author: BEATTY, Justice.

text:
    Janis Elaine SHELTON v. LAUDERDALE COUNTY BOARD OF EDUCATION et al.
    78-650.
    The Supreme Court of Alabama.
    Jan. 25, 1980.
    Rehearing Denied Feb. 29, 1980.

      Joseph E. Carr, IV, Montgomery, for appellant.
    E. B. Haltom, Jr., and Michael L. Weathers of Haltom & Patterson, Florence, for appellees.
   BEATTY, Justice.

Plaintiff, Janis Elaine Shelton, appeals from a decree entered by the Lauderdale County Circuit Court holding that the defendant school board had complied with Code of 1975, § 16-24-12 in the non-renewal of plaintiff’s teaching contract. We reverse and remand.

Miss Shelton, a non-tenured teacher, had been employed by the Lauderdale County Board of Education for slightly more than two years when, on May 29, 1978, the last day of the 1977-78 school term, she received a letter signed by the Board’s superintendent, Mr. Greer, stating that:

The Lauderdale County Board of Education in its meeting on May 26, 1978 did not re-employ you to teach in the Lauder-dale County School System during the 1978-79 school term which will begin August 21, 1978. .

Miss Shelton subsequently filed suit against the Board and the individual members thereof, seeking to enjoin the defendants from refusing to honor the contract of employment she alleged that she had with the Board for the 1978-79 school year. Plaintiff also sought a declaratory judgment setting forth the existence and terms of the alleged contract. The suit was based on plaintiff’s allegation that the superintendent’s action in notifying her of the non-renewal of her contract was without the authorization of the Board as is contemplated by Code of 1975, § 16-24-12. We agree.

Section 16-24-12 provides:

Any teacher in the public schools, whether in continuing service status or not, shall be deemed offered reemployment for the succeeding school year at the same salary unless the employing board of education shall cause notice in writing to be given said teacher on or before the last day of the term of the school in which the teacher is employed; and such teacher shall be presumed to have accepted such employment unless he or she shall notify the employing board of education in writing to the contrary on or before the fifteenth day of June. The employing board of education shall not cancel the contract of any teacher in continuing service status, nor cause notice of nonemployment to be given to any teacher whether'in continuing service status or not except by a vote of a majority of its members evidenced by the minute entries of said board made prior to or at the time of any such action. [Emphasis added.]

Neither the adequacy nor the timeliness of the notice received by plaintiff is challenged on this appeal. Instead, the thrust of plaintiff’s argument is that the superintendent was not authorized to notify her of the termination of her employment because “the minute entries . . . made prior to or at the time of . such action” did not reflect that a majority of the board members voted to “cause notice of nonem-ployment to be given” to her as is required by the statute.

The record reveals that the defendant Lauderdale County Board of Education held a regular meeting on May 26, 1978. The following passage is contained in the May 26 minutes of the Board:

Mr. Goins made the motion which was seconded by Mr. Jones and was passed that the following teachers on tenure be elected as recommended by Mr. Greer and that non-tenured teachers would be considered for re-election at the next Board meeting. [Emphasis added.]

Shortly after the May 26 meeting, letters of termination were sent to all of the nontenured teachers, including Miss Shelton. At the board meeting of June 8, 1978, most of the non-tenured teachers were rehired for the coming school year; Miss Shelton, however, was not among those who were re-employed. After the instigation of this lawsuit, on November 16, 1978, the defendant board of education passed a resolution seeking to amend the minutes of the May 26 meeting. Included in that resolution is the following passage:

WHEREAS, The Lauderdale County-Board of Education, acting as a Board and not as individuals, instructed the Su-perintendant [sic] to send a notice of termination of employment to each such non-tenured teacher.

At the conclusion of the evidence, the trial court, sitting without a jury, held that the Board’s action in failing to re-employ plaintiff was in compliance with Code of 1975, § 16-24-12.

At the outset, it is in order to note that under § 16-24-12, our review in this case is confined to the original minutes of the May 26, 1978 meeting (which were approved by the Board on June 8,1978). The November 16 amendatory resolution “explaining and detailing” the May 26 actions by the Board is of no consequence for § 16-24-12 expressly limits the minute entries which may be considered to those “made prior to or at the time of any such action.” Although this Court, in Baugh v. Board of Education, 244 Ala. 522, 525-26, 14 So.2d 508 (1943), held that an amendatory resolution correcting the original minutes of a school board was efficacious, that case was decided under Title 52, § 360, Code of 1940, which did not at that time contain the language dealing with minute entries that is present in the current provision. The last sentence of § 16-24-12 was not added until 1945, some two years after the decision in Baugh. See 1945 Ala.Acts, No. 411, p. 646.

Defendants strongly contend that the minute entry made at the May 26, 1978 meeting, when it is considered along with the fact that the board members had before them at that meeting several sample termination letters and a list of the non-tenured teachers, demonstrates at least substantial compliance with Code of 1975, § 16-24-12. Allegedly, substantial compliance is all that is required under Holcombe v. County Board of Education, 242 Ala. 20, 4 So.2d 503 (1941).

In Holcombe, the members of the defendant board of education signed an order specifically authorizing the secretary of the board to notify certain teachers that they would not be re-employed. The written direction was on file among the records of the board, but it was not spread upon the board’s minutes. This Court held that substantial compliance with the statute as it was at that time was all that was required. Although the Court felt that “there should be some written memorial of the direction to give notice to a teacher that he or she would not be re-employed” [242 Ala. at 23, 4 So.2d at 506; see Board of Education v. Baugh, 240 Ala. 391, 199 So. 822 (1941)], “in the absence of a statute so directing the formality of [a] minute entry is not essential.” Ibid.

The current statute does affirmatively require a minute entry reflecting the vote of a majority of the employing board’s members to “cause notice of nonemployment to be given.” It is apparent that the entry in the instant case stating that “nontenured teachers would be considered for re-election at the next Board meeting” simply does not comport with the clear mandate of the statute. Accordingly, we are compelled to find that the trial court erred in holding that the defendants complied with Code of 1975, § 16-24-12 in the non-renewal of plaintiff’s contract.

This Court is not unmindful of the administrative burdens which statutes such as § 16-24-12 place upon those responsible for the reporting functions of school boards, nor is it our purpose to increase those burdens, for it is generally recognized that “proceedings of school boards are usually kept by those not versed in the law and are more or less informal in character . . .” Holcombe, supra, 242 Ala. at 23, 4 So.2d at 506. However, we respectfully point out that the legislature has enacted this and similar statutes primarily for the benefit of the teachers [see, e. g., Board of Education v. Baugh, 240 Ala. 391, 199 So. 822 (1941)], and that in reversing this case we are merely effectuating the clearly expressed legislative intent. In order to avoid future controversies of this kind, the individual board of education would be well-advised to adopt procedures to insure that its reporting functions are administered to comply with statutes like § 16-24-12.

In accord with the foregoing discussion, the judgment of the Circuit Court of Laud-erdale County is reversed and the cause remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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


source: Caselaw Access Project

author: ALMON, Justice.

license: Public Domain

text:
    Thomas KIMBRELL and B & T Auto Parts, Inc. v. CITY OF BESSEMER.
    78-355.
    The Supreme Court of Alabama.
    Feb. 22, 1980.
    Clifford W. Hardy, Jr., Bessemer, for appellants.
    J. H. McEniry, III, Bessemer, for appel-lee.
   ALMON, Justice.

This is an appeal from a judgment of the Circuit Court which enjoined the appellants from operating a junk or salvage yard, after finding Kimbrell to be in violation of a zoning ordinance of the appellee, City of Bessemer. We affirm.

In October of 1975 Kimbrell, owner and operator of B & T Auto Parts, Inc., petitioned the Board of Adjustment of the City of Bessemer for a variance or permit to operate an auto salvage yard. The Board, after being advised that a zoning ordinance prevented the establishment of an auto salvage yard at that location, granted Kimb-rell the right to operate a business in. new and used auto parts. The minutes of the Board of Adjustment reflect the following action:

Mr. Thomas Kimbrell petitioned the board to operate an auto salvage yard at 3620 Bessemer Super Highway in a C^4 Commercial Zone. Mr. Kimbrell appeared for the petition. No one appeared against the petition. The Board was advised by its attorney that an auto salvage yard could not under the zoning ordinance be operated in a C-4 Commercial Zone. Upon motion made by Mr. Patton and seconded by Mr. DeFore, the board unanimously granted the Petitioner the right to operate a business in new and used automobile parts at the above address.

In October of 1977, the City determined that Kimbrell’s use of that part of his lot on which he stored wrecked or salvaged vehicles constituted the operation of a junk yard and, thus, was in violation of the zoning ordinance. Part of Kimbrell’s business was to collect scrap automobiles which were no longer in running condition. These vehicles were stored until he had use for their parts. Suit was brought by the City to enjoin this operation.

In answering the City’s complaint, Kimb-rell denied that

* * * he is operating any type of business except what he legally applied for October 14, 1975, and what was granted to him by the Board of Zoning Adjustment on that said date.

He further stated that he

* * * has at all times since the granting of said petition, and since the issuing to him of a County and City of Bessemer license, operated the same type of business; it has not varied one bit, and the Defendant has done so for approximately two years and three months.

Kimbrell also denied that

* * * he is doing anything unlawful and against the ordinances of the City of Bessemer, but is so operating his business in accordance with the requirements made by the Board of Zoning Adjustment.

After hearing the evidence orally, the Circuit Court found Kimbrell to be in violation of the zoning ordinance. The Court set out in its judgment that part of the ordinance defining a junk or salvage yard as follows:

* * * a lot, land or structure or part thereof being used primarily for the collecting, storage and sale of waste paper, rags, scrap metal or discarded material; or for the collecting, dismanteling, storage and salvaging of machinery or vehicles not in running condition or for the sale of parts thereof.

The Court found that at the time of the trial there were some 300 vehicles on Kimb-rell’s property which were not in running order. There is an abundance of evidence in the record to support the trial court’s finding that Kimbrell was in violation of the ordinance.

Kimbrell’s main contention on appeal is that the City is now estopped to assert that he is in violation of the ordinance, because the members of the Board of Adjustment knew what type of business he was conducting on his premises when he was authorized to operate a business in new and used automobile parts.

The doctrine of estoppel is rarely applied to a municipal corporation. Alford v. City of Gadsden, 349 So.2d 1132 (Ala.1977). We do not consider this to be a proper case for its application.

