author: FAULKNER, Justice.

text:
    EASTWOOD LANDS, INC. v. WALTER CARLOS ANDERTON, INC.
    80-45.
    Supreme Court of Alabama.
    Jan. 8, 1982.
    Rehearing Denied April 2, 1982.

      James C. King and Robert T. Wilson, Jasper, for appellant.
    Edward R. Jackson of Tweedy, Jackson & Beech, Jasper, for appellee.
   FAULKNER, Justice.

The appellant, Eastwood Lands, owns the People’s Nursing Home in Jasper, Alabama. The appellee, Walter Carlos Anderton, Inc. is an architect who is experienced in designing health related facilities. In 1974, Eastwood Lands became interested in expanding the People’s Nursing Home. Although the architect proposed the parties enter into a contract for the design of the new portion of the home, Eastwood Lands apparently refused. Nevertheless, the parties worked together to procure a certificate of need from the State Health Department permitting the home to add seventy-eight beds. The certificate of need was valid from June 18, 1975, to June 17, 1976. The certificate provided that the State reimburse Eastwood Lands for capital expenditures made to expand the nursing home if the State approved the plans.

The architect submitted preliminary drawings on July 25, 1975, and they were approved by the State Health Department on September 23, 1975. For reasons unclear from the record, no further work was completed on the plans until May, 1976. On May 6, 1976, six weeks before the expiration of the certificate, the parties entered into a written contract. Section 14 of the contract provided that the architect be paid $8,000 for each $100,000 spent on the project. Another section, § 6 of the contract, provided that the architect would be paid the value of his services, regardless of whether the project was actually completed or not. The architect testified that this latter section was marked out by representatives of the client.

The plans for the project were not completed during the time the certificate of need was valid. The State Health Department refused to extend the certificate. The architect contends the State refused to grant the extension because the nursing home failed to make capital expenditures prior to the expiration of the certificate. The nursing home, however, contends that the refusal to grant an extension was due to Anderton’s failure to finish the final plans satisfactorily.

Anderton brought suit seeking the reasonable value of the services he rendered— $49,690. The nursing home filed a counterclaim, alleging that Anderton’s failure to design acceptable plans caused the nursing home to lose the certificate of assurance and thus to forego the opportunity to construct the addition to the home.

The trial judge instructed the jury that it could render one of three verdicts. First, it could render a verdict in favor of the; plaintiff and against the defendant’s counterclaim. Second, the jury could render a verdict against the plaintiff and in favor of the defendant on its counterclaim. Finally, the jury could render a verdict denying relief to both parties. The judge did not instruct the jury that it could render a verdict both favorable to the plaintiff on his claim, and favorable to the defendant on its counterclaim. After giving the jury instructions, but before the jury retired, the judge asked the parties if there were “Anything further, gentlemen?” The attorneys for Eastwood Lands failed to object to the instructions at that time. The appellants reserved the objection until the case was on appeal. The jury returned a verdict in favor of the plaintiff, Anderton, assessing damages to be $49,690. The trial court denied the nursing home’s motion for a new trial and a corrected verdict. The nursing home appeals. We affirm conditionally.

The appellant, Eastwood Lands, Inc., contends that the trial court erred by failing to give an instruction to the jury that it could render a verdict in favor of the plaintiff on its original claim and in favor of the defendant on its counterclaim in a breach of contract action. Furthermore, Eastwood Lands argues the trial court erred in denying its motion for a new trial.

We need not decide whether the trial court erred in failing to give the jury instruction because the appellant failed to object to the omission of the instruction. By failing to make a timely objection, the appellant waived the right to object. Eastwood Lands asserts that Rule 51, ARCP, does not require a party to object to the judge’s instruction in the presence of the jury. The appellants point to the language in Rule 51 which states “[opportunity shall be given to make the objection out of the hearing of the jury.” But a close reading of Rule 51 also reveals that a party must object to the giving of an incomplete charge “before the jury retires to consider its verdict.” See Bradley v. Jones, 282 Ala. 331, 211 So.2d 465 (1968). The appellant could have asked to speak to the judge out of the presence of the jury and raised the objection at that time. Thus, Eastwood Lands’ failure to object to the incomplete charge before the jury retired constitutes a waiver of the right to object.

Eastwood Lands also contends that the trial judge erred in failing to grant its motion for a new trial made pursuant to Rule 59, ARCP. As grounds for the motion for a new trial, the appellants assert that the discovery of the original copy of the contract is a ground for granting a new trial. A less legible photocopy of the contract was admitted into evidence at trial. Eastwood Lands contends it was unclear on the photocopy that § 6.1.2, dealing with payment of architectural fees, had been marked out. The appellant asserts that if the jury had seen the original, in which § 6.1.2 was clearly marked out, it could have awarded no damages. The criteria for granting a new trial based on newly discovered evidence are set out in Forest Investment Corp. v. Commercial Credit Corp., 271 Ala. 8, 122 So.2d 131 (1960). The criteria are:

(1) the evidence will change the result of the trial;
(2) the evidence has been discovered since trial;
(3) the evidence could not have been discovered by due diligence;
(4) the evidence is material;
(5) the evidence is not merely cumulative or impeaching.

Eastwood Lands introduced evidence at the trial establishing that § 6.1.2 was marked out, both by testimony and by introduction of the photocopy. Thus, the original copy of the contract is merely cumulative. Furthermore, there is no evidence that appellant exercised due diligence in discovering the original or that introduction of the original would change the result of the trial. The trial court properly refused to grant a new trial based on newly discovered evidence.

Eastwood Lands also asserts error by the trial court in its refusal to grant a new trial because the verdict is inconsistent with the evidence and against the clear weight of the evidence. The essence of the appellant’s contention is that the awarding of architect’s fees is contrary to § 14 of the contract. Section 14 provided that Ander-ton be paid a portion of the money expended on the building. Since no money was actually expended, Eastwood Lands suggests that Anderton should receive nothing under the contract. Nevertheless, part of the breach of contract claim, which the trial court explained to the jury in its instructions, is the contention that Eastwood Lands interfered with or prevented Ander-ton from completing all the conditions precedent to Eastwood Lands’ duty to pay for Anderton’s services. In so doing, the appellant waived the condition precedent of actually expending funds on the new wing. This court has held that if a promisor’s failure to cooperate in the performance of a condition under his or her control results in the nonoccurrence of the condition, the condition is waived. Barnes v. Atlantic & Pacific Life Insurance Co. of America, 295 Ala. 149, 825 So.2d 143, answer conformed to in, 530 F.2d 98 (5th Cir. 1975). See Canyon Land Park, Inc. v. Riley, 575 F.2d 550 (5th Cir. 1978). Anderton presented evidence that the Board of Health’s refusal to extend the certificate of need was due to Eastwood Lands’ failure to find financial backing. The jury could reasonably believe this evidence and award damages to Ander-ton. The denial of a new trial by a trial court will not be reversed absent convincing evidence that the verdict is palpably wrong or unjust. Gilmer v. Salter, 285 Ala. 671, 235 So.2d 813 (1970); Lee v. Moore, 282 Ala. 461, 213 So.2d 197 (1968). There is no evidence that the trial court’s denial of a new trial was incorrect.

Finally, the appellant cites the trial court’s refusal to grant a new trial on the basis of excessive damages and an unjust verdict as error. The gist of Eastwood’s argument is the same as its argument that the verdict is against the weight of the evidence. The appellant argues that since it spent no money on the building, the contract prohibits the architect from recovering any damages. Thus, any award of damages is excessive. We find no merit to these contentions.

Eastwood Lands also argues that $770 of the damages were not the debts of Eastwood Lands, but of third parties. The appellant contends that Bibb v. Wilson, 379 So.2d 1254 (1980), mandates that a verdict granting an award of more damages than is consistent with the evidence must be set aside and a new trial granted. The rationale of Bibb v. Wilson is inapplicable to the present case. In that case, this Court held that if the undisputed evidence establishes that a plaintiff’s loss exceeds the amount of the jury’s verdict, a new trial may be granted. The correct remedy for excessive damages is remittitur. Code 1975, § 12-22-71. Since the record shows that $770 are debts incurred by the appellant’s tenant prior to the contract between Anderton and Eastwood Lands, we hold that Anderton must remit the $770 as a condition to an affirmance of the order denying appellant’s motion for new trial. In the event the appel-lee declines to file the required remittitur with the clerk of this Court within twenty-one days of this opinion, the judgment will be reversed and the cause remanded for a new trial. Otherwise, the judgment as corrected on remittitur will be affirmed.

AFFIRMED CONDITIONALLY.

ALMON, EMBRY, BEATTY and ADAMS, JJ., concur.


source: Caselaw Access Project

author: MADDOX, Justice.

license: Public Domain

text:
    Carla MARTIN v. FIRST NATIONAL BANK OF MOBILE, Executor of the Estate of Carl T. Martin, Deceased, et al.
    80-559.
    Supreme Court of Alabama.
    March 19, 1982.

      Jack W. Smith of Smith & Smith, Do-than, for appellant.
    Caine O’Rear, III of Hand, Arendall, Bed-sole, Greaves & Johnston, Mobile, for appel-lee First Nat. Bank of Mobile.
    John T. Crowder, Jr. of Cunningham, Bounds, Byrd, Yance, & Crowder, Mobile, for appellee Christine Ethridge.
   MADDOX, Justice.

The dispositive issue on this appeal is whether the trial judge, the probate judge of Mobile County in this instance, erred in considering extrinsic evidence to determine the intent of the testator in using the terms “cash” and “personal property” in his will.

Carl T. Martin died testate on March 1, 1976. His will, dated November 25, 1975, naming his only child, Carla Martin Eth-ridge, executrix, was duly admitted to probate in the Probate Court of Mobile County. Carla was also named co-trustee under the trust provisions of the will, and was duly appointed and served as executrix until her resignation just prior to the hearing that formed the basis for this appeal. The successor executor named in the will, The First National Bank of Mobile, was then duly appointed. Counsel for the bank filed a petition for “construction” of the will and for “instructions” in the administration thereof. The petition in part requested the court to construe certain portions of the will, which was done in the Decree of Construction and Instructions issued on April 7, 1981. At the same time, the court issued an Opinion and Order on Final Settlement which adjudicated Carla’s petition for final settlement of her portion of the administration of the estate.

