, in the circuit court of Jefferson County. Evans alleged that the appellants had maliciously slandered him by making false statements to third parties accusing him of accepting “kickbacks.” Evans made other allegations as well.

In response, BFC, BMC and Murphy filed answers denying Evans’s claims. In their answers, BMC and BFC asserted counterclaims against Evans for. breach of his fiduciary duty and violation of his employment contract.

The trial was long and involved, lasting approximately seven weeks. Thirty or more witnesses appeared on behalf of the appellants and appellee and over seventy exhibits were admitted into evidence for the jury’s review. The record totaled more than 3,800 pages.

Prior to submitting the case to the jury, the trial court granted directed verdicts in favor of BMC and BFC on the breach of privacy and infliction of emotional distress counts, leaving Murphy as the sole defendant on these two counts. The court then instructed the jury on the law and the verdict forms to be submitted on Evans’s claims and BMC’s and BFC’s counterclaim. Although no objection was raised by BMC, BFC or Murphy as to verdict forms, timely exception was made to the trial court’s instruction on applicable law, including the law concerning slander per se and slander per quod.

The day after the case was submitted to the jury for consideration, the jury sought additional instructions from the trial court by sending the following question to the trial judge: “Can we find for Mr. Evans in one suit and find for Beneficial in the counterclaim without being contradictory”? The trial judge replied: “Such results— such findings would not be contradictory.” BMC, BFC and Murphy made exception to the court’s response. After nearly two days of consideration, the jury rendered the following verdicts:

1. Slander claim verdict for Evans and against Murphy for $2,700 compensatory and $20,000 punitive.

2. Slander claim verdict for Evans against BFC for $2,800 compensatory and $20,000 punitive.

3. Slander claim verdict for Evans and against BMC for $5,400 compensatory and $40,000 punitive.

4. Invasion of privacy verdict for Evans and against Murphy for $500 compensatory and $500 punitive.

5. Willful infliction of emotional distress verdict for Evans and against Murphy for $5,000 compensatory and $22,500 punitive.

6. Counterclaim verdict against Evans in favor of BMC and BFC for $55,000, compensatory only.

The trial court accepted each verdict as to the validity, but after deliberations with counsel, decided to submit a second verdict form for the limited purpose of ensuring that the jury had not allowed a double recovery for the same injuries. The court’s reasoning was that since the damages claimed for the acts of slander and other counts were similar, there existed a possibility that the jury permitted a double recovery. To this end, the-trial court admonished the jury against a double recovery and resubmitted one verdict form for slander against BMC, BFC and Murphy together, asking the jury to total the damages suffered by Evans. The jury returned a verdict against BMC, BFC and Murphy for compensatory damages in the amount of $5,400 and $80,000 punitive damages. This represented a sum of punitive damages equal to the total awarded by the jury against the appellants initially and $5,500 less in compensatory damages than the amount awarded against all three appellants separately.

The trial court also resubmitted the infliction of distress and invasion of privacy claims on one verdict form and requested the jury to indicate the total damages suffered. The jury awarded $5,500 in compensatory damages and $23,000 in punitive damages, the identical amount of damages rendered on these counts through separate verdicts.

BMC, BFC and Murphy filed separate written motions for judgment notwithstanding the verdicts, or in the alternative, for new trial. The trial court overruled these motions. The defendants appeal from the judgments entered and from the trial court’s order denying their motions for J.N. O.V. or, in the alternative, for new trial. Evans cross-appeals from the judgment entered against him.

I

The Pre-Gertz Standard

In defamation actions, the traditional rule concerning the publication of matters either libelous or actionable per se has been that the law infers some damage. Berry-man, Sutherland’s A Treatise on Damages, § 10 at 37 (4th ed. 1916). As for verbal accusations that were considered actionable per se, the widely accepted notion was:

“Certain vocal utterances are actionable per se; an action will lie for them without an allegation or proof of actual damage because it is legally presumed that they cause injury as a natural and immediate consequence. Other utterances of a defamatory tendency are not so obviously injurious that injury is presumed. ...” [Emphasis added.]

Id. § 1024 at 4501.

This Court adopted this conclusion early, stating that “injury is presumed to ensue [from false and nonprivileged publication] as the direct product of the publication, and affords ground for the allowance of at least nominal damages.” Advertiser Company v. Jones, 169 Ala. 196, 205, 53 So. 759 (1910). We have frequently reiterated the doctrine of presumed damages in defamation cases that were actionable per se. Starks v. Comer, 190 Ala. 245, 254, 67 So. 440 (1914); Comer v. Advertiser Co., 201 Ala. 159, 160, 77 So. 685 (1918); Johnson Publishing Co. v. Davis, 271 Ala. 474, 487, 124 So.2d 441 (1960); General Electric Credit Corp. v. Alford & Assoc., 374 So.2d 1316, 1321 (Ala. 1979) A distinction was made between per se actions, where damages were presumed, and per quod actions, where special damages must be proved, in Marion v. Davis, 217 Ala. 16, 114 So. 357 (1927). The Court elaborated:

“In cases of libel, if the language used exposes the plaintiff to public ridicule or contempt, though it does not embody an accusation of crime, the law presumes damage to the reputation, and pronounces it actionable per se. While to constitute slander actionable per se, there must be an imputation of an indictable offense involving infamy or moral turpitude. Ex parte West (Re: Peinhardt v. West) supra [217 Ala. 14, 115 So. 88]; Rice v. Simmons, supra [2 Har. (Del.) 417]; 36 C.J. 1152, § 19; 17 R.C.L. pp. 263, 264, §§ 3 and 4.
“This distinction, however, does not deny the right to maintain an action for slander founded on oral malicious defamation subjecting the plaintiff to disgrace, ridicule, odium, or contempt, though it falls short of imputing the commission of such crime or misdemeanor. In such case the law pronounces the words actionable per quod only, and the plaintiff must allege and prove special damages as an element of the cause of action. 17 R.C.L. p. 264, § 4.”

217 Ala. at 18, 114 So. 357.

Thus, if a person was slandered by another and the statements constituted slander per se, that person was entitled by law to collect at least nominal damages without proof of damage to reputation.

