author: EMBRY, Justice.

text:
    Ex parte CITY OF FLORENCE, Alabama, a Municipal Corporation, et al. In re Britt HENDON, et al. v. CITY OF FLORENCE.
    80-405.
    Supreme Court of Alabama.
    May 7, 1982.
    Rehearing Denied June 11, 1982.

      Frank V. Potts of Potts, Young & Blasin-game and Arnold Teks, Florence, for petitioners.
    J. Wm. Thomason of Thomason & Russell, Bessemer, Clarence M. Small of Rives, Peterson, Pettus, Conway, Elliott & Small, Birmingham, Charles D. Rosser of Rosser & Munsey, Tuscumbia, for respondent.
   EMBRY, Justice.

We granted the writ of certiorari in this case to review the reversal by the Court of Civil Appeals, 417 So.2d 186, of a summary judgment entered by the Circuit Court of Lauderdale County against twenty-eight City of Florence police officers, who had appealed de novo to the circuit court their dismissal by the Civil Service Board of the City of Florence on charges filed against them by the Chief of Police of the City of Florence.

The Court of Civil Appeals determined that there were no genuine issues of material fact to prevent summary judgment as to: “(1) whether the policemen committed acts justifying adverse personnel action; (2) whether the terminations were motivated by a desire to suppress the policemen’s First Amendment right of association with a union; and (3) whether the policemen were afforded procedural due process.” However, the Court of Civil Appeals reversed summary judgment on the basis that the issue of punishment was a question for the jury, even though holding that the undisputed facts justified disciplinary action as a matter of law.

On certiorari, we are concerned only with whether the Court of Civil Appeals erred in reversing summary judgment on the issue of punishment. Although the briefs of the twenty-eight policemen address other issues decided below, those issues are not properly before this court.

Before addressing whether the issue of punishment precluded summary judgment against the police officers, we look to the underlying facts and progression of this case summarized by the Court of Civil Appeals, as follows:

“As stated above, this appeal arises out of the dismissal of twenty-eight policemen. Those twenty-eight policemen, and six others, went on strike on December 5, 1979. On December 7, the chief issued written orders for the strikers to return to work. The orders stated that the policemen would be suspended if they did not ‘return to work at 7:00 o’clock a. m., CST, Monday, December 10, 1979.’
“On December 10 at 2:00 P.M., strike representatives met with other union representatives and city officials and the deadline for returning to work was extended until 11:00 P.M. on the 10th. Six strikers returned to work before the extended deadline expired; they were not punished.
“On December 11, the chief mailed termination letters to the remaining strikers. On December 18, the chief, pursuant to the rules and regulations of the Florence Civil Service Board, filed six formal charges against each striker. An eviden-tiary hearing was held on January 28; all of the striking policemen were present or represented at the January 28th hearing. The Civil Service Board affirmed the termination on January 29.
“Pursuant to Act No. 1619, Acts of Alabama 1971, the policemen appealed to the Lauderdale County Circuit Court for a jury trial de novo on February 8. Attached to the notices of appeal were copies of the board’s decision in each case. The city filed a motion to dismiss, which was later denied. The city then filed a motion for summary judgment and attached the affidavits of the police chief and the city commissioner in charge of the police department. A transcript of the board’s hearing was also attached. In response to the motion, the policemen offered the affidavit of Sergeant John Baugh. The circuit judge, based on the evidence before him, found that there was no material fact at issue and granted the city’s motion for summary judgment.”

The rationale employed by the Court of Civil Appeals in its determination that summary judgment was improper, was stated as follows:

“Act No. 1619 provides for an appeal from the Civil Service Board’s action by trial de novo in the circuit court. The Act further provides for trial by jury on demand. A trial de novo is a new trial in which the whole case is gone into as if no prior proceedings had occurred. Alabama Equity Corp. v. Hall, 46 Ala.App. 143, 239 So.2d 215, cert. denied, 286 Ala. 731, 239 So.2d 220 (1970). It is clear that the Civil Service Board on appeal may substitute its judgment regarding punishment for that of the police chief. Rules and Regulations of the Civil Service Board of Florence, Alabama, Chapter IV, § 3. Because Act No. 1619 provides for a trial de novo wherein a jury may consider the entire case a jury may determine the question of appropriate punishment, if properly raised, and substitute its judgment on that question for that of the Civil Service Board. Smith v. Civil Service Board of the City of Florence, supra [52 Ala.App. 44, 289 So.2d 614 (1974)].
“Where a party appeals pursuant to Act No. 1619 and demands a jury, such as we have in this instance, the question of punishment is a question for the jury. For the reasons stated above, we find that the trial judge erred in granting the board’s motion for summary judgment on this ground.”

The implied reference to the police chief’s discretion to determine punishment, and the direct reference to the Civil Service Board’s authority to substitute its judgment of appropriate punishment for that of the police chief, are more fully understood in light of an earlier passage in the opinion, which reads:

“. .. The Manual of Rules and Regulations of the Police Department of the City of Florence provides, inter alia, that members of the department are subject to disciplinary action for absence from duty without leave or authorized permission and for failure to comply with oral or written orders. Manual, supra, § 3.35.13.33; § 3.37.11. The Manual also provides that members who are found guilty of violating a rule, regulation or order ‘shall be subject to reprimand, suspension, dismissal, or suffer such other disciplinary action as the Chief of Police may impose.’ Manual, supra, § 3.35.13.
“The Rules and Regulations of the Civil Service Board of Florence, Alabama provide, inter alia, that when ‘the head of any department or office suspends, removes, discharges or demotes any employee,’ the employee may appeal to the board. Rules and Regulations, supra, Chapter IV, § 1. If the board finds the employee guilty of the charges, the employee ‘shall be subject to reprimand, suspension, discharge or suffer such other lawful punishment as the Civil Service Board may direct.’ Id. Chapter IV, § 3.
“.. . The policemen’s actions clearly made them subject to discipline and both the chief of police and the board had the authority to dismiss them.”

It is axiomatic that administrative rules and regulations must be consistent with the constitutional or statutory authority by which their promulgation is authorized. See C. Sands, Sutherland Statutory Construction § 31.02 (4th ed. 1973), “A regulation . . . which operates to create a rule out of harmony with the statute, is a mere nullity.” Lynch v. Tilden Produce Co., 265 U.S. 315, 44 S.Ct. 488, 68 L.Ed. 1034 (1924). This is because an administrative board or agency is purely a creature of the legislature, and has only those powers conferred upon it by its creator. Woodruff v. Beeland, 220 Ala. 652, 127 So. 235 (1930).

The rules and regulations of the Police Department and the Civil Service Board, referred to supra, granting discretionary disciplinary authority to the Chief of Police and Civil Service Board respectively, must be examined in light of Act No. 437, Acts of Alabama 1947, the legislation which created the Civil Service Board of the City of Florence and placed the Police Department, among others, under its authority. The pertinent provisions of Act No. 437 read:

“1. Police and Fire Departments under civil service: The Board of Commissioners of the City of Florence is authorized and empowered at any time subsequent to the enactment of this statute to put into force and effect an ordinance or ordinances governing the Police and Fire Departments of said City as provided in the act; but this act shall have no effect excepting as an authority for the City of Florence to take such action. The Police Department and the Fire Department and all officers and members of said Departments, in Florence, Alabama, including the chiefs of said Departments, shall be governed by civil service regulations under the direction and supervision of a board as hereinafter provided, and all persons who may hereafter be elected or appointed as officers or members of such Departments, or either of them, or who may hereafter be employed in either of said Departments as members thereof, shall thereafter remain and continue in their respective employments of said City during good behavior, efficiency and obedience to such reasonable rules and regulations as may, from time to time, be prescribed by the civil service board, which is herein provided for, and as is hereafter provided. Nothing herein contained shall be construed to prevent or preclude the removal of any officer or member of either of said Departments by the civil service board in the manner hereafter prescribed.
“4. Board to make rules and regulations: The civil service board shall make rules and regulations to carry out the purpose of this article, and for examinations, appointments and removals in accordance with its provisions and the board may, from time to time, make changes in the existing rules.. . . The chief of the Police Department and the chief of the Fire Department shall have authority in their respective Departments to demote any member of the respective Departments by and with the consent and approval of the civil service board, provided however, that upon written demand filed with the civil service board within five days from the date of the order of demotion the person whom it is proposed to demote shall be given a public hearing by the civil service board before any order of demotion shall be final. The chief of the Police Department and the chief of the Fire Department shall have authority to suspend any member of their respective Departments pending the hearing by the civil service board. . . .
“14. Violations: Any person in the service of the City by appointment under civil service rules who shall wilfully, or through culpable negligence, violate any of the provisions of this article, and who shall be found guilty after a trial before the civil service board shall be dismissed from the service of the City, and shall not be subject to reappointment for two years.. . . ” (Emphasis added.)