The pertinent parts of the will read as follows:

“ARTICLE ONE
“I, CARL T. MARTIN, direct that my Executrix, hereinafter named, pay out of my estate all of my just debts which are valid and enforceable at the time of my death; including the expenses of my last illness and funeral expense, and expenses for a suitable monument to be placed at the foot of my grave site, as soon as practicable after my death.
“ARTICLE TWO
“I give and bequeath to my sister, CAROLEE MARTIN, the sum of One Thousand Five Hundred and No/100 ($1,500.00) Dollars cash; and to my niece LANNIE MARTIN, the sum of Five Hundred and No/100 ($500.00) Dollars cash; and to my sister-in-law, THELMA POWELL, the sum of One Thousand Five Hundred and No/100 ($1,500.00) Dollars cash; and to W. R. (Billy) Thompson, the sum of Three Hundred Fifty and No/100 ($350.00) Dollars cash.
“ARTICLE THREE
“I, CARL T. MARTIN, give and bequeath all cash remaining (after the pay-merit of specific bequeaths as per Article Two of this my Last Will & Testament) to my daughter, CARLA MARTIN ETH-RIDGE.
“ARTICLE FOUR
“I, CARL T. MARTIN, give and bequeath all cars, trucks, and items of household property, personal property, and other items of personal property used in my every day life to my daughter, CARLA MARTIN ETHRIDGE.
“I hereby vest in my Executrix, hereinafter named, full power and authority to determine what objects of property are included in the foregoing description contained in this section of my Last Will & Testament.
“ARTICLE FIVE
“All of the rest, residue and remainder ...” (Emphasis added.)

The Court, in his “Decree of Construction and Instructions” held:

“The Court in construing the terms ‘cash’ and ‘personal property’ in Articles Three, Four and Five of the Will of Carl T. Martin, deceased, considered testimony that Carla Martin was a Heroin Addict, that she had served penitentiary time in connection with this addiction, that she had forged endorsements on some estate account checks which were presented in evidence, that she was, at the time of trial, living with a common law husband, and that her child (a daughter who was thirteen years of age at the time of trial) had been in the care of a foster parent (Lena Watt) since the age of two years; that the Court also considered Carla Martin’s evasive, argumentative demeanor at trial, that likewise, in construing the terms ‘cash’ and ‘personal property’ in these articles of the Will, the Court considered the fact of the Will itself; and, over timely objections interposed by Carla Martin, the Court admitted and considered the testimony of Mr. Chandler Kite Stanard that he drafted the Will of the decedent Carl Martin, that said decedent had told Mr. Stanard of the decedent’s intentions at the time of this drafting, that said decedent intended to leave or bequeath Carla Martin under Articles Three, Four and Five only his checking accounts, savings accounts and cash (currency), and that said decedent did not intend to leave Carla Martin the savings certificates, certificates of deposit, stocks, bonds, treasury bills, promissory notes and contracts for the sale of real property; that the grounds of Carla Martin’s said objections were, first, that Mr. Sta-nard’s said testimony was hearsay, and, second, that such oral testimony was not admissible to contradict the unambiguous terms of the Will; that after Mr. Sta-nard’s testimony to such effect, Carla Martin timely moved to strike said testimony upon the same grounds; and the Court denied said motion....
“IT IS THEREFORE ORDERED, ADJUDGED AND DECREED by the Court that upon construing the same, the Court finds as follows:
“1. That under Item 3, the term ‘Cash’ is interpreted to include, checking accounts, savings accounts, and cash; and does not include certificates of deposit, savings certificates, shares of stocks, bonds, treasury bills, promissory notes and/or contracts for the sale of real property.
“2. That the term ‘Cash’ under Article 3 is interpreted to include the accounts in the name of Jesse A. Martin, (sic) at the time of Carl T. Martin’s death, shall include checking accounts, savings accounts and cash, and does not include certificates of deposit, savings certificates, shares of stocks, bonds, treasury bills, promissory notes and/or contracts for the sale of real property.
“3. That the term ‘Cash’ under Article Three of said decedent’s will is interpreted and shall be measured before and after the payment of the estate debts, administration expenses and taxes.
“4. That the terms ‘personal property’ as contained in Article Four of the last will and testament of said decedent’s will is interpreted to include personal effects and personal property used in his every day life.”

As previously mentioned, the crucial question is whether the probate judge should have considered extrinsic evidence in determining the testator’s intent. The beneficiary, Carla Martin, contends that the will is not ambiguous and that the judge erred. Appellees contend that the trial judge did not err because the will contains a latent ambiguity in Article Four, because the words “personal property” are used there in a provision which “is often used in wills for the purpose of disposing of a testator’s personal effects, or non-business personal property used in his everyday life.”

The First National Bank of Mobile argues for an affirmance of the court’s interpretation, as follows:

“The Court’s construction of Article Four is supported by a number of factors. Reading the Will as a whole and, in particular, the reference to personal property in Article Five, a reasonable construction is that Article Four relates only to personal effects. Article Five devises and bequeaths the residue, including ‘all . . . property, real, personal, and mixed, of whatever kind and wherever situated.’ (emphasis added) If, as Appellant urges, the Testator bequeathed all personal property of whatever kind and form under Article Four, then the reference to personal property in Article Five would have been a nullity. However, it is well-settled that the Court should give effect to each provision of the Will, if possible. Smith v. Smith, 387 So.2d 134 (Ala.1980); Cates v. Bush, 295 Ala. 256, 326 So.2d 742 (1976). Therefore, in construing Article Four to bequeath only personal effects, the Court properly gave effect to the residual bequest of personal property under Article Five.
“A second factor in support of the Court’s construction of Article Four is the rule ejusdem generis. This rule may be utilized under certain circumstances to restrict the general terms of a bequest by association with enumerated words of narrower import. Merchants National Bank v. Hubbard, 220 Ala. 372, 125 So. 335 (1929). The rule may be applied to Article Four where the term ‘personal property’ is preceded by the narrower terms ‘cars, trucks and items of household property’ and followed by the phrase ‘other items of personal property used in my every day life.’ Application of the rule results in the restriction of Article Four to personal effects, as determined by the Court.”

The bank’s argument would have more persuasive force but for the fact that the testator, in the will now under consideration, vested in his daughter, as executrix, the following powers:

“I hereby vest in my Executrix, hereinafter named, full power and authority to determine what objects of property are included in the foregoing description contained in this section of my Last Will & Testament.” (Emphasis added.)

Whatever application the rule of ejusdem generis otherwise has in construing testamentary intent, it cannot narrow the legal definition of “personal property,” especially when “full power and authority to determine what objects of property are included” is specifically vested in another, such as the executrix in this case.

The bank’s argument that the gift of “personal property” in Article Five to the residuary estate is a nullity if the will is not construed as the judge construed it, needs to be addressed and we hereby address it. The argument of the bank would have some validity, but for the fact that the executrix has full power to determine which items pass under Article Four. The executrix, exercising the power granted to her under Article Four, could determine that the testator did not intend to give her certain items of personal property. In that event, the “personal property” she deemed did not pass under Article Four would pass to the residuary estate under Article Five. Also, there could be lapses of specific bequests.

The law states that the Court will not look beyond the “four corners of the instrument” unless latent ambiguities exist. Achelis v. Musgrove, 212 Ala. 47, 101 So. 670 (1924); Gotlieb v. Klotzman, 369 So.2d 798 (Ala.1979). We have applied that rule here. We have examined the “four corners of the instrument” without considering the extrinsic evidence, and we find no latent ambiguity. The words “personal property,” when used as they are used in this will, could create a latent ambiguity, but for the fact that the testator specifically gave “full power” to his executrix to determine what property was included within the bequest under Article Four. Consequently, there is no room for construction. The will will be taken as written. Gotlieb v. Klotzman, supra. We hold, therefore, that the judge incorrectly admitted and considered extrinsic evidence in determining testator’s intent, and because he erred, his judgment is due to be reversed and the cause remanded.

REVERSED AND REMANDED.

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


author: BEATTY, Justice. SHORES, Justice TORBERT, Chief Justice MADDOX, Justice

text:
    DRS. LANE, BRYANT, EUBANKS & DULANEY, a Partnership Composed of Martin L. Lane, Edward L. Bryant, Jr., R. Eubanks, Jr., and Frank M. Dulaney v. Margaret B. OTTS, as Administratrix of the Estate of William E. Otts, deceased.
    80-518.
    Supreme Court of Alabama.
    March 26, 1982.

      Alton R. Brown, Jr. and James H. Crosby of Brown, Hudgens, Richardson, Whitfield & Gillion, Mobile, for appellants.
    Richard Bounds and Robert T. Cunningham, Jr. of Cunningham, Bounds, Byrd, Yance & Crowder, Mobile, for appellee.
   BEATTY, Justice.

Plaintiff, Margaret B. Otts, filed this action in Mobile Circuit Court against Drs. Lane, Bryant, Eubanks and Dulaney, board certified anesthesiologists, seeking damages for the death of William E. Otts resulting from the alleged negligence and wantonness of the physicians. Otts was scheduled for orthopaedic surgery. His surgeon arranged for the defendant group of physicians to provide anesthesia service to him during the course of his surgery. The group employed Certified Registered Nurse Anesthetists (hereinafter CRNA’s), registered nurses who receive two years of specialized on-the-job training in the administration of anesthesia. It was the group’s policy to permit CRNA’s to handle the anesthetic management of patients from the beginning of a surgical procedure until the end without the presence of a board certified M.D./anesthesiologist. The critical facts in this case center around the period during which Otts was anesthetized.

During the course of Otts’s surgery on April 30, 1974, the CRNA employed by the defendants experienced difficulty in ventilating the patient Otts through the endotra-cheal tube. Dr. Lane, the nearest anesthesiologist, who was administering anesthesia in another operating room, was not called by the CRNA until Otts suffered a cardiac arrest. After surgery and upon leaving the operating room, Otts suffered from severe brain damage and was in a coma. He died six weeks later at Thomasville Hospital while still comatose.

