author: EMBRY, Justice.

text:
    Curtiss F. COHRAN v. BOOTHBY REALTY COMPANY, a corporation, et al.
    78-417.
    Supreme Court of Alabama.
    Jan. 11, 1980.

      James H. Wettermark of Frank 0. Burge, Jr., Birmingham, for appellant.
    Charles F. Carr of Rives, Peterson, Pet-tus, Conway, Elliott & Small, Birmingham, for appellees.
   EMBRY, Justice.

This appeal by Curtiss F. Cohran, plaintiff below, is from summary judgment entered in favor of Boothby Realty Company, a corporation, and Larkway Gardens Corporation, defendants below. Cohran’s action sought damages for personal injuries allegedly sustained as the proximate result of defendants’ negligence, wantonness, breach of implied warranty, and legal fraud and misrepresentations. We affirm.

Issue

Is a cause of action in tort by a tenant against a landlord cognizable under Alabama law where the tenant sues for personal injuries resulting from an alleged patently defective condition of which the tenant is aware prior to the commencement of a lease?

Facts

An agent of Boothby Realty Company showed Cohran an apartment located in the Larkway Gardens apartment complex. The agent promised Cohran that various repairs would be made to the apartment. One such promised repair was that the windows would be repaired. Cohran subsequently leased the apartment from Larkway, through Boothby as agent. Though Booth-by made various repairs to the apartment, it did not repair the windows.

The lease was for a period of one year. It was extended, under its terms, by holding over beyond its expiration date. On at least one occasion during Cohran’s occupancy, Cohran or his wife complained to Booth-by about the condition of the windows, and Boothby’s agent stated that the necessary repairs would be made; however, the windows were not repaired. Cohran did not threaten to move if the windows were not repaired.

Due to the defective condition of the windows, they could only be opened or closed by pushing or pulling on the window frame. Subsequent to the extension of the lease, Cohran severely injured his arm while attempting to open one of the windows.

The lease contained the following clause:

“Should any of the electrical, water, pliimbing, heating or other equipment belonging to the premises become unserviceable, the Lessor shall have a reasonable time after notification in writing to determine the responsibility and in the event the Lessee, is not liable for repairs, and/or replacement then to have the same repaired within a reasonable time without any liability however, to the Lessee for damage or inconvenience.”

Decision

Cohran makes extensive arguments in brief that exculpatory clauses in standard form residential apartment leases should be declared unenforceable and void as being contrary to public policy. Whether such clauses should be declared void and unenforceable is irrelevant to this appeal and need not be decided. The true question is: can the landlord be held liable for injuries resulting from a patent defect in an apartment which was known to the tenant at the time of the letting?

The defect which Cohran alleges to be present in the instant case is not contended to be a latent defect, or one that was concealed from him. Cohran contends he knew of the alleged defect in the window and unequivocally states in his affidavit that he understood and appreciated the allegedly defective window when he was initially shown the apartment.

Assuming, arguendo, there existed a covenant to repair the windows created by the portion of the lease set out above, or by the oral representations made to Cohran by Boothby’s agent, there can still be no liability on the part of Boothby from injuries caused by a patent defect existing at the time of the letting. This principle of law was established in Alabama as early as 1913 in Anderson v. Robinson, 182 Ala. 615, 62 So. 512 (1913).

In Anderson v. Robinson this court stated:

“In the case of Morgan v. Sheppard, 156 Ala. 403, 47 So. 147, this court by the present writer, discussed the obligation and liability between landlord and tenant, their duties and liability to each other as well as to third persons, and it was there stated, among other things, in speaking of the liability of a landlord for injuries caused by defects in the premises to the tenant, his family, servants, or guests, as distinguished from third persons: ‘The rule, however, of the liability of the landlord for renting premises in such a dangerous condition as to constitute a nuisance, does not exist in favor of the tenant, his servants, guests, or others entering under his title. * * * As to them, in the absence of a covenant to repair, he is only liable for injuries resulting from latent defects, known to him at the time of the leasing, and which he conceals from the tenant. 24 Cyc. 1114, and cases cited in note 50; Thompson on Negligence, §§ 1130, 1131. If the defect is obvious at the time of the letting, the tenant takes possession of the premises as he found them, and the landlord would not be liable for injuries resulting from said obvious defects to the tenant, his family, servants, or guests.’ It may be true that in stating the rule we were overcautious in confining it to cases in which there was no covenant to repair, but we did not hold that such a covenant would change the rule of liability, and expressly pretermitted the question .further on in the opinion in dealing with count four of the complaint in said case. In the case at bar, however, some of the counts set up a covenant to repair when the lease was made and as a part of the consideration of same, but it seems from the great weight of authority that said covenant does not increase the liability of the landlord or change the rule above set forth as to his liability in tort to the tenant, his family, servants, or guests for injuries caused by virtue of defects in the rented premises. In other words, it seems settled by the weight of authority that the landlord is not liable in tort for injuries to said class, whether there be a covenant to repair or not, unless the defects existed at the time of the letting, were known to him, and which he concealed from the tenant. This identical question has been decided in line with the present holding in the case of Davis v. Smith, 26 R.I. 129, 58 A. 630, 66 L.R.A. 478, 3 Ann.Cas. 832, and note; 106 Am.St.Rep. 691, and note. See also, Dustin v. Curtis, 74 N.H. 266, 67 A. 220, 11 L.R.A. (N.S.) 504, 13 Ann.Cas. 169; Miles v. Janvrin, 196 Mass. 431, 82 N.E. 708, 13 L.R.A. (N.S.) 378, 124 Am.St.Rep. 575. The ruling of the Rhode Island court in the case of Davis v. Smith, supra, that a landlord who has agreed with his tenant to make repairs is not liable in tort to a member of the tenant’s family for personal injuries from the landlord’s neglect to repair, accords with the general rule. Shackford v. Coffin, 95 Me. 69, 49 A. 57; Brady v. Klein, 133 Mich. 422, 95 N.W. 557, 62 L.R.A. 909, 103 Am.St.Rep. 455, 2 Ann.Cas. 464; Boden v. Scholtz, 101 App. Div. 1, 91 N.Y.S. 437; Stelz v. Van Dusen, 93 App.Div. 358, 87 N.Y.S. 716; Mitchell v. Stewart, 187 Pa. 217, 40 A. 799; Hedekin v. Gillespie, 33 Ind.App. 650, 72 N.E. 143; Tuttle v. Gilbert Co., 145 Mass. 169, 13 N.E. 465; Collins v. Karatopsky, 36 Ark. 316; Taylor on Landlord & Tenant, 175a; Wood on Landlord & Tenant, 921. This is not only the American but the English rule as well. Courteneay v. Earle, 10 C.B. 73, 70 E.C.L. 73. * * * ” (Emphasis added.) 182 Ala. at 619, 620, 62 So. at 513-514.

This principle of law has been restated in Bevis v. L & L Services, 360 So.2d 296 (1978) (quoting the above emphasized language from Anderson), and in Dunson v. Friedlander Realty, 369 So.2d 792 (Ala.1979) (citing Bevis).

Confusion sometimes arises as to the liability of the landlord for personal injuries caused by defects when there exists a covenant to repair. This confusion results from the oft quoted rule of law: absent a covenant to repair, a landlord is not liable to the tenant’s servants or guests except for injuries resulting from latent defects known to the landlord at the time of the leasing, and which were concealed from the tenant. See, e. g., Bevis, supra; Chambers v. Buettner, 295 Ala. 8, 321 So.2d 650 (1975). The Anderson case clearly explains that the existence of the language, “absent a covenant to repair,” originated in the case of Morgan v. Sheppard, 156 Ala. 403, 47 So. 147 (1908), and was used only to limit the extent of the holding in Morgan. Anderson extended Morgan to hold that a landlord cannot be liable to a tenant, his family, servants or guests for injuries caused by virtue of defects in the rented premises unless the defects were in existence at the time of the letting, were known to the landlord, and concealed from the tenant. Furthermore, Anderson clearly held that a landlord would not be liable for injuries to a tenant caused by a defect known to the tenant at the time of letting.

This case is not of the type referred to in Dunson, supra, where there is a separate contract to repair, made regarding a specific defect, and the promise to repair is made after the tenant threatens to move while occupying under a month to month tenancy. See Adler v. Miller, 218 Ala. 674, 120 So. 153 (1928); Hart v. Coleman, 201 Ala. 345, 78 So. 201 (1917). That line of cases allows a tenant to recover in an action ex contractu for personal injuries resulting from the breach of an express contract, supported by a separate consideration, to repair a specific defect where the injury, resulting from the breach, was within the contemplation of the parties at the time of making the contract. Hart v. Coleman, supra. We further note that this theory of recovery was first enunciated in the Hart case and this court specifically confined the holding to the facts of that case. Also, the later case of Adler v. Miller, supra, reaffirms the Anderson decision by quoting certain language from Anderson concerning the landlord’s liability in tort cases. Neither the allegations of Coh-ran’s complaint nor the facts of this case show or support a cause of action under the ex contractu theory of recovery set forth in Hart. See also, Brown v. Fogarty, 221 Ala. 283, 128 So. 376 (1930); Gulf Electric Co. v. Fried, 218 Ala. 684, 119 So. 685 (1928).

Summary judgment was therefore proper in this case; all of Cohran’s allegations, except the allegation of an implied warranty of habitability which Alabama has not recognized in the case of occupancy under a lease, were in tort for personal injury. The undisputed facts fail to disclose a latent defect known to the landlord at the time of the letting which was concealed from Cob-ran; he admitted he knew of the defect at the time of the letting.

For the reasons stated the judgment is due to be, and is hereby, affirmed.

AFFIRMED.

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


source: Caselaw Access Project

author: MADDOX, Justice.

license: Public Domain

text:
    Charles Neville REESE v. BOARD OF COMMISSIONERS OF the ALABAMA STATE BAR.
    78-519.
    Supreme Court of Alabama.
    Jan. 11, 1980.

      Bibb Allen of London, Yancey, Clark & Allen, Birmingham, for appellant.
    William H. Morrow, Jr., Gen. Counsel for Alabama State Bar, Montgomery, for appel-lee.
    Charles T. Reese, Daleville, amicus curiae.
   MADDOX, Justice.

The Committee on Character and Fitness of the Alabama State Bar refused to certify Charles Neville Reese as a law student. The Board of Bar Commissioners sustained this ruling and Reese appealed to this Court.