Moreover, under Rule 8(c), ARCP, estoppel is an affirmative defense which must be specially pleaded. Hendricks v. Blake, 291 Ala. 575, 285 So.2d 82 (1973); Lackland v. Turner, 207 Ala. 73, 91 So. 877 (1921).

In Industrial Savings Bank v. Greenwald, 229 Ala. 529, 158 So. 734 (1935), the Court stated that

The rule is that every plea in estoppel must be certain in every particular and must allege the facts upon which the plea is predicated, and must allege every material fact which the pleader expects to prove in support of the plea. Conclusions of the pleader, not supported by a statement of the facts from which the conclusions are drawn, will not suffice.

229 Ala. at 535, 158 So. at 739.

Kimbrell’s final contention is that the trial court was in error when it refused to hear the testimony of individual members of the Board of Adjustment concerning events occurring at the time Kimbrell was granted the right to operate his business.

We are of the opinion the testimony of the board members, concerning what was said at the board meeting, was inadmissible under the circumstances of this case. It is a general rule that city boards of this nature speak through their minutes. The minutes are the best evidence of official action taken by the board. Town of Clanton v. Chilton County, 205 Ala. 103, 87 So. 345 (1920); Crenshaw County v. Sikes, 113 Ala. 626, 21 So. 135 (1896).

Moreover, this evidence could have only been admitted under the theory of estoppel, and, as we have previously stated,- estoppel was not properly before the Court.

The judgment of the trial court is hereby affirmed.

AFFIRMED.

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


author: BRADLEY, Judge.

text:
    Emma Jean Shepard SOKOLL v. HUMPHREY, LUTZ & SMITH, a partnership.
    Civ. 1607-X.
    Court of Civil Appeals of Alabama.
    March 28, 1979.
    Rehearing Denied May 2, 1979.
    See also, Ala.Civ.App., 380 So.2d 847.

      Sherman B. Powell, Jr. of Powell & Powell, Decatur, for appellant and cross-appel-lee.
    Patrick W. Richardson of Bell, Richardson & Herrington, Huntsville, for appellees and cross-appellants.
   BRADLEY, Judge.

Plaintiff appeals and defendant-partnership cross-appeals from a final judgment rendered by the Circuit Court of Madison County which awarded plaintiff a recovery of $7,431.60 and which denied the partnership’s counterclaims.

The prior opinion in this cause may be found at Sokoll v. Humphrey, Lutz & Smith, Ala.Civ.App., 337 So.2d 362, cert. den. Ala., 337 So.2d 365 (1976).

This appeal concerns a dispute between the partnership and its former client about funds recovered as a judgment in a workmen’s compensation case handled for the former client by the partnership. Plaintiff-appellant’s principal contentions on appeal are that the trial court erred in awarding her a sum that is insufficient and which is not in conformance with the evidence, and erred in failing to award her the five percent per month statutory damages mandated by Code of Alabama 1975, § 6-6-740. The principal contentions of the partnership in its cross-appeal are that the trial court erred in its award to plaintiff of accrued interest, erred in denying its counterclaim, and erred by admitting certain testimony into evidence in contravention of the “dead-man’s statute,” Code of Alabama 1975, § 12-21-163.

In our prior opinion in this cause, Sokoll v. Humphrey, Lutz & Smith, Ala.Civ.App., 337 So.2d 362, cert. den. Ala., 337 So.2d 365 (1976), we set forth some of the facts pertinent to the present appeal as follows:

Defendants are partners engaged in the practice of law. In November of 1966, plaintiff entered into a contract with defendants whereby defendants were to prosecute plaintiff’s claim for damages against the Chrysler Corporation. This claim was based on the common law and the Alabama Employers’ Liability Act. A contingent fee of 50% was provided by the contract.
Suit was subsequently filed against Chrysler Corporation in the United States District Court for the Northern District of Alabama. Chrysler Corporation moved for summary judgment on the ground that the action should have been brought as a workmen’s compensation claim. This motion was granted by the court with leave to amend the complaint to claim workmen’s compensation, which was done.
The litigation resulted in judgment being awarded in plaintiff’s favor in June of 1969, for total permanent disability under the Alabama Workmen’s Compensation Act. The court awarded defendants attorney’s fees of 15% of plaintiff’s recovery, pursuant to Tit. 26, § 261, Code of Alabama 1940. Chrysler Corporation appealed the judgment to the United States Fifth Circuit Court of Appeals, which affirmed the action of the trial court in July of 1970. A rehearing was subsequently denied by the Fifth Circuit Court of Appeals sitting en banc, and in September of 1970 defendants received payment of the judgment against Chrysler Corporation in the amount of $16,-685.15. Defendants deducted their expenses of $2,073.37 from the judgment monies and divided the remainder equally between plaintiff and themselves, each receiving $7,305.89.
Plaintiff in August of 1973 filed suit against defendant seeking to recover $5,073.12, which sum plaintiff alleged was wrongfully withheld by defendants from the judgment against Chrysler Corporation. Plaintiff based her contention upon the fact that defendants withheld 50% of her recovery, after deduction of expenses, as attorneys’ fees, although the federal district judge set a 15% attorneys’ fee under Tit. 26, § 261, Code of Alabama 1940 [currently codified at Code of Alabama 1975, § 25-5-90]. Defendants subsequently counterclaimed against plaintiff, alleging that she owed them money for services performed by them. In October of 1975, defendants moved for summary judgment in their favor as to both plaintiff’s claim and their counterclaims. Both parties submitted affidavits in connection with the motion, as provided by Rule 56, ARCP. The motion was granted by the trial court as to plaintiff’s claim, and this appeal by plaintiff ensued.

This court reversed the trial court’s granting of defendants’ motion for summary judgment, holding that once plaintiff’s claim was prosecuted under the Workmen’s Compensation Act, that part of the contract between the parties which specified a fifty percent contingent fee arrangement was no longer valid. Sokoll, supra.

Edgar E. Smith, a party defendant and a member of defendant-partnership, died in August 1977. Mary Smith, his widow and administratrix of his estate, was substituted as a party defendant. Amended answers and counterclaims were filed by the parties.

The day before this cause was to be heard, the defendants paid into court the sum of $9,379.26, i. e. the amount of the entire judgment received in the suit against Chrysler Corporation less that amount previously turned over to plaintiff.

The trial court, sitting without a jury, held a hearing on May 30, 1978. On June 1, 1978 plaintiff filed a motion to amend her complaint to conform to the evidence under Rule 15(b), ARCP.

Her original complaint had alleged that defendants owed her $5,073.12 for money had and received. Her amended complaint alleged that while defendants had paid her $7,305.89 of the workmen’s compensation recovery, they should have paid her $14,-452.38, that being the amount of the recovery less the fifteen percent attorney’s fees set by the United States District Court judgment. She alleged a demand and refusal on or about September 25, 1970 for this additional amount.

Her amended complaint demanded judgment as follows:

Wherefore, the plaintiff demands judgment against the defendants in this cause for the sum of $7,146.49 which is the total of the recovery of her judgment in said workmen’s compensation suit minus the amount that she has been paid and the allotted attorney’s fee. In addition thereto, she demands judgment against the defendants in the sum of $43,144.59 for the penalty against the defendants for their failure to deposit the aggregate amount of money in their possession with the Circuit Clerk as provided by the Code of Alabama 1975, Section 6-6-740, for a total of $50,291.08, plus costs and interest.

From the record it does not appear that the trial court ruled on plaintiff’s motion to amend her Complaint.

The trial court on June 26,1978 entered a final judgment for plaintiff in the amount of $7,431.60, representing the sum of $5,073.12 and interest on the same at the rate of six percent per annum from September 25, 1970 (the date plaintiff alleged that defendants refused her demand for the remaining portion of the judgment monies) to the date of the final judgment. The parties to this appeal mutually agree in brief that the sum of $5,073.12, used by the trial court in computing the amount of the judgment, represents the $16,685.15 recovery from Chrysler Corporation, less litigation expenses incurred by Smith in the investigation of plaintiff’s tort claim and the investigation and prosecution to final judgment of plaintiff’s claim for workmen’s compensation benefits, less attorney’s fees of $2,232.77, and less the $7,305.89 of that recovery received by plaintiff in 1970. (The funds for the expenses were advanced by defendants during the course of their representation of plaintiff in that suit.)

The issues before this court, as summarized from the briefs of both parties, are: (1) whether the trial court properly allowed deduction of the expenses of $2,073.37 from the total recovery for the workmen’s compensation claim in computing the amount of plaintiff’s judgment in the instant case; (2) whether the trial court erred in failing to award plaintiff the sum of $9,379.26, which sum represents the amount of the recovery under the workmen’s compensation claim less that portion of the recovery previously turned over to plaintiff in 1970; (3) whether the trial court erred in failing to assess against defendants the five percent per month statutory damages as provided for under Code of Alabama 1975, § 6-6-740; (4) whether the trial court erred in awarding plaintiff the six percent accrued interest; (5) whether the trial court erred in denying defendants’ counterclaims; and (6) whether the trial court erred in allowing plaintiff to testify concerning her transactions and conversations with Edgar E. Smith, deceased.

As noted above, the trial court, in computing the amount still owed to plaintiff by defendants, obviously deducted the expenses of $2,073.37 from the total workmen’s compensation recovery of $16,685.15. By so doing, the trial court committed error.

In our first opinion in this cause, Sokoll, supra, we quoted a statement from Larson, The Law of Workmen’s Compensation, § 83.11, as follows:

When, however, this practice [the rule that one pays one’s own legal fees as attorney and client may contract] is superimposed upon a closely calculated system of wage-loss benefits, a serious question arises whether the social objectives of the legislation may to some extent be thwarted. The benefit scales are so tailored as to cover only the minimum support of the claimant during disability. There is nothing to indicate that the framers of the benefit rates included any padding to take care of legal and other expenses incurred in obtaining the award.

We also said in the first Sokoll case that, “the mandatory operation of section 261 renders ineffectual any contract between claimant and attorney as to fees.”

The effect of section 261, now § 25-5-90, and what we said in the first Sokoll case is to limit the attorney in workmen’s compensation cases to a maximum recovery of fifteen percent of the award made to the client. Such a construction of § 25-5-90 prevents a recovery by the attorney of expenses that may have been expended on behalf of the client to prosecute a workmen’s compensation case to a conclusion. Consequently, the $2,073.37 expended on behalf of plaintiff by defendants was improperly allowed as a deduction from plaintiff’s total workmen’s compensation recovery in computing the amount due plaintiff in this case.

