author: JONES, Justice. BEATTY, Justice TORBERT, Chief Justice

text:
    Billy Herman HALL, et al. v. The CITY OF TUSCALOOSA, et al.
    81-94.
    Supreme Court of Alabama.
    Sept. 17, 1982.
    Rehearing Denied Nov. 5, 1982.

      William J. Donald and William J. Donald, III of Zeanah, Donald & Hust, Tuscaloosa, for appellants.
    J. Wagner Finnell, City Atty., and Robert W. Ennis, IV, Asst. City Atty., City of Tuscaloosa Legal Dept., Tuscaloosa, for ap-pellees.
   JONES, Justice.

This action was instituted by certain civil service employees of the City of Tuscaloosa, all members of the Tuscaloosa Fire Department, and by Local 403 of the International Association of Firefighters, seeking both in-junctive and declaratory relief against the City of Tuscaloosa, its Civil Service Board, and others. From a judgment denying all relief sought, Appellants bring this appeal.

The Air Crash Station at the Tuscaloosa Municipal Airport exists as the result of years of gradual development. Initially, the Station was manned by police officers, and later by employees of Dixie Air, Inc., in conjunction with the police officers. The next refinement in the Station’s service was the dispatching of a fire truck from a station of the Tuscaloosa Fire Department to “stand by” before the landing and until the departure of a commercial aircraft. Government grants enabled the City to purchase specially-equipped air crash trucks and to construct a permanent station at the airport to house both the equipment and the air crash personnel. At that time, employees of the Tuscaloosa Fire Department manned the Station as any other Fire Department station: three shifts of firemen who kept normal shift schedules of 24 hours on duty and 48 hours off duty. Federal Aviation Administration regulations require that an air crash station’s equipment and personnel be available immediately before, during, and after the arrival and departure of a commercial aircraft.

When the City of Tuscaloosa’s expenditures began to exceed its revenues, City officials investigated methods of operating more efficiently and effectively. It was determined that the Air Crash Station was manned 24 hours a day, and that, the number of commercial flights arriving and departing notwithstanding, the City was obligated to pay the salaries for the firemen at the Station for the entire 24-hour shift schedule periods. Additionally, the City learned that other large metropolitan airports were utilizing air crash stations manned by specially trained personnel, not employed by the city’s fire department, whose work hours were tailored to the airline schedules.

A financial study, prepared by the City’s Personnel Office, projected the cost of manning the Air Crash Station for one year with Fire Department personnel on the Fire Department schedule as $184,056.90. The same study indicated a projected total cost for manning the Station for one year with personnel on a more flexible “as needed” basis of $109,818.67.

In March of 1980, the City’s Commission Board adopted a resolution authorizing the planning of a separate Air Crash Station. In May of 1980 the Commission Board adopted Ordinance No. 2129, which states:

“WHEREAS, a study has been made to determine the feasibility of establishing a separate Air Crash Station at the Tuscaloosa Municipal Airport to meet the City’s obligation of manning the station only during those periods immediately preceding and during the time of regularly scheduled commercial aircraft arrivals and takeoffs at the Airport; and
“WHEREAS, in the opinion of the Board, the requirements for manning the Air Crash Station and for serving the public using the Municipal Airport can be best served, and more economically served, by the establishment of a separate Air Crash Station or department not controlled through the Tuscaloosa Fire Department, but operated under the direct supervision and control of a separate Air Crash Chief or Department Head in conjunction with and in coordination with the Airport Manager and the Federal Aviation Administration.
“NOW, THEREFORE, BE IT ORDAINED BY THE COMMISSION BOARD OF TUSCALOOSA, as follows:
“1. That, in order to provide for the safety of persons using the Tuscaloosa Municipal Airport, through commercial and other flights into and out of the Tuscaloosa Municipal Airport, there is hereby created a separate department to be called the ‘Tuscaloosa Air Crash Station.’
“2. Said Air Crash Station shall be manned by six (6) municipal employees, who shall be employed and paid as hourly employees, and by one (1) Air Crash Chief or Department Head.
“3. The six (6) hourly employees shall be paid bi-weekly as other hourly employees are paid, and the initial hourly compensation authorized shall be Five and 21/100 Dollars ($5.21) per hour.
“4. The Department Head or Chief, Air Crash Station, shall be paid bi-weekly as other salaried employees are paid, with an initial salary of Seven Hundred Twenty-seven and 60/100 Dollars ($727.60) biweekly. The Chief or Head of the Air Crash Station, being a salaried employee, shall be selected and employed in accordance with the applicable Civil Service laws and Rules of the Civil Service Board, governing the selection of municipal employees subject to such system.
“5. All personnel performing such duties at the Air Crash Station shall first receive, or shall have received, training which meets the minimum requirements for firefighters in the State of Alabama and, thereafter, shall be further instructed in air crash procedures and techniques.” (Emphasis supplied.)

The members of the Tuscaloosa Fire Department are hired and maintained under the City’s Civil Service System, pursuant to Act No. 249 of the Local Acts of the State of Alabama (1947), which provides, in part:

“Section 2. Definitions. — As used in this Act, unless the context plainly indicates a different meaning, the following words, terms and phrases shall have the meanings respectively ascribed to them: . . . ‘employee’ means any person (including the head of departments) who is employed in the service of the city on a regular monthly salary, with the exception of elected officers, the municipal recorder or judge, school teachers and all other employees of the city board of education, the administrator and all other employees of any city owned or operated hospital, and the director of recreation and all employees of the city recreation board; ...
“Section 3. Civil Service System. — All employees of the city as herein defined shall be subject to civil service rules and regulations prescribed in this Act or promulgated pursuant to Section 8 hereof and administered by the civil service board, the creation of which is provided for in Section 4 hereof....”

The Ordinance, as noted earlier, authorized the use of specially trained hourly employees at the separate Air Crash Station — employees not coming within the jurisdiction of the Civil Service Board.

A complaint, seeking injunctive relief, was filed by members of the Tuscaloosa Fire Department (all civil service employees) and by Local 403 of the International Association of Firefighters. Defendants were the City of Tuscaloosa, the Chairman of the Commission Board, the Public Safety Commissioner, Associate Members of the Commission Board, and the Tuscaloosa Civil Service Board and its members. Plaintiffs claimed bad faith in the adoption of Ordinance 2129, because the creation of the separate Air Crash Station and the hiring of “hourly” personnel allegedly violated the “spirit, intent, and express provisions and meanings” of the civil service law, and were contrary to law. Further, Plaintiffs alleged that the actions of Defendants would lead to the creation of an independent fire department, immune from both the requirements and the safeguards of the civil service system. Plaintiffs also contended that they suffered injury in the threat posed to their job security, because:

“[d]ue to the ordinance [No. 2129], jobs that formerly existed within the Civil Service System were abolished when non civil service firefighters were assigned to the Air Crash Station to do the identical work previously done by civil service firemen. The result, in effect, has been an abolishment of jobs and an immediate creation and staffing of non civil service jobs as to the identical work.”

In addition to an injunction prohibiting the implementation of Ordinance 2129, Plaintiffs requested an order voiding the ordinance and requiring the Air Crash Station to be manned by regular civil service firemen.

After a non-jury trial, the trial judge entered judgment for all Defendants and against all Plaintiffs, finding no bad faith in the adoption of Ordinance 2129, and specifically holding:

“On the contrary, the Court finds that the adoption of the ordinance was an attempt to effect savings of tax dollars and to provide better service to the public. Whether or not this ordinance has met these purposes, this Court does not express an opinion. Suffice it to say that the actions of the City were not in ‘bad faith, fraudulent, arbitrary, unreasonable, or a palpable abuse of discretion.’ ”

We disagree; and we reverse and remand.

It is, without question, a settled rule of law in Alabama that:

“municipal ordinances are presumed to be valid and reasonable, to be within the scope of the powers granted municipalities to adopt such ordinances, and are not to be struck down unless they are clearly arbitrary and unreasonable.” Cudd v. City of Homewood, 284 Ala. 268, 270, 224 So.2d 625 (1969).

It is equally well-settled that:

“courts will not inquire into the motives which may have induced authorized legislative action, whether by the Legislature of the state or by the municipal council.
“This, it will be observed, is but an elaboration of the rule that bad faith must be apparent upon the face of the act, and cannot be shown by extrinsic fact.” Clements v. Commission of City of Birmingham, 215 Ala. 59, 61, 109 So. 158 (1926).

The case of Miller v. State, 249 Ala. 14, 29 So.2d 411 (1947), relied upon and cited to us by Appellants, is a good example of that “apparent upon the face of the act” requisite discussed in Clements, supra. In Miller, a civil service position was destroyed and a non-civil service position created in a single ordinance without accompanying indications of prior study of possible reasons for the ordinance. The Miller court specifically stated:

“In the instant case, we have not only contemporaneous action, but all the evidences of bad faith wrapped up in the same resolution.... A mere reading of the ordinances and resolutions in this case convinces us of their obvious purpose to evade superior laws, which is what this Court has said constitutes bad faith in their enactment.” Miller, at 249 Ala. 23, 29 So.2d 411.

Turning to the facts now before us, we acknowledge the City’s valid concern for insuring the proper use of its resources so as to best serve the citizenry of Tuscaloosa. Further, we commend the City officials for a thorough study of the factors involved in staffing and equipping the Air Crash Station. We can not, however, extend the presumption of validity to Ordinance 2129.