In September, 1975, Reese entered Jones Law Institute in Montgomery. Pursuant to Rule 1, Rules Governing Admission to the Alabama State Bar, Reese executed his sworn application for registration as a law student on February 25, 1976, and filed it with the Secretary of the Alabama State Bar on March 1, 1976.

Question (6)(a) of the application reads:

“Have you ever been charged with violating any State or Federal law or City Ordinance? If so, state fully on separate sheet, giving dates, places and outcome. Note: Minor traffic violations need not be shown.”

Reese answered in the affirmative, stating:

“I was charged with driving while intoxicated or under the influence of drugs in Memphis, Tennessee 12/74. I was tried and entered a plea of guilty that same month. The conviction resulted in a six month suspension of my driving privileges, $250.00 fine, four days in jail and mandatory driving classes for one night a week for six weeks.
“In 3/75 charges were lodged against me for disorderly conduct in Memphis, Tennessee. I entered a plea of guilty and was fined $50.00.”

The Committee on Character and Fitness held a meeting on June 28, 1978, and invited Reese to appear, which he did. After the meeting, the Committee declined to certify Reese as a law student. Reese appealed to the Board of Bar Commissioners. A hearing before the Board of Commissioners was postponed and Reese, through his attorney, requested to appear again before the Committee on Character and Fitness. Reese, with counsel, appeared before the Committee on Character and Fitness at a hearing on January 3, 1979.

On February 2, 1979, the Committee on Character and Fitness entered its order, refusing to accept Reese’s registration as a law student, stating that:

“One of the moving considerations in the Committee’s decision was the applicant’s lack of candor in revealing his criminal record. Some offenses were disclosed at the first hearing. Thereafter, the Committee received information of other offenses and at the second hearing, in response to a direct question, the applicant stated that he had made a full disclosure and there were no other offenses. However, when he was confronted with information pertaining to other offenses he admitted them. At the third hearing, applicant disclosed still other offenses.
“The Committee is mindful of the recommendations of Judges and other outstanding members of the Bar.
“However, the Committee finds that the applicant has failed to reasonably satisfy the Committee that he possesses the necessary character and fitness to become a member of this Association.”

Reese appealed this ruling of the Committee to the Board of Commissioners of the Alabama State Bar. The Board of Bar Commissioners sustained the ruling of the Committee on Character and Fitness after a review of the transcript of the proceedings before the Committee on Character and Fitness.

We have reviewed the record, and considered the oral arguments made by counsel for Reese and for the Alabama State Bar, and we find that the refusal of the Alabama State Bar to certify Reese as a law student is due to be reversed. The issues presented and discussed in this opinion are:

(1) What is the standard of review by this Court in cases involving a refusal by the Bar to certify a person as a law student?

(2) What constitutes the “good character” that is required of applicants for registration as law students?

(3) What constitutes a prima facie showing of “good character” required of applicants?

(4) Once an applicant makes a prima fa-cie showing of good character, upon what basis may the Committee on Character and Fitness disapprove an application on the ground that the applicant did not possess the requisite “good character”?

I

We first discuss the standard of review in this case.

At the time Reese made application for registration as a law student, the rules governing admissions provided:

“From the ruling of the Committee on Character and Fitness . . declining to approve the application of an applicant to take the State Bar Examination or making any finding or ruling adverse to any applicant, an appeal shall lie to the Board of Commissioners, if notice of the desire to take such appeal is filed with the Secretary within thirty days after the applicant has been notified of the action of such committee. Such appeal shall be heard and determined de novo at the next regular, adjourned or special meeting of the Board held after the appeal has been taken.” 35 Ala.Lawyer 336 (July 1974).

There are no rules of procedure which govern the manner in which this Court’s jurisdiction is invoked to review the final actions of the Board of Commissioners bf the Alabama State Bar in denying an application for admission. Neither is there any rule which specifies the scope of this Court’s review. This Court previously considered an appeal from the final action of the Board of Bar Commissioners in Ex parte Weinberg, 281 Ala. 200, 201 So.2d 38 (1967). There, this Court, after an independent review of the record, affirmed the judgment of both the Committee on Character and Fitness and the Board of Bar Commissioners.

In the case before us, the Board of Bar Commissioners specifically ruled that no additional testimony would be taken in the case and that the Board of Bar Commissioners would only hear oral arguments by and on behalf of the applicant and by the general counsel of the Alabama State Bar. The Board of Bar Commissioners made its decision to affirm the ruling of the Committee on Character and Fitness after considering the record which had been established and furnished to it. In view of this posture of the case, we determine that the proper scope of review of this Court is on the record which was available to the Board of Bar Commissioners. Consequently, we do not indulge in any presumption in favor of the findings by the Committee on Character and Fitness.

II

It seems apparent from the order of the Committee on Character and Fitness that “one of the moving considerations in the Committee’s decision was the applicant’s lack of candor in revealing his criminal record.” (Emphasis added). The record does show that as a result of an investigation by the Committee on Character and Fitness and two hearings before the Committee on June 28,1978, and January 3,1979, at which Reese appeared, was interrogated and testified, that other incidents than those listed by him on his application came to light where Reese was apprehended by law enforcement officers. Some of these incidents resulted in formal charges, but others did not. On the other hand, the record does show that even though Reese did not list the other incidents when he filed his application, he appeared before the Committee and answered every question any member of the Committee asked him concerning every incident, whether the incident should have been listed in answer to question (6)(a) or not.

The Committee on Character and Fitness noted that it was “mindful of the recommendations of judges and other outstanding members of the Bar,” but apparently, the Committee did not think that these recommendations outweighed the Committee’s finding of Reese’s “lack of candor in revealing his criminal record.” The record contains letters from twenty-eight judges and attorneys and citizens and many of those who wrote letters on Reese’s behalf indicated that they were familiar with his past “brushes with the law.” The contents of these letters are unimpeached. The record does contain one letter from “a concerned citizen” and one from a former secretary of Reese’s father which attack his good character and there is an affidavit in the record by an individual who stated that Reese had violated the law while a student at Jones Law Institute. If the Committee on Character and Fitness considered these communications, there is no indication in the record that Reese was afforded an adequate opportunity to cross-examine the individuals who made these assertions. It should be noted, however, that the Bar does not appear to justify its refusal to certify Reese on the basis of these derogatory letters.

The Bar’s position, succinctly stated, seems to be that Reese’s failure to list the incidents in his original sworn application “fully justifies the action of the Committee on Character and Fitness and the Board of Commissioners.” We must respectfully disagree.

The Alabama State Bar, as an arm of this Court, can legitimately require high standards qf qualifications, such as good moral character or proficiency in the law, before it admits an applicant to the Bar, but any qualification must have a rational connection with the applicant’s fitness and capacity to practice law. Schware v. Board of Bar Examiners, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796 (1957).

That the Bar may require applicants to disclose prior conduct which would have a rational connection or bearing upon an applicant’s “good moral character” is not questioned. Question (6)(a) is obviously designed to elicit from the applicant information which would allow the Bar to make an honest evaluation of the applicant’s good moral character. But the critical question is: What is “good moral character?” The Supreme Court of the United States, in Konigsberg v. State Bar of California, 353 U.S. 252, 77 S.Ct. 722, 1 L.Ed.2d 810 (1957), discussed the matter of good character:

“A. Good Moral Character. — The term ‘good moral character’ has long been used as a qualification for membership in the Bar and has served a useful purpose in this respect. However, the term, by itself, is unusually ambiguous. It can be defined in an almost unlimited number of ways for any definition will necessarily reflect the attitudes, experiences, and prejudices of the definer. Such a vague qualification, which is easily adapted to fit personal views and predilections, can be a dangerous instrument for arbitrary and discriminatory denial of the right to practice law.
“While we do not have the benefit of a definition of ‘good moral character’ by the California Supreme Court in this case, counsel for the State tells us that the definition of that term adopted in California ‘stresses elements of honesty, fairness and respect for the rights of others and for the laws of the state and nation.’ The decisions of California courts cited here do not support so broad a definition as claimed by counsel. These cases instead appear to define ‘good moral character’ in terms of an absence of proven conduct or acts which have been historically considered as manifestations of ‘moral turpitude.’ To illustrate, California has held that an applicant did not have good character who had been convicted of forgery and had practiced law without a license, or who had obtained money by false representations and had committed fraud upon a court, or who had submitted false affidavits to the Committee along with his application for admission. It should be emphasized that neither the definition proposed by counsel nor those appearing in the California cases equates unorthodox political beliefs or membership in lawful political parties with bad moral character. Assuming for purposes of this case that counsel’s broad definition of ‘good moral character’ is the one adopted in California, the question is whether on the whole record a reasonable man could fairly find that there were substantial doubts about Konigsberg’s ‘honesty, fairness and respect for the rights of others and for the laws of the state and nation.’ ”

The rules governing admissions in effect at the time Reese applied for registration in 1976, provided:

“The burden is on the applicant to establish to the reasonable satisfaction of a majority of the said committee that the applicant possesses such character and qualifications as to justify the applicant’s admission to the Bar and qualify the applicant to perform the duties of an attorney and counselor at law.”

Applying the definition of “good moral character” in Konigsberg as “an absence of proven conduct or acts which have been historically considered as manifestations of ‘moral turpitude,’ ” we find Reese satisfied his burden of proof when he submitted the several letters of recommendations from judges and lawyers.

The right to practice law is a valuable property right, which can be denied only by due process of law. Of course, a prerequisite to the admission to the practice of law is that the applicant must possess good moral character. In re Stephenson, 243 Ala. 342, 10 So.2d 1 (1942). Here, Reese has produced evidence of good character. The Bar has not rebutted that prima facie showing by presenting competent evidence which would prove that Reese was guilty of “proven conduct or acts which have been historically considered as manifestations of ‘moral turpitude.’ ” Assuming, however, that Reese had been guilty of proven conduct or acts which have been historically considered as manifestations of “moral turpitude,” that fact would not necessarily foreclose his right to certification. This Court judicially knows that persons who have been disbarred because of their conviction of a crime involving moral turpitude have later been reinstated to the practice of law.

General Counsel for the Bar candidly admits that prior misconduct does not forever bar an applicant who has demonstrated a change of character. In brief, he states:

“It would be inappropriate and speculative to comment upon proper action of the Committee on Character and Fitness should Reese, at some future date, file another Application for Registration as Law Student after a period of good behavior and perhaps a showing of affirmative acts demonstrating that he possesses the character and qualifications for admission.”

