author: EMBRY, Justice.

text:
    Celia DARDEN, et al. v. MACON COUNTY, et al.
    80-688.
    Supreme Court of Alabama.
    April 30, 1982.

      Harry D. Raymon of Raymon, Nathanson & Raymon, Tuskegee, for appellants.
    Ernestine S. Sapp of Gray, Seay & Lang-ford, Tuskegee, for appellees.
   EMBRY, Justice.

This is a suit by eight citizens of Macon County against Macon County and its Commissioners, the Macon County Hospital Association and its Directors, and the City of Tuskegee.

The crux of the action is an attempt by the citizens to prevent liquidation of Macon County Hospital by the Board of Directors of the Macon Hospital Association, and to require that the facility be reopened. In the alternative, the citizens seek abolition of a sales tax, the proceeds from which, they contend, should be used for hospital purposes. In addition relief is sought by way of a judgment effecting reversion of title to the grantors of a parcel of property jointly owned by Macon County and the City of Tuskegee, and on which the hospital stands, on the basis that failure to use the site for hospital purposes violates the terms of the instrument of grant.

The court denied all relief sought by plaintiffs, ordered dissolution of the Macon County Hospital Association, and appointed a receiver to liquidate the assets of the hospital, pursuant to defendants’ counterclaim for such relief.

The factual background of this litigation was summarized in the trial court’s finding as follows:

“Pursuant to the provisions of Act 211 of the Regular Session of the Legislature of the State of Alabama 1945, the Macon County Hospital Association was duly incorporated on January 7, 1947, for the purpose of providing hospitalization facilities for the citizens of Macon County, Alabama. The Association was run by a Board of Directors appointed by the local governmental authorities giving financial support to the association. In this case, Macon County and The City of Tuskegee participated.
“On February 25, 1948, H. A. Vaughn and his wife, Mary H. Vaughn, executed a deed in words as follows:
“ ‘We, Mary H. Vaughn and her husband, H. A. Vaughn, for and in consideration of the sum of One Dollar ($1.00) to us in hand paid by The City of Tuskegee, Alabama, and Macon County, Alabama, do grant, bargain, sell and convey unto the said City of Tuskegee and Macon County the following described property, to wit:’
(Described 7.5 acres of land and these words follow).
“ ‘This is a deed of gift and the above described property shall be held jointly by The City of Tuskegee and Macon County, forever as a hospital site and for such other purposes as may be determined by the City Council and County Board of Revenue to be to the best interest of the citizens of Tuskegee and Macon County.’
“ ‘To have and to hold unto the said City of Tuskegee and Macon County, their successors and assigns forever.’
“A hospital was built by the City and County on the aforesaid property and the hospital was in continuous service until June 21, 1979, when it was closed by the Association.
“The City of Tuskegee and Macon County contributed to the support and maintenance of the hospital until the year 1979 when the City of Tuskegee withdrew from making contributions as a result of a sales tax passed by the Legislature of the State at the regular 1969 session, Act 818. The County continued to make contributions up to the time of closure and continues to pay the receiver and for security.
“When the City withdrew its support, it conveyed to Macon County its undivided one-half interest in a portion of the 7.5 acre tract upon which the hospital building is actually located leaving the city as the joint owner of a portion of the land on the east and on the west of the hospital building site.
“The tax act, referred to above, provided for a sales tax of one percent on gross sales of all items in Macon County except vehicles and machines of certain kinds on which a tax of one-fourth of one percent of the sales price was levied.
“The tax provides:
“Section 9. Proceeds from the taxes herein levied shall be used for the purpose of acquiring, constructing, improving, enlarging, renovating, replacing, equipping, operating, maintaining and repairing public hospitals, public clinics, public health centers and related public health facilities in Macon County, whether any such hospital, clinic, center, or facility is owned by the County or by a public corporation heretofore or hereafter organized or created pursuant to authorization or determination of the governing body of Macon County, including the pledge of the taxes herein levied and the proceeds arising therefrom by the governing body of Macon County to the payment of any bonds, warrants, or other obligations or evidences of indebtedness of the Court [sic, County] which may hereafter be issued under authority of any law now existing or hereafter enacted, for any one or more of the aforesaid purposes. Any pledge of such taxes and the proceeds arising therefrom shall constitute a contract and this act shall not be repealed, altered or amended in such a way as to impair the obligation of such contract. Subject to any such pledge or pledges which shall be a prior lien and claim on said tax and the proceeds therefrom, any part of such proceeds not needed in the judgment of the governing body of the County for the aforesaid purposes may be expended for such purposes as in the judgment of the governing body are meet and proper.
“Because of good times and inflation the sales tax has generated three million dollars with $144,000 yearly returned in 1970, $355,000 in 1979, and $36,000 during the month of August 1980.
“From the sales tax, expenditures by the County to Macon County Hospital consisted of $388,223.54 or 13% for direct appropriation; $364,181.89 or 12% for renovations since 1973 and $39,338.05 or 1.3% for indigent care at the hospital.
“Macon County Health Center received $710,290.03 or 23.7%; Solid Waste Contract received $407,227.45 or 13.56%.
“Macon County paid John Andrews Hospital $113,766.85 or 3.7% for the care of indigents. When an indigent was hospitalized, a certified statement for the care was presented and is part of this record.
“The balance of the tax money has been expended through the general fund of the County and other public purposes determined by the County Commissioners. Some of these expenditures from the general fund were for health purposes but some were obviously not for health purposes.
“Financial and other difficulties beset the hospital during 1979. Doctors on the hospital staff transferred their patients to other hospitals and the last patient was treated June 9, 1979. All doctors had resigned by June 11, 1979. With no doctors, no patients, and no money, the Hospital Board voted to close the hospital on June 21, 1979. Employees were released on June 28, 1979.”

Although numerous issues were raised by, and decided against, the citizens below, they argue only two points in their briefs on appeal. This court will only consider those issues properly raised and argued in the parties’ briefs. Adrian v. Lockridge, 285 Ala. 222, 231 So.2d 95 (1970).

The first issue presented for review is whether the trial court erred in ruling that the property deeded by the Vaughns to Macon County and the City of Tuskegee can be used for a public purpose other than a hospital site, in light of the provision in the conveyance that “the above described property shall be held jointly by The City of Tuskegee and Macon County, forever as a hospital site and for such other purposes as may be determined by the City Council and County Board of Revenue to be to the best interest of the citizens of Tuskegee and Macon County.”

Before addressing the merits of this issue, we will briefly allude to defendants’ contention that the citizens have no standing to seek reversion of title to the property to the Vaughns, or their heirs, based on an alleged violation of a condition attached to the grant. This question was raised below by defendants’ motion to dismiss, which the trial court denied.

We agree with defendants that the eitizens do not have an interest in the subject property such as entitles them to seek a reversion of title to the property for failure of a condition subsequent. As this court stated in Watson v. Mills, 275 Ala. 176, 153 So.2d 612 (1963):

“When a deed is inter partes, a stranger thereto cannot sue upon it. Douglass and Easton v. Branch Bank of Mobile, 19 Ala. 659. Stated in a more general way, the rule is that one not a party to, or in privity with a contract, cannot sue for its breach. Land Title Guaranty Co. v. Lynchburg Foundry Co., 16 Ala.App. 568, 80 So. 142; Alabama City G. and A. Ry. Co. v. Kyle, 202 Ala. 552, 81 So. 54; and a stranger to a contract can take no advantage of a breach of any condition of the contract. Foster v. Sykes, 23 Ala. 796.

Because we conclude the citizens have no standing regarding this aspect of the case, we do not deem it necessary to consider the merits of their arguments on this issue.

Turning to the second issue presented, the citizens contend the trial court erred in ruling that sales taxes collected pursuant to Act 818 of the 1969 Legislature may be used for any public purpose in the judgment of the governing body of Macon County. The conclusion of the trial court in this regard was:

“. . . The use of the funds is a judgment call by the executive and legislative body of the County and not subject to review by the judiciary except where audits ■show illegal expenditures.
“For the most part the proceeds have been used for the designated purpose and all the funds have been used for legal purposes.
“The proceeds may be used for any public purpose by the County if in the judgment of the governing body it is not needed for the stated purposes related to hospitals and health care of the citizens.”

Clearly, Act 818 grants discretionary power to the Board of Commissioners in expending proceeds from the sales tax, albeit within the guidelines of the act. “It has been held many times that the action of a county governing body, in the exercise of discretionary powers vested in it, is not subject to judicial review except for fraud, corruption or unfair dealings.” Taxpayers and Citizens of Lawrence County v. Law rence County, 273 Ala. 638, 143 So.2d 813 (1962). The citizens did not allege or present evidence of any of these exceptional circumstances; neither did the trial court find the Commissioners’ actions to be so tainted.

Accordingly, the judgment of the trial court is due to be and is hereby affirmed.

AFFIRMED.

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


source: Caselaw Access Project

author: FAULKNER, Justice.

license: Public Domain

text:
    Richard M. DeVOE v. Robert L. CHEATHAM, et al.
    80-807.
    Supreme Court of Alabama.
    April 30, 1982.
    Stephen V. Hammond, of Chenault, Che-nault & Hammond, Decatur, for appellant.
    Albert P. Brewer, of Brewer, Lentz, Nelson & Whitmire, Decatur, for appellees.
   FAULKNER, Justice.

This is an appeal from an action to enjoin Richard DeVoe from competing with his former employer by installing vinyl automobile roofs for another employer. The trial court granted the injunction. We reverse.

On April 30,1979, Richard DeVoe entered into an employment contract with Pop’s Vinyl Tops in Decatur, Alabama. The contract provided:

“In consideration of the aftersaid Employment and the extensive training Employee shall receive in connection therewith Employee agrees that at no time while employed by Company nor within a two year period after the termination of such employeement [sic] will employee disclose any customer list or supplies to any person or firm, nor will he, within a five year period compete directly with Company or indirectly with Company in the business of selling, repairing, installing or manufacturing vinyl roofs within the areas of: Fifty mile radius of the city of Decatur, Alabama.”

