author: BEATTY, Justice. JONES, Justice MADDOX, Justice

text:
    PREFERRED RISK MUTUAL INSURANCE COMPANY v. James A. STUART and Jessie P. Stuart. Charles BEACH and James Beach v. James A. STUART, Jessie P. Stuart and Preferred Risk Mutual Insurance Co., an Iowa Corp.
    79-394, 79-418.
    Supreme Court of Alabama.
    March 6, 1981.

      W. Boyd Reeves of Armbrecht, Jackson, DeMouy, Crowe, Holmes & Reeves, Mobile, for appellant Preferred Risk Mut. Ins. Co.
    John D. Richardson and E. J. Saad of Brown, Hudgens, Richardson, Whitfield & Gillion, Mobile, for appellants Charles Beach and James Beach.
    Fred W. Killion, Jr., and Patricia K. 01-ney of Reams, Tappan, Wood, Vollmer, Philips & Killion, Mobile, for appellees James A. Stuart and Jessie P. Stuart.
   BEATTY, Justice.

Appeals by Preferred Risk and the Beaches from judgments based upon jury verdicts in favor of the Stuarts. We reverse and remand.

The plaintiffs, James and Jessie Stuart, contracted with Charles and James Beach, d/b/a Charles Beach Carpeting Company, to install a quantity of vinyl flooring in the Stuarts’ house. During the job a problem developed which necessitated separation of the upper floor from the subsurface. A quantity of gasoline was poured onto the surface to effect this separation and during that operation the gasoline ignited resulting in damage to the. house.

The house itself was insured by the Stuarts under a policy of insurance issued by Preferred Risk Mutual Insurance Company naming the Stuarts as beneficiaries.

The Stuarts filed an action against the Beach brothers alleging reckless, wanton or negligent conduct in the performance of the contract. The original complaint was amended to include Preferred Risk as a party defendant, alleging its fire insurance coverage and its refusal to pay. Later the trial court granted the plaintiffs’ motion to dismiss Preferred Risk without prejudice. The trial of the case between the Stuarts and the Beaches resulted in a mistrial. Thereafter Preferred Risk was brought back into the case as a defendant, whereupon Preferred Risk answered the amended complaint and added a cross-claim against the Beach brothers for recovery of any amounts which Preferred Risk was required to pay plaintiffs.

The trial resulted in a judgment being entered for-the plaintiffs in the amount of $53,585.33 plus 6% interest against the defendants Beach brothers and $19,000.00 plus 6% interest in favor of the plaintiffs against the defendant Preferred Risk. Judgment was entered in favor of Preferred Risk on its cross-claim against the Beach brothers in the amount of $19,000.00 plus 6% interest. The Beach brothers and Preferred Risk have appealed.

A number of issues have been raised by the appellants. We do not address them all because we consider that the controlling issue requires a reversal for a new trial. That issue concerns the propriety of allowing the jury to deliberate and reach a second verdict after that jury’s first verdict had been received by the court and the jury then discharged.

The record discloses that an extensive oral instruction was given to the jury, including explanations of four verdict forms given to them. The jury then retired. After a side-bar conference between the court and counsel for both sides, the court called the jury back into the courtroom and gave them additional instructions. Once again they retired to deliberate, and about forty-five minutes later they announced that they had reached a verdict and were brought back into the courtroom. The court polled the jury and each juror indicated that it was his verdict. Upon reading one of the verdict forms the court commented to the jury that there was an apparent misplacement of “a comma and a decimal point,” and asked the jury to retire once again to determine whether or not “the comma and the decimal are in the right place or not.” Thus at that point in the trial the court had not received a verdict from the jury.

A short time later the jury again indicated that they had reached a verdict and returned to the courtroom where the following occurred:

THE COURT: Ladies and Gentlemen of the Jury, have you reached a verdict in this case?
MR. DAVIS: We have.
THE COURT: Is this the unanimous verdict of each and every one of you?
JURORS: Yes.
THE COURT: Let the record indicate that all jurors indicated that it was the verdict of each and every one, the unanimous verdict of each and every one. I will ask the Foreman to hand the verdict to the Bailiff and the Bailiff hand it to the Court.
(Whereupon, the Foreman and Bailiff complied with the Court’s instructions.)
* * * * * *
THE COURT: I will ask that the Clerk of the Court read the verdict of the jury.
THE CLERK: We, the jury, find for the Plaintiffs and against Defendants Charles and James Beach and assess damages in the amount of $34,583.33 plus 6% interest, James Davis, Foreman. We, the jury, find in favor of the Plaintiffs and against Defendant Preferred Risk Mutual Insurance Company and assess damage in the amount of $19,000.00 plus 6% interest. We, the Jury, find for the Cross-complainant Plaintiffs Preferred Risk Mutual Insurance Company and against the Defendants Charles and James Beach and assess damages in the amount of $19,000.00 plus 6% interest, James Davis, Jr., Foreman.
* * * * * *
THE COURT: I want to thank you very much for your services as jurors in this case. It has been a long case, and you all have done an excellent job as jurors in fulfilling your obligations. I know it has been inconvenient for you to give up all the time to serve on the jury and for that the State of Alabama and the County of Mobile and all the attorneys involved, we are deeply grateful to you, for your services. There is one bright light, and that is, you can be paid. If you all will step down to the Clerk’s office, you can be paid for your services as jurors. Needless to say, you don’t have to report back for jury duty. I will say this to you, considering, you won’t have to report back this week. In the event you all do get called to serve during this term of Court, to jury duty, I will see about having you excused from jury duty. Again, I want to thank you.
* * * * * *
(Whereupon, the Jury prepared to leave the Court Room.)
* * * * * *
(Whereupon, the jury returned to the Court Room.)

At that point the trial judge returned to his chambers and counsel for one of the defendants left the courtroom; plaintiffs’ counsel, still in the courtroom, discussed the verdict with one of the jurors, and then went to the trial court’s chambers:

MR. KILLION: Judge, since the jury had the question that they asked with reference to the forms of the verdict, I know that I asked Your Honor while they were coming out, questions, but to make sure before, and to preserve the record in their presence, please Sir, that they understand that the maximum award given the Plaintiffs is $34,583.00. As long as they do, that’s fine. I just wanted to make sure of that, that they understand it.
THE COURT: Does either side wish the jury to be polled?
MR. KILLION: On that aspect, yes sir.
MR. RICHARDSON: Your Honor, we respectfully except to the question being asked.
THE COURT: I will poll the jury as to whether or not it was the verdict of each and every one, the verdict as rendered by the jury.
MR. KILLION: In the amount rendered.
THE COURT: As to the verdicts as rendered by the jury only.
MR. KILLION: We except.
* * * * * *
THE COURT: Let the record indicate that the entire jury is back in the jury box. Ladies and Gentlemen of the jury, you have rendered your verdict and it was read into the record, and the attorneys have come into my office saying that, Mr. Killion stated to the Court that he had talked with you and apparently you are all still here, as I come back on the Bench. We are treading on new grounds as far as what we are doing at the present time. I have one question where I would ask of the jury, whether or not the jury understands in the rendering of the verdict which has been presented to this Court, that the total amount that the Plaintiffs Stuarts are to receive in this case would be $34,583.33 plus 6% interest.
MR. DAVIS: No sir, and I think I am speaking for the jury. That figure—
THE COURT: You have answered my question.
MR. DAVIS: I’m sorry.
THE COURT: Did any one of your jurors, let me see how I should ask this, are the verdicts that were submitted to the Court by the jury, are these the verdicts of each and every one of you?
(Whereupon, the jurors nodded affirmatively).
THE COURT: Does the jury understand by the verdict that they have rendered, that the Plaintiffs in this cause will not receive the sum total of the two figures, that is $19,000.00 plus 6% interest and $34,583.33 plus interest?
MR. DAVIS: No.
THE COURT: Does the jury wish to go back and redeliberate their findings?
JUROR: Yes, Your Honor.
THE COURT: Is that the feeling of each and every one of your jurors.
JUROR: Yes, Your Honor.
THE COURT: Let the record indicate that each of the jurors indicated in the affirmative. Is there any one of your jurors that does not wish to re-deliberate your findings? Let the record indicate that none of the jurors responded to that question. I am going to give the jury, what we are doing now I know of no precedent for it, but I am sure that, I am going to allow you, that the Court is interested in seeing that the wishes of the jury is demonstrated in their verdict. I am going to allow the jury to take back the verdict forms that they previously had which were previously given to them. I am also giving to the jury another set of those same verdict forms that the Court previously had given to them, carbon copies of those. I would ask that any subsequent verdict rendered by this jury be made on these blank forms. Do any of the attorneys wish to see these forms?
MR. REEVES: Were there any changes on those forms?
THE COURT: Yes, sir, but I also gave them Number Four and assess damages at blank dollars. All right, Ladies and Gentlemen of the jury, I am going to allow you to go back into the jury room with both sets of these verdict forms. If you desire to render a verdict form, I ask that you not change or make any marks on the verdict forms you previously have submitted to the Court. You may render your verdict on the other form. You may return to the jury room.
* * * * * *
(Whereupon, at 7:15 P.M., the jury returned to the jury room.)
* * * * * *
MR. RICHARDSON: Previously we excepted, and Charles and James Beach now respectfully except to the Court’s rein-structing this jury after they had rendered a verdict in this case. I want to state for the record that while Mr. Killion was in Court and Mr. Reeves was standing right here in Court and my client was in Court, that I had left the Courtroom with my clients in the hallway proceeding to go to my automobile when Mr. Killion came at me and informed me that he had a conversation with the jury after they had returned your verdict, whereupon the jurors in discussing the verdict and the results of the verdict wherein Mr. Killion informed me that back in the Judge’s Chambers, jie told the Court, he summoned me back in the Judge’s Chambers and told the Court that he didn’t think the jury really wanted to give what they had returned and urged this Court to put them back in the box, and put them in the jury box and re-charged them. It’s contrary to the law of Alabama; it’s contrary to everything I know about the jury system, the Court putting the jury back in the jury box and re-charging them. It’s contrary to the system of telling the jury the form of verdicts to be returned. I except to it as contrary to the law. It’s contrary to the established principles established by our Supreme Court in doing this. The conversations that took place with these jurors was out of my presence after the jury had been returned, they had gotten out of the box and were preparing to ieave. I object to it and my clients object to it, and I ask this Court to declare a mistrial in this case immediately. I want you to state for the record, Mr. Killion, whether or not those conversations took place in my presence.
MR. KILLION: I want at this time to state exactly what happened. Let the record show that after I asked the question I did, the record would show that after the jury returned its initial verdict, that as the jury was filing out of the box into the Courtroom here, and Mr. Boyd Reeves was standing there by me, one of the jurors came up to me and said, inquiring as to whether or not the, basically the words being, “Did the Stuarts get the $19,000.00,” and also as far as the judgment against Preferred Risk, in addition to $34,000.00, and I answered, “No, they did not.” So, he turned around to the other jurors and said “We didn’t,” he turned around to the other jurors that were there and said, “We didn’t, see, I told you that, I didn’t think that we were doing that”, something to that effect. At that point and time, and that was the extent of the conversation. Mr. Reeves can say whether or not there was anything else. That’s all I can remember. At that point and time, one of the jurors was right at the door leaving. I asked that the jury not leave then until, and Mr. Richardson was thirty-five feet away from the Courtroom, forty feet, something like that, talking to his clients. I asked him if he would come back so I could see Your Honor. At that point we went in to Your Honor and advised Your Honor of the comments made to me and that the jury was still all in the Courtroom and had not left. And that’s what led up to this situation. I further advised Your Honor that it was my opinion with reference to the question the jury had asked previously prior to arriving at its initial verdict that it seems that there was some doubt as to exactly, if the jury knew how to arrive at a verdict since we had complicated issues and three particular different claims being presented in this action. It seemed that since the'jury had not left the Courtroom, since they were all still here, since it was clearly evident by all of them that none of them had arrived by the form of the verdict at what they really wanted to arrive at, all of which is supported by Your Honor’s questioning of the jury and by the unanimous individual reply that they did not want to give to the Plaintiffs just the sum of $34,583.00, but by the forms of the verdicts they have rendered, they did not accomplish their intent, and that in order to see that justice was carried out, what is now taking place is a result of that. Nothing else has occurred. They are still here. The Jury did not leave, they did not get away from here. I want to make that clear in the record. For the record, we have got a jury box probably about twenty-five feet away from the door, and they didn’t get out of this Courtroom, and as the jurors were, and I was stationed over here by the door, and as they were leaving, I got this, I don’t know his name, a little short gentleman back there on the back row, was the particular juror that was the one that made the statements he did. If I have incorrectly stated anything, Mr. Reeves can correct me. I am not trying to draw upon the inference, you know, put in a word wrong.
MR. REEVES: Your Honor, initially, let me object on behalf of Preferred Risk. I don’t know what this jury is going to do when it goes back there again, but for the purposes of this record and in order to preserve it, I would like to, on behalf of Preferred, object to this procedure after a verdict has been rendered. I'will confirm that as the jury was leaving—
* * * * * *
(Whereupon a knock was heard from the jury room door.)
* * * * * *
THE COURT: Just one second, Mr. Canton.
MR. CANTON (Bailiff): Have you reached a verdict? Just wait a minute.
MR. REEVES: I will confirm that as the jury was leaving the first or second juror came up to Mr. Killion and asked, in the absence of Mr. Richardson, who had left the Courtroom with his clients at that time, asked if the $1,900.00 [sic] would also be received by Mr. Stuart, and Mr. Killion said, “No, it would not,” and he said, “That is not what we intended to do,” and turned around to the other jurors and said, “We didn’t do what we wanted to do,” and at that time Mr. Killion said he wanted everybody back in, and I also want the Court to know that Mr. Richardson was not present when we got to this point.
MR. KILLION: I did not mean to leave that out. I don’t know, I assumed that Mr. Richardson was outside, and that’s where I got him from, I really don’t know.
MR. RICHARDSON: I can definitely state that I was outside.
MR. KILLION: That’s where I got him from after the events related.
THE COURT: The Court will state that the Court went to the Court’s Chambers, and the attorneys came to the Court and informed the Court that the, informed the Court further that all of the jurors were here in the Courtroom. I don’t know who asked the jurors to remain.
MR. KILLION: Well, I think I asked Mr. Canton, Judge, when that was said, I asked Mr. Canton if he would have the jurors remain and the Bailiff took care of that.
THE COURT: When the Court came into the Courtroom, the jurors were in the jury room. I must admit this is a highly irregular procedure. I cannot think of a case in which this ever happened before. I was treading on new ground. However, the Court will say that it is the Court’s intent that the verdict of the jurors be the verdict of the jurors, and the questioning that the Court had of the jurors, that it was obvious that it was not a verdict of the jurors in that they asked to be allowed to reconsider and to go back for further deliberations. The Court is interested to see that justice is in fact done in allowing this procedure. Is there anything further, Gentlemen, before we call the jury back in?
MR. KILLION: No sir.
MR. RICHARDSON: We respectfully except to these proceedings and again ask the Court for a mistrial and that the Court give me a ruling on this motion.
THE COURT: At this time the Court will deny your motion for a mistrial.

At that point the jury returned to the courtroom and reported another unanimous verdict:

CLERK: We, the Jury, find for the Plaintiffs and against Defendants Charles and James Beach and assess damages in the amount of $53,583.33 plus 6% interest. James Davis, Jr., Foreman. We, the Jury find in favor of the Plaintiffs against Defendants Preferred Risk Mutual Insurance Company and assess damages in the amount of $19,000.00 plus 6% interest. James Davis, Jr., Foreman. We, the Jury, find for Cross-Plaintiff Preferred Risk Mutual Insurance Company and against Defendants Charles and James Beach and assess damages at $19,-000.00 plus 6% interest. James Davis, Jr., Foreman.
THE COURT: All right, Ladies and Gentlemen of the Jury, is the verdict, I will ask you again, is the verdict as read by the Clerk the unanimous verdict of each and every one of you? Let the record indicate that each juror indicated in the affirmative. I will ask that the first verdicts rendered by the jury to the Court be put together and be marked as Court’s Exhibits One, and that the second set of verdicts as just read by the Clerk and submitted by the Jury be marked as Court’s Exhibit Number Two.

Until a jury has been discharged, it is within the power of the trial court to direct it to correct its verdict so as to make it appear in proper form. Robert P. Stapp Machinery Co. v. Russell, 277 Ala. 84, 167 So.2d 167 (1964); 18A Ala.Dig., Trial, Key 339. There are other cases on this general subject, but they disclose facts wherein the jury was asked by the court to correct er rors in the form of their verdicts prior to their discharge. E. g., City of Tuscaloosa v. Fair, 232 Ala. 129, 167 So. 276 (1936)(overruled on other grounds in Jacks v. City of Birmingham, 268 Ala. 138, 105 So.2d 121 (1958)); Butler v. Walton, 36 Ala.App. 319, 56 So.2d 369 (1951). It is clear that this option was exercised by the trial court when the jury’s attention was called to the decimal and comma in the verdict form and the jury was directed to deliberate once again. It is equally clear under our authorities that the discharge of the jury by the trial court ends their consideration of the case. St. Clair v. Caldwell & Riddle, 72 Ala. 527 (1882), following Walters v. Junkins, 16 Serg. & R. 414, 16 Am.Dec. 585 (1826). In Walters, after the jury had reported their verdict, which found certain costs taxable against the defendant, we find that these events transpired:

The verdict was recorded, and the jury formally told that they were discharged. The jury, or most of them, remained in the box while another cause was progressing. Upon a conversation between the foreman and the plaintiff’s attorney it was intimated that the jury intended to find full costs against the defendant. The court then instructed the jury to retire and certify what they intended their verdict should be. They did so; and returned that their finding had been six cents damages and full costs, and the minutes were so corrected....

Such a practice found disfavor in the court’s opinion:

After the jury have rendered their verdict, it is read to them, that they may say whether the court have recorded it according to their finding. If any mistake should have occurred, it may be immediately corrected. To permit an alteration after the jury are dismissed, would lead to great abuses, and I am unwilling to extend the principle further than the adjudged cases. How long shall this privilege last; how draw the line of distinction, and in what manner shall we ascertain whether it be the correction of an honest mistake, or the result of improper tampering and out-of-door management with the jury? The remedy attended with the least danger is to commit the cause to another jury on a motion for a new trial [or when the error is preserved during trial under the authority of Rule 4(a)(3), ARAP. McGough v. Slaughter, Ala., (MS., March 6, 1981.) 395 So.2d 972 (1981).]
The law allows the jury all reasonable opportunity before their verdict is put on record, and they are discharged, to discover and declare the truth according to the judgment. The court may also, of their own accord, send the jury back to reconsider their verdict, if it appears to be a mistaken one, and before it is received and recorded. [Citations omitted.] Although these cases do not expressly determine the point, the inference is irresistible that where the verdict is received, recorded, and the jury dismissed, as here, they have not the power to alter their verdict.