Based on the record before us, we cannot fairly find that there was a substantial doubt about Reese’s “honesty, fairness and respect for the rights of others and for the laws of the state and nation.” Konigsberg.

The decision of the Board of Bar Commissioners is due to be reversed and the matter remanded for further proceedings not inconsistent with this opinion.

REVERSED AND REMANDED.

BLOODWORTH, FAULKNER, JONES, SHORES, EMBRY and BEATTY, JJ., concur.

TORBERT, C. J., concurs in the result.

      . The brief of the general counsel for the Bar discusses these incidents as follows:
      “At the January 3, 1979 hearing the following facts were revealed:
      “(1) October, 1965 Reese was arrested as a ‘runaway’. He states that he may have been charged with suspicion of burglary. He was held for one night and sent back to Alabama.
      “(2) January, 1967 Reese was arrested for ‘hopping a freight train’. He testified that no charges were filed and he was released the next day.
      “(3) January, 1967 Reese was arrested and charged with disorderly conduct in Tijuana, Mexico. He testified that he was found guilty, fined $24.00 or sixteen days in jail and that he spent four days in jail.
      “(4) In January, 1967 Reese was arrested on suspicion of burglary and contributing to the delinquency of a minor. This occurred in San Diego, California. Reese testified that he disclosed this to the Committee on Character and Fitness at a prior meeting and that no formal charges were ever filed against him.
      “(5) June, 1967 Reese was arrested for hitchhiking in Flagstaff, Arizona. He was fined $24.00 and sentenced to fourteen days in jail. Reese testified that he recalls spending four days in jail and that the police records indicating he was jailed fourteen days are in error.
      “(6) August, 1967 Reese was arrested at Morro Bay, California for possession of Marijuana. At a hearing on this charge the evidence was suppressed and Reese was released. He testified that he revealed this to the Committee on Character and Fitness at a prior hearing.
      “(7) December, 1973 Reese was arrested in Memphis, Tennessee for driving while intoxicated. He testified that he forfeited a bond of $250.00. He states that he did not reveal this initially because he did not know the disposition of the case. However, upon learning of the disposition he testified that he sent the Bar Association a copy of the Clerk’s record in this matter.

        “(8) Reese testified that in January, 1974 he was arrested for disorderly conduct, entered a plea of guilty and was fined $55.00.
      “(9) January, 1973 Reese was arrested in Greenville, Tennessee for possessing an open can of beer in a moving vehicle and fined $25.00.
      “(10) November, 1974 Reese was arrested in Memphis, Tennessee on suspicion of narcotics possession. He testifies that he was released and no charges were preferred.
      “(11) At some time in 1975 Reese was arrested in Destin, Florida for driving down the wrong side of the road. He states he entered a plea of nolo contendere and paid a fine of $24.00. He further testifies that the matter was ultimately dismissed upon motion of the City when the complainant failed to appear in Court. [An incorrect statement of the evidence.]
      “(12) In May, 1977 Reese was arrested in Level Plains, Alabama on a citizen’s complaint for disturbing the peace. The complainant failed to appear in court and the matter was dismissed. This instance was disclosed to the Committee on Character and .Fitness by letter.
      “(13) June, 1978 Reese was arrested for driving with a broken headlight. This matter was ultimately dismissed without formal charges.”

      . A review of the incidents shown in footnote 1 indicates that they involved “hopping a freight train,” being arrested for “runaway” and suspicion, not charge of burglary, being arrested for disorderly conduct in Mexico (question (6)(a) reads: “charged with violating any state or federal law or city ordinance), charged with suspicion (not a violation) of burglary and contributing to the delinquency of a minor, charged with “hitchhiking” (application form states “minor traffic violation need not be reported”).

      . An application for reinstatement of an attorney, after the judgment of disbarment has become final, must be treated as an application for admission to the practice. In re Stephenson, 243 Ala. 342, 10 So.2d 1 (1942).


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

text:
    Ted GIDEON and Rebecca L. Gideon v. ALABAMA STATE ETHICS COMMISSION et al.
    78-527.
    Supreme Court of Alabama.
    Jan. 11, 1980.

      Fred Blanton, Birmingham, for appellants.
    Charles A. Graddick, Atty. Gen. and Rosa G. Hamlett, Asst. Atty. Gen., for appellees.
   TORBERT, Chief Justice.

, The plaintiffs-appellants, Rebecca Gideon and her husband, Ted Gideon, filed suit seeking declaratory relief as to the application of the State Ethics Act, Code 1975, § 36-25-1, et seq. Rebecca Gideon is employed as a Birmingham police officer. After a recent salary increase to an amount in excess of $15,000 annually, Ms. Gideon became subject to the financial reporting and disclosure provisions applicable under the Act to all public employees. The Act, defining “Public Employee,” reads:

Any employee of state, county or municipal governments who has administrative and discretionary authority for the receipt or expenditures of publie funds or who earns in excess of $15,000.00 annually, but shall not include those persons who are primarily engaged in teaching duties in all schools, colleges, and universities in the state. Code 1975, § 36-25-1(9).

Ted Gideon is a practicing attorney and, as the spouse of a public employee under the Act, his wife would be required to file a statement of his economic interests. Code 1975, § 36-25-14.

The Gideons contend that the Act, as applied to them, violates their rights of due process and equal protection, and also invades their constitutional right of privacy. From a summary judgment against them, they appeal. We affirm.

The issues presented, which have not heretofore been decided, are:

1. Whether the Act is unconstitutional insofar as it applies to the class of governmental employees who earn in excess of $15,000 annually; and

2. Whether the Act is unconstitutional insofar as it compels financial disclosure on the part of the spouses and dependents of persons primarily subject to the Act.

ISSUE NUMBER ONE

Issue number one is best resolved by approaching it from the three constitutional challenges which appellants make to the $15,000 threshold of Code 1975, § 36-25-1(9).

Sub-Issue A.

Does the Act, which requires financial disclosure by certain public employees (as defined in Code 1975, § 36-25-1(9)), invade a “zone of privacy” of those employees which is protected by the United States Constitution?

The United States Supreme Court has never held that the Constitution guarantees an absolute right of privacy; rather that Court has recognized certain “zones of privacy” protected by the penumbra emanating from the First, Fourth, Fifth, Ninth and Fourteenth Amendments. The question with which we are presented is not whether the appellants’ right of privacy has been invaded by the disclosure requirements; but whether the financial interests of a public employee are protected by a “zone of privacy.” In each case in which the United States Supreme Court recognized a “zone of privacy,” the interests invaded were not financial, but familial and personal, e. g., abortion, contraceptives, marriage. As stated by Justice Rehnquist in Paul v. Davis, 424 U.S. 693, at 712, 713, 96 S.Ct. 1155, 1166, 47 L.Ed.2d 405 (1975):

While there is no “right of privacy” found in any specific guarantee of the Constitution, the Court has recognized that “zones of privacy” may be created by more specific constitutional guarantees and thereby impose limits upon government power. See Roe v. Wade, 410 U.S. 113, 152-153, 93 S.Ct. 705, 726, 35 L.Ed.2d 147, 176-178 (1973). Respondent’s case, however, comes within none of these areas. He does not seek to suppress evidence seized in the course of an unreasonable search. See Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576, 581 (1967); Terry v. Ohio, 392 U.S. 1, 8-9, 88 S.Ct. 1868, 1872-1873, 20 L.Ed.2d 889, 898 (1968). And our other “right of privacy” cases, while defying categorical description, deal generally with substantive aspects of the Fourteenth Amendment. In Roe the Court pointed out that the- personal rights found in this guarantee of personal privacy must be limited to those which are “fundamental” or “implicit in the concept of ordered liberty” as described in Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 152, 82 L.Ed. 288, 292 (1937). The activities detailed as being within this definition were ones very different from that for which respondent claims constitutional protection — matters relating to marriage, procreation, contraception, family relationships, and child rearing and education. In these areas it has been held that there are limitations on the State’s power to substantively regulate conduct.

The Illinois Supreme Court, when presented with the issue before this court, held:

The notion that a person’s ownership of property, real or personal, lies somehow within a protected zone of privacy, is new. For more than a hundred years the revenue acts of this State have provided, and they still provide, that schedules for the listing, under oath, of personal property for tax purposes shall be furnished to each person owning property subject to taxation.
. We do not deal in this case with the most intimate relationships of husband and wife or with an effort by the State to control their decisions as to whether and when to have their children. We deal rather with a requirement that the financial affairs of persons who are paid by the public and who occupy positions of high public trust be disclosed.
We conclude as did the Supreme Court of Washington in Fritz v. Gorton (1974), 83 Wash.2d 275, 517 P.2d 911, appeal dismissed for want of substantial Federal question (1974), 417 U.S. 902, 94 S.Ct. 2596, 41 L.Ed.2d 208, that financial disclosures required of State employees do not deprive them of their right of privacy guaranteed by the Constitution of the United States.

Illinois State Employees Association v. Walker, 57 Ill.2d 512, 315 N.E.2d 9 (1974).

The Fifth Circuit Court of Appeals upheld the constitutionality of Florida’s Sunshine Amendment which required financial disclosure by elected officials, Plante v. Gonzalez, 575 F.2d 1119 (5th Cir. 1978); and the constitutionality of the Federal Ethics in Government Act of 1978, Duplantier v. United States, 606 F.2d 654 (5th Cir. 1979); under challenges which argued that those acts violated the right of privacy of the individuals involved. We recognize that the United States Supreme Court has applied the strict scrutiny test to financial disclosures, thus seemingly according some protection to such disclosures. Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1975). A close examination of that case, however, reveals that the protection was accorded, not to financial disclosures in general, but only where they encroached on First Amendment rights.

Without deciding whether all financial affairs of all public employees are protected by a zone of privacy, we hold in light of the legitimate state interests fostered by the Act that the disclosures required in the instant case do not violate the United States Constitution by impinging on the employees’ financial privacy. For these reasons the statute passes constitutional muster as to Sub-Issue A.

Sub-Issue B.

Does Code 1975, § 36-25-1(9), applying only to those public employees who earn more than $15,000 annually, violate the Equal Protection Clause or Due Process Clause of the United States Constitution or Alabama Constitution?