Of acute significance is the mandatory language of Section 14 which declares that any city employee governed by civil service rules “shall be dismissed” for a willful or culpably negligent violation of the provisions of the article. (It is quite apparent that the phrase “this article” is used synonymously with “this act” throughout Act No. 437.)

The provisions of the act subject to violation include, as stated in Section 1, “good behavior, efficiency, and obedience to such reasonable rules and regulations as may, from time to time, be prescribed by the civil service board.”

Consequently, when an individual governed by the act is found to have violated these rules and regulations “willfully or through culpable negligence,” the mandatory punishment is dismissal from service with the city. To the extent that the rules and regulations in question purport to grant to the chief of police and Civil Service Board the discretionary authority to impose various types or degrees of punishment, those rules and regulations are void as in conflict with the provisions of Act No. 437, where it is found that the violation supporting disciplinary action was committed willfully or through culpable negligence.

This is not to say, however, that the chief of police and civil service board do not have discretionary power to determine appropriate punishment where there is a simple finding of a rules infraction, unaccompanied by a finding that the violation occurred willfully or through culpable negligence.

We note, nevertheless, that whatever discretionary powers of punishment the chief of police may possess, they do not include the authority to dismiss a police officer governed by the act. Such an individual may be dismissed from city service only when he or she has been “found guilty after a trial before the civil service board.”

The last sentence of Section 1 states: “Nothing herein contained shall be construed to prevent or preclude the removal of any officer ... by the Civil Service Board in the manner hereinafter prescribed.” The first sentence of Section 4 provides the board with authority to “make rules and regulations to carry out the purpose of this article, and for . .. removals in accordance with its provisions.. .. ” It is fundamental that procedures by which disciplinary sanctions are imposed must comport with statutory requirements. C. Rhyne, The Law of Local Government Operations, § 13.14 (1980).

The remaining question is whether the twenty-eight police officers were dismissed for violations committed willfully or through culpable negligence. Regarding the actions of the police officers which gave rise to disciplinary measures against them, the Court of Civil Appeals found:

“It is undisputed that thirty-four policemen went on strike and were therefore absent without leave, which is a violation of the rules and regulations of the police department. It is also undisputed that twenty-eight policemen failed to return to work when ordered to do so by the chief of police, which is also a violation of the department’s rules and regulations .. . . ”

The Court of Appeals did not specifically address the question of whether the violations were committed willfully or through culpable negligence. However, because the evidence concerning the infractions is undisputed, we may examine the record for purposes of clarification and resolve that question.

In Life Insurance Company of Georgia v. Miller, 292 Ala. 525, 296 So.2d 900 (1974), this court observed:

“. .. The Supreme Court will ordinarily review the courts of appeals only on questions of law and not upon the findings of fact or the application of the law to the facts except as to the facts as are stated in the opinion so that a review may be effected without an examination of the record filed in a court of appeals. E. g. Union Camp Corp. v. Blackmon, 289 Ala. 635, 270 So.2d 108 (1972); In Re Russell-ville Gas Co. v. Duggar, 288 Ala. 309, 260 So.2d 395 (1972).
“However, there do appear to be some exceptions to these general propositions. Most important is the rule which states that where there is no dispute about the facts, this court may go to the record for a complete understanding of questions treated in the opinion of a court of appeals. Liberty Mut. Ins. Co. v. Manasco, 271 Ala. 124, 123 So.2d 527 (1960); South- era Ry. v. Terry, 268 Ala. 510, 109 So.2d 919 (1959)....”

Concomitantly with its summary judgment, the trial court issued an outstanding memorandum opinion, which has been very helpful to our understanding and resolution of the issues presented. Excerpting from that memorandum opinion, we note the following findings of fact by the trial court, amplifying those of the appellate court:

“It is clear from the evidence before the Court that all of the plaintiffs knew they were subject to dismissal by the Chief of Police for failure to obey his order to return to work, and from being absent from duty without permission.... The undisputed facts support the conclusion that the plaintiffs, through their representatives at the meeting held in the auditorium of City Hall on December 10 [with union and city officials], and their possession of the Police Department manual, were fully informed of the consequence of their remaining out on strike against the city, and had full opportunity to discuss the implications of their conduct with the City Administrators prior to further action being taken against them. Indeed, as mentioned above, as a result of the memorandum of the Chief of Police, set out above, and the meeting held on April [sic, December] 10, six of the striking employees returned to work and were not discharged. At the meeting, Sgt. Baugh was asked whether or not he and the other officers would come back to work before the extended deadline, and they said ‘No’. It is undisputed that each of the plaintiffs ignored Chief Bailey’s order to return to work, and remained on strike.”

It is clear from the undisputed evidence that the police officers’ absence from work was, at some point, due to their willful refusal to return to work after being ordered to do so. By willfully refusing to return to work, each officer subjected himself to mandatory dismissal under Act 437.

With dismissal expressly required by the act, there was no issue of punishment to be considered by the civil service board, nor by the jury on de novo appeal to circuit court. Accordingly, the trial court correctly entered summary judgment because there was no genuine issue as to any material fact for the jury’s determination. Campbell v. Alabama Power Co., 378 So.2d 718 (Ala.1979).

We wish to emphasize that our decision does not hinge on a reevaluation of the Court of Civil Appeals’ findings of fact, but rather on a review of its application of law to the undisputed facts. As this court said in Life Insurance Company of Georgia v. Miller, supra:

“The court may not and will not enter into a redetermination of facts when those facts are set out in the opinion of the Court of Civil Appeals, but after having gone to the record for a better understanding of the facts not in dispute, it is within the scope of review for this court to determine whether the application of the law to facts was in error.... ”

For the foregoing reasons, the decision of the Court of Civil Appeals is reversed and that court is hereby directed to enter its judgment consistent with this opinion. REVERSED AND REMANDED.

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

MADDOX and ALMON, JJ., not sitting.


source: Caselaw Access Project

author: HOLMES, Judge.

license: Public Domain

text:
    Britt HENDON, et al. v. CITY OF FLORENCE.
    Civ. 2598.
    Court of Civil Appeals of Alabama.
    July 7, 1982.
   HOLMES, Judge.

The prior opinion of this court, 417 So.2d 186, has been reversed and remanded by the Supreme Court, 417 So.2d 191. On remand to this court, and in compliance with the Supreme Court’s opinion of May 7, 1982, this cause is now affirmed.

AFFIRMED.

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


text:
    Odis BEST v. STATE of Alabama DEPARTMENT OF REVENUE.
    Civ. 2752.
    Court of Civil Appeals of Alabama.
    Aug. 12, 1981.
    Rehearing Denied Sept. 9, 1981.
    Certiorari Quashed, July 30, 1982
    Alabama Supreme Court 80-917.
    Alvin T. Prestwood and Claude P. Rosser, Jr., Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., Herbert I. Burson, Jr., and Bill Thompson, Counsel, Dept, of Revenue and Asst. Attys. Gen., for appellee.
   HOLMES, Judge.

This is an income tax case.

The taxpayer filed with the Alabama Department of Revenue a petition for refund of a portion of the income taxes he paid in 1978. The taxpayer contends that he incurred a deductible loss on the transfer of certain real estate in December of 1978 and that he is entitled to a refund for taxes paid in connection with that transfer. The revenue department denied the taxpayer’s petition.

The taxpayer, pursuant to § 40-18-48, Code of Ala. 1975, then instituted a mandamus proceeding in circuit court. After hearing the evidence, the trial judge denied the taxpayer’s petition for a writ of mandamus. The taxpayer now appeals from the circuit court’s denial of the writ and we affirm.

The record reveals the following pertinent facts:

On May 18, 1976, the taxpayer and his wife purchased 100 acres of land from Mrs. Elsie B. Estes for $7,160. On August 26, 1976, the taxpayer and his wife conveyed 20 acres of the land to their son, Mickey Best. That same day Mickey conveyed the 20 acres to Mrs. Lee Stephens for $9,000.

In November of 1976, Mrs. Estes filed suit against the taxpayer for fraud and misrepresentation in connection with the taxpayer’s purchase from her of the 100 acres. The taxpayer then filed a counterclaim, alleging defective title.