II

The Gertz Standard

The case of Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), recast the law of defamation relating to libel actions brought by private individuals against publishers. The United States Supreme Court, desirous that the states retain “substantial latitude in their efforts to enforce a real remedy for defamatory falsehood injurious to the reputation of a private individual,” ruled that application of the “actual malice” test, as defined in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710,11 L.Ed.2d 686 (1964), and proposed in Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971), “would abridge this legitimate state interest to a degree we find unacceptable.” Gertz, supra, 418 U.S. at 346, 94 S.Ct. at 3010. In granting the states this latitude in formulating an appropriate standard to protect the reputation of private individuals, the United States Supreme Court has made clear the extent of this latitude and this Court is so bound. The appropriate portion of the Gertz decision reads:

“The common law of defamation is an oddity of tort law, for it allows recovery of purportedly compensatory damages without evidence of actual loss. Under the traditional rules pertaining to actions for libel, the existence of injury is presumed from the fact of publication. Juries may award substantial sums as compensation for supposed damage to reputation without any proof that such harm actually occurred. The largely uncontrolled discretion of juries to award damages where there is no loss unnecessarily compounds the potential of any system of liability for defamatory falsehood to inhibit the vigorous exercise of First Amendment freedoms. Additionally, the doctrine of presumed damages invites juries to punish unpopular opinion rather than to compensate individuals for injury sustained by the publication of a false fact. More to the point, the States have no substantial interest in securing for plaintiffs such as this petitioner gratuitous awards of money damages far in excess of any actual injury.
“We would not, of course, invalidate state law simply because we doubt its wisdom, but here we are attempting to reconcile state law with a competing interest grounded in the constitutional command of the First Amendment. It is therefore appropriate to require that state remedies for-defamatory falsehood reach no farther than is necessary to protect the legitimate interest involved. It is necessary to restrict defamation plaintiffs who do not prove knowledge of falsity or reckless disregard for the truth to compensation for actual injury. We need not define “actual injury,” as trial courts have wide experience in framing appropriate jury instructions in tort actions. Suffice it to say that actual injury is not limited to out-of-pocket loss. Indeed, the more customary types of actual harm inflicted by defamatory falsehood include impairment of reputation and standing in the community, personal humiliation, and mental anguish and suffering. Of course, juries must be limited by appropriate instructions, and all awards must be supported by competent evidence concerning the injury, although there need be no evidence which assigns an actual dollar value to the injury.” [Emphasis added.]

418 U.S. at 349-350, 94 S.Ct. at 3011-12.

We adhere to the so-called “Gertz rule” and have extended its application to those suits involving private individuals exclusively. Bryan v. Brown, 339 So.2d 577 (Ala.1976). In Bryan, this Court held:

“Although Gertz was a libel action brought by a private individual against a ‘publisher’ in the narrow sense, nevertheless the holding in that case, so directly involving the breadth of the First Amendment to the United States Constitution, is applicable to the facts of the instant case insofar as it affects the right of our state to award damages in defamation actions. ...”

339 So.2d at 583-584.

This Court has decided that the Gertz rule shall apply to non-media defendants; therefore, since Gertz abolishes the notion of “presumed damages” and limits compensation in defamation cases which are actionable per se to recovery for actual injuries only, we hereby recognize this to be the law of Alabama. Although in Gertz the Court does not define the concept of “actual injury,” deferring instead to the experience of the trial courts in “framing appropriate jury instructions” in this kind of tort action, Gertz, supra, 418 U.S. at 350, 94 S.Ct. at 3012, the Court nonetheless makes unmistakably clear that in defamation cases, the “juries. must be limited by appropriate instructions. ” [Emphasis added.] This is the fatal flaw which necessitates our ordering a new trial in the present case.

Ill

Erroneous Instructions

The appellants in this case made a motion for J.N.O.V. or, in the alternative, new trial, which was overruled by the trial court. A strong presumption of correctness attaches to a trial court’s ruling on a motion for new trial. Shiloh Construction Company, Inc. v. Mercury Construction Corporation, 392 So.2d 809, 814 (Ala.1981). But, where it appears from the record that an erroneous charge is given the jury, a new trial is required. J.F. Holley Const. Co. v. Brown Service Funeral Homes Co., 277 Ala. 251, 254, 168 So.2d 621 (1964). The oral charge given by the trial judge in this case appears in the record as follows:

“Now, if you are reasonably satisfied from the evidence that a defendant slandered plaintiff, as claimed in this action, and the slander was slander per se, then the law presumes damage to the plaintiff’s reputation, and you may award the plaintiff such sum'of compensatory damages as would, in your discretion, be reasonable to compensate him, the plaintiff, for damage to his reputation.” (Emphasis added.)

The legal principle stated in this paragraph, though a single paragraph of a 25-page oral charge, is patently unconstitutional in view of the explicit directions of Gertz; therefore, we must overrule the trial court in this instance. While appellee Evans contends that these instructions were cured by the trial court’s charges to the jury following the jury’s return of the initial verdicts and the reinstruction of the trial court to avoid the possibility of any double recovery, see Alabama Power Company v. Smith, 273 Ala. 509, 524, 142 So.2d 228 (1962), the trial court’s original charge was such a gross misstatement of the Gertz standard of defamation as to constitute reversible error.

IV

Reservation of Error

Rule 51 of the Alabama Rules of Civil Procedure reads in part:

“No party may assign as error the giving or failing to give a written instruction, or the giving of an erroneous, misleading, incomplete, or otherwise improper oral charge unless he objects thereto before the jury retires to consider its verdict, stating the matter to which he objects and the grounds of his objection.”

A party waives any possible error as to a trial court’s oral charge by failing to specifically object and to state grounds for the objection. See Great Atl. & Pac. Tea Co., Inc. v. Sealy, 374 So.2d 877, 882-883 (Ala.1979). Appellants made the following exception to the trial judge’s charge of slander per se and presumed damages:

“In addition to excepting to Your Hon- or’s charge for failure to tell the jury that whether it would be slander per se or slander per quod, plaintiff must reasonably satisfy the jury that he sustained some actual damage, in either case. And I rest my request in excepting to your charge on that in the case of Bryan v. Brown and Gertz, which is a United States Supreme Court case.
“I think further that the constitutional law required in order to recover for slander, be it slander per se or slander per quod, that the plaintiff bear the burden and he must satisfy the jury from the evidence that he sustained some actual damages.”

Appellant properly preserved this portion of the trial court’s oral charge for our review by specifically objecting to the “presumption of damage” language in the slander per se charge by stating as grounds for the objection this Court’s decision in Bryan and the United States Supreme Court case of Gertz requiring actual injury.

V

A New Trial on All Issues

Rule 59(a)(1) of the Alabama Rules of Civil Procedure permits a trial court to grant a new trial as to all or any of the parties on all of the issues in an action in which there has been a trial by jury. A trial court, however, may not separate claims within a cause that has been tried before a jury. Therefore, when a trial court grants a motion for new trial, it must, under the mandate of Rule 59, grant a new trial on the entire cause. Nina Development Corp. v. Jefferson Co., 387 So.2d 180, 182 (Ala.1980). This Court is not bound by such limits. In Zemczonek v. McElroy, 264 Ala. 258, 86 So.2d 824 (1956), this Court explained its authority to order a new trial.

“We have held that when a decision on a case as to one appellee is not affected by the decision as to the other, a joint judgment may be reversed as to one ap-pellee and affirmed as to the other. Young v. Woodward Iron Co., 216 Ala. 330, 113 So. 223; Sovereign Camp, W.O.W. v. Davis, 242 Ala. 235, 5 So.2d 480. However, we are of the opinion that in the instant case the ends of justice will be best subserved by the reversal and vacation of the judgment in its entirety so that the cause may be retried. Luquire Ins. Co. v. Parker, 241 Ala. 621, 4 So.2d 259; St. Paul Fire & Marine Ins. Co. v. Johnson, 256 Ala. 690, 57 So.2d 80.”