The dissent states that “privacy challenges are more correctly analyzed as requests for due process rather than equal protection,” citing Justice Stewart’s concurrence in Zablocki v. Redhail, 434 U.S. 374, 98 S.Ct. 673, 54 L.Ed.2d 618 (1978). Zablocki is inapposite to the instant case because Zablocki involved a fundamental right (the right to marry) and the instant ease involves no such right.

The United States Supreme Court has established two tests to determine whether a statute draws a classification which violates the Equal Protection Clause of the Fourteenth Amendment or whether that statute denies a person substantive due process of law. The Court applies the “strict scrutiny test” where the classification is based on “suspect criteria” or affects some fundamental right. The traditional indicia of a suspect class are: (1) A class determined by characteristics which are solely an accident of birth, Frontiero v. Richardson, 411 U.S. 677, 686, 93 S.Ct. 1764, 1770, 36 L.Ed.2d 583 (1972); and (2) A class “saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritari-an political process,” San Antonio School District v. Rodriguez, 411 U.S. 1, 28, 93 S.Ct. 1278, 1294, 36 L.Ed.2d 16 (1972). The classifications which the United States Supreme Court has held are suspect have been drawn along racial lines, McLaughlin v. Florida, 379 U.S. 184, 85 S.Ct. 283, 13 L.Ed.2d 222 (1964), or were based on an individual’s alienage, Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971). The Court has recognized as fundamental, the right to vote and to associate freely, Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968); the right to travel interstate, Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969); Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972); and those familial rights referred to supra which fall within a recognized “zone of privacy.” Since the instant case involves neither a “suspect class” nor a “fundamental right,” the rational basis test is the proper test to apply to either a substantive due process challenge or an equal protection challenge. Under the rational basis test the Court asks: (a) Whether the classification furthers a proper governmental purpose, and (b) whether the classification is rationally related to that purpose. In Buckley v. Valeo, supra, the Supreme Court recognized two proper governmental purposes for disclosure statutes: (1) They deter actual corruption and avoid the appearance of corruption, and (2) disclosure requirements are an essential means of gathering the data necessary to detect violations of the law. Buckley v. Valeo, 424 U.S. 1 at 67, 68, 96 S.Ct. 612 at 657, 658, 46 L.Ed.2d 659 (1975). Clearly, the disclosure of a public employee’s economic interests is rationally related to the two purposes above.

On November 19, 1979, the Fifth Circuit Court of Appeals used the same analysis in upholding the Federal Ethics in Government Act of 1978 under equal protection and due process challenges. Duplantier v. United States, 606 F.2d 654 (5th Cir. 1979). That case is instructive in aiding us to decide the instant case because the challenged act in Duplantier, supra, was very much like the act in question in the instant case. The Fifth Circuit took note that the act before it drew no suspect classifications, impinged on no fundamental rights, and applied the rational basis test holding the disclosure requirement rationally related to the purposes of the act. The Court took note of those legislative purposes referred to in Buckley v. Valeo, supra, and suggested a possible third purpose for disclosure acts, i. e., promoting public confidence in government, and in the integrity of public employees.

The United States Supreme Court has recently applied a third test in cases involving disclosure statutes, i. e., balancing the government’s interests against the interests of the individuals affected. Nixon v. Administrator of General Services, 433 U.S. 425, 97 S.Ct. 2777, 53 L.Ed.2d 867 (1977); and Whalen v. Roe, 429 U.S. 589, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977). The Fifth Circuit has also applied this balancing test in Plante v. Gonzalez, 575 F.2d 1119 (5th Cir. 1978), where the constitutionality of Florida’s Sunshine Amendment, which required financial disclosure of elected officials, was upheld.

An ingredient which must be factored into the balancing test is the fact that the individuals involved in the instant case are public employees. Justice Knight, speaking for this Court in Heck v. Hall, 238 Ala. 274, 190 So. 280 (1939), a case which involved a constitutional challenge to the Merit System Act, held that the legislature has authority to impose qualifications on those who aspire to public employment.

A careful reading of the Constitution of Alabama will disclose nothing to indicate that the legislature, in dealing with offices and employments of its creation, did not possess a free hand in imposing qualifications upon those who would aspire to appointment to such offices and employments. The right to create necessarily carried with it the right to prescribe lawful qualifications, to the end that the state should be served only by capable and efficient public servants.

Heck v. Hall, 238 Ala. 274 at 280, 190 So. 280 at 284 (emphasis supplied). For the reasons assigned in that opinion, we would hold that the legislature has the authority to require as a condition of employment that those public employees who occupy a position of public trust must disclose their financial status. We recognize that the means chosen by the legislature to reach those public employees who occupy a position of public trust (the $15,000 annual salary threshold) will not include every public employee entrusted with a high level of responsibility, nor will it exclude every public employee entrusted with less responsibility. In other words the means chosen does not exactly meet the purpose of the Act. However, it is not necessary for the legislative means to exactly fit the legislative purpose. All that is required is that the means chosen by the legislature must be rationally related to its legitimate purpose. We hold that the $15,000 threshold is a rational means for the legislature to use to reach those public employees entrusted with the most responsibility. Thus, under the balancing test, the scales tip in the legislature’s direction, and the classification passes muster under the equal protection challenge.

ISSUE NUMBER TWO

Is the Act unconstitutional insofar as it compels financial disclosure by an employee primarily subject to the Act of the financial interests of his or her spouse?

Again, because this portion of the statute draws no suspect classification and impinges on no fundamental rights, the constitutionality of the Act insofar as it applies to the spouses of those primarily subject to the Act must be determined by applying the rational basis test. Applying that test, we hold that the Act’s application to spouses and dependents is rationally related to the proper legislative purposes of preventing and detecting corruption among public employees and fostering the public’s confidence in its government. Not only is the means of accomplishing the legislative purpose (f. e., disclosure by an employee of his or her spouse’s financial interests) reasonable, but it is necessary to make the Act effective. Absent a safe-guard «provision the purposes of the Act could be thwarted by a public officer or employee concealing his economic interests by placing them in his spouse’s name.

For the foregoing reasons, we hold that Code 1975, § 36-25-1, et seq., passes constitutional muster under the instant challenges.

AFFIRMED.

BLOODWORTH, MADDOX, ALMON and SHORES, JJ., concur.

BEATTY, J., with whom EMBRY, J., joins, concurs specially.

JONES, J., with whom FAULKNER, J., joins, dissents.

BEATTY, Justice

(concurring specially):

The constitutionality of the questioned provision of the Ethics Act hinges upon “whether [it] is a rational means of advancing a valid state interest.” If the regulation is “reasonably related to a valid government interest,” it must be allowed to stand. Under that premise Code of 1975, § 36-25-1(9) is constitutional.

This Court presumes that statutes duly enacted by the legislature are constitutional and will not hold them unconstitutional unless convinced beyond a reasonable doubt of their unconstitutionality. Alabama Dairy Commission v. Food Giant, Inc., Ala., 357 So.2d 139 (1978). The party challenging the constitutionality of a statute has the burden of establishing its invalidity. Jefferson County Board of Health v. City of Bessemer, 293 Ala. 237, 301 So.2d 551 (1974). In my opinion, plaintiffs have not established beyond a reasonable doubt that § 36-25-1(9), Code, is not reasonably calculated to further a legitimate state objective.

The legislature’s objective — preventing impropriety or the appearance thereof on the part of public servants in positions of responsibility — is admittedly legitimate. The question, then, is whether requiring financial disclosure on the part of public employees earning more than $15,000 annually bears some rational relationship to the attainment of that end. In my opinion it does; for as the dissent observes, “common experience bears out the rule that the level of salary is usually commensurate with that of responsibility.” A police officer with sufficient experience to reach the $15,000 salary level is one whose position inspires more public trust and confidence than an officer who is new on the job. The legislatively-created category is therefore at least rationally related to the advancement of the legislature’s valid objective. That is the only relationship that is constitutionally required. I would affirm.

EMBRY, J., concurs.

JONES, Justice

(dissenting):

I respectfully dissent.

In Comer v. City of Mobile, 337 So.2d 742 (Ala.1976), this Court held the financial disclosure provisions of the Alabama State Ethics Act to be constitutional insofar as they applied to “Public Officials” who are defined under the Act to include:

“[A]ny elected official . . . and any person appointed under state, county, or municipal law to an office where . such person has . . . authority for the receipt or expenditure of public funds and any boards, commissions, committees, authorities or councils having jurisdiction with respect thereto . . § 36-25-1(11).

Rebecca Gideon is neither an elected official nor does she hold appointment to any of the bodies enumerated above; instead, she is a governmental employee. Further, it is not disputed that Ms. Gideon, as a police officer, has no authority for the “receipt or expenditure of public funds.” The applicability of the Act to both her and her spouse arises solely from her status as a municipal employee earning in excess of $15,000 annually.

The right of privacy has been recognized as a fundamental freedom from intrusion by government derived from the “penumbra” or shadow of several provisions of the Bill of Rights and the Due Process Clause of the Fourteenth Amendment. Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965).

The Supreme Court emphasized in Roe v. Wade, 410 U.S. 113, 152, 93 S.Ct. 705, 726, 35 L.Ed.2d 147 (1973), however, that only personal rights which can be deemed “fundamental” or “implicit in the concept of ordered liberty” are included in the constitutional guarantee of personal privacy. These “fundamental” areas of privacy have been characterized as involving matters relating to marriage, procreation, contraception, family relationships, and child rearing and education. In these areas it has been held that there are limitations on the States’ power to substantively regulate conduct.” Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976). See also, Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973). In these fundamental areas of privacy, the Supreme Court has applied something approaching an equal protection “compelling state interest” test and has carefully examined state actions to determine whether they were the least restrictive means to reach a compelling goal.

Though it appears the United States Supreme Court has yet to extend privacy as a fundamental right much beyond the context of intimate human relations, Mr. Justice Powell of that Court has stated:

“Financial transactions can reveal much about a person’s activities, associations, and beliefs. At some point, governmental intrusion upon these areas would implicate legitimate expectations of privacy.” California Bankers Association v. Shultz, 416 U.S. 21, 78, 94 S.Ct. 1494, 1526, 39 L.Ed.2d 812 (1974) (Powell, J., concurring, joined in by Blackmun, J.).

This language was quoted with approval by the majority of the Court in Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976).

“Moreover, the invasion of privacy of belief may be as great when the information sought concerns the giving and spending of money as when it concerns the joining of organizations, for ‘[financial transactions can reveal much about a person’s- activities, associations, and beliefs.’ ” 424 U.S. at 66, 96 S.Ct. at 657.