We fully realize the difficulties which may arise in some instances as a result of this construction of the statute. However, change in the statute must come from the legislature.

The other principal issues concern that portion of the judgment which awarded plaintiff interest on the amount found to be owed her, but which failed to award her the five percent per month statutory damages as provided under § 6-6 — 740. Plaintiff contends that the trial court also should have awarded her the statutory damages in the amount of $43,144.59. On the other hand, defendants argue that their payment into court of the disputed amount precluded the trial court from awarding plaintiff either the interest or the statutory damages.

Code of Alabama 1975, § 6-6-740, provides in pertinent part:

(a) Judgment may, in like manner, be summarily entered against any attorney-at-law in this state who fails to pay over money collected by him ... in that capacity, whether by an action or otherwise, on demand made by the person entitled thereto, his agent or attorney for the amount collected . . . less the amount due the attorney for fees or compensation for services, interest thereon and damages at the rate of five percent a month, after such demand, on the aggregate amount, in the circuit court of the county in which such attorney resides or, if he has no known place of residence in this state, in the circuit court of any county, on three days’ personal notice; but such attorney may, if a doubt exists as to the right of the person making the demand or if there is a dispute as to the compensation due the attorney for the collection or recovery of the money . pay the money into court ... at the trial of such motion and have such questions there decided without being liable for interest or damages.

From the record it appears that defendants have complied with the ameliorating provisions of § 6-6-740 by having paid into court the disputed amount. Such payment releases an attorney from liability for the statutory damages or interest in the event the attorney’s client prevails on a motion under that statute.

However, the existence of that statutory summary remedy does not prevent a client from instituting a civil action to recover monies alleged to have been wrongfully withheld by an attorney. See, e. g., Bromberg v. Sands, 127 Ala. 411, 30 So. 510 (1900) and Gunn v. Howell, 35 Ala. 144 (1859) (actions against attorneys for money had and received instituted subsequent to the creation of the summary remedy in the statutory predecessor to § 6-6-740). See also, Annot., 22 A.L.R. 1501 (1923) (stating that the availability of the statutory remedy has been held not to deprive the client of his common-law remedy).

Plaintiff’s amended complaint, filed after the trial in this cause, superseded her original complaint. Wilson v. First Houston Investment Corporation, 566 F.2d 1235 (5th Cir. 1978). This amended complaint alleged facts sufficient to support a judgment for money had and received. It set forth defendants’ receipt of the payment of the workmen’s compensation judgment, and defendants’, refusal to turn over to plaintiff the entire amount of those funds less the attorney’s fees set by the United States District Court judgment.

Interest, in this state, has long been regarded not as the mere incident of a debt, attaching only to contracts express or implied, for the payment of money, but as compensation for the use or for the detention of money. Whenever it is ascertained that at a particular time money ought to have been paid, whether in satisfaction of a debt, or as compensation for a breach of duty, or for the failure to keep a contract, interest attaches as an incident. State v. Lott, 69 Ala. 147 (1881). See also, Ingersoll v. Campbell, 46 Ala. 282 (1871) (an action for money had and received; the court’s opinion holding that when a bailee is to keep the money of another on deposit until demanded, and on demand refuses without reasonable excuse to deliver such money, he thereby renders himself liable to the payment of interest from the time of the demand). Consequently, we find no error in the trial court’s award of interest to plaintiff.

Nor can we agree the trial court erred in failing to render judgment for plaintiff under § 6-6-740. The decision to allow a plaintiff-client to proceed summarily against an attorney under statute such as that in question rests within the sound discretion of the trial court. Annot., 22 A.L.R. 1501 (1923). Permission to so proceed is often denied where, as here, a factual dispute exists; and the client is required to seek redress through a civil action. Id.; 7 C.J.S. Attorney and Client § 159 (1937); 7 Am.Jur.2d Attorneys at Law §§ 191-195 (1963).

The trial court in the case at bar never expressly authorized the summary proceeding provided for in § 6 — 6—740. It is obvious from the judgment that the trial court awarded plaintiff a recovery for money had and received. In view of the fact that the complaint and the evidence support that judgment, we think the trial court properly determined that plaintiff was due interest from the date of her demand on September 25, 1970 on the amount to which she was entitled, § 6-6-740 notwithstanding.

It follows from what we have said that the amount that should have been awarded to plaintiff is $6,876.49 plus interest at six percent from September 25, 1970, the date payment was demanded by plaintiff, to June 26,1978, the date of final judgment in the trial court. The amount of $6,876.49 results from deducting $2,502.77, the amount of the attorney’s fee, which is fifteen percent of $16,685.15, from $16,685.15, then deducting from that amount, i. e. $14,-182.38, the $7,305.89 previously paid to plaintiff, leaving $6,876.49.

We think our determination of the issues herein discussed is dispositive of this appeal. We agree with the trial court that defendants’ counterclaims are without merit, and no purpose would be served by setting forth the evidence relating thereto. Nor do we think the trial court committed reversible error in allowing plaintiff to testify concerning her conversations with Edgar Smith, deceased. The record, excluding the contested testimony, reveals sufficient evidence to conclusively establish that plaintiff hired defendants to represent her and that plaintiff obtained a workmen’s compensation recovery in the federal court action. These facts alone mandate application of § 25-5-90, which limits the maximum allowance for defendants’ attorneys’ fees to fifteen percent of plaintiff’s award. Thus, reliance on the contested testimony is not necessary to support a finding that the maximum amount due defendants as attorneys’ fees is so limited.

The judgment of the trial court is reversed and the cause remanded to the trial court for entry of judgment in favor of plaintiff for $6,876.49 plus interest at the rate of six percent from September 25,1970 to June 26, 1978, the date of judgment.

REVERSED AND REMANDED WITH DIRECTIONS.

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


author: MADDOX, Justice.

text:
    Ex parte HUMPHREY, LUTZ & SMITH, a partnership. In re Emma Jean Shepard SOKOLL v. HUMPHREY, LUTZ & SMITH, a partnership, (two cases.) Ex parte Emma Jean Shepard SOKOLL.
    Nos. 78-554, 78-555.
    Supreme Court of Alabama.
    Jan. 11, 1980.

      Schuyler H. Richardson, III, of Bell, Richardson & Herrington, Huntsville, for petitioner Humphrey, Lutz & Smith, a partnership.
    J. Tilden Dillard and Sherman B. Powell, Jr., Decatur, for petitioner Emma Jean Shepard Sokoll.
    Lanny S. Vines, Birmingham, amicus curiae.
   MADDOX, Justice.

These cases arise out of a client’s dispute with her attorney over the proper distribution of a workmen’s compensation award. Both parties, being dissatisfied with certain portions of the opinion of the Court of Civil Appeals, petitioned this Court for a writ of certiorari. We granted both petitions and consolidated the cases. The two petitions present two issues:

(1) Does Code 1975, § 25-5-90 prohibit reimbursement of necessary and reasonable expenses of litigation advanced by an attorney in the successful prosecution of a workmen’s compensation claim out of the client’s award of compensation in addition to the attorney’s fee fixed by the trial court at the statutory maximum of 15 percent of the award?

(2) Does Code 1975, § 6-6-740 exempt an attorney from liability for interest and penalties upon an amount ultimately held to be due his client upon a disputed demand when the attorney has paid into court before trial the whole disputed sum?

The facts are discussed at length in the opinion of the Court of Civil Appeals. Sokoll v. Humphrey, Lutz & Smith [MS. March 28, 1979] 380 So.2d 840 (Ala.Civ.App.1979). We will not restate the facts or the holding made by the Court of Civil Appeals because the published opinion of that court adequately covers both.

We now address the two questions presented. We answer question number one in the negative. Code 1975, § 25-5-90 states that the court “. . . shall fix the fee of the attorney for the plaintiff for his legal services . . . .” We hold that the legislature did not intend that costs and expenses of litigation should be included within the 15 percent maximum of “fee for . . . legal services . .” The holding of the Court of Civil Appeals to the contrary is incorrect. We answer question number two in the affirmative and affirm the judgment of the Court of Civil Appeals insofar as it found that the attorney was not liable for the statutory penalties, but reverse the judgment of the court insofar as it finds that the attorney was liable for interest. .

It is abundantly clear from the record on appeal that the client claims she was entitled to the benefits of Code 1975, § 6-6-740, regarding both interest and penalties. We agree with the Court of Civil Appeals that “the existence of that statutory summary remedy does not prevent a client from instituting a civil action to recover monies alleged to have been wrongfully withheld by an attorney,” but we disagree with that court that a client can recover interest if the disputed sum is paid into court as provided in § 6-6-740. In short, while a client is not limited in the type of remedy he pursues, he is limited by § 6-6-740 on the recovery of interest and penalties.

The judgment of the Court of Civil Appeals is due to be affirmed in part, reversed in part, and remanded.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

All the Justices concur, except BLOOD-WORTH, J., not sitting.


text:
    Emma Jean Shepard SOKOLL v. HUMPHREY, LUTZ & SMITH, a partnership.
    Civ. 1607-X.
    Court of Civil Appeals of Alabama.
    Feb. 6, 1980.
   BRADLEY, Judge.

The prior opinion of this court has been affirmed in part; reversed in part and remanded by the Supreme Court of Alabama, 380 So.2d 845. On remand to this court, and in compliance with the supreme court’s opinion of January 11, 1980, this cause is now affirmed insofar as finding that the attorney was not liable for statutory penalties and insofar as the attorney is entitled to reasonable and necessary expenses of litigation. Further, this cause is reversed and remanded for entry of a judgment not inconsistent with the opinion of the Supreme Court of Alabama insofar as finding the attorney was liable for interest.

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

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


author: WRIGHT, Presiding Judge.

text:
    ALABAMA POWER COMPANY v. Ida GRAHAM.
    Civ. 1655.
    Court of Civil Appeals of Alabama.
    March 28, 1979.
    Rehearing Denied May 2, 1979.

      Edward S. Allen, Birmingham, for appellant.
    John H. Lavette and Philip C. Henry, Birmingham, for appellee.
   WRIGHT, Presiding Judge.

This is a condemnation suit. The con-demnor, Alabama Power Company, sought to condemn .6 acre of the land of Graham for use in locating a high voltage power transmission line. Jury verdict in the Circuit Court of Jefferson County set damages to Graham of $5,500. Alabama Power appeals. We reverse. Two issues are presented for consideration. The first is whether the trial court erroneously permitted into evidence testimony of sales of other property as comparable sales.

