author:
MADDOX, Justice.
      TORBERT, Chief Justice

text:
    B. Ray MOORE v. Maxine W. CULPEPPER.
    79-586.
    Supreme Court of Alabama.
    April 10, 1981.

      Maury Smith and David R. Boyd of Smith, Bowman, Thagard, Crook & Culpep-per, and Howard C. Alexander, Montgomery, for appellant.
    Richard M. Jordan of Jordan & Heard, Montgomery, for appellee.
   MADDOX, Justice.

The question here presented is whether the trial court erred in impressing an equitable lien upon a residence in favor of one who had made extensive repairs to the house pursuant to an alleged oral agreement.

When her mother died in 1937, the appel-lee, Maxine Culpepper, then two years of age, came to live with her maternal aunt, Opal Moore, and husband, B. Ray Moore, the appellant, at the Moores’ home in Montgomery. The Moores treated the appellee as a daughter and she treated them as her parents. The appellee lived with the Moores for many years and, in fact, she and her husband, after their marriage in 1954, continued to live with the Moores. The appellee and her husband later moved to Georgia and lived there until the appellee’s husband was killed in an automobile accident.

After the death of her husband, the ap-pellee moved back to Montgomery and once again resided with the Moores. After returning to Montgomery, the appellee financed certain improvements to the Moores’ house, using money she had received as insurance benefits payable because of her husband’s death. There is a dispute between the parties as to the existence of an “oral agreement” under the terms of which, purportedly, the Moores were to repay the appellee for the improvements or, in the alternative, they were to devise the house to the appellee. Appellee claimed there was such an agreement. The appellant, Mr. Moore, on the other hand, denied there was an agreement and denied any participation in the improvement plans, although he admitted that he did not express to the appellee any objections concerning the improvements.

Mrs. Moore died in 1978, and the relationship between Mr. Moore and the appellee began to deteriorate rapidly. Apparently, the cause of the deterioration was a disagreement over the appellee’s conduct of a romantic affair and Mr. Moore’s objection to the appellee’s allowing her male friend to spend the night with her in the Moore home. Eventually, Mr. Moore had the ap-pellee evicted from the Moore residence.

The appellee filed suit against the appellant and requested that the trial court enforce the alleged oral contract or, in the alternative, that the court establish an equitable lien on the residence in the amount of the cost of the improvements in her favor. After a nonjury trial, the court found that the oral agreement was unenforceable because it violated the statute of frauds, but ruled in favor of the appellee on the equitable lien, and established a lien in the amount of $18,467.33.

The appellant timely appealed from the trial court’s ruling on the equitable lien claim.

The appellant raises one issue on appeal: Did the trial court err in impressing an equitable lien on the residence of the appellant when the appellant was not shown to be guilty of any wrongdoing in procuring the improvements to the residence?

The trial court’s order reads, in part, as follows:

This case involves a dispute over an alleged oral agreement between plaintiff, defendant, and his deceased wife concerning certain improvements made to defendant’s residence and paid for by plaintiff. The agreement urged by plaintiff is that if the plaintiff would pay for the improvements made on the residence the Moores would either repay the money or deed the residence to plaintiff.

Appellant contends that the court’s order shows that the appellee was not entitled to an equitable lien. He cites this Court’s decision in Costanza v. Costanza, 346 So.2d 1133 (Ala.1977), in support of his position, and specifically quotes and emphasizes the following portion of the Costanza decision:

[A] court is authorized to exercise its equity power to impress a lien upon real property as security for a debt only where the person against whose interest the Hen is declared and enforced is guilty of some wrongdoing in procuring the loan or service by which the debt is created. Our cases make clear that, whether the equitable grounds essential to give the “equitable lien” principle a field of operation are expressed in terms of “fraud,” “unclean hands,” or “unjust enrichment” mere passive conduct on the part of the party against whose interest the lien [is] sought is not sufficient. [Emphasis added.]

Appellant then argues:

In the case sub judice, appellant Ray Moore was simply not guilty of any wrongdoing in connection with the house improvements paid for by Maxine Cul-pepper. As the trial court expressly found, Mr. Moore simply did not tell Maxine not to make the improvements. This conduct was, in Mr. Justice Jones’ words, “mere passive conduct on the part of the party against whose interest the lien sought,” and certainly was not the kind of misconduct which Costanza teaches us is necessary to sustain an equitable lien.

Appellant’s argument is based upon two suppositions: (1) The trial court did not consider any of the evidence presented regarding the oral agreement, and (2) the court found, as a fact, that the appellant, “did not object.”

Appellee, on the other hand, argues that the trial court refused to enforce the oral agreement because it was barred by the statute of frauds, but that the court impliedly found that an oral agreement, in fact, was made, that the appellant was present when the agreement was made, and “because of the reliance of Mrs. Culpepper on the agreement, an equitable lien should be established in her favor.”

We, like the parties, cannot, by reading the order, determine specifically what the court found and what evidence was considered. Because of that fact, we remand the cause for a clarification of what evidence the trial court, in fact, considered.

By remanding the cause, we should not be understood as holding that the trial court cannot consider evidence of the alleged oral agreement in determining whether the appellee was entitled to an equitable lien. The terms of an oral agreement, if relevant, may be admissible as evidence, even though the agreement itself might be unenforceable. 37 C.J.S. Frauds, Statute of § 280 (1943). Furthermore, the alleged oral agreement may be unenforceable only insofar as it purported to affect an interest in “lands, tenements or heredita-ments.” (Code 1975, § 8-9-2), and might be enforceable as an unsecured obligation.

If we could determine that the court reached the right result for the wrong reason, we would affirm, but we frankly cannot determine from the court’s order what specific findings it made to support its judgment that an equitable lien was proper. Consequently, we must remand the cause to that court with directions to make specific findings of fact in the cause in view of the principles of law we have set forth herein, and file with this Court within a reasonable time (not to exceed 56 days after’ the issuance of this Court’s mandate), the specific findings directed to be made.

REMANDED WITH DIRECTIONS.

FAULKNER, JONES, SHORES, BEAT-TY and ADAMS, JJ., concur.

TORBERT, C. J., and ALMON and EM-BRY, JJ., dissent.

TORBERT, Chief Justice

(dissenting).

It is my opinion that our decision in the case of Costanza v. Costanza, 346 So.2d 1133 (Ala.1977), is controlling here. In Costanza, we held that:

[Wjhether the equitable grounds essential to give the “equitable lien” principle a field of operation are expressed in terms of “fraud,” “unclean hands,” “unjust enrichment” mere passive conduct on the part of. the party against whose interest the lien is sought is not sufficient.

Id., at 1136.

The only evidence that Moore’s actions were anything but passive was the oral agreement alleged by Culpepper to have been made. If the oral agreement is not admissible, therefore, Costanza will preclude the imposition of an equitable lien.

We have repeatedly held that an oral agreement unenforceable under the Statute of Frauds is unenforceable in equity either by way of specific performance or as an equitable lien. Downs v. Downs, 257 Ala. 643, 60 So.2d 686 (1952); Palmer v. James, 210 Ala. 641, 99 So. 109 (1924); Williams v. Davis, 154 Ala. 422, 45 So. 908 (1908). If we admit testimony of the alleged oral agreement in the present case and base the imposition of an equitable lien upon such testimony, we will have, in effect, granted specific performance of the oral agreement. Since the oral agreement is clearly unenforceable, I do not believe that it can be enforced by such a bootstrapping maneuver. I would reverse; therefore, I respectfully dissent.

ALMON and EMBRY, JJ., concur.


source: Caselaw Access Project

author: SHORES, Justice. MADDOX, Justice

license: Public Domain

text:
    Linda ROBERTS v. Donald MEEKS et al.
    79-707.
    Supreme Court of Alabama.
    April 10, 1981.

      Clarence T. Heliums, Jr., Centreville, for appellant.
    C. W. Blackwell, Jr. of Gayle & Blackwell, and J. Garrison Thompson of Pitts, Pitts & Thompson, Selma, for appellees.
   SHORES, Justice.