The foregoing reasons in a case so strikingly similar to the extant facts point up the difficulty in arriving at any solution other than an absolute ,one. “How long shall the privilege last?” Once the verdict has been received and the jury discharged, should we or the participants be allowed to speculate on the degree to which the trial court has lost its control over the conduct or the deliberations of that jury, to the end that every such instance becomes a relative issue? What lines of realistic distinction shall exist between the cases which will result when we observe that the jury, though being discharged and thus free from the constant supervision and authority of the court, nevertheless were still physically in the courtroom and therefore still subject to some form of that supervision? And how shall we determine what went on between lawyer and juror when the trial judge and opposing counsel both were absent? In Edwards v. Seaboard Coast Line R. Co., Ala., 384 So.2d 96 (1980), this Court refused to countenance discussions between the trial judge and individual jurors in chambers, even though the well-meaning trial judge had in his own view substantially recited for the record the entire conversations. Our concern was not only for the impartiality of the tribunal but for the appearance of impartiality as well:

“Whether or not injury or injustice has resulted to the litigants by reason of the conduct, is not our primary concern. Rather, our concern is with the implication that attaches to the administration of justice under these circumstances. Confidence in our judicial system is imperiled if such conduct is countenanced in jury trials. Conduct which if proved would give rise to doubt and disrespect, or the mere appearance of such conduct as will not meet with the approval of public opinion, must be severely condemned. It is only through the granting of a new trial in situations like this, as well as vigilant efforts by the officers of the court to prevent such occurrences, that public confidence in the jury system may be preserved. Rasmussen v. Miller, 268 Wis. 436, 68 N.W.2d 16, 18.” [Quoting from Daniels v. Bloomquist, 258 Iowa 301, 138 N.W.2d 868, 872 (1965).]

In our view, those statements apply with equal force to the situation before us. It is doubtful that the purest motives for exacting duplication can completely and perfectly repeat what may have been exchanged between lawyer and juror when both have been released from the direct control of the supervising judge, or that the appearance of impropriety can be removed. The elimination of suspicion in such instances is too much of a burden on judges and lawyers alike, whatever the motives for the communication, when the latent dissatisfactions with ad hoc decisions on such issues are available to those who already find it easy to criticize the judicial system and its participants. The integrity of the specific decision and that of the entire system are affected. Recognition of the need to prevent such occurrences is not the application of some mean technicality. What we deal with here is at the very root and branch of the jury system itself. The integrity of that system does not permit such instances to be decided by “the length of the chancellor's foot.”

The case of Brown v. Barr, 269 Ala. 497, 113 So.2d 924 (1959), cited by the appellee, is inapposite. That case held only that a discharge of a civil jury had not occurred when, following their charge, they were allowed to separate before they rendered their verdict. Likewise, Alabama Power Co. v. Cleckler, 295 Ala. 73, 323 So.2d 344 (1975), clearly involved the correction of a clerical mistake under Rule 60(a), ARCP, and not a discharge.

The case of Masters v. State, Fla.App., 344 So.2d 616 (1977), decided by the First District Court of Appeal of Florida, does stand for the principle that a discharged jury which in fact remained an undispersed unit within the control of the court, could be re-impaneled to consider another verdict. An examination of the facts of that case, however, reveals clear distinctions from those presented by the record in our case. In Masters the jury had found double verdicts of guilty under one count of an information but no double conviction under other counts. The verdicts were read, the trial court instructed the clerk to publish them, the clerk did so, and the court discharged the jury, “advising them that they could go their separate ways for the term.... But almost immediately upon the discharge of the jury the court’s attention was called to the fact” of the jury’s error, and

[t]he court ... called counsel to the Bench and informed them as to what had been disclosed to him. The record is silent as to whether the jury had left the courtroom, or if so, how far they had retired when the court learned of the double verdict .... It was recalled within minutes of its discharge and it is therefore evident that they had not left the courthouse. The record is silent again as to whether the individual jurors had separated before they were recalled. There is nothing in the record to indicate that any outside influence had been brought to bear upon the jury, or any member of it during the interim before its recall, or that any opportunity existed for the jury, or any member of it, to be communicated with or tampered with by any person during the very few minutes that transpired between the time of discharge and recall....

And the district court of appeal added, at 621:

The very case upon which it had been impaneled was still under discussion by the court, without the intervention of any other business, at the time it was recalled for the purpose of clarification of its verdict. ...

The factual distinctions which lie between Masters and the present case lend support to our position and disclose the lack of application of Masters here. Following discharge here the trial judge retired to his chambers. Thus the courtroom did not possess his presence as a control over the conduct of the discharged jury. Also, the very case which the jury was impaneled to hear was not “still under discussion by the court without the intervention of any other business” at the time the jury was recalled. Moreover, there was no call of all counsel before the court almost immediately. And the record does affirmatively disclose the ex parte communication by one of a party’s counsel during the few minutes transpiring between the discharge and recall, and while one of the parties’ counsel was outside the courtroom.

Because we have concluded that this cause must be reversed and remanded for a new trial, it is unnecessary to address other issues raised.

REVERSED AND REMANDED.

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

JONES, J., concurs specially.

MADDOX and FAULKNER, JJ., dissent.

JONES, Justice

(concurring specially):

Initially, I was inclined to affirm the trial court’s rulings and its judgment entered thereon. My further consideration, however, convinces me that the holding of the majority opinion is correct. While I am still of the opinion that the trial judge acted commendably in his handling of this matter once the jurors’ confusion was called to his attention, I nevertheless agree with the majority that reinstructing the jury and allowing them to return a “corrected” verdict was improper under the circumstances. After all, out of the court’s presence and after counsel for one of the parties had left the courtroom, Plaintiff’s counsel had a conversation with one or more of the jurors concerning the form and substance of the verdict they had just returned. To allow the second verdict to stand, at the very least, gives the appearance of impropriety.

This in no way is intended to impugn the conduct of Plaintiff’s counsel. Indeed, I have no difficulty in the instant case in accepting, fully and completely, counsel’s version of what occurred between himself and the jurors. This encounter cleared up a misunderstanding and presented a result not intended by the jury that heard the case. That is served as a basis for a new trial can hardly be debated; but to reconvene this same jury, reinstruct them, and accept their “corrected” verdict as the basis for the court’s judgment is to risk bad precedent. Thus, I concur in the result to reverse and remand for a new trial.

MADDOX, Justice

(dissenting).

The majority correctly cites the general rule that if a jury is discharged, it cannot be reassembled to consider a verdict, but to apply that rule in this case, where the trial judge, in due time, revoked his order of discharge, fails to follow the law regarding a court’s power to revoke a discharge order.

The majority relies heavily upon this Court’s case of St. Clair v. Caldwell & Riddle, 72 Ala. 527 (1882). In St. Clair, this Court did opine:

Could the court, three days afterwards, re-assemble the jury, and have them perfect their verdict? It would be a dangerous practice, and might lead to great abuse. — Walters v. Junkins, 16 Serg. & R. 414, 16 Am.Dec. 585. No precedent for it has been produced or found. In the case of Brister v. The State, 26 Ala. 107, this court held that the jury, which amended its verdict in that case, had never in fact been discharged, or gone beyond the immediate, continuous control of the court. That case, then, is not an authority for the appellees. Waller v. The State, 40 Ala. 325, is strongly the other way. True, these were State cases; but, on the question we are considering, they tend strongly to put the Circuit Court in error in this case.

A close reading of the St. Clair case indicates that this Court was not applying a rigid rule regarding the discharge of a jury. A three-day period had elapsed before the jury was reassembled in St. Clair. In fact, in St. Clair, the Court cited Brister v. State, 26 Ala. 107 (1855), and distinguished it. Brister is much more analogous to this case. In Brister, the jury had been discharged, but the court had immediately reassembled the jury, as the court did in this case. In Brister, this Court set out the facts and its judgment as follows:

The rule of law is undoubted, that one tried for a crime has a right to be present when the jury return their verdict against him. But the reason — the only reason — of this rule is, that he may examine them by the poll, to ascertain if they assent to his conviction. The State v. Hughes, 2 Ala. 102, 36 Am.Dec. 411. When it is clear that the reason of this rule has been fully satisfied, the rule itself is satisfied. When the jury returned with their verdict in this case, and announced that they had agreed, the prisoners were not in court, but in jail. But the court, not knowing this, directed the clerk to receive and read the verdict, and the clerk did read it aloud in the presence of the court and a large number of bystanders. “The court then observed to the jury, that they were discharged, and the jury started out of the courtroom, but had not got out of the bar. It was then discovered, that the prisoners were not in court, and the court immediately stated to the jury, they were not discharged, and ordered the clerk to hand the papers in the cause back to them, and directed the sheriff to bring the Prisoners into court. When the prisoners were brought into court, they objected to the court’s receiving the verdict of the jury, on the ground that the verdict had been received by the court and read aloud in their absence, and that they had been deprived of their right to have the jury polled; but the court overruled the objection, received said ver-diet, and ordered the same to be read in the presence of the said prisoners; which was done accordingly, and said prisoners excepted.”
Upon these facts, we hold that the jury were not discharged, in legal contemplation, by the occurrences which transpired in the absence of the prisoners. The observation of the court to the jury, that they were discharged, was revocable by the court for a time, and was revoked in due time. The revocation was in time, because it was almost instantaneous and whilst the jury, as a body, were still continuing to be in the bar, and in the presence and power of the court. This revocation being in time, we think the court had the power to return the papers in the cause to the jury, and to do what it then proceeded to do. Such a course of proceeding did not deprive the prisoners of the right nor the opportunity to examine the jury by the poll. There is nothing sound in the argument that the right to poll was prejudiced by the fact that the verdict had been previously read aloud in court; for the right to poll the jury cannot be exercised in any case until the verdict has been read aloud in court. 2 Hale’s P.C. 299-300.

It is obvious that the rule regarding discharge of a jury is not so rigid that it is applied blindly without regard to what is right and wrong as the majority holds, but is applied on a case-by-case basis, depending on the facts of each case, giving due regard to the established principle that a court can revoke its discharge order. The reason for the rule that a jury, once discharged, cannot be reassembled, is to prevent juror tampering and to give finality to verdicts, both laudable goals. Here, there is not the least scintilla of evidence to suggest anything occurred other than that the form of the jury verdict did not truly reflect what they actually decided upon in this case. This Court, by reversing the judgment and remanding the cause for a new trial, has destroyed the finality of the first verdict.