The contract also provided a weekly salary of $200.00. The contract did not provide a term of agreed employment, and thus was terminable at will.

DeVoe had little or no experience in installing vinyl tops. Mr. Cheatham, the owner of Pop’s Vinyl Tops, taught DeVoe how to install the tops. The record indicates that DeVoe became proficient in the installation of tops, moldings and stripes on cars.

Mr. Cheatham terminated DeVoe’s employment, in May, 1980, and rehired him six weeks later. Mr. Cheatham testified that he discharged DeVoe because DeVoe was overextending himself with other odd jobs. DeVoe testified that Cheatham had fired him because the company was not making enough profit to pay his salary. DeVoe voluntarily terminated his employment with Cheatham in November, 1980, and became employed by a competing vinyl top shop.

Cheatham and Pop’s Vinyl Tops brought suit to enjoin DeVoe from competing. The trial court granted a preliminary injunction. On March 10,1981, the trial judge entered a motion granting a permanent injunction for five years.

Section 8—1—1, Code 1975, provides:

“(a) Every contract by which anyone is restrained from exercising a lawful profession, trade or business of any kind otherwise than is provided by this section is to that extent void.
“(b) One who sells the good will of a business may agree with the buyer and one who is employed as an agent, servant or employee may agree with his employer to refrain from carrying on or engaging in a similar business and from soliciting old customers of such employer within a specified county, city or part thereof so long as the buyer, or any person deriving title to the good will from him, or employer carries on a like business therein.
“(c) Upon or in anticipation of a dissolution of the partnership, partners may agree that none of them will carry on a similar business within the same county, city or town, or within a specified part thereof, where the partnership business has been transacted.”

This statute expresses the public policy of Alabama that contracts in restraint of trade are disfavored. See Cullman Broadcasting Co. v. Bosley, 373 So.2d 830 (Ala.1979); Robinson v. Computer Servicenters, Inc., 346 So.2d 940 (Ala.1977), Hill v. Rice, 259 Ala. 587, 67 So.2d 789 (1953). The courts will not enforce the terms of such a negative covenant unless:

(1) the employer has a protectable interest;
(2) the restriction is reasonably related to that interest;
(3) the restriction is reasonable in time and place;
(4) the restriction imposes no undue hardship.

See Code 1975, § 8-1-1; Id.

In the present case, the restriction is not enforceable because the employer, Cheatham, has no protectable interest in restraining DeVoe from working for another vinyl top business. In order to have a protectable interest, the employer must possess “a substantial right in its business sufficiently unique to warrant the type of protection contemplated by [a] noncompetition agreement.” Cullman Broadcasting Co. v. Bosley, 373 So.2d at 836.

The Restatement (Second) of Contracts § 188, Comment B (1979), explains when a promisee/employer has a sufficient interest to warrant protection:

“The extent to which the restraint is needed to protect the promisee’s interests will vary with the nature of the transaction. Where a salé of good will is involved, for example, the buyer’s interest in what he has acquired cannot be effectively realized unless the seller engages not to act so as unreasonably to diminish the value of what he has sold. The same is true of any other property interest of which exclusive use is part of the value. ... In the case of a post-employment restraint, however, the prom-isee’s interest is less clear. Such a restraint, in contrast to one accompanying a sale of good will, is not necessary in order for the employer to get the full value of what he has acquired. Instead, it must usually be justified on the ground that the employer has a legitimate interest in restraining the employee from appropriating valuable trade information and customer relationships to which he has had access in the course of his employment. Arguably the employer does not get the full value of the employment contract if he cannot confidently give the employee access to confidential information needed for most efficient performance of his job. But it is often difficult to distinguish between such information and normal skills of the trade, and preventing use of one may well prevent or inhibit use of the other. . . . Because of this difference in the interest of the promisee, courts have generally been more willing to uphold promises to refrain from competition made in connection with sales of good will than those made in connection with contracts of employment.”

If an employee is in a position to gain confidential information, access to secret lists, or to develop a close relationship with clients, the employer may have a protecta-ble interest in preventing that employee from competing. But in the present case, DeVoe learned no more than the normal skills of the vinyl top installation trade, and he did not engage in soliciting customers. There is no evidence that he either developed any special relationship with the customers, or had access to any confidential information or trade secrets. A simple labor skill, without more, is simply not enough to give an employer a substantial protectable right unique in his business. To hold otherwise would place an undue burden on the ordinary laborer and prevent him or her from supporting his or her family-

In view of the facts of this case, we find that the trial court should not have granted injunctive relief. The judgment is reversed and the cause is remanded.

REVERSED AND REMANDED.

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


author: BRADLEY, Judge.

text:
    L. W. LIMBAUGH MINING & CONSTRUCTION COMPANY v. Jack YOUNGBLOOD.
    Civ. 2072.
    Court of Civil Appeals of Alabama.
    April 16, 1980.
    Rehearing Denied May 21, 1980.

      John W. Clark, Jr. and William T. Mills, II, of Porterfield, Scholl, Clark & Harper, Birmingham, for appellant.
    William E. Mitch of Cooper, Mitch & Crawford, Birmingham, for appellee.
   BRADLEY, Judge.

L. W. Limbaugh Mining & Construction Company (hereinafter referred to as “Limbaugh”) appeals from a lower court ruling holding it liable for compensation payments under the workmen’s compensation statute. We reverse.

Jack Youngblood, appellee, was working for Limbaugh on August 27, 1974 as a machine operator, when, as a result of a brake failure, he jumped to the ground, incurring injuries to his left hip and leg.

He was taken' to Carraway Hospital where Dr. Benjamin Meyer performed surgery and put a pin in Youngblood’s hip on September 18', 1974. He was discharged from the hospital on September 29, 1974.

Mr. Youngblood returned to work on June 9, 1975 with no restrictions placed on him.

Mr. Youngblood saw Dr. Meyer on several occasions after that and inquired as to the amount of permanent disability. Each time he was told that though there would be some permanent disability, he could not ascertain the extent until the pin was removed.' This was also indicated on the reports sent to Travelers, who is the workmen’s compensation carrier for Limbaugh.

The last compensation benefit received by Mr. Youngblood while he was off work after the first surgery was August 5, 1975.

His second operation by Dr. Meyer was on November 29, 1976 when his pins were removed. He was discharged from the hospital on December 5, 1976. Youngblood last saw Dr. Meyer on December 30, 1976. It was on this date that Dr. Meyer determined Mr. Youngblood’s permanent disability to be 25%, and a letter was sent to Mr. Young-blood stating this. He did not receive any compensation while off work after the second surgery, and the last medical payments were made on February 17, 1977.

Before addressing the merits of this case, we would point out that we concede only for the sake of argument that Dr. Meyer was the agent of Limbaugh. We should not be understood as holding that a principal-agency relationship existed between the doctor and the employer. We deem it unnecessary to decide this issue.

The dispositive issue on this appeal is whether the employer is estopped from relying on the defense that the employee did not file his claim within the statutory period. See § 25-5-80, Code of Alabama 1975.

The trial court found that the physician selected by the employer to treat the employee’s injuries failed to tell the employee the percentage of his disability within the statutory period, and, as a consequence, the employee was lulled or induced to wait beyond the required period for filing his claim. Therefore the employer is estopped from asserting the one year statute of limitations as a defense to the action for compensation benefits.

Limbaugh argues here that the doctrine of estoppel does not apply in this case, principally for the reason that an employee does not have to know the percentage or extent of his permanent partial disability before filing a claim. Thus, the time for filing a complaint seeking compensation benefits for a permanent partial disability cannot be extended for the purpose of ascertaining the extent of such disability.

The employee replies that he was induced by the physician selected by the employer to treat him to delay filing his complaint for compensation benefits as a result of the physician’s repeated statement that he could not say what the extent of the employee’s disability was until he removed the pin from the employee’s hip. The employee contends that the failure to be told what the extent of his disability was until about a year and a half after the last payment for temporary total disability caused him to delay filing his complaint, and, as a result, the employer should be estopped from relying on the defense of the statute of limitations.

Section 25-5-80, Code of Alabama 1975, provides that:

In case of a personal injury, all claims for compensation under this article and article 2 of this chapter shall be forever barred unless within one year after the accident the parties shall have agreed upon the compensation payable under this article and article 2 of this chapter or unless within one year after the accident one of the parties shall have filed a verified complaint as provided in section 25-5-88. . . . Where, however, payments of compensation have been made in any case, said limitations shall not take effect until the expiration of one year from the time of making the last payment.

The last payment made to the employee by the employer for temporary total disability occurred on August 5, 1975. The employee filed his complaint seeking compensation benefits for permanent partial disability on March 7, 1977. The complaint, as can be seen, was filed approximately nineteen months after the last compensation payment. Section 25-5-80 will apply unless it is tolled for a legitimate reason.

In Dorsey v. United States Pipe & Foundry Co., Ala.Civ.App., 353 So.2d 797, rev’d, Ala., 353 So.2d 800 (1977), the supreme court said:

We hold, therefore, that when acts are done by the employer which lead the employee to believe that liability under the statute is admitted and will not be contested, or where the acts of the employer either falsely misrepresent to the employee or fraudulently conceal from him the truth of the facts upon which the liability of the employer depends, the running of the statute of limitations may be tolled, and it is immaterial whether the employee relies upon actual fraud or mere estop-pel.

Employee says in his brief that fraud is not an issue but that estoppel is present.

In Bank of Huntsville v. Witcher, Ala.Civ.App., 336 So.2d 1384 (1976), we defined estoppel as:

(1) [Knowledge of the facts by the party to be estopped; (2) intention by the party to be estopped that its conduct be acted upon, or such party acts so that the party asserting estoppel has a right to believe that the conduct is so intended; (3) ignorance by the party asserting estoppel of the true facts; and (4) injurious reliance by the party asserting estoppel on the conduct.

Furthermore, estoppel cannot exist where the knowledge of both parties is equal, and nothing is done by the one to mislead the other. Cosby v. Moore, 259 Ala. 41, 65 So.2d 178 (1953).

The present facts do not rise to es-toppel under any definition of that term.