The plaintiff, Linda Roberts, filed a complaint against Dallas County; the Dallas County Commission; W. D. Nichols, sheriff of Dallas County; Donald Meeks, the jailer; and convicts Johnson and Butler. The allegations of the complaint are summarized as follows:

On May 28, 1977, between the hours of 3 P.M. and 6:45 P.M., the plaintiff suffered a grievous ordeal of bodily injury at the hands of two inmates of the Dallas County Jail. She was kidnapped from her home and small children and taken into the woods, some distance away. During the span of approximately three hours and forty-five minutes, the plaintiff was raped three times by Mathew Johnson and Billy Butler.
The Defendants Mathew (“Sambo”) Johnson and Billy Butler were hostile criminals with long prior records of assaults, batteries, attempted murders and armed robbery but were allowed to freely enter the quarters of the chief jailer, obtain weapons and allowed to freely leave the jail.
The County of Dallas, Alabama, the Sheriffs Department of Dallas County, the Dallas County Commission, the Sheriff of Dallas County, the jailer of Dallas County . . . [defendant Donald Meeks] were negligent in the manner, way and method that they exercised their responsibility for the care, supervision, control and surveillance of the prisoners in that jail.
The jailer defendant Donald Meeks, kept and maintained loaded firearms in and about the residence located in, near or adjacent to the Dallas County Jail, and did on a regular basis allow Mathew Johnson and Billy Butler to frequent his home to perform personal services at his residence.
The Sheriff of Dallas County, W. D. “Cotton” Nichols, was aware of what went on around the jail with these hardened prisoners and failed to exercise any discretion or perform his duty to protect Linda Roberts from these men who were incarcerated and had a record of assaults, batteries, attempted murders and armed robbery.
On May 2, 1977, a committee of the Dallas County Grand Jury had inspected the jail and found that it was dependent on inadequate personnel and that the jail was a “time bomb” waiting to explode due to the shortage of personnel to guard the prisoners, and this report served as a warning to the responsible defendants of. the events which took place two weeks later.
The Plaintiff now suffers fear and nausea at the sight of black men; she has terrifying nightmares; and is no longer capable of being alone without severe anxiety and fright; she continually feels unclean; and she suffers extreme humiliation, shame and embarrassment.
The Plaintiff suffered extreme physical pain during the forceable rapes by the Defendants. She was threatened with death by these Defendants and upon escaping her captors, was chased by them for forty-five minutes through the woods to a point of physical exhaustion. During that time she fell into ditches, was cut by briars and brambles, and was torn, scratched, and scraped on rocks, stones and ... vegetation.
Linda Roberts was hospitalized for the injuries she received and as a consequence of those injuries.

The complaint sought damages of $500,-000.00.

All of the defendants, except the two convicts, filed motions to dismiss. The court granted each motion and entered a default judgment against the two convicts. The plaintiff appealed. We reverse.

Against an ARCP 12(b)(6) motion to dismiss, a complaint must be construed in favor of the pleader and should not be dismissed unless it appears beyond all doubt that the plaintiff can prove no facts in sfipport of the claim which would entitle him to relief under some legally cognizable theory. Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).

The appellees first argue that the complaint was properly dismissed because the plaintiffs claim is barred by governmental immunity. They concede that the defense of governmental immunity in tort actions against counties and county commissioners, when acting in their official capacities, has been disavowed in this state, but say that rule applies only to cases arising after the release of Cook v. St. Clair County, 384 So.2d 1 (Ala.1980). We cannot agree with this reading of Cook. To the contrary, Cook makes it plain that county governmental immunity was abolished by this Court’s decision in Lorence v. Hospital Board of Morgan County, 294 Ala. 614, 320 So.2d 631 (1975). Hudson v. Coffee County, 294 Ala. 713, 321 So.2d 191 (1975), removed all doubt that such was the case. That case held expressly that county immunity was abolished by Lorence because, as noted in Cook, the decision in Lorence was bottomed on the construction of Tit. 12, §§ 3 and 115, and Tit. 7, § 96, Code of 1940 (Recomp. 1958), as well as Tit. 22, § 204(24), Code of 1940. In Hudson, writing to this issue, the Court said:

The appellant devotes the major portion of his brief to an appeal to abolish the defense of governmental immunity in tort actions as to counties. This court did just that in Lorence v. Hospital Board of Morgan County, 294 Ala. 614, 320 So.2d 631 (1975), but limited the rule of that case [to that case] and to similar causes of action arising thereafter.

320 So.2d at 715-716. We hold that the defense of governmental immunity did not justify dismissing the plaintiff’s complaint.

The appellees next argue that the complaint fails to state a claim against the county and county commission because it contains no allegation that a verified claim was filed against the county, as required by § 11-12-5, Alabama Code of 1975. First, we note that this was not one of the grounds contained in the motion to dismiss, and even if it were, we are not prepared to say that such specificity of pleading is required under the civil rules; but, even if so, the plaintiff clearly has the right to amend to cure such defects. See ARCP 9 and 15. In the posture of the case before us, the appellees are raising this issue for the first time on appeal in support of the trial court’s granting their 12(b)(6), ARCP, motion to dismiss. They did not raise it as an affirmative defense, and in no way was the defect brought to the attention of the plaintiff. Again, we note that the letter and spirit of the Rules of Civil Procedure compel us to resolve this issue in favor of the pleader as against a 12(b)(6) motion to dismiss. The plaintiff does have the burden of showing compliance with the statute, but cannot be cut off by a motion to dismiss. The standard of review in this court differs, depending upon what order the appeal is from. A dismissal under ARCP 12(b)(6) is viewed differently from a grant of summary judgment, and both are different from an appeal from a judgment entered after a jury verdict.

Nothing was considered by the court in this case except the complaint and the defendants’ motions to dismiss. Thus, the motions were not treated as mdtions for summary judgment, with all parties given an opportunity to present all pertinent material as provided by the last provision of Rule 12. Therefore, we are left to test the action of the trial court under the standard of review applicable to 12(b)(6) dismissals.

A motion to dismiss under ARCP 12(b)(6) has been described as a lineal descendant of the old general demurrer and should be granted very sparingly and, when granted, leave to amend should always be afforded. 2 Lyons, Ala.Prac. § 12.7, Author’s Comments. In this case, the court denied the plaintiff’s motion for leave to amend. The proper test of a motion to dismiss for failure to state a claim upon which relief may be granted is whether it appears that the plaintiff can prove no set of facts in support of a claim entitling him to relief. Smith v. Potts, 293 Ala. 419, 304 So.2d 578 (1974).

The plaintiff’s claim in this case is said to be one of first impression in this state, although other states have recognized it. In Lavoie v. Aetna Life and Casualty Co., 374 So.2d 310 (Ala.1979), and Trabits v. First National Bank of Mobile, 295 Ala. 85, 323 So.2d 353 (1975), we cautioned that the courts should be especially reluctant to dismiss a case on the pleadings when the theory of liability is novel and untested. Such cases should be explored in light of actual facts developed on discovery or otherwise, citing Wright and Miller, Federal Practice and Procedure § 1357 (1969). This is such a ease. We cannot say as a matter of law that the plaintiff cannot prove a set of facts which would establish a claim for relief against any of the defendants in this case.

As we have said so often, the issue of proximate cause is almost always a case for the jury under proper instructions. It was improper to dismiss the complaint in the case on the ground that the plaintiff could never show that the injury complained of was not the proximate result of some act on the part of one or more of the dismissed defendants.

The judgments of dismissal are reversed, and the causes are remanded.

REVERSED AND REMANDED.

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

MADDOX, J., concurs specially.

MADDOX, Justice

(concurring specially).

I concur in the result. As the governmental immunity wall was being dismantled piece by piece, I voted as follows: I dissented in Jackson v. City of Florence, 294 Ala. 592, 320 So.2d 68 (1975); and Lorence v. Hospital Board of Morgan County, 294 Ala. 614, 320 So.2d 631 (1975); I concurred in the result in Hudson v. Coffee County, 294 Ala. 713, 321 So.2d 191 (1975) and Wilson v. Dothan City Board of Education, 295 Ala. 61, 322 So.2d 708 (1975), because the Court, in those two cases did not permit a suit for a pre-Lorence and pre-Jackson injury respectively; In Loyd v. City of Florence, 335 So.2d 657 (Ala.1976), I specially concurred and pointed out the problems created when the Court made the rule in Jackson and Lorence prospective; I concurred in Sims v. Etowah County Board of Education, 337 So.2d 1310 (Ala.1976), which immunized the board from a suit ex delicto; I concurred in Enterprise City Board of Education v. Miller, 348 So.2d 782 (Ala.1977), wherein the Court held that the city board was immune from suit in tort; in Board of School Commissioners of Mobile v. Caver, 355 So.2d 712 (Ala.1978), I joined the other members of the Court in holding that legislative authorization to “sue and be sued” permitted maintenance of a tort suit against the board; in Cook v. County of St. Clair, 384 So.2d 1 (Ala.1980), I filed a special concurrence in which I suggested that for me to continue to dissent in governmental immunity cases would serve no useful purpose.

I still subscribe to the view that the question of. governmental immunity or governmental responsibility for torts is primarily a question for the legislative branch of government. The problems created by the court decisions in this area, especially the problems created when the Court made the decisions prospective, could have been handled much better by the legislature, in my opinion. The legislature did not act, however, to overturn the decisions which abolished governmental immunity. Instead, the legislative response to the authorization of tort suits against governmental entities was the passage of an act which specified a maximum amount of money damages recoverable against a “governmental entity.” Code 1975, § 11-93-1 through § 11-93-3.

While this act specifically did not “subject any governmental entity to liability for tort claims where liability therefor does not already exist at law” (§ 11-93-3), the Act implicitly recognized the decisions of this Court which had abolished governmental immunity.