I respectfully feel that the Court has fallen into error by applying the discharge of the jury rule the way that it has. In the past, this Court has not been so procrustean in such matters.

For example, in Alabama Power Company v. Cleckler, 295 Ala. 73, 323 So.2d 344 (1975), the appellant made many of the same arguments which the appellant made here, viz.:

1. There was a discharge of the jury prior to the activity in court leading to the entry of judgment.
2. The judgments) of the court were based upon the second deliberation of the jury.
3. There was no acceptance by the court of the oral declaration of the jury as a verdict.
4. The court had no further authority to reassemble the jury and allow its rede-liberation upon having noted the disparity between the announcement and the written verdict.
5. The court did not attempt to correct or amend the original verdict of the jury, but apparently rejected the first finding and announcement by the jury entirely and ordered a redeliberation of the case by the jury.

The only issue presented on that appeal involved the irregularity of a jury verdict. When the jury foreman announced the verdict to the court in that case, which involved a negligence action, he stated it as “$45,000.” On the verdict form, however, the amount was shown as “$4,500.”

There, the jury had concluded its deliberations at 9:50 a. m., when the foreman read the verdict as $45,000. The jury was requested to remain in the courtroom so they could be qualified in another case. One member of that jury was excused for the remainder of the day. The trial judge discovered, within 20 minutes, the inconsistency between the verdict as read by the foreman and the verdict as written. He reassembled the jury, including the one member who had gone home, and explained the inconsistency and asked the jury to return to the jury room, and “correct your verdict.” In Alabama Power Company v. Cleckler, this Court opined:

We could discuss at length, whether the oral verdict was true, whether the jury was discharged and therefore could not be reassembled, and other points regarding jury verdicts, but we consider it unnecessary to do so. It is obvious from what transpired in this case that the $4,500 sum entered on the written verdict was a clerical error.

During oral arguments of this cause, I asked appellant’s counsel if the so-called first verdict represented “the verdict that the jury actually decided upon.” Appellant’s counsel answered “No, Your Honor.”

I am of the opinion that the trial judge, the parties and their counsel, are all aware that the first verdict did not, in fact, represent the verdict that the jury agreed upon in this case. The question about the effect of the verdict was asked by one of the jurors and the juror, not appellee’s counsel, stated that the verdict did not represent their true verdict. I am quite aware of the dangers involved in reassembling a jury, and I am sensitive to the rule that courts should avoid the appearance of impropriety, but I must respectfully suggest that under the facts of this case, this opinion will more likely destroy the public’s confidence in the judicial system rather than strengthen the public’s confidence. In short, I respectfully think that justice and right have not prevailed in this case, and that is the reason for my dissent.

FAULKNER, J., concurs.


source: Caselaw Access Project

author: PER CURIAM. JONES, Justice

license: Public Domain

text:
    SEARS, ROEBUCK & COMPANY, INC. v. HAVEN HILLS FARM, INC.
    79-438.
    Supreme Court of Alabama.
    March 12, 1981.

      Paul W. Brock and Ronald L. Davis of Hand, Arendall, Bedsole, Greaves & Johnston, Mobile, for appellant.
    John T. Crowder, Jr. of Cunningham, Bounds, Byrd, Yance & Crowder, Mobile, for appellee.
   PER CURIAM.

The single issue presented is whether the mere fact that a motor vehicle tire blows out proves the tire is a defective product under the Alabama Extended Manufacturer’s Liability Doctrine. We hold that an affirmative response, under the attendant circumstances shown by the proof of record in the instant case, would be an impermissible expansion of the standards for liability of manufacturers, suppliers, or sellers of products under Alabama law.

FACTS

Haven Hills Farm, Inc., purchased a tire from Sears, Roebuck & Co., for a truck used in the transportation of eggs sold in its wholesale egg business. Haven Hills purchases eggs from Cal-Maine Foods near Jackson, Mississippi, and transports them to Mobile, Alabama, for distribution to various food stores. The company has only the one large truck, for use on which the tire was bought, for shipping the eggs to Mobile; although it has several vans utilized in the distribution of the eggs. Only one person, William Hicks, ever drove the truck. On one such return to Mobile from picking up eggs in Mississippi, the left front tire on the truck blew out, causing the truck to turn on its side, destroying the eggs. The evidence shows that the tire had been driven approximately 30,000 miles.

Haven Hills filed suit against Sears, alleging that: 1) under the Alabama Extended Manufacturer’s Liability Doctrine, Sears sold or distributed the tire in a defective condition unreasonably dangerous to consumers or other persons likely to be exposed to potential hazard; and 2) Sears breached its implied warranty of merchantability. Haven Hills sought an award for property damages and lost profits. On motion, the claim for lost profits was denied.

In its answer, Sears denied the material allegations and affirmatively pleaded that Haven Hills: 1) was itself guilty of negligence which proximately contributed to its injuries and damages; and 2) caused or allowed the truck to be misused. Sears’ motions for directed verdict were denied and the jury returned a $21,856.88 verdict in favor of Haven Hills. The trial court overruled Sears’ motion for judgment notwithstanding the verdict or, in the alternative, for a new trial.

We hold that the trial court erred in denying Defendant’s motion for a directed verdict based upon Plaintiff’s failure to meet its burden of-proving its allegation of the tire’s defective condition at the time of its sale by Sears. Therefore, we reverse and remand for a new trial.

ALABAMA MANUFACTURER’S LIABILITY DOCTRINE

Although earlier Alabama cases had employed the “manufacturer's liability doctrine,” rejecting the privity of contract requisite in warranty claims, Casrell v. Altec Industries, Inc., 335 So.2d 128 (Ala.1976), and Atkins v. American Motors Corp., 335 So.2d 134 (Ala.1976), refined the cause of action to its presently recognized status and labeled it the Alabama Extended Manufacturer's Liability Doctrine. Together, Cas-rell and Atkins changed products liability cases in this State from the pure form of negligence theory to a modified version of the Restatement (Second) of Torts, § 402A (1965), strict liability theory, premising liability on proof that the injured ultimate user:

1) suffered injury or damages to himself or his property by one who sells a product in a defective condition unreasonably dangerous to the plaintiff as the ultimate user or consumer, if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
(2) Showing these elements, the plaintiff has proved a prima facie case although
(a) the seller has exercised all possible care in the preparation and sale of his product, and
(b) the user or consumer has not bought the product from, or entered into any contractual relation with, the seller.

Casrell, at 132-133; Atkins, at 141; Restatement (Second) of Torts, § 402A (1965).

Additionally, AEMLD allows defendants to escape liability by proving certain permitted legal defenses such as contributory negligence, assumption of risk and lack of causal relationship. Moreover, this Court rejects the no-fault concept embodied in the Restatement (Second) of Torts, and notes that fault is supplied by the defendant’s selling a product in a defective condition, unlike before, when fault was shown by the careless conduct of the defendant, i. e., his failure to exercise due care in the manufacture, design, sale or placement of the product into the stream of commerce. Emphasis is now shifted from the Defendant’s performance to the product’s performance.

It is precisely because of these unique features, allowing certain affirmative defenses, retaining the fault concept, and preserving the distinctions between tort and contract remedies, that Alabama modifies the Restatement (Second) of Torts, § 402A. Although this hybrid form of strict liability in products liability cases still retains vestiges endemic to the negligence cause of action, it substantially opened the way for injured ultimate users to sue the manufacturer, supplier or retailer for injuries proximately caused by a defective, unreasonably dangerous, unaltered product when put to its intended, usual and customary use.

PLAINTIFF’S BURDEN TO PROVE DEFECTIVENESS

With this as the historical background of AEMLD, the threshold inquiries then become: 1) What is the definition of a “defective” product? 2) What is Plaintiff’s burden of proof? and 3) Has Plaintiff met that burden under the proof of record before us?

This Court, defining a defect, has borrowed from two separate legal authorities. The Uniform Commercial Code, § 2-314, speaks in terms of unmerchantability as evidence of product inadequacy, i. e., that the goods are not fit for the ordinary purposes for which such goods are expected to be used. The Restatement (Second) of Torts, § 402A, speaks in terms of “unreasonably dangerous.” Combining these two principles, and using each in aid of the other, Casrell, at p. 133, states:

[A] “defect” is that which renders a product “unreasonably dangerous,” i. e., not fit for its intended purpose, and ... all “defective” products are covered.
* * * * * *
“Defective” is interpreted to mean that the product does not meet the reasonable expectations of an ordinary consumer as to its safety. Comment g. of the Restatement says defective condition applies when, at the time the product leaves the seller’s hands, it is in a condition not contemplated by the ultimate consumer.

See, also, Atkins, at p. 142, under that portion of the opinion entitled “Defective Condition”; and Restatement (Second) of Torts, § 402A, Comment i.

Accordingly, proof of the specific defect, i. e., the exact act, omission, process, construction, etc., resulting in the product’s failing its intended use, is not required. “If a product is unreasonably dangerous, it is necessarily defective, and the consumer should not be required to prove defectiveness as a separate matter.” Casrell, at 131.

Before applying the definition of defect to the facts at issue, we now address the second inquiry as to the Plaintiff’s requisite proof to establish a prima facie case. Liability is not established merely by showing that the product failed in furthering or performing its intended use. The Plaintiff must prove that the product was substantially unaltered when used by him and must also prove causation in fact, including proof that the defect caused the injury and that the defect is traceable to the Defendant. 2 Frumer-Friedman, Products Liability, § 16A[4][e][i] (1980).

It is not enough to show, for example, that Sears sold the tire and that Haven Hills was injured.

