text:
    GEORGIA-PACIFIC CORPORATION, Employer v. Johnnie Gene CROSBY.
    No. 52347.
    Supreme Court of Mississippi.
    Feb. 18, 1981.
    Crymes G. Pittman and Karen Spencer, Cothren, Pittman & Ferrell, Jackson, for appellant.
    E. Howard Eaton, Taylorsville, for appel-lee.
    Before BROOM, LEE and BOWLING, JJ.
   LEE, Justice,

for the Court:

The Mississippi Workmen’s Compensation Commission entered an order granting compensation benefits to Johnnie Gene Crosby against Georgia-Pacific Corporation (self-insured) for total and permanent disability. Georgia-Pacific appealed to the Circuit Court of Scott County, which affirmed the Commission, and, from that judgment, Georgia-Pacific has appealed here.

Three (3) assignments of error are discussed in the briefs, but the question to be decided by this Court is whether Georgia-Pacific was the employer of Hosey Brothers Loggers (Hosey Bros.) and whether Hosey Bros, was an independent contractor, relieving Georgia-Pacific of any liability incurred by Hosey Bros, in its employee relationships.

On August 29, 1973, appellee was working as a sawyer for Hosey Bros. He cut a tree which lodged in another tree and upon cutting the second tree, the first tree came loose, fell on him, injured his spine, and rendered him a paraplegic, permanently and totally disabled.

For a period of eleven (11) months, Hosey Bros, made voluntary weekly payments of fifty-five dollars ($55.00) to appellee, but, at the end of that period, the payments were discontinued. Thereupon, appellee filed a claim for compensation benefits • against Georgia-Pacific, who now contends that ap-pellee was not employed by it, that he was employed by Hosey Bros., an independent contractor, and that Georgia-Pacific has no liability in the matter.

Mississippi Code Annotated Section 71-3-3 (1972) defines “independent contractor” for purposes of the Workmen’s Compensation Act:

“ ‘Independent contractor’ means any individual, firm, or corporation who contracts to do a piece of work according to his own methods without being subject to the control of his employer except as to the results of the work, and who has the right to employ and direct the outcome of the workmen independent of the employer and free from any superior authority in the employer to say how the specified work shall be done or what the laborers shall do as the work progresses; one who undertakes to produce a given result without being in any way controlled as to the methods by which he attains the result.”

Factors for determining independent contractors have been discussed frequently in Mississippi decisions. One of the clearest pronouncements of the law, stated in Boyd v. Crosby Lumber and Mfg. Co., 250 Miss. 433, 166 So.2d 106 (1964), sets forth the control test. The Court said:

“An analysis of the pertinent rules and cases is necessary to show the reasons for affirmance of this award of compensation benefits. In general, it is said that the right to control, not actual control of, the details of the work is the primary test of whether a person is an independent contractor or an employee. Relevant characteristics or tests are usually listed, with all except the control test being considered merely indicia pointing one way or the other. See A.L.I., Rest. Agency 2d (1958), § 220, p. 485; Kisner v. Jackson, 159 Miss. 424, 132 So. 90 (1931); Carr v. Crabtree, 212 Miss. 656, 55 So.2d 408 (1951); Shumpert Truck Lines v. Horne, 227 Miss. 648, 86 So.2d 499 (1956). No general rule can be stated as to the weight of these elements, over fifteen in number. Their significance varies according to the facts of each particular case. The weight to be given each of the factors pertaining to the employer-contractor question is ordinarily to be decided by the trier of facts. It is the ultimate right of control, not the overt exercise of that right, which is decisive. Probably the four principal factors under the control test, are ‘(1) direct evidence of right or exercise of control; (2) method of payment; (3) the furnishing of equipment; and (4) the right to fire.’ 1 Larson, Workmen’s Compensation Law, § 44.” (Emphasis added). 250 Miss. at 440, 166 So.2d at 108.

Without detailing the evidence, the administrative judge found, and the Commission affirmed and adopted, the following:

(1) That at the time of the accident, Ho-sey Bros, had been cutting and hauling timber for Georgia-Pacific exclusively since May of 1972;

(2) That timber and logs were an integral part of the business of Georgia-Pacific at its plants at Bay Springs and Taylorsville, Mississippi;

(3) That the employees of Georgia-Pacific supervised the cutting of the timber by Hosey Bros.;

(4) That Georgia-Pacific varied the specifications and size of timber that was to be carried to each plant at its discretion, even though a contract was signed between Ho-sey Bros, and Georgia-Pacific, and that this was done in order to control the flow of material to each mill as it was needed;

(5) That Georgia-Pacific set the time that the timber could be loaded and unloaded by Hosey Bros.;

(6) That Georgia-Pacific set the price to be paid to loggers on each tract of timber based on its own policy;

(7) That Georgia-Pacific controlled the amount of timber that could be delivered to its plants at Bay Springs and Taylorsville, Mississippi, by placing the loggers on a quota even though the logger had a contract for a certain volume each week;

(8) That Georgia-Pacific could move the logger from one tract to another at its discretion even though the logger had a contract for a specific tract;

(9) That Georgia-Pacific and the logger had a series of short-term contracts from five (5) to twenty-eight (28) days in length, and further, that there were dual contracts in cases where Georgia-Pacific would move the logger from a tract that the logger had started but had not completed and had been removed from the original tract to another tract at the discretion of Georgia-Pacific;

(10) That Georgia-Pacific assisted in the financing of equipment for Hosey Bros, through loan guaranty agreements with Smith County Bank at Taylorsville, Mississippi, and, further, that Georgia-Pacific assisted the logger in obtaining operating capital through the Smith County Bank and, more particularly, for a loan in the amount of five thousand dollars ($5,000) to Hosey Bros.;

(11) That Georgia-Pacific could terminate the logger, and, more particularly, Hosey Bros., at will;

(12) That Georgia-Pacific had notice of the injuries to claimant through its employee, Hosey Bros., on August 29, 1973; and

(13) That Georgia-Pacific had the “right to control” and, in fact, control of the operations of Hosey Bros, and the nature of the work of Hosey Bros, was an integral part of Georgia-Pacific’s business.

We now consider whether or not the relative nature of the work performed under the contract is an integral part of the regular business of Georgia-Pacific. 1A Larson, Workmen’s Compensation Law § 45 (1979) also states the rule:

“§ 45. The modern tendency is to find employment when the work being done is in integral part of the regular business of the employer, and when the worker, relative to the employer, does not furnish an independent business or professional service.” (Emphasis added).

In Brown v. L. A. Penn & Son, 227 So.2d 470 (Miss.1969), the Court said:

“A determination of Brown’s status as an employee or independent contractor cannot be made from examining solely the immediate circumstances surrounding the cutting of the Bennett tract on November 7. Consideration must be given to the entire pattern of Brown’s work on behalf of Penn. Eighty to ninety percent of his cutting and hauling was done off of tracts of land from which the timber was purchased by Penn directly. He and other haulers were an integral part of the regular business of Penn. Moreover, the evidence is wholly insufficient to show that Brown, relative to the employer, furnished an independent business or professional service. Realistically, Brown was under Penn’s direction and control. He and the two men working under him relied upon Penn to furnish them with most of their necessities: Penn financed the truck, a saw, gasoline for the truck, and groceries at the Penn store, at least for Brown’s two employees. Because of the financial arrangements respecting Brown’s truck and other operations, Brown more or less had to deliver his loads to Penn. If he did not, he would receive no credit for his truck payments, and Penn naturally would not continue making them unless Brown earned the money to do so.
* * * * * *
The right of control rather than the actual exercise of control is a primary test of whether a person is an independent contractor or employee. In the instant case there is direct evidence of the right to control, the express or implied exercise of that right, the method of payment, the furnishing of equipment by financing its purchase, and the right to fire. In short, Brown was not truly independent, performing an independent business service, but devoted all or most of his time to Penn. Moreover, his work for Penn was an integral part of Penn’s business process. Brown’s work and that of other haulers who operated similarly to him had become enmeshed with and were an integral part of their employer’s business.” 227 So.2d at 473, 474.

Persons familiar with the business of lumber companies and with logging operations recognize that it is beneficial to such companies that loggers be separated from those businesses. Such an arrangement allows for the execution of independent contracts with the loggers, thereby relieving the lumber companies of a great deal of responsibility, particularly public and employee liability. However, the Workmen’s Compensation Law was enacted to compensate the injured employee and to satisfy the public interest in protecting its citizens. An independent contract must be a valid contract and may not be a sham to be disregarded, cancelled or unenforced at the whim of a company. We agree with the statement in Brown v. E. L. Bruce Co., 253 Miss. 1, 175 So.2d 151 (1965), citing Robinson v. Younse Lumber Co., 8 La.App. 160 (1927):

“ ‘If those engaged in the sawmill business, which includes logging, were permitted to put an impecunious man in charge of the log cutters and base his compensation upon the amount of logs cut instead of paying him a salary and when sued for compensation plead that the man in charge was an independent contractor, the laborers in the woods would be entirely cut off and the purpose of the law would be thwarted. If courts should permit those engaged in industrial enterprises to escape liability in this way, the door would be left wide open to all kinds of subterfuge to escape liability and the act would be a dead letter in our books.’” 253 Miss. 1, 175 So.2d at 155-156.

We are of the opinion that the order of the Mississippi Workmen’s Compensation Commission awarding compensation benefits to appellee is supported by substantial evidence and the judgment of the lower court upholding that order is affirmed.

AFFIRMED.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., SUGG, WALKER, BROOM, BOWLING and HAWKINS, JJ., concur.


source: Caselaw Access Project

author: LEE, Justice,

license: Public Domain

text:
    Willie James BETHANY v. James C. STUBBS, Director of Mississippi State Hospital, Whitfield, Mississippi.
    No. 52332.
    Supreme Court of Mississippi.
    Feb. 18, 1981.
    Stella Terrell, McComb, for appellant.

      James P. Brantley, Whitfield, for appel-lee.
    Before SMITH, P. J., and LEE and BOWLING, JJ.
   LEE, Justice,

for the Court:

Willie James Bethany filed a petition for writ of habeas corpus in the Chancery Court of the First Judicial District of Hinds County, Honorable Joe G. Moss, presiding, against James C. Stubbs, Director of the Mississippi State Hospital, Whitfield, Mississippi, seeking discharge from confinement in the hospital. After a full hearing, the chancellor dismissed the petition and Bethany has appealed here.