The implication is clear that financial privacy, if not fundamental, is at least important as an area to be protected against unwarranted and arbitrary government intrusion. That protecting the confidentiality of a person’s financial matters is important is without doubt; it is also without doubt that this interest has not yet come to be regarded as “fundamental.” Moreover, to subject financial disclosure laws to the same strict scrutiny accorded to laws impinging on rights arising out of the context of intimate human relations would draw into question many common forms of regulation involving disclosure.

Therefore, the interests involved here are more properly subject to the balancing test common to Fourteenth Amendment due process claims. The Fourteenth Amendment of the Federal Constitution, as well as the due process provisions of the Constitution of Alabama, is a general prohibition against arbitrary and unreasonable governmental action. It stands for the proposition that, when the government acts, it must act in a manner which is neither arbitrary nor unreasonable. The constitutionality of the Act in the posture in which it is raised here will be determined by comparing the interests served by the Act with those interests against which it impinges.

The Gideons challenge the Act, as it applies to them, on both equal protection and due process grounds. In many cases, it makes little difference which clause of the Fourteenth Amendment is used to test the statute in question. Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954). The question which is raised generally by Fourteenth Amendment challenges is whether the statute in question is a rational means of advancing a valid state interest. Therefore, a regulation not reasonably related to a valid government interest cannot withstand a due process challenge, and, similarly, one which arbitrarily divides citizens into different classes violates the Equal Protection Clause of the Amendment. While due process and equal protection arguments may often be transformed into each other so as to include the same standard of review under either characterization, there is nevertheless some value in maintaining the conceptual distinction between the two, and privacy challenges are more correctly analyzed as requests for due process rather than equal protection. See Zablocki v. Redhail, 434 U.S. 374, 98 S.Ct. 673, 54 L.Ed.2d 618 (1978), (Justice Stewart, concurring in the judgment).

In the case before us, therefore, the legitimate public interest sought to be advanced by the Act must be considered in balance with the competing interest of the Gideons in maintaining their financial privacy in order to determine whether the Act, as applied to them, violates their constitutional right of due process. There can be little question that there exists a significant and legitimate interest of the public to demand financial disclosure from those public officials and employees who occupy positions of responsibility in government.

In addition to this State (see Comer v. City of Mobile, supra), financial disclosure statutes and regulations have been sustained, in principle, in the states of Washington, Illinois, Wisconsin, Maryland, New York, Florida, Minnesota, New Jersey and California. See Fritz v. Gorton, 83 Wash.2d 275, 517 P.2d 911 (1974), app. dism’d, 417 U.S. 902, 94 S.Ct. 2596, 41 L.Ed.2d 208 (1974); Stein v. Howlett, 52 Ill.2d 570, 289 N.E.2d 409 (1972), app. dism’d, 412 U.S. 925, 93 S.Ct. 2750, 37 L.Ed.2d 152 (1973); Montgomery County v. Walsh, 274 Md. 502, 336 A.2d 97 (1975), app. dism’d, 424 U.S. 901, 96 S.Ct. 1091, 47 L.Ed.2d 306 (1976); Evans v. Carey, 53 A.D.2d 109, 385 N.Y.S.2d 965 (1976), aff’d, 40 N.Y.2d 1008, 391 N.Y.S.2d 393, 359 N.E.2d 983 (1976); Goldtrap v. Askew, 334 So.2d 20 (Fla.1976); Illinois State Employees Ass’n. v. Walker, 57 Ill.2d 512, 315 N.E.2d 9 (1974), cert. den. sub nom. Troopers Lodge No. 41 v. Walker, 419 U.S. 1058, 95 S.Ct. 642, 42 L.Ed.2d 656 (1974); In re Kading, 70 Wis.2d 508, 235 N.W.2d 409 (1976); Klaus v. Minnesota Ethics Comm’n, 309 Minn. 430, 244 N.W.2d 672 (1976); Kenny v. Byrne, 144 N.J.Super. 243, 365 A.2d 211 (App.Div.1976); City of Carmel-by-the-Sea v. Young, 2 Cal.3d 259, 85 Cal.Rptr. 1, 466 P.2d 225 (1970); County of Nevada v. MacMillen, 11 Cal.3d 662, 114 Cal.Rptr. 345, 522 P.2d 1345 (1974). It is interesting to note that the two state courts that did strike down disclosure laws for privacy reasons struck down laws that applied to local employees and minor officials as well as high state officials. See, City of Carmel-by-the-Sea, supra; Advisory Opinion on Constitutionality of 1975 PA 227 (Questions 2-10), 396 Mich. 465, 242 N.W.2d 3 (1976). On the other hand, financial disclosure statutes and regulations applicable to both public officials and public employees have been upheld in Illinois, Maryland, New York, and New Jersey.

This Court has already determined Alabama’s state ethics law to be constitutional as it applies to elected officials or persons appointed to state, county, or municipal office who have authority for the receipt or expenditure of public funds. Comer v. City of Mobile, supra. It would seem to follow, then, that the Ethics Act is also constitutional as it applies to state, county, and municipal employees who have “administrative and discretionary authority for the receipt or expenditures of public funds.” The legitimate public interest which is served by compelling financial disclosure, together with the rationale which makes such disclosure constitutionally valid, applies equally to elected and appointed officials having authority over public funds and to government employees possessed of the same authority. The challenged provision of the statute goes further, however, to require financial disclosure by state, county, and municipal employees who merely earn in excess of $15,000 annually, regardless of whether such employees have any authority with respect to public funds. §§ 36-25-1(9) and 36-25-14, Ala.Code 1975.

The precise question for determination before us can be formulated as follows: Is a legitimate public interest advanced by a statute which compels financial disclosure by public employees on the basis of salary alone? The Illinois statute litigated in Illinois State Employees Ass’n v. Walker, supra, was just such a statute. In that case, the Supreme Court of Illinois upheld the provision as embracing “that relatively small percentage of all employees of the State who occupy the most responsible positions.” Illinois State Employees Ass’n v. Walker, 57 Ill.2d at 520, 315 N.E.2d at 13. The Illinois case was subsequently appealed to the United States Supreme Court on a writ of certiorari, and Mr. Justice Douglas, concurring in the denial of certiorari, wrote that the State has “an undeniably strong interest in placing beyond question the integrity of its public service.” Troopers Lodge No. 41 v. Walker, supra, 419 U.S. at 1059, 95 S.Ct. at 643. Mr. Justice Douglas’s statement can be elaborated upon by adding that ethics legislation, in order to create a climate of honest government perceptible to, the public at large, seeks not only to eliminate actual wrongdoing and conflicts of interests but the appearance of impropriety and conflict as well. Undoubtedly, the State has a valid interest, on behalf of its citizens, in ensuring that its public officials and employees conduct public business with integrity and honesty and with no conflict between their private interests and the public trust which they hold. It is appropriate, therefore, that ethics legislation be aimed not only at public officials and employees having express authority over public funds but at certain categories of public employees and civil servants in high positions of responsibility as well.

To the above it must be added, however, that the State has no legitimate interest, which would withstand due process scrutiny, in extending financial disclosure requirements to every public employee in every situation. The competing interest of citizens in maintaining the privacy of their finances compels that a distinction be drawn between public employees at large and public employees who hold positions of particular responsibility. This distinction is rationally made on the basis of salary scale since common experience bears out the rule that the level of salary is usually commensurate with that of responsibility.

As already noted above, the Illinois Court, in Illinois State Employees Ass’n. v. Walker, supra, 57 Ill.2d at 520, 315 N.E.2d at 13, upheld that State’s statute requiring financial disclosure by all state employees earning at least $20,000 per year on the basis that the standard embraced a “relatively small percentage of all employees of the State who occupy the most responsible positions.” Here, however, the State has failed to make a similar showing that the salary amount presently specified in the statute will reach only a small percentage of public employees who hold the most responsible positions. To the contrary, I would take judicial notice that the $15,000 amount currently set by the statute embraces a wide range of public employees. Indeed, Rebecca Gideon was not originally subject to the Act, but became so subject after annual and merit increases, even though her position and responsibilities remain the same. In this respect, then, the Act bears no reasonable relationship to a legitimate end of the State in preventing impropriety or the appearance thereof on the part of public servants in high positions of responsibility.

I would hold, therefore, that, with respect to the provision in the Act which compels financial disclosure by all employees earning in excess of $15,000 'annually, the statute is arbitrary and thus violates the right of due process — under both the Federal Constitution and the Constitution of Alabama — of those persons who, by virtue of this provision alone, are presently subject to it. As a further clarification, I do not reject in principle that financial disclosure by public employees may be compelled under the Act on the basis of salary alone; I merely would hold that whatever salary scale is fixed by statute must be reasonably calculated to reach, more or less, just that class of public employees for whom compulsory disclosure is rationally related to a legitimate public interest.

It seems clear that if due process guarantees have a field of operation to protect the financial privacy of a State Highway Department “water boy,” then its protective shield ought to extend to the instant city employee and her husband.

FAULKNER, J., concurs.

      . Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965); Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961); Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972).

      . Ibid.

      . “Each person who receives $20,000 or more per year from the State.” Illinois State Employees Ass’n v. Walker, supra.

      . “[A]ny other official, employee or appointee” where disclosure is determined by the designated authority as “desirable to promote the trust and confidence of the citizens of the County . Montgomery County v. Walsh, supra.

      . Any employee earning $30,000 or more per year.” Evans v. Carey, supra.

      . “[C]ertain employees of the Executive Branch.” Kenny v. Byrne, supra.


author: BLOODWORTH, Justice.

text:
    BALBOA INSURANCE COMPANY, a corporation v. SIPPIAL ELECTRIC COMPANY.
    78-565.
    Supreme Court of Alabama.
    Jan. 11, 1980.
    Robert B. Huie, Birmingham, for appellant.
    Rick A. Williams, Thomas T. Gallion, III, Montgomery, for appellee.
   BLOODWORTH, Justice.

This is an appeal from a trial court order denying Balboa Insurance Company’s motion to set aside an order “re-entering” judgment against it. We reverse and remand, holding there was no jurisdiction to enter judgment against Balboa.

Isaac Bracy, d/b/a Bracy Construction Company (Bracy), was the general contractor for work performed at the Veterans Administration Hospital in Tuskegee, Alabama. Sippial Electric Company (Sippial) was a subcontractor on the same project. Balboa Insurance Company (Balboa) provided the payment and performance bonds for the project, Bracy being the principal on the bonds.