The tract of land from which the .6 acre was taken was 21.4 acres in area. Its dimensions were 350 feet to 331 feet in width and some 2,640 feet or one-half mile in length. The front of the tract fronted at an angle along U. S. Highway 75 in Jefferson County near the town of Pinson. The .6 acre taken is at a rear corner of the tract one-half mile from the highway. The tract is zoned agricultural, is unplatted and the part taken is located on a rocky mountainside with a 50% grade. Utility lines, power, gas, and water, touch the tract only at the highway one-half mile from the part taken. There are no sewage lines in the area and residences in that area must dispose of sewage by septic tanks and field lines. There have been no percolation tests made at or near the parcel taken. There is a 50-foot unimproved road or street right-of-way from the south line of the main tract to a street in a nearby residential platted subdivision. The utilities serving that subdivision are about two thousand feet from the part taken. There is no street or improved access by vehicle to the part taken nearer than 2,000 feet.

Upon cross examination of the appraiser witness for the power company, the con-demnee sought to elicit information concerning sales of two lots in the nearby subdivision including the sales price of such platted lots. The power company objected to admission of evidence of sales of lots in the subdivision on the ground that they were not “comparable sales.” The objection was overruled and testimony came in. Later, in support of an opinion as to value of the land taken and damage to the remainder, the condemnee was permitted, over objection, to testify as to her knowledge of the sales of the lots and to present such sales as “comparable.”

It is the general rule in Alabama that evidence of the sale price of another similar piece of land is admissible for the purpose of aiding the jury in assessing the value of the land taken. Such evidence is generally presented to support the weight and credibility of the opinions of expert appraisers. State v. Colley Corporation, 295 Ala. 204, 326 So.2d 120 (1976); Southern Electric Generating Co. v. Leibacher, 269 Ala. 9, 110 So.2d 308 (1959); Davis v. Reid, 264 Ala. 560, 88 So.2d 857 (1956). Evidence of the sale price of other land may be admitted if the sale was (1) voluntary; (2) not too remote in time nor of such character as to indicate that it did not represent the true value of the property; (3) and if the conditions surrounding the two tracts of land are similar. State v. Wise Development Corp., 293 Ala. 671, 309 So.2d 448 (1975); Knabe v. State, 285 Ala. 321, 231 So.2d 887 (1970).

There is no general rule as to the similarity that must exist before the sale price of one piece of land may be offered as evidence of the value of another. It is a question left to the judicial discretion of the trial judge. State v. Wise, Supra. This rule seems to mean that the factor controlling discretion is that of relevancy. If there are sufficient points of similarity which could reasonably be considered to make two tracts of land of comparable market value, the price received for one could aid the jury in determining the fair market value of another tract being taken by condemnation. On the other hand, if the points of similarity affecting market value of the two tracts are so limited that it could not reasonably be said they would have comparable market value, the sales price of one would not aid in determining market value of the other. Such sale would not be relevant but would rather be misleading and prejudicial. Its admission in evidence would therefore be an abuse of discretion.

Our supreme court has said it has never held that the fact that one tract is platted and the other is not is sufficient in and of itself to require a finding of dissimilarity. It said that such fact is just one to be considered in determining admissibility. State v. Colley Corporation, Supra. However, neither has the court said that such fact may not, in a particular case, be so cogent as a dissimilarity affecting market value as to render a sale inadmissable. The court in Southern Electric Generating Co. v. Leibacher commented in obiter dictum that courts of some other states have held that a sale of platted lots cannot be used as evidence to determine the value of non-platted lots or vice versa. Other comments by the court in that case indicate to us that the comparison of platted versus unplatted was a material element of dissimilarity.

We have stated the evidence showed that the parcel taken was some one-half mile from the nearest connection with utilities and a paved street or highway; that it was located on a rocky mountainside at a fifty percent grade and was the most remote corner of an unplatted 21.4-acre tract. On the other hand, it was shown that sales two and three, admitted over objection as comparable, were sales of platted lots in a subdivision, adjoining paved streets with utilities and within some 300 feet of U. S. Highway 75. We are of the opinion that the sales of tracts two and three, admitted as comparable, were so dissimilar that their admission was prejudicial and constituted an abuse of discretion. Popwell v. Shelby County, 272 Ala. 287, 130 So.2d 170 (1960).

The second issue presented is whether the court erred in refusing to give the power company’s written requested charge “9.”

We have considered the requested charge and closely examined the oral charge of the court. Though the charge requested has been approved as an accurate statement of the law in the case of Pappas v, Alabama Power Co., 270 Ala. 472, 119 So.2d 899 (1960), we do not consider it was error to refuse it in this case. It is our opinion that the oral charge when considered in its entirety substantially covered the legal duty of the condemnee as sought to be charged in Alabama Power Company’s charge “9.” There was therefore no material injury to the power company. Rule 51, ARCP.

For the error stated, the judgment below is reversed and the cause remanded for further proceedings.

REVERSED AND REMANDED.

BRADLEY and HOLMES, JJ., concur.


author: SHORES, Justice.

text:
    Ex parte Ida GRAHAM. In re ALABAMA POWER COMPANY v. Ida GRAHAM.
    No. 78-541.
    Supreme Court of Alabama.
    Dec. 7, 1979.
    Rehearing Denied Feb. 8, 1980.

      John H. Lavette and Philip C. Henry, Birmingham, for petitioner.
    Edward S. Allen, Birmingham, for respondent.
   SHORES, Justice.

This is a land condemnation case. The condemnor, Alabama Power Company, sought to condemn .6 of an acre of a 21.4-acre tract for use in locating a high voltage power transmission line. The sole issue at trial was damages: The power company testified to damages of $900 and the property owner, Ms. Graham, testified to damages of $13,000; and the jury returned a verdict of $5,500. The power company appealed the judgment and the Court of Civil Appeals reversed, holding that tracts of platted land alleged to be comparable to the condemned land, which was unplatted, were so dissimilar that admission of testimony regarding their value was prejudicial and constituted an abuse of discretion. We granted Ms. Graham’s petition for a writ of certiorari.

In its opinion, the Court of Civil Appeals, 380 So.2d 847 notes the following facts about the landowner’s tract:

“. . . Its dimensions were 350 feet to 331 feet in width and some 2,640 feet or one-half mile in length. The front of the tract fronted at an angle along U. S. Highway 75 in Jefferson County near the town of Pinson. The .6 acre taken is at a rear corner of the tract one-half mile from the highway. The tract is zoned agricultural, is unplatted and the part taken is located on a rocky mountainside with a 50% grade. Utility lines, power, gas, and water, touch the tract only at the highway one-half mile from the part taken. There are no sewage lines in the area and residences in that area must dispose of sewage by septic tanks and field lines. There have been no percolation tests made at or near the parcel taken. There is a 50-foot unimprovéd road or street right-of-way from the south line of the main tract to a street in a nearby residential platted subdivision. The utilities serving that subdivision are about two thousand feet from the part taken. There is no street or improved access by vehicle to the part taken nearer than 2,000 feet.”

When cross-examining the power company’s appraisal witness, the landowner sought to elicit information concerning sales of two lots in a nearby subdivision, including their sales price. The testimony was admitted over the power company’s objection that the lots were not comparable to the condemned property. Later, the landowner’s appraiser was also allowed to testify as to the sales of those lots in support of her opinion as to the value of the land taken.

In her application for rehearing to the Court of Civil Appeals, the landowner, pursuant to ARAP 39(k), requested that the court include in its opinion the following facts concerning the subdivision lots and their similarity to the condemned property:

1. They are comparable in size;

2. They are located in the same neighborhood, and are closer than any of the power company’s comparable sales;

3. The date of the sales was very near the date of the taking;

4. Utilities available to the platted lots were also available to the subject property from the same location;

5. The lots were vacant land and irregularly shaped, as was the condemned lot.

This request was not acceded to, but Rule 39(k) allows us to consider those facts along with those stated in the opinion of the Court of Civil Appeals.

Two issues are presented: Was the Court of Civil Appeals correct in holding that the platted lots were so dissimilar that the trial court exceeded its discretion in admitting them into evidence as comparable sales? If the lots were so dissimilar, does the admission of that evidence require that the verdict be reversed? For the reasons stated herein, we answer both queries in the negative.

Evidence of the sales price of other lands voluntarily sold is admissible on the issue of value if the conditions surrounding the two tracts of land are similar and if the sale was neither too remote in point of time, nor of such character as to indicate that it did not represent the true value of the property. State v. Rigas, 282 Ala. 541, 213 So.2d 386 (1968); Popwell v. Shelby County, 272 Ala. 287, 130 So.2d 170 (1960). Hearsay evidence of such sales may be introduced by an expert appraiser, but only for the limited purpose of showing the basis of the opinion as to the value of the subject land. McLemore v. Alabama Power Co., 285 Ala. 20, 228 So.2d 780 (1969). There is no general rule regarding the similarity that must exist between two pieces of land before the sale price of one can be offered as evidence of the other’s value. In this state, the question of similarity is left primarily to the discretion of the trial judge. State v. Wise Development Corp., 293 Ala. 671, 309 So.2d 448 (1975). The fact that one tract is platted and the other is not is not sufficient in and of itself to require a finding of dissimilarity. That fact is just one to be considered in the trial court’s determination. State v. Colley Corp., 295 Ala. 204, 326 So.2d 120 (1976). The same is true where one tract has been subdivided and the other has not. Ibid.

Numerous cases have upheld the trial court’s exercise of discretion in admitting sales of comparable land. See, e. g., State v. Colley Corp., supra, which upheld the trial court’s decision to admit evidence as to the sale of property which differed from the condemned land in that it was platted and located in an area characterized by “fast food” restaurants, whereas the condemned land was unplatted and surrounded by automobile and heavy equipment dealerships; State v. Wise Development Corp., supra, where the lands held to be comparable were small pieces of property sold for special purposes, and were located in different areas of the city than the condemned land. Indeed, we have found only one ease, Popwell v. Shelby County, supra, which overturned the trial court’s exercise of discretion in ruling on the admissibility of lands offered as comparable sales. In that case, the land offered for comparison was a 55-acre tract which included valuable improvements and farm land, while the condemned property was a 7-acre tract located on a hill, which rendered it unsuitable for farming.