Appellant assigns five (5) errors in the trial below, but the issues presented are:

(1) Was the dismissal of the writ of habe-as corpus petition a violation of the Fourteenth Amendment to the United States Constitution, Section 14, Miss.Const.1890, and Mississippi Code Annotated Sections 41-21-61, et seq. (1972)?

(2) Was the lower court’s action against the substantial weight of the evidence and did the lower court err in refusing to grant the prayer of the petition?

In 1973, appellant was arrested in Hinds County on a charge of murder. He was committed to Mississippi State Hospital by the Hinds County Circuit Court for examination and determination of his competency to stand trial on the charge. The staff at Mississippi State Hospital determined that appellant was mentally incompetent to stand trial and he was transferred to the Hinds County Chancery Court where, after a full hearing on March 19, 1975, he was committed by that court to the Mississippi State Hospital for an indefinite period of time.

On November 6, 1979, appellant filed a petition for writ of habeas corpus in the Chancery Court of the First Judicial District, Hinds County, seeking discharge from Mississippi State Hospital, contending that he was no longer dangerous to himself and others and that he could be treated effectively outside the hospital. He argues that continued confinement is in violation of his constitutional right to due process and violates Mississippi law governing commitment.

The petition was heard by the Chancery Court on December 6, 1979. Appellant introduced Dr. David Voit Myers, a clinical psychologist, who testified that appellant scored within normal range on the Minnesota Multi-phasic Personality Inventory (MMPI) and that he could perform responsibly outside a hospital setting. The doctor’s clinical diagnosis indicated that appellant was not psychotic at the time, that his profile did not suggest any bizarre behavior, that a clinical diagnosis indicated appellant had a schizophrenic reaction which was currently in remission and under control, and that “he’s no longer psychotic but is mildly depressed and rather aloof.” Dr. Myers stated that it is extremely difficult to give a correct psychiatric and psychological evaluation which accurately predicts dangerousness.

Appellee called as its chief witness Dr. Donald G. Guild, a psychiatrist and Director of the Forensic Section of the Mississippi State Hospital, where he had treated patients similar to appellant for in excess of five (5) years. He was appellant’s personal physician and diagnosed him to be schizophrenic paranoid, currently in a tenuous remission. He explained that paranoid schizophrenia is a severe mental illness characterized by disorganization of thinking, paranoid ideas, hallucinations and delusions. His diagnosis was based on appellant’s history of disorganized, psychotic, delusional behavior at the time of his admission to Mississippi State Hospital and upon his (Dr. Guild’s) personal observation of appellant’s behavior while at the hospital. Dr. Guild stated that during appellant’s hospitalization, appellant had actually threatened to kill him and that in the event appellant was released from the hospital, he would be dangerous to himself and others. Further, he stated that he feared appellant, currently taking medication for his mental condition, would not take the medication after leaving the hospital. In such event, the likelihood of his becoming psychotic would increase greatly and perhaps produce another violent incident.

I.

Appellant first contends that he was denied his constitutional guarantee of due process and equal protection under the Fourteenth Amendment to the United States Constitution and Section 14, Miss. Const.1890, which afford an individual due process in cases where he may suffer loss of life, liberty or property. He also claims a violation of Mississippi Code Annotated Sections 41-21-61, et seq. (1972) which relate to commitment procedure in mental cases.

The authority for judicial commitment to a mental hospital in Mississippi is found in Section 41-21-61(c) (Supp.1980), as follows:

“(c) ‘Person in need of mental treatment,’ when used in sections 41-21-61 to 41-21-107, means any person afflicted with mental illness if that person, as a result of such mental illness, is reasonably expected at the time the determination is being made or within a reasonable time thereafter to intentionally or unintentionally physically injure himself or other persons, or is unable to care for himself so as to guard himself from physical injury, or to provide for his own physical needs. ‘Mental illness,’ as employed in this definition, does not include mental retardation.” (Emphasis added).

The above section provides for commitment where the individual is dangerous to himself or others. Due process is guaranteed under Mississippi Code Annotated Section 41-21-63 and Section 41-21-73 which require and provide for pre-commitment hearings before the chancery judge and for an attorney to represent the person during the hearing. Here, the original commitment and lack of due process stemming from same is not attacked. Appellant asserts in this proceeding that he is no longer in need of mental treatment within the definition of the above section and should be released. He further bases his release on an assertion that he is no longer dangerous to himself or others, as hereinafter discussed. However, this argument does not relate to the lack of due process, and we are of the opinion that such assignment is without merit.

II.

The real argument of appellant goes to the proposition that the lower court’s decision is against the substantial weight of the evidence, particularly that (1) the court failed to apply appropriate legal standards required by the Constitution and law, supra, and should have granted the petition upon the facts, and (2) the lower court erred in determining that the appellant had the burden of proof in the hearing.

The courts have recognized that indefinite confinement in a mental institution constitutes a massive curtailment of liberty and the constitutional rights of the persons so committed must be jealously guarded. The patient’s right to liberty may not be encroached upon by the police power to commit him unless the state’s public interest for the protection of the mental patient, and society from crime, outweighs his right to liberty. Addington v. Texas, 441 U.S. 418, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979); In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967).

It is recognized that a person may be mentally ill and not dangerous. Therefore, in order to commit such person to a mental institution, there must be a showing that the individual is dangerous to himself or society, and is unable to live safely (to himself or society) in freedom. In O’Conner v. Donaldson, 422 U.S. 563, 95 S.Ct. 2486, 45 L.Ed.2d 396 (1975), the Court said:

“A finding of ‘mental illness’ alone cannot justify a State’s locking a person up against his will and keeping him indefinitely in simple custodial confinement.
Assuming that that term can be given a reasonably precise content and that the ‘mentally ill’ can be identified with reasonable accuracy, there is still no constitutional basis for confining such persons involuntarily if they are dangerous to no one and can live safely in freedom.
* * * * * *
In short, a State cannot constitutionally confine without more a nondangerous individual who is capable of surviving safely in freedom by himself or with the help of willing and responsible family members or friends.” 422 U.S. at 575, 576; 95 S.Ct. at 2493, 2494; 45 L.Ed.2d at 406, 407.

Appellant argues that even though he was incompetent and dangerous to himself and the public at the time of his original commitment, he is not dangerous presently and has not been dangerous for a reasonable time prior to the hearing. He further contends that the court should not have accepted opinion evidence from Dr. Guild relating to appellant’s dangerous propensities but that the overall facts should have been presented and the court should have determined his condition upon those facts.

In Addington v. Texas, supra, in holding that a rigid standard of proof in commitment cases would be unfair due to the abstract nature of psychiatry and diagnosis, the Court said:

“The subtleties and nuances of psychiatric diagnosis render certainties virtually beyond reach in most situations. The reasonable-doubt standard of criminal law functions in its realm because there the standard is addressed to specific, knowable facts. Psychiatric diagnosis, in contrast, is to a large extent based on medical ‘impressions’ drawn from subjective analysis and filtered through the experience of the diagnostician. The process often makes it very difficult for the expert physician to offer definite conclusions about any particular patient. Within the medical discipline, the traditional standard for ‘factfinding’ is a ‘reasonable medical certainty.’ If a trained psychiatrist has difficulty with the categorical ‘beyond a reasonable doubt’ standard, the untrained lay juror — or indeed even a trained judge — who is required to rely upon expert opinion could be forced by the criminal law standard of proof to reject commitment for many patients desperately in need of institutionalized psychiatric care.... Such ‘freedom’ for a mentally ill person would be purchased at a high price.” 441 U.S. at 430, 99 S.Ct. at 1811, 60 L.Ed.2d at 333-334.

The Court also commented upon the right of the individual states to set procedural standards for commitment as follows:

“The essence of federalism is that states must be free to develop a variety of solutions to problems and not be forced into a common, uniform mold. As the substantive standards for civil commitment may vary from state to state, procedures must be allowed to vary so long as they meet the constitutional minimum. See Mona-han & Wexler, A Definite Maybe: Proof and Probability in Civil Commitment, 2 Law & Human Behavior 37, 41-42 (1978); Share, the Standard of proof in Involuntary Civil Commitment Proceedings, 1977 Detroit College L.Rev. 209, 210. We conclude that it is unnecessary to require statessto apply the strict, criminal standard.” 441 U.S. at 431, 99 S.Ct. at 1812, 60 L.Ed.2d at 334.

In stressing the role of qualified medical experts in determining mental competency, the Court said:

“There may be factual issues to resolve in a commitment proceeding, but the factual aspects represent only the beginning of the inquiry. Whether the individual is mentally ill and dangerous to either himself or others and is in need of confined therapy turns on the meaning of the facts which must be interpreted by expert psychiatrists and psychologists.” 441 U.S. at 429, 99 S.Ct. at 1811, 60 L.Ed.2d at 333.

Prior to the decision in Addington, this Court addressed the question of weight of testimony by medical experts in commitment cases in Hooks v. Jaquith, 318 So.2d 860 (Miss.1975), as follows:

“In the case of mental patients, even more than in the case of patients suffering from physical ailments, a decision as to whether to keep the patient in the hospital or to discharge him must remain a medical one, to be decided by medical experts, based upon the mental condition of the patient and the necessity for hospital treatment, as determined by them.” 318 So.2d at 861-862.