I did not join the majority until Cook, and I technically could say that insofar as I am concerned, that Cook was the starting point for prospective application of the rule announced therein, but that would be illogical; therefore, I concur in the result, and refer the reader to my special concurrence in Cook.


author: JONES, Justice. MADDOX and BEATTY, Justices ALMON, Justice

text:
    Nat WILKINS, individually and as representative of the class v. WEST POINT-PEPPERELL, INC. et al.
    79-807.
    Supreme Court of Alabama.
    April 10, 1981.

      Ira A. Burnim and Dennis N. Balske, Montgomery, for appellants.
    Warren Lightfoot and Douglas Arant, Scott M. Phelps, and James Walker May, of Bradley, Arant, Rose & White, Birmingham, E. Mabry Rogers and William F. Hors-ley of Samford, Denson, Horsley, Pettey & Martin, Opelika, Bibb Allen, Birmingham, C. Powers Dorsett, Associate Gen. Counsel & Asst. Secretary, West Point, Ga., for West Point-Pepperell, Inc.
   JONES, Justice.

On October 19, 1979, within one year of the last date of his employment, Nat Wilkins instituted this action against his former employer, West Point-Pepperell, Inc., and numerous co-employee defendants, seeking to recover for personal injuries associated with byssinosis. Wilkins seeks compensatory and punitive damages for “three separate and distinct injuries”: 1) initial contraction of byssinosis; 2) aggravation of his condition; and 3) nondisability injuries suffered as a result of his allegedly being deceived into forgoing benefits due him under the Workmen’s Compensation Act. Wilkins’s claim for contraction of the disease is directed only against his co-employees, while his allegations of aggravation and “nondisability” injuries were cast against both his employer and his co-employees.

Defendants-Appellees moved to dismiss the complaint, urging the court, inter alia, to treat it as a claim for workmen’s compensation benefits under the Alabama Workmen’s Compensation Act. Code, § 25-5-81. The circuit court granted • Defendants’ motions to dismiss, leaving Wilkins the option of amending his complaint so as to state a cause of action for workmen’s compensation. Instead, he instituted this appeal.

Appellant’s counsel, in brief, state the “Issues Presented for Review” thusly:

“I. Whether . . . plaintiff is precluded by the exclusive remedies provisions of the Workmen’s Compensation Act from asserting claims at law against the co-employee defendants to this action for their fraud and other tortious conduct which proximately caused plaintiff to contract brown lung disease, to suffer an aggravation of his disease whereby he became totally disabled, and to forgo the benefits due him under the Workmen’s Compensation Act?
“II. Whether plaintiff is precluded by the exclusive remedies provisions of the Workmen’s Compensation Act from asserting claims at law against his employer for its tortious conduct which caused plaintiff to suffer an aggravation of his work-related disease whereby he became totally disabled?
“III. Whether plaintiff may sue his employer outside the compensation act for the nonphysical and nonwork-related injuries he suffered as a result of his employer’s fraudulent scheme to mislead him into forgoing the benefits which were his due under the Workmen’s Compensation Act?”

We respond to issues Nos. I and III, as posed, in the negative, and to issue No. II in the affirmative; therefore, we affirm in part, reverse in part, and remand.

Counsel summarize their client’s multiple claims:

“[P]laintiff charges that he . . . suffered the first of these injuries, namely, [his] initial contraction of brown lung disease, as a proximate result of defendants’ [other than the employer’s] fraud and other tortious acts. Plaintiff alleges that the co-employee defendants ‘intentionally willfully, wantonly, and recklessly’ permitted plaintiff ... to be exposed to dangerously high concentrations of cotton dust while employed at defendant West Point Pepperell’s Opelika mill. ... In addition, plaintiff contends, though the co-employee . . . defendants to this suit were well aware that plaintiff . . . might contract brown lung disease as a result of [his] continued exposure to cotton dust at the Opelika mill, they never warned plaintiff ... of this fact. Though defendants knew that . . . plaintiff [was not] aware of the real health risks to which [he was] subjected at the mill, defendants, for their own purposes, preferred to keep plaintiff .. . ignorant of •these dangers.
“Second, plaintiff’s complaint alleges that the defendant employer to this suit, along with the co-employee . . . defendants, proximately caused plaintiff ... to suffer aggravation of [his] work-related lung ailments and thereby to become totally disabled. This occurred when defendants, fully aware that plaintiff . . . had contracted brown lung disease, caused [him] to continue laboring in the mill while [he] became sicker and sicker and eventually became disabled.
“When plaintiff . . . initially contracted brown lung disease, [he] suffered a variety of debilitating symptoms, especially impaired lung functioning. However, despite [his] initial contraction of the disease, [he] still had the capacity to work. It was only when plaintiff . . . continued to be exposed to the unhealthful conditions at the Opelika mill, after [he] had initially contracted brown lung disease, that [his] lung [condition] deteriorated to the point where [he was] no longer able to work.
“As alleged in plaintiff’s complaint, defendants intentionally withheld this information from plaintiff ... for the purpose of deceiving [him] as to the work-related nature of [his] disease. As defendants knew, by failing to inform plaintiff .. . that [he was] suffering from byssino-sis or brown lung, they caused plaintiff ... to be misled into thinking that [his] lung illness had not been contracted due to [his] work.
“Third, plaintiff alleges in his complaint that the employer-defendant to this action, as well as the co-employee .. . third party defendants, engaged in a fraudulent scheme designed to prevent plaintiff ... from taking advantage of [his] entitlements under the Workmen’s Compensation Act. As a result of this scheme, plaintiff alleges he . . . suffered a variety of nonphysical, or nondisability, injuries. These injuries consisted of the emotional and mental distress which plaintiff . . . suffered when upon [his] involuntary termination from defendant West Point Pepperell, Inc.’s employ, [he was] forced to eke out an existence in abject poverty, supported only by the meager sums provided by the social security system.”

I. Employee’s Claims Against Employer

Although we are impressed with the professional skills of counsel for Plaintiff, we perceive no purpose in burdening the opinion with a lengthy discussion of this issue. We hold that the “exclusive remedy” sections of the Workmen’s Compensation Act stand as an impenetrable barrier to the claims here sought to be asserted by the employee against his employer. §§ 25-5-52 and -53, and 25-5-3 and -4; see De Arman v. Ingalls Iron Works Co., Inc., 258 Ala. 205, 61 So.2d 764 (1952).

Counsel’s argument, particularly with reference to Plaintiff’s “nonphysical injuries,” is commendably ingenious and highly persuasive; but it is in the nature of a policy argument which is more properly addressed to the legislature. However inclined we may be to accept Plaintiff’s contention, we have no authority, constitutionally, statutorily, or otherwise, to judicially engraft an exception into the immunity provisions applicable to the employer. Clark v. Chrysler Corp., 342 So.2d 902 (Ala.1977); see, also, Adair v. Moretti-Harrah Marble Co., Inc., 381 So.2d 181 (Ala.1980). By the explicit terms of the Workmen’s Compensation Act, a compensable injury (and, in the case of pneumoconiosis, its aggravation) has its exclusive remedy against the employer under the act and not otherwise. Breimhorst v. Beckman, 227 Minn. 409, 35 N.W.2d 719 (1949). The trial court did not err in dismissing Plaintiff’s claim against West Point-Pepperell.

II. Employees’ Claim Against Co-employees

Here, again, no lengthy discussion is required. Whether this Court, in light of Grantham and Fireman’s Fund, will uphold the legislative grant of immunity to co-employees in occupational pneumoconiosis cases is characterized by co-employees’ counsel as “the sole novel issue” presented by this appeal. While not accepting its validity, we agree as to its novelty. We hold that the trial court erred in perceiving a distinction between the “classic accident situation in Grantham ” and occupational disease.

This erroneous perception is grounded on co-employees’ counsel’s two-fold, or dual aspect, approach to “occupational diseases”: 1) Because a true “occupational disease” was not redressable at common law, and, because Grantham preserved only common law rights of action, co-employee immunity applicable to byssinosis is a valid exercise of the legislative policy-making prerogative; and 2) the nature of the disease, and the scope of the legal duty for its prevention, is sufficiently different in kind, as well as in degree, to “demonstrate that the legislative immunity does remove, in the industrial disease context, a social evil: patently inequitable co-employee suits.”

A single observation is dispositive of aspect No. I: If Wilkins’s proof does not rise above the true “occupational disease” level, all third-party defendants will be entitled to directed verdicts. Stated conversely, if Wilkins meets his burden of proving the material elements of his claim (i. e., the alleged degree of defendant’s culpability proximately causing his injury), necessarily, he will have removed himself from this “assumption of the risk” defense. Thus, his claim falls squarely within the ambit of Grantham’s protection.