The treating physician on several occasions and without variance told the employee that he could not ascertain the extent of the employee’s disability until the pin was removed from his hip. The employee testified that the doctor told him that he (the doctor) could not know the extent of disability until the pin was removed from the hip. The employee also said he knew from the time he went back to work that he would have some permanent disability but did not know how much. He further stated that the doctor did not tell him the percentage of his disability until the pin was removed.

Applying the above stated definitions for estoppel in Alabama to the facts of the instant case, it is readily apparent that the doctor was trying to be truthful with the employee about the employee’s condition and the extent of his disability. At no time was any statement made to the employee that misrepresented the employee’s condition, nor does it appear that the statement made by the doctor was intended to mislead the employee in any way. The doctor consistently stated that he would not be able to say what the extent of the employee’s disability would be until the pin was removed from the employee’s hip. Upon removal of the pin, the doctor informed the employee that his disability would be twenty-five percent. Furthermore, the employee stated that he knew from the time he was released from the hospital that he would have some disability but that he did not know how much. Accordingly, both parties had equal knowledge as to the extent of disability because neither party knew the extent of the employee’s disability. Furthermore, the employer, the party to be estopped, did not at any time take a position that was inconsistent with any other position. The position of the employer was the same at all times: I cannot say what the extent of the employee’s disability will be until the pin is removed from his hip. After a careful examination of the record in this case, we are convinced that there is no evidence to support a finding that the employer is estopped from asserting the statute of limitation of one year.

In addition to the conclusion that the definitional requirements of estoppel have not been met in this case, we hold that the trial court’s judgment must be reversed for the reason that an employee is not required to know the extent of his physical disability before he files his complaint, and, therefore, the lack of this knowledge does not toll the statute of limitation. See Pittman v. City Stores, Inc., 204 Tenn. 650, 325 S.W.2d 249 (1959); Stillwater Floral Co. v. Murray, 380 P.2d 694 (Okl.1962); Texas Employers’ Insurance Association v. Matejek, 381 S.W.2d 942 (Tex.Civ.App.1964); Texas Employers’ Insurance Association v. Allen, 519 S.W.2d 194 (Tex.Civ.App.1975).

This court has held that expert evidence on the extent of disability is not binding on the trier of fact, even if such evidence is uncontroverted. Carroll Construction Co. v. Hutcheson, Ala.Civ.App., 347 So.2d 527 (1977). We have also said that a court can find a percentage of disability without expert testimony. Stewart v. Busby, 51 Ala.App. 242, 284 So.2d 269 (1973). As a matter of fact, the trial court’s judgment that an employee is permanently, partially disabled must be based on a finding that the employee has lost some ability to earn, not that he is physically disabled to any degree. Webb Timber Co. v. Milton, Ala.Civ.App., 365 So.2d 101 (1978). Of course, physical disability is one of the factors that may be considered by the trial court in deciding whether an employee has lost his ability to perform his job, resulting in a loss of ability to earn a living. Stewart v. Busby, supra.

Applying these principles to the ease at bar, we conclude that the employee was not required to know the extent of his physical disability before filing his complaint for compensation benefits.

For the reasons above stated, the judgment of the trial court is reversed and the cause is remanded for proceedings not in-consistent with this opinion.

REVERSED AND REMANDED WITH DIRECTIONS.

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


author: MADDOX, Justice. TORBERT, Chief Justice

text:
    Ex parte Jack YOUNGBLOOD (re L. W. LIMBAUGH MINING & CONSTRUCTION COMPANY v. Jack YOUNGBLOOD).
    79-657.
    Supreme Court of Alabama.
    March 27, 1981.
    Rehearing Denied May 8, 1981.

      William E. Mitch of Cooper, Mitch & Crawford, Birmingham, for petitioner.
    John W. Clark, Jr. and William T. Mills, II of Porterfield, Scholl, Clark & Harper, Birmingham, for respondent.
   MADDOX, Justice.

We granted certiorari to review the question of whether an employer’s nonfraudu-lent representations which unintentionally mislead an employee in filing his workmen’s compensation claim will toll the one-year statute of limitations contained in Code 1975, § 25-5-80.

The essential facts of this case are not in dispute. On August 27, 1974, petitioner, Jack Youngblood, suffered a fractured hip in the course of his employment with respondent, L. W. Limbaugh Mining & Construction Company. Petitioner was treated for his injuries by Dr. Benjamin Meyer, a physician selected and authorized by Limbaugh to provide medical services to its employees. In performing surgery on petitioner’s hip, it was necessary for Dr. Meyer to insert a hip nail. After an extended period of recovery, petitioner returned to work on June 9, 1975.

Over the period of petitioner’s total temporary disability, he was treated by Dr. Meyer and received workmen’s compensation benefits from Limbaugh. The last of these total temporary disability payments was made on August 5, 1975. Petitioner did not file his claim for permanent disability benefits until March 17, 1977, some nineteen months after he received his last payment of compensation; however, the claim was not filed within the period set forth in Code 1975, § 25-5-80, which provides:

In case of personal injury, all claims for compensation under this article and article 2 of this chapter shall be forever barred unless within one year after the accident the parties shall have agreed upon the compensation payable under this article and article 2 of this chapter or unless within one year after the accident one of the parties shall have filed a verified complaint as provided in section 25— 5-88. . . . Where, however, payments of compensation have been made in any case, said limitations shall not take effect until the expiration of one year from the time of making the last payment. . . .

At trial, petitioner argued that the applicable statute of limitations was tolled as a result of statements made by Dr. Meyer which misled him in filing his claim. The record indicates that on several occasions Dr. Meyer informed petitioner that he could not determine the extent of any permanent disability until the hip nail was removed in a subsequent operation. When questioned by petitioner concerning the extent of his permanent disability, Dr. Meyer told petitioner he “should wait until the nail was removed and see how he got along and what he could do and how he could respond to his job activities and then [he (Dr. Meyer) ] would estimate his permanent disability.” Throughout this time, Dr. Meyer, in accordance with the requirements of Code 1975, § 25-5-77, prepared and sent written reports concerning the nature and extent of petitioner’s injuries to Limbaugh and Travelers Insurance Company, Limbaugh’s workmen’s compensation insurance carrier. After performing the additional operation for removal of the hip nail, Dr. Meyer estimated that petitioner would suffer a 25% total disability of the whole body. Petitioner thereafter filed his claim for permanent disability benefits.

On the basis of this evidence, the trial court held that petitioner acted reasonably in relying on Dr. Meyer’s representations and withholding his claim until removal of the hip nail. Since it was part of Dr. Meyer’s statutory obligation to advise Limbaugh of the nature and extent of petitioner’s injuries, the court concluded that there was an equitable tolling of the statute of limitations when the physician selected by Limbaugh did not provide an opinion as to the extent of any permanent disability, and that petitioner was lulled into filing his claim beyond the statutory time limit.

On appeal, the Court of Civil Appeals, conceding for the sake of argument that Dr. Meyer was Limbaugh’s agent, reversed and remanded. That court found no justification for tolling the statute. Relying on Dorsey v. United States Pipe & Foundry Co., 353 So.2d 800 (Ala.1977), the court reasoned that unless the petitioner could establish either fraud or common law estoppel, an employer’s misleading statements would not toll the running of the statute of limitations. We disagree with the Court of Civil Appeals’ application and interpretation of Dorsey, and, therefore, reverse and remand.

In Dorsey, this Court granted certiorari to review the sole question of whether fraud would toll the one-year statute of limitations applicable to workmen’s compensation actions. With regard to this question, the Court reached the following conclusion:

We hold, therefore, that when acts are done by the employer which lead the employee to believe that liability under the statute is admitted and will not be contested, or where the acts of the employer either falsely misrepresent to the employee or fraudulently conceal from him the truth of the facts upon which the liability of the employer depends, the running of the statute of limitations may be tolled, and it is immaterial whether the employee relies upon actual fraud or mere estop-pel. Pacific Employers Ins. Co. v. Industrial Accident Commission, 66 Cal.App.2d 376, 152 P.2d 501 (1944).

Dorsey, supra, at 353 So.2d 803. This holding is expressly limited by its language and addresses only the effect of fraud or intentional misrepresentation on the running of the statute of limitations. Dorsey did not address the effect of representations, even though made innocently, which nevertheless mislead an employee in filing his claim. The legal effect of an innocent representation is the central issue in the present case; therefore, this case goes well beyond the substantive impact of Dorsey.

Limbaugh candidly admits in its brief that without the existence of fraud or es-toppel, Dorsey has absolutely no application. We agree, but there is language in Dorsey which indicates that something less than fraud or estoppel may suffice in tolling the statute. At 353 So.2d 802-803, the Court quoted with approval the following language from Mackanitz v. Pittsburgh & W. Va. R. Co., 157 Pa.Super. 359, 43 A.2d 586 (1945):

The courts may not extend the period of repose, ex gratia, or what is the same thing, permit the filing of a petition nunc pro tunc, in aid of a meritorious claimant or to relieve against the hardship of particular circumstances although the running of the statute may be tolled by the declarations and conduct of those who invoke its protection.... Where a defendant’s representatives so deport themselves in their dealings with a claimant as to mislead or deceive him, whether innocently or with fraudulent purpose, and induce him to postpone the filing of his petition until the period of limitation has expired, the defense of inordinate delay is not available, as a defendant cannot be permitted to benefit from a neglect for which he is himself primarily responsible. (Citations omitted.) [Emphasis supplied.]