The appellant lastly contends that the burden of proof in this case was upon the appellee to show that appellant was dangerous to himself and society. In Hill v. State of Florida, 358 So.2d 190 (Fla.App.1978), involving the commitment of a mental patient, the Florida Court said:

“The equal protection clause, as interpreted by the United States Supreme Court, does not require that the state treat insanity acquitees and civil committees alike in allocating the burden of proof and fixing the standard of proof required on release petitions.. .. And Jackson v. Indiana [406 U.S. 715, 92 S.Ct. 1845, 32 L.Ed.2d 435] held that one accused of crime, whose incompetency prevents a trial, cannot be held indefinitely without compliance with civil standards and procedures. Those decisions do not lessen the distinction between an ordinary citizen, committed in civil proceedings for mental illness, and one who was duly committed after being relieved of criminal responsibility on account of mental illness. Society has a special interest in criminal acquitees....
... But the burden of proof, in the sense of a risk of nonpersuasion, is on the acquitee. It is he who asserts that conditions have changed; it should be presumed, in the absence of countervailing evidence, that the condition which justified the original hospitalization order has continued, ... and there is general agreement that one who asserted his mental irresponsibility for a crime, winning hospitalization instead of jail or worse, should bear the burden of proving grounds for his release, ....
A preponderance of the evidence is the standard of proof normally applicable in civil matters, ... and is the degree of proof properly required for the release of insanity acquitees.... The duty to go forward with the evidence is another matter, ... the risk of nonpersuasion falls on the acquitee, and continued commitment is the result of a failure of proof that, if released, he would not be likely to injure others.” 358 So.2d at 200-201.

39A C.J.S. Habeas Corpus § 204c, at 155 (1976) states as general law that a mental patient seeking relief by habeas corpus assumes the burden of proof that he has recovered his sanity and is no longer likely to cause harm to himself and others.

The evidence introduced by appellee in this case is substantially identical to that presented in O’Bannon v. Jaquith, 315 So.2d 918 (Miss.1975), wherein a petitioner was refused discharge from the mental hospital on a showing that (1) he was paranoid schizophrenic, (2) he was in need of treatment, care and control, (3) had no insight into his illness and would not voluntarily take his medication if released, and (4) without medication, his condition would not improve.

We are of the opinion that the judgment of the lower court is supported by the evidence, that there were no reversible errors in the trial, and that the judgment of the lower court should be and is affirmed.

AFFIRMED.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, BROOM, BOWLING and HAWKINS, JJ., concur.

      . The MMPI is a standard objective psychological battery containing 566 true-false items. Substantial clinical assessments are made by analysis of the item selections concerning emotional feelings, self-image, etc.


author: HAWKINS, Justice,

text:
    Jerry BRATSCHI and South Central Bell Telephone Company v. Larry RAY.
    No. 52378.
    Supreme Court of Mississippi.
    Feb. 18, 1981.

      Jack F. Dunbar, Jane M. Wilbourn, Holcomb, Dunbar, Connell, Merkel, Tollison & Khayat, Clarksdale, John McCullouch, Jackson, for appellants.
    Walter W. Thompson, Luckett, Luckett, Luckett & Thompson, Clarksdale, for appel-lee.
    Before ROBERTSON, P. J., and BROOM and HAWKINS, JJ.
   HAWKINS, Justice,

for the Court:

Appellee Larry Ray (herein Ray) secured a jury verdict and judgment for $40,000 in the Circuit Court of Coahoma County against appellants Jerry Bratschi and his employer South Central Bell Telephone Company (herein Bratschi and Bell) for personal injuries received as a result of the alleged negligence of Bratschi. From this judgment appellants have appealed with several assignments of error.

Addressing the first and most serious issue, the sufficiency of the evidence to make this a jury case, or to justify a jury verdict, our appellate authority requires us to view the evidence in the light most favorable to appellee. Within these confines we relate the pertinent portions of the record.

On April 23, 1979, between 2:30 and 3:00 o’clock on a wet, rainy afternoon, and while an employee of the Crossroads Service Station in Clarksdale, Ray received a service call to attend to a flat tire on a three quarter ton pickup equipment truck belonging to Bell and being operated by Bratschi. The pickup was parked on the right shoulder of the highway, the left rear tire flat. The ground was muddy; Bratschi had on a rainsuit. As an accommodation to the employee of Crossroads, Bratschi had already removed the spare tire from the truck and either loosened or removed the lug nuts on the wheel with the flat prior to Ray arriving on the scene.

When Ray first arrived he removed a roller jack from the wrecker and attempted without success to lift the wheel by jacking up the left side of the truck in front of the wheel. At its maximum height, the jack still did not lift the wheel off the ground. Ray then removed the jack, took it to the rear of the truck and placed it under the center of the rear axle, or differential. At the request of Bratschi, Ray refrained from placing the jack under a rear bumper, Bratschi telling him the bumper was only spot welded. He got a good fit under the differential and jacked up the rear of the pickup, but because the ground was muddy the jack sank into the ground somewhat, and even after reaching its maximum height the left wheel still was not off the ground.

Ray then secured from the wrecker a piston jack and a four inch square board to use in lifting the wheel. Upon returning to the rear of the pickup Ray observed Brats-chi pumping the handle of the roller jack attempting to further lift the pickup. The jack was making an “oinking” sound indicating it had reached its maximum height and that further pumping of the handle was useless. According to Ray, he told Bratschi the roller jack was not going to lift any higher, there was no need pumping it, and he was going to have to get under the truck with the board and piston jack and try to the jack the truck up further so the wheel could be removed.

Ray than got down and pushed the board and piston jack up under the left rear of the truck and followed in behind, all while Bratschi was standing at the jack handle of the roller jack not over 2 or 3 feet from where Ray was going under the truck. When he got under the truck, Ray noticed the roller jack was holding the truck at the same height and in the same place.

Ray intended to put the piston jack on the board under the left part of the rear axle and then jack the wheel up further. He placed the jack in one place first, and thinking it was not stable in that position moved it. He was lying on his stomach. Ray then positioned the board and jack in another place. His left hand was on the board and the base of the jack, and the right hand was at the top of the telescopic part of the piston jack, with his right forefinger on the top and just beneath the axle, in his endeavor to secure a good fit of the top of the jack with the bottom of the axle. In Ray’s estimation he had then been under the truck for approximately five to ten minutes.

At this moment when he was thus positioned, Ray heard a hissing sound as the roller jack fell down quickly, and the axle smashed his right forefinger, and causing the distal tip, the joint space and top of the next bone to have to be surgically amputated.

The instrument which brought about ap-pellee’s injury was a common hydraulic jack on rollers, with a removable pipe handle approximately four feet in length. To fully understand our rationale in this case it is first necessary to describe this particular jack.

It had a capacity to lift 3,000 pounds. The handle to the jack fulfilled the following functions: after placing it into position into the jack and turning the handle clockwise — to the right — the valves were positioned so that by pumping the handle vertically the fluid in the jack would exert sufficient pressure to raise the jack and thereby lift a vehicle. To release the pressure, the handle was turned counter-clockwise — to the left. On this particular jack the slightest manual movement, a minimum force counter-clockwise, would operate to release the pressure and cause the jack to lower. Insofar as lowering a vehicle by turning the handle counter-clockwise, this particular jack might be roughly described as having a “hair trigger”. There was one additional method of releasing the fluid pressure in the jack, and that was by turning a screw on the jack itself. In order to turn the screw, it was necessary to use a screw driver. In the absence of turning the handle counter-clockwise, or the screw in the jack itself, the jack was stable, and would retain a lifted weight up to 3,000 pounds indefinitely.

Two more features of this jack are significant. When the jack had been raised its maximum height, continued pumping of the handle caused the jack to emit an “oinking” sound discernible to the ear. When the jack was supporting a lifted vehicle, and the pressure released to lower the jack, it emitted an entirely different sound, a hissing sound, also discernible to the ear. It was the former sound Ray heard as he observed Bratschi pumping the handle in an attempt to further raise the jack, and the latter when the axle descended on his forefinger.

To ascertain what transpired outside the truck in the precipitation of this accident, we must turn to the testimony of Bratschi. All Ray knew was that Bratschi was standing there next to the handle as he went under the truck. After getting beneath the truck, he did not observe Bratschi make any movement prior to the jack descending.

The Court must commend both Ray and Bratschi as estimable, trustworthy witnesses; neither attempted to embellish their versions or color their testimony. Each gave testimony “to his own hurt.”

Reading the testimony of Bratschi in one light, Bratschi only had his hand on the handle of the jack when it suddenly lowered. In another light, he was perhaps demonstrating how he was pumping the handle when it suddenly lowered. By either view, Bratschi had manual contact with the only thing about the jack which could have caused it to lower at the time it did, absent some malfunction. While he did not believe he turned the handle counterclockwise he acknowledged it was possible, he was wet, the jack was wet, and “everything like that.” Bratschi is left handed.

Incredibly, Bratschi testified he was unaware Ray went under the truck, despite the fact he was standing at the rear of the pickup during this entire period. He testified he would never have pumped the handle had he known Ray was under the truck. This was an acknowledgment by him that had he known Ray was under the truck, he would have certainly known better than to tamper with a jack supporting the truck. Although Bratschi had no familiarity with the operation of this jack, presumably he was familiar with machinery, being a maintenance man with Bell.

We are not faced with the question of whether or not it amounted to negligence to tamper in any way with a jack handle to a jack supporting a vehicle with a person underneath the truck. It did, and Bratschi so acknowledged.

The question is whether Bratschi did anything to cause the jack to suddenly lower. Or, put another way, was a jury issue made on whether or not the sudden release of the pressure holding the jack up was a result of some act on the part of Bratschi.

Considering the nature of the jack, together with the undisputed evidence that Bratschi in this instance was the only person who could have caused the jack to suddenly lower as it did, and that he did have his hand on the very apparatus that would lower the jack, that it did suddenly, lower, we think it a fair inference for the jury to decide from the circumstances as to whether Bratschi did something to cause the jack to suddenly lower to appellee’s injury.

This case is analogous to Davis v. Flippen, 260 So.2d 847 (Miss.1972), a case before this Court involving some telephone repairmen. The defendants were pulling some wires from a conduit attached to the ceiling of a factory, when the conduit fell injuring the plaintiff. The trial court peremptorily instructed the jury to find for the defendants, and upon appeal, in reversing and remanding the case our Court held:

It is also well settled that negligence may be proven by circumstantial evidence and when the case turns on circumstantial evidence it should rarely be taken from the jury. Cameron v. Hootsell, 229 Miss. 80, 90 So.2d 195 (1956).
.... We think that the evidence and the reasonable inferences that could be drawn therefrom were sufficient to make an issue for the jury to determine whether appellees were guilty of any negligence that caused or contributed to appellant’s injury.
(260 So.2d at 848).