Appellees’ counsel’s second contention that occupational disease should be treated differently, constitutionally, from other industrial, or “traditional tort,” cases (and thus distinguishing this case from Gran-tham ), is grounded in the following:

“(1) In traditional tort cases, the danger is readily apparent to lay persons; whereas in disease cases some expertise is required to recognize the danger; (2) the hazard is localized in traditional tort cases, but in disease cases, it permeates most if not all of the workplace; (3) momentary exposure will likely result in sudden, definite and instantly disabling injuries in traditional tort cases. In disease cases prolonged exposure is required, resulting in gradual injury of uncertain onset; (4) individuals differ in the types and degrees of their reactions to disease-producing factors, unlike the similar injury to all persons caused by an open saw’s coming in contact with a finger; (5) the injury is clearcut in tort cases, but in disease cases it can be extremely difficult to diagnose; (6) evaluation of the need for and means of remedial measures are within the capability of a lay person in accident cases; whereas expertise is required even to recognize the hazard much less to evaluate its remedy in the disease context; (7) traditional tort cases involve localized correction action but entire environments must be changed in disease cases; (8) the scope of a remedy for an accident is within the authority of coem-ployees, but for alteration of the environment, large resources would have to be committed by the owner itself.”

While this latter approach is more sophisticated, its treatment and disposition need be neither lengthy nor complex. Without attempting to respond to each of the eight listed “distinctions,” we agree, generally, with their factual content. But, at most, they merely serve to dramatize the plaintiff’s awesome burden of-proof in an occupational disease claim against a co-employee ás opposed to a less demanding burden in a traditional industrial accident context.

For example, the instant Plaintiff, indeed, does have the burden of proving that the named co-employee Defendants had a legal duty, coupled with a sufficient degree of personal expertise and adequate facilities reasonably available to render Plaintiff’s work environment reasonably safe to avoid the contraction or aggravation of his resultant injuries; all of which elements of proof are to be treated by traditional tort standards. (For a general statement of these standards in a co-employee tort context, see the concurring opinions in Fireman’s Fund.) This test is prematurely applied, as here, in the “motion to dismiss” posture of these proceedings.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

FAULKNER, SHORES and ADAMS, JJ., concur.

EMBRY, J., concurs in the result.

TORBERT, C. J., and MADDOX, AL-MON and BEATTY, JJ., concur in part and dissent in part.

MADDOX and BEATTY, Justices

(concurring, in part; dissenting, in part).

We concur in that part of the opinion upholding the trial court’s action dismissing the plaintiff’s claim against West Point-Pepperell. We dissent from that part reversing the trial court’s action in dismissing the co-employee action. See our dissents in Fireman’s Fund American Insurance Company v. Coleman, 394 So.2d 334 (Ala.1980).

TORBERT, C. J., concurs.

ALMON, Justice

(concurring in part; dissenting in part).

I agree with that part of the opinion which holds that the employees do not have a claim against the employer. I disagree, however, with the holding that the employees have a claim against co-employees for occupational diseases which are allegedly caused over a period of many years by the employer failing to provide a safe place to work.

The majority’s attempt to distinguish Gentry v. Swann Chemical Co., 234 Ala. 313, 174 So. 530 (1937), is unclear. Moreover, I think this is an area which addresses itself to legislative discretion notwithstanding Section 13, Constitution of Alabama, 1901. See Shores, J., concurring opinion in Fireman’s Fund American Insurance Company v. Coleman, 394 So.2d 334 (Ala.1980), in which I joined concurring.

      . Byssinosis is a respiratory disease associated with work in the textile industry. It is more commonly referred to as “brown lung” disease, caused by the inhalation of minute particles of cotton dust, and is compensable under the pneumoconiosis provisions of the Workmen’s Compensation Act (§ 25-5-140, et seq., Code 1975).

      . Grantham v. Denke, 359 So.2d 785 (Ala.1978); Fireman’s Fund American Insurance Company v. Coleman, 394 So.2d 334 (Ala.1980).

      . This rule evolved from the premise that a true “occupational disease” was inherent in the workplace environment and could not have been prevented by the exercise of due care. Thus, it was an “assumption of the risk as a matter of law” principle. See Gentry v. Swann Chemical Co., 234 Ala. 313, 174 So. 530 (1937). Whether any given industrially induced illness is a true “occupational disease” depends upon the state of the art of prevention in the industrial community at any given time. For example, miners’ silicosis (or ore miners’ red lung and coal miners’ black lung), once considered inherent in the employment, was ruled actionable where the evidence shows lack of due care in underground mine ventilation which would have avoided or reduced the risk (Minyard v. Woodward Iron Co., 81 F.Supp. 414 (N.D.Ala.S.D.1948), aff'd, 170 F.2d 508 (5th Cir. 1948)), or where the evidence shows a breach of the health and safety provisions of the collective bargaining agreement (Tennessee Coal, Iron & R. Co. v. Sizemore, 258 Ala. 344, 62 So.2d 459 (1952)).
      While this dichotomy is still viable in the employee/third-party defendant context, it was otherwise absolved in 1952 by the addition of the occupational pneumoconiosis provisions of the Workmen’s Compensation Act (§ 25-5-140 et seq., which by express definition include all industrial dust-related lung conditions “whether or not said causes or conditions are inherent in the employment, or can be eliminated or reduced by due care on the part of the employer.”


author: BEATTY, Justice.

text:
    ALABAMA PUBLIC SERVICE COMMISSION and Vestavia Transit Company, Inc. v. B & B TRANSPORTATION AND LIMOUSINE SERVICE, INC.
    79-860.
    Supreme Court of Alabama.
    April 10, 1981.

      Gary A. Tomlin, Montgomery, for appellant Alabama Public Service Commission.
    F. Raymond Ingram, Birmingham, for appellant Vestavia Transit Co.
    D. H. Markstein, Jr. and James N. Nolan of Markstein & Morris, Birmingham, for appellees.
   BEATTY, Justice.

The Alabama Public Service Commission and Vestavia Transit Company appeal from an order of the Circuit Court of Jefferson County which reversed an order of the Alabama Public Service Commission denying B & B Transportation & Limousine Service, Inc. the authority to transport passengers in the business district of Hoover. We reverse the order of the circuit court.

On May 8, 1978, the applicant B & B Transportation & Limousine Service, Inc. (B & B) filed an application with the Alabama Public Service Commission (APSC) seeking authority to transport passengers over regular and irregular routes between Birmingham and Alabaster and returning. In its relevant part the application read:

To institute a new operation as a common carrier by motor vehicle, in intrastate commerce over regular and irregular routes, in the transportation of passengers and their baggage (1) From all points within the city limits of Birmingham, thence south on 1-65 to Hoover Exit 265, thence south through Riverchase to Pelham, via U. S. 31, thence Shelby County Highway 105 South to Shelby County Highway 52 on Lee Street, thence. Highway 31 South to Alabaster.. . .

Notice was given by the APSC to all carriers holding APSC authority that this application would be heard on June 22, 1978. B & B’s attorney wrote a letter to Vestavia Transit Co. (Vestavia), which has authority to operate in Birmingham, Home-wood, Vestavia and Hoover, stating that B & B by the application “does not seek to compete with your company.” Vestavia did not attend the hearing, and following an unopposed hearing, B & B was granted the authority it sought and began operating on that route.

Subsequently B & B discovered that the Hoover exit was mistakenly designated as number 265 in the original application, while it is actually number 252. Consequently an order was entered by the APSC on October 16,1978 changing the exit number to read “252,” thereby clearly giving B & B the authority to serve the business district of Hoover where Vestavia was already operating. 1-65 skirts the business district of Hoover so that if B & B were allowed to serve and travel over 1-65 through Hoover only, and not to take exit number 252, B & B would not compete with Vestavia.

After learning of the change to number 252 Vestavia filed a motion for rehearing and modification. A hearing was held before an examiner who found that Vestavia did not receive adequate notice that B & B was seeking to use exit number 252 in order to provide service on U. S. Highway 31 in Hoover. No exceptions to the examiner’s report were filed and the APSC adopted that order on April 5, 1979.

Vestavia then requested a de novo hearing on B & B’s corrected application. On May 3,1979 that hearing was held at which time B & B presented evidence primarily concerning their operation under the previous order. The examiner on January 14, 1980 found that B & B had failed to establish that their service in Hoover was required by public convenience and necessity and thus recommended restricting their service so that they could not serve the business district of Hoover. On April 17, 1980 the APSC adopted the examiner’s report and ordered the restriction to become effective on May 5, 1980.

B & B appealed to the Jefferson County Circuit Court which set aside and reversed the order of the APSC. The APSC, and Vestavia as intervenor, appealed. After the appellants and the appellee had filed their briefs, the appellee sought to file a supplemental brief with this Court. The appellants filed a motion to exclude that brief claiming that Rule 28, ARAP, prohibits the filing of the supplemental brief. We shall decide this issue along with the merits.

