text:
    FRATERNAL ORDER OF POLICE CRESCENT CITY LODGE NO. 2, William Roth, William Patin, Ronald Kennedy, Ira Austin, Sr., John Graham and Patricia Childress v. The CITY OF NEW ORLEANS, the City Civil Service Commission of New Orleans, and the New Orleans Police Department.
    No. 12340.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 12, 1982.
    Writ Granted March 19, 1982.

      Dennis M. Angelico, Hess & Washofsky, New Orleans, for plaintiffs-appellants.
    Salvador Anzelmo, City Atty., Galen S. Brown, Deputy City Atty., New Orleans, for defendants-appellees.
    Before SCHOTT, GARRISON and KLEES, JJ.
   KLEES, Judge.

Plaintiffs brought this action seeking to recover additional wages allegedly due them since January 1, 1971, under Article 14, Section 25 of the Constitution of 1921, which provided for the City of New Orleans to levy a special property tax, the proceeds of which were to be used exclusively for the purpose of an increase in pay of the officers of both the Fire Department and Police Department.

Plaintiffs complain that the portion of the millage intended to increase their pay in 1928, which the City collects under this provision, was paid to them in a lump sum annually until January 1, 1971, at which time the City began to include the payment in the regular paychecks received by.plaintiffs on a bi-weekly basis.

It is the sufficiency of plaintiffs’ petition herein which is at issue, for the defendant-appellee City of New Orleans files peremptory exceptions of no cause of action and prescription to the plaintiffs’ petition. Following a hearing, the trial court sustained defendant’s exception of no cause of action, and rendered judgment dismissing the suit. Plaintiffs filed a motion for new trial, which was denied following hearing, and plaintiffs filed this appeal.

The sole issue for determination in this matter is whether or not the plaintiffs’ petition states a cause of action against the defendants.

The pertinent provisions of plaintiffs’ petition for the purposes of this appeal provide:

VI. Prior to January 1, 1971, the avails of said property tax were paid to those individuals employed as policemen by the New Orleans Police Department in a lump sum, annually, which sum was over and above the regular salary of said policemen.
VII. Since January 1, 1971, the City of New Orleans, the City Civil Service Commission of New Orleans, and/or the New Orleans Police Department have used the avails of said property tax as a contribution to the regular salary of the individuals who are, have been, or may be employed as policemen, thus depriving said individuals of the additional pay which was intended under the Louisiana Constitution of 1921 and 1974. Accordingly, defendants have been and continue to be in violation of the provisions of the Louisiana Constitutions of 1921 and 1974.

Article 14, Section 25 of the Constitution of 1921 provides as follows:

New Orleans; special tax for fire and police departments:
Section 25: In addition to such other taxes as the City of New Orleans is now, or may be hereafter, authorized to levy, said City shall levy annually a special tax, not exceeding three mills on the dollar, on all taxable property. In said City,. as assessed and valued for city taxation purposes. The avails of said special tax are hereby dedicated to the maintenance of a double platoon system in the Police Department of said City, and for an increase in the pay of the officers and men in said departments, respectively, and shall be used by said City exclusively for said purposes, respectively, according to such apportionment as said City may make from time to time; provided, however, that one-half the avails of said tax in excess of two mills shall be used exclusively for the purpose of an increase in the pay of officers and men in the Fire Department of said City, while the other half shall be used exclusively for the purpose of an increase in the pay of officers and men in the Police Department of said City. (Amended by Acts 1928, No. 260, adopted Nov. 6, 1928).

The provision in question authorized a special property tax for the City of New Orleans of not more than three mills and provided that the proceeds of the tax in excess of two mills “shall be used exclusively for the purpose of an increase in the pay” of policemen and firemen.

Defendants in this case rely on the case of Ziemer v. City of New Orleans, et al., 197 So. 754 (La.1940) and argue that our Supreme Court interpreted Article 14, Section 25 of the Constitution of 1921 as amended Act No. 260 of 1928, to be a one time increase in pay for the New Orleans policemen and firemen; plaintiff’s argue that Ziemer v. City of New Orleans, et al., supra neither discusses, implies nor infers a onetime-only increase in pay.

In Ziemer, the plaintiff firemen had received several reductions in pay during the years 1933-35, after they had received increased in salary pursuant to Article 14, Section 25 of the Louisiana Constitution as amended by Act 260 in 1928. The firemen were suing for the restoration of their pay. They contended that the avails of the special property tax had to be applied exclusively to the payment of increases in their salaries. The Louisiana Supreme Court found that the compensation which the firemen were receiving was indeed insufficient. Therefore, when Article 14, Section 25 was amended in 1928 by Act 260, an increase in compensation, inter alia, was contemplated.

The Supreme Court stated, at pp. 757-758:

The annual appropriation for the years 1919 and 1920 for the maintenance of the Fire Department was $673,690.80 and in the year 1938 the appropriation was $1,200,000. The estimated receipts derived from one-half of the 1 mill tax in 1938 was $210,733.01. The estimated return of half of the 2 mill tax in 1938 was $421,466.02. The appropriation in 1938 after deducting the proceeds of the tax, would amount to $567,800.97. In other words, the appropriation in 1938, after deducting the proceeds of the tax, was far short of the annual appropriation of the years 1919 and 1920, prior to both amendments to the Constitution. Act 78 of 1920, adopted as a constitutional amendment and incorporated in the Constitution of 1921 as Section 25 of Article 14, reads: “In addition to such other taxes as the City of New Orleans is now, or may be hereafter, authorized to levy, said city shall levy annually a special tax not exceeding two mills on the dollar, on all taxable property in said City, as assessed and valued for City taxation purposes the avails of said special tax are hereby dedicated to the maintenance of a double platoon system in the fire department and a triple platoon system in the police department of said City and for an increase in the pay of the officers and men in said departments, respectively, and shall be used by said City exclusively for said purposes, respectively, according to such apportionment as said City may make from time to time.” Section 25 of Article 14, as amended by Act 260 of 1928, reads: “In addition to such other taxes as the City of New Orleans is now, or may be hereafter, authorized to levy, said City shall levy annually a special tax, not exceeding three mills on the dollar, on all taxable property in said City, as assessed and valued for city taxation purposes. The avails of said special tax are hereby dedicated to the maintenance of a double platoon system in the Fire Department and a triple platoon system in the Police Department of said City, and for an increase in the pay of the officers and men in said departments, respectively, and shall be used by said City exclusively for said purposes, respectively, according to such apportionment as said City may make from time to time; provided, however, that one-half the avails of said tax in excess of two mills shall be used exclusively for the purpose of an increase in the pay of officers, and men in the Fire Department of said City, while the other half shall be used exclusively for the purpose of an increase in the pay of officers and men in the Police Department of said City.
The defendants contend that the lower court erred in its interpretation of Section 25, as amended by Act 260 of 1928, in holding that the half mill of the tax should be used exclusively to increase the salaries of the members of the Fire Department over and above the amounts they were receiving at the time this latter amendment went into effect. The defendants contend that there is no duty imposed upon the City to appropriate out of the general fund an amount adequate to maintain the Fire Department, and in no event, less than was required for such maintenance prior to 1921, and that the amendment contains no provision making it the mandatory duty of the City to do so. The plaintiffs urge the affirmation of the judgment of the lower court in this respect.
Undoubtedly the Legislature was cognizant of the salaries that the members of the Fire Department were receiving at the times that both Acts were passed to amend the Constitution, and in instance felt that the salaries were insufficient because in both instances provisions were made to increase them. Section 25, as amended by Act 260 of 1928, contemplates raising or increasing the salaries. The Section, as amended, provides in effect that half a mill of the tax shall be used exclusively for an increase in the pay of the officers and men in the Fire Department. The Legislature must have been cognizant of the apportionment of the 2 mill tax authorized by Act 78 of 1920, which was adopted and made Section 25 of Article 14 of the Constitution of 1921. Prior to the constitutional amendment of 1921 the City maintained the Fire Department. As we take it the amendment of 1921 provided means to increase the department to a two platoon system and to increase the pay of the men. The City levied the tax for the special purposes and used the funds derived from it as designated. In our opinion the amendment contemplated that the City would continue to maintain the department in the same manner as it had before and would use the funds derived from the tax to increase the services of the department and the pay of the men. To say the least, the City availed itself of the provisions of this Section.
Also, when Section 25 was amended in 1928 the City availed itself of its provisions and levied the tax. Then, how can it be said that the City was not cognizant of the fact that it should maintain the Fire Department in the same manner, since the City availed itself of the amendments for increasing the services of the department and the pay of the firemen? The amendment of 1928 undoubtedly contemplated an appropriation of an additional amount from the general fund equal to the prior appropriation. This conclusion is evident from the significant language used in the amendment, viz.: “shall be used exclusively for the purpose of an increase in the pay.”

The Court ordered the salaries of the plaintiff firemen restored to the basis on which they were paid in 1929-30 when the Constitutional amendment in question first came into effect.

It is clear that the trial judge considered that the increase contemplated by the constitution required a one-time-only increase. We agree.

While the holding of Ziemer, in our opinion does not deal with this issue, the reasoning expressed by the court in its discussion of the legislative intent in increasing the salaries of the firemen and policemen and its determination that the City would continue to maintain the fire department in the same manner as it had before the amendment as well as contemplating an appropriation from the general fund equal to the prior appropriation, leads us to conclude that this was a one-time increase.