The jury also had before it in this case that as Ray was raising the jack under the differential the handle came out once according to him, and twice, according to Bratschi. When this occurred, it was necessary, in order for Ray to get the handle back into the jack to crawl under the truck and release the pressure by the screw, which he did, and then re-inserted the handle and pumped the jack back up. The jack had been holding the vehicle up for some period with no malfunction whatever, however, when, unfortunately, with Ray under the truck and Bratschi with his hand on the handle, it fell.

On the issue of liability in this case, the verdict of the jury was not based upon pure speculation, which this Court could not sanction, but a legitimate inference from the facts, which we have no authority to disturb. See Matthews v. Carpenter, 231 Miss. 677, 97 So.2d 522 (1957).

Appellants earnestly seek the invocation of our rulings in Callender v. Cockrell, 217 So.2d 643 (Miss.1969); Taylor v. Williams, 190 So.2d 872 (Miss.1966); and Bradshaw v. Stieffel, 230 Miss. 361, 92 So.2d 565 (1967). They claim.the testimony of Ray, who was on his stomach under the truck in an effort to place the second jack, that he did not believe Bratschi was pumping the jack, that he would have sensed such pumping up and down, coupled with the further alleged positive assertion by Bratschi that he was pumping the handle when the jack fell, precludes Ray from making any claim that Bratschi did anything to contribute to this unfortunate accident. It would be rather strained for us to go so far as to hold Bradshaw, Taylor and Callender apply in this case to the extent of barring recovery. These cases preclude a party from testifying to certain facts directly within his knowledge, and then offering testimony to contradict his own statements of facts.

To apply the rule the following pre-requi-sites must appear in the record:

(1) The party must be in a position to testify positively to the facts so testified; i. e., what he testifies to must be in his own plain view, or he be otherwise situated so that there can be no mistake in his observation.

(2) He must testify to facts which if true would defeat recovery.

Here, Ray was under the truck, very much occupied with a rather serious business, with the rain coming down, the road muddy, and to attempt to hold him to strict account as to whether Bratschi, standing outside and behind the truck, pumped the handle up and down or not, is stretching the cited rule beyond its reason for existence.

Appellants complain the $40,000 verdict evinced bias and prejudice requiring reversal or remittitur. The accident smashed the right forefinger of Ray, who is right-handed, and a mechanic and manual worker. He sustained $1,785.22 in medical expenses, and $4,802.40 loss of wages. He was off work 23 weeks. The injury was severely painful, and after surgically amputating a portion of the finger, a second surgical amputation was required through the first joint. The testimony showed Ray could be expected to suffer pain for an indefinite period into the future, that he had suffered embarrassment, and for approximately 300 days he had been unable to do the normal, simple tasks such as picking up a cup, or change. He had a life expectancy of 47 years. We cannot say the verdict in this case was so excessive as to evince bias or prejudice.

We do not consider any other assignment of error merits discussion.

For the reasons stated, the judgment is affirmed.

AFFIRMED.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, BROOM, LEE and BOWLING, JJ., concur.


author: JONES, Justice. ALMON, Justice

text:
    NATIONAL STATES INSURANCE CO. et al. v. Caroline JONES.
    79-138.
    Supreme Court of Alabama.
    Aug. 22, 1980.

      Ollie L. Blan, Jr. of Spain, Gillon, Riley, Tate & Etheredge, Birmingham, for appellant National States Ins. Co.
    R. Clifford Fulford of Fulford, Pope & Minisman, Birmingham, for appellant Mel Gross.
    J. Scott Yowell of Beddow, Fullan & Vo-well, Birmingham, for appellant Bernard Gold, deceased.
    Jerry 0. Lorant and J. Gusty Yearout of Lorant, Harris & Yearout, Birmingham, for appellee.
   JONES, Justice.

This action for fraud and misrepresentation and for conspiracy to defraud and to misrepresent comes before this Court on appeal by Defendants who were found liable for conspiring to defraud and for perpetrating a fraud on Plaintiff, individually and as administratrix of the estate of Mrs. Minnie L. Haupt, in the sale of a health insurance policy covering Mrs. Haupt, Plaintiff’s elderly aunt. The jury returned a verdict against Defendants, in the amount of 3.5 million dollars which was remitted by the trial Judge to $500,000.

Having heard the arguments of counsel, read their briefs, and reviewed the evidence, we affirm the judgment below, including the order of remittitur.

National States Insurance Co. issued two policies of insurance effective March 25, 1976, insuring Minnie L. Haupt against expenses incurred because of cancer and loss due to hospital, doctor and drug expenses. Another policy was issued insuring Minnie L. Haupt effective June 1, 1976, covering expenses incurred because of confinement in a nursing home. Mrs. Haupt was the applicant, insured, and owner of all three policies and was the beneficiary of the hospital, doctor and drug, and the nursing home policies. Her niece, Caroline Jones (Plaintiff-Appellee), was the beneficiary of the cancer policy. Claims were made by Mrs. Haupt under the hospital, doctor, and drug expense policy. These claims were denied by National States for misrepresentations in the application. This policy and the cancer policy were rescinded and the premiums returned to Mrs. Haupt. Mrs. Haupt later died on December 18, 1976. This suit was filed by her niece, Caroline L. Jones, on July 21, 1977.

Multiple issues are presented for our consideration:

1) Does Plaintiff have standing?

2) Is the action barred by the statute of limitations?

3) Is evidence of National States’ loss ratios admissible?

4) Is a tape recording of a sales meeting admissible to show intent to defraud?

5) What is the status of the agents involved and was it such that it created liability for the company?

6) Did Plaintiff waive her right to sue by accepting the return of premiums?

7) Did Plaintiff sustain actual damages? Were punitive damages proper? Was the jury verdict excessive and the remittitur proper?

Standing

1) Appellants contend that Plaintiff lacks standing because she was not the applicant, the insured, the beneficiary nor the owner of the policies at issue.

Plaintiff claims that she was injured as a result of Defendants’ fraud and, therefore, has standing to sue. Plaintiff further contends that she was responsible for the policy premiums as well as for her aunt’s medical expenses. Plaintiff was billed for the medical expenses incurred by decedent which were to have been covered by the policies.

Our review of the evidence shows that the sales representations were made to and directed at Plaintiff, who had responsibility for the care of her elderly aunt, Mrs. Haupt. The consideration for these contracts was to and did flow from Plaintiff. Thus, Plaintiff has standing and a cause of action. Old Southern Life Insurance Co. v. Woodall, 295 Ala. 235, 326 So.2d 726 (1976).

Statute of Limitations

2) The complaint alleges misrepresentations made on March 25, 1976, and June 1, 1976. Suit was filed on July 21, 1977.

On the basis of these dates, Defendants contend the one-year statute of limitations had run before suit was filed.

The evidence shows that the claims were denied in November, 1976, and that a discussion between Plaintiff and Defendant Mack Loftin concerning the policies occurred in January, 1977. The trial Court submitted this defense to the jury with proper instruction saying, in part, “Our law says that in order to sue for fraud, the suit must be filed within one year from the date the plaintiff learned of the fraud or within one year from the date that the plaintiff came into possession ... of facts which reasonably should have led to the discovery of the fraud.” See, Cartwright v. Braly, 218 Ala. 49, 117 So. 477 (1928). The trial Court was clearly correct on this point and the jury’s finding on this issue will not be disturbed.

Loss Ratios

3) The admissibility of testimony concerning insurance loss ratios (the relationship between premium dollars collected and claims paid) is the principal substantive issue presented for our consideration.

Defendants argue that it was improper to admit such evidence and that the Court rejected their efforts to introduce evidence in rebuttal. Defendants further argue that this issue was not pleaded and, therefore, not properly before the Court.

Plaintiff argues that wide latitude traditionally has been given concerning the admissibility of evidence in fraud cases, and that this evidence had sufficient probative value to warrant admission.

The trial Court’s treatment of this issue began with pretrial instructions to the attorneys concerning the acceptable uses and scope of the evidence on this point. The actual instructions are not part of the record, but that such instructions were given is mentioned in the record.

The Plaintiff’s witness, Paul Raadt, an examiner with the Insurance Department of the State of Alabama, called to testify on this issue, was heard by the Court outside the presence of the jury, objections were raised and ruled on, and cross-examination was allowed. In the examination of Mr. Raadt, company-wide and State loss ratio figures for National States Insurance were given for the period 1974 through 1978. The highest percentage was 20.3 in 1978. Defendants’ counsel was allowed to question Mr. Raadt on these figures before the Court ruled on their admissibility. After entertaining all of Defendants’ objections to testimony on these figures, the Court ruled the State and the company-wide loss ratio figures from 1974 through 1978, inclusive, were admissible. The Court found that the broader spectrum of figures would alleviate the possible misleading of the jury which might have occurred had only State figures for a more limited period been introduced.

Excerpts from the deposition of Edward Rareden, executive vicepresident of National States, were read into the record as part of Plaintiff’s case, after Mr. Raadt’s testimony. Objections were heard and ruled on as the deposition was read. Portions of the deposition went to loss ratios. Defendants objected to their admissibility and were overruled. Rareden stated in deposition that it was “common knowledge in the health and accident field that ... to reach a 50% loss ratio figure at some given point in time is a fair figure for the company or a fair profit for the company to work on.” He testified that 50% is a fair figure for both the company and the consumer.

Defendants’ witness, Thomas Green, president of National States, was allowed to give detailed testimony concerning National’s loss ratios in rebuttal to the testimony offered by Plaintiff. The Court allowed Mr. Green to testify, over objection of Plaintiff, that a loss ratio of 50% was a goal which would be reached by National in the future according to studies and calculations by the company and its actuaries, and that 50% is considered in the insurance industry to be a high and laudable figure.

Plaintiff was not allowed to introduce the State of Alabama Insurance Department’s records of complaints about National States’ nonpayment of claims. On the basis of this exclusion, the Court disallowed the offer into evidence by Defendants of one page of a multi-page report by the State of Missouri Insurance Department giving its assessment of National States’ treatment of policy holders on the basis of claims paid.