Here, we note that at the time the taxpayer Best bought the land from Mrs. Estes, he was the Montgomery District Supervisor for the revenue department and had conducted an income tax audit on Mrs. Estes. Mrs. Estes had apparently failed to pay her income taxes and the taxpayer Best recommended that the department issue a tax lien on her property. After the tax lien was placed on the property, the taxpayer Best bought the 100 acres from Mrs. Estes.

After the lawsuit was filed, the taxpayer began negotiations with Mrs. Stephens to repurchase the 20 acres she had bought. In February of 1977, the taxpayer succeeded in repurchasing the 20 acres from Mrs. Stephens for $10,150.

The taxpayer then conveyed the full 100 acres back to Mrs. Estes in consideration of only $4,100 and Mrs. Estes’ agreement to terminate the lawsuit.

In June of 1980, the taxpayer filed a petition for a refund in the amount of $406.54 for taxes paid in connection with the transfer of the 100 acres to Mrs. Estes in 1978. The taxpayer contended that the transaction was one entered into for profit, that he actually incurred a loss on the transaction, and that he was therefore entitled to a deduction under § 40-18-15(a)(5), Code of Ala. 1975.

The dispositive issue in this case is whether the trial court erred in sustaining the revenue department’s determination that the transfer of the 100 acres back to Mrs. Estes was not a transaction entered into for profit under § 40-18-15(a)(5). If the transaction was not one entered into for profit, any loss incurred by the taxpayer in this case would not be deductible.

Our research fails to reveal any Alabama case law directly on point. However, where Alabama’s income tax statutes have been patterned after federal statutes, federal case law construing those statutes are persuasive authority. State v. Gulf Oil Corp., 47 Ala.App. 434, 256 So.2d 172, writ quashed, 288 Ala. 752, 256 So.2d 179 (1971). Section 40-18-15(a)(5) is clearly modeled after 26 U.S.C. § 165(c)(3). Compare § 40-18-15(a)(5), Code of Ala. 1975, with 26 U.S.C. § 165(c)(3). Therefore, federal case law construing the language found in 26 U.S.C. § 165(e)(3) is pertinent here. See, State of Alabama Income Tax Law and Regulations, Reg. 15.15 (Feb.1979).

It is clear that the determination of whether a transaction was entered into for profit is one for the fact finder. United States v. Keeler, 308 F.2d 424 (9th Cir. 1962), cert. denied, 373 U.S. 932, 83 S.Ct. 1534, 10 L.Ed.2d 689 (1963). More specifi cally, the fact finder must consider the taxpayer’s state of mind and make the determination “with reference not to hard and fast rules, but to the facts developed in each particular case.” Keeler, supra, at 434.

In the instant case, the trial judge found that the transfer of the 100 acres back to Mrs. Estes was not entered into for profit. He further found that the transfer was negotiated and entered into for the personal reason of settling the lawsuit which Mrs. Estes had filed against him.

We note that in an appeal from the trial judge’s denial of a writ of mandamus, such as we have here, we must indulge all reasonable presumptions in favor of the correctness of the judgment appealed from. Anderson v. Mullins, 281 Ala. 609, 206 So.2d 856 (1967). Accord, Segars v. Segars, Ala. Civ.App., 338 So.2d 155 (1976).

The evidence in this case clearly supports the trial court’s finding that the instant transaction in toto was not one entered into for profit. As shown above, the taxpayer repurchased 20 acres of land from Mrs. Stephens for $10,150, or $1,150 more than the price Mrs. Stephens had paid. He then conveyed the full 100 acres to Mrs. Estes in consideration of only $4,100 and Mrs. Estes’ agreement to terminate the lawsuit. The reasonable inference from these facts is that the taxpayer took these actions not with the intention of making a profit, but with the intention of settling the lawsuit which Mrs. Estes had filed against him. Under the facts, this intention is certainly understandable. As a consequence, we find no error on the part of the trial court in this regard.

In view of the above, any discussion of other issues raised on appeal is pretermit-ted.

This cause is due to be and is hereby affirmed.

AFFIRMED.

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


text:
    SLIMFOLD MANUFACTURING COMPANY v. Joyce A. MARTIN.
    Civ. 2710.
    Court of Civil Appeals of Alabama.
    Dec. 9, 1981.
    Rehearing Denied Dec. 29, 1981.

      Lyman H. Harris and Judy C. Whalen of Lorant, Harris & Yearout, Birmingham, for appellant.
    Jere C. Segrest of Hardwick, Hause & Segrest, Dothan, for appellee.
   HOLMES, Judge.

This is a workmen’s compensation case.

Pelham A. Martin, an employee of Slim-fold Manufacturing Company, died as a result of an injury which occurred at his place of employment. Joyce A. Martin, Martin’s widow and appellee, brought this action to recover benefits under the Workmen’s Compensation Act of Alabama. The learned trial judge, after an ore tenus hearing, concluded that Martin’s death was compensable under the Workmen’s Compensation Act and awarded benefits to Mrs. Martin accordingly. Slimfold Manufacturing Company appeals from this judgment contending generally that Martin’s death was not a compensable claim under the Workmen’s Compensation Act and the trial court committed reversible error in holding that the death was compensable.

The record reflects that Martin had been employed at Slimfold Manufacturing Company since July, 1978. On the afternoon of February 20,1980, Martin attended a safety meeting at Slimfold. Upon leaving the meeting, Martin -walked to another room and engaged in casual conversation while waiting to use the copy machine. While there he fell and struck his head on the floor.

After calling paramedics, Martin was transported to Southeast Alabama Medical Center. He was subsequently diagnosed as having a massive right subdural hematoma. This condition was surgically treated. However, Martin died on March 11,1980, of acute cardiopulmonary failure secondary to intracranial pressure which was caused by the subdural hematoma.

The evidence offered to explain Martin’s fall was inconclusive. None of Martin’s co-workers witnessed him fall. Martin himself, who regained consciousness sometime after the fall, could offer no explanation for the incident. Appellant-Slimfold offered much evidence to indicate that Martin’s fall was due to a fainting spell caused by his condition of cirrhosis of the liver. A doctor, however, testifying through deposition, stated that Martin’s memory of the event after the fall would be compatible with a slip and fall.

The trial court found that the cause of the fall was not clearly determined. The court concluded, however, that the fall itself met the definitional requirement for "accident” as set out in the Workmen’s Compensation Act.

On appellate review, a workmen’s compensation judgment must be affirmed if there is any legal evidence to support the finding of fact by the trial judge and if the correct law was applied to such facts. City of Tuscaloosa v. Howard, 55 Ala.App. 701, 318 So.2d 729 (1975). As indicated above, there is evidence to support the trial court’s conclusion that the cause of the fall was unexplained. Consequently, this court is bound by that finding. The issue remains, however, as to whether the correct law was applied.

This court has never been confronted with the issue of the compensability of unexplained falls. We note at the outset, however, that in order for an accident or death to be compensable under the Workmen’s Compensation Act, the following two requirements must be met: (1) the accident or death must arise out of the employment and (2) the accident or death must occur in the course of employment. McKnight v. Consolidated Concrete Co., 279 Ala. 430,186 So.2d 144 (1966); Anderson v. Custom Caterers, Inc., 279 Ala. 360, 185 So.2d 383 (1966). In the case before us, there is no dispute that Martin’s fall occurred in the course of employment. The primary issue in this case is one of causation, i.e., did Martin’s fall “arise out of” his employment.

Though an issue of first impression in Alabama, the unexplained fall problem has been addressed in numerous other states. According to Professor Larson, the majority of courts that have addressed the issue have awarded compensation. 1 A. Larson, The Law of Workmen’s Compensation § 10.31 (1978). E.g., American Mutual Liability Insurance Co. v. King, 88 Ga.App. 176, 76 S.E.2d 81 (1953); Coomes v. Robertson Lumber Co., 427 S.W.2d 809 (Ky.App.1968); Slizewski v. International Seafood, Inc., 46 N.C.App. 228, 264 S.E.2d 810 (1980). Most of the courts that allow compensation in unexplained fall cases take the position that the causation requirement is satisfied by the fact that the claimant’s employment placed him in the particular place at the particular time when he was injured. See Cutler-Hammer, Inc. v. Industrial Commission, 5 Wis.2d 247, 92 N.W.2d 824 (1958). This reasoning is categorized by Larson as the but-for test of causation or the positional risk doctrine. 1 A. Larson, supra, § 6.50.