There is nothing in plaintiffs’ petition alleging that the supplement is not over and above salaries being paid at the time the law went into effect.

We are additionally pursuaded by defendants’ argument that it could not have been the intention of the legislature in 1928 to bind the City of New Orleans, so that all future wage increases once granted, could never be reduced at all.

Accepting the facts as presented in plaintiffs’ petition as true, which we must in determining the. merits of an exception of no cause of action, we find that defendants have used the avails of the special tax of Article 14, Section 25 to pay the salaries of police officers as intended.

For the reasons assigned, the judgment of the district court is affirmed at plaintiff’s cost.

AFFIRMED.


source: Caselaw Access Project

author: PONDER, Judge.

license: Public Domain

text:
    Neldon J. FINN, et al. v. Douglas EOFF, et al.
    No. 14617.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 13, 1982.
    Anthony Glorioso, New Orleans, for plaintiffs-appellants.
    Iddo Pittman, Jr., Hammond, for Douglas Eoff and John Yent.
    William E. Crawford, Baton Rouge, for Bernice Edwards.
    John Q. Mitchell, in pro. per.
    Milburn R. Fletcher, in pro. per.
    Edward Cosgrove, in pro. per.
    Before ELLIS, LOTTINGER and PONDER, JJ.
   PONDER, Judge.

This appeal was fixed for argument and all attorneys of record were notified. At the time scheduled for argument, the appellant was not present or represented, nor had any brief been filed on behalf of appellant, nor had any motion been filed for continuance.

On authority of Rule VII, Section 5(b), this court, ex proprio motu, considers said appeal as abandoned; therefore, it is ordered that this appeal be dismissed with prejudice.

APPEAL DISMISSED.


text:
    Leonard James EALY v. STATE of Mississippi.
    No. 52992.
    Supreme Court of Mississippi.
    Jan. 27, 1982.
    Rehearing Denied Feb. 24, 1982.
    Scott Stuart, Florence, for appellant.
    Bill Allain, Atty. Gen., by Robert D. Find-ley, Sp. Asst. Atty. Gen., Jackson, for appel-lee.
   Appeal from Circuit Court, Hinds County; William F. Coleman, Judge.

Before SMITH, P. J., and ROY NOBLE LEE and BOWLING, JJ.

AFFIRMED.


text:
    Clyde R. GOODWIN, Administrator of the Estate of Carolyn Carraway Goodwin, Deceased v. Richard R. CARRAWAY.
    No. 53247.
    Supreme Court of Mississippi.
    Feb. 3, 1982.
    Scales & Scales, Fred T. Rucker, III, Jackson, for appellant.
    Mason & Mason, Herman M. Mason, Jackson, for appellee.
   Appeal from Chancery Court, Hinds County; Joe G. Moss, Chancellor.

Before SMITH, P. J., and ROY NOBLE LEE and BOWLING, JJ.

AFFIRMED.


author: PER CURIAM.

text:
    Hazel L. DESROCHES, etc. v. COMPLETE AUTO TRANSIT, INC., etc.
    80-340.
    Supreme Court of Alabama.
    Dec. 11, 1981.
    Rehearing Denied Jan. 29, 1982.
    William H. Saliba, Mobile, for appellant.
    Mack B. Binion and Thomas 0. Bear of Lyons, Pipes & Cook, Mobile, for appellee.
   PER CURIAM.

This is an appeal from a summary judgment adverse to plaintiff Hazel L. Desroch-es in her action for damages for the deaths of her two sons, allegedly as a result of the negligence of defendants in a collision between two motor vehicles. The defense to that action was accord and satisfaction based upon a release. This case arose from a traffic accident which occurred on 26 March 1977 in which one son of plaintiff was killed instantly and the other died five days later from injuries sustained in it.

Within a few days of the death of the second son, an insurance adjuster representing defendants visited plaintiff and expressed his opinion, based on his investigation of the accident, that plaintiff’s son operating the vehicle was at fault in the accident. He nevertheless, offered to pay the funeral expenses for both sons in an aggregate amount of $5000. Plaintiff later accepted this money and on 23 May 1977, signed release agreements and covenants not to sue in the office of defendants’ attorney.

Plaintiff retained counsel in March, 1979, and on her attorney’s advice tendered return of $5000 to defendants, claiming to thereby rescind the release agreements. Defendants refused the tender and thereupon, on 23 March 1979, plaintiff filed suit.

Defendants, as their principal defense, pleaded accord and satisfaction. They also counterclaimed for breach of the releases and covenants not to sue. On motion of defendants, the trial court ordered separate trials of the issues of liability and validity of the release agreements. Summary judgment in favor of defendants was entered on the latter issue.

Initially, we consider plaintiff’s contention that the trial court exceeded its discretionary authority under Rule 42, ARCP, to order separate trials on the issues of liability and the validity of the releases. For resolution of this issue we need look no further than subsection (c) of Rule 18, ARCP, which states:

(c)Liability insurance coverage. In no event shall this or any other rule be construed to permit a jury trial of a liability insurance coverage question jointly with the trial of a related damage claim against an insured.

Turning to the question of whether the motion for summary judgment was properly granted, plaintiff opposed defendants’ motion on theories that the releases were procured by fraud and plaintiff, in signing the releases, lacked the requisite mental capacity to comprehend her actions. Consequently, she argued, her attempted rescission was effective to void both releases.

On appeal, plaintiff submits there existed at least a scintilla of evidence of fraud and diminished mental capacity which mandated denial of the motion for summary judgment. Regarding these issues, plaintiff initially complains that the trial judge, at the hearing on the motion for summary judgment, erroneously stated that plaintiff would have to prove she was non compos mentis on the date of signing to void the agreements. Plaintiff also alleges the trial court erroneously ruled that certain statements of plaintiff and her husband about the circumstances surrounding the signing were inadmissable under the parol evidence rule, and further that testimony of a psychologist who first examined plaintiff in April 1980 would not be permitted.

No record of the proceedings at the hearing on the motion for summary judgment has been designated as part of the record on this appeal; therefore, we cannot consider plaintiff’s allegations of statements and rulings made by the trial court at that hearing.

Plaintiff argues that it is inherently unfair to deny review of the proceedings at a hearing in which a court reporter is customarily not present, as was the situation here. However, in addition to her privilege to employ a reporter to record and transcribe the proceedings at the hearing on the summary judgment motion, plaintiff had available two devices for preserving a record of those proceedings under subsections (d)and (e) of Rule 10, ARAP:

(d) Statement of the evidence or proceedings ■ when no report was made or when the transcript is unavailable. If no record of the evidence or proceedings at a hearing or trial was made, or if a transcript is unavailable, the appellant may prepare a statement of the evidence or proceedings from the best available means source, including his recollection. The statement shall be served within 49 days (seven weeks) after notice of appeal on the appellee, who may serve objections or propose amendments thereto within seven days (one week) after service. Thereupon the statement and any objections or proposed amendments shall be submitted to the trial court for settlement and approval and as settled and approved shall be filed with and included by the clerk of the trial court • in the record on appeal.
(e) Agreed statement as the record on appeal. In lieu of the record on appeal as defined in subdivision (a) of this rule, the parties may prepare and sign a statement of the case showing how the issues presented by the appeal arose and were decided in the trial court and setting forth only so many of the facts averred and proved or sought to be proved as are essential to a decision of the issues presented. If the statement conforms to the truth, it, together with such additions as the court may consider necessary fully to present the issues raised by the appeal, shall be approved by the trial court and shall be certified to the appellate court to which such appeal is taken as the record on appeal and transmitted thereto by the clerk of the trial court within the time provided by Rule 11. Copies of the agreed statement may be filed as the appendix required by Rule 30.

Plaintiff pursued none of these available options.

“This court is bound by the record before it; and the burden is on the appellant to perfect and prosecute the appeal as required by law and the rules of this court and to see that all proceedings before the trial court are contained in the record on appeal.” Zills v. Brown, 382 So.2d 528 (Ala.1980).

Looking to the more substantive question of whether there existed a scintilla of evidence that the release agreements were procured by fraud or were signed by plaintiff while in a state of diminished mental capacity, we have carefully examined the pleadings, depositions, answers to interrogatories, and other documentary evidence offered in support of and in opposition to defendants’ motion for summary judgment.

In reviewing these materials we are guided by the principles enunciated in Whatley v. Cardinal Pest Control, 388 So.2d 529 (Ala.1980);

Under Rule 56 of the Alabama Rules of Civil Procedure, summary judgment is appropriate only when the moving party has demonstrated, by the pleadings, answers to interrogatories, depositions and affidavits, that there is no genuine issue of material fact and that the movant is entitled to the requested relief as a matter of law. Campbell v. Alabama Power Co., 378 So.2d 718, 721 (Ala.1979); Donald v. City National Bank, 295 Ala. 320, 329 So.2d 92, 94 (1976). Once the movant supports his motion by affidavits or other testimony, the adverse party may not rest upon the allegations or denials contained in his pleadings; he must respond and show that a material issue of fact does exist. Campbell v. Alabama Power Co., supra; Ray v. Midfield Park, 293 Ala. 609, 308 So.2d 686 (1975). Evidence offered in response to the motion, in the form of affidavits or otherwise, must be more than a mere verification of the allegations contained in the pleadings, Morris v. Morris, 366 So.2d 676, 678 (Ala.1978); and must present facts which would be admissible into evidence. Morris v. Morris, supra; Oliver v. Brock, 342 So.2d 1, 4-5 (Ala.1976); Hunter v. Austin Co., 336 So.2d 203, 206 (Ala.Civ.App.1976); Wright & Miller, Federal Practice and Procedure: Civil 2738. In the event the opposing party fails to offer any evidence to contradict that presented by the moving party, the court is left with no alternative but to consider that evidence un-controverted. Mims v. Louisville Title Insurance Co., 358 So.2d 1028, 1029 (Ala.1978); Donald v. City National Bank, supra.