This careful review of the record shows that the trial Judge kept strict control of this issue with pre-trial instructions to the attorneys, an in camera hearing of the Plaintiff’s witness on this subject, and ample opportunity for Defendants’ counsel to cross-examine this witness and to examine its own rebuttal witness. He also required Plaintiff to show evidence of company-wide figures rather than limiting the proof to Alabama, thus presenting a more representative sample to the jury.

We classify this case as one of fraud in the inducement. In such a case, evidence going to the intent and state of mind of the alleged perpetrator is particularly relevant. Wide latitude is afforded the Plaintiff in the introduction of evidence in a fraud ease. The trial Judge informed the lawyers after one of the in camera hearings that he found the matter to be a proper one for cross-examination, thus implying that the evidence was admissible and that its weight would be determined by the jury. We agree with this finding. This Court gave a succinct synopsis of the applicable standard in Mid-State Homes, Inc. v. Johnson, saying:

“Great latitude is allowed in admitting evidence on the issue of alleged fraud. May v. Strickland, 235 Ala. 482, 180 So. 93 [1938]; National Surety Co. v. Julian, 227 Ala. 472, 150 So. 474 [1933], Most often the perpetrator of fraud is the sole possessor of actual knowledge of such fraud. Undue restriction should not be placed on the introduction of evidence which has probative value, however slight, on this issue. Weight is for the jury.”

Mid-State Homes v. Johnson, 294 Ala. 59, 63, 311 So.2d 312, 315 (1975).

“Under [the] liberal test [of relevancy followed in Alabama], a fact is admissible if it has any probative value, however slight, upon a matter in the case.”

McElroy’s Alabama Evidence, § 21.01(1) (3rd Ed. 1977).

In National Surety Co. v. Julian, this Court stated:

“Where fraud is involved, a wide latitude is permitted in the introduction of evidence. Of course, this latitude cannot be extended to allow evidence wholly foreign to the issue. But, subject to this limitation, it is proper ‘to admit any evidence which is competent by other rules of law, either direct or circumstantial, which in the opinion of the court has a legitimate tendency to prove or disprove the allegations in issue, the matter resting largely in the discretion of the trial court.’ 27 Corpus Juris, p. 50.”

National Surety Co. v. Julian, 227 Ala. 472, 482, 150 So. 474, 482 (1933).

We agree that the trial judge’s discretion must, of necessity, have a field of operation in borderline situations. Referencing Rule 303 of the American Law Institute’s Model Code of Evidence, McElroy’s Alabama Evidence states:

“This [within the sound discretion of the trial judge] is where such power should lie because, unless some discretion is vested in the trial judge, every ruling upon the admissibility of a particular fact of a kind above-mentioned becomes a law unto itself. If any particular rule of evidence runs into numerous borderline cases, we must either give the trial court some discretion in applying it or admit that the rule is not workable at all. This argument for the investiture of a measurable discretion in the trial court must not be taken, however, as suggesting that an appellate court ought not to correct a plainly prejudicial misuse of discretion by the trial court.”

McElroy’s Alabama Evidence, § 21.01(6) (3rd Ed. 1977).

Plaintiff contends that the evidence on loss ratios was introduced to give rise to an inference of fraud. We agree with this and find ample support in the record for this contention. We find it clearly admissible for this purpose. The trial Court’s careful handling of the issue was in line with the strictest sense of legal propriety and fairness to the litigants.

Tape Recording

4) Plaintiff offered into evidence a tape recording of a sales training meeting which took place after the sale of her policies. The recording included comments by the instructors to the class on making incomplete explanations of policy coverage and on lying to the elderly clients if necessary. Defendants contend the recording was inadmissible because it was a meeting which took place after the sale in question and that it was highly inflammatory and prejudicial. Testimony was offered showing that the instructions given in this meeting were substantially the same as those given in all other earlier training sessions by Defendant company. Thus, the proper predicate for the tape’s admission was laid.

We once again look to the standards on admissibility of evidence in fraud cases cited in the previous section and find them applicable to this exhibit as well. Such a tape recording is particularly relevant in a case of fraud in the inducement such as is now before us. See, Old Southern Life Insurance Co. v. Woodall, supra, (a case for fraud in the inducement); compare with Vincent v. Blue Cross-Blue Shield of Alabama, Inc., 373 So.2d 1054 (Ala.1979) (a tort case based on allegations of bad faith for refusal to pay benefits due).

Defendants strenuously argue the impropriety of allowing the jury to have the tape recording in the jury room. They analogize this situation to that of a deposition. Defendants rightly point out that it is improper for a deposition to be taken into the jury room. What Defendants fail to recognize is the distinction between the two situations.

A deposition is the preservation of prior testimony which, when admitted into evidence, is read into the record. The jury, then, does not have access to the deposition itself but may have this testimony re-read to it during its deliberation. The deposition is in essence a conduit used to transport the testimony of an unavailable witness into the record. As stated by this Court in Ott v. Fox, “Under present practice, the deposition, which has been read into evidence, is not itself evidence,” and Rule 51, ARCP, prevents depositions from going into the jury room by omitting mention of them. Ott v. Fox, 362 So.2d 836 (Ala.1978). Defendants are entirely correct in that premise.

A tape recording of a pertinent event is analogous to a photograph of a scene. A recording preserves the situation as it took place just as a photograph preserves the scene as it existed at a given point. The Alabama Court of Civil Appeals succinctly sums up the situation now before us, saying:

“In the instant case, the recording is nothing more than mechanical corroboration of the [words] heard and described by the witness. Such witness was available for cross-examination both as to the [words] heard and the method used for capturing [them] on tape. In this electronic and scientific age the courts would be grossly remiss to fail to allow use of such instruments, under proper safeguards, in conveying truth to the jury.”

C. P. Robbins & Associates v. Stevens, 53 Ala.App. 432, 437, 301 So.2d 196, 201 (1974).

Under Rule 51, ARCP, it is largely within the sound discretion of the trial judge to decide which of the articles introduced into evidence may be taken into the jury room. McEiroy’s Alabama Evidence, § 10.04 (3d Ed. 1977).

The tape was first heard by the Court out of the presence of the jury. No objection was made to particular portions of the tape. The objection to the admissibility of the tape as a whole was overruled. Thus, the entire tape was admitted. The Judge obviously found the technical quality and clarity of the tape to be acceptable and the substance to be relevant. Thus admitted, the tape was eligible to be taken to the jury room if the Judge found it proper. He did and we agree with the propriety of this ruling.

Agency

5) Defendants premise their argument of this issue on the dichotomy recognized in Alabama between soliciting agents and general agents. A discussion of that point is not necessary here. Examination of the record shows that the trial Judge amply instructed the jury on agency and the jury was free to find from the evidence that these agents rose above the status of soliciting agents.

The Court of Civil Appeals in Old Southern Life Insurance Co. v. McConnell gave a good summary of the law on this point, saying:

“As we see it, the extent of the authority of . . . [the] agent to bind [the corporate] appellant in contract is not necessarily conclusive in proof of liability of appellant in tort. The liability of a corporation for the torts of its employees, whether agent or servant, is grounded upon the principle of ‘respondeat superi- or’ not the principles of agency. 3 Am. Jur.2d, Agency, § 267. The factual question to be determined is whether or not the act complained of was done, either by agent or servant, while acting within the line and scope of his employment. The corporation or principal may be liable in tort for the acts of its servants or agents, done within the scope of employment, real or apparent, even though it did not authorize or ratify such acts or even expressly forbade them. Gulf Electric Co. v. Fried, 218 Ala. 684, 119 So. 685. Tollett v. Montgomery Real Estate & Ins. Co., 238 Ala. 617, 193 So. 127; Am.Jur.2d, supra.”

Old Southern Life Insurance Co. v. McConnell, 52 Ala.App. 589, 296 So.2d 183, 186 (1974).

Return of Premiums

6) Appellants contend that the return of the premiums paid absolves them of any wrongdoing. Clearly, one cannot rectify a fraud by subsequent conduct. Once the fraud is perpetrated, a cause of action has accrued and the rescission of the contract does not cause the plaintiff to forfeit his cause of action in tort. Old Southern Life Insurance Co. v. Woodall, 348 So.2d 1377 (Ala.1977); Pihakis v. Cottrell, 286 Ala. 579, 243 So.2d 685 (1971).

Damages

7) Appellants again look to the premium refund as basis for their argument saying here that a refund negated any possibility of damage to Plaintiff. We do not agree. Plaintiff suffered actual damage in several respects. She lost the time value of the money paid in premiums; she lost the opportunity to obtain other coverage by relying on the protection of these policies; and she incurred out-of-pocket expenses for items which had been represented to her as covered by these policies. Such a refund could only be considered in mitigation of damages. Once actual damages, even nominal damages, are established, punitive damages may properly be awarded in fraud cases. Pihakis v. Cottrell, supra.

Our review of the record shows that there was no abuse of discretion on the part of the able and experienced trial Judge in this case concerning the remittitur. Therefore, we find the remittitur order proper and we will not disturb it. Southern Cement Co. v. Patterson, 271 Ala. 128, 122 So.2d 386 (1960). See, also, Central of Georgia Railway Co. v. Steed, 287 Ala. 64, 248 So.2d 110 (1971).

In accordance with this opinion, the judgment below is hereby affirmed.

AFFIRMED.

MADDOX, FAULKNER, SHORES, EM-BRY and BEATTY, JJ., concur.

ALMON, J., concurs specially.

TORBERT, C. J., dissents.

BLOOD WORTH, J., not sitting.

ALMON, Justice

(concurring specially):

I concur because of the peculiar facts in this case. Ordinarily the loss ratio of an insurance company would not be admissible.

      . Compare, however, Davey Tree Expert Company v. Willis, 383 So.2d 529 (Ala. 1980), in which the judgment below was reversed because the trial Court allowed a former subcontractor of defendant to testify to a conversation between himself and the defendant’s supervisor not made contemporaneously with the transaction in issue. In Davey Tree, the defendant’s agent, whose statement against Davey Tree’s interest was recited by the witness, was not an agent of defendant until at least four months subsequent to the transaction in issue. Here, although the tape recording was made after the transaction (the sale of the policy), the testimony is clear that the sales instructions which were taped were substantially the same as those given in all training sessions, including those held prior to the sale of the policies in issue in this case.


author: JONES, Justice. BEATTY, Justice

text:
    James A. CARTER, Individually and as Tax Assessor of Bullock County v. STATE of Alabama ex rel. BULLOCK COUNTY, Alabama, a corporation et al.
    79-351.
    Supreme Court of Alabama.
    Jan. 9, 1981.
    Rehearing Denied Feb. 6, 1981.