In the case of City of Wichita Falls v. Harris, 532 S.W.2d 653 (Tex.Civ:App.l975), the Texas court was faced with a situation very similar to the facts of the instant appeal:

“The City contends that it could not fill the Civil Service position described as ‘Fire Training Officer’ by Civil Service examination. It then created and filled a non-Civil Service position described as ‘Fire Training Specialist’ to take the place of the Fire Training Officer position. It contends that this act was not void.
“Thereafter, by memorandum written by the City Manager of the City, there was created a classification of Fire Training Specialist in the Fire Department and it was noted that such position was abolished and a non-Civil Service position was created to take its place. The present occupant of that position was employed without an examination. Thereafter, the Board of Aldermen passed an ordinance purporting to abolish the Civil Service classification and created the non-Civil Service classification.
“The job description of both positions requires that a person holding the position must have knowledge of the principles and practices of fire prevention and suppression.
“The Fire Training Specialist is paid by the Fire Department, drives a Fire Department vehicle, attends fires, has an office in the fire station, and the Fire Chief is his supervisor. He attends the City’s rookie fire school and he is responsible for organization and implementing the tactical attack on fires when they break out.” City of Wichita Falls, at 532 S.W.2d 656, 657.

Despite the City’s assertion that it could not fill the Civil Service position of Fire Training Officer because of the hurdle of the requisite Civil Service examination, the Texas court found that the non-Civil Service job classification was almost identical to the prior Civil Service job classification, and declared the ordinance void. The court then quoted from the case of City of San Antonio v. Wallace, 161 Tex. 41, 338 S.W.2d 153 (1960), wherein it was held that the presumption of validity and regularity as applied in the construction of official acts, should not be applied to the construction of civil service ordinances. The logic of the City of San Antonio court’s holding is evident:

“Should we close the doors against a judicial inquiry into the element of good faith in municipal action, a colorable or sham ordinance could render an express constitutional provision impotent and meaningless.
The policy of the state, as reflected in its civil service statutes, would be at the mercy of municipal action. In this situation, the courts in carrying out state policy must consider the element of good faith in passing upon the validity of municipal actions.
“The authorities however do support the proposition that an action of a city legislative body abolishing civil service positions may be judicially examined in the light of its surrounding circumstances, the prior and subsequent actions of such legislative body and the public policy represented by the civil service law in order to determine the good faith of the questioned action.” City of San Antonio, at 338 S.W.2d 156.

The public policy of the State of Alabama was enunciated by its legislature in the enactment of Act No. 249 (1947). The purpose of that legislation was:

“[t]o provide for the City of Tuscaloosa a civil service system governing the appointment, removal, salaries, tenure, and official conduct of employees of the city, defining violations of the Act, and imposing penalties for violations.”

The various civil service systems of this State were created by the Legislature to achieve the goals of stability, continuity, and security in the various job classifications within a municipality. Efficiency, safety, and economy reasons notwithstanding, the City’s attempts to subvert and evade the requirements and employee-protections of the Civil Service Act by hiring non-Civil Service “hourly” employees who are, in all respects, identical to their Civil Service counterparts, are tantamount to bad faith. The goals which the various civil service acts seek to achieve may not be circumvented by acts such as Ordinance 2129, and this Court will carefully scrutinize attempts at such evasion. Such scrutiny, in the instant case, reveals to us that while the “face” of Ordinance 2129 reflects a valid concern for the continuation of a vital service of the municipality, the “surrounding circumstances” and the “public policy represented by the civil service law” reveal an attempt to avoid the demands of Act. No. 249 (1947) — the ultimate protection afforded the employees of the City of Tuscaloosa.

Although we have analyzed and discussed this problem within the good faith/bad faith dichotomy context, we recognize that from a purely technical point of view these terms are inaccurate as applied in the instant case. While the Miller Court explicitly equated the enactment of an ordinance that “evade[s] superior law” with “bad faith ... enactment,” and while we retain that vernacular in our rationale for the instant holding, for accuracy’s sake it ought to be pointed out that the good faith/bad faith dichotomy has its field of operation in testing reasonableness v. arbitrariness. On the other hand, a municipal ordinance that contravenes state law, as here, is invalid for that reason alone; and the application of the good faith/bad faith test is superfluous.

We hold, then, that Ordinance 2129, as enacted by the City of Tuscaloosa, is void, and we reverse the judgment and remand this cause for further proceedings in accordance with this opinion.

REVERSED AND REMANDED.

FAULKNER, EMBRY and ADAMS, JJ., concur.

SHORES, J., concurs in the result.

BEATTY, J., concurs specially.

TORBERT, C.J., dissents.

MADDOX and ALMON, JJ., not sitting.

BEATTY, Justice

(concurring specially):

According to the court’s opinion, the purpose of civil service legislation is “to achieve the goals of stability, continuity and security in the various job classifications within a municipality.” This formulation is over-broad and, if applied literally, would unduly restrict the power of municipalities to reorganize personnel for reasons of economy. The actual statutory purpose of such legislation is a narrower one: to limit political control and arbitrary discretion in public employment, making it easier to attract and retain employees on the basis of merit. See Miller v. State ex rel. Peek, 249 Ala. 14, 29 So.2d 411, 417 (1947). See generally, 3 MeQuillen, The Law of Municipal Corporations, §§ 12.76, 12.111, 12.120 (3d ed. 1982). The City of Tuscaloosa’s action in no way frustrates this purpose, since the city has demonstrated, as the court recognizes, an economic justification. “Civil service acts ... are not intended to retain in office at public expense those whose services may be dispensed with for economy.” Id., § 12.111 at 432. Accord Miller v. State, supra.

However, even though in this instance the city acted in good faith to achieve a legitimate goal, the means it chose were not authorized by the civil service laws. The city’s action amounts to the creation of a new civil service classification. Only the legislature and not this court may authorize such an action.

This decision should be viewed as a narrow one; it does not foreclose consideration of whether other municipal actions similarly “legislate” new civil service classifications. See Moncrief v. State, 593 S.W.2d 312 (Tex.1980) (no bad faith where city saved money by replacing civil service custodians with independent contractor), Annot. 87 A.L.R.2d 1165 (1978), 4 McQuillen, supra, §§ 12.246-12.248d.

TORBERT, Chief Justice

(dissenting).

I dissent. The majority opinion refers to the settled rule of law in Alabama that:

“[Municipal ordinances are presumed to be valid and reasonable, to be within the scope of the powers granted municipalities to adopt such ordinances, and are not to be struck down unless they are clearly arbitrary and unreasonable. City of Mobile v. La Clede Hotel Co., 221 Ala. 531, 129 So. 477.”

Cudd v. City of Homewood, 284 Ala. 268, 270, 224 So.2d 625 (1969). The majority also quotes Clements v. Commission of City of Birmingham, 215 Ala. 59, 61, 109 So. 158 (1926), when it says that bad faith must be apparent upon the face of the act. I am in complete agreement with these principles of law. However, I disagree with the majority’s reliance on Miller v. State, 249 Ala. 14, 29 So.2d 411 (1947), as dispositive in this appeal. The ordinance in this case differs in two ways from the ordinance in Miller, in which the bad faith was apparent on the face of the act.

First, a civil service position was not destroyed in the present case. Rather, a job assignment was changed. Appellants remained in the civil service as firefighters with the Tuscaloosa Fire Department. Hourly non-civil service personnel were then hired to man the Air Crash Station. Appellants admitted that they viewed their positions at the Air Crash Station as job assignments and not civil service offices. Appellee was correct in its distinction between the two when it argued in brief:

“A Civil Service ‘office’ is a position created by the Civil Service Board to which employees are assigned who meet the criteria. A ‘job assignment’ is a task which an employee’s superior may administratively designate him to perform.”

The majority relies upon City of Wichita Falls v. Harris, 532 S.W.2d 653 (Tex.Civ.App.1975), and City of San Antonio v. Wallace, 161 Tex. 41, 338 S.W.2d 153 (1960), in addition to Miller, to hold the ordinance invalid; however, those cases, like Miller, involved the abolition of a job, with which we are not faced, and are, therefore, not analogous to the present case. Second, the ordinance before us was preceded by a feasibility study which the ordinance recognized in its preamble. The study projected annual savings amounting to $75,238.28. The actual savings in the first year under the ordinance were about $74,000.00.

By quoting the public policy represented •by the civil service law enunciated in Act No. 249 (1947), the majority addresses the issue of whether the city can justify hiring an employee who is not to be subject to civil service. It is clear from Section 2 of the act that “ ‘employee’ means any person who is employed in the service of the city on a-regular monthly salary.” This explicitly allows hourly personnel to remain outside civil service by including only monthly salaried employees under the civil service law. Obviously, a civil service position could not be abolished and then replaced by an identical non-civil service position, but, as already discussed, that did not occur in this case.

The trial court had Ordinance No. 2129 before it and heard evidence and testimony presented during the trial. Its conclusion that the ordinance was not invalid, either' through bad faith, an abuse of discretion, or having been adopted arbitrarily or capriciously, should be sustained.

      . “As needed” to meet the F.A.A. requirements noted above.

      . The “constitutional provision” with which the Texas court was dealing is comparable to Act No. 249 (1947) and Code 1975, § 11-45-1.


source: Caselaw Access Project

author: SHORES, Justice. SHORES, Justice.

license: Public Domain

text:
    Ralph P. EAGERTON, Jr., as Commissioner of Revenue of the State of Alabama v. DIXIE COLOR PRINTING CORPORATION and Greater Buffalo Press, Inc., a corporation.
    81-318.
    Supreme Court of Alabama.
    Sept. 17, 1982.
    As Corrected on Denial of Rehearing Nov. 5, 1982.
    Charles A. Graddick, Atty. Gen., and Herbert I. Burson, Jr., Chief Counsel Dept, of Revenue, and Asst. Atty. Gen., and John J. Breckenridge, Asst. Counsel Dept, of Revenue, and Asst. Atty. Gen., for appellant.
    Walter R. Byars and Wanda D. Dever-eaux of Steiner, Crum & Baker, Montgomery, for appellees.
   SHORES, Justice.

Defendant Ralph P. Eagerton, as state commissioner of revenue, appeals an order of the trial court granting a refund of state and local sales taxes paid by plaintiffs Dixie Color Printing Corporation (Dixie Color) and Greater Buffalo Press, Inc. (Buffalo Press) on the sale of newspaper advertising supplements. We affirm.