Sippial filed suit against Bracy in September 1976, claiming a balance due on its subcontract with Bracy. Bracy filed a counterclaim. Sippial then amended its complaint, adding Elmer Tallant Agency (Tallant), the Small Business Administration (SBA), including its administrator, and Balboa as defendants.

Sippial moved to dismiss SBA but its motion was denied by Judge William Thet-ford. Sippial contends that the motion was reconsidered and granted, based upon a notation at the bottom of the motion. Judge Thetford died while the case was still pending. It does appear from the record that SBA was properly dismissed. However, it is unnecessary that we resolve that issue on this appeal. The issue on this appeal relates to Balboa and it is with its claims that we will deal.

Balboa- filed a motion to dismiss based upon lack of jurisdiction, arguing that suit was brought against it under the Miller Act, 40 U.S.C. § 270a (1976), and that jurisdiction, therefore, rested exclusively in federal district court according to express terms of the act. That motion was denied. Balboa then filed a motion for summary judgment again based upon lack of jurisdiction; no action was taken upon that motion.

Numerous references in the record clearly indicate that when the case was tried to the jury, the issues were between Sippial and Bracy only, although Tallant and Balboa had never been formally dismissed and were still defendants in the case. In any event, the following verdicts were returned at the conclusion of the trial:

“We, the jury, find for the plaintiff Sippial Electric Company, Inc., and assess damages at $46,125.00.
Richard A. Fitzgerald, Foreman “We, the jury, find for the Cross-Defendant Sippial Electric Company, Inc.
Richard A. Fitzgerald, Foreman”

Bracy moved for a new trial. The motion was denied, and Bracy then appealed to this Court.

While the new trial motion was pending, the circuit clerk prepared a certificate of judgment stating that judgment had been entered in favor of Sippial and against Bra-cy and Balboa. Balboa then filed a Rule 60 motion to set aside any “judgment” allegedly rendered, arguing again that the court was without jurisdiction and that any “judgment” was, therefore, void. The motion was overruled.

On March 2, 1979, this Court dismissed Bracy’s appeal on the authority of Thames v. Gunter-Dunn, Inc., 365 So.2d 1216 (Ala.1979), because a final judgment concluding all parties, required by Rule 54(b), ARCP, had not been entered. Bracy v. Sippial Electric Company, Inc., 367 So.2d 1388 (Ala.1979). After the appeal was dismissed, Sip-pial moved to dismiss Tallant without service to any other parties. The court granted that motion.

The court then entered an order “re-entering” judgment against Balboa and Bracy for $44,709. Balboa contends that this order was entered without prior notice and without a hearing. Balboa filed a motion to set aside this order and the motion was overruled.

Balboa appealed on May 15, 1979.

Balboa first contends that there was never a judgment entered against it. Balboa is correct in asserting that there was not, after the close of trial, an entry of judgment. At the time the jury verdict was rendered, there were at least three defendants in the case: Bracy, Balboa, and Tallant. Only Bracy participated in the trial. The jury returned a verdict for Sippial without specifying which defendants were liable to Sippial. The clerk’s certificate of judgment stated that judgment had been rendered in favor of Sippial and against Balboa and Bracy for $46,125.00. As we have noted, no formal “judgment” entry was ever entered. The certificate of judgment prepared by the clerk does not meet the requirements of Rule 54(b), ARCP.

Although the trial court entered an order “re-entering” the former “judgment” against Bracy and Balboa, no “judgment” entry was ever entered. Since we fail to see how the court could “re-enter” a nonexistent judgment, we hold that the trial court mislabeled its “order,” re-entering “judgment” and that its order was, in fact, an entry of “judgment.”

Balboa next contends that, assuming that order is in fact an entry of judgment, the judgment is void because it was entered without prior notice and without a hearing, and because the court lacked jurisdiction to adjudicate a claim against Balboa. We pre-termit discussion of the first two points raised because we hold that the court did, in fact, lack jurisdiction as to Balboa.

Sippial contends that a court has jurisdiction to determine its own jurisdiction and submits that if jurisdiction is litigated and resolved against a party, that party cannot for the first time on appeal collaterally attack a judgment rendered against it. However, if a jurisdictional defect is apparent on the face of the record, any judgment rendered is subject to collateral attack for want of jurisdiction. Fife v. Pioneer Lumber Co., 237 Ala. 92, 185 So. 759 (1939).

In Fife, we held:

“Judgments of courts can only be impeached for jurisdictional defects disclosed on the face of the record; a party or his privies will not be permitted to assail collaterally unless the judgment is void for want of the jurisdiction of the Court — all errors of judgment or irregularities which do not render the judgment void are not available on collateral attack.”

237 Ala. at 95, 185 So. at 762.

The record in the case at bar affirmatively discloses that Sippial’s suit against Balboa is based upon the Miller Act, 40 U.S.C. § 270a (1976). The Miller Act designates that jurisdiction for any claim against a surety which falls within the provisions of the act shall be exclusively in federal district court. 40 U.S.C. § 270b(b) provides:

“Every suit instituted under this section shall be brought in the name of the United States for the use of the person suing, in the United States District Court for any district in which the contract was to be performed and executed and not elsewhere, irrespective of the amount in controversy . . [Emphasis added.]

There is no Alabama case law construing the jurisdictional provisions of the Miller Act, but other state courts have consistently held that jurisdiction for claims against a Miller Act surety rests exclusively in federal court. The. Court of Appeals for the Fifth Circuit has held likewise, in United States Fidelity & Guaranty Co. v. Hendry Corporation, 391 F.2d 13 (5th Cir. 1968).

We, therefore, hold that the trial court erred when it denied Balboa’s motion to set aside the trial court’s order entering judgment against it. Because the trial court lacked jurisdiction over Balboa, any judgment rendered against it was void.

REVERSED AND REMANDED.

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

      . See, e. g., Pierce Contractors, Inc. v. Peerless Cas. Co., 81 So.2d 747 (Fla.1955); Gichner v. Insurance Cos. of North America, 180 A.2d 842 (D.C.Mun.App.1962); General Equip., Inc. v. United States Fidelity and Guar. Ins. Co., 292 So.2d 806 (La.App.1974); Hoffmeister Cabinets of Nevada, Inc. v. Bivins, 87 Nev. 282, 486 P.2d 57 (1971); Gypsum Contractors, Inc. v. American Sur. Co. of New York, 37 N.J. 315, 181 A.2d 174 (1962); Gifford-Wood Co. v. Travelers Indem. Co., 42 Misc.2d 962, 249 N.Y.S.2d 317 (1964); Salway v. Maryland Cas. Co., 176 S.C. 215, 179 S.E. 787 (1935); Maryland Cas. Co. v. Fidelity & Cas. Co., 147 S.W.2d 1097 (Tex.Civ.App.1941).

      . Although not pertinent to this appeal, the Court was told at oral argument that suit against Balboa under the Miller Act was filed in federal district court and is still pending.


text:
    Isaac BRACY, d/b/a Bracy Construction Company v. SIPPIAL ELECTRIC COMPANY, INC.
    78-566.
    Supreme Court of Alabama.
    Jan. 11, 1980.

      Charles P. Miller, Montgomery, for appellant.
    Thomas T. Gallion, III, Montgomery, for appellee.
   BLOODWORTH, Justice.

This is the second appeal in this case. The first appeal was dismissed because there was no final judgment. Bracy v. Sippial Electric Company, Inc., 367 So.2d 1388 (Ala.1979). Isaac Bracy d/b/a Bracy Construction Company now appeals from a final judgment entered against him following an adverse jury verdict. He contends that the trial court erred in allowing an amendment the day of trial, in admitting character evidence, and in denying his motion for new trial. We affirm.

Isaac Bracy d/b/a Bracy Construction Company (Bracy) was the general contractor on a project to correct safety deficiencies at the Veterans Administration Hospital in Tuskegee, Alabama. Sippial Electric Company, Inc. (Sippial), was a subcontractor on the same project, hired by Bracy to install various fire safety devices.

During performance of the contract, Sip-pial received periodic payments from Bracy. Sippial contends that the payments were not for the full amount due on the contract. Sippial brought suit against Bracy on open account for money due on the contract, and Bracy filed a counterclaim. Sippial added the Small Business Administration (SBA), including its administrator, the Elmer Tal-lant (Tallant), and Balboa Insurance Company (Balboa).

The SBA and its administrator were subsequently dismissed. The case was tried and the jury returned a verdict in favor of Sippial, without specifying which defendants were liable, and in favor of Sippial on Bracy’s counterclaim. Bracy appealed, but, as we indicated, his appeal was dismissed because there had not been a final judgment entered in accordance with ARCP 54(b). Bracy v. Sippial Electric Company, Inc., supra.

In the trial court, Sippial filed a motion to dismiss Tallant, and its motion was granted. The court then entered judgment in favor of Sippial and against both Bracy and Balboa. Bracy and Balboa both appealed. This appeal was submitted on briefs. The Balboa appeal was orally argued. In an opinion released this day, we have reversed the judgment as to Balboa, holding that the state court lacked jurisdiction to enter judgment against Balboa. Balboa Insurance Company v. Sippial Electric Company, Inc., 379 So.2d 579 (Ala.1980).

On this appeal we will deal with the issues between Bracy and Sippial. Bracy first contends that the trial court erred in granting, at the beginning of trial, Sippial’s motion to amend, which added a fraud count and which alleged an increased amount of damages. ARCP 15 expressly provides that amendments should be freely allowed when justice so requires; and our rule regarding amendments is that Rule 15 should be liberally construed within the sound discretion of the trial judge. Alabama Farm Bureau Mutual Casualty Insurance Co. v. Guthrie, 338 So.2d 1276 (Ala.1976). The party opposing the amendment must show that the amendment would cause actual prejudice or undue delay in order to bar an amendment. Miller v. Holder, 292 Ala. 554, 297 So.2d 802 (1974); Poston v. Gaddis, 372 So.2d 1099 (Ala.1979).

Bracy contends that the proposed amendment at the beginning of trial actually prejudiced his case because all discovery had been completed and Bracy therefore had no opportunity to determine the factual basis for the allegation of fraud and had no opportunity to prepare a defense against the same. However, the amendment specifically incorporated detailed facts contained in a prior amended complaint and restated additional facts contained in the same prior amended complaint.