      Jock M. Smith, Tuskegee, for appellant.
    Charles A. Graddick, Atty. Gen., Lynn W. Jinks, III, Union Springs, for appellee Bullock County Hospital.
    Louis C. Rutland, Union Springs, for ap-pellee Bullock County.
   JONES, Justice.

Appellant appeals from a judgment of the trial court which: 1) granted Appellees’ petitions for mandamus; 2) adjudged Appellant in contempt of court; 3) assessed a fine against him for civil contempt; and 4) appointed a temporary receiver to perform his duties. We affirm the judgment.

On December 27, 1978, Bullock County, Alabama, the City of Union Springs, Alabama, and the Bullock County Hospital Board filed petitions for writs of mandamus and other relief in the Circuit Court of Bullock County against James A. Carter, the Tax Assessor of Bullock County; Charles Boswell, as Commissioner of Revenue of the State of Alabama; and Tom Ven tress, as Director of Finance of the State of Alabama. The petitions alleged that respondents had failed to perform certain of their duties with regard to the “assessment” of taxes in Bullock County. Subsequently, the court issued an alternative writ of mandamus directing respondents to perform their statutory duties with regard to the assessment of taxes or appear before the court showing cause why they should not.

On September 19,1979, the City of Union Springs and Bullock County Hospital Board filed in the trial court a petition for a rule to show cause, for the appointment of a receiver, and for other relief. The pleading averred that Appellant had violated previous orders of that court.

On November 19, 1979, after a report by the Department of Revenue, the court held Appellant in contempt, convened a grand jury for the purpose of investigating his performance as tax assessor, assessed a civil fine against Appellant as punishment for contempt, and appointed the Commissioner of Revenue of the State of Alabama as a temporary receiver.

I. Appellant’s “Removal” as Tax Assessor.

Appellant argues that his “removal” from the position of tax assessor was improper. We disagree.

While Appellant cites various authorities to support his position, all are premised upon the assumption that he has been removed from office. This, however, is not the case. There is nothing in the record below or in any order of the trial court to indicate his removal from office. Indeed, the trial court’s last order referred to Appellant as “the tax assessor himself.”

Appellant seemingly equates the appointment of a temporary receiver with his being replaced or removed from office. While in fact his movements in and about that part of the Bullock County Courthouse known as the “Tax Assessor’s Office” have been restricted by the court, Appellant remains as “tax assessor” of Bullock County. This case was founded upon a petition for mandamus, not quo warranto. The temporary restriction of Appellant’s official activities is but an incident of the trial court’s enforcement powers pursuant to its mandamus jurisdiction.

Additionally, Appellant suggests that the failure of the grand jury to return a bill of impeachment against him exonerated him of any culpability herein. Again, we are disinclined to agree. Impeachment and mandamus are not mutually exclusive remedies. We treat this issue further under Part III of the opinion.

II. Appellant’s Fine for Civil Contempt.

Appellant alleges that the trial court’s action in attaching his salary as a fine for civil contempt was improper. Such assertion is without merit.

As tax assessor, Appellant had the duty of performing certain obligations imposed by statute. §§ 40-7-35 and 40-7-36, Code 1975. Without tax “assessment” there can be no tax “collection.” Moreover, these are ministerial duties of the tax assessor. State v. Laurendine, 199 Ala. 312, 74 So. 370 (1917). As such, failure to perform them will support an action sounding in mandamus. Ex parte Wright, 225 Ala. 220, 142 So. 672 (1932); Dillard v. Alexander, 277 Ala. 202, 168 So.2d 233 (1964). The initial pleading filed in the court below on December 27, 1978, alleged that Appellant had failed to perform these duties. This was more than three months after these duties were required by law to be performed. § 40-7-36, Code 1975.

Subsequent to hearings on October 23, 1979, and November 19,1979, the trial court found that Appellant had failed to complete his duties as ordered by the court, and was, therefore, in contempt.

The failure to perform an act required by the court for the benefit of an opposing party constitutes civil contempt. Ex parte Abercrombie, 277 Ala. 479, 172 So.2d 43 (1965); Ex parte Griffith, 278 Ala. 344, 178 So.2d 169 (1965), cert. den. sub nom. Griffith v. Board of Commissioners of Alabama Bar, 382 U.S. 988, 86 S.Ct. 548, 15 L.Ed.2d 475 (1966). In such cases the court may exercise its power to punish the con-temner or to compensate the injured party. Jim Walter Resources, Inc. v. International Union, United Mine Workers of America, 609 F.2d 165 (5th Cir.1980).

Appellant refers to the court’s action as “garnishment” of his wages. However, only money in the hands of a third person is subject to garnishment. § 6-6-370, Code 1975. Bullock County, as Appellant’s employer and a party to this suit, is not a third person within the meaning and intent of the statute.

Additionally, Appellant argues that the trial court’s procedure violated 15- U.S. C.A. § 1673, or part of the Federal Consumer Credit Protection Act. This Act, however, is primarily directed at abuses of garnishment remedies by consumer financial lenders such as loan companies. Brown v. Liberty Loan Corporation of Duval, 392 F.Supp. 1023 (M.D.Fla.1974). Assuming, arguendo, that the action taken by the court was garnishment, the federal statute remains inapplicable to the circumstances of the instant case.

III.Separation of Powers.

Appellant complains that the trial court’s rulings infringed upon the separation of powers concept. This assertion lacks substance. The trial judge’s orders were well within the limits of his authority. In addition to conserving the object at issue, a receivership is sometimes required to carry out the day to day function of an office or business. Glenn v. Martin, 208 Ala. 247, 94 So. 351 (1922).

We recognize and reaffirm the principle that the judiciary should exercise measured restraint in interfering with the affairs of public officials in the performance of their legally imposed duties. Here, however, the extremities of the tax assessor’s dereliction, after repeated extensions of time and offers of assistance for corrective action, left the trial court with no alternative but to act with the degree of decisiveness demonstrated by the record before us. The tax assessor’s total failure to perform his duties, which materially hampered legitimate and essential governmental functions of the county, may not have invoked the displeasure of the grand jury; but the grand jury’s failure to return a bill of impeachment could not, of itself, render the court powerless to effect an appropriate remedy in the exercise of its inherent equity jurisdiction. We find no impropriety in the trial court’s action under these circumstances.

IV. Sufficiency of the Evidence Below.

The trial judge below was the trier of fact and his conclusions should not be disturbed on appeal unless plainly erroneous. Gunnels v. Jimmerson, 331 So.2d 247 (Ala.1976); Maxwell v. City of Birmingham, 271 Ala. 570, 126 So.2d 209 (1961). His findings of fact, as a predicate for his rulings, are amply supported by credible evidence of record and are in keeping with cognizable principles of fairness and justice.

V. Authority to Appoint a Receiver.

Finally, Appellant contests the authority of the trial court to appoint a temporary receiver for the preservation of the records within the office of tax assessor. This action, in our opinion, was not improper.

The power of a court to appoint a receiver in a pending action is statutorily recognized (§ 6-6-620, Code 1975); and, generally, the exercise of such power rests within the sound discretion of the trial judge. C. E. Development Co. v. Kitchens, 288 Ala. 660, 264 So.2d 510 (1972); 75 C.J.S. Receivers § 16 (1952). This extraordinary remedy, however, should not be granted unless there is a clear legal right to be protected, no other adequate remedy, and a showing that the complainants will otherwise sustain irreparable damage. 75 C.J.S. Receivers § 9 (1952); Henry v. Ide, 209 Ala. 367, 96 So. 698 (1923); Grand Lodge, K. P. v. Shorter, 219 Ala. 293, 122 So. 36 (1929).

Receiverships are equitable in nature. Once equity assumes jurisdiction of a cause, it may afford complete relief when it has jurisdiction on any ground. Billingsly v. Billingsly, 285 Ala. 239, 231 So.2d 111 (1970); Lamar v. Lamar, 263 Ala. 391, 82 So.2d 558 (1955). Our reading of the record persuades us that the trial judge’s finding of the requisite conditions for appointment of a receiver is amply supported by credible evidence, and his rulings based thereon do not constitute an abuse of discretion.

AFFIRMED.

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

SHORES and BEATTY, JJ., dissent.

MADDOX and ADAMS, JJ., not sitting.

BEATTY, Justice

(dissenting).

The majority base their decision on the premise that Mr. Carter has never been “removed” from the office of tax assessor. I disagree. Not only have his duties been assumed by the Department of Revenue, but his pay has been halted and his office space has been occupied by Department of Revenue employees. Moreover, before this Court in oral argument counsel for the ap-pellee conceded that Mr. Carter has been “effectively” removed from his office.

The primary question, therefore, is whether a trial judge has the inherent equitable power to remove an elected official from his duties in view of this state’s constitutional and statutory provisions. I am convinced that no such power exists.

The procedure for the removal of a tax assessor from his duly elected office is primarily statutory in Alabama. Ala.Const., art. VII, § 175 (1901) states that a tax assessor:

[M]ay be removed from office for any of the causes specified in section 173 of this Constitution, by the circuit or other courts of like jurisdiction or a criminal court of the county in which such officers hold their office, under such regulations as may be prescribed by law; provided, that the right of trial by jury and appeal in such cases shall be secured.

Code of 1975, § 36-11-3, sets out the regulations for removal of a public official, such as a tax assessor, in Alabama. That section provides:

It shall be the duty of every grand jury to investigate and make diligent inquiry concerning any alleged misconduct or incompetency of any public officer in the county which may be brought to its notice; and, if, on such investigation and inquiry, it finds that such officer, for any cause mentioned in this chapter, ought to be removed from office, it shall so report to the court, setting forth the facts, which report shall be entered on the minutes of the court... .

When the Constitution provides the mode for removal of an officer by impeachment, that is deemed to be a denial of any other method of removal. Nolen v. State, 118 Ala. 154, 24 So. 251 (1898), approved in Williams v. State, 197 Ala. 40, 72 So. 330 (1916). (Emphasis added.)