Defendants offered undisputed evidence that plaintiff executed the releases sought to be voided. We find no shred of evidence in the record, other than the conclusory statements of plaintiff’s pleadings and response to the motion for summary judgment, to support her claim that the execution of the releases on 23 May 1977, was attended by fraud or accomplished while plaintiff was in a state of diminished mental capacity.

No affidavit of plaintiff was filed in opposition to the motion for summary judgment. Plaintiff’s brief on appeal makes reference to several passages of testimony in her deposition which tend to show plaintiff’s mental duress resulting from the death of her sons. However, a reading of those passages reveals that the testimony relates only to the occasion on which plaintiff was visited at her home by the insurance adjuster, shortly after the accident; plaintiff has advanced no evidence of her diminished mental capacity some two months later, on or around 23 May 1977, the date on which the releases were signed.

Similarly, the record is void of evidence of any misrepresentations attending the signing of the releases; indeed, the only misrepresentations alleged by plaintiff were the adjuster’s statements to plaintiff on 26 March 1977, when he opined that plaintiff’s sons were at fault in the accident.

One of the essential elements which must be proved by one charging fraud is reliance. Code 1975, § 6-5-101; Woodham v. Nationwide Life Insurance Co., 349 So.2d 1110 (Ala.1977). Counsel for plaintiff argues that plaintiff was relying on the adjuster’s statements when she signed the releases almost two months later. However, no specific evidence to that effect was offered in opposition to the motion for summary judgment.

Furthermore, plaintiff’s oral deposition affirmatively demonstrates an absence of reliance. During the conversation in plaintiff’s home on 26 March 1977, the adjuster stated that his investigation revealed that the son who had been driving failed to dim his bright lights immediately prior to the collision. Plaintiff in her deposition testified she knew that statement to be false, because she had the dimmer switch taken out of the automobile some time before the accident, with the result that the headlights could not be placed on high beam. Additionally, plaintiff’s own testimony discloses that she and her husband, who had received some training in accident investigation at a police academy, visited and examined the accident site and the wrecked automobile on numerous occasions, obtained a copy of the accident report and personally interviewed the investigating police officer who filed it, and at some point reached the conclusion that her son was not at fault in the accident. This being the case, as a matter of law, there could be no showing of reliance by plaintiff on statements made by the adjuster.

We find no genuine issue of material fact regarding defendants’ fraud in procuring the release agreements, or of plaintiff’s diminished mental capacity in executing them, to suppo.rt her claim of rescission. Accordingly, defendants’ motion for summary judgment was correctly granted by the trial court. Therefore, the judgment below is due to be and is hereby affirmed.

AFFIRMED.

MADDOX, FAULKNER, ALMON, EM-BRY and BEATTY, JJ., concur.


author: FAULKNER, Justice.

text:
    Glenda A. MILLER and Donald W. Miller v. The MOBILE COUNTY BOARD OF HEALTH, as Administrator of the Family Planning Clinic. Glenda A. MILLER and Donald W. Miller v. A. H. ROBINS COMPANY, INC.
    80-244, 80-244A.
    Supreme Court of Alabama.
    Dec. 23, 1981.
    Rehearing Denied Jan. 29, 1982.

      Warren L. Finch and Deborah J. Shoe-make and Ann E. Taylor of Finch, Shoe-make & Taylor, Mobile, for appellants.
    Mary Beth Hurm and Peter V. Sintz of Sintz, Pike, Campbell & Duke and Dennis P. McKenna and Joel F. Danley of Holberg, Tully, Holberg & Danley, Mobile, and James T. Pons, Montgomery, for appellees.
    R. 0. Hughes of Barber, Johnston, Hughes & Whittington, Birmingham, ami-cus curiae Jefferson County Bd. of Health.
   FAULKNER, Justice.

Glenda A. Miller visited the Family Planning Clinic in Mobile, Alabama in June, 1972, to obtain a contraceptive device. The Mobile County Board of Health established the Family Planning Clinic on July 28,1970. On the advice of the clinic, Mrs. Miller chose an intrauterine device (IUD). The Planning Clinic did not inform Mrs. Miller of the possible side effects or dangers of using an IUD. The Planning Clinic did not give Mrs. Miller a choice of which IUD to use, but instead fitted her with a Daikon Shield IUD manufactured by A. H. Robins Company.

In October, 1972, Glenda Miller began to hemmorage. On November 1, 1972, she hemmoraged severely and passed a large blood clot, decidual endometrium and the Daikon Shield. Mrs. Miller miscarried a 14-15 week old male fetus on November 10, 1972.

On August 1, 1979, Mrs. Miller read a newspaper article about the Daikon Shield and its manufacturer, A. H. Robins Company. The article described the defective nature of the Daikon Shield and stated that shield caused injuries to a number of women. It was not until reading the article that Mrs. Miller became aware of the defective nature of the Daikon Shield and that the shield might be the cause of her miscarriage.

Glenda and Donald filed suit against the clinic and the manufacturer on August 1, 1980. The action cites six theories of liability: (1) the Alabama Extended Manufacturer’s Liability Doctrine; (2) warranty; (3) negligence; (4) wanton negligence; (5) fraud and misrepresentation; and (6) fraudulent concealment of the cause of action. The defendants filed a motion to dismiss for failure to state a claim. The grounds for the motion were that the cause was barred because of the sovereign immunity of the clinic and the County Board of Health and that the cause was barred by the statute of limitations. The clinic and the Board of Health supported the motion with affidavits. The trial judge granted the clinic’s and Board of Health’s motion to dismiss, stating that the organizations are immune to suit under the doctrine of sovereign immunity. The trial judge later granted A. H. Robins’s motion to dismiss based on the statute of limitations.

A variety of statutes of limitations apply to Counts 1-5 against A. H. Robins, each of which has expired unless the Millers can show that the cause of action comes within Code 1975, § 6-2-3. Section 6-2-3 provides:

In actions seeking relief on the ground of fraud where the statute has created a bar, the claim must not be considered as having accrued until the discovery by the aggrieved party of the fact constituting the fraud, after which he must have one year within which to prosecute his action.

This section would toll the running of the statutes of limitations until Mrs. Miller discovered, or should reasonably have discovered the injury or cause of action. Amason v. First State Bank of Lineville, 369 So.2d 547 (Ala.1979). The burden is on the plaintiffs to show they come within § 6-2-3. Id.; Tarlton v. Tarlton, 262 Ala. 67, 77 So.2d 347 (1955).

A motion to dismiss should be granted only when it appears on the face of the complaint the plaintiff can prove no set of facts entitling him to relief. Braggs v. Jim Skinner Ford, Inc., 396 So.2d 1055 (Ala.1981). Winn-Dixie Montgomery, Inc. v. Henderson, 371 So.2d 899 (Ala.1979). When, as in this case, the plaintiff’s complaint on its face is barred by the statute of limitations, the complaint must also show that he or she falls within the savings clause of § 6-2-3. Amason v. First State Bank of Lineville, 369 So.2d 547 (Ala.1979). See Associates Financial Services Co. v. First National Bank, 292 Ala. 237, 292 So.2d 112 (1974). Rule 9 of the Alabama Rules of Civil Procedure requires that fraud be alleged “with particularity.” Garrett v. Raytheon Co., 368 So.2d 516 (Ala.1979). The pleadings which relate to fraudulent concealment of a tort or cause of action are as follows:

32. Plaintiff avers that Defendants committed fraud on Plaintiff by fraudulently concealing the defective and unreasonably dangerous condition of said product from Plaintiff after they knew said product was defective and dangerous.

The complaint fails to allege any of the facts or circumstances by which the appel-lees concealed the cause of action or injury. The complaint also fails to allege what prevented Mrs. Miller from discovering facts surrounding the injury. See Amason v. First State Bank of Lineville, 369 So.2d 547 (Ala.1979); Garrett v. Raytheon Co., 368 So.2d 516 (Ala.1979). The plaintiffs make only generalized allegations to support their claim for fraudulent concealment. Although under modern rules of civil practice the pleadings only need to put thé defending party on notice of the claims against him, Rule 9(b) qualifies the generalized pleadings permitted by Rule 8(a), ARCP. “The pleading must show time, place and the contents or substance of the false representations, the facts misrepresented, and an identification of what has been obtained.” Rule 9(b), ARCP, Committee Comments. The allegations contained in count 6 fail to meet the requirements of Rule 9. Thus, the trial court did not err in granting the motion to dismiss in favor of A. H. Robins.

The trial court granted a motion to dismiss in favor of the Family Planning Clinic and the Mobile County Board of Health on the basis of the statute of limitations and sovereign immunity. We need not decide the sovereign immunity issue since the statute of limitations is disposi-tive. The Board of Health contends that the statute of limitations applicable to actions against medical institutions can in no event be commenced more than four years after the injury occurs. See Code 1975, § 6-5-482. We do not need to address this issue since it is not essential to the resolution of this action. Even if § 6-2-3 extended the statute of limitations for actions against medical institutions, the complaint failed to allege fraudulent concealment sufficiently. Thus, even if the time for bringing an action under § 6-5-482 could be extended beyond four years, the complaint does not state sufficient grounds for such an extension under § 6-2-3.