When the employer is primarily responsible for the delay, courts usually apply equitable principles and hold that the employer is estopped from asserting the limitation period. See, e.g., Fulton v. Philadelphia Rustproof Co., 200 Pa.Super. 467, 190 A.2d 459 (1963); Palmer v. City of Pittsburgh, 9 Pa.Cmwlth. 526, 308 A.2d 179 (1973). In Behenna v. Meyers, 163 Pa.Super. 200, 60 A.2d 608 (1948), the court applied these principles when an employee had, among other things, complied with insurer’s request for a medical examination, submitted to ten weeks continuous medical treatment and discussed his claim for workmen’s compensation with his employer in an effort to secure information to enable him to file a timely report. Similar circumstances existed in the instant case which the trial court could have considered in determining whether the petitioner was deceived or misled. The trial court obviously determined that the employer was primarily responsible for the delay. We hold, therefore, that the Court of Civil Appeals erred. The representations of an employer or its insurance carrier may be such as to estop them from asserting the statute of limitations as a bar to a claim for workmen’s compensation, if the employer or the carrier, or their representatives, in their dealings with the claimant, conduct themselves in such a manner, whether innocently or fraudulently, as to mislead the claimant into believing that he can postpone the filing of his claim until the period of limitation has expired. Whether the employer or the carrier, or their representatives were primarily responsible for the delay is a fact question for the factfinder at the trial level. We also hold that the question of whether a person is a representative of the employer or the carrier is essentially one of fact also. This construction of the limitations provisions of the workmen’s compensation statute is in accordance with the well recognized rule that the workmen’s compensation law must be liberally construed in furtherance of its beneficent and humanitarian purposes. Gilmore v. Rust Engineering Co., 289 Ala. 46, 265 So.2d 591 (1972); Bell v. Driskill, 282 Ala. 640, 213 So.2d 806 (1968); City of Foley v. Terry, 278 Ala. 30, 175 So.2d 461 (1965).

Accordingly, petitioner’s cause is due to be reversed and remanded to the Court of Civil Appeals for further review in accordance with the rule we announce in this opinion.

REVERSED AND REMANDED.

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

TORBERT, C. J., dissents.

TORBERT, Chief Justice

(dissenting).

I respectfully dissent.

I believe it unnecessary to reach the question of whether an innocent misrepresentation will toll the statute of limitations. As the Court of Civil Appeals held and the record reflects, the trial judge incorrectly concluded that the representation of Mr. Youngblood’s physician (Limbaugh’s agent) misled Mr. Youngblood into delaying the workmen’s compensation claim. At issue is whether the statute of limitations is tolled by the physician’s representation that the extent of Mr. Youngblood’s permanent disability would be determined at the time Mr. Youngblood’s hip pin was removed. I quote from the record:

Q. And at the time you were operated on, you knew you were having a lot of problems here with your hip, didn’t you?
A. Yes.
Q. And you knew that it was to a certain extent it was disabled [sic] to you, didn’t you, sir?
A. Yes, sir.
Q. And you knew that after Dr. Meyer put that plate or whatever it was in your hip, you knew that you were going to have some problems with it af-terwards, didn’t you?
A. Yes.
Q. Okay. And you knew that at the time, when you started back to work, didn’t you, that you were going to have some problems, didn’t you?
A. Yes.
Q. And you knew that you were going to have some disability of some type, didn’t you, sir?
A. I knowed I wasn’t ever going to be right no more.
Q. Yes, sir.
THE COURT: What? I didn’t—
A. I said, I knowed I never would, you know, be right no more.
Q. And that was something that Dr. Meyer didn’t need to tell you because that was something you knew yourself, didn’t you, sir?
A. Yes, sir. I knowed I wouldn’t.
Q. But, you just didn’t know how much disability—
A. I didn’t know how much disability.
Q. But, you knew that you were going to have some disability?
A. I knowed I was going to have some problem, yes, sir.
Q. And you knew that before the year after the accident expired, didn’t you?
A, Yes, sir.
Q. All right. Did you consult a lawyer during that time?
A. No, sir.
Q. All right. Now, back when you had your second operation, you had that pin taken out, Dr. Meyer never told you that the Traveler’s were going to pay you anything, did he?
A. No, sir.
Q. Dr. Meyer never made any promises of any type to you that anybody was going to pay you any permanent disability of any type, did he, sir?
A. No, sir.
Q. And the only thing Dr. Meyer told you was that you were going to have a disability rating of some type, is that right?
A. Yes, sir.
Q. But, you knew that already, didn’t you, sir?
A. Yes, but I didn’t know what extent.
Q. Okay. But, at any rate Dr. Meyer never promised you that anybody was going to pay you anything?
A. No, sir.
Q. And he never told you that he was going to see that you got compensation benefits?
A. No, sir.
Q. And he never told you to wait a certain length of time before filing any claim to get compensation benefits, did he, sir?
A. He didn’t tell me to file a claim.
Q. That’s right. And he didn’t tell you not to file one?
A. No, sir.
Q. And you didn’t tell him that you were going to be filing a claim?
A. No, sir. I just asked him what disability I would be.

In spite of the presumption accorded the trial judge’s ore tenus finding of fact, see, Donnelly v. Doak, 346 So.2d 414 (Ala.1977), I believe it is apparent the trial judge erred when he found that the physician’s statements misled plaintiff into delaying the filing of this lawsuit. Additionally, even assuming the physician’s representations were misstatements of fact, they were not of the character which will toll the statute of limitations, because a fixed degree of disability is not a condition precedent to a claim under the Workmen’s Compensation Act. See, Pittman v. City Stores, Inc., 204 Tenn. 650, 325 S.W.2d 249 (1959); Stillwater Floral Co. v. Murray, 380 P.2d 694 (Okl.1962).


author: PER CURIAM.

text:
    L. W. LIMBAUGH MINING & CONSTRUCTION COMPANY v. Jack YOUNGBLOOD.
    Civ. 2072.
    Court of Civil Appeals of Alabama.
    July 22, 1981.
    Rehearing Denied Sept. 2, 1981.
   PER CURIAM.

On original submission of this case, this court held (assuming arguendo that Dr. Meyer was the employer’s agent) that the statements made by Dr. Meyer were not fraudulent nor did they constitute an estop-pel so as to toll the one year statute of limitations. The supreme court reversed and held that a non-fraudulent representation by the employer’s representative which unintentionally misled an employee to delay the filing of a workmen’s compensation claim may toll the limitations period set out in § 25-5-80, Code 1975.

In its opinion the supreme court said: Whether the employer or the carrier, or their representatives were primarily responsible for the delay is a fact question for the factfinder at the trial level. We also hold that the question of whether a person is a representative of the employer or the carrier is essentially one of fact also.

Reviewing the decision of the trial court in the light of the rule established by the supreme court, we note that the trial court found that the employer, as a result of Dr. Meyer’s statements, was responsible for the employee’s failure to timely file his claim. Pursuant to our well-established rule of review in workmen’s compensation cases, if there is any evidence in the record to support the trial court’s finding of fact, the judgment must be upheld. Ohio Ferro-Alloys Corp. v. Whaley, Ala.Civ.App., 366 So.2d 287 (1979).

For the employer to be held responsible for the employee’s delay in filing his claim, it must be established that Dr. Meyer was the employer’s representative when he made the statements to the employee that lulled the employee into delaying the filing of his claim for benefits.

Implicit in the trial court’s judgment that claimant’s petition was timely filed is the finding that Dr. Meyer was the representative of the employer at the time he made the statements in question to the employee. Such finding is stated to be based on the statutory authority of the employer to select the treating physician and that the physician so selected shall furnish to the employer written reports of his findings and opinions, § 25-5-77, Code 1975, together with the fact that Dr. Meyer did furnish such reports to the employer’s insurance company and that Dr. Meyer told claimant that his inquiry as to his permanent disability could not be answered until the pin was removed.

From these findings and observations the court made the following conclusion:

Youngblood was thus led to believe that there was no point in asserting any claim for permanent disability benefits prior to the time when Dr. Meyer had removed the pin from his leg. Since Dr. Meyer was Youngblood’s treating physician, there can be no question but that Youngblood acted reasonably in waiting until the removal of the pin before making further claim.

It appears to us that the trial court concluded that claimant was led to believe that he should delay the assertion of his claim for permanent disability by the medical opinion of Dr. Meyer given in response to an inquiry from the claimant-patient. Because Dr. Meyer was the treating physician, the court concluded that claimant acted reasonably in delaying his claim for benefits until the pin was removed. But, how can it be said that Dr. Meyer was acting in a representative capacity for Limbaugh when he gave his medical opinion to claimant, who was his patient? The authority of the statute giving the employer the right to select the physician is not an appointment of the physician as the legal representative of the employer. The employer has no direction or control over the physician.

Although the supreme court, in using the word “representative” as it applies to Dr. Meyer did not say it was doing so in the context of agency, we must assume that it was doing so as we are unacquainted with legal representation in any other context. Hence, the applicable rule is that an agent, as a representative of his principal, acts in the place of his principal and must be subject to a right of control. Hunt v. Davis, Ala.Civ.App., 387 So.2d 209 (1980).

The record shows that Dr. Meyer was selected by the employer to treat the employee and that Dr. Meyer made periodic reports to the employer’s insurer regarding Youngblood’s medical condition as provided by statute. There is no evidence in the record tending to show that Limbaugh had any control over Dr. Meyer as regards his medical treatment of Youngblood nor does the record show that Limbaugh had agreed to be liable for the correctness of Dr. Meyer’s treatment of Limbaugh or the medical opinions given concerning him. Clearly, Dr. Meyer was not a company doctor nor subject to its control and direction.

Since Dr. Meyer was not an agent, i.e. “representative,” of Limbaugh when he gave his opinion that Youngblood’s percentage of permanent disability could not be determined until the pin was removed, Limbaugh could not be held to have lulled or induced Youngblood to delay filing his claim for workmen’s compensation benefits beyond the statutory period of one year. Accordingly, for error in applying the law to the facts, the judgment of the trial court is reversed and the cause is remanded for entry of judgment not inconsistent with this opinion.

REVERSED AND REMANDED WITH INSTRUCTIONS.

All the Judges concur.


author: BEATTY, Justice. TORBERT, Chief Justice

text:
    Ex parte Jack YOUNGBLOOD. (Re L. W. LIMBAUGH MINING & CONSTRUCTION COMPANY v. Jack YOUNGBLOOD).
    80-883.
    Supreme Court of Alabama.
    April 2, 1982.
    William E. Mitch of Cooper, Mitch & Crawford, Birmingham, for petitioner.
    John W. Clark, Jr. and William T. Mills, II, for Porterfield, Scholl, Bainbridge, Mims, Clark & Harper, Birmingham, for respondent.
   BEATTY, Justice.