A substantial minority of courts have, however, denied compensation in unexplained fall cases. 1 A. Larson, supra, § 10.31. E.g., Finn v. Industrial Commission, 165 Colo. 106, 437 P.2d 542 (1968); Bagwell v. Ernest Burwell, Inc., 227 S.C. 444, 88 S.E.2d 611 (1955); Nielsen v. Industrial Commission, 14 Wis.2d 112, 109 N.W.2d 483 (1961). The courts that deny compensation in unexplained fall cases obviously do not accept the but-for test of causation. Instead, these courts require the claimant to establish a definite causal connection between the work and the fall.

As noted earlier, no Alabama appellate court has specifically addressed the causation issue in the context of an unexplained fall ease. There have been, however, numerous decisions dealing generally with the causation requirement of the Workmen’s Compensation Act. These prior decisions are not compatible with a but-for causation test.

This court has discovered two Alabama decisions that are particularly pertinent when considering the acceptance of but-for reasoning as the test of causation under Alabama’s Workmen’s Compensation Act. Both cases are factually similar in that they involve claims for workmen’s compensation benefits arising out of automobile accidents. In Wooten v. Roden, 260 Ala. 606, 71 So.2d 802 (1954), the employee was injured en route to a company Christmas party while a passenger in his employer’s automobile. Though our supreme court engaged in an extensive discussion of causation, it did not specifically discuss the but-for causation test. It did, however, cite with approval F. Becker Asphaltum Roofing Co. v. Industrial Commission, 333 Ill. 340, 164 N.E. 668, 670 (1928). In that case the Illinois Supreme Court stated that: “It is not enough that the injured person may be present at the place of the accident because of his work, unless the injury is the result of some risk of the employment.” As was recognized by this court in Wiregrass Comprehensive Mental Health Clinic, Inc. v. Price, 366 So.2d 725 (Ala.Civ.App.1978), cert. denied, 366 So.2d 728 (Ala.1979), the above quoted language is the antithesis of but-for reasoning. Wiregrass involved an employee who was killed in a car-train collision while en route to a restaurant for lunch. The trial judge granted summary judgment for the claimant reasoning that “but for Price’s employment ... he would not have been where he was at the time of his death .... ” This court reversed the trial judge. In so doing this court construed the supreme court’s acceptance of the language of the Illinois Supreme Court as a denial of the but-for principal.

While the above two cases may not be controlling in this case due to factual dissimilarities, they indicate the reluctance of Alabama appellate courts to accept but-for reasoning as a test of causation in workmen’s compensation actions. Instead, in Alabama the employment must be the source and cause of the accident. Our supreme court in Wooten v. Roden, 260 Ala. at 610, 71 So.2d at 805, stated that in order to satisfy the “source and cause” requirement “the rational mind must be able to trace the resultant injury to a proximate cause set in motion by the employment and not otherwise .... ” The causation requirement was further elucidated in City of Tuscaloosa v. Howard, supra. There, Presiding Judge Wright, speaking for this court, stated:

If in the performance of the duties for which he is employed an employee is exposed to a danger or risk materially in excess of that to which people not so employed are exposed, and an injury occurs, such injury may legally be determined to have arisen from his employment and be an accident under the statute. Such can be the legal test of causation. .. .

55 Ala.App. at 705, 318 So.2d at 732.

In the instant case, the appellee offered some evidence in an attempt to establish the causal connection between the work and the fall. After hearing the evidence the trial court concluded that the cause of the fall was not determined. Thus, the evidence was apparently insufficient to convince the trial court that the employment was the proximate cause of the fall. Stated differently, the appellee was unable to prove that Martin’s employment exposed him to a “danger or risk materially in excess of that to which people not so employed are exposed.”

The appellee, through able counsel, places much reliance upon Irby v. Republic Creosoting Co., 228 F.2d 195 (5th Cir. 1955). That case involved a worker who was injured at work after falling off of a three foot platform due to an epileptic seizure. The Fifth Circuit held that the worker’s injuries were compensable. In closing, the court stated that even “[i]f appellant’s fall had been unexplained .. . there would be no question that his consequent injuries were compensable.” Irby, supra, at 198.

This case, however, is dubious authority for two reasons. First of all, the above quoted language must be analyzed within the context of the factual situation. As stated above, the claimant in Irby, at the time of his fall, was working on a three foot platform. Thus, the conditions under which he worked exposed him to a definite hazard not encountered by persons not so employed. The Fifth Circuit apparently recognized this by holding that the conditions of the claimant’s employment supplied the causal connection between the claimant’s work and his injury. Therefore, in Irby, even if the reason for the claimant’s fall was unexplained, the conditions of his employment would have been the same and would have supplied the causal connection. In the instant case, at the time of his fall, Martin was exposed to no hazard indigenous to his employment. Secondly, even if the above quoted language is considered apart from the factual context, there is absolutely no Alabama authority in support of such a statement.

The but-for test is clearly not the test for causation under Alabama’s Workmen’s Compensation Act. Instead, the burden is on the claimant to establish a definite causal connection between the work and the injury. Myers v. Juneman Electric Co., 46 Ala.App. 529, 244 So.2d 809 (1971). By finding that the cause of the fall was unexplained, the trial court must have implicitly found that the claimant had not met her burden of establishing causation. Consequently, the trial court erred in awarding compensation.

In this case, for this court to hold otherwise would be to abrogate by judicial fiat an essential element of proof under Alabama’s Workmen’s Compensation Act. Additionally, we note that for this court to hold otherwise would be contrary to previous compelling analogous supreme court decisions. This the law does not permit. See § 12-3-16, Code of Ala.1975.

We would be remiss if we failed to comment that counsel for both parties made excellent presentations during oral argument, for which we are grateful.

This case is due to be reversed.

REVERSED AND REMANDED.

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


author: PER CURIAM. JONES, Justice

text:
    Ex parte Joyce A. MARTIN. (Re SLIMFOLD MANUFACTURING COMPANY v. Joyce A. MARTIN).
    81-335.
    Supreme Court of Alabama.
    July 9, 1982.
    Jere C. Segrest of Hardwick, Hause & Segrest, Dothan, for petitioner.
    Lyman H. Harris and Judy C. Whalen of Lorant, Harris & Yearout, Birmingham, for respondent.
   PER CURIAM.

WRIT QUASHED AS IMPROVIDENTLY GRANTED.

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

JONES, J., concurs specially.

JONES, Justice

(concurring specially).

I concur in the order of the Court to quash the writ. I write specially to point out what I believe is a faulty rationale that has persisted in the cases throughout the country relating to the “arising out of” statutory requisite for compensation recovery.

The rationale to which I speak is couched in terms similar to that employed in City of Tuscaloosa v. Howard, 55 Ala.App. 701, 705, 318 So.2d 729, 732 (1975):

“If ... an employee is exposed to a danger or risk materially in excess of that to which people not so employed are exposed, ...”

This comparison of the risk of the work place with risk in general adds nothing in aid of the application of the “arising out of” or causation statutory requisite for recovery.

In the context of the no fault concept, it matters not that the accident and its resultant injury are brought about because the risk incident to the claimant’s work is greater or less than the risk to which people not so employed are exposed. For example, an employee in an air conditioned office may elect to work through his lunch break rather than go to lunch outside the building and expose himself to the 98° temperature of the downtown street. Then, while walking on a smooth, level, carpeted floor on his way to the water fountain, he trips over his own feet, falls and breaks his leg. During this noon hour, literally scores of shopping pedestrians are rushed off the city streets to the emergency room of the hospital suffering severe heat strokes. In seeking the answer to the “arising out of” inquiry, it is less than helpful to compare the risk of employment incident to the broken leg with the street risk that sent dozens of pedestrians to the hospital.

Yet, while the employment risk/street risk dichotomy is misplaced, the causal relation inquiry still exists. To be compensable, the injury must be caused by an accident arising out of and in the course of the employment. “Arising out of” means the accident must be causally related to the employment. An employee who clumsily trips over his own feet and breaks his leg is entitled to the statutory rate of compensation according to the extent of his disability; but an employee who suffers an unexplained fall on a level surface has failed to meet the burden of showing the causal relation between his fall and his employment.


author: PER CURIAM.

text:
    Charles D. SCOTT and Polly Scott v. Benjamin L. KIMERLING.
    Civ. 3009, 3010.
    Court of Civil Appeals of Alabama.
    Jan. 13, 1982.
    Rehearing Denied Feb. 10, 1982.
    Certiorari Quashed, Aug. 6, 1982
    Alabama Supreme Court 81-438.
    Charles D. Scott, pro se.
    Jim M. Sandefer, Mountain Brook, for appellee.
   PER CURIAM.