The judgment of the trial court is affirmed.

AFFIRMED.

ALMON, EMBRY and ADAMS, JJ., concur.

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


text:
    MARSHALL COUNTY v. Billy UPTAIN.
    80-512.
    Supreme Court of Alabama.
    Dec. 23, 1981.
    Rehearing Denied Jan. 29, 1982.

      T. J. Carnes of Carnes & Carnes, Albert-ville, for appellant.
    John Baker, Fort Payne, for appellee.
   FAULKNER, Justice.

This case involves a suit brought by Billy Uptain seeking damages for an automobile accident caused by the alleged negligence of Marshall County. The jury returned a verdict in favor of Uptain, awarding him $40,-000. We affirm.

An automobile driven by Mr. Uptain was struck by an automobile driven by Judy Kaylor at the intersection of McVille Road and a cut-off road in Marshall County. Mr. Uptain was traveling on McVille Road and Judy Kaylor was traveling on the cut-off road. A stop sign had been located on the cut-off road, stopping traffic entering or crossing over McVille Road. Testimony at trial indicated that the stop sign had been knocked down for almost two years. Marshall County did not re-erect the stop sign prior to the accident. Uptain filed a claim with Marshall County in accordance with Code, 1975, § 6-5-20, on September 9,1979. Uptain also filed an action against the Kay-lors and Marshall County in the home county of the Kaylors, DeKalb County, on October 12, 1979, less than ninety days after filing a claim with Marshall County. Mr. Uptain reached a pro tanto settlement with the Kaylors, but proceeded to trial against Marshall County. The jury found that the negligence of Marshall County in failing to maintain the stop sign was the proximate cause of Uptain’s injury.

Marshall County assigns four points as error on appeal. First, the appellant asserts that venue against Marshall County is improper. Second, the appellant claims that the failure of Mr. Uptain to postpone filing his action until after his claim against Marshall County was disallowed bars his recovery. Finally, Marshall County argues that the trial court erred in failing to instruct the jury that as a matter of law it must render a verdict in favor of Marshall County and that the trial court erred in failing to give the appellant’s requested charges concerning intervening causes.

Alabama Rule of Civil Procedure 82(c) provides that “[wjhenever an action has been commenced in a proper county, additional claims and parties may be joined without regard to whether that county would be a proper venue for an independent action on such claims or against such parties.” Thus, venue in DeKalb County was proper since venue was proper there in an action against the Kaylors, regardless of whether, in an independent action, venue would be proper there for Marshall County. Marshall County argues that by Uptain’s reaching a pro tanto settlement with the Kaylors, venue was rendered improper in DeKalb County. But the law in Alabama is clear: “The dismissal from a lawsuit of a defendant as to whom venue was originally . proper will not render venue improper as to the remaining defendants, who were brought in under the ancillary venue provision of Rule 82(c).” Maness v. Weogufka Volunteer Fire Department, 386 So.2d 429 (Ala.1980). The appellants argue that the holding of this Court in Maness v. Weogufka Volunteer Fire Department, is not applicable when the plaintiff voluntarily dismisses the venue defendant. We disagree. The rationale of Maness is applicable whenever the defendant upon whom venue is established is a material defendant. There is no doubt that the Kaylors are material defendants since their interests are antagonistic to those of the plaintiff. See id. at 430.

Section 6-5-20 provides that an action shall not be commenced against a county until the claim is presented to and disallowed by the county commission. The county commission’s failure to act on the claim within ninety days constitutes a disal-lowance. Marshall County asserts that by filing the action against it before the expiration of the ninety day period, the appellee is barred from recovering on his claim. Up-tain presented the claim to the commission, and alleged the presentation in his complaint. See Rice v. Tuscaloosa County, 242 Ala. 62, 4 So.2d 497 (1941). The effect of endorsement of appellant’s argument would be to require Uptain to have dismissed the suit before the end of the ninety days and refile it after expiration of the period. Failure to do so would result in a loss of the cause of action. Such a result would conflict not only with the purpose behind the statute, but would conflict with the policies embodied in the Rules of Civil Procedure. Rule 1, ARCP, provides that the rules be “construed to secure the just, speedy, and inexpensive determination of every action.” Section 6-5-20 was enacted to provide county governing bodies with notice of claims against the county. Requiring a plaintiff to dismiss and refile an action, even when a claim has been filed with the county commission, would serve no reasonable purpose. We hold that once the ninety days expired without action, the disallowance occurred and the defect was cured. The answer filed by the county denying its liability also supports the position that the claim was disallowed. This holding does not mean that a plaintiff may neglect to file a claim with the county commission. An action may not be commenced against a county until the claim is presented.

Marshall County submitted four proposed jury charges which, in effect, required the jury as a matter of law to render a verdict in favor of the county. The appellant asserts that its negligence is not the proximate cause of Uptain’s injury and that no issue of fact exists. We disagree. The question of proximate cause is almost always a question of fact to be determined by the jury. See Roberts v. Meeks, 397 So.2d 111 (Ala.1981); Lawson v. General Telephone Co. of Alabama, 289 Ala. 283, 267 So.2d 132 (1972). The question must go to the jury if reasonable inferences from the evidence support the theory of the complaint. Lawson v. General Telephone Co. of Alabama, 289 Ala. 283, 267 So.2d 132 (1972); Union Central Life Insurance Co. v. Scott, 286 Ala. 10, 236 So.2d 328 (1970). The question of whether Marshall County’s alleged negligence was the proximate cause of Uptain’s injuries was a question of fact and properly submitted to the jury.

Marshall County also requested the judge to instruct the jury that if the county’s negligence was “merely the cause of a condition upon which the negligence of the Plaintiff and the Defendant Judy Kaylor, or either of them, operated to bring about the wreck complained of then you cannot return a verdict against the Defendant Marshall County.” The trial court instructed the jury as follows:

Proximate cause is also defined as that cause, which in the natural and probable sequence of events and without the intervention of any new or independent cause, produces injury, and without which, such injury would not have occurred. If one is guilty of negligence, which concurred or combined with the negligence of another, and the two combine to produce injury, each negligent party is liable for the resulting injury, and the negligence of each will be deemed the proximate cause of the injury.
If you find that the sole proximate cause of the plaintiff’s injury was the negligence of Judy Kaylor Phillips, then the plaintiff cannot recover against Marshall County. If, however, you find that the proximate cause of the plaintiff’s injury was the combined negligence of Judy Kaylor and Marshall County, then the plaintiff could recover against Marshall County.

The Court also instructed the jury concerning the “last clear chance” doctrine and contributory negligence. In essence, the issue is whether the court should have instructed the jury that if Judy Kaylor was negligent, then Marshall County could not be the proximate cause of the appellee’s injuries.

“The proximate cause of an injury is the primary moving cause without which it would not have occurred, but which, in the natural and probable sequence of events, produces the injury.” City of Mobile v. Havard, 289 Ala. 532, 268 So.2d 805 (1972), appeal after remand, Havard v. Palmer & Baker Engineers, Inc., 293 Ala. 301, 302 So.2d 228 (1974). Negligence need not be the sole cause of injury in order to hold the negligent person liable. It is sufficient that his or her negligence, “concurring with one or more efficient causes, ... is the proximate cause of the injury.” Lawson v. General Telephone Co. of Alabama, 289 Ala. 283, 267 So.2d 132 (1972) (quoting Shepard v. Gardner Wholesale, Inc., 288 Ala. 43, 256 So.2d 877 (1972), and Chambers v. Cox, 222 Ala. 1, 130 So. 416 (1930)). When the concurring cause is another person’s negligence which might reasonably be anticipated or foreseen, the original act of negligence may be regarded as the proximate cause of the injury which results. See Sullivan v. Alabama Power Co., 246 Ala. 262, 20 So.2d 224 (1944); Goodwyn v. Gibson, 235 Ala. 19, 177 So. 140 (Ala.1937); Clendenon v. Yarbrough, 233 Ala. 269, 171 So. 277 (1936). Clearly from the facts of this case, a jury could find that Marshall County breached a duty in failing to maintain the stop sign. It was foreseeable that as a result of this negligence, a car might travel through the intersection without stopping and as a result, an injury from an automobile accident. Thus, it was not error for the trial judge to refuse to instruct the jury that if Judy Kaylor was negligent in any degree, Marshall County could not be liable.

The judgment of the trial court is affirmed.

AFFIRMED.

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


author: WRIGHT, Presiding Judge. HOLMES, Judge

text:
    COMMERCIAL STANDARD INSURANCE CO. v. James E. POTETE and Bessie M. Potete.
    Civ. 2488.
    Court of Civil Appeals of Alabama.
    May 13, 1981.
    Rehearing Denied June 17, 1981.

      Vincent McAlister of Almon, McAlister, Ashe, Baccus & Smith, Sheffield, for defendant.
    Robert Burdine, Jr., Florence, for plaintiffs.
   WRIGHT, Presiding Judge.

This case involves our statutory requirement of uninsured motorist coverage under § 32-7-23, Code of Alabama (1975). The defendant, Commercial Standard Insurance Company (CSI), appeals from a judgment awarding $10,000 to plaintiffs James E. and Bessie M. Potete.