The fact of an injury, of course, does not establish the presence of a defect. Thus, recovery cannot be predicated on injury alone, for linking liability to injury rather than to proof that a product is defective creates absolute rather than strict liability.

Edwards v. Sears, Roebuck & Co., 512 F.2d 276, 289 (5th Cir. 1975). Necessarily, then, this test is met only by a showing that the product’s failure of performance is causally related in fact to the product’s defective condition at the time of its sale.

The evidence and testimony likely to prove the defect — that which rendered the product not fit for its anticipated use — and the defect’s link to the Defendant, depend upon the nature of the facts; but, ordinarily, expert testimony is required because of the complex and technical nature of the commodity. See, e. g., Edwards v. Sears, Roebuck & Co., supra; Smith v. Uniroyal, Inc., 420 F.2d 438 (7th Cir. 1970); Gherna v. Ford Motor Co., 246 Cal.App.2d 639, 55 Cal. Rptr. 94 (1966); Baker v. Ford Motor Co., 501 S.W.2d 11 (Mo.1973); Ginnis v. Mapes Hotel Corp., 86 Nev. 408, 470 P.2d 135 (1970).

This does not mean, however, that experts are always required, but simply that they are usually essential to produce evidence from which lay jurors may reasonably infer that the defective condition of the product is the cause of the product’s failure and plaintiff’s resultant injury. If such an inference may be reasonably made from the product’s failure of performance under all the attendant circumstances absent expert testimony, a prima facie case is nonetheless established.

At this juncture, it is important to note, again, that it is not negligence in the traditional sense (i. e., lack of due care in the product’s manufacture or design) that is required; rather, the Plaintiff has proved a prima facie case where the evidence raises a reasonable inference from which the fact finder may rationally conclude that plaintiff’s injuries and damages resulted proximately from the product’s failure of performance causally related to its defective condition. See, Atkins, at 140. The burden of proof rests with the injured, consumer to prove that the product left the defendant’s control in an unreasonably dangerous condition not fit for its expected use, and that which rendered the product in such an unfit condition in fact caused the injury. The plaintiff’s burden will not be sustained without evidence to support the conclusion that the product is defective. Restatement (Second) of Torts, § 402A, Comment g.

ADEQUACY OF PLAINTIFF’S PROOF

The evidence of record before us shows only that a 4V2 month old tire, driven approximately 30,000 miles, blew out while mounted on a truck carrying 11,862 dozen eggs on a paved highway under normal weather conditions. To permit an inference of defect from such meager evidence would be to allow the fact finder to indulge in mere conjecture and speculation. While the gravamen of the injured consumer’s claim of culpability is shifted from the Defendant’s lack of due care in the product’s manufacture or design to its sale in a defective condition, the traditional burden of proof standards applicable to tort cases, generally, remain intact. The burden of proof is not shifted to Defendant until, under traditional standards, Plaintiff has established a prima facie case.

The rule that mere failure of a product does not presuppose the existence of a defect is accepted in other jurisdictions. In Shramek v. General Motors Corp., Chevrolet M. Div., 69 Ill.App.2d 72, 77-78, 216 N.E.2d 244, 247 (1966), the Court stated:

Whether the charge is breach of implied warranty, negligence or the strict tort liability ... the cornerstone of plaintiff’s cause of action is the existence of a defect in the tire at the time it left the control of the manufacturer or seller. Without this proof his case must fall.
* * * * * * *
The mere fact of a tire blowout does not demonstrate the manufacturer’s negligence, nor tend to establish that the tire was defective. Blowouts can be attributed to myriad causes, including not only the care with which the tires are maintained, but the conditions of the roads over which they are driven and the happenstance striking of damaging objects.

CONCLUSION

Having concluded that the judgment below must be reversed and remanded for a new trial, we pretermit consideration of other points raised by Appellant. Neither will we indulge in comments concerning the state of the record regarding proof of affirmative defenses by Appellant. Reversal is based on Plaintiff’s failure to prove a prima facie case: i. e., the failure of the evidence to furnish a reasonable inference of the tire’s defective condition; thus, the trial court erred in denying Defendant’s motion for a directed verdict. Ordinarily, where we conclude, as we do here, that Appellant was entitled to a directed verdict in its favor it would be appropriate to enter judgment notwithstanding the verdict in behalf of Appellant or direct that it be entered by the trial court. This we will not do for the reason that this case is the first time that a full review by us has been made of the burden and standards of proof necessary to establish a prima facie case under the Alabama Extended Manufacturers Liability Doctrine.

Our holding, of course, is not intended las a restriction upon the prerogative of the trial court, in the exercise of its sound discretion, to reserve its ruling on a motion for a directed verdict until the close of all the evidence. Nor is it intended to limit the trial court’s discretion, in a given case of doubtful resolution, to submit the triable issues to a jury with the view of further judicial consideration of such grounds as may be presented in a post-judgment motion in the event the jury’s resolution of the issues appears to be erroneous under appropriate standards of post-judgment review.

REVERSED AND REMANDED.

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

JONES, J., concurs specially.

JONES, Justice

(Concurring specially):

I concur specially to emphasize that this is a classical failure of proof case. It is not a weight of the evidence case. Our reversal is based on Plaintiff’s failure to prove a prima facie case and not its failure to negate all of the possible contributing or sole causes interposed as defenses nor on our finding that Defendant established one or more of its affirmative defenses.

In so holding, however, I would also emphasize that it is not every case, under all circumstances, that will require expert testimony to make out a prima facie case. Unquestionably, there are many products whose mere failure of performance, even after long and continuous use, is sufficient, in and of itself, to raise a reasonable inference of its defective condition. In extreme cases of limited use under highly controlled conditions, the blowout of a tire may be ample evidence to meet the requisite prima facie test; but, here, the jury could not be left to the bare exercise of its imagination in the discharge of its fact finding prerogative to determine the cause of the tire’s failure.


author: HOLMES, Judge.

text:
    Dorothy GREENBERG v. ALABAMA STATE TENURE COMMISSION, an Administrative Agency of the State of Alabama.
    Civ. 2146.
    Court of Civil Appeals of Alabama.
    April 30, 1980.
    Rehearing Denied May 28, 1980.
    William J. Baxley and Joel E. Dillard, of Baxley, Stuart, Ward & Dillard, Birmingham, for appellant.
    James E. Simpson and Carol A. Smith, of Lange, Simpson, Robinson & Somerville, Birmingham, for appellee.
   HOLMES, Judge.

This is a teacher tenure case.

The Mountain Brook Board of Education (the Board) cancelled the teaching contract of Mrs. Dorothy Greenberg, a tenured teacher. The Alabama State Tenure Commission (the Commission) sustained the cancellation. On writ of mandamus, the Circuit Court of Jefferson County affirmed the decision of the Commission. The teacher appeals and we affirm.

On appeal, the teacher contends she was denied due process of law at the hearing before the Board. Specifically, she contends one of the Board members should not have taken part in the hearing or the deliberations as his child was a witness against her at a previous cancellation hearing held in 1974. She also argues the transcript from this prior hearing, which was not introduced into evidence at the instant challenged hearing, was impermissibly used or considered by the Board. Finally, she argues some of the prior charges were considered at the latter hearing although she had no notice she would once again face these accusations.

As is apparent from the above, this hearing, held in 1978, was the teacher’s second encounter with the Board. Prudence dictates that a detailed recitation of the prior charges lodged against the teacher not be set forth in this opinion. Suffice it to say that the end result of the prior proceedings was an order from the Supreme Court of Alabama that the teacher be reinstated. See, Ala. State Tenure Com'n v. Mt. Brook Bd. of Ed., Ala.Civ.App., 343 So.2d 518, rev’d, Ala., 343 So.2d 522 (1976), on remand, Ala.Civ.App., 343 So.2d 528 (1977).

Unlike her prior appeal, the teacher in the instant appeal does not now challenge the sufficiency of the evidence presented against her. While she of course does not concede it was proper to cancel her contract, she focuses her arguments upon the alleged deprivations of her due process rights.

With this challenge in mind, we shall set forth the facts from the voluminous record before us as they relate to the issues raised, considering the arguments seriatim.

The teacher was given notice of the intent to cancel her contract. This notice provided, in pertinent part:

This proposed cancellation of your contract is based upon grounds of incompetence, insubordination, and other good and just cause.
Examples of the conduct or evidence thereof which comprise these grounds are:
1. Failure to properly instruct students.
2. Failure to obey instructions of principal.
3. Numerous complaints of parents and students.
4. Behavior in class room.
5. Inflexibility of disciplinary standards.
6. Ridicule and sarcasm directed to students.
7. Inordinate number of requests by parents and students for transfer from your class to . those of other teachers.

In compliance with § 16-24-9, Code of Ala.1975, a hearing was held at which the teacher and her attorney appeared. However, before any evidence was heard, the attorney established that the child of one of the present Board members, one James Emack, had testified against the teacher at the prior hearing. When challenged, Emack pointed out that was another case, and after being asked' if he could be fair, responded, “I am prepared to listen to your testimony and Mrs. Greenberg’s testimony in this instance.”

After this transpired, the Board’s chairman refused to disqualify Emack.

We find no error here. As this court observed in Board of Dental Examiners v. King, Ala.Civ.App., 364 So.2d 311 (1977), rev’d on other grounds, Ala., 364 So.2d 318, on remand, Ala.Civ.App., 364 So.2d 319 (1978), the mere fact that a member of a board has had prior contact with a particular individual or has considered other charges against that individual is not sufficient, in the absence of some showing to the contrary, to demonstrate bias. Any other rule would be fraught with difficulties, for it could very well necessitate the appointment of an entire new board in a case such as this one, where the individual’s actions are deemed to warrant further investigation by the involved board.