Plaintiff offered evidence to support her contention that Otts’s death resulted from lack of oxygen to the brain which was caused by an uncorrected airway obstruction. Furthermore, through expert testimony, plaintiff attempted to show that the failure of the CRNA to call for help at the moment she had difficulty ventilating Otts was a departure from accepted medical standards. The defendants contended that the lack of oxygen to the brain was caused by an “air embolus.”

The jury returned a verdict in favor of plaintiff in the amount of $500,000.00. The defendants’ post-trial motions were denied and they appeal. We affirm.

Defendants raise eight issues on appeal. They claim the trial court committed reversible error:

(1) By giving certain charges requested by plaintiff and by refusing to give a particular charge requested by defendants pertaining to the standard of medical care;

(2) By not requiring plaintiff to read the entire former testimony of an unavailable expert witness;

(3) By refusing to admit into evidence an article entitled “Pathophysiology in Intravenous Air Embolisms in Dogs”;

(4) By requiring defendants to cross-examine one of plaintiff’s witnesses during the presentation of plaintiff’s case in chief;

(5) In refusing to strike the ad damnum clause of the amended complaint;

(6) In allowing plaintiff to comment to the jury regarding defendants’ decision not to call a particular witness;

(7) In allowing plaintiff to argue defendant’s daily income; and

(8) In allowing plaintiff to argue the value of human life during closing argument.

I

Defendants claim that the trial court committed reversible error by giving plaintiff’s Requested Charges 1, 8 and 11.

Plaintiff’s Requested Charge No. 1:

“The Court charges the jury that in performing professional services for a patient, a medical doctor has a duty to use that degree of learning and skill ordinarily possessed and used by members of his profession and specialty, and in the application of his skill and learning he is also under a duty to use ordinary care and diligence.”

Plaintiff’s Requested Charge No. 8:

“The court charges the jury that Drs. Lane, Bryant, Eubanks & Dulaney owed to William E. Otts the duty to exercise such reasonable care, skill and diligence in the treatment of William E. Otts which physicians in the same general neighborhood, and in the same line of practice, ordinarily have and exercise in a like case. The court further charges the jury that the same general neighborhood refers to a national medical neighborhood or national medical community, of reasonably competent physicians in the same line of practice acting in the same or similar circumstances. [Emphasis added.]”

Plaintiff’s Requested Charge No. 11:

“The Court charges the jury that Drs. Lane, Bryant, Eubanks and Dulaney owed to William E. Otts the duty to exercise that degree of care, skill and diligence in their treatment of William E. Otts which reasonably competent physicians in the same line of practice in the national medical neighborhood or national medical community would have exercised under the same or similar circumstances. The Court further charges the jury that this duty to exercise such reasonable care, skill and diligence cannot be lowered by the physicians in Mobile County, Alabama, by generally accepting and engaging in a negligent standard of care.”

Defendants complain that Charge No. 1 failed to condition defendants’ duty on “that degrée of care and skill as physicians and surgeons in the same general neighborhood, pursuing the same general line of practice ordinarily exercised in like cases.” They cite Parrish v. Spink, 284 Ala. 263, 266, 224 So.2d 621 (1969), for this proposition. The entire charge must be reviewed to determine if there is reversible error. Wright v. Rowland, Ala., 406 So.2d 830 (1981). Our review reveals that the trial court, more than once, characterized defendants’ duty in accord with this Court’s opinion in Parrish, supra. Thus, we cannot say that defendants were prejudiced by the giving of Charge No. 1.

Issue is taken with Charges 8 and 11 because they describe the “same general neighborhood” as the “national medical neighborhood” or “national medical community.” Defendants claim that these charges imposed a higher degree of care on physicians in the treatment of a patient than required by Alabama law. That is, defendants argue that the “same general neighborhood” rule, codified in Code of 1975, § 6-5-484(a), should not have been defined beyond its usual and customary meaning.

In Zills v. Brown, Ala., 382 So.2d 528 (1980), a plurality of this Court was of the opinion that “the language ‘same general neighborhood’ ... refer[s] to the national medical neighborhood or national medical community, of reasonably competent physicians acting in the same or similar circumstances.” Id. at 532. (Emphasis in original.) We agree with that description for the same reasons given by the plurality, notably that:

“Locality rules have always had the practical difficulties of: (1) a scarcity of professional people in a locality or community qualified to testify; and (2) treating as acceptable a negligent standard of care created by a small and closed community of physicians in a narrow geographical region. Distinctions in the degree of care and skill to be exercised by physicians in the treatment of patients based upon geography can no longer be justified in light of the presently existing state of transportation, communications, and medical education and training which results in a standardization of care within the medical profession. There is no tenable policy reason why a physician should not be required to keep abreast of the advancements in his profession. [Id. at 532.]”

Defendants argue that, even if a national neighborhood standard applied in this case, the trial court committed reversible error in refusing to give defendant’s Requested Charge No. 36, which stated:

“The Court charges the jury reasonably skilled physicians acting in the same or similar circumstances are not held to a national standard where it has been demonstrated that such a standard could not, because of justifiable circumstances, be adhered to.”

That charge complies with the exception to the national standard of care enunciated in Zills, supra at 532. Therefore, defendants claim they were entitled to a charge excusing them from the national standard if justifiable circumstances were demonstrated. According to defendants, the facilities, equipment, availability of physicians and logistics on the date of the surgery prevented them from meeting the national neighborhood standard. We disagree.

Evidence demonstrating “justifiable circumstances” for not adhering to the national standard of care is admissible as a defense in a medical malpractice case in which noncompliance with that standard is in issue. “Justifiable circumstances” may include the circumstances of medical resources available to the medical practitioner and, by allowing proof of that circumstance, allowance is made for the type of local community, and its medical resources, in which the physician practices his profession. Cf. Brune v. Belinkoff, 354 Mass. 102, 235 N.E.2d 793 (1968). Allowance of “justifiable circumstances,” moreover, assures that the local practitioner need not run the risk of being judged by a national standard which may be abstractly unaffected by local conditions.

In the present case, however, the record reveals through expert testimony that the national standard and the local standard, i.e., the Mobile standard, are the same. That is to say, the failure of the CRN A to call for assistance upon first realizing that she had a problem ventilating the patient was a departure from the accepted standard of care in Mobile as well as elsewhere in the national medical community. Consequently, the defendants were not prejudiced by the failure to give Charge No. 36 as it applied to a national standard of care because “justifiable circumstances” are not a defense under a local standard of care. Arguendo, even if the standards were not the same, no “justifiable circumstances” were shown to exist to prevent the CRNA from complying with the national standard, i.e., summoning Dr. Lane, an anesthesiologist, from another operating room in the same hospital when she first encountered a problem. Thus, the trial court did not err in refusing to give Charge No. 36.

II

Plaintiff called Dr. James Arens, professor in charge of the Department of Anesthesiology at the University of Texas Medical Branch in Galveston, by means of reading his former testimony from the first trial of this case. Defendants objected to the court allowing plaintiff to read only the direct testimony of the witness. However, the cross-examination portion of the testimony had not been transcribed prior to the trial in question.

Defendant argues that the failure of the trial court to strike the testimony violated “the rule of compulsory completeness.” That is, if testimony from a former trial is introduced, the entirety must be received in evidence. Chastain v. Brown, 263 Ala. 440, 82 So.2d 904 (1955). Nevertheless, the circumstances of this case excuse compliance with that rule. The record reveals that an agreement was reached at a pretrial conference providing that the depositions or prior testimony of any of the experts not available for trial could be used by either party. There is no indication that defendants requested the court’s assistance in getting the cross-examination testimony transcribed or for a delay in the proceedings so that the testimony could be obtained. For these reasons, we find no merit in defendant’s argument.

III

Defendants contend that the trial court erred in refusing to admit into evidence an article entitled, “Pathophysiology in Intravenous Air Embolisms in Dogs,” which appeared in the journal Anesthesiology. A treatise, essay, or pamphlet on a subject of science which is testified to by an expert as being standard and trustworthy on the subject is admissible. Meadows v. Coca-Cola Bottling, Inc., Ala., 392 So.2d 825 (1981). However, “relevant extracts from medical treatises are not in themselves self-proving, but are admissible only when recognized and approved by the medical profession as standard.” Berry v. Robertson, 285 Ala. 623, 631, 235 So.2d 657 (1970), quoting Smarr v. State, 260 Ala. 30, 36, 68 So.2d 6 (1953). Here, although experts testified that the publication Anesthesiology is standard and trustworthy, there is no evidence that the article contained within the journal is standard. Moreover, even if it had been error to exclude this exhibit, the error would be harmless as the content of the article was established by other evidence offered by defendants. McLemore v. Alabama Power Company, 289 Ala. 643, 270 So.2d 657 (1972).

IV

Plaintiff introduced by deposition the testimony of Dr. Stephen Prevoznik, an anesthesiologist. When the cross-examination portion of Dr. Prevoznik’s deposition was reached, the trial court instructed defendants to read into evidence testimony which defendants claim they specifically desired to reserve and place on during their case in chief. Defendants argue that they should not have been required to introduce the evidence at that time.

The record shows that the trial court did not require defendants to introduce evidence, but rather ruled that if defendants wished to introduce the cross-examination, they should do it at the time specified by the court. The mode of conducting the examination of witnesses and the order of introducing evidence are matters within the discretion of the trial court, .and the exercise of this discretion is not revisable by the appellate court. Drum & Ezekiel v. Harrison, 83 Ala. 384, 3 So. 715 (1887); accord, Landers v. Ramey, 245 Ala. 283, 16 So.2d 785 (1944).

V

Defendants argue that the trial court erred in refusing to strike and in reading to the jury the ad damnum clause of the amended complaint, which demanded judgment in the amount of one million dollars. The Medical Malpractice Act, Code of 1975, § 6-5-483, requires the ad damnum clause to be eliminated in complaints alleging medical liability. We withhold judgment on the constitutionality of that Act under § 43 of the Alabama Constitution since it has no application in this case because it became effective on September 23, 1975, after the alleged negligence in this case and the filing of the original complaint on June 17, 1975. We recognize the common law rule that statutes are in force from the date of their approval when no time is fixed for them to take effect. National Security Ins. Co. v. Freeman, 281 Ala. 152, 199 So.2d 851 (1967). The trial court was correct in applying the law prevailing when suit was first filed, not § 6-5-483.