The record reveals the following facts:

Plaintiff, James E. Potete, owner/operator of a truck, entered into a lease agreement to haul freight for Eagle Motor Lines (Eagle). The contract stated that Eagle would provide liability insurance for Potete while hauling for Eagle. Eagle provided such insurance through a policy with CSI.

While hauling for Eagle, Potete was involved in an accident with Robert Lee Nard, an uninsured motorist. Potete claimed uninsured motorist coverage as an insured under Eagle’s policy with CSI, was informed that uninsured motorist coverage was not provided in the policy and filed suit against CSI and Nard. The case was heard before the trial court sitting without a jury, the court entered judgment against CSI and Nard in the amount of $10,000. CSI appealed.

Section 32-7-23 states, in pertinent part: No automobile liability or motor vehicle liability policy insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance or use of a motor vehicle shall be delivered or issued for delivery in this state.. .unless coverage is provided therein or supplemental thereto, ... under provisions approved by the commissioner of insurance, for the protection of persons insured thereunder.. .from owners or operators of uninsured motor vehicles. . .provided, that the named insured shall have the right to reject such coverage; ....

This statute and the cases applying it make clear that the existence of minimum uninsured motorist coverage is inferred in every automobile liability policy notwithstanding the absence of a provision for such coverage in the policy itself. Cline v. Aetna Insurance Co., 317 F.Supp. 1229 (S.D.Ala.1970). Our courts will interpret all motor vehicle liability insurance policies as providing minimum uninsured motorist coverage unless a written agreement rejecting such coverage on the part of the named insured is in evidence. Insurance Co. of North America v. Thomas, 337 So.2d 365 (Ala.Civ.App.1976).

CSI had issued a policy of liability insurance to Eagle covering operators of leased vehicles such as plaintiff, James Potete. The disputed issue at trial, and the disposi-tive issue on appeal, is whether Eagle, the named insured, rejected in writing the uninsured motorist coverage. The trial court, though making no findings of fact, apparently concluded that Eagle had not so rejected. We find such conclusion erroneous and reverse.

Although the ultímate issue (whether or not a written rejection had been made) was, naturally, disputed by the parties, the evidence before the trial court was not conflicting as to any material fact. Thus, the usual presumption of correctness accompanying the trial court’s findings does not apply in this case. Taylor v. Godsey, 357 So.2d 979 (Ala.1978); Hill v. State, 50 Ala.App. 587, 281 So.2d 440 (1973).

At trial the parties agreed that the original and executed copy of the CSI-Eagle policy had been lost or misplaced and diligently searched for. There was received into evidence a sample policy, part of which consisted of a document rejecting uninsured motorist coverage. The parties stipulated that the sample policy contained essentially the same coverage as the lost policy, but the plaintiff would not stipulate as to the existence of the document rejecting coverage in the original policy or that such document was executed by Eagle, the named insured. The same policy did show that Eagle had paid no premiums for uninsured motorist coverage.

The deposition of one William C. Vines was received in evidence. Vines was an officer for Eagle at the time the policy in question was issued. Vines testified that in his capacity at Eagle he was responsible for negotiation of coverages for liability insurance. He further testified that he recognized the document rejecting uninsured motorist coverage exhibited in the sample policy; that the document was the same as the one used to reject uninsured motorist coverage by Eagle; that it was Eagle’s intention to reject uninsured motorist coverage; that he, as an officer of Eagle, had signed the written rejection; and that the signed written rejection applied to the policy year in question.

The evidence as to the existence and execution of the written rejection of uninsured motorist coverage was both competent and uncontradicted. Plaintiff’s cross-examination of Vines merely reaffirmed his testimony as to the written rejection exhibited by the sample policy. There was no other proof regarding the existence or non-existence of a written rejection.

The trier of fact apparently chose to disregard the testimony of a competent witness and substitute its own judgment for undisputed evidence as to both the existence and execution of a written rejection. This it cannot do. See, Deal v. Johnson, 362 So.2d 214 (Ala.1978); Free v. Palmer, 373 So.2d 1100 (Ala.Civ.App.), cert. denied, 373 So.2d 1103 (1979).

Plaintiff’s testimony that he was not informed of lack of uninsured motorist coverage was of no moment. See, generally, Guardado v. Greyhound Rent-A-Car, Inc., 340 So.2d 510 (Fla.App.1976). The lease agreement between Eagle and plaintiff clearly allowed him to inspect all the insurance policies procured by Eagle for his benefit and purchase further coverage if he so desired. Plaintiff never inspected those policies. Further, plaintiff’s testimony that he received no notice of change in policy coverage, as was required by a “Certificate of Insurance” issued to him by Eagle, was irrelevant. The policy coverage in effect on the date of his accident was the same as it had been when he began hauling for Eagle, i.e., there had been no change and no notice was required.

We find the undisputed evidence in the record reflective of both the existence and execution by the named insured of a written rejection of uninsured motorist coverage. In light of that undisputed evidence, the judgment of the trial court against defendant, Commercial Standard Insurance Company, must be reversed.

REVERSED AND REMANDED.

BRADLEY, J., concurs.

HOLMES, J., dissents.

HOLMES, Judge

(dissenting).

I respectfully dissent.

All motor vehicle liability insurance policies are to be construed as providing minimum uninsured motorist coverage unless the named insured has executed a written rejection of that coverage. Insurance Co. of North America v. Thomas, Ala.Civ.App., 337 So.2d 365 (1976). There was no written rejection in evidence at trial below. Hence, the trial court did not err in construing the-policy as providing minimum uninsured motorist coverage.

Stated another way, since no written rejection was introduced at trial, the trial court should not be bound by oral testimony that such a written rejection was in fact executed. To reverse the trial court for the reasons stated by the majority is to emasculate this state’s policy that, in the absence of a written rejection, all motor vehicle liability insurance policies are to be construed as providing minimum uninsured motorist coverage. Insurance Co. of North America, supra.

      . Formerly, Title 36, § 74(62a), Code of Alabama (1940).


text:
    Ex Parte James E. POTETE and Bessie M. Potete. (In re COMMERCIAL STANDARD INSURANCE COMPANY v. James E. POTETE and Bessie M. Potete).
    80-668.
    Supreme Court of Alabama.
    Dec. 11, 1981.
    Robert Burdine, Jr., Florence, for petitioner.
    Vincent McAlister of Almon, McAlister, Ashe, Baccus & Smith, Sheffield, for respondent.
   PER CURIAM.

We granted certiorari because this is a case of first impression in this Court. The Court of Civil Appeals correctly held in Insurance Company of North America v. Thomas, 337 So.2d 365 (Ala.Civ.App.1976), that all motor vehicle liability insurance policies issued in this state would be construed as providing minimum uninsured motorist coverage mandated by § 32-7-23, Code 1975, unless a written agreement rejecting such coverage on the part of the named insured was shown.

The trial court in this case construed the policy to provide such coverage. There was no written rejection offered in evidence. The question, then, is whether the trial court was justified in finding that the insured had not rejected uninsured motorist coverage in writing. We have reviewed the record and are clear to the conclusion that the trial court had evidence before it from which it could find that no written rejection had been executed by the insured. To be sure, there was contrary evidence, but the trier of the fact was not bound to believe it. In this case, like all others where the trial judge is charged with making a determination of an issue of fact, he is free to make that determination, taking into account the probable bias of the witnesses, their demeanor while testifying, and may in doing so reject some evidence in favor of other evidence, and an appellate court must accept his determination unless clearly erroneous or manifestly unjust. Tanner v. Thompson, 376 So.2d 697 (Ala.1979).

The Court of Civil Appeals, 409 So.2d 426, reversed the trial court’s judgment. Because the issue before the Court of Civil Appeals was purely a factual one and because there was evidence to support its finding, we reverse the judgment of the Court of Civil Appeals.

REVERSED AND REMANDED.

All the Justices concur, except TOR-BERT, C. J., who dissents.


author: WRIGHT, Presiding Judge.

text:
    COMMERCIAL STANDARD INSURANCE CO. v. James E. POTETE and Bessie M. Potete.
    Civ. 2488.
    Court of Civil Appeals of Alabama.
    Jan. 6, 1982.
   ON REMAND FROM THE SUPREME COURT

WRIGHT, Presiding Judge.

Whereas the Supreme Court of Alabama, 409 So.2d 429, on December 11, 1981, reversed, 409 So.2d 426, the judgment of this court entered on May 13, 1981, and remanded the cause to this court for further proceedings, it is therefore ordered that the judgment of the Circuit Court of Lauderdale County is in all respects affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: HOLMES, Judge.

text:
    Benton Stephen SANSOM v. Gloria Genna Tucker SANSOM.
    Civ. 2845.
    Court of Civil Appeals of Alabama.
    Dec. 2, 1981.
    Rehearing Denied Dec. 29, 1981.

      Joseph P. Hughes, Geneva, for appellant.
    James W. Kelly of Kelly, Knowles & Lee, Geneva, for appellee.
   HOLMES, Judge.

This is an appeal from the granting of a modification of a divorce decree reducing the amount of alimony payments.

The husband filed a petition to modify the previous judgment of divorce by reducing the amounts that he was required to pay for child support and alimony. After an ore terms hearing, the trial court reduced the amount of alimony from $175 per month to $100 per month. The amount of child support remained the same, i.e., $50 per week. The trial court did rule, however, that any amount paid to the mother as a result of the child being the dependent of a disabled veteran should be credited on the amount due for child support each month.