But, even more importantly, members of such boards are presumed to be men and women of “conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances.” King, supra, 364 So.2d at 317. This presumption can only be rebutted by a showing that the risk of bias is intolerably high or such that there is a substantial temptation on the part of a member, or members, to prejudge the case. King, supra.

Upon reflection, this court is of the opinion the teacher has not overcome the presumption of impartiality. True, Emack had knowledge of the prior charges because his son was a witness at the prior hearing. True, he expressed concern over the strain and trauma visited upon the child in testifying at such a proceeding and indicated the propriety of allowing this was the subject of several family discussions.

However, when questioned, Emack stated that this was another case and that he was ready to listen to the testimony in this instance. We conclude there was no error in finding this answer was a sufficient indication of his desire and ability to afford the teacher a fair hearing. In other words, there was a showing only of prior knowledge and of justifiable concern for his child. This falls short of demonstrating the requisite intolerably high risk of bias. King, supra.

The teacher relies upon our decision upon remand in King to argue the Board impermissibly used or considered the transcript from the prior hearing, There, this court observed that although evidence of prior proceedings is admissible so long as due process requirements are met, we held a board cannot rely on material not introduced at the hearing.

In that case, the record indicated the Board of Dental Examiners was in possession of a file containing previous charges lodged against King. This file, which was not introduced into evidence, was present during the course of the Board’s deliberations.

Here, the record shows the only use of the transcript of prior proceedings, occurred at the opening of the hearing. The chairman testified on deposition he was unsure of the proper protocol in opening the hearing. He therefore requested and received the prior transcript immediately before the hearing, read over the opening remarks, and returned the transcript to the local school superintendent.

To this court it is clear the above facts do not bring this case within the rule laid down in King. The substantive elements of the prior proceedings were neither used nor considered in this case. In King, this court attempted to set forth a rule which would ensure that a party before a quasi-judicial board and faced with the possible loss of property rights is afforded such fundamental due process protections as the right to notice and adequate cross-examination. There is no showing that the teacher in this case was denied these rights due to the limited use of the prior transcript.

Finally, the teacher contends she was not given notice that she would once again face the charges previously lodged against her. Specifically, she complains of the admission of two letters from parents of Mountain Brook students requesting that their children not be assigned to the teacher’s class. The letters were but two of many making the same request.

The first of the challenged letters, dated August 17, 1977, gave as grounds for the request the purported unsatisfactory conduct of the teacher when an older child of the complaining parent was in her class in 1973-74. Specifically mentioned, among other complaints, was the “vicious and cruel manner in which this teacher would verbally attack children she did not like.”

The second letter, dated August 20,1977, referred to testimony given at the prior hearing. This letter'mentioned the teacher’s purported “mocking and holding up to ridicule” of many of her students. It also recounted the parent’s conversation with a student of the teacher.

As stated in County Bd. of Ed. of Clarke County v. Oliver, 270 Ala. 107, 109, 116 So.2d 566, 567 (1959):

The Teacher Tenure Law contemplates the rudimentary requirements of fair play with reasonable notice and opportunity to be present, information as to charges made, and opportunity to controvert such charges, the right to examine and cross-examine witnesses, and submit evidence and be heard in person or by counsel. ...

As indicated, the notice given the teacher stated there had been numerous complaints lodged against her by parents and also referred to an “inordinate number of requests by parents” to transfer their children. The notice also gave as grounds for the proposed cancellation the teacher’s purported “ridicule and sarcasm directed to students.”

Furthermore, the record shows that at some time before the hearing, the teacher’s attorney received copies of the complaints lodged against her.

This court considered similar arguments in State Tenure Commission v. Pike County Bd. of Ed., Ala.Civ.App., 349 So.2d 1173 (1977). There, the teacher complained of the denial of a continuance to study records made available at the hearing. She was granted only a thirty minute recess for this purpose.

In addressing contentions concerning the lack of information supplied, this court commented, “Quite frankly, we fail to fully comprehend appellant’s argument regarding this aspect.” 349 So.2d at 1177. Surely, the same remark can be made where the teacher was specifically made aware of the complaints and requests for transfer and had been supplied copies of these before, not at, the hearing. This observation is even more appropriate in light of King, supra, which indicated evidence of prior charges are admissible so long as proper notice is given.

This is not to say that we construe the letters to comprise “evidence of prior charges.” Rather, their true function was to show the volume of complaints against the teacher. But, even if cast in the light portrayed by the teacher, there was no error.

The Commission has requested that we impose sanctions against the teacher pursuant to Rule 38, ARAP, for filing a frivolous appeal. After due deliberation, the request is denied.

This case is due to be affirmed.

AFFIRMED.

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


author: BEATTY, Justice.

text:
    Ex parte Dorothy GREENBERG. (Re: Dorothy GREENBERG v. ALABAMA STATE TENURE COMMISSION, an Administrative Agency of the State of Alabama).
    79-693.
    Supreme Court of Alabama.
    Jan. 9, 1981.

      William J. Baxley and Joel E. Dillard of-Baxley, Stuart, Ward & Dillard, Birmingham, for petitioner.
    James E. Simpson and Carol A. Smith of Lange, Simpson, Robinson & Somerville, Birmingham, for respondent.
   BEATTY, Justice.

Dorothy Greenberg, a tenured teacher, filed a petition for writ of certiorari requesting this Court to review the opinion of the Court of Civil Appeals which affirmed the trial court’s decision to uphold the cancellation of her teaching contract by the Mountain Brook Board of Education and the sustainment of the cancellation by the Alabama State Tenure Commission. We granted the writ of certiorari and now review the decision of the Court of Civil Appeals.

The 1978 hearing in question was Ms. Greenberg’s second such hearing before the Board of Education. The prior proceeding resulted in an order from this Court that she be reinstated. Alabama State Tenure Comm’n v. Mountain Brook Bd. of Ed., Ala., 343 So.2d 522 (1976). Prior to the second hearing, Ms. Greenberg was given notice of the Board’s intent to cancel her contract. The notice provided in part:

This proposed cancellation of your contract is based upon grounds of incompetence, insubordination, and other good and just cause.
Examples of the conduct or evidence thereof which comprise these grounds are:
1. Failure to properly instruct students.
2. Failure to obey instructions of principal.
3. Numerous complaints of parents and students.
4. Behavior in class room.
5. Inflexibility of disciplinary standards.
6. Ridicule and sarcasm directed to students.
7. Inordinate number of requests by parents and students for transfer from your class to those of other teachers.

Before the Board considered any evidence concerning the proposed cancellation of Ms. Greenberg’s contract, it was discovered that one of the board members, James Emack, was the father of one of the witnesses who testified against Ms. Greenberg at the earlier hearing. Mr. Emack was not on the Board at the time of the prior hearing. Counsel for Ms. Greenberg asked Mr. Emack if he felt that he could be fair and not let the prior involvement of his son enter into this case, and Mr. Emack replied: “I am prepared to listen to your testimony and Mrs. Greenberg’s testimony in this instance.” The board’s chairman then ruled “that Mr. Emack should sit and continue to participate as a member of the Board at this hearing.”

A board of education exercises functions of the quasi-judicial type when it hears and determines proceedings for the cancellation of contracts of tenured teachers. When reviewing such administrative decisions, a court must examine the record with the view of protecting the fundamental rights of the parties. State v. Board of Educ. of Fairfield, 252 Ala. 254, 40 So.2d 689 (1949). The right to a fair trial before an impartial tribunal is an important fundamental right. The primary issue, therefore, is whether the trial court denied Ms. Green-berg her right to a fair trial by allowing Mr. Emack to participate as a board member in the hearing against her.

In Board of Dental Examiners v. King, Ala.Civ.App., 364 So.2d 311 (1977), rev’d on other grounds, Ala., 364 So.2d 318, on remand, Ala.Civ.App., 364 So.2d 319 (1978), the dentist appellant argued that members of the dental board hearing his case were biased against him because of previous complaints the Board had received against him. The Court of Civil Appeals stated:

[T]he mere fact that a professional regulatory board (which has received legislative authority to investigate and adjudicate charges against members of its profession) has had prior contact with the particular individual or considered other, separate charges against him, is not sufficient, in the absence of some showing to the contrary, to demonstrate that the board’s members are biased. ... [A] party seeking to demonstrate prejudice or antipathy on the part of one or more board members must show at the outset of (or during) the hearings before the board that the risk of bias is intolerably high or such that there is a substantial temptation on the part of the members sitting in their quasi-judicial capacity to pre-judge the case with regard to any issue to be presented (or actually presented) by the party challenging the board’s impartiality. [364 So.2d at 317, emphasis added.]

In the instant case, the Court of Civil Appeals, basing its decision on King, supra, held that there was no error here. We cannot agree.

The United States Supreme Court in Withrow v. Larkin, 421 U.S. 35, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975), stated that the guarantee of a fair trial in a fair tribunal applies to administrative agencies which adjudicate as well as to courts, and said that not only is a biased decisionmaker constitutionally unacceptable, but “our system of law has always endeavored to prevent even the probability of unfairness.” Withrow, supra. The Court spelled out various situations in which the probability of actual bias on the part of the judge or decisionmaker has been found to be intolerably high, including the situation in which a decision-maker has been the target of “personal abuse or criticism from the party before him.” Withrow, supra.

Certainly in this case there was a possibility, or even a probability, of personal bias on the part of Mr. Emack. His son had allegedly been a target of personal abuse and criticism from Ms. Greenberg. Thus, Mr. Emack, as the father of his minor son, was indirectly, at least, her target also. Mr. Emack, through his son’s involvement, had a personal interest in and knowledge of the prior charges and proceeding, which exceeded that of the other board members who had merely considered the charges against her on a professional basis. He expressed concern over the strain and trauma placed upon the child because of testifying in the proceeding and even indicated that his family had had several discussions concerning the propriety of allowing the child to testify.