The plaintiff sued the. defendants on open account in the District Court of Jefferson County. A default judgment was taken by plaintiff against defendants.

Thereafter, the defendants sought to appeal to the Circuit Court of Jefferson County. In its “Notice of Appeal” from the district court to the circuit court the defendants demanded a trial by jury and also stated the following: “I refuse to post any bond or pay any money to enjoy my right to trial by jury.”

The plaintiff filed in the circuit court a motion to dismiss defendants’ appeal for failure of defendants to “post” bond for costs or give affidavit of substantial hardship. The trial court granted plaintiff’s motion and defendants appeal to this court.

The defendants, pro se, acknowledge that they refused to pay “costs.” They contend that to pay such cost would violate certain of their constitutional rights, both state and federal. Suffice it to say, we find no merit in their contention.

The Code of Alabama 1975, section 12-12-70, states as follows:

Civil cases. — Any party may appeal from a final judgment of the district court in a civil case by filing notice of appeal in the district court, within 14 days from the date of the judgment or the denial of a posttrial motion, whichever is later, or, if the appeal is to an appellate court, within the time prescribed by the Alabama Rules of Appellate Procedure, together with security for costs as required by law or rule.

There are apparently no express costs for filing in the circuit court an appeal from the district court. However, Rule 7 of the Alabama Rules of Judicial Administration provides as follows:

Any filing for which there is no express cost under the consolidated fee structure shall be treated as an original filing for cost purposes.

Opinion No. 16, Opinion of the Clerk, Supreme Court of Alabama, 362 So.2d 1259 (Ala.1978), stated in part as follows:

It is my opinion that an appeal from a district court to a circuit court is a case within the meaning of the words, “cases filed,” in § 12-19-71; that a filing of an appeal is a filing under Rule 7, Rules of Judicial Administration; and that the fee for docketing an appeal from the district court to the circuit court is $35.00.

The distinguished clerk of the supreme court is to this court eminently correct.

We therefore find that there are appropriate costs to be paid upon taking an appeal from the district court to the circuit court. We further find that section 12-12-70 requires the payment of these costs. Furthermore, such requirement does not violate any constitutional “rights” of defendants. “Costs” are a part of the burden of litigation and no litigant is deprived of a constitutional right by a statute which imposes costs on him. See C.J.S. Costs § 3, and cases cited therein.

Needless to say, the trial court did not err in dismissing defendants’ appeal.

The case is due to be affirmed.

AFFIRMED.

All the Judges concur.


text:
    Nancy JAMES v. MOBILE TRAVELODGE.
    Civ. 3073.
    Court of Civil Appeals of Alabama.
    June 9, 1982.
    Rehearing Denied July 14, 1982.
    Rose A. McPhillips, Mobile, for appellant.
    Thomas M. Galloway, Jr. of Collins, Galloway & Smith, Mobile, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is a workmen’s compensation case.

After a nonjury trial, the circuit court rendered a judgment that, while the plaintiff suffered no permanent partial disability, she was temporarily totally disabled from March 3, 1979, the date of the injury, through July 2, 1979. That court determined that compensation for the plaintiff’s temporary total disability had been fully paid.

The plaintiff appealed and argues error as to the findings that there was no permanent partial disability or, in the alternative, she states that the duration of the temporary disability so awarded was too short.

Both parties state in their briefs that the plaintiff testified at the trial and the final judgment recites such fact therein. However, no court reporter’s transcript of the trial evidence appears in the record before us. The clerk’s portion of the record apparently includes the exhibits introduced at trial.

Thus, there was testimony before the trial court, consisting of the trial evidence, which is not before this court. That missing evidence could have had a definite influence upon the trial court in arriving at its specific findings. Therefore, we are not authorized to disturb either of the factual findings now argued as being erroneous but we must presume that the evidence was sufficient to sustain the judgment as to both of those disputed issues. Valley Mining Corporation, Inc. v. Metro Bank, 383 So.2d 158 (Ala.1980); 2A Ala.Digest Appeal & Error key 907(4). We are required to affirm this case.

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

AFFIRMED.

All the Judges concur.


text:
    Riley BIBB v. Cecil BOYD and Southeastern Fire Insurance Company, Inc.
    Civ. 3151.
    Court of Civil Appeals of Alabama.
    July 14, 1982.

      Sherman B. Powell, Jr. of Powell & Powell, and J. Tilden Dillard, Decatur, for appellant.
    Don White and Rod M. Alexander, Moul-ton, for appellees.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is a vehicular damage ease.

Mr. Bibb, the defendant, was served with a copy of the summons and complaint. He appeared in the district court on May 22, 1980, the date on which the case was set for trial, when that court dismissed the case against him for lack of prosecution. Without a written motion being filed on behalf of the plaintiff and without any notice to the defendant, the district court entered the following judgment on January 13, 1981, “For good cause shown, case reinstated.” Ultimately, monetary judgments were rendered against the defendant in the district court as well as in the circuit court upon an appeal to that court by the defendant. It is not essential to burden this opinion with a recital of the tedious history of this case since the primary pivotal question concerns the validity of the January 13, 1981 judgment of the district court.

Insofar as the record discloses, the May 22, 1980 judgment of dismissal operated as an adjudication upon the merits of the case under A.R.C.P. 41(b), and it was a final judgment.

The district court had only fourteen days after May 22 within which it was authorized to set that judgment aside ex mero motu. Because of the long lapse of time between the final judgment of dismissal and the January 13 reinstatement judgment, the resurrection of the case could not have validly occurred by means of an A.R.C.P. 59 motion, for that rule requires such a motion to be filed within fourteen days after the entry of the judgment; and A.R.C.P. 59.1 would have required that such a post-trial motion not remain pending in the district court longer than fourteen days without being ruled upon before being automatically overruled by operation of law.

Thus, the granted relief must have been predicated upon A.R.C.P. 60(b) grounds. Thereunder, a motion, or an independent action, is required to be made in writing. A.R.C.P. 7(b)(1). Here, there was no written motion — in fact, the record in the district court is devoid of even the slightest mention of any motion whatsoever in that regard, written or oral. In the absence of a timely filed rule 60(b) motion, or independent action, the district court, at that late date, had lost all authority to render and enter the January 13,1981 judgment. Without proper and timely proceedings having been filed on the plaintiffs’ behalf, the district court lost jurisdiction over the subject matter to, in substance, set aside the May 22 judgment and reinstate the case. Having lost jurisdiction over the subject matter, all subsequent monetary judgments of the district court and of the circuit court against the defendant were unauthorized and void. “Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.” A.R.C.P. 12(h)(3). The defendant questioned the validity of the January 13 judgment in the district court, in the circuit court and in this court. However, in any event, lack of jurisdiction over the subject matter is not waivable and may be raised ex mero motu by either a trial court or by an appellate court. 5 Wright and Miller, Federal Practice and Procedure, Civil § 1393.

A void judgment will not support an appeal. 2 Ala.Digest, Appeal & Error Key No. 112. For the reasons previously stated, the monetary judgment rendered against the defendant in the district court was void and the circuit court should have dismissed the appeal on that ground, for a trial de novo in the circuit court did not remedy that problem. That lack of jurisdiction over the subject matter constituted a continuing defect that taints and pursues the proceedings even to this court on appeal. Accordingly, we are, likewise, required to dismiss this appeal. A.R.C.P. 12(h)(3); 5 Wright and Miller, Federal Practice and Procedure, Civil § 1393.

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

APPEAL DISMISSED.

All the Judges concur.


text:
    Eloise WITCHER and Tomeaco Witcher v. Henry and Elizabeth MOTLEY.
    Civ. 3206.
    Court of Civil Appeals of Alabama.
    July 14, 1982.

      Julian L. McPhillips, Jr., Montgomery, for appellants.
    No brief for appellees.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This case involves the latest custody decision of the juvenile court as to Tavanita Witcher, a dependent child, who was born on November 12, 1976.

Tomeaco Witcher, the mother, and the maternal grandmother of the child, Mrs. Eloise Witcher, have appealed from a judgment dated February 3, 1982, which ascertained that the child was neglected or dependent, that she was in need of and entitled to receive care and protection and that her morals, health and general welfare were best served by granting her permanent care, custody and control to the Motleys, her paternal grandparents, who were equipped to care for her.