Applying these principles to the facts in the instant case, we hold that the trial court did not exceed its discretion in allowing testimony as to the value of the disputed sales. Although the property in question differed in many respects from the condemned land, the similarities pointed up by the landowner’s supplementary statement of facts are borne out by the record, and are sufficient to support the trial court’s ruling. Even were the platted lots so dissimilar that their admission constituted error, however, it would not be such as to require reversal. In its opinion, the Court of Civil Appeals quotes the general rule that the question of the similarity of land offered as evidence of the value of other land is left to the discretion of the trial judge. The Court of Civil Appeals then says:

“. . . This rule seems to mean that the factor controlling discretion is that of relevancy. ... if the points of similarity affecting market value of the two tracts are so limited that it could not reasonably be said they would have comparable market value, the sales price of one would not aid in determining market value of the other. Such sale would not be relevant but would rather be misleading and prejudicial. Its admission in evidence would therefore be an abuse of discretion.”

Although we agree that the sale price of property not comparable to the condemned property is irrelevant to a determination of the value of the condemned property, it does not ineluctably follow that it is so prejudicial as to require reversal. The rule is oft-stated that in condemnation cases, to justify a reversal of the condemnation award, the reviewing court must conclude that substantial prejudice resulted. State v. Garris, 292 Ala. 495, 296 So.2d 712 (1974); State v. Rigas, supra. In Garris, the sales which were complained of by the condemnor supported the opinion of the witness who put the lowest valuation on the condemned property. The court held that even if the sales were not comparable, no harm resulted to the condemnor from their admission. Here, one of the two contested sales had the lowest price of the 5 sales relied on by the landowner’s valuation witness; the other was $500 below the highest priced property. Since the jury verdict was well below the amount of damages estimated by the property owner’s valuation witness, we cannot say that the power company was substantially prejudiced by the admission of testimony regarding the platted lots.

Further, it must be remembered that testimony concerning the sales was admitted for the purpose of showing the basis of the valuation witness’ opinion. In Alabama Power Company v. Berry, 222 Ala. 20, 130 So. 541 (1930), it was held that the fact that a valuation witness in a condemnation proceeding considered irrelevant matters, goes to the credibility of the testimony and not to its admissibility. While the irrelevant matters considered in that case were not sales of dissimilar property, the principle is applicable here. Popwell v. Shelby County, supra, is not to the contrary. While that case reversed the verdict of the trial court after finding that the judge had erred in admitting evidence of the sale price of land too dissimilar to be used for the purposes of comparison, other errors were cited in the opinion which were sufficient in themselves for reversal.

The opinion of the Court of Civil Appeals is reversed and rendered.

REVERSED AND RENDERED.

All the Justices concur.


author: HOLMES, Judge. WRIGHT, Presiding Judge,

text:
    Geneva BLANSIT, Marea Blansit, and Tinia Blansit, minors, by their guardian ad litem, W. M. Beck, Sr., and Erin Michelle Blansit, by her guardian ad litem, Charles A. McGee v. CORNELIUS AND RUSH COAL COMPANY, INC. et al.
    Civ. 1993.
    Court of Civil Appeals of Alabama.
    Aug. 8, 1979.
    Rehearing Denied Sept. 5, 1979.
    W. M. Beck, Sr., Fort Payne, guardian ad litem for Geneva Blansit, Marea Blansit, and Tinia Blansit, minors.
    Charles A. McGee, Fort Payne, guardian ad litem for Erin Michelle Blansit.
    Loma B. Beaty, Fort Payne, for appellee, Betty L. Blansit, widow of Roy Lee Blansit, deceased.
   HOLMES, Judge.

This is a declaratory judgment action involving Alabama’s workmen’s compensation law.

The trial court determined that the defendant widow was entitled to the deceased employee’s workmen’s compensation benefits. The minor children from prior marriages of the deceased employee appeal. The minor children contend the trial court erred in awarding the workmen’s compensation benefits to the widow to the exclusion of the minor children. We affirm.

Section 25-5-62, Code of Ala.1975, is as follows:

A wife, child, husband, mother, father, grandmother, grandfather, sister, brother, mother-in-law or father-in-law who was wholly supported by the deceased workman at the time of his death and for a reasonable period of time immediately prior thereto shall be considered his total dependents, and payment of compensation shall be made to such total dependents in the order named. (Emphasis supplied.)

It is the duty of the court to ascertain and give effect to the legislative intent as expressed from the words of a statute. Alabama Surface Mining Reclamation Commission v. Jolly and Slatton, Ala.Civ.App., 373 So.2d 855 (1979); State v. Steel City Crane Rental, Inc., Ala.Civ.App., 345 So.2d 1371 (1977).

Performing that duty, it is clear to this court that the trial court is not in error in determining that the widow is to receive the entire workmen’s compensation benefits of her deceased husband to the exclusion of the deceased husband’s minor children from prior marriages. This is so because “payment of compensation shall be made to such total dependents in the order named” can have no other meaning. Put another way, each class of beneficiaries of workmen’s compensation benefits, as designated by § 25-5-62 takes in the order set out in the statute to the exclusion of after named beneficiaries.

Justice Livingston, over thirty-five years ago, in Sloss-Sheffield Steel & Iron Co. v. Alexander, 241 Ala. 476, 480, 3 So.2d 46, 49 (1941), interpreted the code section in question as we have above. In Alexander, supra, we find the following:

The statute expressly states that the parties named therein shall take “in the order named.” To justify an award to the half sister of deceased, the evidence must show the death or non-dependency of all those in a class ahead of the sister (in this case half sister). .•

This court is aware of § 25-5-60(l)c, which is as follows:

If one of two or more dependents is a widow or widower, the compensation may be paid to the widow or widower for the benefit of herself or himself and the dependent child or children. In its discretion and when it considers appropriate to do so, the court shall at any time have the power to determine, without the appointment of any guardian or guardians, what portion of the compensation shall be applied for the benefit of any such child or children and may order the same paid to a guardian or custodian of such child or children.

In view of § 25-5-60(l)(c), the trial court has discretion to apportion benefits between a widow and minor children. However, the trial court is not required to do so.

In this instance, in view of § 25-5-62, the trial court did not err to reversal.

The case is due to be affirmed.

AFFIRMED.

BRADLEY, J., concurs.

WRIGHT, P. J., dissents.

WRIGHT, Presiding Judge,

dissenting:

I must respectfully dissent from the view of the majority in this case. The result of their decision is practical nullification of the rights of children and other dependents of deceased employees to compensation under the Workmen’s Compensation law if there is a surviving wife. I believe the decision is not only a misinterpretation of § 25-5-62, Code of Alabama (1975), but it disregards the principle of pari materia construction of sections of an act of the legislature.

Section 25-5-62 has been a part of Workmen’s Compensation Act at least since the Code of 1923. In fact, I can find no material change in what is now codified as § 25-5-60 through § 25-5-68 since 1923. There has been a rearranging of the sections from the Code of 1940 and the Code recompiled in 1958 into the Code of 1975. There have also been substantial deletions from what is now § 25-5-60 since the act was last amended by Act No. 1062, Acts of Alabama, 1973. In other words, the Code committee for the 1975 Code presented to the legislature and the legislature adopted a substantial revision of what was § 283, Title 26, Code of Alabama (1940) as last amended by Act 1062 of 1973. However, the deletions, in my opinion, were therapeutic, eliminating surplusage and- not affecting the legal intent and meaning of that section of the act as it had existed since 1923. The reader may compare the old and the new. Primarily, the difference is that the new condenses some eight subsections of the old § 283 into three. And the old, as last amended, provided the percentage of'the deceased’s average weekly wage payable as compensation to designated dependents. The new declares the percentage paid for one dependent and provides the maximum will be paid if there are two or more dependents. The title of § 25-5-60 is “Compensation for Death” and as considered material is as follows:

In death cases, where the death results proximately from the accident within three years, compensation payable to dependents shall be computed on the following basis and shall be paid to the persons entitled thereto without administration, or to a guardian or such other person as the court may direct, for the use and benefit of the person entitled thereto.
(1) PERSONS ENTITLED TO BENEFITS; AMOUNT OF BENEFITS.
a. If the deceased employee leaves one dependent, there shall be paid to the dependent 50 percent of the average weekly earnings of the deceased.
b. If the deceased employee leaves two or more dependents, there shall be paid to the dependents 66⅜ percent of the average weekly earnings of the deceased.
c. If one of two or more dependents is a widow or widower, the compensation may be paid to the widow or widower for the benefit of herself or himself and the dependent child or children. In its discretion and when it considers appropriate to do so, the court shall at any time have the power to determine, without the appointment of any guardian or guardians, what portion of the compensation shall be applied for the benefit of any such child or children and may order the same paid to a guardian or custodian of such child or children.

There are additional provisions setting out that even partial dependents may be entitled to some benefits in some instances and provides ’ a formula for computing them. There are also provisions for minimum and maximum benefits payable in any case to wholly dependent persons and partially dependent persons.

Section 25-5-61 discloses that wives, husbands and children, with certain exceptions, are presumed to be wholly dependent upon the deceased.

Section 25-5-62 is set out in the opinion of the majority. It specifies that certain relations of the deceased who were wholly supported by him or her at the time of death shall be considered his “total” dependents and payment of compensation shall be made to such “total” dependents in the order named.

Section 25-5-63 provides:

Total dependents shall be entitled to take compensation in the order named in § 25-5-62 until the percentage of the average weekly earnings of the deceased, during the time and as specified in § 25-5-60, shall have been exhausted; but the total compensation to be paid to all total dependents of a deceased employee shall not exceed in the aggregate the maximum weekly compensation stated in § 25-5-68 except as otherwise provided in this article. (Emphasis ours).

The sections following § 25-5-63 through § 25-5-69 relate to the same subject, “Compensation for Death,” but are not pertinent to this case.

Let us now look at the pertinent sections as herein quoted or summarized in pari materia as is required by principles of statutory construction. Ex parte Central Iron & Coal Company, 209 Ala. 22, 95 So. 472 (1923). Section 25-5-60(l)(a) requires that if a deceased employee leaves one dependent, he or she shall be paid fifty percent of the average weekly earnings of the deceased. Section 25-5-60(l)(b) provides if there are two or more dependents, “there shall be paid to the dependents 66⅜ percent of the average weekly earnings of the deceased.” Section 25-5-60(l)(c) provides if one of two or more dependents is a widow or widower, the compensation may be paid to the widow or widower for the benefit of herself or himself and the dependent children. It then provides that the court may, in its discretion, at any time, have the power to determine, without the appointment of a guardian, what portion of the compensation shall be applied for the benefit of any such child or children and may order the same paid to a guardian or custodian of such child or children.