264 Ala. at 263, 86 So.2d 824; Park Supply-Company, Inc. v. Sunki, 386 So.2d 462, 465 (Ala.Civ.App.1980).

The Court does not take pleasure in .sending this case back for a new trial, especially considering the duration of the original trial; however, since we feel that the issues in this case are interrelated, thereby complicating our separation of them, we believe justice will be best served by a reversal and retrial of the case in its entirety-

REVERSED AND REMANDED.

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

      . Gertz V. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), and Bryan v. Brown, 339 So.2d 577 (Ala. 1976), were not applicable in this case because GECC failed to defend the libel count on the theory of these cases.

      . This charge appears in the volume, Alabama Pattern Jury Instructions-Civil, which was sent to the publisher prior to the Supreme Court’s delivery of the Gertz decision in 1974, and this Court adopted the Gertz holding in Bryan in 1976. Also, we point out the following admonition which prefaces the order of the Supreme Court of Alabama approving use of Alabama Pattern Jury Instructions: “While these instructions appear to be accurate and appropriate to the subjects to which they relate, they are to be considered as patterns only and should be altered or changed as circumstances indicate.” Alabama Pattern Jury Instructions —Civil, at X.


text:
    Shannon Paige MATHEWS, etc., et al. v. TUSCALOOSA COUNTY.
    81-110.
    Supreme Court of Alabama.
    Sept. 24, 1982.
    Rehearing Denied Oct. 22, 1982.
    J. William White of McCain & White, Tuscaloosa, and Shay Samples and M. Clay Alspaugh of Hogan, Smith & Alspaugh, Birmingham, for appellants.
    James G. Lee of Lee, Barrett & Mullins, Tuscaloosa, and Nelson Burnett, Birmingham, for appellee.
   MADDOX, Justice.

This is an appeal from an adverse judgment in a wrongful death action. The plaintiff (appellant) raises several issues on appeal. The dispositive issue concerns the propriety of defense counsel’s remarks during his opening statement regarding the decedent’s workmen’s compensation insurance carrier and whether the insurance company was entitled to any proceeds from a judgment for the plaintiff.

Gregory Lee Mathews was killed in a one vehicle accident when the coal truck he was driving overturned. The accident took place at a dead end “T” intersection in Tuscaloosa County. The accident occurred during the early morning hours of a night when the roadway was covered with heavy fog. There was a stop sign placed at the intersection, but the evidence showed that a warning “stop-ahead” sign approaching the intersection had been knocked down. The defendant, Tuscaloosa County, had failed to replace this sign. The plaintiffs, Mathews’ minor daughters and administratrix, filed a wrongful death action asserting that the failure to maintain the “stop-ahead” sign constituted negligent and wanton conduct. The defendant countered that no duty existed to erect a “stop-ahead” sign and further, that the decedent’s conduct constituted contributory negligence. The jury rendered a verdict for the defendant.

The record does not contain any portion of either the plaintiffs’ or the defendant’s opening statements. Thus the plaintiff, pursuant to ARAP 10(f) sought to have the record supplemented, to include the defense counsel’s remarks regarding workmen’s compensation insurance.

Affidavits by Shay Samples, attorney for the plaintiffs, Paige Pugh, court reporter, and James Lee, attorney for the defendant, were attached to appellant’s motion under Rule 10(f). The trial judge did not grant the motion but stated in his order the following:

“That since the exact nature and content of the opinion that said alleged objectionable statements in opening and closing arguments were not adequately or properly preserved for appeal by plaintiffs [appellants], and the Court is without authority or ability to reconstruct same for appeal; but that for what it is worth the Court will order that the affidavit of appellants, the affidavit of the Court Reporter, Paige Paugh [sic], and the affidavit of appellee be made a supplement to the record in this cause and forwarded to the Supreme Court by the Clerk of this Court as a supplement to the transcript of record herein.”

ARAP 10(f) grants the appellate court the power to conform the record so that material inadvertently omitted is included. While no stenographic transcription of counsel’s opening statements is usually made in Tuscaloosa County, the court reporter did state in her affidavit that “I was supposed to have recorded, by tape recorder, said opening statements and closing arguments, but this was apparently, inadvertently not done.... ” Even though the defense counsel’s actual spoken words are not preserved in the record, the records do show with reasonable certainty what was said in the court below.

During the defendant’s opening statement, the record indicates that an objection was made regarding the characterization of the parties in the case. The trial court overruled the objection. A subsequent discussion in the trial judge’s chambers, which was transcribed by the court reporter, sheds some light on the matter being considered.

“MR. HOGAN: About the workman’s [sic] compensation, Judge, we do not believe that what was said by Shay Samples in the opening statement warranted Jimmy Lee council [sic] for the county here to blurt out in the courtroom what he did about workman’s [sic] compensation— that those people would get the money, that it won’t go to those children. First it is an inaccurate — it is very prejudicial to the case and Your Honor had already ruled on the matter and it was not supposed to have been mentioned. We take exception to it and we ask that at the end of the trial we are going to ask for appropriate instructions; but in the meantime, we ask for instructions to council [sic] not to bring up any further mention of workman’s [sic] compensation during the trial. “MR. LEE: May I reply to that?
“THE COURT: Yes, sir.
“MR. LEE: Of course it is a fact in this case that workman’s [sic] compensation is paying these two children. The law is clear that if the council [sic] for the plaintiff stands up and says that all of the benefits awarded in this case goes [sic] to the minor children, that we have a right to answer in kind and that is just numerous case law. We would not have mentioned workman’s [sic] comp except they got up and said that the benefits, all of the benefits, would go to the children because that’s not true. That gives us an opportunity then legally, according to the Supreme Court to state whom the benefits will go to, and we have a right now.
“Since he has said that all the benefits would go to the minors and since this is not true, we have a right in the case, a legal right to show who the benefits would go to in this case. I can get Your Honor the case and bring it to you.
“MR. HOGAN: The workman’s [sic] comp is not supposed to be brought into the case. Whether or not a portion of it is to be paid to the comp carrier is something that is not supposed to be before the jury.
“MR. LEE: Judge, there are several cases where a matter that maybe was not properly before the jury when one party gets up and says that all of these benefits are going to be paid by or to a specific person; and if it is not true, then the other side has a right then once that statement is made to reply in kind. It’s called replying in kind and that’s all we are doing. We have that legal right based on the Alabama case law.
“THE COURT: I will reserve my ruling until a quarter until nine in the morning. I thought we had settled all that about the comp business; but as far as arguing about who is going to get the money, I don’t see any reason for us to get into an argument as to how the money is going to be split up because everyone knows it is going to be split up.”