VI

Defendants contend that it was reversible error for the trial court to allow comments by plaintiff’s counsel during the closing arguments to the jury on the failure of defendants to call Dr. Mostellar, a neurosurgeon, as a witness. Dr. Mostellar had examined the plaintiff’s decedent and made certain notes which were admitted into evidence as part of the decedent’s medical records. One notation by Dr. Mostellar stated that Otts, the decedent, would “have 90 percent return in three months.” During closing arguments by plaintiff’s attorney, the following occurred:

“[Plaintiff’s counsel]: Mr. Brown talked about Dr. Mostellar’s statement in that record. You know, if Dr. Mostellar was going to elaborate or expand on that and tell you that in his judgment that this man would be back in 60 or 90 days, I believe that he wouldn’t be out on Spring Hill Avenue in his office. The Defendants would have him here and had him tell you—
“[Defendant’s counsel]: If Your Honor please, we’re going to. object to that. Dr. Mostellar was equally available to the Plaintiff to have him down here and explain to this jury what he meant by that 90 percent return in three months. We think it’s unfair comment and move to exclude it and ask you to express that to the jury.
“THE COURT: Overruled.
“[Defendant’s counsel]: We except.”

We held in Donaldson v. Buck, Ala., 333 So.2d 786, 787 (1976), that the general rule is “that a party cannot comment in argument upon the failure of his opponent to call a particular witness if the witness is equally accessible to both parties.” However, “being amenable to process is not the sole criterion for determining ‘equal availability’ within the meaning of the rule.” Id. at 788. The question before us, then, is whether, under the circumstances, Dr. Mos-tellar was equally accessible to both parties.

The defense in this case was on the issue of “causation.” Defendants had to reasonably satisfy the jury that the lack of oxygen to Otts’s brain was caused by something other than the CRNA’s negligence, such as an air embolus, or that the damage was only temporary and, had he received proper post-operative care in the Thomas-ville Hospital, he would have recovered. The entry made by Dr. Mostellar in the medical records clearly indicated that testimony from him would be favorable to the defendants. It is not unreasonable to conclude that he would be friendly toward defendants and unfriendly toward plaintiff. Under these circumstances we cannot find that Dr. Mostellar was “equally available” to plaintiff as to defendants as that term is used in Donaldson and the cases discussed therein. Moreover, the trial court was in a better position to weigh the claims of equal availability. We do not find that the court abused its discretion in overruling the objection relative to the absence of the witness.

VII

Defendants also complain that the trial court erred by allowing plaintiff’s counsel to argue defendant’s daily income. The record reveals this argument:

“[Plaintiff’s counsel]: What I’m saying is, if you take those four doctors and put them circulating, supervising CRNA’s under the practice at that time, that $8,400.00 a day is reduced to $6,000.00 a day.
“[Defendant’s counsel]: If Your Honor please, that is highly immaterial.
“[Plaintiff’s counsel]: It is the'evidence, Judge. I am not going to say what— project that in any way. I’m just saying that—
“THE COURT: Go ahead.
“[Plaintiff’s counsel]: They would make one-third less according to figures in 1974.
“[Defendant’s counsel]: We object to this and ask your Honor to exclude it and instruct the jury to disregard it.
“THE COURT: I will in a minute.”

The general objection made by defendants is insufficient. The overruling of such an objection by the trial court will be affirmed on appeal unless the evidence objected to is inadmissible for any purpose and cannot be made legal by introducing other evidence or by otherwise framing the inquiry. Satterwhite v. State, Ala., 364 So.2d 359 (1978). See generally, Gamble, McElroy’s Alabama Evidence, § 426.01(7)-(10) at 797-802 (3d ed. 1977). We held in Miller v. Dacovich, Ala., 355 So.2d 1109 (1978), that the financial condition of the parties is never material unless directly involved in the determination of compensable damages. This action is one for wrongful death where only punitive damages are allowed. However, before there can be a reversal for improper argument, the statement must be made as a fact and not as an illustration. Southern Railway Co. v. Jarvis, 266 Ala. 440, 97 So.2d 549 (1957). Plaintiff’s comment about defendants’ daily income being reduced if they supervised the CRNA’s was not a fact supported by the evidence. It appears to have been an illustration which we do not regard as being so inflammatory as to warrant reversal.

The record does not reflect that the trial court ever instructed the jury to disregard plaintiff’s last comment in the portion of the argument quoted above. We consider that minor error to be one without injury, Rule 45, Alabama Rules of Appellate Procedure, particularly since defendants did not call the matter to the court’s attention again.

VIII

Plaintiff’s counsel closed his argument to the jury by comparing the damages to be awarded for a man’s personal injuries and those to be awarded in a death action. Defendants made a continuing objection to the argument, though stating no ground, and now contend that the trial court erred in failing to sustain and correct the allegedly improper argument. However, in response to one objection by defendants contending that plaintiff was attempting to argue that she was entitled to damages based on the worth of the life of the decedent, the court said that was not the law. Again, it appears that this argument emphasized the difference in the damages which were authorized in an action such as this, i.e., one for wrongful death, and thus it was not inappropriate. Counsel’s comment concerning the value of life, used in the context of wrongful death, has been held to be proper jury argument. Estes Health Care Centers, Inc. v. Bannerman, Ala., [1982] 411 So.2d 109 (1982). Additionally, a review of the court’s instructions to the jury regarding punitive damages shows that they were complete, thereby having a curative effect.

There being no error requiring reversal, the judgment of the trial court is due to be, and is, affirmed.

AFFIRMED.

FAULKNER, JONES, EMBRY and ADAMS, JJ., concur.

ALMON and SHORES, JJ., concur in the result.

TORBERT, C. J., and MADDOX, J., dissent.

SHORES, Justice

(concurring in the result):

I concur in the result only because I cannot agree that “the same general neighborhood” rule adopted by the legislature in § 6-5-484, Ala.Code 1975, was intended to mean the national medical community. I am not sure what “national medical community” means.

We all know that physicians, like lawyers, are trained in schools, some of which are excellent and some of which are woefully inadequate. Physicians, like lawyers, are not tested by medical standardized tests and are not subjected to identical continuing medical education. It just seems to be unreasonable to say that a physician practicing in a rural Alabama County should be judged by the same standards as one practicing in New York or some other metropolitan area affording a greater opportunity to keep abreast of the very latest techniques and treatments.

I concur in the affirmance only because, in this case, the evidence showed that the defendant failed to follow the standard prevailing in Mobile and that practiced by other physicians under circumstances the same as or similar to those prevailing in Mobile.

ALMON, J., concurs.

TORBERT, Chief Justice

(dissenting).

I respectfully dissent from that portion of the majority’s decision that allows the giving of plaintiff’s requested jury charge No. 8, thus adopting a national standard to apply to the medical community in Alabama. As I stated in my dissent in Zills v. Brown, 382 So.2d 528 (Ala.1980), physicians in Alabama are to be held to the degree of care and skill that physicians in the “same general neighborhood” pursuing the same general line of practice ordinarily exercise in like cases. Watkins v. United States, 589 F.2d 214 (5th Cir. 1979); Lea v. Family Physicians, P. A., 517 F.2d 797 (5th Cir. 1975); Parrish v. Spink, 284 Ala. 263, 224 So.2d 621 (1969); Orange v. Shannon, 284 Ala. 202, 224 So.2d 236 (1969); Moore v. Smith, 215 Ala. 592, 111 So. 918 (1927).

Yet the holding of the majority equates “same general neighborhood” with “national medical neighborhood.” This is clearly contrary to the usual and customary meaning of “same general neighborhood,” as well as the interpretation given that phrase by the courts of Alabama, by the Federal courts applying Alabama law, and by the legislature when it provided:

“In performing professional services for a patient, a physician’s, surgeon’s or dentist’s duty to the patient shall be to exercise such reasonable care, diligence and skill as physicians, surgeons, and dentists in the same general neighborhood, and in the same general line of practice, ordinarily have and exercise in a like case. In the case of a hospital rendering services to a patient, the hospital must use that degree of care, skill and diligence used by hospitals generally in the community.”

Code 1975, § 6-5 — 484. This standard has been consistently followed and has been firmly entrenched in Alabama law. With the adoption of § 6-5 — 484, it is obvious that the legislature intended for the “same general neighborhood” rule to keep its original meaning; that is, the locality rule. This mandate and expression of legislative intent cannot be ignored by this Court, and any change to a national community standard should be a matter of legislative prerogative— not a judicial one. See, Bly v. Rhoads, 216 Va. 645, 222 S.E.2d 783 (1976).

By equating “national medical neighborhood” with “same general neighborhood,” the majority adopts the plurality opinion in Zills v. Brown, 382 So.2d 528 (Ala.1980). The majority also overrules a long line of Alabama cases that have adopted and followed the locality rule and interpreted the phrase “same general neighborhood” to mean the city or community in which the doctor practices and the surrounding areas.

I would hold that the trial court erred in giving plaintiff’s requested jury charge No. 8, as it conflicts with the locality rule as set out in Alabama case law and in Code 1975, § 6-5 — 484. Therefore, I would reverse the decision and grant defendants’ motion for a new trial.

MADDOX, Justice

(dissenting).

I believe the Court committed reversible error in giving plaintiff’s requested charge No. 8, which reads as follows:

“The court further charges the jury that the same general neighborhood refers to a national medical neighborhood or national medical community, of reasonably competent physicians in the same line of practice acting in the same or similar circumstances.” (Emphasis added.)

I cannot apply the harmless error rule because the instruction states an incorrect principle of law. The proper standard of care, in my opinion, is that I set forth, in a special concurring opinion, in Zills v. Brown, 382 So.2d 528, 533 (Ala.1980). Furthermore, the application of the harmless error rule in this case is made more difficult because of the trial court’s action in permitting plaintiff’s counsel to argue defendants’ daily income. After examining the whole case, I believe the appellants have shown that they did not receive a fair trial, for the reasons I have stated; therefore, I would reverse.