While it is true that the showing of knowledge of a prior proceeding is not, without more, sufficient to demonstrate bias on the part of a member of a professional regulatory board, we find that the evidence here went beyond mere knowledge and established the requisite intolerably high risk of bias on the part of Mr. Emack. For this reason, the judgment of the Court of Civil Appeals is reversed and the cause is remanded to that Court with directions to enter an order consistent with this opinion.

REVERSED AND REMANDED.

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


text:
    Dorothy GREENBERG v. ALABAMA STATE TENURE COMMISSION, an Administrative Agency of the State of Alabama.
    Civ. 2146.
    Court of Civil Appeals of Alabama.
    March 11, 1981.
   HOLMES, Judge.

The prior opinion of this court, 395 So.2d 997, has been reversed and remanded by the Supreme Court, 395 So.2d 1000. On remand to this court, and in compliance with the Supreme Court’s opinion of January 9, 1981, this cause is now reversed and remanded.

REVERSED AND REMANDED.

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


author: BRADLEY, Judge.

text:
    Sharon MONTELEONE v. TRAIL PONTIAC, INC., a corporation and Clint Phipps, jointly and individually.
    Civ. 2302.
    Court of Civil Appeals of Alabama.
    Oct. 29, 1980.
    Rehearing Denied Dec. 10, 1980.

      Robert F. Clark, Mobile, for appellant.
    Edward S. Sledge, III, of Hand, Arendall, Bedsole, Greaves & Johnston and Lionel L. Layden, Mobile, for appellee.
   BRADLEY, Judge.

This is an appeal from the denial of a motion for a new trial in a fraud action.

The facts of this case have to be gleaned from the pleadings and from the trial court’s oral charge due to the absence of any testimony.

The facts show that Sharon Monteleone bought a car from Trail Pontiac, Inc. The salesman was Clint Phipps. Monteleone brought suit against Trail and Phipps claiming fraud and deceit in the sale of the car in that the car was represented to be new when in fact it was used, and furthermore that the car was lien-free when in fact there was a lien against it. The defendants denied the allegations of the complaint.

The case was tried before a jury on November 5 and 6, 1979. A verdict was returned on November 6, 1979 which stated: “WE, THE JURY, FIND FOR THE PLAINTIFF AND AGAINST THE DEFENDANTS AND ASSESS HER DAMAGES AT THE SUM OF $000.” The court entered judgment accordingly. Each member of the jury was polled by the court ex mero motu and each juror affirmed the verdict. The court asked the jury if the intention of the jury was to find for the plaintiff so as to require the defendants to pay costs, and the jury answered in the affirmative. Plaintiff’s counsel did not object to the form of the verdict.

Plaintiff subsequently filed a motion for judgment notwithstanding the verdict, or, alternatively, a new trial. The trial court did not rule on this motion within ninety days and it was deemed denied pursuant to Rule 59.1, ARCP. From the denial of the motion for new trial Monteleone appeals.

The sole issue for our consideration is whether a jury’s verdict in a fraud case finding for the plaintiff but awarding zero damages is inconsistent and therefore invalid. We conclude that such a verdict is invalid.

Damage is an essential element of fraud. § 6-5-100, Code of Alabama 1975; Ringer v. First National Bank of Stevenson, 291 Ala. 364, 281 So.2d 261 (1973); Jackson Co. v. Faulkner, 55 Ala.App. 354, 315 So.2d 591 (1975). And, in the absence of proof of damage, plaintiff cannot recover even nominal damages. Oates v. Glover, 228 Ala. 656, 154 So. 786 (1934). We should not be understood, however, as saying that one must prove an exact monetary loss in order to recover nominal damages. See Long-Lewis Hardware Co. v. Lightsey, 392 So.2d 545 (Ala.Civ.App., 1980).

Since the verdict which was in favor of the plaintiff awarded her zero damages, it is inconsistent and therefore invalid because an essential element supportive of a fraud judgment has been omitted. That is, the jury has concluded that plaintiff has not been damaged. In the absence of a finding of damage in a fraud case the plaintiff fails to prove his case. The verdict’s inconsistency lies in the finding that the plaintiff has proved defendants’ culpability but failed to prove that she had been damaged as a result of that culpability. Such a verdict is inconsistent and cannot stand.

Defendants contend that a new trial should not be awarded solely because the jury failed to award damages in some amount. However, as noted above there can be no finding for plaintiff in a fraud case without an award of damages in some amount. None were awarded in the instant case.

Defendants also argue that Montel-eone’s failure to object to the form of the verdict when it was returned by the jury now precludes her from raising this issue on appeal.

It is true that a party must object to the form of a verdict at the trial or be precluded from raising this issue for the first time on a motion for new trial. Bradley v. Jones, 282 Ala. 331, 211 So.2d 465 (1968). However, it has also been held that where substance rather than form is the subject of the appeal, this rule will not apply. Lewis v. Moss, Ala., 347 So.2d 91 (1977).

The form of the verdict is not the subject of the appeal in the case at bar, but the substance of the verdict is in controversy. The issue is: Can a verdict in a fraud case be returned in favor of the plaintiff which awards zero damages? And we have said that such a verdict cannot stand.

Defendants’ final contention is that the motion for new trial did not explicitly raise the issue now before this court. The fourth ground of the motion states: “For that the verdict does not render damages for the Plaintiff even though the verdict was in favor of the Plaintiff.” Furthermore, the trial court charged the jury that if they returned a verdict for the plaintiff they would have to find not only that the defendants had misrepresented the condition of the car and on the basis of such misrepresentation had induced plaintiff to buy it, but also that she had been damaged as a result of such misrepresentations.

As seen from above, the jury disregarded these instructions by finding for the plaintiff but not awarding her damages in some amount.

Where the jury disregards the instructions of the trial court, the court falls into error if it denies appellant’s motion for new trial which raises the legality of the verdict. Edwards Chevrolet Co. v. Brokaw, 47 Ala.App. 631, 259 So.2d 838 (1972).

The judgment of the trial court is reversed and the cause remanded.

REVERSED AND REMANDED.

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


author: EMBRY, Justice.

text:
    Ex Parte TRAIL PONTIAC, INC., et al. (Re Sharon MONTELEONE v. TRAIL PONTIAC, INC., et al.)
    80-239.
    Supreme Court of Alabama.
    March 26, 1981.
   EMBRY, Justice.

WRIT DENIED — NO OPINION.

TORBERT, C. J., and FAULKNER, AL-MON and ADAMS, JJ., concur.


text:
    SUNNYLAND FOODS, INC., a corporation v. Bobby Gene CATRETT.
    Civ. 2270.
    Court of Civil Appeals of Alabama.
    Nov. 12, 1980.
    Rehearing Denied Dec. 10, 1980.

      G. M. Harrison, Jr. of Merrill & Harrison, Dothan, for appellant.
    Joel M. Nomberg of Nomberg & McCabe, Daleville, for appellee.
   BRADLEY, Judge.

This is a workmen’s compensation case.

On November 15, 1977 Bobby Gene Ca-trett, an employee of Sunnyland Foods, Inc., Dothan, Alabama, injured his back as he was loading a side of beef onto a truck. He was sent to Flowers Hospital in Dothan by his employer. At the hospital Catrett was seen by three physicians. Later Ca-trett was referred to Dr. John Haley, an orthopedic surgeon who, in consultation with Dr. William Silvernail, performed disc surgery on June 15,1978. Catrett was seen by Dr. Haley periodically up until June 20, 1979, the date of his last visit.

Before completely leaving Dr. Haley’s care, Catrett had a conversation with Arthur Jessee, an adjuster for Liberty Mutual Insurance Company, the workmen’s compensation carrier for Sunnyland Foods, Inc. Catrett testified that he told Jessee that he was not satisfied with the doctors he had been referred to by Sunnyland. Catrett then said that Jessee told him to use any doctor he wanted to. This conversation was in April of 1979. Jessee admits seeing Ca-trett at his home on this occasion but denies giving Catrett the authority to use the doctor of his choice.

After the April meeting with Jessee, Ca-trett sought treatment by Dr. J. C. Serrato, Jr. of Columbus, Georgia on May 2, 1979. Dr. Serrato saw Catrett several times after the initial visit, and during the middle of July 1979 he performed an amopaque mye-lography on Catrett. Catrett’s condition was diagnosed as reherniated discs, which is a permanent condition. Dr. Serrato stated that while surgery may ultimately be needed, other methods of treatment such as therapeutic blocks should be used before surgery. Also, Dr. Serrato stated that there was a great element of risk in the surgery, that the chances of a good result are lower with the second operation, and that he would be reluctant to operate.

From November 5, 1977 until April 24, 1979 Catrett received $107.05 per week as temporary total disability benefits under workmen’s compensation. His medical bills have also been paid, except medical and hospital bills relating to Dr. Serrato’s treatment. Since April 30, 1979 no temporary total benefits have been paid; however, Catrett has been paid $26.74 per week. Sunnyland also has refused to pay for the medical and hospital bills for treatment by Dr. Serrato on the ground that these expenses were not authorized by them pursuant to § 25-5-77(b), Code of Alabama 1975, and that Catrett’s right to compensation has been suspended by his refusal to use the doctor selected by Sunnyland.

It should be noted that prior to Catrett’s second visit to Dr. Serrato on May 9, 1979, he telephoned the offices of Liberty Mutual Insurance Company in Columbus, Georgia to seek approval for hospital admission under the care of Dr. Serrato. Catrett was told by a representative of Liberty Mutual that the insurer would not pay for such hospital admission but that it would pay for an admission directed by Dr. Furnie Johnston of Dothan. Catrett rejected this arrangement and continued to see Dr. Serra-to. Catrett also said that he understood that the insurer had refused to approve his admission to the hospital if he was to be under the care of Dr. Serrato. It was after this phone call to the insurer that Catrett entered the hospital under Dr. Serrato’s care and underwent a myelogram. Catrett has refused to see any doctor other than Dr. Serrato.