In Touart v. State, 173 Ala. 453, 56 So. 211 (1911), this Court stated:

[I]f a county tax commissioner is county officer, and he has been appointed or elected to fill a definite and fixed term, his removal from office during the term to which he was appointed or elected — except for the causes enumerated in Section 173 of the Constitution, and by the method of impeachment — is inhibited by the Constitution; and that, in the impeachment proceeding provided, he has the rights of jury trial, and appeal, as guaranteed by Section 175 of the Constitution.

Assuming arguendo that Mr. Carter was acting incompetently or with willful neglect of duty, either of which would be a valid ground for removal under § 173, still it is well established that the trial court did not have the authority to proceed against him unless the grand jury returned a bill of impeachment pursuant to Code of 1975, § 36-11-2. In fact, the grand jury refused to return such a bill but the trial court, nevertheless, appointed the Department of Revenue as the receiver and effectively removed Mr. Carter from office. Since the proper impeachment procedure provided by § 36-11-3 was not followed and, moreover, since Mr. Carter was denied a jury trial which is specifically guaranteed him by § 175 of the Constitution, the removal of Mr. Carter from office was improper.

Although no one can condone the behavior of Mr. Carter in his apparent failure to perform his duties, nevertheless the people of Bullock County have exercised their right to elect whomever they wish to be their tax assessor. Doubtless the trial court’s action was prompted by the highest motives, seeking to avoid an impasse which had interrupted important public services. Those motivations, however, can furnish no modifications of the language of our Constitution and statutes expressly dealing with the removal of public officials. Therefore, I would reverse and render this cause.

SHORES, J., concurs.

      . Although we elect to address certain limited features of this aspect of the court’s orders, we are not to be understood as overlooking or altering the general rule that orders of contempt are reviewable by way of appropriate extraordinary writ and not by way of appeal. Knight v. State ex rel. Butler, 288 Ala. 428, 261 So.2d 750 (1972); Wetzel v. Bessemer Bar Ass’n., 242 Ala. 164, 5 So.2d 722 (1942).

      . We are not unaware of § 174 of Art. 7 of the State Constitution which authorizes the legislature “to provide for the impeachment or removal” of certain public officers, or of §§ 36-11-1, 36-11-2, 36-11-3, and 36-11-4, Code 1975, which provide the procedures for such action. Because of our holding that neither the wording nor the legal effect of the trial court’s order constitutes an impeachment or removal of the Appellant from his office as tax assessor, however, we pretermit discussion of this constitutional provision and the implementing legislation.


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

text:
    The ALABAMA BOARD OF OPTOMETRY, Edgar M. Warr, James Chernau, Willard Smith and George R. Carlton, Individually and in their capacities as members of The Board of Optometry v. Ralph P. EAGERTON, Jr., in his capacity as the Commissioner of Revenue of the State of Alabama.
    79-420.
    Supreme Court of Alabama.
    Feb. 6, 1981.
    Alton Turner, Luverne and Robert D. Segall of Copeland, Franco, Screws & Gill, Montgomery, for appellants.
    Charles A. Graddick, Atty. Gen., Herbert I. Burson, Jr. and B. Frank Loeb, Counsel,

      Dept, of Revenue, Asst. Attys. Gen., for appellee.
   BEATTY, Justice.

This is an appeal by plaintiffs, who are members of the Alabama Board of Optometry and who are practicing optometrists. We affirm.

The plaintiffs brought an action for a declaratory judgment in the Circuit Court of Montgomery County asking that the court declare that the dispensing of eyeglasses and contact lenses did not constitute the sale of tangible personal property which was subject to the Alabama sales tax. They also asked the court to declare that Department of Revenue Regulation P18-171 violated the Alabama and United States Constitutions’ prohibition against denial of equal protection and due process of law. Mr. M. L. Turner filed a complaint in intervention. He alleged that, as a citizen of Crenshaw County, where no ophthalmologists were located, he secured his eye examinations and eyewear from an optometrist, and that, therefore, he and others similarly situated were subjected to unconstitutional discrimination under sales tax Regulation P18-171, which provides for taxing the dispensing of eyeglasses by optometrists but not by opthalmologists.

In an amended complaint the plaintiffs alleged that optometrists are not engaged in a merchandising business, but perform skilled professional services for their patients, as members of one of the “learned professions,” when furnishing eyeglasses or contact lenses. In addition to declaratory relief, the plaintiffs prayed for injunctive relief against the imposition of the sales tax laws so as to require optometrists to collect and remit sales taxes on glasses and contact lenses dispensed by them in rendering services to their patients.

The defendant’s answer denied the plaintiffs’ essential allegations, prayed that the court uphold Regulation P18-171, and affirmatively asserted that in manufacturing and fitting glasses and contact lenses an optometrist sells at retail tangible personal property as contemplated by the sales tax law.

Following a hearing at which testimony was taken ore tenus, the trial court ruled that the regulation making a distinction in the sales tax incidence between ophthalmologists and optometrists who provide eyeglasses or contact lenses violated the Fourteenth Amendment of the United States Constitution, and that court enjoined the defendant from enforcing that rule as to so discriminate. The trial court also held that the cases of Haden v. McCarty, 275 Ala. 77, 152 So.2d 141 (1963); Lee Optical Company of Alabama v. State Board of Optometry, 288 Ala. 338, 261 So.2d 17 (1972), and State Tax Commission v. Hopkins, 234 Ala. 556, 176 So. 210 (1937), were binding authority on which to conclude that the sale and dispensing of eyeglasses and contact lenses constitutes a sale of tangible personal property as defined by the sales tax laws of Alabama.

In their appeal to this Court the plaintiffs maintain that the practice of optometry in Alabama has evolved into a “learned profession,” so that the dispensing of eyewear by optometrists to their patients is not a sale of tangible personal property under the sales tax law, but only the furnishing of a product incidental to the rendering of professional services.

Code of 1975, § 34-22-1, defines the “practice of optometry”:

(1) PRACTICE OF OPTOMETRY. Any of the following:
a. Any examination of the human eye and visual system for the purpose of:
1. Ascertaining any departure from the normal;
2. Ascertaining the status of the human visual system, including refractive and functional abilities thereof; or
3. Ascertaining the presence of ocular disease or ocular manifestations of systemic disease and any other departure from the normal which may require referral to other health care practitioners.
b. The diagnosis and treatment of the refractive and functional ability of the visual system for the purpose of the prevention, rehabilitation, correction and relief of anomalies of the visual system or visually related symptoms or disabilities or the enhancement of visual performance in accordance with accepted teaching by means of any or all of the following:
1. The prescribing and employment of ophthalmic lenses, prisms, frames, ophthalmic aids and prosthetic materials;
2. The prescribing and employment of contact lenses;
3. Administering visual training, or-thoptics and pleoptics; and
4. Providing advice regarding environmental factors which influence visual performance, safety and comfort.
Nothing in this section shall be construed so as to permit the administering of drugs in any form or prescribing of drugs for the medical treatment of eye diseases or the performing of surgery of any nature for any purpose.
Nothing in this section shall be construed so as to prevent the use and prescribing of the soflens or hydrophilic contact lenses and the solutions commonly used in the prescribing and fitting of contact lenses.
Nothing in this chapter shall be construed as repealing or affecting the provisions of section 38-1-2.

That statute levying the Alabama sales tax is Code of 1975, § 40-23-2, as amended by Act No. 592, Acts 1980, p. 788:

There is hereby levied, in addition to all other taxes of every kind now imposed by law, and shall be collected as herein provided, a privilege or license tax against the person on account of the business activities and in the amount to be determined by the application of rates against gross sales, or gross receipts, as the case may be, ... as follows:
(1) Upon every person, firm or corporation, ... in business of selling at retail any tangible personal property whatsoever, ... an amount equal to four percent of the gross proceeds of sales of the business ....

We must observe that the legislature has not exempted optometrists selling eyeglasses, etc., from the influence of this statute. This Court, however, in the past has limited the sway of the statute to the “taxable event” demonstrated by the services extended:

The test as to the application and validity of the tax in such cases [dealing with the manufacture and sale of eyeglasses] is not the relative value of the material and service, but the nature and character of the process, activities, or manufacture required or employed. That the matter is severable, ... does not change the fact or process of manufacture and sale of a tangible personal property made the subject of appropriate provisions of the statute. ... [Emphasis added, State Tax Commission v. Hopkins, 234 Ala. 556, 176 So. 210 (1937).]

In that case this Court recognized the distinction implicit in the exercise of professional skill, on the one hand, and the sale of tangible property on the other:

It is apparent from what we have said that the act should not be extended so as to tax one’s income from personal skill in the exercise of a profession. What we are dealing with is the manufacture and sale of glasses fitted to the eyes of the ultimate consumer, that is subject to the tax imposed by the appropriate provisions of the . . . act, ....

Though not directly in point, nevertheless an analysis of the basis for the statute’s application to optometrists was contained in Haden v. McCarty, 275 Ala. 76, 152 So.2d 141 (1963), when the respective roles of dentists and optometrists were compared in order to distinguish professional services from the sale of tangible property. In that case this Court adopted a description of dental services contained in the trial court’s decree:

“Dentists are not traders in commodities engaged in a merchandising business. A dentist is a practitioner of one of the true ‘learned professions’, like unto a physician or surgeon. Dentistry is one of the healing arts, a department of medicine; and dentists, like physicians, perform the very highest type of skilled professional services for their patients. Dentists are men of profession, who by virtue of their talents and aptitudes, and long years of study, and formal education, qualify themselves to serve mankind and to alleviate human suffering. When a dentist furnishes a prosthesis to his patient, this is an inseparable and indivisible part and parcel of the professional service of dentistry, which concerns itself with diagnosis, treatment, restoration, and prevention. A dentist does not, under the common understanding of things, or under the terms of the Sales Tax Act, make a sale to his patient. His relation to his patient is not that of merchant and ‘customer’ but that of doctor and patient; a close relationship requiring the skill and expertness that come with a concentrated background of education, training, and qualifications. A patient goes to a dentist seeking treatment and professional care and attention, and that is what he gets, and the amount paid the dentist by the patient is the dentist’s fee for professional services.
“The fashioning and furnishing of dentures, crowns, inlays, bridges, and similar medical prostetic [sic] devices, by a dentist, incidental to his professional care and treatment of his patient, is not a retail sale of tangible personal property under the Alabama Sales Tax Act. Skilled professional service is that which is required of the dentist, furnished by him to the patient, charged for by the dentist, and paid for by the patient.”