      . The first trial of this case was declared a mistrial because the jury was unable to reach a verdict.

      . We assume that the trial court overruled the objection by instructing plaintiffs counsel to “Go ahead.”


author: SENTELL, Clerk.

text:
    OPINION OF THE CLERK.
    Opinion No. 38.
    Supreme Court of Alabama.
    April 1, 1982.
   SENTELL, Clerk.

RULE 45, ALABAMA RULES OF JUDICIAL ADMINISTRATION — COSTS FOR CERTIFICATION OF COURT RECORDS ON CHANGE OR TRANSFER OF VENUE

RULE 43, ALABAMA RULES OF JUDICIAL ADMINISTRATION — COLLECTION AND DISTRIBUTION OF FEES

Mr. Allen L. Tapley, Administrative Director of Courts, has asked me, pursuant to § 12-2-19(d), Code 1975, whether the fees charged by a court clerk for a copy of the docket sheet and for its certification, when a case has been transferred to another county upon the granting of a motion for change of venue, are charged to the moving party in all instances.

My answer to the question is in the negative. In my opinion, the fees charged by a court clerk, pursuant to Rule 45, Alabama Rules of Judicial Administration, for a copy of the docket sheet and for its certification, when a change or transfer of venue has been ordered by the court on motion of a party, should be taxed as court costs pursuant to the order of the trial court.

The pertinent part of subsection (A) of Rule 45, as amended, Alabama Rules of Judicial Administration, is as follows:

“(a) A fee of 25 cents per page shall be charged for copies of court records made by any clerk or register. A fee of $1.00 shall be charged by the clerk or register for each certification made to copies of court records.... ”

The first sentence of § 6-3-22, Code 1975, reads:

“When a change or transfer of venue has been ordered pursuant to section 6-3-20 or section 6-3-21, the clerk of the court shall make a copy of the docket sheet in the action and shall certify under the seal of the court that the same is a true copy.”

Section 6-3-20, Code 1975, reads, in part, as follows:

“Either party to a civil action may move the court to change the venue at any time before final trial, making affidavit that for causes set forth, he cannot have a fair and impartial trial in the county where the action is pending. The court may direct a change to the nearest county free from proper objection by either party, to be determined by affidavits and, whenever it will best secure the ends of justice, it may require the applicant to give bond and security for costs.... ”
Section 6-3-21, Code 1975, is as follows: “Transfer of Venue.
A defendant in a civil action may move for a transfer of venue as provided in the Alabama Rules of Civil Procedure.”

The pertinent part of Rule 82(d), Alabama Rules of Civil Procedure, reads:

“(d) Improper venue. When an action is filed laying venue in the wrong county, the court, on timely motion, shall transfer the action to the court in which the action might have been properly filed and the case shall proceed as though originally filed therein.”

The part of Rule 54(d), Alabama Rules of Civil Procedure, pertaining to the allowance of court costs reads:

“(d) Costs. Except when express provision therefor is made in a statute, costs shall be allowed as of course to the prevailing party unless the court otherwise directs, and this provision is applicable in all cases in which the state is a party plaintiff in civil actions as in cases of individual suitors.”

Since costs are not ordinarily taxed until the final order is entered in a case, the question arises: Who collects the cost taxed for a copy of the docket sheet and for its certification when a change or transfer of venue has been ordered by the court on motion of a party?

Rule 43, as amended, Alabama Rules of Judicial Administration, contains the following provision for the collection of court costs when there has been a change or transfer of venue:

“... If the case is transferred to another court because of a change of venue or otherwise, the clerk of the court in which the case was filed shall certify to the court to which the case is transferred the fees which have been collected. Fees in a case which accrue subsequent to the transfer shall be collected and distributed by the clerk of the court to which the case was transferred.... ”

In my opinion, the cost for a copy of the docket sheet and for its certification when there has been a change or transfer of venue should be collected by the clerk of the court which enters the order for its payment.


author: EMBRY, Justice.

text:
    C. H. QUICK v. Gordon CAMPBELL.
    80-669.
    Supreme Court of Alabama.
    April 2, 1982.

      Robert Straub of Russell & Straub, Decatur, for appellant.
    Larry C. Weaver and John S. Key, of Eyster, Eyster, Key & Tubb, Decatur, for appellee.
   EMBRY, Justice.

C. H. Quick appeals from a judgment ordering him to pay $64,200 to Gordon Campbell under the provisions of a contract to repurchase stock from Campbell upon termination of Campbell’s employment at New Decatur Radio, Inc., d/b/a WMSL. Quick contends that the trial court’s enforcement of the contract leads to an unconscionable result and a disregard of the parties’ intent and, further, that the trial court erred in its valuation of the stock. We affirm.

In December 1978 C. H. Quick owned 100%, of the stock of New Decatur Radio, Inc., which operated radio station WMSL. Quick, individually and as president of New Decatur Radio, entered into an employment agreement with Gordon Campbell on 26 December 1978, by which Campbell was to become general manager of the radio station beginning in January 1979. Quick had been managing the station himself but felt that with a full-time manager the station might become more profitable. He had known Campbell for three years, although the two had never worked together. Campbell was general sales manager for radio stations WDRM and WHOS in Decatur at the time he agreed to go to work for New Decatur Radio.

As a result of the agreement, consummated on 18 May 1979, a share of stock in New Decatur Radio was issued to Campbell in consideration of the payment of $18,000 in cash plus a promissory note for $7,000, payable 18 May 1980. On 17 March 1980, a dispute between Quick and Campbell resulted in Quick’s asking for Campbell’s resignation, which was given. On 16 May 1980, Campbell offered to pay the balance due on the note plus accrued interest; Quick refused that offer. Thereupon, Campbell filed this action seeking a determination of the fair market value of his stock and specific performance of the employment agreement that in parts pertinent to this case reads:

“8. As an inducement to Employee to enter into this agreement, Employer and Owner grant to Employee the option to purchase forty-nine (49%) percent of the outstanding shares of Employer’s stock to be exercised as follows:
“(a) At the end of twelve (12) months of continuous employment with Employer by Employee, Employer [sic] shall have the right to purchase from Owner ten (10%) of the outstanding stock of Employer for the total price of TWENTY-FIVE THOUSAND AND NO/100 ($25,-000.00) DOLLARS. Owner agrees to accept as payment for said stock, TEN THOUSAND AND NO/100 ($10,000.00) DOLLARS cash and finance the balance on terms to be agreed upon at the time.
“(b) The balance of thirty-nine (39%) percent may be purchased by Employee for the total purchase price of THREE HUNDRED TWENTY-FIVE THOUSAND AND NO/100 ($325,000.00) DOLLARS in four (4) increments consisting of ten (10%) percent for each of the first three (3) increments and one (1) final increment of nine (9%) percent of the total outstanding stock. The first of such purchases may be made by Employee at the end of the second twelve month term of employment or at agreed upon extensions thereof, and one (1) increment may be purchased in each successive twelve (12) month period, or extension agreed upon. Employee shall have twelve (12) months in which to exercise each right to purchase granted in this agreement. The total purchase price for said thirty-nine (39%) shall be paid in four (4) equal increments of EIGHTY-ONE THOUSAND TWO HUNDRED FIFTY AND NO/100 ($81,250.00) DOLLARS to be paid at the time each increment of stock is purchased according to the terms hereof. Owner agrees to finance a part of the purchase price of each increment at the prevailing prime interest rate for a term to be agreed upon.
“9. In the event of the death of Employee or the termination of this agreement prior to Employee acquiring forty-nine (49%) percent of the stock, Owner shall purchase all of the stock owned by Employee at the fair market value of such stock at the time of Employee’s death or the termination of this agreement. Payment for such stock shall be made by Owner within six (6) months of the date of Employee’s death or the termination of this agreement.

The trial court heard the case without a jury on 6 May 1981 and entered its judgment on the same day. The fair market value of the stock as of the pertinent date in question was fixed at $60,000 and judgment was entered for the sum of $64,200. Campbell was ordered to transfer the stock to Quick and deliver it to the register in chancery, who, in turn, was to deliver it to Quick upon satisfaction of the judgment. Quick then filed a motion for new trial that was denied, after which he timely perfected this appeal.

Quick says the construction given to the contract by the trial court is unconscionable and therefore is due to be reversed. The cases which he cites for this proposition, however, apply this rule only to situations where a contract is subject to more than one construction and is ambiguous. In that event, the courts may look to the conduct of the parties, the provisions of the contract and its subject matter in construing the contract to ascertain the intent of the parties, and give it a reasonable construction to avoid unconscionable results. Charles H. McCauley Associates v. Snook, 339 So.2d 1011 (Ala.1976); GFA Peanut Association v. W. F. Covington Planter Company, 238 Ala. 562, 192 So. 502 (1939); International Harvester Company v. Bostick’s International, Inc., 365 So.2d 84 (Ala.Civ.App.1978).

Quick points to no ambiguity or uncertainty in the contract; he only approaches the periphery of that argument when stating: “The contract itself states that the stock purchase agreement is an inducement to Campbell and sets a price for the first share at $25,000.00.” Quick testified that it was his intention and belief that the value of that one share of stock was $25,000. The contract unambiguously says the stock is to be repurchased at fair market value. The gist of this argument is that it is unjust to allow Campbell to “terminate the agreement by his own misconduct and reap a harvest of more than twice his investment in less than one year.” Passing over the fact that Campbell denies any misconduct, we note it was Quick who terminated the agreement by giving Campbell the choice of quitting or being fired because of an incident that occurred in connection with a broadcast made shortly before Campbell’s resignation was requested. Under the evidence in this case, neither is Quick an innocently wronged party, nor is the award so harsh as to be unconscionable.

Campbell produced the witness Thomas Averett, a certified public accountant, who used evaluation methods and formulae pertinent to closely held corporations, and to radio stations, in reaching a fair market value as of 17 March 1980 of $920,000 for New Decatur Radio, Inc., thereby arriving at a value of $92,000 for a 10% interest. The financial statements and tax returns of the company used in his evaluation support a value ranging from $75,000 to $90,000 for one share of stock. The employment agreement permits Campbell to buy the additional shares, representing a 39% interest, at approximately $83,000 per share. Campbell testified that Quick told him this was the value of the stock.