The husband appeals to this court, contending that the trial court abused its discretion by failing to reduce the husband’s total payments for alimony and child support by more than $75. We disagree and affirm the trial court.

A lengthy review of the facts of this case is not necessary. Suffice it to say that the parties were divorced on January 9, 1980. The divorce decree required the husband to pay the wife $175 per month as alimony and $50 per week for the support of the parties’ minor child. In addition, the husband was to pay for the reasonable and necessary health care expenses of the child as well as some of the debts incurred by the parties during their marriage. The husband did not appeal this decree.

Some months after the divorce decree, the wife instituted contempt proceedings against the husband for failure to make payments as required by the divorce decree. A hearing was held and on July 9,1980, the husband was held in contempt of court. The trial court found that he was $1,032 in arrears and ordered him jailed until he purged himself of contempt by paying this sum. The husband purged himself of contempt after spending a brief period of time in jail.

On October 29,1980, the husband filed his petition to modify, alleging changed circumstances. The evidence established, among other things, that the husband is a college graduate, having majored in business administration and finance. He is also a helicopter pilot who, apparently, received his training while in the military. At the time of the divorce, the husband derived his income from his farming operation and his disability compensation from the United States Veterans Administration. At the time of the modification proceeding, the husband was totally unemployed and was attending the University of Alabama Law School. His only income was the monthly disability check and V.A. educational benefits which would terminate May 4 of 1981. The husband had also remarried since the time of the divorce decree. Based upon the evidence before it the trial court reduced the husband’s alimony payments by $75 per month.

The modification of an award of alimony or child support on the basis of changed circumstances is within the sound discretion of the trial court and will not be reversed on appeal unless this discretion is abused. Mencer v. Mencer, 277 Ala. 679, 174 So.2d 319 (1965); Murphree v. Murphree, 366 So.2d 1132 (Ala.Civ.App.1979). This court is unable to find any abuse of discretion in the trial court’s action.

Child support can be modified only upon showing that a material change in circumstances has occurred. Murphree v. Murphree, supra. The most important factor in considering modification of a child support decree is whether there has been a material change in the circumstances of the children. Womble v. Womble, 56 Ala.App. 318, 321 So.2d 660, cert. denied, 295 Ala. 429, 321 So.2d 664 (1975). In this case, there was no evidence that the needs of the child had changed in any respect. Additionally, the husband’s education and technical training is evidence that he possesses an ability to earn at least some additional money. This court has previously held that the ability to earn, as opposed to actual earning, is a proper factor in determining the amount of child support to be awarded. Reach v. Reach, 378 So.2d 1115 (Ala.Civ.App.1979), cert. denied, 378 So.2d 1118 (Ala.1980). The lack of change in the needs of the children coupled with the father’s ability to earn convinces this court that the trial court did not err in refusing to reduce the child support payments.

Like child support, alimony payments can be modified only upon proving that a material change in circumstances has occurred. The trial court, based upon all the evidence before it including the husband’s income and new status as a student, concluded that there had been a material change in circumstances and reduced the monthly alimony payments by $75. After reviewing the record, this court cannot say that the trial court abused its discretion by not further reducing the husband’s payments.

This case is due to be affirmed.

AFFIRMED.

WRIGHT, P.J., and BRADLEY, J., concur.


text:
    Juanita Hale KNIGHT v. Robert KNIGHT, Jr.
    Civ. 2882.
    Court of Civil Appeals of Alabama.
    Jan. 6, 1982.

      Agnes Chappell and Houston L. Brown of Brown, Chappell & Burrell, Birmingham, for appellant.
    No brief for appellee.
   WRIGHT, Presiding Judge.

The parties herein were divorced on December 6, 1979. An agreement was executed setting out various terms including that the husband would pay the wife $400 for payment of her attorney of record. The final decree of divorce set out the same amount to be paid by the husband for the wife’s attorney fees. The decree, however, did not refer to the agreement. The husband failed to pay the amount ordered for the attorney fee. The wife petitioned for a writ of garnishment to collect the fee. The City of Birmingham, the husband’s employer, was garnishee.

Pursuant to § 6-6 — 182, Code (1975) which exempts the salary of public officials and employees from garnishment to enforce judgments “ex delicto,” the City filed a motion to quash the writ. The wife filed objections to the motion asserting that the judgment was founded on a debt, demand or claim and thus outside the prohibition of § 6-6-482. She also contended that her garnishment was for enforcement of a judgment entered in an action on a “contract or growing out of a contract” within the ambit of that section. Alternatively, the wife contended that § 6-6-482 is viola-tive of the equal protection clause of the Constitution of the United States and of Alabama, and that to deny the garnishment would be against public policy. Additionally, she argues that there is only one form of action under Rule 2, A.R.C.P. known as a “civil action.”

The trial court ordered the writ quashed on May 22,1981. From that order, the wife appeals.

Section 6-6-481, Code (1975) specifically allows garnishment of “money due officials or employees of a city, county or state government, or any department or institution thereof, as salary for services performed ...” Section 6-6-482 limits such garnishment in the following manner:

The salary referred to in this division is not subject to a writ of garnishment in aid of a pending action, but such writ may issue only after final judgment, on which execution can issue, entered in actions on contracts or growing out of contracts express or implied and being judgments ex contractu. The judgment on which such writ can issue must be founded upon a debt, demand or claim against said defendant which originated subsequent to September 26, 1923. The salary referred to in this division is not subject to writ of garnishment issued on judgments ex delicto.

The wife reiterates on appeal the grounds upon which her objections to the motion to quash were made. No brief has been filed by the City of Birmingham.

Appellant’s first contention is essentially that the underlying judgment of divorce falls within the class of judgments ex con-tractu rather than ex delicto. In support of that theory, she offers the following:

1. That marriage is a civil contract which gives rise to an obligation of support;
2. That the agreement reached between the parties prior to the final decree of divorce was the basis of the final judgment entered; and
3. That a judgment itself is a contract.

We do not agree that a divorce decree is a judgment ex contractu under any of the above theories. Black’s Law Dictionary at “divorce suit” sets out that,

A “divorce” suit is a civil proceeding founded on a matrimonial wrong, wherein the married parties are plaintiff and defendant, and the government, or public, occupies, without being mentioned in the pleadings, the position of a third party, resulting in a triangle and otherwise sui generis action of tort. (Cite omitted.) (Emphasis ours.)

Although marriage is a civil contract which gives rise to the obligation of support, Andrews v. City National Bank of Birmingham, 349 So.2d 1 (Ala.1977), that does not give a divorce decree the status of an ex contractu judgment. The difference in ex contractu. and ex delicto has been expressed as follows:

If the cause of action declared in the pleading arises from a breach of promise, it is ex contractu, and if the action arises from a breach of duty growing out of the contract, it is in form ex delicto and case.

Chambers v. Birmingham Trust and Savings Co., 232 Ala. 609, 168 So. 893 (1936). A divorce judgment, at least as far as support, maintenance and attorney fees are concerned, seems to derive not from a direct breach of promise, but from the breach of the duty to support growing out of the marriage contract. Thus, it is ex delicto. Marriage, though of extreme societal importance, has been held to be a contract whose obligation is not constitutionally protected by the prohibition against the impairment of the obligation of contracts. See, Fuqua v. Fuqua, 268 Ala. 127, 104 So.2d 925 (1958); Raia v. Raia, 214 Ala. 391, 108 So. 11 (1926).

The agreement of the parties is of no consequence here. Though the amount awarded in the decree was the same as agreed, the trial court was not bound by the agreement and within its discretion could adopt or reject such parts of it as the court deemed proper. Baumler v. Baumler, 368 So.2d 864 (Ala.Civ.App.1979). Even where an agreement is incorporated in the court’s decree, the decree itself supersedes it. See, Durham v. Durham, 336 So.2d 1360 (Ala.Civ.App.1976); Horan v. Horan, 259 Ala. 117, 65 So.2d 486 (1953).

Appellant’s contention that a judgment is a contract is not well taken within the context of this case. Admittedly the case of Weaver v. Lapsley, 43 Ala. 224 (1869) is authority for that principle, and in Alabama judgments are contracts within the constitutional prohibition of impairment of the obligation thereof. As set out in 46 Am. Jur.2d Judgments § 233, a judgment is not a contract in the strict sense of the word. A judgment’s status as a contract thus does not change its nature.

Our supreme court held in Lasseter v. Lasseter, 266 Ala. 459, 97 So.2d 555 (1957) that “A decree for alimony and attorney’s fees is not a ‘debt contracted’ within the meaning of our Constitution and statutes. (Cites omitted); and ‘as related to exemptions, the demand is in tort and not ex contractu.’ ” The court also stated there that “The decree for support and maintenance ‘is in tort and not ex contractu.’ ” The end result of Lasseter, which is directly on point here, was that the public employee’s salary was exempt from garnishment since the underlying judgment was ex delic-to. This court is bound by prior decisions of our supreme court. Martin v. Springdale Stores, Inc., 354 So.2d 1144, cert. denied, 354 So.2d 1146 (Ala.Civ.App.1978).

Appellant’s second contention is that the distinction between ex contractu and ex delicto judgments found in § 6-6 — 482 denies equal protection of the law under the Constitution of the United States and of Alabama to holders of judgments ex delicto.