We granted certiorari for the second time to determine whether the Court of Civil Appeals misapplied our holding upon remand of this workmen’s compensation case. L. W. Limbaugh Mining & Construction Co. v. Youngblood, Ala.Civ.App., 413 So.2d 1151 (1981). The facts are found in Ex parte Jack Youngblood, Ala., 413 So.2d 1146 (1981).

This case concerns an innocent misrepresentation made by a physician who was retained by the employer to treat the employee. The physician’s statements were responsible for the employee’s failure to file a timely claim. We held that the question of whether the physician was a representative of the employer is one of fact. On remand, however, the Court of Civil Appeals reaffirmed its reversal of the trial court, holding as a matter of law that the physician was not a representative of the employer because the employer exercised no “control” over the physician’s medical treatment of the employee. This observation by the Court of Civil Appeals is irrelevant since the record reveals that the physician was selected by the employer to treat the employee and to make periodic reports to the employer’s insurer regarding the employee’s medical condition. These facts alone are sufficient to support the trial court’s conclusion that the physician was a representative of the employer. The Court of Civil Appeals erred, therefore, in setting aside the trial court’s finding of fact which was clearly supported by the evidence. Rule 52, ARCP.

The judgment of the Court of Civil Appeals is due to be, and is, reversed, and this cause is remanded to that Court for an order not inconsistent with this opinion.

REVERSED AND REMANDED.

MADDOX, FAULKNER, JONES, AL-MON, SHORES, EMBRY and ADAMS, JJ., concur.

TORBERT, C. J., dissents with opinion.

TORBERT, Chief Justice

(dissenting).

I respectfully dissent. At this time I believe it is necessary to reemphasize my dissent in Ex parte Youngblood, 413 So.2d 1146 (Ala.1981). It is apparent that the learned trial judge erred when he found that the physician’s statements lulled Mr. Youngblood into delaying the filing of his lawsuit. Mr. Youngblood, in fact, testified that he knew that he would have some permanent disability in his hip and that Dr. Meyer never gave him advice as to whether he should or should not proceed in filing his lawsuit. Yet, Mr. Youngblood, knowing that he would have permanent problems, still failed to consult an attorney to file a claim.

The majority of this Court held that the physician’s statements did mislead Mr. Youngblood and today holds that Dr. Meyer was a representative of Limbaugh. I believe, as correctly stated by the Court of Civil Appeals, there is no evidence in the record to show that Dr. Meyer was under the control or direction of Limbaugh. He was clearly not a company doctor and the medical opinion expressed by him to Mr. Youngblood was by no means given in a representative capacity for Limbaugh. As stated by the Court of Civil Appeals, “The authority of the statute giving the employer the right to select the physician is not an appointment of the physician as the legal representative of the employer.” It is for these reasons that I would affirm the decision of the Court of Civil Appeals.


text:
    L. W. LIMBAUGH MINING & CONSTRUCTION COMPANY v. Jack YOUNGBLOOD.
    Civ. 2072.
    Court of Civil Appeals of Alabama.
    April 28, 1982.
   PER CURIAM.

Upon remand to this court by the Supreme Court of Alabama it is considered that this cause should be affirmed in accordance with the opinions rendered by the Supreme Court on March 27,1981, Ala., 413 So.2d 1146 and April 2, 1982, Ala., 413 So.2d 1153, in the above cause.

AFFIRMED.

All the Judges concur.


author: HOLMES, Judge. HOLMES, Judge.

text:
    Carol Sloan PEDIGO v. George Preston PEDIGO.
    Civ. 2761.
    Court of Civil Appeals of Alabama.
    Oct. 28, 1981.
    As Corrected on Denial of Rehearing Nov. 25, 1981.

      Norma Harwood Self, Huntsville, for appellant.
    No brief for appellee.
   HOLMES, Judge.

This is a divorce case.

The divorce was granted on the grounds of incompatibility. The parties’ property was divided and the wife was awarded periodic alimony. The wife appeals and we affirm.

The dispositive issue on appeal is whether the trial court abused its discretion in the award to the wife. As indicated, we find no such abuse as to require reversal and affirm.

Three children were born of the marriage. At the time of the divorce the two oldest children had reached majority and were no longer living in the parental home. The youngest child reached majority soon after the divorce but continued to live with her mother while attending college.

The husband-appellee is sixty years old and apparently in good health. He retired from the National Aeronautics and Space Administration in 1974. Though the husband had taken another job shortly after retirement in which he earned approximately $21,000 per year, at the time of the divorce the husband’s sole source of income was payments from the civil service retirement annuity he had participated in while employed. These payments amounted to approximately $29,868 per year. By law these payments are subject to periodic cost of living adjustments.

The wife-appellant is fifty-one years old and apparently in good health. She had a Masters degree in education and has been employed as a teacher for the last twelve years. At the time of the divorce she earned approximately $17,900 per year. The youngest daughter of the parties resides with the wife while the daughter attends college.

The divorce decree required the husband to pay the wife $250 per month as alimony. In addition, the husband was to maintain the wife as beneficiary of a $38,000 life insurance policy carried through NASA. The wife was to maintain the husband as beneficiary of a $24,000 term life insurance policy. The decree also required the husband to pay $100 per month as child support until the youngest child reached majority. These payments have ceased, however, since the daughter reached majority soon after the divorce.

On the day of the trial, the parties entered into an agreement regarding a property division. The agreement required that the parties’ home, sailboat and two sailboat trailers be sold and the proceeds divided equally between the parties. Stock owned by the parties was to be divided equally in kind. The parties were each allowed to retain a vehicle.

On appeal, the wife specifically maintains the trial court committed error in two instances. First, she contends that the award of alimony was so low that it constituted an abuse of the trial court’s discretion. Second, she contends that the husband’s retirement benefits constituted marital property which must be subject to division by the court in a property settlement and/or award of alimony in gross.

On divorce, the determination of the propriety and amount of alimony is left to the sound discretion of the trial court. The trial court’s determination will not be reversed except for palpable abuse of its discretion. Armstrong v. Armstrong, 391 So.2d 124 (Ala.Civ.App.1980). Relevant factors to be considered by the trial court in awarding alimony include the earning ability of the parties, future prospects, age, health, duration of marriage, standard of living, value and type of property, and conduct of the parties. Williams v. Williams, 389 So.2d 141 (Ala.Civ.App.1980).

The record reflects that the wife is well educated and has been gainfully employed for the past twelve years as a school teacher. There is no evidence that her job is endangered. She has no minor children to care for though an adult child still resides with her. In addition to the periodic alimony, the wife is to receive one-half of the proceeds from the sale of the marital home. According to her own estimate, her share of the proceeds from the sale would amount to $25,000 to $27,000. Though the record contains no estimate of the value of the wife’s share, she is also to receive one-half of the proceeds from the sale of the sailboat and sailboat trailers.

Based upon the foregoing, this court cannot say that the trial court abused its discretion in the amount of alimony it awarded to the wife.

The wife’s contention that the husband’s retirement benefits are marital property and therefore must be included in a division of property and/or award of alimony in gross is not well taken.

This court has previously indicated that an award of military retirement benefits should not be treated as either a property settlement or alimony in gross. Holcomb v. Smith, 404 So.2d 709 (Ala.Civ.App., 1981); Kabaci v. Kabaci, 373 So.2d 1144 (Ala.Civ.App.1979).

The instant retirement benefits may, in view of the above, clearly be considered as a source of income from which to pay periodic alimony. Holcomb v. Smith, supra; Kabaci v. Kabaci, supra. In the case before us, the trial court undoubtedly considered the husband’s retirement benefits as the source of the alimony payments because those benefits were the only income the husband had. In so doing, the trial court did not commit error.

This case is due to be affirmed.

AFFIRMED.

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

ON APPLICATION FOR REHEARING

HOLMES, Judge.

OPINION CORRECTED. APPLICATION FOR REHEARING OVERRULED.

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

      . We would be remiss in not commenting that able counsel for the wife made an excellent presentation during oral argument.


author: PER CURIAM. EMBRY, Justice

text:
    Ex parte Carol Sloan PEDIGO. (Re Carol Sloan PEDIGO v. George Preston PEDIGO).
    81-235.
    Supreme Court of Alabama.
    May 7, 1982.
    George A. Kronenberg, Huntsville, for petitioner.
    Richard Kempaner, Huntsville, for respondent.
   PER CURIAM.

WRIT QUASHED AS IMPROVIDENTLY GRANTED.

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

SHORES, EMBRY and ADAMS, JJ., dissent.

MADDOX, J., not sitting.

EMBRY, Justice

(dissenting):

The writ of certiorari to the Court of Civil Appeals 413 So.2d 1154 was granted in this case to review the decision of that court regarding its treatment of a United States Civil Service Retirement Annuity in a divorce proceeding as not being marital property. I would not quash the writ but would hold as stated below.

In this action the trial court entered a final decree of divorce and awarded petitioner Carol Sloan Pedigo alimony in the amount of $250 per month. The trial court did not award her any portion of a retirement annuity being paid to George Preston Pedigo. She vigorously contended at trial, and again on appeal, that she was entitled to a portion of this annuity. The appellate court affirmed the trial court, which failed to treat the annuity as marital property. I find the appellate court relied on authority not dispositive of this case and failed to acknowledge the weight of authorities cited by Mrs. Pedigo and would reverse and remand.

The annuity in question was earned by the husband as a civil service employee of the National Aeronautics and Space Administration. He had worked at NASA for thirty years, during the latter twenty of which he was married to petitioner. During the early years of the marriage she had worked at Redstone Arsenal in Huntsville. She quit work for a period of twelve years, in order to rear their three children, after which she took a job as a schoolteacher so she could be home at times when the children were there. She asserts that because she has thus contributed to the marriage without building her own financial security, she is entitled to either half of the retirement annuity earned during the marriage, or to one-third of its total value.