Between March, 1979, and February, 1982, no less than seven petitions were filed which sought a change in the custody of this child; fifteen reports or summaries from the Montgomery County Department of Pensions and Security (DPS) are included in the clerk’s record by designation of the appellants; and numerous hearings or trials have been held before the same judge who rendered the last judgment in February, 1982. No fewer than six judgments were rendered in that three year period of time which pertained to the child’s custody.

Mr. Motley had exercised temporary custody over the child under court orders since June 13, 1979, except that the mother had custody from April 30, 1980 until October, 1980, when her right to custody was again revoked and the child’s custody was re-awarded to the paternal grandfather.

The many DPS reports might be summarized as strongly indicating either adverse conditions to the mother’s having custody or a lack of cooperation on her behalf. The reports contained findings that the placement of the child with the Motleys was excellent.

In viewing the evidence at the last hearing with the attendant presumptions which are accorded the trial court’s action, the following is revealed: At that trial Mr. Motley testified that he can do more for the child than can be provided by the mother. If he is granted permanent custody, his medical and hospital insurance policy will cover the child, but the policy does not provide coverage for temporary custody only. He desires her permanent custody since he has had her temporary custody for most of her life, for he has had her in school and has been caring for her needs for the past three years. The child is under the care of a physician. Mr. Motley is employed in the construction business and Mrs. Motley works at the Officer’s Club at Maxwell Air Force Base. He did not request that any right of visitation of either the mother or Mrs. Witcher be eliminated — in fact, he was repulsed at any suggestion that such visits cease.

While the mother and Mrs. Witcher testified as to other matters, the mother did state that she desired to be granted custody of the child, but “if not, no big deal.” The maternal grandmother admitted that the Motleys were doing a good job in caring for the child.

The trial court, which had been so frequently involved with this child’s custody through multiple trials over the preceding three years, could take judicial knowledge of the prior proceedings therein and was not required either to ignore or to attempt to forget the past. In reaching its latest decision, that court could consider the tortuous and painful history of the case along with the ore terms evidence presented at the trial. After an ore terms hearing, the action of the juvenile court will be given every favorable presumption and will not be disturbed unless it was palpably wrong. Phillips v. Alabama Department of Pensions and Security, 394 So.2d 51 (Ala.Civ. App.1981); Lovell v. Department of Pensions and Security, 356 So.2d 188 (Ala.Civ. App.1978). Here, the trial court was not palpably wrong and did not abuse its discretion in rendering the final judgment. The last judgment was a mere enlargement of previous temporary custody awards to the Motleys. Some permanency was needed and necessary as to this child’s custody. The entire appeal record in a case of this nature must be reviewed to ascertain if the action of the trial court was in the best interest of the child. Here, the mother’s prima facie rights to the custody of this child must yield, for the mother’s having such custody is not in this child’s best interest. After reviewing this record, impartial legal minds would rarely differ that the award of permanent custody to the Motleys was clearly in the child’s best interest. The juvenile court’s judgment must stand. We affirm.

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

AFFIRMED.

All the Judges concur.


author: BRADLEY, Judge.

text:
    Marcelle LEWIS v. Thomas Edwin RITCH.
    Civ. 3212.
    Court of Civil Appeals of Alabama.
    July 14, 1982.

      Jerry Guyton of Vinson & Guyton, Hamilton, for appellant.
    Jackie 0. Isom, Hamilton, for appellee.
   BRADLEY, Judge.

This is a slander case.

Thomas Ritch and Donnie Dobbs are police officers for the city of Hamilton. On October 23, 1980 Ritch and Dobbs arrested Jerry Lewis for speeding and driving while intoxicated. Lewis was driving a pickup truck at the time of the arrest.

After being placed under arrest, Lewis was placed in the police car. Dobbs was driving the police car. Ritch drove Lewis’s pickup truck. Upon arriving at the Marion County jail, Ritch parked and locked Lewis’s truck. Lewis was booked and placed in jail.

Lewis’s wife, Marcelle, came to the jail upon learning of her husband’s arrest. At that time she was told her husband could not be released until he sobered up. She asked whether she could bring him some medication and was told that she could. She also stated that her husband had had a large amount of money in his possession when he left work.

Upon returning with her husband’s medication, Marcelle asked to search the truck for her husband’s money. In the truck she found a leather folder, but the money was not there. Both Ritch and Dobbs testified that she accused Ritch of taking the money out of the truck.

Lewis was released from jail the next morning. Marcelle stopped payment on the checks which were missing. Marcelle then called Murray Ballard, the mayor of Hamilton, and Willard Frye, the chief of police, requesting an investigation regarding the missing money. Both Frye and Ballard testified that Marcelle accused Ritch of taking the money. She denied this. Later, the investigation against Ritch was dropped when Lewis declined to take a polygraph test.

Ritch filed suit against Marcelle Lewis and Jerry Lewis for slander on December 19, 1980. A jury trial was held on December 16, 1981. The jury found in favor of Ritch against Marcelle Lewis. They awarded Ritch $5,000 as compensatory damages and $5,000 as punitive damages. Marcelle filed a motion for j.n.o.v. or in the alternative a new trial. These motions were denied, and as a result, Marcelle appeals to this court.

The only issue presented on appeal is whether the evidence is sufficient to support the verdict. We find no error and affirm the judgment.

Jury verdicts are presumed correct and will not be reversed on appeal unless clearly wrong or unjust. Floyd v. Headland National Bank, 406 So.2d 424 (Ala.Civ.App.1981). The correctness of a jury verdict is strengthened by the refusal of the trial court to grant a new trial. Mobile Home Brokers, Inc. v. Clark, 346 So.2d 1156 (Ala.Civ.App.1977).

Marcelle admits that if the jury found that she spoke the words alleged in the complaint then she has committed slander per se. Slander to be actionable per se must impute an indictable offense involving infamy or moral turpitude. Marion v. Davis, 217 Ala. 16, 114 So. 357 (1927). Words which impute larceny are slanderous per se. Phillips v. Bradshaw, 167 Ala. 199, 52 So. 662 (1910). Damage is implied by law from the speaking of words which are slanderous per se. Donaldson v. Roberson, 15 Ala.App. 354, 73 So. 223 (1916).

In the present case the evidence is overwhelming that Marcelle spoke the alleged slanderous words. These words certainly imputed that Ritch had committed larceny, and as a result are slanderous per se. Therefore damages are presumed, and certainly the jury’s award of compensatory damages in this case is supported by the evidence.

Marcelle’s main argument is that there is no basis for an award of punitive damages. Punitive damages may be awarded in a slander case where malice is proved to the reasonable satisfaction of the jury. See Johnson Publishing Co. v. Davis, 271 Ala. 474, 124 So.2d 441 (1960). The jury was instructed that the slander was malicious if it was made with knowledge that it was false or with reckless disregard of whether it was false. Malice, actual or expressed, may be shown by evidence of hostility, rivalry, the violence of the language, the mode and extent of publication, and prior information regarding its falsity. Johnson Publishing Co., supra.

We cannot find that the jury erred in awarding punitive damages. There is a great deal of evidence from which the jury could have determined that the slander was made maliciously. There is evidence that Marcelle made her statements in loud and angry tones. She also published the slander to several people. The jury clearly could have concluded that her actions amounted to a showing of malice as defined for the jury. Considering our scope of review, we cannot find error in the jury’s verdict.

AFFIRMED.

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


text:
    Arnold Hicks PEEK v. Jeanette Bethune PEEK.
    Civ. 3234.
    Court of Civil Appeals of Alabama.
    July 14, 1982.

      W. G. Hawkins and Charles A. McGee, Fort Payne, for appellant.
    W. N. Watson of Watson & Watson, Fort Payne, for appellee.
   HOLMES, Judge.

This is a divorce case.

After an ore tenus hearing the trial court divorced the parties, awarded the wife periodic alimony in the amount of $500 per month until she reaches the age of sixty-two after which the payments will be reduced to $300 per month, awarded custody of the parties’ minor child to the wife, and required the husband to pay $100 per month as child support until the child marries or reaches the age of nineteen.

The husband appeals to this court, contending that the trial court abused its discretion in the award of periodic alimony and child support. Finding no abuse of discretion that would require reversal, this court affirms.