Prior to the passage of § 6-6-481, the governmental bodies of Alabama were apparently immune from being made garnishee through the doctrine of governmental or sovereign immunity. This is the general rule, and as set out in 6 Am.Jur.2d Attachment and Garnishment § 84, is only changed by statute. Thus, the passage of § 6-6-481 et seq., relinquished a portion of that immunity. Alabama courts have consistently held that the modification of the doctrine is a legislative question, not one for the courts. Jenkins v. Houston County Hospital Board, 284 Ala. 180, 223 So.2d 583 (1969); Paul v. Escambia County Hospital Board, 283 Ala. 488, 218 So.2d 817 (1969); Stephens v. Druid City Hospital Board, 49 Ala.App. 40, 268 So.2d 824 (1972). We must uphold the legislature unless its mandate is contrary to the Constitution. Enterprise City Board of Education v. Miller, 348 So.2d 782 (Ala.1977).

The test for a classification made by the legislature is whether the class has a reasonable basis and is not arbitrary. Board of Trustees Retirement System of Montgomery v. Talley, 291 Ala. 307, 280 So.2d 553 (1973). The criteria for determining reasonableness and arbitrariness is as follows:

The class “(1) must be germane to the purpose of the law; (2) must bring within its influence all who are under the same conditions and apply equally to each person or member of the class, or each person or member who may become one of such class; (3) must not be so restricted and made to rest upon existing circumstances only as not to include proper additions to the number included within the class; (4) must be based on substantial distinctions which make one class different from another; and (5) must be reasonable and not oppressive and prohibitive.

Talley, supra, 280 So.2d at 556, 557. In First National Bank of Montgomery v. Dimmick, 190 Ala. 359, 67 So. 309 (1914), our supreme court upheld several garnishment statutes against equal protection arguments despite the fact that “The Legislature . .. made distinct classifications of creditors and conferred upon each class separate and distinct methods of procedure for the enforcement of their debts against garnishee.” The court noted there that “Garnishment, like attachment, is a statutory remedy, and the statutes which we have above quoted plainly show their meaning and the rights which they conferred upon those who invoke their aid.” 67 So. at 309, 310. The Court added that “[W]e are not concerned with the wisdom of the Legislature in passing this law. The act was within legislative competency and was valid. (Cite omitted.)” 67 So. at 310.

We consider that the statute in question was also within legislative competency. The modification of sovereign immunity lies with the legislature, and allowing garnishment only upon judgments ex contractu where a governmental unit is garnishee is not unreasonable. On the contrary, protecting creditors’ rights under judgments on contracts freely entered into preserves the constitutional prohibition against impairment of contracts, and is thus a legitimate end.

We disagree with appellant’s contention that Rule 2, A.R.C.P. destroyed the distinction between judgments ex contractu and ex delicto.

Lasseter, supra, was correct in its statement that “The plain and unambiguous language of § 1035 (now 6-6 — 482).. .exempts the salary of the public official from garnishment issued on judgments ex delicto.” 97 So.2d at 557. We also agree with that decision in that the result reached here is not the one we would have selected, “[B]ut the remedy must lie with the Legislature, not with the courts.” 97 So.2d at 557.

The judgment below is due to be affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    Ray M. BOLEY v. Dorothea Qualls Boley ROWE.
    Civ. 2887.
    Court of Civil Appeals of Alabama.
    Jan. 6, 1982.

      Macon L. Weaver of Weaver, Price & Pearson, Huntsville, for appellant.
    Stephen M. Wilson of Johnston, Johnston & Moore, Huntsville, for appellee.
   HOLMES, Judge.

The mother petitioned the trial court for an increase in child support. After several hearings and an appeal, the trial court eventually modified the child support payment by increasing the amount the father is required to pay.

The father appeals and we affirm in part and reverse in part.

The record, viewed with the attendant presumptions, reveals the following pertinent facts:

The parties were divorced on September 1, 1970. By agreement, incorporated in the divorce decree, the father was to pay $300 per month as child support. In May, 1978, the mother petitioned the trial court for an increase in child support. This petition was denied in August, 1978, and no appeal was taken.

In April, 1979, the mother again petitioned for increased child support. Evidence was heard ore tenus before a different trial judge who, in November, 1979, denied the petition. In reaching his decision the trial judge stated that he considered only the circumstances of the parties between August, 1978, and November, 1979. The trial judge indicated that if he had considered the circumstances of the parties from the time of the divorce decree he would probably have reached a different conclusion.

The mother appealed from the above decision claiming the trial court erred in not considering the changed circumstances that had occurred since the divorce decree which was the last decree that awarded child support. This court in Rowe v. Boley, 392 So.2d 838 (Ala.Civ.App.1980), aff’d, 392 So.2d 840 (Ala.1981), accepted the mother’s contention and held that the trial court erred in not considering any material change in circumstances that might have occurred since the original award of support. The trial court’s decree was reversed and the cause remanded for further proceedings consistent with this court’s opinion.

The trial court, on remand, did not hold another hearing on the matter. Instead, it considered the testimony it had previously heard along with the opinions of this court and the supreme court and held that there had been a material change in the circumstances of the parties. The trial court then increased the child support from $300 per month to $728 per month. The trial court further ordered that the increase in child support was to be retroactive to April, 1979, the month the modification petition was filed. Accordingly, the trial court entered judgment against the father for $9,844, representing the retroactive increase in support payments. On petition of the father, the amount of child support was later reduced to $667 per month and the judgment representing retroactive child support payments was reduced to $8,441.

On appeal the father raises the following issues:

1. Did the trial court err to reversal in not holding an additional evidentiary hearing?

2. Did the trial court so abuse its discretion in the award of child support as to require reversal?

3. Did the trial court err to reversal in making the increase in child support retroactive? This court will address each of these contentions.

The father’s first contention regarding the failure to hold an additional eviden-tiary hearing is without merit for two reasons. First, this court’s opinion in Rowe v. Boley, supra, did not necessarily require the trial court to hold another evidentiary hearing. On November 21, 1979, a full eviden-tiary hearing on the mother’s petition to modify the amount of child support was held. At that hearing the trial court heard evidence concerning the changed circumstances of the parties extending from the date of the original award of child support in 1970 to the time of the hearing. The trial court reached a decision adverse to the mother, as indicated. In Rowe v. Boley, supra, we reversed the trial court because it had failed to consider the evidence of changed circumstances since 1970 and we remanded the case for further proceedings not inconsistent with the opinion.

The trial court, as directed by this court, then considered all the evidence of changed circumstances since 1970 that it had previously heard. That evidence, viewed in light of the opinions of this court and the supreme court, convinced the trial court that there had been a material change in circumstances. Thus, under the present circumstances, it was unnecessary for the trial court to hold additional hearings in order to comply with the court’s directions on remand. Put another way, all the pertinent evidence was before the trial court.

Secondly, a review of the record indicates that the father at no time requested an additional hearing. Such a request and a ruling by the trial court are necessary to place the trial court in error. See Posey v. St. Clair County, 270 Ala. 110, 116 So.2d 743 (1959); State Farm Mutual Automobile Insurance Co. v. Barrow, 46 Ala.App. 392, 243 So.2d 376 (1971).

The father’s second contention as to the increase in child support is likewise without merit.

This court has held on numerous occasions that the modification of a prior child support decree, based upon changed circumstances of the parties, is within the sound discretion of the trial court. The exercise of this discretion is to be disturbed on appeal only if there is such an abuse of discretion as to be plainly and palpably wrong. Young v. Young, 351 So.2d 611 (Ala.Civ.App.1977); White v. White, 334 So.2d 908 (Ala.Civ.App.1976).

We find no abuse of discretion in this case. For a period of some nine years the father has been required to pay $300 per month in child support. This is equivalent to $100 per each of his three boys per month. As these boys have grown toward and into their teen years, the value of the support payments has steadily decreased, due to the effects of inflation. Conversely, the father, during this same nine year period, has experienced almost a doubling of his income. According to the father’s testimony, his gross income in 1970 was $16,470.50 and his net income was $13,414.14. In 1978, the father’s gross income was $30,336.36 and his net income was $23,189.13. Additionally, in 1979, the father experienced a twelve percent raise over his 1978 salary. According to the figures the father presented in his testimony, this raise would make his new net income approximately $24,964 per year. This court has previously held that a material increase in income is a weighty factor in sustaining a trial judge in increasing an award. Young v. Young, supra.

The father, through able counsel, primarily contends that the amount of the increase is so substantial that it constitutes an abuse of discretion. Admittedly this is a substantial increase in support payments but it is ■still substantially less than one-half the father’s net income. In White v. White, supra, this court held that a support award which exceeded one-half of the father’s net income did not warrant reversal for that reason.

The father’s final contention concerning the retroactive increase in child support is, we believe, meritorious. The date upon which the increased support payments were to become effective was a matter within the sound discretion of the trial court. See Culverhouse v. Culverhouse, 389 So.2d 937 (Ala.Civ.App.1980). However, making the increase in support payments retroactive to April, 1979, is, under the instant circumstances, an abuse of the trial court’s discretion.