Dixie Color, a subsidiary of Buffalo Press, is an independent commercial printer, located in Sylacauga, Alabama. From 1974 to 1976, Dixie Color had an agreement with Moore-Handley, Inc., whereby Dixie Color printed newspaper advertising supplements for Moore-Handley for insertion into various newspapers for distribution with the newspapers. Most of the supplements were printed with the masthead of the newspaper in which they were inserted. All were printed according to specifications supplied by the newspapers. Moore-Hand-ley paid Dixie Color a total of $243,250.08 for the supplements printed during this time. Dixie Color collected no sales taxes from Moore-Handley, contending that the sales of these supplements were exempt from taxation because they were to be inserted and become part of a newspaper and, thus, were for resale. The sale of the newspaper to the public is a retail sale and is, therefore, subject to state and local taxes. Ala.Code 1975, § 40-23-2(1).

In 1977, the Alabama Department of Revenue conducted an audit of the business records of Dixie Color and Buffalo Press. The commissioner determined, based upon § 40-23-26, Ala.Code 1975, that the plaintiffs owed $10,922.48 in state sales tax and $2,730.21 in city sales tax from the sales of newspaper advertising supplements to Moore-Handley. In March, 1978, the plaintiffs made payment in full of all taxes claimed due by the commissioner.

On July 20,1979, Dixie Color and Buffalo Press filed suit against the commissioner and Moore-Handley, seeking a refund of sales tax payments, or, in the alternative, to recover from the buyer taxes paid. Moore-Handley was later dismissed as a defendant. Plaintiffs also directly petitioned the commissioner in February, 1980, for a refund of taxes paid; the petition was denied.

The trial court, upon a stipulation of facts, found that Revenue Rule P18-031, upon which the commissioner relied in denying a refund, and the department’s enforcement thereof resulted in an unconstitutional application of § 40-23-2, Ala.Code 1975, and other relevant Alabama revenue laws. The trial court ordered the commissioner to refund $10,862.16 in state taxes and $2,715.13 in local taxes, plus interest, to the plaintiffs. The commissioner appealed after the trial court refused to vacate the judgment.

The primary issue presented in this appeal is whether Rule P18-031, Printers, creates an arbitrary and discriminatory classification, the enforcement of which creates an unconstitutional application of relevant state revenue laws. Rule P18-031 was promulgated by the Department of Revenue to offer taxpayers and tax administrators an interpretation of the tax laws on sales made by printers. That rule states, in pertinent part, that:

“Sales to consumers of printed matter such as catalogs, books, letterheads, invoice forms, envelopes, folders, advertising circulars, and the like by printers or others engaged in selling printed matter are subject to sales tax....
“Newspaper advertising supplements or circulars inserted in newspapers usually fall in the following categories:
“(1) A buyer enters into a contract with a printer for the printing of advertising circulars, catalogs, etc., and directs the printer to deliver the printed material to a newspaper or several newspapers, or directs that they be delivered to another location, sometimes the buyer’s place of business. The buyer then enters into a second contract with the newspaper for distribution of the inserts. The printer has made a retail sale to his customer and the sale is subject to the sales tax.
“(2) Newspaper advertising supplements and inserts which are inserted into newspapers and sold as part and parcel of the newspaper, the retail sales of which are subject to the sales tax, no sales tax arises where such advertising supplements or inserts are (1) printed by the publishers of the newspaper and inserted into and sold as part and parcel of the newspaper published by such publishers or (2) printed by another printer for the newspaper publisher and paid for by the newspaper publisher for insertion into and sold as part and parcel of the newspaper.”

Department of Revenue Sales and Use Tax Rule P18-031, Printers.

Rule P18-031 divides the sale of newspaper advertising supplements into three categories. Supplements printed by printers and sold to advertisers are taxed; inserts printed by printers and sold to newspapers are exempt, as are inserts printed by the newspaper. The commissioner argues, in support of the rule, that he is within his regulatory authority to treat newspapers differently from printers, on the grounds that they serve different functions. We do not question the commissioner’s authority to classify different groups; however, “classifications for the purpose of taxation must not be arbitrary, but must be based on a real and substantial difference and there must be no discrimination in favor of one against the other.” Quaker City Cab Co. v. Pennsylvania, 277 U.S. 389, 48 S.Ct. 553, 72 L.Ed. 927 (1928).

The commissioner argues under the facts in this case that the sales of supplements by Dixie Color were retail sales and, therefore, properly subject to sales tax. Ala.Code 1975, § 40-23-2(1). The Code defines “retail sale” to include “all sales of tangible personal property except those ... defined as wholesale sales.” § 40-23-l(a)(10). Section 40-23-l(a)(9)(a), in turn, defines “wholesale sale,” inter alia, as a “sale of tangible personal property ... for resale.” The commissioner contends that the supplements were never resold by Moore-Handley, but simply distributed to the public by the newspapers, and that Moore-Handley was the ultimate consumer of the supplements. We do not agree. The individual who purchases a newspaper that contains the supplement, along with all other sections of the newspaper, is the ultimate consumer and pays a retail sales tax on that purchase. Ala.Code 1975, § 40-23-26; State v. T.R Miller Mill Co., 272 Ala. 135, 130 So.2d 185 (1961).

Finally, the commissioner argues that Dixie Color’s sales are subject to taxation as being “gross proceeds of sales,” under § 40-23-l(a)(6), Ala.Code 1975. The Code defines “gross proceeds” to be “the reasonable and fair market value of any tangible personal property previously purchased at wholesale which is withdrawn or used from the business or stock and used or consumed in connection with said business.” § 40-23-l(a)(8), Ala.Code 1975. However, an exemption is provided for “property which enters into and becomes an ingredient or component part of tangible personal property or products manufactured or compounded for sale.” § 40-23-l(a)(6), Ala.Code 1975.

The commissioner urges that Moore-Handley did not manufacture any product in which it included the supplements and was, in fact, the consumer of these supplements. We agree that Moore-Handley did not manufacture the supplements, or any product of which they became a part, but we do not agree that it consumed them. The supplements were printed with the intended purpose of being inserted and resold as part and parcel of the newspaper. The commissioner acknowledges that had the newspapers purchased the supplements from the same printer for insertion in the newspaper, the “component part” exemption would apply and no tax would be due. The supplements are just as much a part of the newspaper when ordered by Moore-Handley as they are when ordered by the newspaper. We see no reason why the tax consequences of identical transactions should differ, based entirely and solely on who makes the purchase.

Clearly, the legislature has the power to impose a tax on retail sales within this state. But an uneven application of sales tax statutes, as shown by Rule P18-031, among members of the same class, based solely on who purchases these newspaper supplements, is both unfair and constitutionally unacceptable. For purposes of taxation, all purchasers of newspaper advertising supplements that are, in fact, inserted and distributed in the newspaper must be treated equally. It is within the prerogative of the commissioner to treat the sale of printed advertising supplements as retail sales when sold to the original purchaser, but he cannot treat the transaction differently simply because the purchasers are not the same. It is the transaction which is taxable and not the identity of the purchaser.

We hold that, under the facts in this case, an advertising supplement, which is printed solely for the purpose of being inserted into a newspaper and distributed in the newspaper, is an integral part of that newspaper. Daily Record Co. v. James, 629 S.W.2d 348 (Mo.1982). Moore-Handley pays the newspaper by linear inch as it does for any other advertisement carried in the paper. The fact that the supplements are not printed directly by the newspaper does not change the result. Sears, Roebuck and Co. v. State Tax Commission, 370 Mass. 127, 345 N.E.2d 893 (1976).

The judgment of the trial court is affirmed.

AFFIRMED.

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

FAULKNER, J., dissents.

On Application for Rehearing

SHORES, Justice.

The application for rehearing filed in the above cause on October 1, 1982, is hereby denied.

OPINION CORRECTED; APPLICATION DENIED.

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

FAULKNER, J., dissents.

      . Pursuant to § 11-51-201, Ala.Code 1975, all sales taxes levied or assessed by any city or town are governed by state sales tax laws and, under § 11-51-207, are administered and collected by the Department of Revenue.

      . A small number of the newspaper supplements printed were used by Moore-Handley as store circulars. Plaintiffs acknowledge those supplements are subject to retail sales tax and do not challenge any payments made with regard to those supplements.


author: PER CURIAM. PER CURIAM.

text:
    WINN-DIXIE MONTGOMERY, INC. v. Mark BRYANT. Cecil THORNBERG v. Mark BRYANT.
    80-887, 80-894.
    Supreme Court of Alabama.
    Oct. 1, 1982.
    As Corrected on Denial of Rehearing Nov. 5, 1982.

      Joe R. Wallace of Davies, Williams & Wallace, Birmingham, for appellant Winn-Dixie Montgomery, Inc.
    E. Ray Large, Birmingham, for appellant Cecil Thornberg.
    James H. Wettermark of Burge & Florie, Birmingham, for appellee.
   PER CURIAM.

The dispositive question presented by these appeals is whether plaintiff’s cause of action arose in the Bessemer territorial division of the Tenth Judicial Circuit, and therefore should have been filed and tried in the Bessemer Division.

The facts are as follows: Mark Bryant (plaintiff), worked for his uncle, Cecil Thornberg, who ran a janitorial service which cleaned the Winn-Dixie grocery stores in the Birmingham area. Bryant was a member of one of the cleaning crews.

The crews usually cleaned the Winn-Dix-ie stores at night. They were locked in the stores for periods ranging from twelve to twenty-four hours. During the time in the stores, crew members ate food stuffs and took cigarettes off the store shelves. Both the Winn-Dixie store managers and Thorn-berg knew of this practice.