The trial court made no mention of the annuity in its judgment and the appellate court affirmed upon the basis that the resultant denial of her claim was not an abuse of the trial court’s discretion, citing Armstrong v. Armstrong, 391 So.2d 124 (Ala.Civ.App.1980), and Williams v. Williams, 389 So.2d 141 (Ala.Civ.App.1980). Further, it was held that the annuity should not be the subject of either a property settlement or alimony in gross, but may be considered a source of income from which to pay periodic alimony, on authority of Holcomb v. Smith, 404 So.2d 709 (Ala.Civ.App.1981), and Kabaci v. Kabaci, 373 So.2d 1144 (Ala.Civ.App.1979).

I think the appellate court erred when it relied on Holcomb and Kabaci. Those cases involved military retirement benefits that are governed by different criteria. The United States. Supreme Court, in McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981), held that states may not apply community property law to divide military retirement pay, stating:

“. . . [I]t is manifest that the application of community property principles to military retired pay threatens grave harm to ‘clear and substantial’ federal interests. See United States v. Yazell, 382 U.S., at 352, 15 L.Ed.2d 404, 86 S.Ct. 500. Under the Constitution, Congress has the power ‘[t]o raise and support Armies,’ ‘[t]o provide and maintain a Navy,’ and ‘[t]o make Rules for the Government and Regulation of the land and naval forces.’ U.S.Const, Art I, § 8, els 12, 13, and 14. See generally Rostker v. Goldberg, 453 U.S. [57], [59], 69 L.Ed.2d 478, 101 S.Ct. 2646 (1981). Pursuant to this grant of authority, Congress has enacted a military retirement system designed to accomplish two major goals: to provide for the retired service member, and to meet the personnel management needs of the active military forces. The community property division of retired pay has the potential to frustrate each of these objectives.”

But the court distinguished military retirement benefits from civil service and other federal retirement benefits, noting:

“. . . Indeed, Congress recently enacted legislation that requires that Civil Service retirement benefits be paid to an ex-spouse to the extent provided for in ‘the terms of any court order or court-approved property settlement agreement incident to any court decree of divorce, annulment, or legal separation.’ Pub.L. 95-366, § 1(a), 92 Stat. 600, 5 U.S.C. § 8345(j)(l) (1976 ed., Supp. Ill) [5 U.S. C.S. § 8345(j)(l) ]. In an even more extreme recent step, Congress amended the Foreign Service retirement legislation to provide that, as a matter of federal law, an ex-spouse is entitled to a pro rata share of Foreign Service retirement benefits. Thus, the Civil Service amendments require the United States to recognize the community property division of Civil Service retirement benefits by a state court, while the Foreign Service amendments establish a limited federal community property concept. Significantly, however, while similar legislation affecting military retired pay was introduced in the 96th Congress, none of those bills was reported out of committee. Thus, in striking contrast to its amendment of the Foreign Service and Civil Service retirement systems, Congress has neither authorized nor required the community property division of military retired pay. On the contrary, that pay continues to be the personal entitlement of the retiree.”

The federal statutory authority cited in McCarty, for such a division of a retirement annuity as Mrs. Pedigo seeks, requires that the decision of the appellate court be reversed and the cause remanded to the trial court for consideration by it of Mrs. Pedi-go’s claim. This is not to say that federal law requires that a division be made. See Witcig v. Witcig, 206 Neb. 307, 292 N.W.2d 788 (1980), but only that the annuity is subject to division as a marital asset and not just as a source of income from which periodic alimony payments are to be made.

Mrs. Pedigo argues that her marital contributions as a homemaker were equal to the husband’s contributions as a breadwinner. This is true, she says, because she gave up the opportunity to build her own retirement benefits when she gave up her federal employment and went without com-pensable employment for twelve years, followed by teaching school at an attendant low pay in order that she could be at home with the children. For these reasons, she contends, she is entitled to a share in the retirement annuity earned by Mr. Pedigo during the period they remained married.

In support of her contentions, Mrs. Pedi-go cites a host of decisions from a multitude of jurisdictions with property law schemes similar to ours, holding that retirement pay is a marital asset in which each spouse has a vested property interest. She cites In re Marriage of Camarata, 43 Colo.App. 317, 602 P.2d 907 (Colo.App.1979), as the sole decision contra; I have, in addition, found only Witcig, supra, holding that civil service retirement annuities are not marital property.

I respectfully differ with the Colorado and Nebraska courts and would hold with the majority of jurisdictions that, in most circumstances, a retirement annuity earned through the gainful employment of one spouse during the marriage should be treated as marital property upon dissolution of the marriage.

I would remand for the trial court to reconsider the property settlement and alimony award in light of what I have written in this dissent.

The opinion of this court in Hager v. Hager, 293 Ala. 47, 299 So.2d 743 (1974), has an excellent discussion of the rationale and basis for these two distinct facets of marital dissolution awards and would provide sufficient guidance to the learned trial judge in his reconsideration of the questions of property settlement and award of periodic alimony.

SHORES and ADAMS, JJ., concur.


text:
    Delores ROUNTREE and Medical Services Administration of the State of Alabama v. Willie SANDERS, Jr. and Bobby Salter.
    Civ. 3024.
    Court of Civil Appeals of Alabama.
    April 14, 1982.
    John A. Taber, Greenville, for appellant.
    Jimmy S. Calton, Eufaula, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

The plaintiffs sued both Sanders and Salter in tort, The alleged basis of Salter’s liability was respondeat superior, Salter having been Sanders’ employer.

The jury returned one verdict against Sanders for $5,000 and a separate verdict against Salter for $3,354.85 “for medical services.” When the last of the jury’s two verdicts, the one against Salter, was read in open court, the trial court inquired, “What do you think about the form of that verdict?” and, there being no response from any of the four attorneys, the trial court excused the jury from the case without objection or exception from anyone. No post trial motion was filed by any party.

The plaintiffs appealed and their only complaint is that the trial court erred in accepting the two separate inconsistent verdicts. We cannot reach that issue and affirm.

Only error which is asserted at trial and there ruled upon may be raised on appeal and reviewed by an appellate court. Dennis v. Scarborough, 372 So.2d 357 (Ala.Civ.App.1979). Upon an appeal, only adverse rulings of the trial court will be reviewed. Davis v. Hartford Accident and Indemnity Co., 335 So.2d 688 (Ala.Civ.App.), cert. denied, 335 So.2d 691 (Ala.1976). The appellants have no ruling to which they may complain on appeal in the absence of a ruling by the trial court. Woods v. Westbrook, 356 So.2d 153 (Ala.1978).

Since in this case there was no adverse ruling by the trial court, we have nothing to review and must affirm.

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

AFFIRMED.

All the Judges concur.


text:
    Roberta E. WILLOUGHBY v. George WILLOUGHBY.
    Civ. 3040.
    Court of Civil Appeals of Alabama.
    April 14, 1982.
    R. B. Jones, Birmingham, for appellant.
    Tom Drake, Cullman, for appellee.
   BRADLEY, Judge.

This is a divorce case.

The parties to this appeal were granted a divorce on September 25,1981. The divorce decree awarded the husband the mobile home in which the parties lived during the marriage, its furnishings, and his personal property, including a pickup truck, a Volkswagen automobile, and two or three head of cattle. In addition, the husband was awarded the entire interest in forty acres of farmland, ten acres of which he obtained from his mother by gift, and the remaining thirty acres of which he had purchased from his three brothers. Title to the farmland was previously held jointly in both parties’ names. The wife was awarded all of her personal property, including her automobile and a deep freezer. She was also awarded $3,000.00 for her interest in the marriage, including her interest in the jointly-held farmland.

The wife appeals from that distribution of property, alleging that the trial court abused its discretion in awarding her only $3,000.00 for her interest in the jointly-owned farmland. She contends that she should have been awarded $4,500.00 for her interest in the farmland. We disagree, and affirm the trial court’s decision.

The facts indicate that the parties were married for a period of two and one-half years. No children were born of the marriage. The husband was employed by L & N Railroad, and earned approximately $17,-000.00 to $18,000.00 a year. The wife worked at a nursing home, earning minimum wage.

The husband’s mother had apparently inherited a tract of farmland consisting of approximately forty acres. The mother subsequently gave each of her four sons ten acres of the property, reserving for herself a life estate in a few acres. The husband arranged to purchase his brothers’ interests in the land, and thereafter acquired the entire forty acre tract for a total price of around $30,000.00. Title to the forty acres was taken jointly in both the husband’s and the wife’s names.

Testimony indicates that the husband alone, financed the purchase of the land, executing a mortgage on the property with his mother. The wife made no payments on the mortgage. The husband stated that the land in its entirety was valued at $40,000.00. The wife testified that the forty acres, if sold, would bring only $25,000.00 to $30,-000.00. The evidence is unclear as to the remaining balance on the mortgage, although there is some indication that the husband still owes approximately $21,-000.00.

The rule is that the division of property in a divorce ease is within the discretion of the trial court and its decision will not be disturbed absent proof of palpable abuse of that discretion. Parker v. Parker, 392 So.2d 229 (Ala.Civ.App.1980). An equal division of the property is not required, but an equitable division of the property should be made according to the nature of the case. Lindsey v. Lindsey, 361 So.2d 601 (Ala.Civ.App.1978). The facts show that the wife received one-third of the equity in the real property and, based on the short length of time the parties were married, the source of the property, and the contributions made to the marriage, we find such amount to be an equitable award for the wife’s interest in the property.

The husband’s request for an attorney’s fee on appeal is denied.

AFFIRMED.

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


author: WRIGHT, Presiding Judge. HOLMES, Judge

text:
    Leonard CRABTREE and Jean Crabtree v. FORD MOTOR CREDIT COMPANY, et al.
    Civ. 3061.
    Court of Civil Appeals of Alabama.
    April 14, 1982.

      John Baker, Fort Payne, for appellants.
    S. Dagnal Rowe of Cleary, Lee, Evans, Rowe & Bailey, Huntsville, for appellees.
   WRIGHT, Presiding Judge.

This is a tort case involving conversion of personal property. The sole issue on appeal is whether the trial court erred in granting appellee’s judgment notwithstanding the verdict so that the jury’s award of punitive damages was removed, and only compensatory damages remained.