On April 30, 1979 Catrett filed a complaint in Houston County seeking workmen’s compensation benefits for his injury. On May 10,1979 Sunnyland filed an answer admitting that Catrett was hurt while in the course of his employment but denying the extent of the injury. A hearing was held on October 3, 1979 and a final judgment was rendered on November 5, 1979.

The judgment contained findings of fact that Catrett was permanently and totally disabled, that Catrett was in pain and unable to work in any capacity at the present time and any rehabilitation efforts would be ineffective at the present time.

The judgment as modified ordered Sun-nyland to pay Catrett $107.05 a week for the period of his disability; gave Sunnyland a credit for all temporary total disability benefits paid to Catrett from November 5, 1977 through April 24, 1979; and awarded Catrett the sum of $2,248.68, plus ten percent of this sum as a penalty for wrongfully terminating the disability benefits. The $2,248.68 represents the difference in the weekly payments of $107.05 and $26.74 for the period April 24, 1979 to November 6, 1979, i. e. the date of termination of payments to the date of judgment. The judgment as modified also required that Catrett be paid for the charges made by Dr. J. C. Serrato, Jr., all hospital and clinic charges pursuant to treatment by Dr. Serrato, all x-ray costs pursuant to treatment by Dr. Serrato, and $300.00 to Fox Catrett, brother of the plaintiff, loaned to Catrett for payment of medical expenses.

On March 4, 1980 the trial court denied a motion for new trial made by Sunnyland and granted Catrett’s motion to strike certain exhibits offered by Sunnyland in support of its motion for new trial. Sunnyland appeals from the judgment on the merits and from the denial of its motion for new trial.

The first issue presented by the appeal is whether there is any credible evidence to support the trial court’s finding that Ca-trett is totally disabled. We hold that there was such credible evidence before the trial court.

The rule of review in workmen’s compensation cases is that the fact findings made by a trial court must be upheld if those findings are supported by any legal evidence. Romine v. McDuffie, Ala.Civ. App., 341 So.2d 952 (1977). Dr. Serrato testified in his deposition, which was introduced into evidence, that Catrett was totally disabled. This evidence satisfies the rule of review in this case.

The next issue is whether the employee may select the doctor or does the employer have that prerogative. The law in Alabama gives the right to designate the treating physician or surgeon to the employer. The statute provides:

If the employee is dissatisfied with the initial treating physician selected by the employer and if further treatment is required, the employee may so advise the employer, and in such event the employee shall be referred to a second physician selected by the employer. If the employee is dissatisfied with the second physician selected by the employer, the employee may so advise the employer; and, in such event the employee shall be referred to a third physician selected by the employer. In the event surgery is required, if the employee is dissatisfied with the designated surgeon, he may so advise the employer, and in such event the employee shall be referred to a second surgeon selected by the employer. If the employee is dissatisfied with the second surgeon designated by the employer to perform surgery, the employee may so advise the employer; and, in such event, the employee shall be referred to a third surgeon selected by the employer.

Section 25-5-77, Code of Alabama 1975. The statute clearly gives the employer at least the first three selections of physicians or of surgeons.

The evidence shows that Catrett was referred by the employer to Dr. Haley, an orthopedic surgeon, who performed disc surgery on Catrett. Prior to being released by Dr. Haley, Catrett testified that during a conversation with Arthur Jessee, an adjuster for the insurer, Jessee told him that he could go to any doctor he wished to consult. Thereafter, Catrett selected Dr. Serrato as his doctor.

By authorizing Catrett to seek treatment from a doctor of his choice, Sunny-land effectively transferred its authority to choose the doctor to Catrett; and Catrett stated that he was completely satisfied with Dr. Serrato. Thus, Sunnyland cannot contend that Catrett unreasonably refused treatment from doctors later suggested by it when Catrett was being treated by a doctor with whom he was fully satisfied after being authorized by Sunnyland to choose his own physician. No error here.

Sunnyland’s next issue is that Catrett’s refusal to accept medical treatment from its doctors suspends Catrett’s right to workmen’s compensation benefits during the period of such refusal as provided in § 25-5-77(b), Code of Alabama 1975.

Section 25-5-77(b) provides:

If the injured employee refuses to comply with any reasonable request for examination, or refuses to accept the medical service or physical rehabilitation which the employer elects to furnish under the provisions of this chapter, his right to compensation shall be suspended and no compensation shall be payable for the period of such refusal.

Sunnyland argues that on May 9, 1979 Catrett was notified that he did not have authority to use Dr. Serrato. Catrett admits he was so notified. However, as previously noted, there is evidence in the record to support the trial court’s finding that Catrett had authority to use Dr. Serra-to. Nason v. Jones, 278 Ala. 532, 179 So.2d 281 (1965); Romine v. McDuffie, supra. Since Catrett had authority to use Dr. Ser-rato, did receive treatment from him, and was satisfied with that treatment, it cannot be said that Catrett refused medical treatment. Hence, § 25-5-77(b) would have no application.

Catrett says that in April 1979 Jessee told him to use the doctor of his choice. Thereafter in May the insurer told Catrett that he could not use the doctor of his choice. This appears to be an attempted revocation of authority delegated by Sunnyland to Ca-trett. While Sunnyland does not directly present this issue to us, we consider it necessary to decide the question in view of the other issues raised by appellant.

Section 25-5-77(a), Code of Alabama 1975, dealing with selection of doctors, repeatedly provides that the employer has the right to designate at least the first three treating physicians or surgeons when the employee is dissatisfied with the employer’s selection and so notifies the employer. Section 25-5-77(a) is as follows:

If the employee is dissatisfied with the initial treating physician selected by the employer and if further treatment is required, the employee may so advise the employer, and in such event the employee shall be referred to a second physician selected by the employer. If the employee is dissatisfied with the second physician selected by the employer, the employee may so advise the employer; and, in such event the employee shall be referred to a third physician selected by the employer. In the event surgery is required, if the employee is dissatisfied with the designated surgeon, he may so advise the employer, and in such event the employee shall be referred to a second surgeon selected by the employer. If the employee is dissatisfied with the second surgeon designated by the employer to perform surgery, the employee may so advise the employer; and, in such event, the employee shall be referred to a third surgeon selected by the employer. [Emphasis supplied.]

Since Catrett was never dissatisfied with Dr. Serrato and never informed Sun-nyland of such, Sunnyland never had a right to designate another doctor. Therefore, we hold that Catrett may not be forced to leave the care of a doctor with whom he is satisfied even though the employer, i. e. Sunnyland, might have become dissatisfied with that particular doctor.

Sunnyland next contends that the trial court erred when it excluded the exhibits offered by Sunnyland in support of the motion for new trial. The exhibits were letters between the attorneys written prior to the trial in chief. The information contained in the letters dealt with Catrett’s knowledge that Sunnyland would not pay for any expenses incurred for treatment by Dr. Serrato. This information was elicited at the trial in chief and is not, therefore, new evidence as is required by § 12-13-11, Code of Alabama 1975, which provides:

(a) On motion filed within 30 days from entry of judgment, a new trial may be granted for the following grounds:
(7) Newly discovered evidence, material for the party applying, which he could not, with reasonable diligence, have discovered and produced at the trial.

See also Morris v. Yancey, 272 Ala. 549, 132 So.2d 754 (1961). No error here.

The final issue is whether the trial court erred in holding that the temporary total disability benefits paid to Catrett entitle Sunnyland to a credit against the total permanent disability benefits awarded to Ca-trett.

The trial court in its decree as modified held that Sunnyland paid weekly compensation to Catrett of $107.05 from November 5, 1977 to April 24, 1979 and is entitled to a credit for these payments. From November 5, 1977 to June 15, 1978 Catrett was temporarily totally disabled and from June 15,1978 to date he was permanently totally disabled.

Sunnyland contends this award is incorrect in that Catrett was paid temporary total disability benefits from November 5, 1977 to April 24, 1979 and should be given credit for the entire period. This entire credit was given by the trial court when it added to its findings in the modification that Catrett had been paid weekly compensation from November 5, 1977 to June 15, 1978.

However, both the trial court and Sunny-land are in error. Such a credit may have been proper under § 25-5-57(a)(3)(g), Code of Alabama 1975 if Catrett had suffered a permanent partial disability. Section 25-5-57(a)(3)(g) provides:

When a permanent partial disability, compensation for which is not calculated by use of the schedule in subdivision (а)(3) of this section, follows a period of temporary total disability resulting from the same injury, the number of weeks of such temporary total disability shall be deducted from the number of weeks payable for such, permanent partial disability. Compensation shall continue during disability, but not, however, beyond 300 weeks. [Emphasis supplied.]

However, in the case at bar the award was for total and permanent disability, not permanent partial disability, and § 25-5-57(a)(4) does not provide for a credit as does § 25-5-57(a)(3)(g). In the absence of statutory authority, no credit can be given. The trial court erred in giving a credit and this aspect of its judgment is reversed.

The trial court did properly credit Sunny-land with the amount of money it paid Catrett since April 24,1979. Since April 24, 1979 Sunnyland has paid $26.74 a week to Catrett. This amount is $80.31 less than the amount which Catrett should have been paid. Therefore, that part of the judgment which awarded Catrett $2,248,68 was correct and is affirmed.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

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

      . It is not contended by Sunnyland that Jessee was not authorized to bind Sunnyland.


text:
    Ex Parte SUNNYLAND FOODS, INC. (Re SUNNYLAND FOODS, INC., v. Bobby Gene CATRETT).
    80-190.
    Supreme Court of Alabama.
    March 26, 1981.
   EMBRY, Justice.

WRIT DENIED — NO OPINION.

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