In April 1976, Ray Latty, manager of the Midfield Winn-Dixie grocery store, discovered an inventory reduction in one of the store’s meat products. Latty and Thorn-berg suspected that Bryant and his fellow crew members were taking the meat. The two men decided to secretly observe the cleaning crew as it worked in the Midfield Winn-Dixie store. Along with another Winn-Dixie employee, Latty and Thornberg hid behind a two-way mirror in the Midfield Winn-Dixie’s meat department on the night of April 28,1976. From this vantage point the men secretly watched Bryant and the other cleaning crew members at work. During the night, Bryant and the other crew members took items from the store shelves. The parties disagree as to whether this practice was sanctioned.

After the crew members had finished their work, they were confronted by Latty and Thornberg. Two police officers arrived on the scene, but the officers did not hear the discussion between Thornberg, Latty and the cleaning crew. Bryant .claimed that Thornberg and Latty made threats; Bryant testified:

“Q After the police officers left, what happened?
“A Mr. Dismukes left. And Cecil come in and Mr. Latty, and they said they had a little deal for us. We didn’t have to sign it. But if we signed it and we quit, they would kill us. Mr. Thorn-berg said that.
“MR. WALLACE: He said what?
“THE WITNESS: Said they would kill me if I quit.
“MR. WALLACE: Do what?
“THE WITNESS: If I quit.
“MR. WALLACE: Would kill you?
“THE WITNESS: Yes.
“Q Did anybody in that Winn-Dixie store have a gun?
“A Yes, sir.
“Q Who had the gun?
“A Mr. Ray Latty.
“Q Where was the gun?
“A At first he had it on him, and then he took it off and laid it on the counter.
“Q At what point did he lay it on the counter?
“A After the policemen had left.
“Q After the police left and y’all — Were you standing back at the same checkout counter?
“A Yes, sir.
“Q Did Mr. Latty make any additional comments at that time?
“A He told us we could sign the papers and we couldn't get no better than that. He said that Cecil — he would back Cecil up all the way if anything happened.”

Bryant and the other crew members then signed a paper Thornberg had drafted. The document read as follows:

“I hereby certify that I, the undersigned, have paid for all stolen merchandise taken from the Winn-Dixie Store in Midfield with the exception of the goods taken on April 28, 1976.
“These articles remain in the possession and care of Cecil Thornberg, owner of Mr. Clean Jan. Ser. and was taken from the undersigned when they left the above described store.
“/s/ Jimmy Monroe
“/s/ Mark Bryant
“/s/ Truman Ogle
“Wittness [sic]
/s/ R.L. Latty
/s/ Johnny Praytor
/s/ Cecil Thornberg”

After signing the document, Thornberg told the members of the cleaning crew that unless they continued working for him during the next year, he would report them to the police for theft.

After the incident at the Midfield store, Bryant continued working for Thornberg for another couple of months. In July, Thornberg objected to the length of Bryant’s hair and threatened to cut it. Bryant then quit his job, and Thornberg, as he had stated, swore out a warrant in the Municipal Court of Midfield for Bryant’s arrest. Authorities arrested Bryant in Tal-ladega and he was placed in the Talladega County jail. Officers transferred him to Midfield, where he was released the following day. The charges were later dismissed against Bryant, because Thornberg failed to appear as a witness.

Thornberg swore out a second warrant for Bryant’s arrest in April, 1977. Thorn-berg appeared at the second trial, and the court convicted Bryant of petit larceny. On appeal, the circuit court for the Tenth Judicial Circuit, Bessemer Division, vacated the judgment on the ground that the second conviction violated Bryant’s constitutional rights by subjecting him to jeopardy twice for the same offense.

In March, 1977, Bryant filed the present action against Thornberg and Winn-Dixie, in the Birmingham Division of the Tenth Judicial Circuit, in which he claimed false arrest, false imprisonment, malicious prosecution, slander and involuntary servitude. During trial in April, 1981, the plaintiff amended his complaint to include extortion and blackmail. The defendants properly challenged the jurisdiction of the Birmingham Division of the court to hear the case.

This Court has decided on several occasions the jurisdictional question whether a case was filed in the proper division of the Tenth Judicial Circuit. In Ex parte Central of Georgia Railway Co., 243 Ala. 508, 10 So.2d 746 (1942), the Court stated that “the court at Bessemer has exclusive jurisdiction of all civil actions at law upon causes of action arising in the territorial jurisdiction of that court....” Id. at 243 Ala. 513, 10 So.2d 746. In a decision regarding a contested election in Jefferson County, this Court opined that a case arises wherever the alleged wrong occurs. Mead Corporation v. City of Birmingham, 295 Ala. 14, 15, 321 So.2d 655 (1975).

The jury determined that both defendants, Winn-Dixie and Thornberg, were guilty of extortion and blackmail. The trial court acknowledged that the initial events leading to the filing of this suit occurred in the Bessemer Division, but the trial court reasoned that subsequent acts of Bryant, which consisted of cleaning additional Winn-Dixie stores located throughout Jefferson County, extended jurisdiction to the Birmingham Division. We agree.

The record indicates that not all of the events giving rise to this cause of action occurred at the Midfield Winn-Dixie store, located within the territorial jurisdiction of the Bessemer Division. True, the confrontation between the parties, the alleged threats made by Thornberg and Latty, and Bryant’s signing of the “confession,” all occurred at the Midfield store. But the claims for malicious prosecution, extortion, and involuntary servitude arose and accrued in the Birmingham Division.

Under the facts in this case, we hold that, although some of the causes of action arose in the Bessemer Division, others occurred outside of the Bessemer Division and, thus, the Bessemer Division does not have “exclusive jurisdiction of civil suits based upon causes of action arising in the Bessemer District.... ” Ex parte Central of Georgia Railway Co., 243 Ala. 508, 10 So.2d 746 (1942); Seaboard Surety Co. v. William R. Phillips & Co., 279 Ala. 510, 513, 187 So.2d 264 (1966); Metro Bank v. Real Coal Co., Inc., 374 So.2d 296, 297 (Ala.1979).

Based upon the foregoing, the judgment of the trial court is due to be, and the same hereby is, affirmed.

AFFIRMED.

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

MADDOX, FAULKNER and ALMON, JJ., dissent.

On Application for Rehearing

PER CURIAM.

On application for rehearing, appellants argue that the trial court committed prejudicial error by allowing Bryant to amend Ms complaint at the close of the evidence to include allegations of blackmail. and extortion. Although this contention was not addressed in our original opinion, on this application we would point out that Rule 15, Alabama Rules of Civil Procedure, permits liberal amendment of pleadings. Further, it is within the broad discretion of the trial court to permit an amendment to the complaint, subject to reversal on appeal only where there is an abuse of discretion. Walker v. Traughber, 351 So.2d 917 (Ala.1977). The appellants have not shown that they were prejudiced or that the trial court abused its discretion by allowing the amendment. The evidence supporting Bryant’s claims of extortion and blackmail was the same evidence presented throughout the trial and argued before the jury.

OPINION EXTENDED AND CORRECTED; APPLICATION OVERRULED.

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

FAULKNER and ALMON, JJ., dissent.


author: ADAMS, Justice. EMBRY, Justice

text:
    Shanda HICKMAN v. DOTHAN CITY BOARD OF EDUCATION, et al.
    81-300.
    Supreme Court of Alabama.
    Oct. 1, 1982.

      J. Victor Price, Jr., Montgomery, for appellant.
    Jere C. Segrest of Hardwick, Hause & Segrest, Dothan, for appellees.
   ADAMS, Justice.

This appeal involves the application of Ala. Const.1901, § 14 (sovereign immunity), to members and employees of the Dothan City Board of Education. Shanda Hickman (plaintiff) sued the members of the Dothan City Board of Education (Board) and four of its employees in the Circuit Court for Houston County. Defendants moved to dismiss under Rule 12(b)(6), Alabama Rules of Civil Procedure, contending that no cause of action was alleged. The trial court agreed and dismissed plaintiff’s complaint as to all defendants. Plaintiff appealed.

The dispositive issue is whether Ala. Const.1901, § 14, mandates dismissal of plaintiff’s action as to all defendants. We hold that it does, and for reasons discussed below, we affirm.

In her complaint, plaintiff, in essence, alleges that she was the subject of unfounded accusations, and of negligent and false evaluation and observation by Board employees. She complains that the Board members negligently accepted the incorrect evaluation and observations, and decided not to retain her for the next school year. Plaintiff was a non-tenured elementary school teacher first employed by the Board in the summer of 1978. Plaintiff alleges that she had two successful years of teaching, and positive evaluations for those two years reflecting her teaching competence. She states in her complaint that a new principal, defendant Carolyn Sanders, was assigned to her school in the 1980-81 school year. Sanders, allegedly, vented a personal, unprovoked hostility on plaintiff, negligently evaluated her teaching abilities, and untruthfully charged plaintiff with disseminating rumors concerning her. Plaintiff variously alleges that other employees of the Board were negligent in their accounts and observations of plaintiff’s teaching abilities, which they provided to the Board. She also alleges that they falsely accused her of trying to undermine Sander’s authority as principal. Against the Board, plaintiff alleges that its members are liable to her because they negligently accepted the incorrect evaluation and accounts in not renewing her teaching contract.

All members of the Board were sued in their individual and representative capacities. Three of the four employees sued (Carolyn Sanders, Mary N. Hogan, and Marge Martin) were sued only in their representative capacities as employees of the Board. The fourth employee, Jack Sasser, was sued in both his individual and representative capacities.

We find that this court’s recent decision in DeStafney v. University of Alabama, 413 So.2d 391 (Ala.1982) (DeStafney), is disposi-tive of this appeal. In that case, we quoted Milton v. Espey, 356 So.2d 1201 (Ala.1978), which said:

Section 14 of the Constitution not only prevents a suit against the State, but against its officers and agents in their official capacity when a result favorable to the plaintiff would directly affect a contract or property right of the State. Boaz Nursing Home, Inc. v. Recovery Inns of America, Inc., 289 Ala. 144, 266 So.2d 588 (1972); Southall v. Stricos Corp., 275 Ala. 156, 153 So.2d 234 (1963). The prohibition of Section 14 cannot be circumvented by suing the official or agent individually. See Wallace v. Malone, 279 Ala. 93, 182 So.2d 360 (1964).