This section is quoted by the majority and they give it significance only by saying it gives the court discretion to apportion benefits between a widow and minor children, though the court is not required to do so. In discussing this portion of the decision, I was informed that this meant that the court had the discretion to give to or withhold from dependent children benefits granted to them by the preceding subsection, and the court could give all compensation to the widow or could exercise its benevolent discretion and give a portion to the child or children or their guardian or custodian. This means that the statute giveth but the judge may take away.

To me, such a construction of subsection (l)(c) is impossible. Such a construction is beset with frailties. It ignores the preceding sections and the requirement that they be construed together. Subsection (l)(a) directs unequivocally that if there is one dependent, he or she shall be paid fifty percent of the average weekly wage of deceased. In this case, applying in pari materia § 25-5-62, that first dependent is the wife. She is the first dependent in the order named. She is also presumptively wholly dependent under § 25-5-61. Were she the only dependent, she would only get fifty percent of deceased’s average weekly wage. However, she is not the only dependent. Subsection (l)(a) does not apply. Looking at the evidence, there are four children under eighteen years. Under subsection (l)(b) there shall be paid 66% percent of the deceased’s average weekly wage to the dependents. This includes widow and children. Foreseeing the possibility that the widow or widower might be an unfit parent, or should not be the parent of dependent children, as in this case, subsection (l)(c) provided protection for the children by giving to the court discretion to apportion between the widow and children, even without appointing a guardian, the total benefits payable.

The decision of the majority means that the children not only get nothing, but the wife should take under subsection (l)(a) and draw only 50 percent of the deceased’s average weekly wage. Neither she nor the children could get the benefit of the additional 16⅜ percent payable to two or more dependents. As I initially said, the decision also means that the sections of the act providing benefits to persons wholly or partially dependent are nullities and of no meaning if the widow or any one of the persons preceding them in the order of § 25-5-62 is living and were wholly or partially dependent upon the deceased. It is to be noted that even partial dependents are accorded standing in the order of § 25-5-62 by § 25-5-64.

The majority have said that the language of § 25-5-62 can have no other meaning than that no “total” dependent may receive any compensation so long as there is one living who precedes him or her in the order who was wholly supported by the deceased. As the majority says it, “each class of beneficiaries ... as designated by § 25-5-62 takes in the order set out ... to the exclusion of after named beneficiaries.”

I say that § 25-5-62 does nothing more than designate who may receive benefits if wholly supported by a deceased employee at the time of his or her death. As the statute said those names are the “total” dependents; /. e., they are all who shall be considered as dependents, and they shall be paid compensation in the order named.

The next section, § 25-5-63, provides that the “total” dependents shall be entitled to take compensation in the order named in § 25-5-62 until the percentage of the average weekly earnings as specified in § 25-5-60 shall have been exhausted, but the “total” compensation to be paid all “total” dependents shall not exceed in the aggregate the maximum weekly compensation stated in § 25-5-68. In my view, when this section refers to “total compensation paid to all total dependents” and said it shall not exceed in the aggregate the maximum weekly compensation allowed, it must be construed to mean that in accordance with § 25-5-60 though there are two or more dependents, they must take in order the 66⅜ percent of the average wage and, in the aggregate, cannot draw more than the 66⅜ percent. I consider that § 25-5-63, if it has any meaning at all, repudiates the majority construction of § 25-5-62.

The majority cites Sloss-Sheffield Steel & Iron Co. v. Alexander, Supra, and quote from the decision. I have no quarrel with the statement quoted when considered in the light of the facts of that case. It involved a claim of a partially dependent half-sister of the deceased. The mother, father, and a wife also claimed to be wholly dependent. The court said that in order for a partially dependent half-sister to be eligible for benefits the evidence must show the death or non-dependency of all those in a class ahead of her. This statement is supportive of my position. If those named in order in the statute ahead of the claimant, in the aggregate, exhaust the maximum compensation payable under the statute, those named after in the order cannot receive compensation unless those ahead die, marry or otherwise become ineligible. The statement in the Sloss-Sheffield case following that quoted by the majority, that a half sister could in no case take concurrently with a wife is obiter dicta and in my judgment is incorrect. One of the cases cited as authority for the statement does not support it. In fact, that case provided that a wife and children wholly dependent would draw compensation concurrently. Locke v. Centennial Ice & Coal Co., 214 Ala. 411, 108 So. 46 (1926). The other case, Ex parte Todd Shipbuilding & Dry Docks Co., 212 Ala. 477, 103 So. 447 (1925), does hold, in construing the act as it existed in the 1923 Code, that it was intended that compensation should not be payable concurrently to more than one of the classes or in the order set out, even though the maximum was not exhausted. I believe this general statement is erroneous so long as those preceding the claimant in the order are drawing their allowable compensation but the maximum is not exhausted. The authority cited by the court for its conclusion, Ex parte Central Iron & Coal Co., supra, does not support that proposition, but more to the contrary. That case is an enlightened opinion, written in 1923, applying the principle of pari materia construction and emphasizing the requirement of liberal and beneficent construction of the Workmen’s Compensation Act which had been then only recently enacted in 1919. Payment in the case was being made concurrently to a wife and child when the mother remarried. The question was whether the child succeeded to the compensation the mother forfeited by remarriage or must continue to draw only that amount she was entitled to while drawing concurrently with her mother. The court determined that the compensation which would have been due the mother was, after her marriage, payable to the dependent child or children.

To sum up the cases that we can find, the dicta of Sloss-Sheffield is not supported by the facts of that case. The holding of that case and the others, with the possible exception of Ex parte Todd Shipbuilding, is merely that a claimant far down the order set out in § 25-5-62 is not entitled to compensation if there are dependent wife and child or children preceding such claimant in the order. We find no fault with those decisions. As we have said here, under the present law as codified in § 25-5-60, if there are two or more dependents preceding a claimant in the order of § 25-5-62 that are wholly dependent, such claimant is not entitled to compensation.

I would hold, construing the act liberally and for its beneficent purpose, that in this case there is a dependent wife and wholly dependent children. That such dependents are entitled to be paid 66% percent of the deceased’s average weekly wage. The trial judge may apportion the total compensation in his discretion and order that apportioned to the children paid to a guardian or custodian for their use and benefit.

It is to be noted that the judgment below granted to the wife the total compensation payable because of the death of the husband. Of course, the maximum payable is 66% percent of his average weekly wage at the time of death. According to the petition for declaratory judgment filed by the employer which initiated this action, such amount was $140 per week. The court gave it all to the wife. However, § 25-5-60 allows compensation benefits to one dependent of only 50 percent of the deceased’s average weekly wage. Clearly therefore, the judgment not only took benefits payable to the children from them but gave such additional 16% percent to the wife. Thus error is compounded by error.

This dissent is perhaps too long. However, I feel thoroughness is required because I am so firmly convinced that the majority has grieviously erred in affirming the judgment below. They have endorsed what I believe is a clear misinterpretation and application of the purpose and intent of the benevolent Workmen’s Compensation Act, and have permitted an injustice to deceased’s dependent children and an unjust enrichment to the wife. For all these reasons I dissent.

      . Such changes were made in many instances in the 1975 Code and many are as yet undiscovered by either lawyers or judges.


author: JONES, Justice.

text:
    Ex parte Geneva BLANSIT, Marea Blansit, and Tinia Blansit, Minors by their Guardian Ad Litem, W. M. Beck, Sr., and Erin Michelle Blansit, by her Guardian Ad Litem, Charles A. McGee. In re Geneva BLANSIT et al. v. CORNELIUS AND RUSH COAL COMPANY, INC., et al.
    78-878.
    Supreme Court of Alabama.
    Jan. 11, 1980.

      Charles A. McGee, W. M. Beck, Sr., Fort Payne, for petitioners.
    Loma B. Beaty, Fort Payne, for respondents.
   JONES, Justice.

We granted certiorari to review the Court of Civil Appeals in a declaratory judgment action involving Alabama’s workmen’s compensation law. The issue is the proper allocation of death benefits among the widow of an employee and his four children by previous marriages.

The trial Court awarded workmen’s compensation benefits exclusively to the widow. On appeal, the Court of Civil Appeals affirmed (with Wright, P. J., dissenting). We reverse and remand.

The Alabama law controlling the amount and allocation of death benefits payable to the dependents of a deceased employee is set out in §§ 25-5-60 through 25-5-63, Ala.Code 1975.

Section 25-5-62 designates the order of compensation for those persons who are total dependents:

“A wife, child, husband, mother, father, grandmother, grandfather, sister, brother, mother-in-law or father-in-law who was wholly supported by the deceased workman at the time of his death and for a reasonable period of time immediately prior thereto shall be considered his total dependents, and payment of compensation shall be made to such total dependents in the order named.” (Emphasis supplied.)

The rationale of the Court of Civil Appeals is expressed as follows:

“[I]t is clear to this court that the trial court is not in error in determining that the widow is to receive the entire workmen’s compensation benefits of her deceased husband to the exclusion of the deceased husband’s minor children from prior marriages. This is so because ‘payment of compensation shall be made to such total dependents in the order named’ can have no other meaning. Put another way, each class of beneficiaries of workmen’s compensation benefits, as designated by § 25-5-62 takes in the order set out in the statute to the exclusion of after named beneficiaries.”

The primary and obvious legislative purpose of the Act as a whole (when death results from an on-the-job injury) is to provide dependents with a measure of subsistence for a prescribed period. § 25-5-61 establishes a class of persons presumed wholly dependent, limited to a wife or husband and minor children. § 25-5-62 expands the class to include family members who were, in fact, “wholly supported by the deceased workman at the time of his death . .” Contained in that section is the troublesome language, which is the basis of this case, providing that “payment of compensation shall be made to such total dependents in the order named.” This language is repeated in another context in § 25-5-63. Nevertheless, § 25-5-60(l)c provides for the allocation of benefits among the surviving spouse and children of the deceased where applicable:

“If one of two or more dependents is a widow or widower, the compensation may be paid to the widow or widower for the benefit of herself or himself and the dependent child or children. In its discretion and when it considers appropriate to do so, the court shall at any time have the power to determine, without the appointment of any guardian or guardians, what portion of the compensation shall be applied for the benefit of any such child or children and may order the same paid to a guardian or custodian of such child or children.”

The Supreme Court of Tennessee, interpreting provisions in the Tennessee workmen’s compensation law almost identical to § 25-5-62, held in a similar fact situation:

“T.C.A. § 50-1013(c)(3) expressly provides that when a deceased employee leaves both a widow and dependent children, the benefits are payable jointly, subject to the power of the court to allocate the benefits among them should that be appropriate. The separate listing of ‘wife’ and ‘children’ in T.C.A. § 50-1013(a)(3) is less to establish the priority between them than to establish the priority of each over the potential beneficiaries listed subsequently.” Farmer v. Farmer, 562 S.W.2d 205, 207 (Tenn.1978).