The only new facts alleged were that Bracy represented to Sippial that he, Bracy, would make payments to Sippial as the work progressed, as evidenced by the subcontract between the two; that the representations were false; that Bracy knew they were false; that they were made by Bracy intentionally to defraud Sippial; that Sippial believed them; and that Sippial relied on them when it entered into the subcontract.

It is obvious from the amendment that Sippial was going to attempt to prove its fraud allegation with facts previously pled and with the terms of the subcontract. The fraud count was merely an additional cause of action. Where an amendment merely changes the legal theory of a case or adds an additional theory, but the new or additional theory is based upon the same set of facts and those facts have been brought to the attention of the other party by a previous pleading, no prejudice is worked upon the other party. United States v. Johnson, 288 F.2d 40 (5th Cir. 1961). Cases interpreting the Federal Rules of Civil Procedure are authority in the construction of the Alabama Rules of Civil Procedure. Assured Investors Life Insurance Co. v. National Union Associates, Inc., 362 So.2d 228 (Ala.1978). We cannot say that Bracy suffered actual prejudice or that the trial would be unduly delayed by allowing the amendment; the court, therefore, did not abuse its discretion in allowing it. Alabama Farm Bureau Mutual Casualty Insurance Co. v. Guthrie, supra.

Bracy’s next contention is that the trial court erred in admitting into evidence testimony regarding the character and reputation of Bracy. Bracy contends that evidence of character or reputation in civil cases is inadmissible except where, in the proceeding itself, character and reputation are placed in issue.

It is the rule that, in civil cases, evidence of a party’s character and reputation is generally inadmissible. Holcombe v. Whitaker, 294 Ala. 430, 318 So.2d 289 (1975). However, character and reputation may be admitted for impeachment purposes to point out contradictions in a witness’s testimony, and to point out inconsistent statements. Parker v. Newman, 200 Ala. 103, 75 So. 479 (1917). In the case at bar, evidence was introduced, over Bracy’s objection, to show that Sippial had received a check from Bracy for payment on the contract which was dishonored because of insufficient funds. This evidence showed lack of payment and financial difficulties between the parties, evidence essential to Sippial’s case in chief against Bracy. Moreover, no objection was offered until after the witness had already testified. The evidence was, therefore, properly admitted. Costarides v. Miller, 374 So.2d 1335 (Ala.1979).

On cross-examination, Bracy was asked whether the reason he had not paid Sippial was because he was broke and out of money. He answered negatively. In addition, Bracy had denied knowledge of previous judgments and executions against him. Sippial then introduced, over Bracy’s objection, evidence that a Robert Ward had filed suit against Bracy in order to get paid for work he performed pursuant to a contract with Bracy; that there were numerous liens filed against Bracy; and, that the sheriff’s department had six outstanding executions against Bracy.

Bracy contends that all of this evidence was inadmissible. However, once Bracy testified, he made himself subject to impeachment by Sippial by the introduction of evidence of conduct contradictory to his testimony, and by the introduction of evidence as to his general character. Parker v. Newman, supra. We cannot say that the court abused its discretion in admitting the offered evidence for impeachment purposes. Parker v. Newman, supra.

Bracy next contends that the trial court erred in denying his motion for new trial on the ground that the verdict was excessive. This contention is likewise without merit. When the trial court denied Bracy’s motion for new trial, it held that “the judgment as a matter of law could not have exceeded $44,709.00,” and reduced the verdict to that amount. The evidence, if believed by the jury, was sufficient to justify the reduced verdict. We hold that the trial court did not err in denying Bracy’s motion for new trial. Central of Georgia Railway Company v. Steed, 287 Ala. 64, 70, 248 So.2d 110 (1971).

Bracy’s final contention is that the trial court erred in denying his motion for new trial because Sippial did not consent to the trial court’s reduction of the amount of the verdict. Bracy submits that the court was without power to arbitrarily reduce the amount of the verdict without Sippial’s consent.

However, in all the cases Bracy cites for support of his position, the plaintiff at trial either filed a cross-appeal or objected in some way to the court’s reduction of the amount of the verdict. In the case at bar, Sippial did not consent to the reduction, nor did Sippial object to the reduction. Moreover, Sippial did not file a cross-appeal contending that the reduction was error. This is a unique situation, the defendant contending that a reduction of the amount of a verdict without the plaintiff’s consent is error, while the plaintiff, from all appearances, is content with the reduction, a point upon which we have found no law. Neither is any cited by the parties. We hold that Sippial impliedly consented to the reduction of the amount of the verdict by not entering an objection or filing a cross-appeal, and that the trial court properly denied Bracy’s motion for new trial.

AFFIRMED.

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


text:
    Charles Ricky GORDON and National Life & Accident Insurance Company, a corp. v. Marcvtia Larvet NALL, a minor who sues by and through her father and next friend, William Hollis Nall, Jr.
    78-618.
    Supreme Court of Alabama.
    Jan. 11, 1980.

      A. Stewart O’Bannon, Jr., of O’Bannon & Gonce, Florence, for appellants.
    Henry H. Self, Jr., John D. Clement, Jr., Tuseumbia, for appellee.
   MADDOX, Justice.

Appellants present four issues which they claim warrant reversal of a judgment in the amount of $750,000. We will discuss only, two of those issues. They are:

(1) whether final arguments by plaintiff’s counsel that the corporate defendant “doesn’t have a soul, it has a board of directors,” is so highly prejudicial as to warrant reversal; and

(2) whether it constituted prejudicial error to admit, over objection, hearsay evidence concerning defendant’s prior acts of negligence.

Marcvtia Larvet Nall, then a three-year-old child, was severely injured when she was struck by an automobile driven by the defendant, Charles Ricky Gordon, who, at the time of the accident, was acting within the scope of his employment as an insurance agent for defendant National Life & Accident Ins. Co. The accident occurred in front of the plaintiff’s home on a residential street in Tuseumbia.

Plaintiff sued by and through her father for damages resulting from the negligence and/or wantonness of the defendants. The jury rendered a verdict for the plaintiff in the amount of $750,000 and the judge entered the judgment in that amount. The defendants appeal the court’s denial of a motion for new trial.

I

During the plaintiff’s final arguments to the jury, the following transpired:

“(Mr. Clement began his closing argument).
“MR. GONCE: We want to object to this argument, it is certainly illegal and prejudicial argument.
“BY THE COURT: Overruled.
“MR. CLEMENT CONTINUES: It doesn’t have a heart, it doesn’t have a soul, it has board of directors.
“MR. GONCE: May it please the Court, I want to renew my objection on the grounds that’s illegal and prejudicial argument and we move to exclude it.
“BY THE COURT: Overruled.”

It has long been the law of this state that references to a corporate entity as “soulless” in arguments to the jury are “objectionable” and “prejudicial.”

In the case of Commercial Fire Ins. Co. v. Allen, 80 Ala. 571, 1 So. 202 (1886), the trial court permitted plaintiffs’ counsel in his concluding argument to say “that the ancestry ... of plaintiffs were well known to counsel, and to everyone else who had lived in the community with them; that their honor, integrity, honesty and truthfulness, and that of their descendants, had never been called in question until this soulless corporation . . . had charged one of their descendants . . . with falsehood, fraud and misrepresentation in procuring the policy of insurance in this case.” (Emphasis added) (80 Ala. at 573, 1 So. at 204).

The Supreme Court said:

“The remarks of counsel in the concluding argument were objectionable, and the Court erred in not arresting that line of argument, when thereto requested. . . ” (80 Ala. 579, 1 So. at 208).

Similarly, in Chrysler Corporation v. Hassell, 291 Ala. 267, 280 So.2d 102 (1973), plaintiff’s counsel made the following argument:

“. . . A corporation has got no heart, it has got no Soul. It has got no fear of Hell and Damnation in the hereafter.”

This Court noted that, “[t]his argument was improper, highly prejudicial and was not relevant to any issues in the case. A corporation is entitled to fair and equal treatment if it is a party to litigation.”

This is an accurate statement of the law and should be followed in this case. Such argument serves no purpose but to inflame the jury to the prejudice of a party that happens to be a corporation. See also, 75 Am.Jur.2d Trials § 288. In view of the extent of the injuries in this case, this Court considered whether to apply Rule 45 (ARAP), but we cannot, in good conscience, conclude that the improper argument did not affect prejudicially the rights of the corporation to a fair and impartial trial. In this case, the application of Rule 45 is inappropriate because the trial court did not arrest the argument, or seek to cure its prejudicial effect.

II

The second ground appellant urges for reversal of the judgment is that the trial court failed to exclude the hearsay evidence.

The following is from the transcript:

“MR. CLEMENT CONTINUES: Did you hear a conversation between Hester Hampton and Charles Ricky Gordon some days before this accident happened?
“A. Yes, I did.
“Q. What was said?
“MR. GONCE: May it please the Court, at this time I want to object on the grounds that it’s hearsay, it’s too remote from the time of the accident; in fact, the time is not stated when it occurred; it’s immaterial to any issues in this case, and prejudicial.
“BY THE COURT: All right, overrule objection. Was this conversation about a week before — is that right?
“A. Yes.
“BY THE COURT: All right, go ahead and tell what you heard.
“A. She said, that you are going to keep running — the way you are driving up here you are going to keep on running until you are going to hit somebody, run over somebody up here. And he said, no, I’m not going to hit no one, I ain’t going to run over nobody.
“MR. O’BANNON: All right, now may it please the Court, at this time we move to exclude it on the grounds that it’s hearsay, the defendant was not present; it’s too remote in time and has no bearing on any issues in this case.
“BY THE COURT: Overrule the motion.”

Before this testimony was introduced, the trial judge had excluded the jury from the courtroom and considered the admissibility of such evidence at a bench conference. Counsel for the plaintiff argued that the hearsay evidence was admissible: first, to show the habit of the defendant; and second, to show that the defendant had been warned, or put on notice, of his allegedly wanton conduct. Defense counsel countered that the evidence constituted inadmissible hearsay, and was too remote to constitute a warning of the acts of negligence or wantonness which allegedly caused the injury in this case. We agree with defendants’ counsel.

It is well settled that evidence of previous acts of negligence is inadmissible to show negligence on the part of a party on the subject occasion. Dean v. Johnston, 281 Ala. 602, 206 So.2d 610 (1968); Alaga Coach Line v. McCarroll, 227 Ala. 686, 151 So. 834, 92 A.L.R. 470 (1933).