Milton v. Espey, at 1202. Recently, we observed that “boards of education are not subject to tort actions due to sovereign immunity.” Threadgill v. Birmingham Board of Education, 407 So.2d 129 at 131 (Ala.1981), citing Enterprise City Board of Education v. Miller, 348 So.2d 782 (Ala.1977) and Sims v. Etowah County Board of Education, 337 So.2d 1310 (Ala.1976).

Explaining the extent of protection afforded under § 14, this court in Destafney stated:

Clearly, under the guidelines of Gill and Milton, a claim for personal injury based upon the alleged negligent conduct of a State employee, even when committed in the line and scope of employment, is not within the ambit of § 14’s protection. Such a claim, by virtue of its nature and the relief demanded, in no way seeks to circumvent the prohibition of § 14. Any state interest affected by the suit is far too incidental to supply the requisite nexus for extension of constitutional immunity to the individual employee defendant.

DeStafney, at 395.

Limitations, however, were noted on the extent to which a state employee could be sued for negligence:

This is not to say, however, that every act or performance of duty by a state official or employee, by virtue of its characterization as negligence, necessarily falls outside the immunity doctrine. Even absent the requisite identity between the State and the state official or employee defendant to invoke absolute immunity, the Restatement’s doctrine of substantive immunity may yet be invoked if the official or employee 1) is engaged in the exercise of a discretionary function; 2) is privileged and does not exceed or abuse the privilege; or 3) is not negligent in the performance of his responsibility.

DeStafney, at 395.

In Bell v. Chisom, 421 So.2d 1239 (Ala.1982), this court applied DeStafney to reverse and remand a grant of summary judgment in favor of defendant state employees. We held that immunity is an affirmative defense for which the burden of proof rests with those asserting it. There, the trial court had insufficient material before it to determine whether the defendant state employees were engaged in a discretionary function and, therefore, entitled to raise the defense. A reversal and remand was necessary, under the facts of that ease, for the issue of immunity to be properly considered.

Under the allegations contained in the complaint, the trial court correctly dismissed plaintiffs cause of action as to Carolyn Sanders, Mary N. Hogan, and Marge Martin. They were sued only in their representative capacities, and are, therefore, within the protection afforded under § 14. For the same reason, plaintiffs action against the members of the Board was properly dismissed insofar as the Board members were sued in their representative capacities.

We must yet determine, however, whether the trial court erred in dismissing plaintiffs action against the members of the Board and Jack Sasser, insofar as they were sued in their individual capacities. As stated in DeStafney, “alleged negligent conduct of a State employee, even when committed in the line and scope of employment, is not within the ambit of § 14’s protection.” DeStafney, supra. Therefore, as to these defendants sued in their individual capacities, we must discern from the record whether the “alleged negligent conduct” rises to the level of a claim under any theory recognized under the tort law of this state.

This statement, viewed in its factual context, means “alleged negligent conduct” which states a cognizable tort claim. We have strained at each allegation, and we are unable to find language which expresses a tort claim against those defendants sued in their individual capacities. All allegations come within the ambit of a discretionary function. Even when considered most liberally, they provide no basis upon which to found liability for a personal claim of injury. They lack the requisite element of a claim in tort; hence they fall short. Therefore, we affirm the trial court’s dismissal as to plaintiff’s action against the defendants sued in their individual capacities.

We hasten to point out that our affirmance is not grounded on a technical deficiency of plaintiff’s alternative statements of her claim. Our recent decision in Bell v. Chisom, dramatizes this point. There, we observed that, although the pleadings were somewhat loosely drawn, the allegations sufficiently stated a cognizable claim in tort (the failure to furnish a safe place to work). Here, to be sure, plaintiff employed traditional tort language (negligence); but in each instance this language either refers to conduct which falls within a range of discretionary administrative functions, or is used in conjunction with other language not stating a cognizable legal claim for damages in tort. We, therefore, can reach no other result.

Lastly, we do not reach plaintiff’s argument concerning a constitutional basis for her action. We find that theory of recovery insufficiently argued to permit review. The judgment of the trial court is affirmed.

AFFIRMED.

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

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

EMBRY, J., dissents.

EMBRY, Justice

(dissenting):

I respectfully dissent and refer the reader to my views expressed in my dissent in Bell v. Chisom, 421 So.2d 1239 (Ala.1982). I would hold that the party seeking recovery of one who has a defense based upon the immunity doctrine must negate in the complaint the cloak of immunity that would be presumed to exist with regard to state employees. Further, I would hold that a state employee engaged in a discretionary function should be sued in a representative capacity, thus causing liability for the payment of any judgment to rest upon the agency or department of the state for which the individual is performing the services out of which the liability to the plaintiff arose.


author: SHORES, Justice.

text:
    ALABAMA POWER COMPANY v. ALABAMA PUBLIC SERVICE COMMISSION.
    80-892.
    Supreme Court of Alabama.
    Nov. 5, 1982.

      John Bingham and Steven G. McKinney, Balch, Bingham, Baker, Hawthorne, Williams & Ward, Birmingham, for appellant.
    Euel A. Screws, Jr. and James M. Edwards of Copeland, Franco, Screws & Gill, Montgomery, for appellee.
   SHORES, Justice.

This is an appeal by Alabama Power Company from a rate order of the Alabama Public Service Commission, entered on August 14, 1981. Alabama Power filed with the Commission on January 20, 1981, a revised rate schedule and a new rate schedule, with a proposed effective date of March 1, 1981, pursuant to Ala.Code 1975, § 37-1-81(a). The rate schedule: (1) increased the charge for collection services from $1.00 per call to $3.00 per call; (2) increased the charge for connection services from $3.00 per connection to $5.00 per connection; (3) increased the charge for reconnection services from $3.00 per reconnection to $9.00 per reconnection; and (4) incorporated the changes required by the Commission’s order in APSC Docket No. 17752, which dealt with the service standards of the Public Utility Regulatory Policies Act of 1978 (“PURPA”).

By order of February 2, 1981, the Commission ordered the schedules suspended through August 31, 1981, and ordered a public hearing.

At the hearing on March 6, 1981, five exhibits were accepted into evidence:

Exhibit 1: Alabama Power’s filing letter with revised tariff Rule 20 and new tariff Rule 24 attached;

Exhibit 2: The prepared testimony and cost study of Alabama Power’s witness, Ernest Glass, Jr.;

Exhibit 3: Recommendation 30 of the 1978 Price Waterhouse and Company audit of Alabama Power’s entire operation, which states:

“The amount of fixed fee charges that can be identified and billed to customers does not cover the actual costs the Company incurs in providing special services such as (a) collection calls, (b) service connections, and (c) service reconnections. We estimate that last year the difference between actual costs of these three services and the fixed fees received for them was at least $1 million. We recommend that the Company and the Public Service Commission review these fixed fee charges on a periodic basis to determine whether they cover the actual costs incurred by the Company to provide such services. Periodic revision of the fixed fee charge would ensure that the cost of those services is borne by customers who use them.”

Exhibit 3(a): 1980 Price Waterhouse and Company follow-up study comments upon Recommendation 30.

Exhibit 4: Tariff Rule 20 as it was before Alabama Power’s filing.

The participants at the public hearing were members of the Commission staff (the Commission itself was not present), the Attorney General’s office, and Alabama Power.

The position of Alabama Power, as summarized in the testimony of Ernest Glass, Jr., the assistant comptroller, is as follows:

“Well, briefly, the experience of the company has been that we are incurring increasing costs in the performance of certain specific work relating to the establishment of accounts, reconnection services and collection calls. It’s been several years since these costs have been updated, and it is our view that the costs of these services to customers should be borne by those that cause them to be incurred as opposed to being subsidized by ratepayers generally.”

Mr. Glass was questioned by both the Attorney General’s office and the Commission’s staff. No other witnesses testified and no evidence has been offered or accepted since the March 6, 1981, hearing.

The Commission voted to reject the rate schedules insofar as they increase the identified charges and entered an order to that effect on August 14,1981. Alabama Power filed a motion requesting reconsideration or rehearing, upon which the Commission took no action.

This appeal followed. We affirm in part.

Alabama Power argues that the utility’s experience of out-of-pocket losses on collection, connection, and reconnection services constitutes confiscation. We disagree insofar as the costs of these services are included in the computation of the overall rate structure of the utility. Unprofitable services may not be singled out for review absent a showing that the costs incurred for these services are not being recovered through other rates. In other words, it is not mandatory that all rates be cost justified.

Ala.Code 1975, § 37-1-80, requires that rates must be “just and reasonable.” If the overall rate structure allows the utility to earn a fair net return, the statute is satisfied. As we stated in M.W. Smith Lumber Co. v. Alabama Public Service Commission, 247 Ala. 318, 24 So.2d 409 (1946), quoting Norfolk and W.R. Co. v. Conley, 236 U.S. 605, 35 S.Ct. 437, 59 L.Ed. 745 (1915):

“[I]t is not necessary that there should be uniform rates or the same percentage of profit on every sort of business; and .. . there is abundant room for reasonable classification and the adaptation of rates to the various groups of services.”

The overall rate structure of the utility was considered by this Court in Alabama Power Company v. Alabama Public Service Commission, 422 So.2d 767 (Ala.1982). Thus, this appeal was subsumed in part by that case.

Alabama Power next argues that the rule change ordered by the Commission to prohibit collector’s calls on delinquent accounts prior to termination notice was ordered without proper notice and hearing in violation of Ala.Code 1975, §§ 37-1-83, -86, and the company’s constitutional rights. We need not address that issue because we agree with Alabama Power that, in any event, such an order by the Commission improperly interferes with management prerogatives and the efficient operation of the company.