It is well-established that an order of the APSC is taken as prima facie just and reasonable. Code of 1975, § 37-1-124. Such an order may be set aside by the circuit court or by this Court only if “the commission erred to the prejudice of appellant’s substantial rights in its application of the law; or, the order, decision or award was procured by fraud or was based upon a finding of facts contrary to the substantial weight of the evidence. ... ” Redwing Carriers v. Alabama Public Service Commission, Ala., 356 So.2d 129 (1978) quoting Vann Express, Inc. v. Bee Line Express, Inc., Ala., 347 So.2d 1353 (1977). It is also clear that in reviewing the judgment of the circuit court, setting aside an order of the APSC, this Court accords no presumption of correctness to the decision of the circuit court because the circuit court is in no better position to review the order than the supreme court; thus, the review is treated as though the appeal had come directly to the supreme court. Alabama Public Service Commission v. Redwing Carriers, Inc., Ala., 366 So.2d 1111 (1979); Eagle Motor Lines v. Alabama Public Service Commission, Ala., 343 So.2d 767 (1977).

The primary issue presented on this appeal is whether the Public Service Commission erred in applying the law to the facts found or whether the order of the APSC was based on a finding of facts contrary to legal evidence of substantial weight. We answer both in the negative and accordingly reverse the order of the circuit court.

It should be noted that this appeal follows a de novo hearing before the APSC. Although it is apparent from the record that both sides considered the May 3, 1979 hearing as a <Je novo hearing, it is equally clear that the parties were in disagreement as to the burden placed on all of them at a-de novo hearing. Appellee urges that the APSC misconstrued the meaning of a de novo hearing. A de novo hearing is one which is tried anew, afresh, or over again. Slaughter v. Martin, 9 Ala.App. 285, 63 So. 689 (1913); Black’s Law Dictionary 483 (rev. 4th ed. 1968). A de novo hearing is not one at which the evidence taken at a prior hearing is continued or incorporated, but is one at which the entire evidence to be presented is heard anew or afresh. The APSC by considering only the evidence presented at the May 3, 1979 hearing, and by giving no consideration to the evidence presented at the prior hearing, properly treated this as a de novo hearing..

Although Vestavia, as an intervenor, requested the de novo hearing, nevertheless B & B was the party seeking to expand its authority, and as the applicant, B & B had the burden of proof at the de novo hearing to establish that public convenience and necessity required its services. Service Express, Inc. v. Baggett Transportation Co., 281 Ala. 666, 207 So.2d 418 (1968).

Because this appeal follows a de novo hearing, our scope of review is limited solely to a review of the record at that de novo hearing.

Certificates of public convenience and necessity are granted by the APSC pursuant to Code of 1975, § 37-3-11, which in its relevant part reads: The requirement of showing public necessity, however, means not that the service must be absolutely indispensable, but merely that the service must be reasonably necessary for the public good. Vann Express, Inc. v. Bee Line Express, Inc., Ala., 347 So.2d 1353 (1977).

[A] certificate shall be issued to any qualified applicant therefor, authorizing the whole or any part of the operations covered by the application, if it is found, after public hearing of the application, that the applicant is fit, willing and able to properly perform the service proposed and to conform with the provisions of this chapter and requirements, rules and regulations of the commission thereunder, and that the proposed service, to the extent to be authorized by the certificate is or will be required by the present or future public convenience and necessity; otherwise, such application shall be denied . ..
(b) Before granting a certificate to a common carrier by motor vehicle, the commission shall, among other things, consider the following:
(1) Whether existing transportation service of all kinds is adequate to meet the reasonable public needs;
(2) The financial ability of the applicant to furnish adequate, continuous and uninterrupted service the year around; and
(3) The advantages to the public of the proposed service.

At the second hearing before the APSC, the evidence presented by B & B dealt primarily with its operation under the prior application granted at the earlier hearing of this case. B & B showed that the number of passengers who rode its buses in the Hoover area was increasing. Willie Tom Sherod, the president of B & B, testified that on an average day B & B’s bus transported approximately one to five passengers on each of the two scheduled routes in Hoover. Samuel Freeman, president of Vestavia, testified that approximately thirty-five passengers per day ride Vestavia’s bus from Hoover to Birmingham. Vestavia has four daily schedules. Based on the low number of passengers B & B had attracted and on the fact that Vestavia makes four trips daily from Hoover to Birmingham, we cannot find that B & B clearly established that Vestavia’s service was inadequate to meet the reasonable public needs.

B & B presented testimony that its operation would be “crippled” if its Hoover service was halted. Henry Windham, a driver for B & B, testified, however, that while B & B’s bus collected from its passengers at the most $27.00 per round trip from Birmingham fo Alabaster, the cost of its operation on that route, including gasoline, oil, insurance, tires, maintenance and depreciation was approximately $30.95 plus the driver’s wages. Thus, there was at least some doubt as to the financial feasibility of the APSC continuing B & B’s service along this route.

B & B did show that the customers who rode B & B’s bus paid at least $1.00 per trip rather than Vestavia’s 60$ charge and that the service provided by B & B was considerably faster. Such evidence tended to show that the faster service to those members of the public who elected to pay the increased fee was more convenient. This, evidence does not by itself, however, establish that the additional bus service was required by public convenience and necessity.

Following the second hearing the examiner made the following report:

This case is now in an unfortunate posture. A de novo hearing was set as to service on U.S. 31 in downtown Hoover, without the applicant taking exception to that decision. The Applicant’s proof of public convenience and necessity of that hearing did not include any testimony of public witnesses, but consisted solely of testimony concerning operations under the order that is being reconsidered. The Applicant also attempted to show adequate notice, but that issue has been decided adversely to the Applicant in the Examiner’s Report of February 28, 1979, which became the order of the Commission after no exceptions were filed. The evidence of the Applicant’s past operations cannot, by itself, establish that the service is required by the public convenience and necessity because it would indirectly permit it to obtain authority through the improperly noticed hearing and, in effect, subvert Vestavia Transit’s right to a hearing. . . .

B & B urges that this report reflects a misconception of the law where it states that past operations alone cannot establish that the service is required by public convenience and necessity. In Barrett Mobile Home Transport, Inc. v. United States, 381 F.Supp. 1317 (D.Minn.1973), the court quoted the following from Frank Wehe Common Carrier Application, 112 M.C.C. 315 (1970):

Although operations under temporary authority raise no presumption of a need for corresponding permanent operators and are alone insufficient to justify a grant of authority . . . nevertheless, evidence of past operations under temporary authority is of probative value to support an application for permanent authority where it is used to determine the ability of a carrier to provide the service, where it indicates the volume of traffic involved and the effect of a grant of authority on existing carriers, and where there is other evidence supporting the application.

The theory propounded in that case is applicable to the situation before us. Clearly the evidence of the prior operations of B & B was admissible to show public convenience and necessity; however, such evidence by itself is insufficient to justify a grant of the authority. This is especially true where, as here, the prior authority was granted pursuant to an improperly noticed hearing. Thus, we hold the examiner’s finding to be a correct statement of the law.

Vestavia urges that because B & B did not produce any public witnesses to testify in support of the application that B & B could not possibly establish public convenience or necessity. While we do not believe that it is an absolute requirement that individual members of the public testify as to public convenience and necessity, there must be some sort of showing that such service is required by the present or future public convenience and necessity. The mere showing that a few people chose to ride B & B’s bus, as opposed to Vestavia’s lower priced bus, is not sufficient to establish public convenience and necessity, especially in light of the lack of economic feasibility of having such service available. Thus we do not find that the APSC erred in its application of the law to the facts found or that its order was based on a finding of facts contrary to legal evidence of substantial weight. For this reason the order of the circuit court must be reversed.

In view of our holding we have concluded that the appellee’s supplemental brief was not prejudicial to the rights of the appellants.

The order of the circuit court must be, and is, reversed, and this cause is remanded to that court for an order not inconsistent with this opinion.

REVERSED AND REMANDED.

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

JONES, J., concurs in the result.

SHORES, J., dissents without opinion.

EMBRY, J., not sitting.


author: PER CURIAM. JONES, Justice

text:
    RIDOUT’S-BROWN SERVICE, INC., a Corporation v. Dora Elizabeth HOLLOWAY and Juanita Jackson.
    79-651.
    Supreme Court of Alabama.
    April 17, 1981.
    J. Glynn Tubb of Eyster, Eyster, Key & Tubb, Decatur, for appellant.
    Jerry R. Knight, Decatur, for appellees.
   PER CURIAM.

This cause was initiated by Plaintiffs-Ap-pellees on June 21, 1978, in the Circuit Court of Morgan County, Alabama. Plaintiffs’ original complaint alleged: 1) willful misrepresentation and deceit; 2) breach of contract; 3) intentional infliction of emotional distress; and 4) negligent infliction of emotional distress, concerning Defendant’s conduct relative to the preparation and embalmment of the body of Charles Ernest Jackson, Plaintiffs’ deceased brother. On November 20, 1979, the trial court entered a pre-trial order allowing Plaintiffs to proceed upon their allegations of willful misrepresentation and deceit.