The mere fact that Quick offered Campbell a share of stock at a discounted value as an inducement to leave his work at another Decatur radio station does not necessarily fix the value of that share at $25,-000. Quick cites cases in support of his argument that stock in the hands of a minority shareholder of a closely held corporation is not worth as much as that in the hands of a majority shareholder. Helvering v. Safe Deposit and Trust, 95 F.2d 806 (4th Cir. 1938); Foglesong v. Thurston Nat. Life Ins. Co., 555 P.2d 606 (Okla.1976). That is merely one fact to be taken into consideration when weighing the evidence concerning the value of the stock. It is not binding, and may be given such weight as the trial court is of the opinion it bears on the issues in the ease. As a matter of fact, the evidence of record will support a much higher valuation of the stock than its value as determined by the trial court.

We find no error in the record; therefore the judgment is due to be and is hereby affirmed.

AFFIRMED.

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


author: ADAMS, Justice.

text:
    CITY OF GADSDEN; James S. Phillips, Intervenor, v. Gladys W. DOWNS, et al.
    80-743.
    Supreme Court of Alabama.
    April 2, 1982.

      Roger W. Kirby, City Atty., Gadsden, for appellant.
    James C. Stivender of Inzer, Suttle, Swann & Stivender, Gadsden, for appellees.
   ADAMS, Justice.

The City of Gadsden appeals from a circuit court decree holding invalid its ordinance rezoning a lot from residential to business classification. We find that the trial court erred in holding that the City’s action was “arbitrary and capricious and not in accordance with a comprehensive plan,” and, therefore, we reverse and remand with directions.

The lot in question, 406 South Fourth Street in Gadsden, is owned by James S. Phillips (defendant-intervenor below), who sought to relocate his Century 21 real estate office onto the property. The property had been zoned R-3 Multi-Family Residential since Gadsden adopted a city-wide comprehensive zoning ordinance in 1949. Phillips initially requested a variance, but was instructed to apply for rezoning. On June 5, 1980, the Board of Commissioners of the City of Gadsden adopted Ordinance 0-26-80, which changed this property to B-2 General Business. Phillips has used the property for his office since that date.

The block of South Fourth Street in which Phillips’s lot is situated is bounded on the north by Bay Street and on the south by Cherry Street. Many of the lots in this vicinity are now used for business under either a variance or a B-2 zoning classification. In fact, the first two lots on both sides of South Fourth Street south of Bay Street are zoned B-2, and Phillips’s lot is the third lot on the east side. To the rear of Phillips’s lot, on the west side of South Third Street, the entire block between Bay Street and Cherry Street is zoned B-2. Thus, the Zoning Board instructed Phillips to apply for a zoning change rather than a variance because his property was bounded to the north and east by a B-2 district.

Medical Arts Lab operates an annex under a variance on the east side of South Fourth Street four lots south of Phillips’s property. On the west side of this block of South Fourth Street are six buildings operated as businesses under variances — three doctors’ offices, a dentists’ office, an insurance office, and a building that houses realty, insurance and dentist offices.

Plaintiffs in this case are residents of the neighborhood who object to its residential character being eroded. They entered into evidence a petition signed by some ninety area residents who object to the rezoning of 406 South Fourth Street. We are sympathetic to the complaints of these plaintiffs who wish to preserve the neighborhood in which many of them have lived for most of their lives.

However, judicial review of local zoning decisions is extremely limited and narrowly confined. City of Birmingham v. Morris, 396 So.2d 53 (Ala.1981).

While the court is given the power to review the validity vel non of an ordinance or other legislative act, it is not given the power to review the wisdom or unwisdom, or the rightness or wrongness of laws passed by the legislative power delegated to the City Council of the City of Birmingham, or like bodies.
“Every intendment is to be made in favor of the zoning ordinance and the matter was largely in the legislative discretion of the municipal authorities... . Here the city Commission is acting in the exercise of a legislative function and with a wide degree of discretion.”

Episcopal Foundation of Jefferson County v. Williams, 281 Ala. 363, 202 So.2d 726 (1967) (citations omitted).

A court should overturn a zoning ordinance only if it finds the action of the municipal body to be arbitrary and capricious. The test for making this determination was set out in Waters v. City of Birmingham, 282 Ala. 104, 209 So.2d 388 (1968): “[I]f the adoption of the ordinance raises questions upon which reasonable differences may exist in view of all the circumstances, and the wisdom of the ordinance is fairly debatable, then the action of a municipal governing body in adopting the ordinance will not be deemed arbitrary .... ” Id., at 108. This test, with emphasis on the “fairly debatable” aspect, has been applied consistently by this Court. E.g., City of Birmingham v. Morris, 396 So.2d 53 (Ala.1981); Cale v. City of Bessemer, 393 So.2d 959 (Ala.1980); City of Birmingham v. Norris, 374 So.2d 854 (Ala.1979); and Come v. Chancy, 289 Ala. 555, 269 So.2d 88 (1972).

Although the decree of the court below states that the action of the City in adopting the ordinance was arbitrary and capricious, we do not find support in the record for this holding. As the facts set out above indicate, it is at least “fairly debatable” that the character and use of property in the neighborhood is changing to business and professional offices. With so much business property in the immediate vicinity of this lot, we cannot say that the action of the City was mere “arbitrary fiat.” Episcopal Foundation of Jefferson County v. Williams, supra.

The trial court’s decree also states that the ordinance is not in accordance with a comprehensive plan. The parties agree, however, that the City of Gadsden does have a comprehensive zoning plan that covers the whole city. It is well settled in this state that an ordinance amending a comprehensive plan does not itself have to be comprehensive. Grund v. Jefferson County, 291 Ala. 29, 277 So.2d 334 (1973); Haas v. City of Mobile, 289 Ala. 16, 265 So.2d 564 (1972); Episcopal Foundation of Jefferson County v. Williams, supra.

Therefore, the decision of the court below is reversed and the cause is remanded for the court to vacate its decree and enter one sustaining the validity of Ordinance 0-26-80, as it applies to 406 South Fourth Street, Gadsden, Alabama.

REVERSED AND REMANDED WITH DIRECTIONS.

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


text:
    Ex parte SOUTH CAROLINA INSURANCE COMPANY and Crawford and Company. (In re Lenton LANCASTER v. CRAWFORD AND COMPANY, et al.)
    80-846.
    Supreme Court of Alabama.
    April 2, 1982.

      Robert M. Girardeau of Huie, Fernam-bucq & Stewart, Birmingham, for petitioners.
    Michael L. Roberts of Floyd, Keener & Cusimano, Gadsden, for respondents.
   FAULKNER, Justice.

The defendants filed a petition against Circuit Judge Cyril Smith for a writ of mandamus or in the alternative for a writ of prohibition. We deny the writ.

The background leading to this petition began when Lancaster filed a complaint against his employer, Frame Brick & Tile Company; South Carolina Insurance Company and Seibels, Bruce & Company, the employer’s workmen’s compensation carriers; and the adjusting firm, Crawford and Company. The plaintiff alleged in his complaint fraudulent deprivation of workmen’s compensation benefits, breach of contract, the negligent or willful failure to review Lancaster’s medical evidence, the suppression of a material fact, deceit, misrepresentation, and conspiracy to deprive Lancaster of his claim for workmen’s compensation benefits. Each defendant filed a motion for summary judgment.

Judge Smith granted the motion as to Lancaster’s employer, Frame Brick & Tile Company, but denied the motions as to the other defendants. Following his denial of the motions, the defendants filed their petition for mandamus, or in the alternative, prohibition.

After the statement of the facts, the relief sought is stated as follows:

“These defendants request the Court to dismiss the action in its present posture on the pleadings. It is contended that the actions referred to therein are governed by the workmen’s compensation statutes, and these defendants have immunity therein. It is requested that the jury trial demand be withdrawn inasmuch as the workmen’s compensation statutes should govern and they do not allow for a jury unless the employer asserts willful misconduct of the employee as a defense. In the alternative, these defendants request the court to compel a stay of proceedings until the workmen’s compensation suit is filed or workmen’s compensation benefits, if any, can be ascertained.”

It is elementary that an action of mandamus is brought in a court of competent jurisdiction to obtain an order from that court to command an inferior court to do or not to do an act which the petitioner is entitled to have or not have performed. Here, the petitioner requests this Court to dismiss the action. A proper request would be that this Court command the trial judge to dismiss the action. Be that as it may, from a review of the petition, answer and briefs filed in this Court, it is obvious that the defendants are seeking to do by mandamus that which can be done on appeal. Mandamus cannot be used as a substitute for appeal. Echols v. Housing Authority of Auburn, 377 So.2d 952 (Ala.1979).

WRIT DENIED.

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

      . It cannot be determined from documents filed whether the motion is a Rule 12(b)6, ARCP, motion or a Rule 56 motion.


text:
    Cliff LEACH and Mary Leach v. CRESTWOOD MEMORIAL CEMETERY, INC.
    80-902.
    Supreme Court of Alabama.
    April 2, 1982.
    Harold P. Knight, Birmingham, for appellants.
    James S. Sledge of Inzer, Suttle, Swann & Stivender, Gadsden, for appellee.
   EMBRY, Justice.

This appeal by Cliff and Mary Leach, defendants below, is from an order denying their motion for new trial in a statutory ejectment action that resulted in the judgment ordering them to peaceably surrender possession of the real property, the title to which was determined by the trial court to be in Crestwood Memorial Cemetery, plaintiff below.

The issues for review as stated by the Leaches are:

“A. Are defendants entitled to a jury trial where plaintiff’s complaint alleges ownership by a deed which defendants’ counterclaim alleges was obtained by misrepresentation and fraud?
“B. The trial court erred in failing to allow a trial by jury of the issues of fraud and misrepresentation in the procuring of the deed made the basis of the plaintiff’s complaint.
“C. That plaintiff’s facts in the complaint fail to state a basis for relief sought.
“D. Did the trial court err in overruling motion for new trial as amended?”