The plaintiff’s attorney recorded his recollection in an affidavit attached to his ARAP Rule 10(f) motion:

“I have an independent recollection of what was said by Mr. Lee during opening statement. Mr. Lee stated, in sum and substance, that there was a workman’s [sic] compensation insurance carrier involved in this case and that the insurance company would also receive some of the proceeds from any judgment rendered in favor of the plaintiffs. Said comments were in response to a statement made by myself to the effect that the minor children were the party-plaintiffs [sic] in this case and would be the beneficiaries of any verdict. A discussion took place in chambers out of the presence of the jury, which is set forth in Volume 2 of the Record on Appeal, pages 28-30. Mr. Hogan objected to this statement by Mr. Lee, and the court overruled same.”

The record shows with reasonable certainty that defense counsel made reference to workmen’s compensation insurance. Even though the exact statement made by counsel was not preserved because the court reporter did not transcribe it, we find that the record on appeal discloses “with reasonable certainty what was said in the court below.” Flowers v. State, 269 Ala. 395, 397, 113 So.2d 344 (1959); Southern Electric Generating Company v. Lance, 269 Ala. 25, 30, 110 So.2d 627 (1959).

This Court has held many times “that any showing that the plaintiff has received insurance benefits for his injuries is prejudicial to his case and should not be admitted.” Jones v. Crawford, 361 So.2d 518, 521 (Ala. 1978); Vest v. Gray, 275 Ala. 286, 154 So.2d 297 (1963); Coleman v. Hamilton Storage Co., 235 Ala. 553, 180 So. 553 (1938).

Based on the foregoing, the judgment of the trial court is due to be reversed and the cause remanded.

REVERSED AND REMANDED.

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

      . “(f) Correction or modification of the record. If any difference arises as to whether the record truly discloses what occurred in the trial court, the difference shall be submitted to and settled by that court and the record made to conform to the truth. If anything material to either party is omitted from the record by error or accident or is misstated therein, the parties by stipulation, or the trial court either before or after the record is transmitted to the appellate court, or the appellate court, on proper suggestion or of its own initiative, may direct that the omission or misstatement be corrected, and if necessary that a supplemental record be certified and transmitted. All other questions as to the form and content of the record shall be presented to the appellate court. (Amended 10-14-76, eff. 1-16-77.)”


text:
    Charles HARRISON v. WOODLEY SQUARE APARTMENTS, LTD., et al.
    81-111.
    Supreme Court of Alabama.
    Sept. 24, 1982.
    Rehearing Denied Oct. 22, 1982.

      Calvin M. Whitesell and Roger S. Morrow, Montgomery, for appellant.
    Mark W. Lee and W.J. McDaniel of McDaniel, Hall, Parsons, Conerly, Scott & Lusk, Birmingham, for appellees.
   MADDOX, Justice.

This case arises from an adverse judgment against the plaintiff in a personal injury action involving an accident at an apartment complex’s swimming pool. The appellant seeks to reverse the judgment on four issues: (1) that the prejudicial nature of defense counsel’s remarks during closing argument, regarding the plaintiff’s medical history, constituted reversible error; (2) that the defendant improperly made comments regarding the failure of a witness to testify; (3) that photographs the defendant offered were improperly admitted into evidence and (4) the photographs the plaintiff offered into evidence were improperly excluded.

The accident occurred at Woodley Square Apartments in Montgomery. The plaintiff, Charles Harrison, went to the apartment complex with some friends on the night of June 23, 1979. Mark Cannon, a resident at Woodley Square, invited Harrison and the others to the apartment complex. After arriving, the group decided to sit beside one of the complex’s pools. The plaintiff decided to dive into the pool after asking Cannon if he could go swimming. When Harrison went into the pool, he mistakenly dove into the shallow end and suffered serious injury when he struck his head on the bottom of the pool. At trial, Harrison asserted that the defendant, Woodley Square Apartments, maintained inadequate lighting and insufficient depth markings around the swimming pool. The jury rendered a verdict in favor of the defendant and Harrison appealed.

During closing argument, the defendant referred to the plaintiff’s medical history. The defendant incorrectly stated that on one occasion Harrison had been hospitalized for an overdose of “librium, codeine, cocaine, aspirin and Scotch combination.” The plaintiff failed to object at that point in the defendant’s argument. When the plaintiff incorrectly believed that the defendant had made another reference to cocaine an objection was made. The trial court acknowledged that an improper reference to cocaine had been made during defense counsel’s argument, and in the jury’s presence the following took place:

“THE COURT: In Mr. McDaniel’s argument, he was referring to the hospital records of the Plaintiff and he referred to some of the history. What this is reference to is a history and not something that took place at the time. And also, it explicitly states in the record that — it says nothing in there about cocaine, it was Codeine, and since that was stated and if Mr. Daniel corrects that, if that was what was said, certainly you wouldn’t consider that in any way because that would be highly prejudicial and don’t let that in any way affect you in the outcome of this verdict, and make certain that you understand, first, that was not the facts, and everything else is argument, and only — past—well, that is what a history is, the past.
“MR. MORROW: Your Honor, we move for a mistrial at this time.
“THE COURT: All right, sir. Based upon my instructions to you, I am going to deny the mistrial and tell you to remove that. It is an incorrect statement and Mr. McDaniel will tell you so.
“MR. McDANIEL: Yes, sir. Thank you. May it please the Court, and ladies and gentlemen of the jury, the word that I used, if I use Codeine, that is not correct. I want to be sure because they are in the record. Librium, Codeine, Aspirin, and a Scotch combination during the year of ’79.”

This Court clearly stated the rule regarding improper argument in Estis Trucking Co. v. Hammond, 387 So.2d 768 (Ala.1980). When an objection to improper argument is sustained and the trial court admonishes the jury:

“[T]he test on motion for new trial and on appeal is whether the argument was so harmful and prejudicial that its influence was not or could not be eradicated by the action of the court. McLemore v. International Union, etc., 264 Ala. 538, 88 So.2d 170. When, after applying this test, the trial court denies a motion for new trial, its determination is presumed correct on appeal. McLemore v. Interna-tiona} Union, etc., supra. In order to overturn such presumption, the reviewing court must determine from the facts and circumstances that the ruling of the court was unjust and plainly erroneous. [Essix v. City of Birmingham], 54 Ala.App. at 348, 308 So.2d at 259.”

Id. at 772. It is evident from the record that the trial court’s ruling was not “unjust and plainly erroneous.” Judge Hooper’s instructions to the jury sufficiently erased any prejudicial effect the “defendant’s comments may have had, thereby nullifying any potential grounds for reversible error.

The second issue raised on appeal also focuses on the defendant’s closing argument. A comment was made about Mark Cannon and his failure to testify at trial. The plaintiff objected on the grounds that any reference to a witness’s failure to testify, when that witness is equally available to both parties, is improper. This Court recognized that general rule in City of Birmingham v. Levens, 241 Ala. 47, 52, 200 So. 888 (1941); C. Gamble McElroy’s Alabama Evidence, § 191.01 (3d ed. 1977). Other decisions have defined when a witness is “equally available” or “equally accessible.”