Trial by jury was commenced on January 21,1980. Appellant’s motions for a directed verdict at the end of Plaintiffs’ evidence, and at the trial’s termination, were overruled. On January 23, 1980, the jury returned a verdict for the Plaintiffs in the amount of $220,000, and final judgment was entered thereon. Defendant’s subsequent motion for a new trial, or, in the alternative, judgment n.o.v., was denied. We affirm.

We are unpersuaded by Appellant’s contentions that the trial court erred in denying its motions for a directed verdict, judgment notwithstanding the verdict, or a new trial. In determining the correctness of the trial court’s refusal of an affirmative instruction for the Defendant, an appellate court will consider evidence in an aspect most favorable to the plaintiff. Sullivan v. Alabama Power Co., 246 Ala. 262, 20 So.2d 224 (1944); Aircraft Sales & Service, Inc. v. Gantt, 255 Ala. 508, 52 So.2d 388 (1951); F. W. Woolworth Co. v. Ney, 239 Ala. 233, 194 So. 667 (1940).

There is a presumption in favor of a verdict for the plaintiff and in favor of the trial judge’s refusal to grant a directed verdict. Alabama Great Southern R. Co. v. Moundville Motor Co., 241 Ala. 633, 4 So.2d 305 (1941). Our careful review of the record reveals considerably more than a mere scintilla of evidence to go to the jury in support of Plaintiffs’ allegations. Consequently, denial of Defendant’s request for a directed verdict was not error. Saunders System Birmingham Co. v. Adams, 217 Ala. 621, 117 So. 72 (1928). For a case involving a fact situation somewhat similar to the instant case, see Meyer v. Nottger, 241 N.W.2d 911 (Iowa 1976).

While we are cognizant of the mandate that a party charging fraud must prove it by clear and convincing evidence, we are convinced that the evidence of record amply supports the jury’s verdict for the Plaintiffs on their count of deceit and willful misrepresentation. Hughes v. Cartwright, 222 Ala. 4, 130 So. 550 (1930); Decker v. State National Bank, 255 Ala. 373, 51 So.2d 538 (1951); Indemnity Ins. Co. of North America v. Holiway, 233 Ala. 100, 170 So. 329 (1936).

Of Appellant’s other contentions, we discern only one which merits our discussion: The excessiveness vel non of the verdict. We recognize that, pursuant to Code 1975, § 12-22-71, where the only ground of reversal is the excessiveness of damages, the appellate court has the power to determine the proper amount of recovery and affirm the judgment, subject to the filing of a remittitur of the amount in excess thereof. Avery Freight Lines v. Stewart, 258 Ala. 524, 630 So.2d 895 (1953); Gulf States Steel Co. v. Comstock, 17 Ala.App. 430, 85 So. 305 (1920). Necessarily, however, the invocation of this statutory authority is dependent upon our holding that the presumption of correctness of the jury verdict is overcome by a clear showing that the amount of the verdict is the product of passion, bias, prejudice, corruption, or other improper motive or cause. Vest v. Gay, 275 Ala. 286, 154 So.2d 297 (1963).

The totality of the circumstances, particularly the relationship of the parties, in which the next of kin of the deceased reposed total confidence and trust in the funeral director, coupled with the Defendant’s deliberate falsification of the condition of the corpse in order to spare the Defendant the time and trouble of preparing the remains for private viewing by the family and acquaintances, evince a callous disregard for the natural and ordinary sensibilities of the Plaintiffs and amply justify the amount of the award.

AFFIRMED.

All the Justices concur, except JONES, J., who concurs specially.

JONES, Justice

(concurring specially).

At first, I was inclined to affirm conditionally, subject to a remittitur of a substantial amount of the award. I have been persuaded by my colleagues on the Bench, however, to join in a unanimous vote for the Per Curiam opinion. Indeed, the facts before us are extreme. Punitive damages are clearly authorized. I do not quarrel with the proposition that, within the context of our religious heritage and cultural values, the “Funeral Home” occupies one of the most exalted positions of trust among our institutions.

It matters not the station in life of the departed; however wretched his earthly existence; and whatever may be the fate of his soul; we tend to share the common belief that death is the ultimate victory, and that “Rest in Peace” is as much a solace to the next of kin as an eternal hope for the dead. Surely, one who merchandises the wares and services of these last rites must be held to the highest awareness of his customer’s sensibilities, and must discharge his duties with tenderness and forthrightness.

Here, the evidence strongly supports a jury finding that the funeral home, acting with indifference and motivated by self-gain, took undue advantage of the delay of several hours between the time of death and the pick up of the corpse to conceal the remains in a disaster pouch (or “crash sack”) and tell his next of kin that “... I don’t think you want to see him because the left side of his face is eaten up with maggots.” Add to this the further inference that except for a happenstance conversation between Mrs. Holloway and the county coroner (who subsequently confronted the funeral director with his firsthand knowledge of the true undeteriorated condition of the body), the sisters of the deceased would not have learned of the cruel, intentional ploy which was obviously intended to spare the Defendant of its obligation to prepare the remains for respectable viewing as requested by the family.

That the law perforce furnishes not only a remedy but also allows substantial punitive damages for such a wrong goes without saying. I suppose what troubles me is the unguided discretion accorded in both the fact finding process and the judicial review that fixes the amount of punitive damages. The current system furnished virtually no yardstick for measuring the amount of the award over against the purpose of the award. We are all in agreement that the award in the instant case ought to be large enough to hurt. It ought to sting in order to deter; this is its purpose. But only in the rarest of cases should it be large enough to destroy; this is not its purpose.

Which of the two — merely to hurt or to destroy — does the $220,000 award accomplish here? I can readily agree that the gravity of the wrong, abundantly supported by the proof of record, justifies the full amount of this award; and, this being the sole cognizable standard, I am constrained to concur in the Per Curiam affirmance. But, still, in my opinion, something is missing; this standard is deficient. To the “gravity of the wrong” element should be added this inquiry: What (i. e., how much) will it take to punish this Defendant? The purpose of this two-fold test is to particularize both the wrongful act and the wrongdoer. Only when both elements — the gravity of the wrongful act and the amount of damages necessary to punish the particular defendant — are considered and weighed one against the other, can the award be rationally adjudged to accomplish the ultimate purpose of exemplary damages.

The problem, then, is how to infuse the second of these elements into the equation. The first — the extent and degree of the wrong — is supplied in the liability fixing stage of the proceedings. Because it imper-missibly impugns the fact finding process regarding liability, however, evidence of the defendant’s financial worth is inadmissible. Southern Life and Health v. Whitman, 358 So.2d 1025 (Ala.1978). The reliability of the fact finding process cannot be sacrificed in an unbifurcated proceeding by allowing evidence on the issue of damages which may unfairly influence the fact finder in resolving the issue of liability.

Thus, short of a bifurcation with respect to the issues of liability and damages, the answer is to permit the injection of the second element — the adequacy vel non of the damages — in a post-judgment proceeding by way of judicial review. For example, if the Defendant in the instant case were the individual mortician earning $20,-000 per year, this fact should be admissible in support of a post-judgment motion on the issue of the validity of the award. The gravity of the wrong may be the same, whether the defendant is a salaried employee or a multimillion dollar corporation, but, in the case of the former, the $220,000 verdict would be far out of proportion to its intended purpose. What it takes to punish the one bears no relationship to what it takes to punish the other.

What I am saying is that, in the totality of the system, we must preserve the reliability of the fact finding process for adjudging liability and, at the same time, improve the reliability of the damage assessment process in order to fit the punishment (the amount of punitive damages) to the offensive conduct and the offender.


author: WRIGHT, Presiding Judge.

text:
    Margaret Eleanor SMITH v. Thomas Scott SMITH.
    Civ. 2404.
    Court of Civil Appeals of Alabama.
    Oct. 29, 1980.
    Rehearing Denied Dec. 10, 1980.
    Ira DeMent, Montgomery, for appellant.
    Morris A. Burkett, Montgomery, for ap-pellee.
   WRIGHT, Presiding Judge.

This is an appeal from denial of relief under Rule 60(b), Alabama Rules of Civil Procedure, as ordered by the Montgomery County Circuit Court. We affirm.

The parties to this action were married in 1954 at Montgomery, Alabama. On December 27, 1979, the parties left their home in Dothan, Alabama, and traveled to Montgomery for the purpose of obtaining a divorce.

An attorney prepared a petition for divorce on behalf of the husband, an answer and waiver by the wife, a property settlement agreement signed by both parties, and the deposition of the husband. All were properly filed with the Montgomery County Circuit Court.

On January 2, 1980, a final decree of divorce, incorporating by reference the property settlement agreement, was entered. Soon thereafter the wife acquired the services of an able attorney. Through that attorney’s negotiations with the husband’s counsel, the parties executed and filed a joint petition to modify the original decree. The petition, dated January 30, 1980, requested modification of the original property settlement and decree in many respects. The petition stated that the parties “deemed this Amendment of the original agreement a fairer and more equitable division of their affairs.” Both parties and their attorneys signed the petition and the agreement. The court approved the petition and modified the original decree as requested on February 1, 1980. The new decree substantially increased the benefits to the wife.