The Commission’s power is limited to that power granted under a strict construction of the enabling legislation. Boswell v. Whatley, 345 So.2d 1324 (Ala.1977). Under Ala.Code 1975, § 37-1-80, the utility has the right not only to just and reasonable rates, but also to collect such rates “under honest, efficient and economical management.” This right allows the utility to operate consistent with the free enterprise system to the extent possible. “The function of the Commission is that of regulation, and not of management” and the Commission “should not be allowed to interfere with the proper operation of the utility as a business concern by usurping managerial prerogatives.” Alabama Power Co. v. Alabama Public Service Commission, 359 So.2d 776 (Ala.1978).

We hold that the dispatching of collectors to call upon delinquent accounts is a managerial prerogative not to be usurped by the Commission and, therefore, reverse the order of the Commission to that extent.

AFFIRMED IN PART; REVERSED IN PART.

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


author: EMBRY, Justice. TORBERT, Chief Justice

text:
    Jessie Lee SAWYER v. CHEVRON U.S.A., INC.
    81-171.
    Supreme Court of Alabama.
    Nov. 5, 1982.
    Lawrence B. Voit of Silver & Voit, Mobile, and C.R. McRae, Pascagoula, Miss., for appellant.
    Alex T. Howard, Jr. and Robin S. Brigham of Johnstone, Adams, May, Howard & Hill, Mobile, for appellee.
   EMBRY, Justice.

Sawyer brought this action against Chevron U.S.A., Inc., and others, to recover for injuries sustained in an automobile collision. Before proceeding to trial, Chevron’s motion for summary judgment was granted and final judgment was entered in its behalf, pursuant to Rule 54(b), ARCP. Sawyer appeals. We reverse and remand.

Sawyer was injured when a tractor-trailer truck, driven by Benjamin M. Brunson, an employee of McDonald Petroleum Company, collided with the rear of an automobile in which Sawyer was a passenger. The Chevron insignia was emblazoned on the trailer that also contained Chevron gasoline.

Brunson, the driver of the truck, was a salaried employee of McDonald Petroleum. His general duties were to open the plant in the mornings, check the tanks, check the vehicles to ensure they were in proper operating condition, and make deliveries of gasoline. The president of McDonald Petroleum, James McDonald, asked Brunson to work on the day of the accident, a Saturday. Brunson was instructed to deliver gasoline to the Malbis Plantation Chevron Station in Baldwin County after someone from that station called the offices of McDonald Petroleum about 10:00 a.m. requesting the delivery. Brunson left that station shortly after noon. The station was approximately twelve miles from the site of the collision on the Interstate 10 bridge from Spanish Fort toward Mobile.

The tractor-trailer involved in the collision was owned by McDonald Petroleum. McDonald Petroleum was a limited commission agent for Chevron and distributed Chevron petroleum products. McDonald Petroleum had the exclusive right to hire, pay, control, direct and discharge any and all of its officers and employees without approval by Chevron. The “Limited Commission Agent” agreement between McDonald Petroleum and Chevron required McDonald Petroleum to carry at its own expense, and for joint protection of it and Chevron, public liability insurance on all the automotive equipment operated directly, or indirectly, by McDonald Petroleum. That agreement also contained a termination provision which provided that either party could cancel the contract upon notice to the other party.

Chevron allowed McDonald Petroleum to use the Chevron logo on the trailer. Chevron owned the real property, storage facilities and loading facilities operated by McDonald Petroleum. The gasoline delivered by McDonald Petroleum was owned by Chevron. McDonald Petroleum would deliver gasoline and certain other petroleum products to a service station; the service station would pay Chevron for those products; and Chevron would pay McDonald Petroleum a commission based on the products it delivered.

Sawyer presents the following issue on appeal:

“... Whether a jury question of agency or joint venture with respect to Chevron’s liability is presented in an action for personal injuries arising from a collision between a tractor trailer truck and the vehicle in which Plaintiff was riding, when the truck was owned by and the driver employed by Chevron’s commission agent, McDonald Petroleum, but the truck displayed Chevron logos and carried Chevron’s gasoline on a delivery to Chevron’s independent service station, when Chevron required the commission agent to maintain automotive liability insurance covering Chevron, when Chevron owned the commission agent’s plant, real estate and facilities, and when Chevron invoiced and collected all payments from its service station customers, paying the commission agent a portion of the sales revenue as a commission.”

Sawyer contends the facts in this case are sufficient to present a jury question as to whether there existed a relationship of master and servant between Chevron and McDonald Petroleum or whether they were engaged in a joint venture, and in either event, Chevron would be liable for the damages caused by the negligent or wanton acts of McDonald Petroleum or its employees.

There is little doubt that the controlling question in this case is the relationship of McDonald Petroleum to Chevron. The test to be used in determining such relationship is whether Chevron had a reserved right of control over the means and agencies by which the work was done or the result produced, not the actual exercise of such control. Tuscaloosa Veneer Co. v. Martin, 233 Ala. 567, 172 So. 608 (1937). From this test, one may seek to ascertain whether the relation between the parties is that of an independent contractor, or of an employer-employee or master-servant. Moore-Handley Hardware Co. v. Williams, 238 Ala. 189, 189 So. 757 (1939).

. In examining the cases on this issue, it is apparent that the courts have held one to be an employer when he has reserved some power of control over the one he asserts is an independent contractor.

In Harbour v. Colonial Fast Freight Lines, Inc., 336 So.2d 1100 (Ala.1976), a master and servant relationship was found to exist. There, the owner-lessor leased his truck-trailer exclusively to a certificated motor freight common carrier. Under the terms of the lease, the lessor-owner, Matthews, furnished the vehicle and its operator; he was required to maintain the vehicle in proper operating condition and to pay the expenses of maintenance and repair. The agreement expressly provided that there was no employer-employee relationship created by it and Matthews was solely responsible for the direction and control of employees under the contract.

Similarly, in Stevens v. Deaton Truck Line, Inc., 256 Ala. 229, 54 So.2d 464 (1951), the lessee motor freight carrier had the exclusive right of control over use of the vehicle. The arrangement could be terminated by either party upon 30 days’ notice. Rental for the vehicle was based on a gross percentage of revenue derived from operation of the vehicle. Identification plates were purchased by the lessee, while state tags were provided by the lessor. The owner was required to repair and maintain the vehicle during the lease period at his own expense. Property damage and public liability insurance premiums were paid by the lessee, while fire, theft and collision premiums were paid by the owner-lessor. This court held the lessor-owner, when carrying out his duties under the lease, was an employee or servant rather than independent contractor.

The court considered similar agreements in Deaton Truck Line v. Acker, 261 Ala. 468, 74 So.2d 717 (1954); Anderson v. Howard Hall Co., 272 Ala. 466, 131 So.2d 417 (1961); Thomas v. Hubbert, 280 Ala. 302, 193 So.2d 746 (1966); Cox v. Howard Hall Co., 289 Ala. 35, 265 So.2d 580 (1972); and in each concluded that an employer-employee or master-servant relationship existed rather than that of independent contractor.

In Stevens, Acker, Anderson, Thomas, and Cox, recovery was denied on the ground the driver of the leased vehicle was acting outside the line and scope of his employment at the time of the accident. In Harbour, the court held that whether the lessor-owner was acting within the line and scope of his employment presented a genuine issue as to a material fact, precluding summary judgment. Here, there is no question but that Brunson was within the scope of his employment at the time of the accident.

Lease agreements, such as the ones enumerated above, bear significant resemblance to the Chevron-McDonald limited commission agent agreement. The fact that the lessor-owner retained the right to hire and control employees was not sufficient to establish the status of the lessor-owner as an independent contractor. In Hays v. Deaton Truck Line, 264 Ala. 442, 87 So.2d 825 (1956), the court noted that the master-servant relationship between the owner-lessor and the lessee was not changed by the owner-lessor’s employment of a driver. The driver was considered a servant of both. In this case, McDonald Petroleum retained the right to hire and control its own employees. The fact that Brunson, the driver of the vehicle, was controlled by McDonald Petroleum is not determinative of the relationship between McDonald Petroleum and Chevron.

In substance, these lease arrangements obligated the lessor to provide vehicles, operators, and maintenance of the vehicles in return for a percentage of the profits derived from the use of the vehicle and the lessee was to have his goods delivered. The Chevron-McDonald agreement appears designed to attain a similar result.

Chevron contends that Sawyer was unable to establish any retention of control by Chevron over McDonald Petroleum’s business. In support of that contention, Chevron asserts there is no evidence that Chevron had any right to control the operation of McDonald Petroleum’s trucks or its employees; McDonald Petroleum was not obligated to deliver only Chevron gasoline but was free to deliver the petroleum products of other producers. There is evidence in the record to support this contention. However, there is also evidence in the record that Chevron did retain some control over McDonald Petroleum.

We perceive there to be a genuine issue of material fact presented regarding whether McDonald Petroleum was, in reality, free to deliver the gasoline and petroleum products of other producers. This question should be weighed against those logical inferences arising from the evidence that Chevron owned the real property, and the storage and loading facilities used by McDonald Petroleum. Those inferences must be considered along with the fact that McDonald Petroleum provided liability insurance for Chevron; Chevron’s logos were painted on McDonald Petroleum’s trucks and erected on signs placed on McDonald Petroleum’s property; either party could terminate the contract on notice to the other; and McDonald Petroleum did not collect payment from the customer but received a commission from Chevron based on the products of Chevron which it delivered for Chevron. The question of whether Chevron was entitled to exclusive use of McDonald Petroleum’s vehicles involves the same factors as the question of whether Chevron retained a reserved right to control McDonald Petroleum’s operations. Where there ^is no direct evidence of right of control, the issue is to be determined by looking at the circumstances of the employment. The answer is for the trier of fact. Tuscaloosa Veneer Co. v. Martin, 233 Ala. 567, 172 So. 608 (1937).