The conversation referred to by the testimony took place at least one week prior to the accident, involved an entirely different location, and was inadmissible in that it led to a consideration of collateral issues having no bearing on the driver’s negligence on the occasion complained of. We also find that the statement was not admissible as a warning. In Cherry v. Hill, 283 Ala. 74, 214 So.2d 427 (1968), this Court opined that the plaintiff should have been permitted to show by a witness that pedestrians habitually crossed the highway at the point where the accident occurred. The evidence was permitted on the question of whether the defendant there had notice that pedestrians made a habit of crossing a road where the accident in that case occurred. In the instant case, the statement was nothing more than that the defendant was negligent on a prior occasion. This type of “warning” is too remote to be admissible, especially in view of the rule that previous acts of negligence are inadmissible.

We conclude that the admission of the evidence constitutes reversible error. For the same reasons as outlined above, the trial court should have excluded the similar testimony of Cleta Morris.

We deem it unnecessary to discuss the two additional issues raised by the appellant.

The judgment is due to be reversed and remanded.

REVERSED AND REMANDED.

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

FAULKNER, J., concurs in Part I, but dissents as to Part II.

JONES and BEATTY, JJ., concur in the result.


author: TORBERT, Chief Justice.

text:
    Lloyd HARRIS v. Irving WINTER.
    78-644.
    Supreme Court of Alabama.
    Jan. 11, 1980.

      Thomas T. Gallion, III, of Gallion & Gal-lion, Montgomery, for appellant.
    William B. Moore, Jr., of Rushton, Stakely, Johnston & Garrett, Montgomery, for appellee.
   TORBERT, Chief Justice.

The facts as found in the trial court’s order are as follows: On June 8, 1976, the plaintiff, Harris, entered a real estate contract for the purchase from Mr. and Mrs. Chambless of certain real property located in Montgomery County. Harris paid $500.00 as earnest money to the realtor, Irving Winter. Thereafter the Chamblesses agreed to allow Harris to forfeit the earnest money and cancel the contract. The realtor, Mr. Winter, then wrote a letter to Credit Reporting Company advising the Company that Harris owed him $8,000.00 as commission on the sale of real estate.

On February 24, 1977, Harris wrote Winter informing him that Winter had erroneously supplied the Credit Reporting Company with information that Harris owed Winter $8,000.00, and that unless this mistake was corrected Harris intended to sue Winter. On December 12, 1978, the First Alabama Bank refused Harris a business loan and assigned as its reasons Harris’ obligation to Winter reflected in the files of the Credit Reporting Company.

On February 16,1979, Harris sued Winter alleging “he (Harris) has been unable to obtain monies to re-open his business and earn a living and that his credit standing, financial responsibility and reputation in the community has suffered irreparable damage all because of the action which defendant wilfully, wantonly or maliciously brought about or caused to be brought about on December 12, 1978, and from which injuries continue to exist.”

Winter’s motion to dismiss this case, based on his assertion that the one-year statute of limitations (Code 1975, § 6-2-39) for libel actions had expired, was granted on May 28, 1979. Harris appeals. We affirm.

The appellant urges that the trial court’s order based on the one-year statute of limitations for libel actions, Code 1975, § 6-2-39, should be reversed for the two following reasons.

First, the appellant asserts that his cause of action does not sound in libel and therefore the one-year statute of limitations for libel actions is inapplicable. Appellant asserts that his cause of action is based on the intentional misrepresentation of his credit standing which interfered with his ability to conduct his business. Appellant argues that this cause of action was recognized by this court in Ringer v. First National Bank of Stevenson, 291 Ala. 364, 281 So.2d 261 (1973).

Alternatively, appellant argues that the one-year statute of limitations for libel actions does not bar his cause of action because the time does not begin to run for the purpose of the statute of limitations until the injury occurs. As authority for that proposition appellant relies on: Locomotive Firemen v. Hammett, 273 Ala. 397, 140 So.2d 832 (1962); King Homes v. Roberts, 46 Ala.App. 257, 240 So.2d 679 (1970); Sanderson v. Ford Motor Co., 483 F.2d 102 (5th Cir. 1973); and Garren v. Commercial Ins. Co., 340 So.2d 764 (Ala.1976).

The second issue raised by the appellant will be addressed first. It is the law of Alabama that a cause of action for libel accrues when the libelous matter is published. Age-Herald Publishing Co. v. Waterman, 188 Ala. 272, 66 So. 16 (1913); Age-Herald Publishing Co. v. Huddleston, 207 Ala. 40, 92 So. 193 (1921); Tonsmeire v. Tonsmeire, 285 Ala. 454, 233 So.2d 465 (1970). In Tonsmeire, Justice Harwood said, “We think it is so well settled as to dispense with the citation of authorities that'a cause of action for libel begins to run at the time it accrues, that is, when the defamatory matter is published.” Tonsmeire, 285 Ala. at 458, 233 So.2d at 467. Each of the four cases cited, supra, by the appellant for the proposition that a cause of action accrues when damage occurs is good law, but they are not authority in the instant case because none of those cases involved a cause of action for libel.

Appellant’s first argument was that his cause of action for intentional misrepresentation of his credit standing is not subject to the one-year statute of limitations for libel. Code 1975, § 6-2-39(a)(4). Appellant asserts that his type of cause of action was recognized by this court in Ringer, supra. Chief Justice Heflin did recognize a cause of action for fraud in Ringer under a similar factual situation. However, even if appellant’s cause of action was labeled as fraud rather than libel the length of the period of limitations would be the same. Code 1975, § 6-2-3. A cause of action for fraud accrues when the perpetration of the fraud is discovered by the victim of the fraud.

In actions seeking relief on the ground of fraud where the statute has created a bar, the claim must not be considered as having accrued until the discovery by the aggrieved party of the fact constituting the fraud, after which he must have one year within which to prosecute his action.

Code 1975, § 6-2-3.

In the instant case the appellant wrote the appellee a letter on February 24, 1977 concerning the alleged fraud or libel clearly illustrating his knowledge of those matters. The complaint in the instant case was filed on February 16, 1979. Whether the appellant’s cause of action sounds in fraud or libel the statute of limitations has run and the action is barred.

AFFIRMED.

BLOODWORTH, FAULKNER, ALMON and EMBRY, JJ., concur.


text:
    Cora HILL et al. v. Laura Lee CHERRY et al.
    78-707.
    Supreme Court of Alabama.
    Jan. 11, 1980.

      F. Michael Ford of Ford, McElvy & Ford, Tuscaloosa, for appellants.
    Demetrius C. Newton of Newton & Tucker, Birmingham, for appellees.
   EMBRY, Justice.

This is an appeal from the denial of a Rule 59(a), ARCP, motion for new trial of defendants, Cora Hill, Bessie Hill and Mary Julia Hill, in an action for equitable partition of real property among joint owners in which there was a settlement agreement incorporated into the final judgment. We affirm.

Issue

Did the trial court abuse its discretion by denying defendants’ Rule 59(a) motion for new trial?

Facts

Plaintiffs, Laura Lee Cherry and Jennie Hill, filed a bill for partition of real property. Defendants Cora Hill, Bessie Hill and Mary Julia Hill, filed an answer denying the necessity or the desirability of partitioning the property and alleging that Jennie Hill was mentally incompetent.

On the day set for trial, with all parties present together with their respective attorneys, . a settlement agreement was reached. The trial court asked the parties if they understood that the agreement would be final and part of the court’s decree. The parties did not respond, but their respective attorneys answered in the affirmative. Whereupon, defendants’ attorney dictated the agreement into the record and later drafted the final judgment incorporating it. It is that judgment which defendants seek to set aside.

Defendants soon became dissatisfied and filed their 59(a) motion for new trial founded on these bases: (1) they did not understand or appreciate the legal ramifications of the agreement; (2) the agreement as stated in the decree works a hardship on them as well as an inequitable distribution of the property in question; and (3) they did not know and were not informed that the settlement agreement would be a final and conclusive settlement of the case.

Decision

Defendants contend that Rule 60(b), ARCP, required the trial court to set aside the final judgment and order a new trial because: (1) they were not familiar with legal terminology and thus did not understand the agreement dictated into the record; (2) the agreement dictated was not what they had agreed to; (3) their attorney entered into the agreement when it was contrary to what they had agreed to; and (4) they did not know the hearing they attended was to be a final hearing and believed the property would be surveyed and appraised before any final hearing. They further contend the trial court abused its discretion by denying their motion for new trial because the partition as set out in the final judgment was inequitable and would work a hardship on them. We do not agree.

We point out the motion filed with the trial court was a Rule 59(a) motion and not a motion for relief from judgment or order under Rule 60(b), ARCP, although 60(b) grounds are alleged. Granting or refusing a motion for new trial rests within the sound discretion of the trial court; the exercise of that discretion carries with it a presumption of correctness which will not be disturbed by this court unless some legal right was abused and the record plainly and palpably shows the trial court was in error. Robertson Banking Co. v. Ebersole, 331 So.2d 278 (Ala.1976). The trial court has greater latitude in granting a Rule 59(a) motion for new trial than it has in granting a Rule 60(b) motion. See, e. g., Cumberland Capital Corp., Inc. v. Robinette, 57 Ala.App. 697, 331 So.2d 709 (1976). In this case the trial court did not abuse its discretion in declining to set aside the consent decree and grant a new trial, regardless of which rule is applied.

Defendants were present in the courtroom when the agreement was dictated into the record. The trial judge expressly asked all parties if they understood that the agreement would be final and part of the court’s decree. Moreover, defendants’ own attorney drafted the final judgment incorporating the agreement. From the record it is clear defendants were not misled. All this being true, and the law looking with favor both upon the finality of judgments and the settlement of disputes, we find no abuse of discretion by the trial court when the motion was denied; quite to the contrary. See Maddox v. Druid City Hospital Board, 357 So.2d 974 (Ala.1978), and cases cited therein.

In Hawk v. Biggio, 372 So.2d 303 (1979), we upheld a trial court’s denial of a motion for new trial in a similar case where a party was attempting to renege on a settlement agreement. In Hawk we held the trial court was correct in deciding the appellant’s attorney was authorized to make a settlement agreement. We held in that case the evidence demonstrated the appellant was kept informed and participated in the settlement negotiations; therefore, the trial court was correct in enforcing the settlement agreement entered into between the parties. We reach the same conclusion and result in this case.

The trial court’s denial of the Rule 59(a) motion for new trial is hereby affirmed.

AFFIRMED.

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