The cause arose under the following pertinent facts:

Kirby Ford Sales in Fort Payne, Alabama, sold a new 1979 Mercury Cougar automobile to Leonard and Jean Crabtree on January 18,1979. The sale was financed by Ford Motor Credit Company (FMC). After numerous defaults by way of late payments and “bounced” checks, FMC repossessed the automobile on September 4, 1980, while Mrs. Crabtree was at work. The FMC employee used a duplicate key provided to him specifically for purposes of repossession and did not tell Mrs. Crabtree he was taking the car. Items of personal property in the car were also taken. On the same day, Mrs. Crabtree demanded that the automobile be returned. A written demand for the car and the personal property was made within approximately ten days. The personal property was apparently inventoried by the FMC employee and a Kirby Ford Sales employee and thereafter was removed from the Fort Payne area to Huntsville, some seventy-five miles away. FMC did not return the automobile or personal property, but at all times told the Crabtrees that they could come to Huntsville and get their personal belongings.

The Crabtrees sued FMC for wrongful taking of the automobile and the personal property contained therein. They claimed that FMC, in addition to the unlawful taking, wantonly and maliciously refused to return the property, and thus requested punitive damages. FMC moved for summary judgment, which motion was denied on April 22, 1981. Such motion was resubmitted on July 16, 1981, with the Crabtrees’ acquiescence. On August 20, 1981, the date of trial, FMC’s summary judgment motion was granted as to the actual repossession of the automobile. Following a trial by jury concerning the detention of the personal property and punitive damages, a verdict was rendered for the Crabtrees in the amount of $5,000. FMC moved for judgment notwithstanding the verdict, or for new trial. On October 15, 1981, the trial court granted the judgment notwithstanding the verdict, and ordered a remittitur of the judgment over the amount of $209, the value of the personal property when viewing the evidence in a light most favorable to the plaintiffs. The trial court found that the evidence was insufficient to support an award of punitive damages in that the detention of the Crabtrees’ personal property was not committed in known violation of their rights or with insult or malice. From the order of remittitur, the Crabtrees appeal.

The repossession of the automobile, and thus, the taking of the personal property was carried out pursuant to the following provisions in the installment sales contract between FMC and the Crabtrees:

In the event Buyer defaults in any payment . . . Seller shall have the right to repossess the Property wherever the same may be found with free right of entry.... Any personalty in or attached to the Property when repossessed may be held by Seller without liability and Buyer shall be deemed to have waived any claim thereto unless written demand by certified mail is made upon Seller within 24 hours after repossession. (Emphasis ours.)

The trial court determined that the twenty-four-hour provision in the contract was unconscionable, and instructed the jury to that effect, i.e., the Crabtrees’ demand was sufficient to prevent waiver of claim under the contract provisions. The trial court also found through its grant of FMC’s motion for summary judgment that the repossession of the automobile was legal and proper under the “self-help” provision and claim of right under the terms of the contract. See, Reno v. General Motors Acceptance Corp,, 378 So.2d 1103 (Ala.1979).

The act of conversion here could only have been determined to be FMC’s failure to deliver the property to the Crabtrees in Fort Payne following their demand. It is not in dispute, however, that FMC offered the property to the Crabtrees in Huntsville. The dissent, infra, states that the Crabtrees “were not required to subject themselves to the expense and inconvenience of traveling to FMC’s office to retrieve their property once the demand had been made.” Apparently, the jury found exactly that. We are not prepared to hold that to fail or refuse to physically deliver property, not unlawfully taken, to the possession of the owner after demand is a conversion when the owner’s right to possession is not disputed. However, the correctness of the jury’s finding of conversion is not before us on appeal. The propriety of the judgment notwithstanding the verdict or the remittitur is our sole concern here.

As stated in Carolina Casualty Insurance Co. v. Tisdale, 46 Ala.App. 50, 237 So.2d 855, cert. denied, 286 Ala. 741, 237 So.2d 861 (1970), “It is clear punitive damages may be awarded in an action for conversion . .. . ” (Cites omitted.) Mere evidence of conversion itself is not enough to invoke the right to punitive damages. The standard set out in Carolina Casualty is that “Such punitive damages are justified when the evidence discloses the conversion to have been committed in known violation of law and of owners rights, with circumstances of insult, or contumely, or malice.” 46 Ala.App. at 57, 237 So.2d 855. See also, Richard M. Kelley Chevrolet Co. v. Seibold, 363 So.2d 989 (Ala.Civ.App.1978) and Ray Hughes Chevrolet, Inc. v. Gordon, 294 Ala. 638, 320 So.2d 652 (1975). We are of the opinion that since FMC held the personal property under claim of right under the terms of its contract (See, Reno, supra.), the trial court properly held that reliance by FMC on the contract negated a finding that FMC’s action was “in known violation of law or of owners rights.” The mere refusal of FMC, while disclaiming right to detention, to return the property lawfully taken to plaintiff in Fort Payne did not amount to insult, contumely or malice. We agree with the learned trial judge that punitive damages were not warranted and the grant of the judgment notwithstanding the verdict properly remitted the damages to $209.

AFFIRMED.

BRADLEY, J., concurs.

HOLMES, J., dissents.

HOLMES, Judge

(dissenting).

I respectfully dissent.

The majority holds that FMC’s act of repossessing and retaining the automobile and the personal property therein was not done in known violation of the law or of the owner’s rights since FMC was relying on the terms of the contract. The act of conversion, however, did not occur when FMC took the property. Rather, the actionable conversion arose when FMC wrongfully detained the property after the Crabtrees demanded that the property be returned.

The question, then, is whether there was evidence from which the jury could have determined that FMC’s act of conversion was done willfully and knowingly so as to justify an award of punitive damages. The majority agrees with the trial court and holds, as a matter of law, that since FMC held the personal property pursuant to the terms of FMC contract with the Crabtrees, its refusal to return the property could not be knowing or willful.

I disagree. The jury must determine whether FMC’s actions were a knowing and intentional violation of the Crabtrees’ legal rights, or were accomplished in disregard of them. U-Haul Co. of Alabama v. Long, 382 So.2d 545 (Ala.1980). If there is evidence from which the jury could have reasonably concluded that FMC knowingly violated the law and the Crabtrees’ rights, then the jury has the discretion to award punitive damages. Ray Hughes Chevrolet, Inc. v. Gordon, supra. The intentional, willful and knowing violation of the law and of a plaintiff’s rights in and of itself constitutes legal insult, contumely and malice, and authorizes the jury in its discretion to award punitive damages. Richard M. Kelley Chevrolet Co. v. Seibold, supra.

I find there is evidence in the record from which the jury could have reasonably concluded that FMC’s actions were knowing and willful. The evidence clearly indicates that the Crabtrees demanded the return of their property, both orally and in writing. However, once the demand was made, FMC failed to return the property. FMC admitted that most of the property was stored in its Huntsville office, some seventy-five miles from the Crabtrees’ home. The Crab-trees though, were not required to subject themselves to the expense and inconvenience of traveling to FMC’s office to retrieve their property once the demand had been made. Russell-Vaughn Ford, Inc. v. Rouse, 281 Ala. 567, 206 So.2d 371 (1968).

I find this evidence was sufficient to present to the jury the question of whether FMC knowingly converted the property or, alternatively, converted the property in the mistaken belief that it had a right to the property under the contract. I believe the trial court erred in finding, as a matter of law, that FMC’s reliance on the contract precluded the act of conversion from being committed willfully or knowingly. I would hold that the trial court erred in granting FMC’s motion for a JNOV.

      . The automobile was repossessed by “self-help.” See, § 7-9-503, Code (1975). An'earlier effort was abandoned when Mrs. Crabtree threatened to “fight” for possession.


author: WRIGHT, Presiding Judge.

text:
    Sybil Louise POLK v. STATE of Alabama, DEPARTMENT OF INDUSTRIAL RELATIONS.
    Civ. 3137.
    Court of Civil Appeals of Alabama.
    April 14, 1982.

      Gabrielle U. Wehl of Legal Services Corp. of Alabama, Mobile, for appellant.
    George Cocoris, Gen. Counsel, and Frank D. Marsh and Harry A. Lyles, Asst. Gen. Counsel, Dept, of Industrial Relations, Montgomery, for appellee.
   WRIGHT, Presiding Judge.

This is an unemployment compensation case on appeal to this court for the second time.

The record of the original trial reveals that Sybil Louise Polk (claimant) and the State of Alabama, Department of Industrial Relations (DIR) agreed to the following stipulation: “Since October of ’79 til the day of the trial [claimant] actively sought employment and has not received employment.”

The case proceeded on the sole issue whether claimant should be disqualified from benefits under § 25-4-78, Code (1975) for voluntarily leaving her employment without good cause. After an ore ten us hearing, the trial court determined that claimant should be denied benefits. Judgment was entered to that effect on September 30, 1980, and claimant appealed to this court. Again the only issue presented by either party was the issue of “good cause.” We held that the evidence did not support disqualification on that ground and the cause was reversed and remanded. Sybil Louise Polk v. State of Alabama, Department of Industrial Relations, 398 So.2d 722 (Ala.Civ.App.1981).

On remand, claimant and DIR moved jointly for the trial court to enter judgment pursuant to the pleadings, the testimony of parties and witnesses taken in open court on September 30, 1980, and the ruling-‘of this court upon the first appeal. On October 2, 1981, the trial court, without further argument or evidence from either party, entered a judgment again denying unemployment compensation to claimant. This time, however, the denial was based upon claimant’s failure to meet the requirements of eligibility under § 25—4-77(2) Code (1975). The trial court denied a motion to vacate the judgment or, in the alternative, motion for a new trial. Claimant comes before this court seeking relief by way of appeal or, alternatively, petitions for a writ of mandamus directed to the trial judge.

Initially, we note that the question whether the trial court correctly interpreted and followed our decision after remandment can be reviewed either by appeal or on a petition for mandamus. Town of Daphne v. City of Fairhope, 284 Ala. 556, 226 So.2d 383 (1969).