See, also, Old Republic Insurance Co. v. Christian, 389 F.Supp. 335 (E.D.Tenn., 1975).

We concur with this interpretation, believing that the legislature did not intend to make a widow and minor children separate classes of total dependents to the exclusion of each other. § 25-5-61 establishes a special class of total dependents who are presumed to be wholly dependent. The spouse and children of the decedent are the sole members of this class. It is inconceivable that the legislature would presume such children to be wholly dependent in one section, and then proceed to totally exclude them from benefits in the following section.

We do not overrule the holding of this Court in Sloss-Sheffield Steel & Iron Co. v. Alexander, 241 Ala. 476, 3 So.2d 46 (1941). In that case, what is now § 25-5-62 was construed to mean that partial dependents as a class may be eligible for benefits only after demonstrating that those classified as total dependents are ineligible for such benefits.

The Supreme Court of Georgia has offered another compelling line of reasoning, arguing for a sharing of workmen’s compensation benefits by children of a deceased employee’s former marriage:

“When the workmen’s compensation law is not applicable, natural children have rights under the wrongful death statute to recover damages for the death of their parents. . . . These rights are not taken away when the natural parents are divorced and the child has a step-parent or step-parents. ... It is not reasonable to suppose that the legislature intended, when it took away these rights in some cases and substituted for them rights to benefits under the Workmen’s Compensation Act . That the rights of children to workmen’s compensation benefits should be changed by the divorce and remarriage of their parents, when those events do not diminish the rights of children (whose parents are not covered by the Workmen’s Compensation Act) to whom the wrongful death statute applies.” United States Fidelity & Guaranty Co. v. Dunbar, 112 Ga.App. 102, 143 S.E.2d 663, 669 (1965).

While § 6-5 — 410 of the Alabama Code requires a “personal representative” of the decedent to commence a wrongful death action, the real parties in interest, and the intended beneficiaries under the statute, are the heirs of the decedent determined by the statute of distribution. Board of Trustees of the University of Alabama v. Harrell, 43 Ala.App. 258, 188 So.2d 555 (1965). The descent and distribution statute clearly identifies the decedent’s children as the intended beneficiaries. §§ 43-3-1, 43-3 — 10, Ala. Code 1975.

Viewing the totality of the legislative purpose in §§ 25-5-60 through 25-5-63, we find the four minor children, Appellants in the instant appeal, to be wholly dependent upon the decedent by statutory presumption. Therefore, they are entitled to an appropriate share of the workmen’s compensation benefits in accordance with the provisions of § 25-5-60(l)(b) and (c). Accordingly, we remand to the Court of Civil Appeals for an order remanding the cause to the Circuit Court for the exercise of its discretion to apportion the total award among the widow and the four minor children.

REVERSED AND REMANDED.

All the Justices concur, except ALMON, J., not sitting.


author: HOLMES, Judge.

text:
    Geneva BLANSIT et al., v. CORNELIUS AND RUSH COAL COMPANY et al.
    Civ. 1993.
    Court of Civil Appeals of Alabama.
    Feb. 6, 1980.
   HOLMES, Judge.

The prior opinion of this court has been reversed and remanded by the Supreme Court. On remand to this court, and in compliance with the Supreme Court’s opinion of January 11, 1980, 380 So.2d 859, this cause is reversed and remanded to the Circuit Court of DeKalb County.

REVERSED AND REMANDED.

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


text:
    HUMANA OF ALABAMA, INC., d/b/a North Alabama Hospital v. Elvin P. RICE.
    Civ. 1805.
    Court of Civil Appeals of Alabama.
    Oct. 24, 1979.
    Rehearing Denied Nov. 28, 1979.
    Robert E. Cooper, of Fine, McDowell & Cooper, Russellville, for appellant.
    Robert I. Rogers, Jr. of Bedford, Bedford & Rogers, Russellville, for appellee.
   BRADLEY, Judge.

Humana of Alabama, Inc., d/b/a North Alabama Hospital, defendant below, appeals from a verdict and judgment rendered against it and in favor of Elvin P. Rice, plaintiff below, in the amount of $3,850. We reverse.

On August 8; 1977 the plaintiff, Elvin P. Rice, was admitted to the North Alabama Hospital in Russellville, Alabama, which is owned and operated by Humana of Alabama, Inc. (hereinafter referred to as “hospital”). Mr. Rice remained in the hospital four days and was discharged on August 12, 1977. His total bill was $1,195.00.

The plaintiff was covered by two group health insurance policies — one was with Provident Life and Accident Insurance Company (hereinafter referred to as “Provident”) and the second policy was with Blue Cross-Blue Shield. The hospital was advised by Rice’s wife on the date of admission that he had coverage through Provident. Mr. Rice later advised the hospital of his coverage under Blue Cross.

The defendant-hospital filed a claim with Provident on August 7, 1977 and with Blue Cross on August 25,1977, and on August 26, 1977 the hospital received payment from Provident in the amount of $1,164.00. On September 13,1977 Mr. Rice paid the hospital the balance owed, which was $31.00. The defendant received payment of $483.00 on September 15, 1977 from Blue Cross. Both insurance policies contained coordination of benefits provisions.

On October 1, 1977 the hospital notified Provident and Blue Cross by letter that both companies had paid, and requested each insurance company to examine its files as to the correctness of the payment. On October 11, 1977 Blue Cross notified the hospital that a refund would be requested due to the coordination of benefits provisions. On October 24, 1977 the hospital received written notification from Blue Cross demanding a refund in the amount of $453.00. This was done pursuant to a contract existing between the hospital and Blue Cross, Article III of which states:

3. In the event the Corporation through error or mistake of the Hospital, the Corporation, or any other person or entity makes payment to the Hospital for services for which the Corporation is not responsible under this Contract and the Corporation’s contract or agreement with the Member on whose behalf such payment is made, the Hospital upon the Corporation’s request shall refund such payment to the Corporation or shall, at the option of the Hospital, permit any sums paid through error or mistake to be deducted from any sums payable or reimbursable to the Hospital under this Contract for Health Care Services furnished to that or any other Member.

On October 27,1977 the hospital refunded $453.00 to Blue Cross and $30.00 to Mr. Rice. On October 25, 1977 a complaint was filed against the hospital by Mr. Rice resulting in this lawsuit. The hospital was served on October 27, 1977.

The decisive issue on appeal before this court is whether an action in conversion may be maintained for “monies.”

The general rule for conversion has been stated in Scott Paper Co. v. Novay Cherry Barge Service, Inc., 48 Ala.App. 368, 265 So.2d 150 (1972):

“. . . consisting in ‘ * * * either * * * the appropriation of the thing to the party’s own use and beneficial enjoyment, or in its destruction, or in exercising of dominion over it, in exclusion or defiance of the plaintiff’s right, or in withholding the possession from the plaintiff, under a claim of title inconsistent with his own.”

The plaintiff, Mr. Rice, maintains in his amended complaint that the defendant-hospital committed conversion by “converting the use and possession of property of the Plaintiff to the exclusion of the Plaintiff’s interests were willful and wanton, and in complete disregard of the Plaintiff’s proprietary interest in said property.”

The plaintiff further claims that Alabama law has established that money can be the subject of conversion, citing Hall v. Hall, 241 Ala. 397, 2 So.2d 908 (1941). Plaintiff also cites Ellis v. Zuck, 409 F.Supp. 1151 (N.D.Ala.1976), to support Hall, stating that the United States District Court did not make any mention of specificity or identification of the money in order to constitute conversion.

However, as defendant correctly points out, these two cases were premised on an earlier Alabama decision, Hunnicutt v. Hig-ginbotham, 138 Ala. 472, 35 So. 469 (1903), which, in quoting from an even earlier decision, stated the general rule, “ ‘. trover lies for the conversion of “earmarked” money or specific money capable of identification, i. e., money in a bag or coins or notes which have been intrusted to defendant’s care.’ ”

In 1941, the same year in which Hall was decided, the Alabama Supreme Court again reiterated the general rule that the action for “[tjrover lies only for wrongful appropriation of personal property specific enough to be identified.” Knox v. Moskins Stores, Inc., 241 Ala. 346, 2 So.2d 449 (1941).

The appellee cites Coffee General Hospital v. Henderson, Ala.Civ.App., 338 So.2d 1022 (1976), decided by this court, as similar to the case at bar, in which we held that the hospital had converted the plaintiff’s funds. However, even the appellee, Rice, in his brief points out the very factor which distinguishes Coffee from the present case.

In Coffee the court, in reference to the insurance policy, stated that “payment was to be made directly to the insured upon submission of proof of hospitalization. The form given to the hospital and signed by plaintiff for the Physicians Mutual policy did not contain an assignment of benefits.” In this case there was an assignment to the hospital by the plaintiff for payment from the insurance companies and the policies did not specify for direct payment to the insured. It should be noted also that the only issue in Coffee before this court was whether the jury verdict was excessive, which has not been brought up in this case.

Thus, as a matter of law, there was no conversion committed by Humana. This issue should not have been submitted to a jury, and Humana’s motion for directed verdict should have been granted.

As this court finds that there was no conversion involved, there is no longer an issue as to the reasonableness of time on the part of Humana in detaining the $31.00, nor is it necessary to discuss the third issue raised concerning punitive damages.

Accordingly, we find that the trial court erred to reversal in not granting Humana’s motion for directed verdict as there was no genuine issue as to any material fact supporting Mr. Rice’s complaint. Consequently, the judgment of the trial court is reversed and the cause remanded.

REVERSED AND REMANDED.

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


text:
    Ex parte Elvin P. RICE. In re HUMANA OF ALABAMA, INC., d/b/a North Alabama Hospital v. Elvin P. RICE.
    79-213.
    Supreme Court of Alabama.
    Jan. 25, 1980.
    Robert I. Rogers, Jr. of Bedford, Bedford & Rogers, Russellville, for petitioner.
    Robert E. Cooper, of Fine, McDowell & Cooper, Russellville, for respondent.
   SHORES, Justice.

By denying the petition, we should not be understood to reach the question of whether any claim for relief might have been alleged or proved under the Alabama Rules of Civil Procedure. That issue is not before us.

WRIT DENIED.