The record affirmatively shows there is no merit in the Leaches’ contentions that they were improperly denied a trial by jury. The order of the trial court entered 30 January 1981 demonstrates that fact. It reads:

“This cause being called for trial on the 28th day of January, 1981, and the Court having reviewed the pleadings in the file and determined that the questions involved in the Complaint and the defenses and the Counterclaims were questions of law and not questions which would be submitted to a jury, and the Plaintiff having moved to strike the jury demand, and Defendants not opposing the motion, and the Court having considered the premises, it is, therefore,
“ORDERED that the demand for the trial by jury is stri[c]ken, and the issues presented in this case are to be tried non-jury to determine the right, title and interest of the parties to the real estate in question. The Court specifically withholds making a finding as to whether the Counterclaim of Defendant for fraud and misrepresentation would be a jury question, assuming the Defendants prevail in establishing any right, title and interest to the real estate in question, and that issue will be determined by the Court after a non-jury trial.

There was no timely objection made or exception taken to this order.

We turn now to whether the allegations of the complaint state a basis for the relief sought. The complaint states:

“1. That by to-wit: April 6, 1972, plaintiff purchased the interest of all the heirs of Luther Taylor, who died intestate on to-wit: January 5, 1968, and Sudie Mae Taylor, who died intestate on to-wit: August 6,1968, in the following described real estate, to-wit:
“All of Lot No. 6 in Block No. 2 of the Hadley Farms Addition as recorded in Plat Book ‘B’ at page 236 in the Office of the Judge of Probate, Etowah County, Alabama, and being in Etowah County, Alabama, except that portion of said lot deeded by Mary Nell Thornton, Register to Crestwood Memorial Cemetery, Inc., by deed recorded in Deed Book ‘1078’, page 191, Office of Judge of Probate, Etowah County, Alabama, which portion of said lot is described in said deed as follows:
“A parcel or lot or land described as beginning at a point in the West line of Pennsylvania Avenue which is 50 feet North of the SE corner of Lot No. 6 in Block No. 2 of the Hadley Farms Addition as recorded in Plat Book ‘B’ at page 236 in the Office of the Judge of Probate, Etowah County, Alabama; thence running in a Westerly direction a distance of 210 feet to a point; thence running in a Northerly direction a distance of 250 feet to a point in the North line of said Lot No. 6, which said point is 210 feet West of the NE corner of said Lot No. 6; thence running West a distance of 347.8 feet, more or less, to the NW corner of said Lot No. 6; thence running South a distance of 300 feet to the SW corner of said Lot No. 6; thence running East a distance of 557.8 feet to the SE corner of said Lot No. 6; thence running North a distance of 50 feet to the point of beginning, said description embracing a portion of Lot No. 6 in Block No. 2 of the Hadley Farms Addition as shown in Plat Book ‘B’, Page 236 in the Office of the Judge of Probate, Etowah County, Alabama, said property lying and being in Eto-wah County, Alabama
and became the owner of the legal title to the above described real estate.
“2. That on to-wit: May 23, 1972, the Tax Collector of Etowah County, Alabama, at a tax sale, sold the above described real estate to C. W. Talbert and wife, Kathleen Talbert, which said tax sale was void as to the above described real estate because the above described real estate was not assessed to the rightful owners of said real estate at the time the lien for ad valorem taxes attached to said above described real estate for the payment of which taxes said sale was held, but said real estate was assessed to Luther Taylor, who had been deceased since to-wit: January 5, 1968 and who was not the right owner of said real estate at the time the lien for ad valorem taxes attached to said above described real estate for the payment of which taxes said sale was held.
“3. On to-wit: July 24, 1975, C. W. Talbert and wife, Kathleen Talbert conveyed their interest in the above described real estate to the defendants, Cliff Leach and Mary Leach.
“4. That the defendants have now moved a building upon the above described real estate.
“5. Plaintiff now brings this suit to recover possession of the above described real estate of which plaintiff was in possession and upon which pending such possession and before the commencement of this suit, the defendants entered and unlawfully withhold together with FIFTY-ONE HUNDRED AND NO/lOO DOLLARS for detention thereof.
“WHEREFORE, plaintiff demands judgment against defendants in the sum of $5100.00, interest and cost and that this Honorable Court eject the defendants from the above described property and return same to plaintiff.”

It is evident the complaint is sufficient. Rule 8, ARCP.

The final judgment in this ease is a clear and precise recitation of the bases in the evidence, and law, upon which relief was granted. That judgment is:

“This cause coming on to be heard in open trial, and all parties being present and represented by their attorneys of record, and the Court having heard all of the evidence, ore tenus, and received and reviewed all of the exhibits and documents introduced into evidence, and following the trial and after receiving all of the evidence from both parties, the Court having requested the attorneys for the parties to submit briefs on their positions by March 25, 1981, and the Court having received a brief from Plaintiff, and having received a brief from Defendants, and being fully advised in the premises, the Court finds that Plaintiff owns all right, title and interest to the following described real property, having purchased a major part of the property in question from a register’s deed recorded in Book ‘1078’, Page 191, and thereafter purchasing Vsths interest of the remaining portion of the real property by the deed recorded in Book ‘1137’, Page 755, dated January 27, 1972; and thereafter having purchased the remaining Vs interest from Defendants by a warranty deed dated April 6, 1972 and recorded in Book ‘1140’, Page 881, all in the Probate Office, Etowah County, Alabama; and the Court further finding that Plaintiff has paid adequate consideration to Defendants for the property and that Plaintiff owns the legal right, title and interest to the following described property and that Defendants have refused to vacate the property after Plaintiff has made demand upon them to do so; and the Court finding that Defendants have no right, title or interest in the following described property, and that the tax deed through which Defendants claim an interest is void. The real property involved in this action, which is described in the Complaint is as follows, to-wit:
“All of Lot Number Six (6) in Block Number Two (2) in the Hadley Farms Addition, as recorded in Plat Book ‘B’, at Page 236 in the Office of the Judge of Probate, Etowah County, Alabama, and being in Etowah County, Alabama, except that portion of said Lot deeded by Mary Nell Thornton, Register, to Crestwood Memorial Cemetery, Inc., by deed recorded in Deed Book ‘1078’, Page 191, Office of Judge of Probate, Etowah County, Alabama.
“IT IS, THEREFORE, ORDERED AND DECREED, that Plaintiff is the legal owner of the right, title and interest to the above described real estate, and has been entitled to possession of which since it received the deeds described above, the last of which was April 6,1972, it is further ordered that Defendants vacate the premises immediately and in vacating the premises they are ordered not to damage or impair the value of any improvements located on the premises, or to depreciate the value of the real estate in any manner from the condition as it existed at the time of trial and Defendants are further ordered to peaceably surrender possession of the real estate to Plaintiffs within thirty (30) days from the date of this Order, it is further ordered that the costs of these proceedings are taxed against Defendants, for all of which let execution issue.”

The judgment applied correct principles of law to the facts supported by an abundance of credible evidence, and appellants having waived a trial by jury, the motion for new trial was properly denied. Cougar Mining Co. v. Mineral Land & Mining Consultants, Inc., 392 So.2d 1177 (Ala.1981); Ingrain v. Omelet Shoppe, Inc., 388 So.2d 190 (Ala.1980).

There is no error in the record and the judgment below is due to be and is hereby affirmed.

AFFIRMED.

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


text:
    Patricia Ann TANT and Jackie Leon Tant v. WOMEN’S CLINIC.
    80-913.
    Supreme Court of Alabama.
    April 2, 1982.
    Ralph E. Coleman, Birmingham, for appellants.
    Bibb Allen of London, Yancey, Clark & Allen, Birmingham, for appellee.
   FAULKNER, Justice.

Patricia Ann and Jackie Leon Tant brought an action against the Women’s Clinic of Anniston and its employee, Dr. Alig, for medical malpractice. Dr. Alig died prior to trial of the action. In the first trial, the trial judge granted a directed verdict against the Tants. We reversed the directed verdict in Tant v. Women’s Clinic, 382 So.2d 1120 (Ala.1980). The cause was remanded and a second trial began.

During the second trial, the widow of the deceased doctor, Mrs. Alig, appeared seated at the Clinic’s table during voir dire. Counsel for the Tants objected that her presence was prejudicial. The trial judge permitted Mrs. Alig to remain seated at the table during voir dire. After the jury was chosen, the Tants renewed their objection to Mrs. Alig’s presence at the Clinic’s table during the trial. The trial court reserved ruling on the question until after lunch.

When the parties returned from lunch, the attorneys for the Women’s Clinic informed the court that the Women’s Clinic had appointed Mrs. Alig as its agent to represent it at trial. The trial judge overruled the Tants’ objection to Mrs. Alig’s presence at the Clinic’s table during trial.

The jury rendered a verdict in favor of the Clinic. The Tants moved for a new trial, which the trial court denied. The Tants contend that the trial court erred in permitting Mrs. Alig to be present at trial and erred in a ruling admitting evidence of Dr. Alig’s character.

The Tants contend that counsel for the Clinic directed attention to Mrs. Alig in order to prejudice the jury. The Tants note that the attorneys for the Clinic referred to Mrs. Alig during voir dire examination and closing argument. One alleged reference during voir dire was made by the judge, not by counsel, and merely told the jury that Mrs. Alig was the executrix of Dr. Alig’s estate, and had no direct interest in the litigation. The second reference to Mrs. Alig during voir dire was to ask if any of the jurors were acquaintances of Dr. or Mrs. Alig. It is certainly not error to question a juror about his or her relationship with a person related to an action.

The second time counsel for the Clinic allegedly sought to prejudice the jury was in his cross-examination of Mrs. Alig. Nevertheless, it must be noted that it was counsel for the Tants that called Mrs. Alig as a witness and examined her concerning her relationship to the Clinic. The Tants put the question of Mrs. Alig’s relationship with the Clinic in issue. They asserted that the purpose was to develop the record for appeal. This could have been done outside the presence of the jury, if the Tants wished to avoid prejudice.

The third reference by the Clinic to Mrs. Alig was in closing argument. Even if this reference were prejudicial, the Tants failed to object. We will not review error which is not objected to at trial.