The fact that either party can subpoena a potential witness does not make that witness automatically “equally accessible.” Donaldson v. Buck, 333 So.2d 786, 788 (Ala. 1976). Cases exist where a potential witness favors one party over another. In Donaldson, the potential witness had filed his own suit against one of the parties. The potential witness was correctly not classified as “equally accessible.” Id. at 789.

The Donaldson reasoning was recently applied in a decision involving a medical malpractice suit. In Drs. Lane, Bryant, Eubanks & Dulaney v. Otts, 412 So.2d 254 (Ala.1982), the potential witness was a physician whose testimony would clearly be favorable to the defendants. This Court refused to find that the potential witness was “equally available.” Justice Beatty wrote, “It is not unreasonable to conclude that he [the witness] would be friendly toward defendants and unfriendly toward plaintiffs. Under these circumstances we cannot find that Dr. Mostellar was ‘equally available’ to plaintiff as to defendants as that term is used in Donaldson and the cases discussed therein.” Id. at 260.

Mark Cannon and the plaintiff were obviously friends in the present case. Cannon invited Harrison to come by the apartment complex. It is easy to infer that Cannon’s testimony would favor the plaintiff. As we ruled in Otts, the trial court is in the best position to weigh a witness’s “equal availability.” Id. Thus, the trial court properly allowed defense counsel to comment about Mark Cannon’s failure to testify.

The appellant also asserts that the trial court improperly admitted photographs the defendant offered into evidence. These photographs showed the swimming pool and the surrounding deck area. The pictures were taken during daylight hours and the plaintiff claimed that because the accident occurred at night the photographs were improperly admitted.

Before photographs may be properly admitted, two general conditions must be satisfied. First the picture must be properly verified and secondly, the photograph must tend to prove or disprove some relevant fact or must corroborate or disprove some other evidence offered or to be offered. McLemore v. Alabama Power Co., 285 Ala. 20, 228 So.2d 780 (1969), appeal after remand, 289 Ala. 643, 270 So.2d 657 (1972); Louisville & N. R.R. Co. v. Hall, 91 Ala. 112, 8 So. 371 (1890) (photograph may be authenticated by witness other than photographer); Farris v. State, 57 Ala.App. 390, 328 So.2d 640 (Ala.Cr.App.1976); Hardy v. State, 53 Ala.App. 75, 297 So.2d 399 (Ala.Cr.App.1974); See C. Gamble McElroy’s Alabama Evidence §§ 123.03(1)(4) (3d ed. 1977). The apartment complex manager authenticated the photographs, stating that the pictures accurately showed the swimming pool area. Whether a photograph is admissible is left up to the sound discretion of the trial court and his decision will not be reversed except for a showing of abuse. Moon v. Nolen, 294 Ala. 454, 318 So.2d 690 (1976); Fletcher v. State, 291 Ala. 67, 277 So.2d 882 (1973); Nettles v. Bishop, 289 Ala. 100, 266 So.2d 260 (1972); C. Gamble McElroy’s Alabama Evidence § 123.03(2) (3d ed. 1977).

The photographs were offered to show the swimming pool and the size of the deck. These photographs helped the jury to become familiar with the location of the accident. Although the photographs were taken during the daytime and the accident occurred at night, the trial court did not err when it admitted the pictures. The general rule for admission of photographs does not mandate that the photographs show the identical conditions as they existed at the time of the accident. Atlantic Coast Line R.R. v. Maynard Const. Co., 259 Ala. 623, 67 So.2d 893 (1953). Such a strict standard would severely limit the use of photographs as evidence. The pictures offered by the defendant could have aided the jury, and their admission into evidence did not unfairly prejudice the plaintiff; therefore, the photographs were properly admitted into evidence.

Finally, the trial court correctly exercised its discretion when it refused to admit certain photographs the plaintiff offered into evidence. These photographs were taken more than a year after the accident and showed how the lighting conditions around the pool had changed. The improper placement and maintenance of lights around the pool were material issues in the case. Any photographs taken subsequent to the accident which showed a material difference in the pool’s lighting condition were clearly inadmissible. Williams v. Wicker, 235 Ala. 348, 179 So. 250 (1938); City of Montgomery v. Quinn, 246 Ala. 154, 19 So.2d 529 (Ala.1944). These photographs do not fit into the exception of this rule of law carved out in this Court’s decision in Dixie Electric Co. v. Maggio, 294 Ala. 411, 318 So.2d 274 (1975) (testimony regarding a change in condition admitted as part of the res gestae).

For the reasons stated, the judgment is affirmed.

AFFIRMED.

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

      . Professor McElroy refers to a witness as being “equally available,” C. Gamble McElroy’s Alabama Evidence § 191.01 (3d ed. 1977). This Court has interchanged the terms “equally accessible” and “equally available.”


author: JONES, Justice.

text:
    Ralph P. EAGERTON, Jr., Commissioner, State Department of Revenue v. COURTAULDS NORTH AMERICA, INC.
    81-107.
    Supreme Court of Alabama.
    Oct. 22, 1982.

      Charles A. Graddick, Atty. Gen., and Herbert I. Burson, Jr., B. Frank Loeb, and Charles E. Crumbley, Asst. Attys. Gen., for appellant.
    W. Dewitt Reams and Nancy Perry Leslie, Mobile, for appellee.
   JONES, Justice.

On June 1, 1979, Plaintiff/Appellee Cour-taulds North America, Inc., petitioned Defendant/Appellant Ralph P. Eagerton, Jr., as Commissioner of the State Department of Revenue, for a refund of sales and use taxes paid by Courtaulds on fuel oil purchases for the period May 17, 1976, through April 29, 1979. The refund was requested because the taxes were paid on fuel oil allegedly used primarily as an integral part of pollution control devices.

Following the Department of Revenue’s denial of its petition, Courtaulds sought a writ of mandamus from the circuit court, seeking to compel a refund of $180,000, with interest. A joint stipulation of facts was entered into by the parties, including the agreement that additional sales and use tax liability for purchases of fuel oil between April 30, 1979, and October or November of 1980 would be governed by the outcome of the instant proceedings. The stipulation contained no agreement respecting any allocation as between the two types of fuel (fuel oil and natural gas).

By letter dated August 10, 1981, the trial judge solicited assistance from counsel for both parties in drafting an order that would grant a portion of the refund to Courtaulds, premised upon an allocation of the two types of fuel used to generate steam in Courtaulds’ boilers. Counsel for Eagerton notified the court that he declined to participate in the formulation of the proposed order as suggested, as the data required were peculiarly within the knowledge and expertise of Courtaulds. Courtaulds agreed to assist the court, and submitted calculations along with two proposed orders for consideration. Thereafter, on September 11, 1981, the trial court conducted an evi-dentiary hearing, seeking clarification, as well as commentary from both parties, concerning the materials submitted by Cour-taulds. Relying on § 6-8-103 (allowing a party to supply an omission in testimony), Eagerton contested the propriety of these proceedings, proffering both an oral and a written motion to exclude any “additional evidence” submitted at this hearing. The trial court declined to rule on either motion.