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


text:
    CITY CAR SALES, INC. v. Patricia A. McALPIN v. AMERICAN INSURANCE COMPANY.
    Civ. 1876-X.
    Court of Civil Appeals of Alabama.
    Oct. 31, 1979.
    Rehearing Denied Dec. 12, 1979.

      William B. Hairston, Jr., and R. Stephen Griffis, Birmingham, for appellant, City Car Sales, Inc.
    Edward L. Ramsey, Birmingham, for Patricia A. McAlpin, appellee-appellant.
    W. Lee Pittman, Birmingham, for American Ins. Co., appellee.
   BRADLEY, Judge.

The appellant, City Car Sales, Inc., appeals from the granting of the motion for summary judgment by the trial court in favor of Patricia McAlpin against City Car Sales, Inc., and the appellant, Patricia McAlpin, appeals from the summary judgment rendered in favor of American Insurance Company and against McAlpin.

On June 4, 1975 Patricia McAlpin and Samuel Martin, who were living together, purchased a 1972 Cadillac from City Car Sales, Inc. (hereinafter referred to as “City”). Ms. McAlpin is shown as the record purchaser. City had previously purchased the car from Robert Gaines on April 4,1975 for $2,600.00, the car carrying a 1975 Alabama license plate issued to Gaines on February 25,1975. Gaines had received the car and bill of sale from William Reynolds on February 19, 1975. The car loan was being paid through the Social Security Employees’ Credit Union. According to Mr. Martin’s deposition, he would give McAlpin the money to put in her checking account and she would then send the credit union a check.

Martin and McAlpin moved to California. Later they broke up and Martin returned to Alabama with the Cadillac as previously agreed upon. Approximately five weeks after returning to Alabama the car was picked up by the Bessemer Division of the Jefferson County Sheriff’s Office and impounded as a stolen vehicle. McAlpin flew back from California to help Martin obtain the release for the car. She furnished the bill of sale for the Cadillac and issued a power of attorney authorizing the release of the car to Martin. There is no evidence as to whether the sheriff’s department determined the car to be stolen or not. There is only a statement by Jim Bailey, the owner of City, in an affidavit in opposition to summary judgment, that it was determined by the department that the vehicle had not been stolen. The record does reflect that the car was released to Martin after he paid the storage cost. A few months after this, Martin received a call 'from American Insurance Company claiming her car. Martin stated in his deposition that he told the company to come and get the car but that it was his. The car was reclaimed and henceforth has been sold. American claims title to the car through Delores Damveld, Oscar Penson and Hampton National Bank of St. Louis, Missouri, the claim arising from payment for loss of the car through theft to these three parties. American claims the car was assigned to it on May 19, 1975 and that it received title from the state of Missouri around July 21, 1975 thus permitting it to trace title through an unbroken chain back to the automobile’s original owner.

McAlpin has brought two causes of action: one against City for breach of warranty and one against American for conversion of the Cadillac. The trial court granted McAlpin’s motion for summary judgment against City for breach of warranty with leave to prove damages against City which were later found to be $2,786.87. Summary judgment was also granted in favor of American Insurance Company against McAlpin, holding that American had not converted the car.

The appellant, City, urges that the following issues should have been litigated by the trial court: (1) whether City had in fact good title, therefore not constituting breach of warranty; and (2) whether McAlpin is a real party in interest under Rule 17 of the Alabama Rules of Civil Procedure. City states that McAlpin has assigned her rights, title and interest in the car, including the warranties, and that she cannot now maintain an action for this breach. City also contends that the trial court erred in determining damages incurred by McAlpin.

This court follows the scintilla of evidence rule that if there is any evidence, or if reasonable inferences therefrom furnish a mere gleam, glimmer, spark, the least bit, the smallest trace, a scintilla, in support of the theory of the complaint, the issue should be litigated. Union Central Life Insurance Co. v. Scott, 286 Ala. 10, 236 So.2d 328 (1970).

City’s first contention is that it transferred a good title to the Cadillac and therefore McAlpin cannot make out a. case for breach of warranty of title against City.

The Uniform Commercial Code, specifically § 7-2-312 of the Code of Alabama 1975, provides a buyer with a warranty of title. The official comment to § 7-2-312 states that this section provides for a buyer’s basic needs as to title, that being a good, clean title transferred to him in a rightful manner .so that he will not be forced to defend the title in a lawsuit. In the present case it is undisputed that the Cadillac purchased by McAlpin from City was impounded by the American Insurance Company. American seized the vehicle based upon a certificate of title issued by the state of Missouri. McAlpin brought this lawsuit to protect her interest in the automobile.

The official comment to § 7-2-312 provides:

The warranty of quiet possession is abolished. Disturbance of quiet possession, although not mentioned specifically, is one way, among many, in which the breach of the warranty of title may be established.

A number of courts have found breach of warranty of title in the loss of the buyer’s property where it was impounded by law enforcement officials. Trial v. McCoy, 553 S.W.2d 199 (Tex.Civ.App.1977); Ricklefs v. Clemens, 216 Kan. 128, 531 P.2d 94 (1975); Spillane v. Liberty Mutual Insurance Co., 65 Misc.2d 290, 317 N.Y.S.2d 203 (1970), aff’d 68 Misc.2d 783, 327 N.Y.S.2d 701 (1971); American Container Corp. v. Hanley Trucking Corp., 111 N.J.Super. 322, 268 A.2d 313 (1970); John St. Auto Wrecking v. Motors Insurance Corp., 56 Misc.2d 232, 288 N.Y. S.2d 281 (1968).

The casting of a substantial shadow over a purchaser’s title to an automobile is sufficient to violate a warranty of good title. Ricklefs v. Clemens, supra; American Container Corp. v. Hanley Trucking Corp., supra.

We believe the evidence as noted above and as relied on by us in the disposition of McAlpin’s appeal establishes a breach of warranty of title under § 7-2-312 so that a material issue of fact does not exist. Therefore we affirm the trial court’s decision granting a summary judgment in favor of McAlpin.

The appellant, City, next contends that McAlpin is not the real party in interest, and for that reason, cannot maintain an action for breach of warranty of title. We cannot agree. The bill of sale received upon purchase of the Cadillac was in Patricia McAlpin’s name. Samuel Martin admitted that the payments on the loan for the vehicle were made through McAlpin’s checking account. Martin stated that the loan for the vehicle was obtained from the credit union where McAlpin was employed, and that the loan was in McAlpin’s name. The Cadillac was also registered in McAl-pin’s name. Martin does contend, however, that he participated in the purchase with McAlpin, that he furnished the money for the first six or seven payments, and that he received the vehicle in an oral settlement when he and McAlpin broke off their relationship.

The effect of Rule 17(a), ARCP, is that the action must be brought by the person who is entitled to enforce the right claimed therein. U-Haul Company of Alabama v. Turner, Ala.Civ.App., 355 So.2d 384 (1978). Who has such right is a matter of substantive law of the particular jurisdiction. 6 Wright & Miller, Federal Practice and Procedure, § 1543. We believe that McAlpin is the “real party in interest” within the meaning of Rule 17(a), ARCP. The evidence establishes that McAlpin purchased the Cadillac and has not since relinquished ownership, and therefore is entitled to bring an action for breach of warranty of title against City under § 7-2-312 of the Code of Alabama 1975.

City’s final contention is that the trial court erred in determining the amount of damages for breach of warranty of title. The trial court determined the value of the vehicle based upon its value on the retail market. A used car dealer testified that he had sold the Cadillac for $2,600 three months after it had been impounded by American. The dealer also testified that he spent $150 preparing the vehicle for sale. The trial court awarded McAlpin $2,786.87 in damages, that being the retail value of the vehicle less repairs plus interest from the date American impounded the vehicle.

The measure of damages for breach of warranty is found in Code of Alabama 1975, § 7-2-714(2), wherein it is stated:

(2) The measure of damages for breach of warranty is the difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been as warranted, unless special circumstances show proximate damages for a different amount .

This provision requires that the values used in determining money damages are to be measured as of “the time and place of acceptance,” unless special circumstances indicate damages in a different amount.

McAlpin had use of the vehicle for a period of time after sale without any notice of a defective title. We believe this constitutes “special circumstances” and takes the case out of the “time and acceptance” provision of § 7-2-714(2). Ricklefs v. Clemens, supra. Therefore the correct measure of damages for breach of warranty of title was the value of the vehicle at the time that the buyer effectively lost use of it, and not the sale price of the vehicle at the time of the sale by City Sales to McAlpin. Schneidt v. Absey Motors, Inc. v. Ramage, 248 N.W.2d 792 (N.D.1976). In this way, the buyer will recover what he has “actually lost.” Itoh v. Kimi Sales, Ltd., 74 N.Y.2d 402, 345 N.Y.S.2d 416 (1973).

We believe the trial court applied the correct measure of damages. The court determined, as nearly as possible, the value of the vehicle at the time of dispossession, and awarded McAlpin interest from that date. Therefore, we can find no error with the trial court’s award of damages.

McAlpin has appealed the trial court’s granting of a summary judgment in favor of American on her action for conversion.

In order to recover for conversion, the plaintiff must show legal title to the property at the time of the conversion and his immediate right of possession. Johnson v. U-Haul of Southern Alabama, Inc., Ala.Civ.App., 357 So.2d 665 (1978). In addition, it must appear that there has been a wrongful taking or detention. Johnson, supra.

McAlpin has not been able to show legal title at the time of the alleged conversion. American introduced a certificate of title from Missouri showing an unbroken chain of title to the automobile from the original purchaser to American. It is understood that a certificate of title is only prima facie evidence of ownership, which can be contradicted by other evidence. Case v. Universal Underwriters Insurance Co., 534 S.W.2d 635 (Mo.App.1976); Wielgorecki v. White, 133 Ga.App. 834, 212 S.E.2d 480 (1975). See Alabama Code 1975, § 32-8-39(d). However, McAlpin’s only evidence to support her claim of legal title in the automobile was a bill of sale from City and a license registration from the state of Alabama. But see, State Farm Mutual Automobile Insurance Co. v. General Mutual Insurance Co., 282 Ala. 212, 210 So.2d 688 (1968). This evidence does not contradict American’s certificate of title which indicates that the chain of title to the Cadillac is unbroken and that American is the present owner. McAlpin has not established legal title to the Cadillac and therefore cannot recover for conversion. We view the evidence as presenting no genuine issue of material fact. Therefore, we affirm the trial court’s granting of American’s motion for summary judgment.

For the foregoing reasons, this case is due to be affirmed.

AFFIRMED.

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