The record, viewed with the attendant presumptions, reveals the following: The parties to this action were divorced after being married thirty-four years. For approximately twelve years preceding the divorce, however, the parties had been separated. Three children were born of the marriage. At the time of the divorce all of the children except one had reached the age of majority. The remaining minor child, who was eighteen at the time of the divorce, resided with the wife. According to the husband’s testimony, the minor child would be nineteen on June 2, 1982.

The husband was fifty-eight years old at the time of the divorce. He had been employed by the Ford Motor Company until 1970 at which time he had to retire due to failing eyesight. The husband is now legally blind and has not worked since his retirement. The husband’s income consists of a monthly social security disability check in the amount of $497, a monthly military disability check in the amount of $416, and a monthly retirement check from Ford in the approximate amount of $100. Additionally, for approximately a year prior to the divorce the husband had been withdrawing $180 per month from a life insurance fund. The record indicates that if the husband chose to he could continue to withdraw this sum for approximately thirty-eight more months. The husband also has access to some interest income.

At the time of the divorce the wife was sixty years old and is apparently in poor health. The wife has a ninth grade education and has not worked since approximately 1970. Since quitting work her primary means of support for herself and her children has been her husband’s checks which he allowed to be sent to the marital home though he no longer resided there. The wife’s only other source of income is interest income.

At the outset we note that during the pendency of this appeal the parties’ minor child has reached the age of nineteen. Consequently, by the terms of the decree the husband’s obligation to pay $100 per month as child support ended after only four months. Suffice it to say that requiring the husband to pay $100 per month as child support for approximately four months when the husband is receiving in excess of $1,000 per month is not such an abuse of discretion as to require reversal.

Regarding the alimony payments, this court has held on numerous occasions that the award and amount of periodic alimony are matters within the sound discretion of the trial court which will not be reversed absent plain and palpable abuse of that discretion. Wilson v. Wilson, 404 So.2d 76 (Ala.Civ.App.1981); Mack v. Mack, 389 So.2d 1156 (Ala.Civ.App.1980); Kabaci v. Kabaci, 373 So.2d 1144 (Ala.Civ.App.1979). In exercising its discretion the trial court is to be guided by such factors as the parties’ future prospects; the standard of living during the marriage; the potential for maintaining or exceeding that standard after divorce; the parties’ ages, sex and health; and the length of the marriage. Nolen v. Nolen, 398 So.2d 712 (Ala.Civ.App.1981); Boyd v. Boyd, 390 So.2d 644 (Ala.Civ.App.1980).

A review of the record in light of the foregoing factors does not reveal such an abuse of discretion in the award of alimony as to require reversal. In reaching this decision we call particular attention to the thirty-four year length of the marriage and to the wife’s advancing age, lack of education, and poor health. All three of these factors combine to make her future earning prospects very bleak. Admittedly, the husband is also in poor health and is unable to work but he does have a guaranteed monthly income in excess of $1,000.

In view of the facts of this case an alimony award of $500 per month which will be reduced to $300 per month within two years is not so excessive as to require reversal.

This case is due to be affirmed.

AFFIRMED.

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


author: TYSON, Judge.

text:
    Daniel P. O’LEARY v. STATE.
    1 Div. 994.
    Court of Criminal Appeals of Alabama.
    May 6, 1980.
    Rehearing Denied May 27, 1980.
    W. Kenneth Gibson, Lloyd E. Taylor of Taylor, Benton, Irby & Gibson, Fairhope, Peter F. K. Baraban, Miami, Fla., for appellant.
    Charles A. Graddick, Atty. Gen., J. Anthony McLain, Sp. Asst. Atty. Gen., for appellee.
   TYSON, Judge.

Daniel P. O’Leary was indicted by the grand jury for the offense of possession of marijuana. His jury trial resulted in a conviction and sentence of fifteen years imprisonment in the penitentiary.

The dispositive issue on this appeal is whether or not the appellant was ever arraigned on the charge for which he was indicted and convicted. From our examination of the record we conclude he was not so arraigned and, therefore, reverse and remand this cause for a new trial.

Appellant was called for arraignment on January 23, 1978, but was not present. There is no dispute as to this date. At that time defense counsel moved the court to postpone arraignment until the day of trial so that appellant, who resided out of state, would not be forced to make a long trip solely for the purpose of arraignment. The court granted this motion (see Supp. E, pp. 59-60).

The trial of the case began on July 31, 1978, and the appellant was subsequently found guilty by the jury. The original minute entry in this cause reads as follows (Vol. IV, p. 708):

“JURY & VERDICT
“8/2/78; This day in open Court came the State of Alabama by its District Attorney, and the Defendant in his own proper person, and with his attorney, and the trial of this case having been regularly set for this day, thereupon, in open Court on this day in the presence of the District Attorney, defendant’s attorney, and the defendant, came a jury of good and lawful men and women, to-wit: Morgan J. Odom, and eleven others, who, having been duly impanelled and sworn according to law, who, having heard the evidence, and the charge of the Court, upon their oaths, in open court on this day in the presence of the District Attorney, defendant’s attorney and the defendant, do say: ‘WE, THE JURY, FIND THE DEFENDANT GUILTY.’ “Thereupon in open court on this day the defendant in the presence of his attorney being asked by the Court if he had anything to say why the judgment and sentence of the law should not be passed upon him, replied ‘he had not.’ It is therefore considered and adjudged by the Court that the defendant is guilty of the offense of Possession of Controlled Substances, and that the defendant be and he is hereby sentenced to a period of Fifteen (15) years in the State Penitentiary. “Sentence suspended pending appeal and appearance bond set in the amount of One Hundred Thousand Dollars ($100,-000.00).”

On January 29, 1979, a motion to correct or modify the record was filed by the State of Alabama (Supp. E, pp. 90-91). The motion requested the trial court to correct the record by adding an arraignment of the appellant to the minute entry. On February 12, 1979, a hearing on the motion was conducted.

Morgan Odum, a resident of Foley, Alabama, testified that he was a juror at appellant’s trial on July 31,1978. He stated that he remembered seeing the prosecutor read the charges to the appellant and that he remembered that the appellant plead not guilty thereto. On cross-examination, Mr. Odum testified that he had been on juries in two previous criminal trials and he saw the defendants in both trials arraigned immediately prior to trial. He recalled that the appellant was called upon to plead prior to voir dire examination of the jury. He stated he never discussed appellant’s alleged arraignment with the district attorney until a few minutes before the hearing that day.

Thomas Benton, Sheriff of Baldwin County, testified that he recalled that the appellant was arraigned the morning of his trial and that the court reporter was not present at the time. He stated that his recollection of the sequence of events on the morning of trial was as follows: First, the sheriff called the roll of the jury, then the judge sounded the docket. According to the sheriff, when the O’Leary case, this instant cause, was sounded, the judge called the appellant before him and held the arraignment. Thereafter, the jury was struck and the case proceeded to trial.

Bobby Stewart, Chief Criminal Investigator for Baldwin County, testified that he was present in court on the morning of July 31, 1978, and remembered the appellant’s being arraigned. He stated that after the indictment was read the judge instructed him to go find the court reporter, who was absent from the courtroom at that time. On Cross-examination, Mr. Stewart stated that one of appellant’s lawyers answered for the appellant when he was called upon to plead.

William Kenneth Gibson testified that he is an attorney in Fairhope, Alabama, and was one of the attorneys who represented the appellant at trial on July 31, 1978. His recollection of the events that morning was as follows: First, the judge sounded the docket. When appellant’s case came up, Lloyd Taylor, another of appellant’s attorneys, made an oral motion to continue the case pending the resolution of a motion before the United States Supreme Court which concerned the present case. The trial judge denied the motion and the attorneys proceeded with the voir dire examination and selection of the jury. Thereafter, the trial proceeded with the various witnesses who were called and who testified. Mr. Gibson stated that the court reporter was present during these proceedings and that at no time did appellant plead to the indictment. Mr. Gibson explained that, at the time of trial, he was under the impression that the appellant had been arraigned earlier and he did not become aware of the omission until the record had been transcribed.

Lloyd Taylor testified that he also represented the appellant at his trial on July 31, 1978. His testimony covered substantially the same ground as that of Mr. Gibson. He stated that appellant’s lawyers had taken great pains to instruct the court reporter to take down every word that was spoken in regard to the O’Leary case whether it was part of the official record or not. Mr. Taylor stated positively that at no time was the appellant ever arraigned nor was a plea of not guilty ever entered on his behalf by the trial court. Mr. Taylor said one reason he is so sure that there was no arraignment was that no competent defense attorney would have allowed his client to have been arraigned in the presence of prospective jurors.