Under the facts here presented, and in the light of applicable controlling legal principles, previously stated, we opine that a jury question was presented and that the trial court erred in granting Chevron’s motion for summary judgment. We therefore reverse the judgment below and remand this cause for trial as to Chevron.

REVERSED AND REMANDED.

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

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

TORBERT, Chief Justice

(dissenting).

To recover against Chevron on the theory of respondeat superior, plaintiff must establish the status of master and servant between Chevron and McDonald. Alabama Power Co. v. Bodine, 213 Ala. 627, 105 So. 869 (1925). This Court has stated that in order for a person to be considered a servant, the employer must retain “the right to direct the manner in which the business shall be done, as well as the result to be accomplished, or, in other words, not only what shall be done, but how it shall be done.” General Exchange Ins. Corp. v. Findlay, 219 Ala. 193, 194, 121 So. 710, 712 (1929). I am unable to find any evidence in the record indicating that Chevron retained the right to direct the manner of the work to be performed or actually exercised control over McDonald Petroleum’s operation of its vehicles. The truck and trailer involved in the collision were owned by McDonald Petroleum. McDonald Petroleum had the exclusive right to hire, pay, control, direct, and discharge any and all of its officers or employees without any interference by, or suggestions from, Chevron. Chevron had no authority to hire, control, direct, or discharge any officer or employee of McDonald Petroleum. No officer or employee of McDonald Petroleum was paid by Chevron.' Evidence in the record also supported Chevron’s contention that McDonald Petroleum was not obligated to deliver only Chevron gasoline, but was free to deliver the petroleum products of other producers.

I respectfully submit that the majority’s reliance on the line of cases involving lease agreements is misplaced. In Stevens v. Deaton Truck Line, Inc., 256 Ala. 229, 54 So.2d 464 (1951), this Court held that under the terms and provisions of the agreement there considered, the relationship of Deaton Truck Line and the owner of the vehicle was that of master and servant, and that Deaton would be chargeable with the negligence of the owner of the vehicle where the owner, at the time of the negligent act, was acting within the scope of his employment. In the subsequent cases cited by the majority, the lease agreements at issue were substantially the same as the lease agreement in Stevens, so that the determinative issue was whether the owner or his employee was acting within the scope of his employment at the time of the incident in question.

There is no such lease agreement in the case before us. Furthermore, there is no evidence that the agreement between Chevron and McDonald Petroleum bears any significant resemblance to the lease agreements in the aforementioned cases. The lease agreement in Stevens v. Deaton Truck Line, Inc., supra, as well as the agreements in Cox v. Howard Hall Co., 289 Ala. 35, 265 So.2d 580 (1972), and Deaton Truck Line, Inc. v. Acker, 261 Ala. 468, 74 So.2d 717 (1954), provided explicitly that the lessee-common carrier had exclusive use and control of the vehicle during the term of the lease. As mentioned earlier, there was no express agreement that Chevron had the right to exclusive use of McDonald Petroleum’s vehicles.

In Cox v. Howard Hall Co., supra, the retention of control by the lessee-motor freight carrier was manifested by several factors not present in the instant case. The lease agreement in Cox required the lessor-owner to provide drivers who would be available to the lessee-common carrier at all times during the lease. The lessor-owner could haul no freight without the knowledge and consent of the lessee-common carrier. The lessee-common carrier had a voice in the selection of drivers, and required those drivers to attend safety meetings and to record and file driving logs and repair records. Generally, vehicles were kept at the terminal of the lessee-common carrier when not in use, and the lessee decided what was to be hauled and where it was to go.

The trial court had before it the depositions of the plaintiff, the driver of plaintiff’s automobile (defendant James McDonald), the driver of McDonald’s vehicle, and a Chevron representative, as well as answers to interrogatories and certain documents produced by defendants, including the “limited commission agent” agreement. Its conclusion that no jury question of agency was presented with respect to Chevron’s liability should be sustained.

BEATTY, J., concurs.


author: HOLMES, Judge.

text:
    Archie R. BATCHELOR, as Administrator of The Estate of Archie Anthony Batchelor, deceased v. Hattie Mae BRYE, Charles Dienhelt, State Farm Mutual Auto Insurance Company.
    Civ. 3078.
    Court of Civil Appeals of Alabama.
    March 3, 1982.
    Rehearing Denied March 24, 1982.

      Jim H. Fernandez, Mobile, for appellant.
    Thomas M. Galloway, Jr. of Collins, Galloway & Smith, Mobile, for appellees.
   HOLMES, Judge.

This is an appeal from the trial court’s finding that a judgment had been satisfied and we affirm.

The plaintiff, Archie Batchelor, in his capacity as administrator of his son’s estate, sued defendants, Charles Dienhelt and Hattie May Brye, alleging that the defendants’ negligence resulted in the death of the plaintiff’s son. Additionally, the plaintiff sued his uninsured motorist carrier, State Farm Mutual Auto Insurance Company (State Farm). Defendant Dienhelt was also insured by State Farm. Defendant Brye was an uninsured motorist.

In a separate count, the plaintiff as indicated, sought to recover under the uninsured motorist provisions of the plaintiff’s policy with State Farm. Prior to trial, State Farm and the plaintiff entered into a settlement, whereby State Farm agreed to pay the plaintiff $10,000 pursuant to the uninsured motorist provision of the plaintiff’s policy. In return, the plaintiff executed a release and trust agreement in favor of State Farm. State Farm was then dismissed from the action.

The plaintiff proceeded to trial against defendants Dienhelt and Brye. Dienhelt alleged as a defense a pro tanto settlement between the plaintiff and State Farm. The plaintiff’s motion to strike this defense was granted. The jury returned a verdict against Dienhelt and Brye, and assessed the plaintiff’s damages at $30,000.

Dienhelt paid $20,000 into court and then moved to have the $30,000 judgment satisfied. Attached to Dienhelt’s motion was a copy of the release and trust agreement showing that State Farm had paid the plaintiff $10,000 under the plaintiff’s uninsured motorist coverage due to the negligence of Brye. On May 19, 1981, the trial court granted Dienhelt’s motion and ordered the judgment satisfied by Dienhelt’s payment of $20,000.

The plaintiff, through able counsel, appeals, contending that the $10,000 paid to the plaintiff by State Farm should not have been treated as a partial payment of the $30,000 judgment rendered against Dienhelt and Brye. The plaintiff contends that Dienhelt and Brye are liable for the entire $30,000 in damages, and that State Farm has waived its right to be reimbursed for the $10,000 paid under the plaintiff’s insurance policy.

We do not agree with the plaintiff’s contentions although well stated. Though we have found no Alabama cases on this specific point, to this court the $10,000 received by the plaintiff under the uninsured motorist provision of his policy can, in this instance, be used to partially satisfy the $30,000 judgment.

The only reason the plaintiff received $10,000 from State Farm was “because of the wrongful conduct of [the] uninsured” motorist, Brye. Higgins v. Nationwide Mutual Insurance Co., 50 Ala.App. 691, 282 So.2d 295, aff’d, 291 Ala. 462, 282 So.2d 301 (1973). The plaintiff’s insurer, State Farm, stood in the shoes of the uninsured motorist, Brye, as a source of payment to the plaintiff. Appleman, Insurance Law and Practice § 5086 (1981). Though the jury, without knowledge of the plaintiff’s settlement with State Farm, later found the plaintiffs damages to be $30,000, the plaintiff had already received one-third of that amount from his insurer due to the liability of Brye.

Since the plaintiff received $10,000 due to the negligence of one tort-feasor, the $30,-000 judgment was satisfied by payment of the remaining $20,000 by the other tort-fea-sor.

The goal of uninsured motorist coverage is to make the plaintiff whole but not to allow double recovery. Couch on Insurance (Rev. ed.) § 45:652 (1981). This principle has been implicitly recognized by this court and our supreme court in other eases involving uninsured motorist payments.

In Safeco Insurance Co. v. Jones, 286 Ala. 606, 243 So.2d 736 (1970), Jones was injured by joint tort-feasors, one of whom was insured and the other uninsured. After a verdict of $25,000 was rendered in favor of Jones, the insured tort-feasor paid Jones $10,000. Thereafter, Jones sued his own insurer for recovery under Jones’s uninsured motorist policy. In allowing Jones to collect $10,000 from his uninsured motorist insurance carrier, the supreme court stated:

This holding does not permit a recovery in excess of that amount to which the injured party was “legally entitled to recover” by virtue of the judgment against the uninsured motorist.” (Emphasis supplied.)

286 Ala. at 614, 243 So.2d at 742.

In Alabama Farm Bureau Mutual Casualty Insurance Co. v. Clem, 49 Ala.App. 457, 273 So.2d 218 (1973), the facts were similar to those presented in Safeco Insurance Co. v. Jones, supra. This court construed the uninsured motorist statute to allow an injured party to recover from his own insurer due to the negligence of an uninsured tort-feasor even after settlement between the injured party and an injured tort-feasor. We stated:

[T]he statute must be construed so as to assure a person injured at the hands of an uninsured motorist that he will be able to recover, from whatever source available, up to the amount of his damages.... (Emphasis supplied.)

49 Ala.App. at 461, 273 So.2d at 221.

These cases indicate that while uninsured motorist payments may be used to partially meet the plaintiff’s measure of damages, the plaintiff is never entitled to recover from any source more than the actual measure of damages.

The actual measure of damages in this action, as indicated, was $30,000. The plaintiff has received $10,000 due to the liability of a co-judgment debtor and uninsured motorist, Brye. The plaintiff has received $20,000 from the insured tort-feasor, Dienhelt. While the plaintiff is entitled to full compensation for his injuries, he is entitled to only one satisfaction. Williams v. Colquett, 272 Ala. 577, 133 So.2d 364 (1961). The plaintiff has recovered the exact amount of money assessed as damages by the jury. On these facts, we cannot say the trial court erred in ordering the judgment satisfied upon payment by Dienhelt of $20,-000 when the plaintiff had already received $10,000 due to the liability of Brye.