Section 25-4-77, Code (1975) provides in pertinent part:

An unemployed individual shall be eligible to receive benefits with respect to any week only if the director finds that:
(1) He has made a claim for benefits with respect to such week in accordance with such regulations as the director may prescribe.
(2) He has registered for work at, and thereafter continued to report at, an unemployment office in accordance with such regulations as the director may prescribe; ....
(3) He is physically and mentally able to perform work of a character which he is qualified to perform by past experience or training, and he is available for such work either at a locality at which he earned wages for insured work during his base period or at a locality where it may reasonably be expected that such work may be available.

A claimant bears the burden of proving that he is available for work during the time for which he seeks benefits. Quick v. Director of State of Alabama Department of Industrial Relations, 398 So.2d 312 (Ala.Civ.App.1981). The unemployment compensation statute, however, should be liberally construed in claimant’s favor. Department of Industrial Relations v. Nix, 381 So.2d 651 (Ala.Civ.App.1980). The statute is in the nature of insurance for the unemployed worker and is intended to be a remedial measure for his benefit. Department of Industrial Relations v. Jaco, 337 So.2d 374 (Ala.Civ.App.1976).

The case law of this state clearly shows that the purpose of § 25-4-77 as a whole is to insure that claimants seeking benefits put forth a good faith effort to obtain work. Our supreme court, in Department of Industrial Relations v. Tomlinson, 251 Ala. 144, 36 So.2d 496 (1948) stated as follows:

A hard and fast rule as to what constitutes availability for work cannot be laid down. It depends upon the facts and circumstances of each case.

In Alabama Department of Industrial Relations v. Anderson, 41 Ala.App. 267, 128 So.2d 532 (1961) the court followed Tomlin-son, supra, in holding that a person seeking unemployment benefits must show that he acted in good faith and made a reasonable effort to secure suitable employment of a character which he is qualified to perform. See also, State Department of Industrial Relations v. Harbin, 365 So.2d 313 (Ala.Civ.App.1978). In State Department of Industrial Relations v. Singleton, 364 So.2d 325 (Ala.Civ.App.), cert. denied, 364 So.2d 327 (Ala.1978), we noted that a claimant is not required to prove the exact number of employment applications made, but there merely must be such evidence that the circumstances as a whole show good faith and reasonable efforts.

In the instant case on remand, the trial court held: (1) that the requirements of § 25-4-77(1), supra, were met by testimony that the claimant had applied for unemployment compensation; (2) that the requirements of § 25-4 — 77(3) were met by virtue of the stipulation that claimant had actively sought employment; and (3) that although claimant testified she had registered at the unemployment office, she had not proved that she had continued to report thereafter. Therefore, the trial court held that claimant failed in her burden of meeting the requirements of § 25-4 — 77(2).

It is clear from the record that both claimant and DIR intended that the stipulation cover the requirements of eligibility encompassed by the subsections of § 25 — 4— 77, supra. Claimant’s compliance with that section was not raised in the first trial, the first appeal, or the subsequent trial after remandment. The wording of the stipulation does not track any specific provision of the statute. However, it clearly was deemed sufficient by both parties and the court upon original submission.

On the original appeal of this case, our opinion did not contain directions to the trial court. Only one issue was tried below or argued on appeal, and we decided that issue with a reversal. Remandment was for the purpose of allowing the trial court to compute the amount of compensation to which claimant is entitled. It was not for the trial court to, sua sponte, reconsider matters stipulated and not considered on original submission.

Having apparently failed to make our order clear on the original appeal, we do so now. We hold that claimant has met the requirements for eligibility under § 25-4— 77, Code (1975) and is not disqualified under § 25-4-78, Code (1975).

This case is hereby reversed and remanded with directions to the trial court to compute the amount of unemployment compensation to which claimant is entitled and enter judgment therefor.

REVERSED AND REMANDED WITH DIRECTIONS.

BRADLEY and HOLMES, JJ., concur.


text:
    Linda M. Booth BALFOUR v. Douglas J. BALFOUR.
    Civ. 2880.
    Court of Civil Appeals of Alabama.
    April 21, 1982.
    Edward B. McDermott of McDermott, Deas & Boone, Mobile, for appellant.
    Ann E. Taylor of Shoemake & Taylor, Mobile, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This appeal is from judgments of the trial court in a divorce ease which ordered that the husband, wife and a baby child be given blood grouping tests.

Six weeks after their July, 1980, marriage, the wife filed for a divorce. She alleged in her complaint that she was then pregnant with the husband’s child. The husband’s answer and counterclaim claimed that he married the wife because she was pregnant at the time and that she represented to him that he was the father of the unborn child. He denied his paternity of the child and prayed for a marriage annulment.

The husband promptly filed. a motion which sought blood grouping tests of both parties and of the child upon the child reaching six months of age. The trial was held before the trial court, however the evidence is not in the appeal record. After the conclusion of the trial but on the same date, the circuit court granted the husband’s motion for the blood grouping tests. The divorce judgment was rendered in December, 1980.

Under the terms of the divorce judgment, the husband was held responsible for the wife’s hospital and medical bills to be incurred as to the birth of the child, at which time the husband was ordered to pay $200 per month as temporary child support. Jurisdiction was expressly retained to enable the court to make such further judgments as to the care, custody and maintenance of the child as the court then deems necessary.

In April, 1981, the husband filed a motion which alleged that the child had been born on January 29, 1981 and that the blood grouping tests should include not only red cell grouping but also white cell grouping (HLA) because when HLA testing is performed in conjunction with red cell typing the combined chance of exclusion is over 97%. We construe those averments to mean that, if in fact a husband is not the father of a child, the results of the combined tests would scientifically show him not to be the father in 97 times out of 100.

By two June, 1981, orders, the trial court directed that the blood tests be conducted on July 27, 1981 at the husband’s expense. The wife perfected an appeal from those June judgments and she here raises as the only issue the problem of whether or not blood grouping tests may be ordered by the trial court in divorce actions in an attempt to disprove that the husband is the father of a particular child. Exceptionally good briefs have been filed by learned counsel for each party. We affirm.

While the two June judgments are not final in nature and will not support an appeal, we, in this instance, in view of the subject matter and prior unreported actions by this court, opt to treat these proceedings as if mandamus or prohibition had been sought. This is done in deference to most earnest counsel in order to prevent multiple appeals and in the spirit of ARAP rule 1 to assure a just, speedy and inexpensive determination of this issue upon its merits.

The wife contends that, under Mason v. Mason, 276 Ala. 265, 160 So.2d 881 (1964), the trial court had no authority, in a divorce case, to order such tests.

The language contained in more recent cases is at varience with or is repugnant to the holding in the Mason case. Leonard v. Leonard, 360 So.2d 710 (Ala.1978); Curry v. Curry, 402 So.2d 1019 (Ala.Civ.App.1981); Donahey v. Donahey, 52 Ala.App. 596, 296 So.2d 188 (1974). Also, the adoption of rule 35, ARAP, by the supreme court overcame the prohibition of that 1964 case.

Justice Shores authored an opinion in Leonard v. Leonard, supra, which was concurred in by three other justices, which stated as follows:

This presumption of legitimation may be rebutted by clear and convincing evidence which tends to show that it is naturally, physically, or scientifically impossible for the husband to be the father. Arthur v. Arthur, 262 Ala. 126, 77 So.2d 477 (1955); Warren v. State, 26 Ala.App. 284, 158 So. 770 (1935). . . .
. .. Any evidence which is competent and which tends to show clearly and convincingly that the husband could not be physically or biologically the father is now admissible. Arthur v. Arthur, supra; 10 C.J.S. Bastards § 3, p. 18. . . .

Leonard v. Leonard, at pp. 712, 713.

In a concurring opinion in Leonard by the chief justice, which was concurred in by another justice, the following appears:

I concur in the result reached by the majority only because a thorough review of the record shows that appellants, in this particular case, failed to offer clear and convincing evidence tending to show that it was naturally, physically or scientifically impossible for Leroy Wilcox to be their natural father.

Leonard v. Leonard, at pp. 713-14.

In the unreported case of McClure v. McClure, Civ. 1719 (Ala.Civ.App., January 25, 1979), this court had before it the same issue as in the instant matter. There, the wife sought a divorce. The husband’s counterclaim sought an annulment of the marriage and alleged that at the time of their marriage the wife was pregnant through the agency of a man other than the husband. Under ARCP, rule 35, the husband sought blood group testing for both parties and the child. When that motion was granted by the trial court, the wife sought a writ of mandamus in this court. The writ was denied, without opinion, citing Leonard v. Leonard, supra, and rule 35(a).

That rule, which became effective in 1973, states in part that when the blood group of a party, or of a person in the custody of a party, is in controversy, the trial court may order that such party, or person, be examined. The court’s order may be made only on motion “for good cause shown” and after due notice. Rule 35(a) is not limited to only personal injury actions but it is universal in its application to all civil actions. Under that rule, it is proper to order blood grouping to aid the court in a divorce action in determining whether a husband is the father of a child. 8 C. Wright & A. Miller, Federal Practice and Procedure § 2232 (1970).

The trial court has a judicial discretion to exercise when presented with a motion seeking the blood group testing of the parties and of a child in a divorce case. An order for such testing must not be routinely granted as of right, but should be carefully utilized. Such an order should be granted only when good cause therefor is first shown after due motion and in strict compliance with procedural due process as to notice and hearing. Section 234 of 8 C. Wright & A. Miller, supra, contains an excellent discussion of the meaning of “good cause shown.” If blood group testings are performed, after proper predicate has been laid on the trial of the issue, evidence of the results of such tests and of the medical or scientific meaning and effect of the results of the tests is admissible in aid of the trial court in determining whether or not the husband is the natural father of a particular child.

Here, the trial court orally heard the evidence which is not before us. Accordingly, it is presumed that good cause appeared in that evidence for the initial granting of the husband’s motion for blood grouping. Floyd v. State Department of Industrial Relations, 400 So.2d 409 (Ala.Civ.App.1981). No abuse of judicial discretion is shown as to the judgments pertaining to blood grouping tests. We affirm.

The wife’s request for an attorney’s fee on appeal is denied.

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

AFFIRMED.

All the Judges concur.