On September 23, 1981, the trial court entered a final judgment requiring Eager-ton, as Commissioner of the Department of Revenue, to refund to Courtaulds sales and use taxes of $80,366.11, plus interest. The Commissioner appeals.

We affirm.

FACTS

Courtaulds North America, Inc., is an Alabama corporation engaged in the production of rayon staple fiber at its plant in Le Moyne, Mobile County, Alabama. Pursuant to state and federal directives, Courtaulds installed as part of its pollution control facilities acid recovery and carbon disulfide removal systems, both of which require boilers to produce steam necessary for their operation.

For purposes of safety and economic reliability, all -boilers at the Courtaulds plant are housed in a central unit, generating steam into a common pipeline, serving the entire facility. All boilers are capable of using either fuel oil or natural gas. Two boilers, designated as No. 7 and No. 8, were purchased to supply the required steam for the new pollution devices. Courtaulds paid no taxes on this purchase.

During the relevant period, May 17,1976, through April 29, 1979, there were approximately nine boilers generating steam at the plant. All boilers were fired interchangeably with either natural gas or fuel oil. Boilers No. 7 and 8 have a steam generating capacity of 70,000 Ibs./hour each for a total of 140,000 Ibs./hour, while the total capacity of the remaining boilers is 250,000 Ibs./hour. During the relevant period, boilers No. 7 and 8 consumed 8,757,411 gallons of fuel oil.

As a result of the installation of boilers No. 7 and 8, and the pollution control devices, additional fuel oil was purchased by Courtaulds. Natural gas was the preferred energy source, but depreciated allocations necessitated the purchase of fuel oil. Some natural gas was still used, however, to fuel the boilers.

Pursuant to an audit of the period in question, Courtaulds was informed by a Department of Revenue field representative that establishment of a workable formula, determining the amount of fuel oil (as opposed to natural gas) used exclusively in the pollution control devices, might result in a favorable determination by the department regarding an exemption of sales and use taxes for Courtaulds on the purchases of such fuel oil. Although the acid recovery unit was equipped with flow meters to measure the amount of steam (Ibs./hour) consumed, the carbon disulfide system lacked sufficient monitoring instruments. As a result, the amount of steam was calculated, using scientific factors or “constants.”

Frank Hawkins, Courtaulds’ chief design engineer, testified at trial as to the calculations used in support of Courtaulds’ claim to an exemption. William Chapman, assistant treasurer and assistant secretary for Cour-taulds, submitted testimony that of the 16,-260,333 gallons of fuel oil consumed during the relevant period, 14,982,724 gallons (92%) was claimed by Courtaulds to have been used primarily by its pollution control devices. The total cost of the fuel oil so used was $4,399,228 and the total tax computed thereon was $175,969.

At the supplemental hearing on September 11, 1981, Courtaulds submitted, over Eagerton’s objections, Plaintiff’s Exhibit No. 7, containing calculations based on evidence already in the record, with the exception of Column 2, indicating the total amount of steam generated.

SALES AND USE TAX EXEMPTIONS

Courtaulds’ position on appeal is that a portion of the fuel oil used during the relevant period to fire its boilers should be exempt from “sales” tax under Ala.Code 1975, § 40-23-4-(16), and from “use” tax pursuant to Ala.Code 1975, § 40-23-62(18), because a portion of the total steam produced from its boilers was used to operate its pollution control facilities. The Department of Revenue, through Eagerton, disagrees, and submits that the fuel oil purchases do not fall within the specified exemptions of § 40-23 — 4 (sales tax) and § 40-23-62 (use tax):

“§ 40-23-4. Exemptions.
“There are exempted from the provision of this division and from the computation of the amount of the tax levied, assessed or payable under this division the following:
“(16) The gross proceeds from the sale of all devices or facilities, and all identifiable components thereof or materials for use therein, acquired primarily for the control, reduction or elimination of air or water pollution and the gross proceeds from the sale of all identifiable components of or materials used or intended for use in structures built primarily for the control, reduction or elimination of air and water pollution.”
“§ 40-23-62. Exemptions.
“The storage, use or other consumption in this state of the following tangible personal property is hereby specifically exempted from the tax imposed by this article:
“(18) The storage, use or consumption of all devices or facilities, and all identifiable components thereof or materials for use therein, used or placed in operation primarily for the control, reduction or elimination of air or water pollution, and the storage, use or consumption of all identifiable components of or materials used or intended for use in structures built primarily for the control, reduction or elimination of air or water pollution.”

Close analysis of §§ 40-23-4(16) and 40-23-62(18) evidences the qualifications for the stated exemptions. First, it must be a device or facility acquired primarily for pollution control purposes. Or second, it must be an identifiable component of a device or facility acquired primarily for pollution control purposes. Or third, it must be a material for use in a device or facility acquired primarily for pollution control purposes.

Code 1975, § ll-54-88(c)(2), defines “pollution control facility” as follows:

“Any land, building, structure, machinery or equipment having to do with or designed for or the end purpose of which is the control, reduction, abatement or prevention of air, noise, water or general environmental pollution, including, but not limited to, any air pollution control facility, noise abatement or reduction facility, water management facility, water purification facility, waste water collecting system, waste water treatment works or solid waste disposal facility.”

Inherent in the trial court’s judgment for Courtaulds was a determination that boilers No. 7 and 8 were “devices” or “facilities” acquired primarily for pollution control. These two boilers were purchased specifically to meet the additional steam requirements caused by installation of the pollution facilities. Eagerton argues that these two boilers operated in a manner similar to all the others at the Courtaulds plant, and because all steam generated was channeled into a central line for distribution, it cannot be said that boilers No. 7 and 8 were “uniquely” associated with pollution control. Despite the correctness of the basic premise of such assertions, the trial judge, supported by competent scientific data, found to the contrary.

It is the policy of this Court to presume correct the findings of the trial court based upon competent evidence, when the evidence is presented ore tenus. Findings of fact will not be disturbed on appeal if supported by the evidence or any reasonable inference therefrom, unless they are plainly and palpably erroneous. First Alabama Bank of Montgomery, N.A. v. Coker, 408 So.2d 510 (Ala.1982); Hopper v. Curry, 408 So.2d 83 (Ala.1981).

While certain historic, objective facts were submitted by stipulation, the evidence bearing upon the crucial issues was presented ore tenus. Moreover, our independent review of the entire record compels us to a conclusion totally consistent with that of the trial judge.

We are unable to adopt the assertion of the commissioner that the fuel oil consumed by boilers No. 7 and 8 was nothing more than an “aid” to their function. Rather, we agree with the trial court’s determination that the fuel oil was a “material” for use in a device or facility acquired primarily for pollution control purposes.