By our determination that payments made pursuant to the uninsured motorist provision of the plaintiff’s policy may be used to partially satisfy a judgment, we pretermit any discussion of whether State Farm has waived its rights for reimbursement of the $10,000 under the release and trust agreement.

For the foregoing reasons, we affirm the order of the trial court.

AFFIRMED.

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

      . We note that two other jurisdictions have considered this issue, although the decisions are not squarely on point. See Nearhoof v. International Sales-Rentals Leasing Co., 251 So.2d 717 (Fla.App.1971), aff’d in part, rev’d in part, 263 So.2d 569 (Fla.1972); Southard v. Lira, 212 Kan. 763, 512 P.2d 409 (1973). These cases are clearly distinguishable from the instant action, however, because both involve statutory considerations not relevant in Alabama.


text:
    Shelia Diana H. HALL v. James Harold HALL.
    Civ. 3115, 3175.
    Court of Civil Appeals of Alabama.
    May 26, 1982.
    Rehearing Denied July 7, 1982.
    Certiorari Denied, Nov. 19, 1982 Alabama Supreme Court 81-900.
    Rick A. Williams, Montgomery, for appellant.
    Wendell W. Mitchell, Luverne, for appel-lee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is á child custody modification case.

Mrs. Hall, the mother of the child, was originally granted custody of the daughter by means of an uncontested divorce judgment of August 16,1979. In October, 1981, the father, Mr. Hall, filed his petition seeking a modification of child custody. After an ore tenus contested evidentiary hearing, the trial court changed custody from the mother to the father by its judgment of November 13,1981. Upon her two post-trial motions being overruled, Mrs. Hall took two appeals, which were here consolidated. She now raises two issues. We affirm.

In Case Number Civil 3175

She first states that the judgment should be reversed because Mr. Hall’s attorney in the present modification proceedings had a conflict of interest since he had initially represented her as to the original divorce two years previously.

The record does not reveal that any information which Mrs. Hall may have imparted to the attorney in 1979 was utilized in any manner as to the matters raised in the 1981 petition to change custody. The evidence at the modification hearing concerned circumstances and facts which arose after the divorce. It does not appear that Mrs. Hall either actually or probably suffered any injury or disadvantage which arose out of any alleged conflict of interest.

Additionally, this question was not presented to the trial court until after the trial, after the judgment had been rendered and after the first of Mrs. Hall’s motions to reconsider had been overruled. Mrs. Hall had previously informed her two prior attorneys in the current proceedings of the fact that Mr. Hall’s attorney had originally represented her in the uncontested divorce action. A party, who has knowledge of facts, cannot normally withhold from a court his objections based upon such information, and thereby gamble upon the final results of the litigation, and, upon an adverse judgment, successfully raise such an issue for the first time through a post-judgment motion.

While we find no Alabama case in point, the following is deemed to be a correct statement of applicable law:

The right of a former client to object to his attorney’s subsequent representation of an adverse interest may be expressly or tacitly waived. The right of a former client to urge disqualification of an opposing counsel may be waived by the former client’s failure to raise the issue early in the proceedings.

7 Am.Jur.2d, Attorneys at Law § 187, p. 239.

Hence, Mrs. Hall waived any right to object which she might have originally possessed by her inaction in not timely raising the issue. The trial court did not err in overruling her second motion for a rehearing which raised this matter for the first time.

For the foregoing reasons it is not essential that we determine whether a conflict of interest actually existed in this case.

In Case Number Civil 3115

Mrs. Hall next contends that the evidence was insufficient to prove such a change of circumstances that it was to the best interest of the child that her ex-husband be awarded custody.

The parties, attorneys and the learned trial court, of necessity, were fully cognizant of the facts upon which that court based its determination to change custody of the child. The record has been studied by this court and we are now likewise so informed, for those facts are readily apparent from the trial transcript. However, we perceive no valid reason to permanently publish even a summary thereof. It suffices to state that the evidence plainly and adequately supported the conclusion of the trial court to presently award the custody of the child to Mr. Hall. Where the trial court has orally heard the evidence in child custody modification proceedings, there is a strong presumption in favor of its decision, if there is credible supportive evidence, and the judgment of the trial court will not be reversed on appeal unless it is clearly and palpably wrong. Taylor v. Taylor, 359 So.2d 395 (Ala.Civ.App.1978). The trial court was not palpably wrong. Accordingly, we are required to affirm.

The appeals in both cases are affirmed.

The foregoing opinion was prepared by Retired Circuit Judge EDWARD N. SCRUGGS while serving on active duty status as a judge of this court under the provisions of section 12-18-10(e) of the Code of Alabama of 1975 and this opinion is hereby adopted as that of this court.

BOTH CASES AFFIRMED.

All the Judges concur.


author: BRADLEY, Judge.

text:
    Charles F. CHIRIACO v. Marilyn JACKS (Davis).
    Civ. 3008.
    Court of Civil Appeals of Alabama.
    June 2, 1982.
    Rehearing Denied July 7, 1982.
    Certiorari Denied, Nov. 19, 1982 Alabama Supreme Court 81-903.
    Charles F. Chiriaco, Pro Se, Huntsville, for appellant.
    L. Tennent Lee, III, of Cleary, Lee, Evans, Rowe & Bailey, Huntsville, for appel-lee.
   BRADLEY, Judge.

This appeal arises out of a jury verdict in favor of plaintiff in an automobile accident case.

Appellant/plaintiff has not provided the court with a statement of facts, and the record on appeal does not contain a copy of the transcript of the proceedings at trial. From the pleadings filed in this case we can determine that on November 13,1979 plaintiff, Charles F. Chiriaco, filed a complaint pro se against defendant Marilyn Jacks Davis and against State Farm Insurance Company, as Davis’s insurer, alleging that Davis had negligently driven her ear into plaintiff’s automobile. Damages for personal injury and property damage were sought. On December 4, 1979 State Farm filed a motion to dismiss the complaint against it, contending that the complaint failed to state a claim upon which relief could be granted. The circuit court allowed plaintiff an additional period of time in which to amend his complaint against State Farm, and on March 26,1980 plaintiff amended his complaint, alleging that State Farm had fraudulently coerced him into signing a release from liability for any personal injury resulting from a totally separate automobile accident involving plaintiff and another State Farm insured. The circuit court, in its pretrial statement, ordered that the claims of plaintiff against Davis and against State Farm be . tried separately.

Plaintiff thereafter hired an attorney to represent him in the action against Davis, and on September 18, 1980 the complaint was amended to claim the sum of $100,000 in compensatory and punitive damages. The case was tried before a jury on May 19, 1981. The jury rendered a verdict in favor of plaintiff and against Davis, assessing damages at $715.00 plus costs. Plaintiff thereafter filed a motion for new trial, alleging, inter alia, that the jury verdict was inadequate. The trial court found the verdict inadequate, and ordered an additur of $1,100.00, increasing the amount of damages to $1,815.00, with the stipulation that if Davis accepted the additur the motion for new trial would be denied. Davis consented to the increased damages, and plaintiff’s motion for new trial was denied.

On June 15, 1981 State Farm filed a motion for summary judgment in plaintiffs claim against it. The summary judgment was granted on August 5, 1981.

Plaintiff, again proceeding pro se, has appealed to this court from the judgment against Davis. In his brief and in a document entitled “Bases for Relief” previously filed with this court (which we will consider as having been incorporated on appeal), he alleges that (1) the damages awarded by the trial court were inadequate; (2) the trial judge erred in various evidentiary matters during the course of the trial; (3) the trial judge erred in his instructions to the jury; (4) he was not permitted to attend the pretrial hearing; (5) the jury was “tampered with;” and (6) the claims against Davis and against State Farm should have been tried in the same action.

With regard to plaintiff’s first issue, that the damages awarded by the trial court were inadequate based on the evidence before the court, we would note that the record on appeal does not contain a transcript of the proceedings during the course of the trial. It is a settled rule that in the absence of any transcript showing what was presented to the trial court, the reviewing court must assume that the action of the trial court was supported by the evidence. Rhea v. Rhea, 360 So.2d 1029 (Ala.Civ.App.1978); Adams v. Adams, 335 So.2d 174 (Ala.Civ.App.1976). We cannot make plaintiff’s first contention a ground of reversal.

Plaintiff’s next four issues depend, to some extent, upon matters presumably contained in the transcript of the proceedings below. Again, we cannot reverse the judgment on those grounds. If the record on appeal does not disclose the fact assigned as error, such ground for error cannot be considered on appeal. Clevenger v. State, 369 So.2d 563 (Ala.Civ.App.1979).

Plaintiff lastly contends that the trial judge erred in ordering separate trials of plaintiff’s claims against Davis and against State Farm. We cannot agree. Rule 42(b), A.R.C.P., provides in pertinent part:

The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any claim, cross-claim, counterclaim, or third-party claim, or of any separate issue or of any number of claims, cross-claims, counterclaims, third-party claims, or issues ....

The trial judge possesses broad discretion in ordering the separate trial of various issues. Robinson v. Computer Servicenters, Inc., 360 So.2d 299 (Ala.1978). In the present case plaintiff’s claims against Davis and against State Farm involve separate accidents. The issue of State Farm’s liability for allegedly fraudulent inducement to sign a release for possible injuries sustained in one automobile accident has nothing to do with Davis’s liability in the second accident. We find no abuse of discretion in the order of separate trials. See Coburn v. American Liberty Insurance Co., 341 So.2d 717 (Ala.1977).

For the foregoing reasons, we must affirm the judgment below.

AFFIRMED.

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