This Court recognized in that decision the inclusion of dentists within the “learned professions,” and with respect to the dental prostheses which were sought to be taxed, added:

The denture itself could not be separated from the treatment, examination, and other things leading up to fitting it in one’s mouth, and separately charged for....

But then a pertinent comparison was made:

On the other hand, eyeglasses need not be fitted by a trained professional man with a medical degree. The same risks to the over-all health are not necessarily involved. It is a matter of common knowledge that most “Five & Dime” stores will sell you a pair of eyeglasses. Optometrists merely measure the strength or weakness of the human eye and prescribe the type glasses needed. No medical technology is involved. An optometrist should make no attempt to treat eye diseases or fit a glass eye to his customers. These treatments would be left to the ophthalmologist, a medical doctor specializing in treatment of eye ailments.

In making that comparison this Court did not denigrate the practice of optometry; indeed we have recognized that it bears a “substantial relation to public health, and that it calls for special skill and knowledge of those practicing it ....” Lee Optical Co. of Alabama v. State Bd. of Optometry, 288 Ala. 338, 261 So.2d 17 (1972) citing Hampton v. Brackin’s Jewelry & Optical Co., 237 Ala. 212, 186 So. 173 (1939). Nevertheless, the Lee Optical decision itself held that the practice of optometry was not the practice of a learned profession:

There are several callings in the health care field, or the healing arts field, which cannot be classified as learned professions such as medical technicians, registered nurses, practical nurses, pharmacists, chiropodists, and perhaps others.

Then this Court quoted from one of the statutes regulating optometry at that time, Section 206:

“Nothing in this chapter shall be construed as authorizing any optometrist to administer drugs in any form, to practice or claim to practice medicine or surgery in any sense, or to use any title or appellation intended or calculated to indicate the practice of medicine or surgery.”

The presence of these provisions, this Court held, expressed a legislative policy rejecting the conclusion that optometry is “a subdivision of the practice of medicine.” Moreover, this Court in Lee recognized another distinction:

Nor do we consider that the relationship existing between an optometrist and patient rises to the degree of confidential relationship existing between doctor and patient or attorney and client. A person seeking the services of a physician or lawyer must reveal to such professional adviser the most intimate secrets of physical or mental disability, or of his business or conduct. As stated in Silver v. Lansburgh & Bro., 72 App.D.C. 77, 111 F.2d 518, such relationship by its very nature creates a relationship of trust and confidence, and the physician’s or attorney’s allegiance must be wholeheartedly to the patient or client, and not to another, and “nothing of this nature applies to the practice of optometry.” Ordinarily information of no great intimacy is revealed by one seeking only an eye examination looking toward securing proper lenses for eyeglasses.

And the fact that many callings require special skills, stated the Court, and thus were referred to as professions, did not make them “learned professions,” those having been recognized historically as the professions of law, medicine, the ministry, and sometimes the profession of arms. “Thus recognition,” this Court added, “has resulted from the inherent nature of the callings, and prior to, and not from any statutory enactments regulating their conduct.” (Emphasis added.)

While not disagreeing with these decisions, the plaintiffs maintain that the education, training and practice of optometrists has made such advances as to place optometry among the “learned professions,” and that the present statutes regulating optometry reflect these changes.

The record does reflect impressive educational requirements for the study of optometry at the University of Alabama, To some appreciable degree the admission and curricular requirements parallel those for medical and dental school students. The School of Optometry provides education and training in the diagnosis of ocular disease or ocular manifestations of systemic disease. Students are also offered courses in physiology, pharmacology, and ocular pathology. Clinical experience is extensive. The record made by the plaintiffs’ professional witnesses who themselves identify optometry as a “learned profession” is commendable.

We take note, moreover, that the legislation presently regulating optometry has undergone changes since the decision this Court rendered in Lee. The 1975 Act (Code of 1975, § 34-22-1) defines the practice of optometry as we have heretofore quoted.

But then the legislature added the following significant phrase:

Nothing in this section shall be construed so as to permit the administering of drugs in any form or prescribing of drugs for the medical treatment of eye diseases or the performing of surgery of any nature for any purpose. [Emphasis added.]

This restrictive language was enacted following the Lee decision. In that case this Court pointed out that a number of our sister states had, through legislation, specifically declared optometry to be a “learned profession.” The Lee decision itself had followed others to which we have alluded in which this Court had either declared optometry not to be a “learned profession” or otherwise referred to legislative policy as controlling on that issue. Indeed, in Lee itself, after this Court had implicitly, if not expressly, called to the legislature’s attention that it might change its policy and declare optometry a “learned profession,” our legislature amended the regulatory scheme without doing so, while it did, however, limit the practice with the language we have quoted. We have not here faced the situation in Haden v. McCarty, 275 Ala. 76, 152 So.2d 141 (1963), vis-a-vis dentists. There we were not guided by any clear legislative policy on that matter, while here we are faced with the clear legislative intent not to recognize optometry as a “learned profession” despite the language in Lee, which invited the legislature to declare optometry a “learned profession” if it so intended. Since the legislature did not do so, the language of the Lee opinion is cogent still, in our opinion:

We hold that in light of our statutory provisions and the policy to be deduced therefrom that the practice of optometry is not to be considered as the practice of a learned profession. Our statutes on optometry merely regulate the practice of optometry... . [288 Ala. at 349, 261 So.2d 17.]

Thus we hold that the essential purpose of our present optometry Act is, as it was at the time of the Lee decision, to license and regulate those who examine eyes and prescribe eyeglasses. Although the contemporary scientific, educational and clinical developments in that profession are noteworthy, nevertheless we do not denote any legislative intent to change that body’s policy so as to denote the practice of optometry as the practice of a learned profession. The legislative policy having remained essentially the same notwithstanding that line of relevant decisions beginning with State Tax Commission v. Hopkins, supra, we must adhere to it. For these reasons the judgment of the lower court must be, and is, affirmed.

AFFIRMED.

MADDOX, FAULKNER, ALMON, SHORES and EMBRY, JJ., concur.

JONES, J., concurs in the result.

TORBERT, C. J., dissents.

ADAMS, J., not sitting.

JONES, Justice

(concurring in the result).

I concur in the result. I would overrule Haden v. McCarty, 275 Ala. 76, 152 So.2d 141 (1963). After careful study of the issue here presented, I am of the opinion that the “practice of a learned profession” dichotomy is wholly irrelevant to an appropriate interpretation and application of the taxing statute in question.

TORBERT, Chief Justice

(dissenting).

I respectfully dissent from the majority’s holding that optometry is not a learned profession.

When this Court held in Haden v. McCarty, 275 Ala. 76, 152 So.2d 141 (1963), that dentistry is a learned profession for purposes of Code 1975, § 40-23-2, we departed from the traditional listing of learned professions, i. e., doctors, lawyers, and ministers of the gospel, and embarked on a course of action requiring us to distinguish the “learned” professions from all other professions. I cannot agree that optometrists are not entitled to this honor, since we are now committed to making such a distinction.

Appellants presented evidence at trial concerning the training that optometrists are required to undergo before being certified by the State Board of Optometry. The similarity to that of dentists in terms of length, course material, and practical experience is striking. Additionally, appellants introduced lengthy testimony of the great strides that have been made in the field. An optometrist is no longer a mere technician who measures the severity of a vision defect and matches to it the proper strength of eyeglasses, but he now is engaged in all aspects of testing and treating a multitude of sight problems. Although he can neither prescribe drugs nor perform surgery, he can and often does diagnose illnesses of the eyes, for treatment of which he refers the patient to an ophthalmologist. The optometrist also uses a number of mechanical devices, as well as exercises and unique eyeglass prescriptions, to correct all sorts of eye problems which he has discovered and/or diagnosed.

The materials and cosmetic attractiveness of the eyeglasses sold by optometrists are only a small part of the total cost. The major cost involved stems from the expertise he demonstrates in determining the correct prescription for the problem of the particular patient. Anyone who has ever purchased “dime-store” eyeglasses knows the differential both as to price and effectiveness between them and a pair of eyeglasses prescribed and fitted by a certified optometrist. The parallel between optometry and dentistry, as well as many other branches of medicine, is obvious in this regard.

The majority erred in affirming the trial court in another respect. The trial judge found that Sales Tax Regulation P18-171, which provides that the sale of eyeglasses and contact lenses at retail is subject to the sales tax, and that optometrists making such sales are liable for such tax while ophthalmologists are not engaged in selling tangible personal property, and thus are not required to pay such sales tax, violated the equal protection and due process clauses of the Alabama and United States Constitutions. He then ruled that from then on neither optometrists nor ophthalmologists would be exempt from sales tax on eyeglasses and contact lenses. Opthalmolo-gists, however, as medical doctors, are entitled to an exemption by virtue of being a member of one of the traditional “learned professions.” The majority would remove the exemption for one branch of medicine while leaving it for all others. Such an inconsistency only serves to create another equal protection problem, and should not be allowed.

The majority makes much of the fact that optometrists are prohibited from prescribing drugs or performing surgery. Suffice it to say that a determination of “learned” as regards a profession is not based on what members of a profession cannot do, but on what they can do. While the inability to prescribe drugs or perform surgery may mean that optometrists are not medical doctors, it does not prevent them from being members of a learned profession. Neither lawyers nor ministers prescribe drugs or perform surgery, yet both the law and the ministry are considered learned professions.

Nor is the lack of legislative pronouncement fatal to the appellants’ claim. It was not the legislature that bestowed such status on doctors, lawyers, and ministers. Furthermore, this Court raised dentistry to membership in the learned profession ranks in Haden v. McCarty. I see no reason why we should shrink from acting here as we did in Haden. I therefore dissent from the majority’s opinion, as I would vote to reverse the lower court opinion and remand it to that court.