THE TRIAL COURT’S EVIDENTIARY HEARING

Eagerton contends that by accepting “additional evidence” from Courtaulds, subsequent to the close of the parties’ argument at trial, the trial court “reopened” the case in violation of Ala.Code 1975, § 6-8-103 (supra, at footnote 2). We disagree.

The trial judge requested assistance from both parties in drafting an order requiring numerous mathematical computations. Counsel for Eagerton declined to so participate, while Courtaulds submitted such data. Thereafter, the trial judge held a hearing for the purpose of analyzing and clarifying the matter submitted by Courtaulds. Both parties were present and each was afforded full opportunity to comment on, or seek to add to or subtract from, what had been presented to the court. Eagerton did neither, but simply objected to the propriety of the proceeding as a whole.

We fail to view this additional hearing as one that “reopened” the case. It is not uncommon in cases involving experts, and especially also involving mathematical calculations, for the trial court to seek assistance from all parties in moving toward a conclusion of the controversy. Nothing more was done in this instance. To hold, as the Commissioner suggests, that the court erred — in soliciting commentary from those more at home in a mathematical environment — would effectively restrict the permissible range of judicial discretion and seriously retard legitimate efforts to fully and fairly adjudicate a controversy.

AFFIRMED.

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

      . This refund procedure is authorized by Code 1975, § 40-1-34.

      . § 6-8-103 states:
      “The court may, at its discretion, at any time before the conclusion of the argument, when it appears to be necessary to the due administration of justice, allow a party to supply an omission in the testimony on such terms and under such limitations as the court may prescribe. (Code 1907, § 5351; Code 1923, § 9490; Code 1940, T. 7, § 252.)” (Emphasis added.)

      . No sales or use tax is levied on the purchase or use of natural gas. It is taxable through a utility tax. However, there is no exemption from the utility tax for natural gas for pollution control devices.

      . These calculations were admitted into evidence as Plaintiffs Exhibit No. 1, with no objection by the Department of Revenue.

      . This resulted in a finding that 42.2% of the total steam generated during the relevant period was used for pollution control and that 6,861,860 gallons of fuel oil was exempt from sales and use tax. Additionally, the trial court found the fuel oil to have been purchased at an average price of 29.28 cents per gallon, and with the application of a 4% tax rate, determined the total refund due Courtaulds to be $80,366.11.


author: BEATTY, Justice.

text:
    Ouida M. MARTIN v. FIDELITY & CASUALTY COMPANY OF NEW YORK and Underwriters Adjustment Company.
    81-284.
    Supreme Court of Alabama.
    Oct. 22, 1982.
    Jack W. Smith of Smith & Smith, Do-than, for appellant.
    William L. Lee, III, and William C. Carn, III, of Lee & Mclnish, Dothan, for appel-lees.
   BEATTY, Justice.

The plaintiff appeals from dismissal of her claims for breach of contract, trespass and fraud. We reverse on the contract and fraud claims, and remand.

The second amended complaint alleges that the plaintiff, Ouida Martin, had insurance on her home with the defendant, Fidelity & Casualty Company of New York. On September 23, 1975, Hurricane Eloise damaged her home. The complaint goes on to read as follows:

“(6) That within a period of a few days an adjuster from the Defendant, Underwriters Insurance [Adjustment] Company, appeared at Plaintiffs home and with a contractor surveyed the damage to the premises and particularly to the roof of said house. That thereafter the Defendants caused to appear at this residence workmen for the contractor provided by the said insurer, or his adjuster, Underwriters, and work began immediately on the roof of the house, and other areas of the structure that were damaged. That the plaintiff was given no choice or discretion in the employment or selecting of a contractor or workman to reroof her home that had been damaged as afore-stated.
“(7) That after the repairs were purportedly finished, there were certain apparent defects that the Plaintiff called to the agent’s attention and these apparent defects were in due course corrected and the Plaintiff assumed that the roof on her home had been installed in a proper and workman-like manner and would, therefore be wind and water proof.
“(8) That the Defendant, Fidelity & Casualty Company of New York, breached its contract with Plaintiff in that it permitted its agent, Underwriters Ad-judgment [sic] Company, for whose acts it was responsible, to employ a contractor to re-roof Plaintiffs home who knew or should have known, that said contractor was violating every approved method of properly and in a workman-like manner installing a new roof that would be wind and water proof, and that it in fact employed a contractor who it knew was installing the roof in an unworkman-like and negligent manner that would not properly shield the Plaintiff’s home from the elements. The Defendants, and each of them, further knew that its contractor was re-roofing the home in such a manner that it was impossible for the Plaintiff to know of the penetration of the elements into the immediate under-structure and Defendant’s said contractor was installing a roof that would cause and did cause the utter destruction of many of the rafters, studs, framing and other materials under the roof but not discoverable from an outside view of said roof by the Plaintiff.
“That it was not until June 1981, that the said understructures of rafters, studs, framing and other materials under the improperly installed installed [sic] roof were discovered by the Plaintiff due to the commencement of signs of deterioration that could be seen by the layman’s eye and then, and only then, did she know or could she as a layman have known, of the improperly installed roof with its attendant failure to shield her home from the elements. That the Defendant, Fidelity & Casualty Company, and United Underwriters Company as their agent, breached the contract with the Plaintiff by failing to pay the Plaintiff for the damages that had been caused by the aforementioned hurricane, or in the alternative, to re-roof the Plaintiff’s home in a workman-like manner, and in refusing to give Plaintiff any choice in the matter.
“(9) That the Defendants committed an act or acts of fraud upon the Plaintiff in that they with full knowledge, had or caused a faulty and improperly installed roof to be applied to Plaintiff’s home as aforedescribed with the intent to defraud Plaintiff of a contractor to install a proper roof and with an improperly installed roof which they knew would cause Plaintiff’s home to be unduly exposed to the elements, all done with the intention to defraud the Plaintiff.
“(10) That the Plaintiff has requested of the Defendants since her discovery of the damages to repair and renovate the major destruction that has been caused by their negligent procuring of a contractor that so improperly re-roofed Plaintiff’s home, but they have constantly and continually refused to do so.”

The plaintiff sought $10,431.60 in compensatory and $25,000.00 in punitive damages. The defendants moved to dismiss on the ground of failure to state claims upon which relief could be granted and the statute of limitations. The trial court granted the motion without opinion.

1 “The well-understood position of an appellate court reviewing the grant of a motion to dismiss is, taking the allegations of the complaint most strongly in favor of the pleader, to determine whether the plaintiff could prove any set of facts in support of his claim which would entitle him to relief. Rule 12, ARCP, and commentary.” Jones v. Lee County Commission, 394 So.2d 928, 930 (Ala.1981). Cf. Lloyd v. Community Hospital of Andalusia, Inc., 421 So.2d 112 (Ala.1982). However, it is for the plaintiff and not the court to articulate the claims forming a basis for relief. “The liberalized rules of procedure have not eliminated pleadings as the principal means by which parties themselves choose the issues which they wish to litigate.” Zeigler v. Baker, 344 So.2d 761, 763 (Ala.1977).