The defense also placed into evidence at this hearing affidavits signed by appellant’s other attorneys at trial, Honorable Phillip Carlton, Jr., Honorable Peter F. K. Bara-ban, and Honorable Robert B. French, Jr. The affidavits stated that to the best of the attorneys’ information, knowledge and belief the appellant was not arraigned on July 31, 1978, the date of trial.

At the close of the hearing, the trial court granted the State’s motion and caused the following minute entry to become part of the record (Supp. E, p. 106):

“... [T]he Court having heard the argument of counsel on said motion, and considered and understood the same, is of the opinion that the same is well taken and the said motion should be granted: It is therefore ordered and adjudged by the Court that said Motion to Correct or Modify the Record be and the same hereby is granted to show that on July 31,1978, the Defendant was arraigned in open Court with his attorneys of record, and entered a plea of not guilty.”

Thereafter, on February 21,1979, defense counsel filed a motion for reconsideration or in the alternative for specific findings. This motion was denied.

On March 12, 1979, this court granted appellant’s petition for writ of mandamus in Ex parte Daniel P. O’Leary, 1 Div. 40, and thereby directed the trial court to order a transcription of the court reporter’s notes made prior to trial on July 31, 1978, and further directed the trial court to hold another hearing.

A second hearing on the matter was held on August 21, 1979. The defense first called David Williams, who testified that he was one of the court reporters at appellant’s trial. Mr. Williams identified a transcript of stenographic notes he made on the morning of July 31, 1978. Mr. Williams stated that prior to trial he agreed with the defense attorneys to take down all of the proceedings regarding the appellant. He stated further that the transcription of the notes he took that morning reflected all of the proceedings that took place in his presence (Supp. F, pp. 9-10). From the record (Supp. F, p. 11):

“Q. Do your notes start off with the sounding of the docket of Daniel P. O’Leary? When Daniel P. O’Leary’s name was sounded, isn’t that what your first notes show?
“A. Right. Mr. Hendrix said, ‘We come to Daniel P. O’Leary.’
“And that’s the notes that I have. What went on prior to that, I don’t know. “Q. Now, did you leave the courtroom while any proceedings were going on after that point in time?
“A. No, not until one o’clock.”

The transcript of Mr. Williams’ stenographic notes absolutely does not reflect an arraignment of the appellant.

Phillip Carlton, Jr., Robert B. French, Jr., and Peter F. K. Baraban all testified that they were attorneys for the appellant and that they were present during all the proceedings on July 31,1978. All testified that the appellant was not arraigned, nor was a plea entered for him by the court on this date or during trial. These attorneys also stated that the court reporter was always present during all proceedings involving the appellant.

The appellant also testified that he never pleaded to the indictment.

At the close of this hearing, the trial court again concluded that “the Defendant was arraigned in open court with his attorneys of record on July 31,1978, and entered a plea of not guilty” (Supp. F, p. 100).

I

We have carefully examined the original record of four volumes and reviewed the voluminous supplement of ten volumes, plus exhibits, in this cause and are of the opinion that the trial court erred in finding that appellant was in fact arraigned on the morning of trial in this cause, to-wit, July 31, 1978.

“... [W]e are not unmindful of the rule that when, as here, the evidence was heard orally by the trial judge, his findings have the weight of a jury’s verdict and will not be disturbed on appeal unless palpably wrong or unjust.
“We are unwilling to say that there was no evidence from which the trial court could find the defendant guilty. The judgment of a trial court is a solemn pronouncement, and an appellate court should most hesitantly disturb it.
“On the other hand, the duty remains in this Court ‘to revise the verdict of juries and the conclusions of trial judges on questions of fact, where, in our opinion, after making all proper allowances and indulging all reasonable intendments in favor of the court below, we reach a clear conclusion that the finding and judgment are wrong.’ Bowen v. State, 32 Ala.App. 357, 26 So.2d 205; Taylor v. State, 30 Ala.App. 316, 5 So.2d 117.”
Kelly v. State, 273 Ala. 240, 243, 244, 139 So.2d 326 (1962).

It has long been the law in Alabama that reversal of a conviction is mandated if the record does not affirmatively show that the defendant pleaded to the indictment either personally or through counsel or that the court caused the plea of not guilty to be entered for him before the jury retired. Rucker v. State, Ala., 340 So.2d 830 (1976); Ludlum v. State, 52 Ala.App. 631, 296 So.2d 254 (1974); Newsome v. State, 49 Ala.App. 248, 270 So.2d 680 (1972); Strong v. State, 47 Ala.App. 238, 252 So.2d 659 (1971); Huddleston v. State, 37 Ala.App. 57, 64 So.2d 90 (1953).

Because of our holding we must reverse and remand this cause for a new trial; we, therefore, pretermit discussion of appellant’s other assignments of error.

REVERSED AND REMANDED.

All the Judges concur.


author: BEATTY, Justice.

text:
    Ex parte State of Alabama, ex rel. Attorney General. (Re Daniel P. O’LEARY v. STATE of Alabama).
    79-680.
    Supreme Court of Alabama.
    Jan. 9, 1981.
    Rehearing Denied Feb. 6, 1981.

      Charles A. Graddick, Atty. Gen., and J. Anthony McLain, Sp. Asst. Atty. Gen., of McLain & Hampton, Montgomery, for petitioner.
    W. Kenneth Gibson of Taylor, Benton, Irby & Gibson, Fairhope, for respondent.
   BEATTY, Justice.

The facts of this case are sufficiently set forth in the opinion of the Court of Criminal Appeals. O’Leary v. State, Ala., [MS. May 6, 1980] 417 So.2d 214 (1980). We granted certiorari to ascertain whether that opinion conflicts with the principle of law expressed in Simmons v. F. W. Dodge Corporation, 270 Ala. 616, 120 So.2d 921 (1960), viz.: that a reviewing court will not weigh evidence as to any fact found by the trial court, but if there is any evidence, or any reasonable inference from the evidence to support the conclusion of that court, the judgment will not be disturbed. See also 2A Ala. Dig., Appeal & Error, Keys 989, 996, 1010(1).

We have concluded that the Court of Criminal Appeals was in error in its application of that principle to the facts of this case. Our review of the record discloses evidence supporting the finding of the trial court holding that the respondent, O’Leary, had been arraigned in the trial court.

Two hearings were conducted by the trial court in order to determine whether, in fact, the respondent had been arraigned. During the first hearing the evidence of this fact was sharply disputed: the sheriff, an investigator, and a juror testified to an arraignment having taken place while, on the other hand, the petitioner’s two lawyers testified that none had occurred, and they introduced the affidavit of three other lawyers to that same effect. Based on the evidence adduced at that hearing, the trial court found that an arraignment had occurred and corrected the record accordingly. Later, in accordance with the writ of mandamus issued by the Court of Criminal Appeals, the trial court conducted another hearing, which included testimony of the court reporter, the introduction of a transcript of the reporter’s notes, and testimony of the respondent himself, all supporting the conclusion that an arraignment had not taken place.

In reaching its conclusion that the record did not affirmatively show that the defendant/respondent pleaded to the indictment, the Court of Criminal Appeals doubtless gave great, and in our judgment, undue weight to the transcript of the court reporter’s stenographic notes, which did not reflect an arraignment, although that court also considered the unanimous testimony of the respondent’s attorneys. In this, we have concluded, the Court of Criminal Appeals has erred, for the effect of its decision, in the face of this disputed fact, has been to give preferential treatment to one form of evidence over another, rather than to follow the rule of review to which we have heretofore referred. We have been cited to no authority which gives to a court reporter’s stenographic notes a conclusive presumption of accuracy or otherwise prevents their content from being impeached or contradicted. Any such conclusion aside, there was evidence on both sides of the issue presented to the trial court. When the trial judge sits as a finder of fact and hears and observes witnesses as they speak, his judgment is presumed correct and will not be reversed if it is supported by legal evidence and is not clearly wrong and unjust. Barbour v. Department of Pensions & Security, Ala.Civ.App., 367 So.2d 470 (1978).

For these reasons the judgment of the Court of Criminal Appeals must be, and is, reversed and this cause is remanded for an order not inconsistent with this opinion.

REVERSED AND REMANDED.

TORBERT, C. J., and MADDOX, FAULKNER, JONES, SHORES and EM-BRY, JJ., concur.

ALMON and ADAMS, JJ., not sitting.