On April 25,1980, the wife filed a motion for relief from judgment pursuant to Rule 60(b)(3), ARCP. The motion alleged that the wife had entered into both the original and the amended agreements relying upon fraudulent misrepresentations by her husband concerning his financial condition. The court requested submission of briefs and heard oral argument by both counsel. On May 20, 1980, the court denied the motion. The wife filed notice of appeal.

It is well established that the sole issue on appeal from denial of a Rule 60(b) motion is whether the trial court abused its discretion. McSween v. McSween, 366 So.2d 293 (Ala.Civ.App.1979); Marsh v. Marsh, 338 So.2d 422 (Ala.Civ.App.1976). That court has wide discretion in considering such a motion. Clark v. Clark, 356 So.2d 1208 (Ala.Civ.App.1978).

The primary contention of the wife’s motion was that her husband had fraudulently induced her to enter into the property settlement agreements and agree to a divorce. More specifically, the appellant claimed that her husband told her they would be forced to file bankruptcy and would lose their home unless she accompanied him to Montgomery to sign divorce papers. The appellant also alleged that her husband told her she was in danger of losing her children if she didn’t sign divorce papers immediately and that he would be put in jail if forced to produce a financial statement. Appellant alleged that such statements were made in December 1979, before the original divorce decree, and that she continued to rely on them while executing both the original and amended property settlement agreements. She does not seek to set aside the divorce, but only the property agreement and award of alimony to her.

It is without dispute that the appellant was represented by competent counsel for some time before the joint petition to modify was filed and the original judgment amended. The lengthy and detailed second agreement fully supports the inference that the parties and their counsel engaged in intense negotiations for the purpose of effecting an equitable agreement. It is not necessary to set out the details of that agreement. However, it is to be noted that under the agreement the wife will receive $100,000 in periodic alimony, $95,850 in alimony in gross; one-half interest in the home with mortgage payments, insurance, taxes and one-half of maintenance paid; all household furniture, a 1979 Buick automobile, and be made the irrevocable beneficiary of $100,000 in life insurance on the life of the husband. All income tax accruing from her award is to be paid by the husband. All expenses of the one minor child are to be paid by the father with a minimum of $200 per month, and an automobile furnished the child. It is evident that the value of the agreement to the wife is substantially in excess of a quarter million dollars. The agreement appears freely entered into. The parties were dealing through counsel at arm’s length and no confidential relationship existed at that time. 24 Am.Jur.2d Divorce and Separation, § 896 (1966). Clearly the wife and child are well provided for.

The appellant cites a case pronouncing the rule that a settlement agreement given effect by a divorce decree must be fair, reasonable and just, free from fraud, duress or other coercion. Cary v. Cary, 257 Ala. 431, 59 So.2d 659 (1952). The court in that case rested its decision upon the glaring inadequacy of the settlement agreement and the obvious attending duress in its execution. Such conditions are not present in this case. The agreement here appears well negotiated and provides handsomely for the appellant. She personally and by counsel presented it to the court and requested its entry into the judgment.

The agreement was adopted by the court and in effect for almost three months before appellant’s motion to set it aside was filed. It must be presumed that appellant accepted its benefits. Appellant was aware, or should have been aware, of all the pertinent facts upon which she based her 60(b)(3) motion at the time of the negotiated, amended decree some three months earlier. In exercising its discretion when considering a 60(b) motion, the court must balance any need to remedy injustice against the need for finality of judgments. Tichansky v. Tichansky, 54 Ala.App. 209, 307 So.2d 20, cert. denied, 293 Ala. 775, 307 So.2d 24 (1974).

Under the facts of this case we cannot say the trial court abused its discretion in denying relief to appellant. The order of the trial court is due to be affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: ADAMS, Justice.

text:
    Ex parte Margaret Eleanor SMITH. (Re: Margaret Eleanor SMITH v. Thomas Scott SMITH).
    80-199.
    Supreme Court of Alabama.
    May 1, 1981.
   ADAMS, Justice.

WRIT DENIED — NO OPINION.

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


author: BRADLEY, Judge.

text:
    Roger GILLESPIE v. Donald and Martha BAILEY.
    Civ. 2356.
    Court of Civil Appeals of Alabama.
    Nov. 12, 1980.
    Rehearing Denied Dec. 17, 1980.

      Judith S. Crittenden of Clark, James & Crittenden, Birmingham, for appellant.
    Lee Clyde Traylor of Traylor & McGee, Fort Payne, for appellee.
   BRADLEY, Judge.

This is an adoption case.

The natural father, Roger Gillespie, appeals from a judgment of the Circuit Court of DeKalb County holding that he had abandoned his infant daughter, Jennifer.

The sole issue on appeal is whether the evidence supports the trial court’s finding that Gillespie had abandoned his daughter and, therefore, his consent to her adoption was unnecessary.

Section 26-10-3, Code of Alabama 1975, provides that the consent of a child’s parents must be obtained for the child’s adoption unless the parents have abandoned the child.

The record reveals the following facts:

On September 6, 1976 the mother of Jennifer was killed and Jennifer’s father, Roger Gillespie, was arrested and charged with her death. He later pleaded guilty to voluntary manslaughter and was sentencéd to serve four to twelve years in an Illinois prison. Gillespie served two and one-half years of this sentence, was paroled, and now lives with his parents in West Virginia.

Shortly after the mother’s death, Jennifer was taken to Alabama where she stayed for a short while with a maternal aunt. Jennifer was four and one-half months old. After several weeks, the aunt entrusted the care of Jennifer to Mr. and Mrs. Donald Bailey, who were neighbors. Jennifer has been with the Baileys since that time except for one night after the district court had given custody of Jennifer to the maternal aunt and her husband.

The Baileys filed a petition for adoption of Jennifer in the DeKalb County Probate Court on September 9, 1977. Roger Gillespie’s mother and father filed a petition in the DeKalb County District Court on December 7, 1977 seeking custody of Jennifer. (At no time has Gillespie sought the custody of his daughter from an Alabama court.) In said petition they also asked that the Baileys’ adoption proceedings be transferred to the district court for hearing. The adoption matter was transferred to the district court on December 15, 1977.

After a hearing, temporary custody of Jennifer was placed with the Baileys. No further action was taken on the adoption matter. Both proceedings were appealed to the circuit court.

After an ore tenus hearing in the circuit court, custody of Jennifer was awarded to the Baileys. Later the Baileys moved the circuit court to hear and decide their petition for adoption of Jennifer. The natural father was notified and the matter came on for hearing before the court. After testimony was taken the court held that the natural father had abandoned his daughter and his consent to her adoption by the Baileys was, therefore, not required.

The evidence also shows that after Roger Gillespie was charged with killing his wife, he was released on bond and remained so for ten months. During the time that he was free on bond, Gillespie on three occasions sent the Baileys small amounts of money for Jennifer. For the two and one-half years that he was in prison, he did not send his daughter any money, gifts, cards or letters. After being released from prison on parole, Gillespie obtained a job with a bakery in West Virginia and after his second payday sent Jennifer $50. This money was sent about two weeks before the trial of the adoption matter. Although he sent some money to his daughter after being released from prison, Gillespie did not write or call his daughter nor make any other effort to see her or contact her.

From the time the child was taken from Illinois after her mother’s death until the trial of the abandonment issue, Gillespie had seen his daughter one time for a period of fifteen minutes. This visit took place in Alabama at a relative’s house. Mrs. Bailey took the child to the relative’s house for the visit. She stated that Gillespie did not speak to the child, did not ask to hold the child and did not touch the child. Furthermore, at no time while the father was out on bond did he write to the child, call her on the telephone, or send her gifts, cards or letters. He did, however send small amounts of money to the Baileys on three different occasions. During the period when he was out of jail on bond, Gillespie asked Mr. Bailey to keep Jennifer and not let the maternal grandparents have her. After being incarcerated Gillespie was requested to give his consent to Jennifer’s adoption by the Baileys but he refused.

In order for a parent to be deemed to have abandoned his child within the purview of the adoption statute, i. e. § 26-10-3, it must appear that the parent has intentionally abandoned the child. That is, the parent has undertaken a course of conduct toward the child which would imply a conscious disregard or indifference to parental obligations owed to the child. Straszewicz v. Gallman, Ala.Civ.App., 349 So.2d 593 (1977); Henderson v. Feary, Ala.Civ.App., 340 So.2d 808, cert. denied, Ala., 340 So.2d 811 (1976).

Assessing the evidence of the case in the light of the presumption of correctness, we conclude that the judgment at bar is sufficiently supported by the evidence to withstand the appeal.

In summary, the evidence to which we refer is the unlawful killing of the child’s mother, resulting in the father’s imprisonment on a four to twelve year sentence; the father’s relinquishment of the child’s care to relatives; the father’s consent for strangers to keep the child so long as they did not allow the maternal grandparents to have her; the father’s failure to call, write or send his daughter gifts during the entire time that she has been in Alabama; and the total lack of concern for and interest in the daughter exhibited by the father during his one visit with her. Thomas v. Culpepper, Ala.Civ.App., 356 So.2d 656 (1978). The few instances in which he sent money to the Baileys for the child and his refusal to consent to the adoption do not require a different finding.