Some confusion exists as to exactly what claims the plaintiff is asserting. The complaint is captioned “Second Amended Complaint For Breach Of Contract and Fraud.” However, in brief the appellant argues that the complaint also includes a claim for “negligent trespass, i.e. a direct trespass quare clausum fregit.” The defendants in their brief assume that the plaintiff is attempting to allege either trespass or negligence (trespass on the case) and then argue that no claim is stated for trespass and that the statute of limitations bars any claim for negligence. We conclude that the plaintiff has not asserted a claim for negligence because of language in her brief that the action complained of “is a trespass against the property and not one on the case.” However, we will consider the plaintiff’s trespass claim, since the defendants have apparently waived any contention that this claim was not raised in the lower court.

It is clear that the allegations of breach of contract are sufficient to state a claim under Rule 12(b)(6), Alabama Rules of Civil Procedure. Fidelity argues that “the plaintiff has stated no factors or circumstances which would impute any negligence on the part of the unidentified contractor to this defendant.” However, the complaint specifically alleges that the contractor was employed by Underwriters acting as agent for Fidelity. That the contractor was not identified is irrelevant at this stage in the proceedings.

The allegations of the complaint are insufficient to establish trespass as claimed here. “[A]n action for trespass quare clausum fregit will not lie unless plaintiff’s possession was intruded upon by defendant without his consent, even though consent may have been given under a mistake of facts, or procurred by fraud, or unless he entered under a license for some particular purpose and went beyond that purpose.” Alexander v. Letson, 242 Ala. 488, 492, 7 So.2d 33 (1942). The allegations here establish only that Mrs. Martin did not consent to the particular contractor used by the defendants. There is no suggestion that she did not consent to the entry on her property for purposes of repairing her house.

As to the fraud claim, the defendants correctly argue that allegations of breach of the insurance contract do not themselves state a claim for fraud. However, the complaint includes additional allegations that the defendants intended to defraud Mrs. Martin and that they knew the contractor was doing defective work in a manner that would not soon be discovered. Although the plaintiff does not say in so many words that she was damaged as a proximate result of her reliance on the defendant’s intentional misrepresentation or concealment of material facts, see Roberts v. Carroll, 377 So.2d 944, 946 (Ala.1979), these elements of fraud are each discema-ble in the facts alleged. Accordingly the complaint states a claim for fraud.

The remaining question is whether the fraud claim is barred by the statute of limitations. For fraud the limitations period is one year from the date the fraud was discovered or should have been discovered. Code of Ala. 1975, § 6-2-3. The defendants contend that the plaintiff has not pleaded the facts and circumstances of the discovery of the fraud with the specificity required by Amason v. First State Bank of Lineville, 369 So.2d 547, 550-51 (Ala.1979), and Russell v. Maxwell, 387 So.2d 156, 159 (Ala.1980). We disagree. The complaint explains that the internal deterioration caused by the defective repairs did not become visible to the plaintiff’s untrained eyes until June 1981. The complaint also alleges in paragraph (7) that the plaintiff assumed the work was completed after certain “apparent defects” were repaired at the time of the original work. These allegations sufficiently explain the plaintiff’s position that she had no reason to know earlier about the alleged fraud. Accordingly the fraud claim cannot be dismissed at this stage in the proceedings on the ground of the statute of limitations.

We hold, then, that the plaintiff has stated claims for breach of contract and fraud that are not barred by the statute of limitations. For these reasons the order of dismissal must be, and is, affirmed in part and reversed in part, and the case is remanded for further proceedings.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

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


text:
    Johnny LLOYD v. COMMUNITY HOSPITAL OF ANDALUSIA, INC., a Corporation, and Earl Beck.
    81-921.
    Supreme Court of Alabama.
    Oct. 22, 1982.
    Van C. Gholston, Luverne, for appellant.
    Harold Albritton of Albrittons & Givhan, Andalusia, for appellees.
   JONES, Justice.

Plaintiff appeals from an order granting the Defendants’ motion to dismiss. Plaintiff’s complaint, as amended, alleges defamation for publication of the following statement:

“An Andalusia man died late Saturday night from wounds he received when a lone gunman burst into his home and opened fire with a shotgun.”
We affirm.

Admittedly, under our liberal “any discernable circumstances” rule for testing the propriety of an order granting or denying a motion to dismiss (Carter v. Calhoun County Board of Education, 345 So.2d 1351 (Ala.1977)), this is a close case. Ordinarily, the statement of almost any cognizable tort claim, under our practice of notice pleading, will withstand a motion to dismiss; and almost invariably the trial judge is well advised to allow the case to proceed at least to a summary judgment posture before determining the viability of any alleged claim.

Nonetheless, when the complaint is devoid of averments of the requisite elements of any legal claim upon which plaintiff might be entitled to relief, the motion is to be granted.

“ ‘[I]t is not enough [for the pleading] to indicate merely that the plaintiff has a grievance, but sufficient detail must be given so that the defendant, and the court, can obtain a fair idea of what the plaintiff is complaining [of], and can see that there is some legal basis for recovery.’ ” Thurston v. Setab Computer Institute, 48 F.R.D. 134,135 (D.C.N.Y.1969), quoting Eli E. Albert, Inc. v. Dun & Bradstreet, Inc., 91 F.Supp. 283, 284 (D.C.N.Y.1950), and J. Moore, Moore’s Federal Practice, at 1653 (2d ed. 1948).

See, also, Sutton v. Eastern Viavi Co., 138 F.2d 959, 960 (7th Cir.1943) (no claim for relief stated if an averment necessary to establish the wrong has been omitted). Cf., Martin v. Fidelity & Casualty Company of New York, 421 So.2d 109 (Ala.1982).

We find that the trial court did not err in dismissing the Plaintiff’s complaint. While the identification of the Plaintiff as the person allegedly defamed may be inferred, in many cases, from the totality of the circumstances, just the contrary result obtains here. If Plaintiff’s allegations of falsity pertain to that portion of the statement charging “a lone gunman burst into his home” (i.e., if Plaintiff is saying that he was not that person), then the statement was not made concerning the Plaintiff. If, on the other hand, the Plaintiff is the person who shot the victim, we are left to discern some other circumstance under which Plaintiff may seek recovery for the alleged defamation.

We hold that our discernment of any circumstances supportive of a cognizable claim must find some reasonable basis in the Plaintiff’s statement of his claim. To be sure, we could speculate that perhaps the Plaintiff is claiming that the alleged falsity lies in Defendants’ statement that the one who entered the victim’s home was a “lone” gunman, when in fact more than one gunman entered the victim’s home; or that the statement falsely implies that the Plaintiff entered the victim’s home as a stranger and killed him without cause or excuse, when in fact he knew the victim and the shooting occurred under extenuating circumstances. But these speculations are not supported by Plaintiff’s statement of the claim, nor can we find in the pleading any reasonable basis for the discernment of any circumstances supportive of a cognizable legal claim upon which relief can be granted.

AFFIRMED.

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