In April, 1979, the mother petitioned to have child support payments increased. This petition and subsequent proceedings have spawned two appeals to this court. The first time these parties were before this court, in Rowe v. Boley, we were presented with an issue of first impression. In that case, which was issued on June 4, 1980, this court reversed the trial court, which had held in favor of the father, and remanded the case with directions. The trial court’s initial judgment after remand, which among other things, required the father to pay $9,844 in retroactive child support was not issued until March 4, 1981. The trial court’s final judgment was not issued until May 22,1981. To require the father to pay increased child support retroactive until April, 1979, under these circumstances, would be tantamount to punishing him for any perceived uncertainty in the law and for the inherent passage of time in the judicial decision making process. Additionally, we note that there is no evidence that the father has ever been in arrears in making child support payments and there is also some evidence that the children are hostile to him.

In closing, we note that the appellant-father, in his brief, makes reference to testimony presented at the 1978 modification hearing. This court, however, cannot consider the record of a prior proceeding that has not been properly appealed. The Alabama Rules of Appellate Procedure set out the proper procedures for perfecting an appeal. These rules cannot be circumvented by including the transcript of a prior proceeding within the record of a subsequent case that is properly appealed.

The mother requests an award of an attorney’s fee for representation on appeal. A fee of $300 is awarded.

In summary, we hold that this case is to be affirmed in part and reversed in part. Specifically, the father is to abide by the provisions of the trial court’s order of May 22, 1981, except that the trial court is directed to enter an order providing that the increased child support payments were to commence on May 22, 1981, the date of the trial court's final order.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH DIRECTIONS.

WRIGHT, P.J., and BRADLEY, J., concur.


author: BRADLEY, Judge.

text:
    Richard Lloyd MATHIESON v. Catherine Craig MATHIESON.
    Civ. 2898.
    Court of Civil Appeals of Alabama.
    Jan. 6, 1982.

      Allen W. Howell, Montgomery, for appellant.
    John T. Kirk of Kirk & Manasco, Montgomery, for appellee.
   BRADLEY, Judge.

This is a divorce case.

Catherine and Richard Mathieson were married in California on January 25, 1975. They met each other through advertisements which they had placed in the Los Angeles “Free Press” seeking companionship. No children were born of the marriage; however, Mr. Mathieson had two children from a previous marriage who resided with him. The testimony showed that Mr. Mathieson’s daughter went to live with her mother, but the son has continued to reside with Mr. Mathieson.

The husband was a sergeant in the United States Air Force. The wife also worked during the marriage to some extent. The testimony indicated that she worked as a civilian employee of the Air Force at some of the places in which the husband was stationed. Also during the marriage she went to college to finish work on her bachelor’s degree. The husband testified that he paid these school expenses, and that his wife lived away from him for one year in order to complete her education. The wife, however, testified that she paid her own expenses.

After obtaining her degree the wife joined the Air Force, where she is presently a lieutenant. The husband procured letters of recommendation from several Air Force officers to aid his wife in obtaining her position.

The wife filed for divorce on September 29, 1980 on the grounds of incompatibility and physical abuse. The husband filed a counterclaim contending that the wife was guilty of adultery. A hearing was held beginning on March 17, 1981 and the final decree of divorce was rendered on June 8, 1981. From this judgment the husband has appealed to this court.

In this appeal four issues have been raised for our consideration. The first issue for our consideration is whether the trial judge should have recused himself because of an ex parte communication with a witness. Second, the husband argues that the trial judge erred in not granting him the divorce on the grounds of adultery. Third, the husband contends that he should have been granted alimony. Finally, the husband contends that the court erred in its division of the property. We will address each of these issues separately.

During the course of the hearing the husband sought to prove that his wife had committed adultery. The husband had evidence that the wife had admitted her adultery while receiving treatment from the Montgomery Area Mental Health Authority. The husband tried to have records from his wife’s treatment admitted into evidence. The wife objected on the grounds that they were protected by the psychiatrist-patient privilege. The trial judge sustained these objections. The trial was then continued for several weeks. The husband, during this period, subpoenaed several employees of the Mental Health Authority so that they could testify as to what occurred during the wife’s treatments.

One of the persons he subpoenaed was a Dr. Pollard. After receiving his subpoena Dr. Pollard wrote the trial judge a letter asking to be excused from the subpoena on the grounds that he had no personal knowledge of the case and because he was going to be out of town on the day of the trial. As a result of this letter the trial judge sent a letter to both attorneys and Dr. Pollard stating that it appeared Dr. Pollard had no personal knowledge of the mátters involved in the upcoming hearing, that other persons who had been subpoenaed did have sufficient knowledge to testify about the records and that Dr. Pollard needed to be out of town on the day of the hearing. The judge then said he saw no reason for Dr. Pollard to be present and that he was going to excuse him unless the attorneys advised otherwise. The husband immediately filed a motion asking the trial judge to recuse himself because of this ex parte communication. The judge denied this motion, and the husband contends such denial was error.

The Canons of Judicial Ethics, Canon 3.A.(4), provides:

(4) A judge should accord to every person who is legally interested in a proceeding, or his lawyer, full right to be heard according to law, and, except as authorized by law, neither initiate nor consider ex parte communications concerning a pending or impending proceeding. [Emphasis added.]

In the case of Stewart v. Stewart, 354 So.2d 816 (Ala.Civ.App.1977), we addressed the issue of a judge’s failure to recuse himself because of an ex parte communication with a witness. In that case the trial judge held a conversation with the witness in the hallway during a recess in the trial. We, however, held that merely because the judge’s conduct was inappropriate, such conduct was not necessarily a sufficient ground for reversal absent a showing that the complaining party was materially prejudiced.

In the present case the husband has failed to show that he was in any way prejudiced by the actions of the trial judge. The wife dropped her objection to the introduction of the Mental Health records. Further, the husband called Linda Pouncey from the Mental Health Authority to testify. She was the one who had firsthand knowledge of the wife’s statements at the Mental Health Authority. As a result, the husband introduced into evidence all of the information concerning the wife’s statements at the Mental Health Authority. It is clear from the record that Dr. Pollard had no further knowledge to add to this evidence. The husband has not even contended that Dr. Pollard’s testimony was necessary. As a result, we cannot find that this ex parte communication so prejudiced the husband’s rights as to warrant reversal. Our finding, however, is not to be construed as a condonation of ex parte communications between the judge and a prospective witness.

The husband also argues that the trial court erred in not granting him a divorce on the ground of adultery.

The trial court’s decree divorcing the parties from the bonds of matrimony did not specify the ground or grounds upon which said decree was based. Although it is the better practice to set out the grounds in its decree, a trial court will not be reversed for its failure to do so. Cozad v. Cozad, 372 So.2d 1322 (Ala.Civ.App.1979). Where the decree fails to contain grounds for the divorce, this court will examine the record to see if there is sufficient evidence to support the ground or grounds propounded by the parties and if so the decree will be affirmed. Cozad, supra.

In the case at bar there is sufficient evidence that the parties were incompatible, hence the decree will be affirmed.

As to the failure of the trial court to ground its decree on the wife’s adultery, we note that where the trial court hears evidence in a divorce case ore tenus, its findings will be presumed correct and will not be overturned except for palpable error. Goodman v. Goodman, 366 So.2d 281 (Ala.Civ.App.1979). In the present case the evidence relating to the wife’s adultery is in sharp conflict and the resolution of that conflict was for the trial court, and its failure to base its decree on the adultery ground is not plainly wrong in view of the evidence.

In his third assignment of error the husband contends that he should have been awarded alimony. The award of alimony is within the sound discretion of the trial court and will not be reversed unless palpably wrong. Armstrong v. Armstrong, 391 So.2d 124 (Ala.Civ.App.1980). We can find no abuse of discretion in this case.

Both parties in this case are able to work and in fact have full-time jobs. The husband earns $14,000 a year as a service station manager. He also receives $744.22 per month retirement from the Air Force. The wife is a second lieutenant in the Air Force earning $1,200 per month.

In determining whether to award alimony the court is to consider such criteria as age, health, station in life, duration of marriage, and conduct of parties relating to the cause of divorce. Jernigan v. Jernigan, 344 So.2d 778 (Ala.Civ.App.1977). Considering those factors here, the trial court could certainly conclude that neither party was entitled to alimony.

Finally, the husband contends that the trial court abused its discretion in dividing the property. In a divorce action it is not required that a property award be equal. The only requirement is that the award be fair and equitable, and that is a matter within the discretion of the trial court. Cooper v. Cooper, 382 So.2d 569 (Ala.Civ.App.1980).

In the present case both parties were awarded a car and a motorcycle. The husband, however, argues that he still owes $5,000 on the car he was awarded while the wife owes no money on her car. This is due to the fact that the husband’s car is almost new while the wife’s car is three years old.

The husband also argues that the decree awarded the wife a specified list of property, but that he could keep only those personal items of his which he already possessed. As a result, he contends that under the decree there is no way in which he can obtain possession of any items which were left in the wife’s custody and which he claims are his.

In looking at this issue, we note that the wife introduced without objection long lists of personal property owned by the parties. These lists showed that the husband had removed a large amount of property from the marital home. Although the husband states that there might be some of his personal items still in the wife’s possession, he does not state what those items are.

Based on the evidence in this record relating to the personal property allegedly owned by the parties, the manner in which the property was acquired, and the way the property was distributed between the parties, we are unable to say that the trial court so abused the discretion reposed in it to make property awards as to require a reversal of its decree.

Both parties have petitioned this court for attorney fees on appeal. Considering the nature of this case and the ability of both parties to pay their own attorney fees, we deem it appropriate to deny both requests.

AFFIRMED.

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