The Tants also allege that Mrs. Alig’s mere presence at the trial was prejudicial. They do not allege that Mrs. Alig engaged in any conduct, such as weeping or so forth, that is likely to prejudice a jury. Whether to permit relatives of a deceased to occupy a seat in full view of the jury is within the sound discretion of the trial court, and the court’s ruling will not be reversed on appeal in the absence of abuse of discretion. Lehr v. State, 398 So.2d 791 (Ala.Cr.App.1981); Lindsey v. Lindsey, 361 So.2d 601 (Ala.Civ.App.1978); Nationwide Mutual Insurance Co. v. Smith, 280 Ala. 343, 194 So.2d 505 (1967). There is no evidence that the presence of Mrs. Alig prejudiced the jury. We hold that the trial judge did not abuse his discretion in permitting Mrs. Alig to be present at trial.

The Tants also contend that the trial judge erred in admitting evidence of Dr. Alig’s “character.” The allegedly objectionable statement is as follows:

“If you will think about that, that must be the law. That’s got to be the law, or else a doctor couldn’t practice medicine. We couldn’t even practice our professions. You couldn’t live a very (inaudible) life, if you were going to be held to a duty of care where you’ve got to make an educated judgment, and if you miss it, say you’re malpractice, we’re going to run your reputation right down the river whether you’re dead or not—
“MR. COLEMAN: Your Honor, we object to this line of argument. And Dr. Alig is not a permissible argument.
“THE COURT: State your grounds, Mr. Coleman.
“MR. COLEMAN: He’s talking about reputation; reputation was never concerned and argument has not been brought out — any reputation. And we ask the Jury be instructed to disregard that part of the argument.
“THE COURT: The Court was not listening all that closely, Mr. Allen, if that was the thrust of the argument, I’ll sustain.
“MR. ALLEN: The thrust of the argument is that I said that a malpractice suit acts to destroy and impede a physician’s reputation. And the Woman’s [sic] Clinic reputation in Anniston, Alabama. That’s what I’m going to say. [emphasis added]
“MR. COLEMAN: We object, Your Hon- or, to him amplifying this further argument, because reputation is not a matter to consider.
“THE COURT: It’s not a matter of consideration and I think the statement is a correct statement, however. I’m going to overrule the objection. It’s not a legal issue involved in the case, [emphasis added]
“MR. COLEMAN: We except to the Court’s ruling.
“THE COURT: All right.
“MR. ALLEN: (continuing closing argument)
“Of course, a malpractice suit damages a doctor’s reputation and his name. And it damages the Woman’s [sic] Clinic, too. [emphasis added]”

Clearly, the language concerning the reputation of the Clinic and Dr. Alig is not character evidence. The statement did not assert any general reputation, any specific acts, or any evidence that might be described as character evidence. The mere use of the word “reputation” does not convert a statement into character evidence. See generally Gamble, McElroy’s Alabama Evidence §§ 25.01-45.01 (3d ed. 1977).

The judgment below is affirmed.

AFFIRMED.

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


author: ALMON, Justice.

text:
    Ex parte Billy D. CONGO. (In re: Billy D. Congo v. State of Alabama).
    81-428.
    Supreme Court of Alabama.
    April 2, 1982.
    J. Thomas Conwell, Jr., Conwell & Con-well, Huntsville, for petitioner.
    Charles A. Graddick, Atty. Gen., for respondent.
   ALMON, Justice.

The petition for writ of certiorari, 409 So.2d 475, is denied on authority of Michigan v. DeFillippo, 443 U.S. 31, 99 S.Ct. 2627, 61 L.Ed.2d 343 (1979).

In denying the writ of certiorari in this case, this Court does not wish to be understood as approving or disapproving all the language used or all the statements of law made by the Court of Criminal Appeals. Horsley v. Horsley, 291 Ala. 782, 280 So.2d 155 (1973).

WRIT DENIED.

TORBERT, C. J., and FAULKNER, EM-BRY and ADAMS, JJ., concur.


text:
    OPINION OF THE JUSTICES.
    No. 294.
    Supreme Court of Alabama.
    April 8, 1982.
   To the Members of the

House of Representatives

State Capitol

Montgomery, Alabama

Dear Representatives:

In House Resolution 274 you requested our opinion regarding H.B. 744 and a pending amendment thereto. House Bill 744 proposes to expand the boundary lines and corporate limits of the municipality of Foley, which is located in Baldwin County. It sets out a legal description of the changes to be effected. In accordance with Ala. Const.1901, § 106 (amended by amend. No. 341), H.B. 744 was published in a newspaper of general circulation in Baldwin County. Subsequently, an amendment decreasing the affected areas was voted out by Local Legislation No. 1 Committee. You have requested our opinion regarding two questions:

1. Would Section 1 of pending H.B. 744 with the said committee amendment adopted constitute a material variance from the advertisement so as to contravene Section 106 of the Constitution of 1901?
2. Would Section 1 of Pending [H.B.] 744 with the said committee amendment adopted contravene Section 61 of the Constitution of 1901?

We answer the first question in the affirmative and, therefore, pretermit discussion of the second.

This court has adhered to the rule that Ala.Const.1901, § 106, is contravened if there is a material change or contradiction in the substance in a proposed act as advertised. Birmingham-Jefferson Civic Center Authority v. Hoadley, 414 So.3d 895 (Ala.1982); Parrish v. Faulk, 293 Ala. 401, 304 So.2d 194 (1974); State ex rel. Wilkinson v. Allen, 219 Ala. 590, 123 So. 36 (1929); First Nat. Bank of Eutaw v. Smith, 217 Ala. 482, 117 So. 38 (1928). We observe that your request for an advisory opinion does not provide sufficient information from which we can ascertain the extent of change that the proposed amendment would effect to H.B. 744. The legal descriptions of the lands affected by H.B. 744 and its proposed amendment Advisory Opinion No. 294 do not allow us to accurately determine the extent of changes mentioned in H.R. 274. Nevertheless, we will assume, because the question has been posed, that the changes in the proposed amendment are material, and, therefore, they would contravene § 106 as amended.

Respectfully submitted,

C. C. Torbert, Jr. Chief Justice

James H. Faulkner

Janie L. Shores

T. Eric Embry

Sam A. Beatty

Oscar W. Adams, Jr.

Justices

MADDOX, Justice,

dissenting.

I cannot agree with the opinion of the majority of the Justices on this issue.

In Mayor, etc. of Ensley v. Cohn, 149 Ala. 316, 42 So. 827 (1907), this Court considered § 106 just six years after its ratification by the people, and regarding the requirements of local legislation, which in that case, proposed that city limits be altered or rearranged, stated:

“The substance of the proposed law in the present case is the altering or rearranging of the boundaries of the city. This was contained in the published notice of the intention to apply for the passage of the act, and, conceding that it was necessary to give the notice as required in section 106 of the Constitution, this would have been sufficient, without giving in minute detail and particularly the course and bearings of the boundary line. What was said, and the principle there stated, in Law v. State, 142 Ala. 62, 38 South. 798, finds ready application here. There can be no distinction in principle in the two cases on the question under consideration. See, also, Ex parte Black, 144 Ala. 1, 40 South. 133. The published notice having given the substance of the proposed law — the altering or rearranging of the boundaries of the city of Ensley — the fact that notice was also given of the proposed territorial lines, which were not followed, but were changed in the act as passed, does not invalidate the act or affect the principle above stated, since the fact remains that the notice given contained the substance of the law as enacted. The foregoing views are not in conflict with the decision in the case of Brame v. State, (Ala.) [148 Ala. 629] 38 South. 1031. The facts in that case readily differentiate it from the case before us.
“The bill as passed did not include in the city limits the railroad mentioned in the advertised notice. The proviso at the conclusion of section 1 of the act, in reference to the taxation of the railroads mentioned therein, is without any field of operation, since in the act as passed these railroads are not within the city limits, and may, therefore, be stricken out without affecting the main purposes of the act or its integrity. The rule is well settled that whenever a part of an act, objectionable on constitutional grounds, can be eliminated without affecting the purpose of the act or its integrity as a whole, this will be done, and the valid and unobjectionable part be permitted to stand. Such is the case here. The provision in the act in reference to the railroads can be eliminated and the balance permitted to stand without in the slightest affecting the integrity of the act as a whole.”

I am quite aware that the Mayor, etc. of Ensley v. Cohn decision of the Court was criticized in First National Bank of Eutaw v. Smith, 217 Ala. 482, 117 So. 38 (1928); the Court, in one short concluding paragraph, without examination of the constitutional debates, and without erudite justification, did opine:

“We have not overlooked the case of Mayor, etc. of Ensley v. Cohn, 149 Ala. 316, 42 So. 827, where it was held that the advertisement of a bill to alter municipal boundaries, which specified the boundaries proposed to be adopted, could be amended before passage by the specification of materially different boundaries. It will suffice to say that we are convinced the law was misapplied in that case, and we are unwilling to follow it now.”

In Birmingham-Jefferson Civic Center Authority v. Hoadley, [MS. March 19, 1982], - So.2d - (Ala.1982), I did extensive research into the reasons and purposes for § 106, and as I spelled out in my dissent in that case, I thought Mr. Justice Foster’s gratuitous statement in State ex rel. Wilkinson v. Allen, 219 Ala. 590, 123 So. 36 (1929), that a local bill which gave not only the substance, but also the details, could rarely be amended, was not good law, and certainly was not based on precedent.

I think Mayor, etc. of Ensley v. Cohn, decided, as I have pointed out, almost contemporaneously with the ratification of § 106 of the Constitution, correctly states the true intent of § 106, and that the Justices, in Opinion of the Justices, 252 Ala. 361, 41 So.2d 266 (1949), who cited Mayor, etc. of Ensley v. Cohn, were correct in doing so, because I am of the opinion that the following principle of law therein stated is correct:

“A narrow and literal construction [of § 106] would destroy all power of amendment in the legislative process, so that the legislature would be required to accept, if at all, every local bill in the exact terms of its proposal.”

      . We find it unnecessary to set out H.R. 274, and its accompanying H.B. 744, the proposed amendment, and proof of publication of H.B. 744.