We are not to be understood as holding that incarceration per se constitutes abandonment, but we do hold that it is a factor to be considered along with the other factors indicating abandonment. Thomas v. Culpepper, supra.

Therefore we hold that the evidence supports the trial court’s finding that Gillespie had intentionally relinquished the rights and obligations of parenthood and, as a result, had abandoned his daughter within the meaning of the adoption statute.

AFFIRMED.

HOLMES, J., concurs.

WRIGHT, P. J., concurs in the result.


text:
    Ex parte Roger GILLESPIE. (Re: Roger GILLESPIE v. Donald and Martha BAILEY).
    80-252.
    Supreme Court of Alabama.
    May 1, 1981.
   ADAMS, Justice.

WRIT DENIED — NO OPINION.

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


text:
    Joseph Crum HURD v. Beverly Rhoades HURD.
    Civ. 2285.
    Court of Civil Appeals of Alabama.
    Dec. 10, 1980.
    Rehearing Denied Jan. 21, 1981.

      James Allen Main, Anniston, for appellant.
    G. Coke Williams of Williams, Williams & Norton, Anniston, for appellee.
   WRIGHT, Presiding Judge.

This is a divorce case.

The parties were married in 1950. Three children, one of whom is still a minor, were born of the marriage. The husband asked the wife for a divorce in 1977, the wife filing a petition shortly thereafter. The wife’s complaint alleged incompatibility initially and was subsequently amended to include the adultery of the husband as a ground. Divorce was granted on the ground of adultery in November 1979.

Custody of the minor child was awarded to the wife with $1,300 per month in child support and periodic alimony from the husband. In addition, the husband is to pay $40,000 alimony in gross at the rate of $4,000 per year, pay reasonable medical expenses of the wife and child, provide health and major medical insurance, and pay the premiums on a life insurance policy naming the wife as beneficiary.

As property settlement the wife was awarded the home of the parties along with all furnishings and appliances, certain bank accounts and certificates of deposit, and the car which she had been driving.

It is from above described awards and settlement that the husband appeals. We affirm.

The husband’s primary contention on appeal is that the trial court erred to reversal in awarding the wife an amount in excess of his claimed earnings.

The evidence at trial shows that the husband is the majority stockholder and president of the Beauty Equipment and Supply Company, Inc. (BESCO). He also has been a stockholder in several other companies and was awarded all such stock in the decree. The husband estimated the book value of his interest in BESCO at $68,000. In addition the husband claimed to earn a salary from BESCO in the amount of $950 per month with over $400 per month as travel allowance.

It is well established that we review the trial court’s judgment in a divorce case with the presumption of correctness when that court heard the testimony and viewed the witnesses. Robinson v. Robinson, 381 So.2d 637 (Ala.Civ.App.), cert. denied, 381 So.2d 641 (Ala.1980). Consequently, we will not reverse that judgment unless it is clear from the record that it amounts to a clear abuse of judicial discretion. Johnson v. Johnson, 360 So.2d 996 (Ala.Civ.App.), cert. denied, 360 So.2d 999 (Ala.1980).

There is no magic mathematical formula which determines the proper amount of an alimony award and each such award rests upon the facts of the particular case. Hall v. Hall, 382 So.2d 1139 (Ala.Civ.App.1980); Self v. Self, 49 Ala.App. 665, 275 So.2d 345 (1973). However, in determining the proper amount of such an award, factors which may be considered include the future prospects of the parties, their ages, health, station in life, the length of the marriage, in appropriate cases the conduct of the parties as regards the cause of divorce, the needs of the recipient and the ability of the other to pay. Shirley v. Shirley, 350 So.2d 1041 (Ala.Civ.App.1977); Clark v. Clark, 356 So.2d 1208 (Ala.Civ.App.1978).

The husband’s ability to pay is difficult to determine from the record before us. His primary source of income is BESCO, a closely held corporation in which he is the sole active stockholder deriving benefits therefrom.

Although the husband admittedly does not receive a large salary per se, he appears to have maintained a standard of living comparable to those whose earnings are much higher than his own. While they were married the parties took numerous trips out of the country, drove expensive automobiles and made expensive purchases of jewelry and other articles. The funds which allowed these and other luxuries came from BESCO. BESCO doesn’t pay dividends, but the husband has access to money received by BESCO from cash sales. In the past the husband has apparently taken a substantial amount from those funds.

Furthermore, BESCO owns several vehicles which the husband uses, including a late model car which he allows his paramour to drive. BESCO provides insurance and upkeep for these vehicles. BESCO has also paid the premiums on insurance policies covering the husband’s life.

The husband has also been active in other businesses. One such venture was established in conjunction with his paramour and was sold about the time the husband left his wife. The profit realized from the sale of this business appears to have been enjoyed by them jointly in many respects.

The wife in this case is about fifty years old and, in stark contrast to the husband’s apparent business ability, is primarily dependent upon alimony to maintain her standard of living. To her credit, she did begin working as a bank teller sometime after the divorce was begun and now makes about $600 per month salary. She is not likely to begin a new, lucrative career at the age of fifty, after twenty-eight years as a housewife, and can never hope to make a large salary as a bank teller.

We note, too, that the cause of divorce was plainly the husband’s infidelity. The husband began an affair with a married woman and continued that affair for several years before the wife filed for divorce. As soon as his paramour was divorced and his own separation occurred, he began to live openly with his lover. There is much evidence that the wife, on the other hand, was a faithful wife and good mother.

In conclusion, while the award to the wife was generous, we do not believe it was so excessive as to constitute an abuse of discretion. An award exceeding the husband’s stated income does not automatically amount to an abuse of discretion on the part of the trial court. Hughes v. Hughes, 362 So.2d 910 (Ala.Civ.App.1978).

In light of the evidence produced at trial, we cannot agree with the husband’s contention that he is without means to comply with the court’s order as to alimony and child support. The judgment of the trial court is due to be affirmed.

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

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: EMBRY, Justice.

text:
    Ex Parte Joseph Crum HURD. (Re: Joseph Crum HURD v. Beverly Rhoades HURD).
    80-314.
    Supreme Court of Alabama.
    May 7, 1981.
   EMBRY, Justice.

WRIT DENIED — NO OPINION.

MADDOX, JONES, SHORES, BEATTY and ADAMS, JJ., concur.

TORBERT, C. J., and FAULKNER and ALMON, JJ., dissent.


text:
    Margaret Ethel FLOYD v. The HOUSING AUTHORITY OF the CITY OF TROY, Alabama.
    Civ. 2362.
    Court of Civil Appeals of Alabama.
    Jan. 7, 1981.
    Rehearing Denied Feb. 11, 1981.
    J. Paul Lowery, Montgomery, for appellant.
    William I. Hill, II of Hill, Hill, Carter, Franco, Cole & Black, Montgomery, for ap-pellee.
   BRADLEY, Judge.

This is a workmen’s compensation case and, as in all such cases, our review is limited to questions of law and an examination of the evidence to determine if there is any legal evidence to support the findings of fact of the trial court. Farmers Gin Co. v. Rose, Ala.Civ.App., 374 So.2d 351 (1979). If there is any legal evidence to support the trial court’s findings, its judgment must be affirmed. American Tennis Courts, Inc. v. Hinton, Ala.Civ.App., 378 So.2d 235, cert. denied, Ala., 378 So.2d 239 (1979).

A careful review of the record reveals the following pertinent facts: Margaret E. Floyd was employed by The Housing Authority of the City of Troy, Alabama and, in November 1977, while so employed, injured her back. Shortly thereafter Aetna Insurance Company, the Housing Authority’s insurance carrier, began paying to Mrs. Floyd temporary total compensation benefits and her medical expenses. Aetna ceased paying the temporary total benefits for a brief time before April 1978 when it was informed that Mrs. Floyd was able to resume her employment.

Mrs. Floyd employed an attorney on April 5, 1978 and he requested Aetna to reinstate the temporary total benefit payments to her. Aetna commenced paying temporary total benefits to Mrs. Floyd after it determined that she was to undergo additional surgery for the injury incurred in November 1977. These payments were made through her attorney’s office and continued until December 31, 1978 when they were stopped. Aetna terminated the temporary total benefits to Mrs. Floyd after receiving a letter from her doctor that she had reached maximum recovery and had a twenty percent permanent partial disability to the body as a whole.

On December 19, 1978 Aetna wrote Floyd’s attorney a letter offering to settle the claim based on the doctor’s report. Another settlement letter followed on January 12,1979. At this time Floyd’s attorney said he wanted another doctor to examine his client and would contact Aetna later. He never did.

On February 9 and 28, 1979 Aetna made telephone calls to Floyd’s attorney but he was not contacted. On March 8; 1979 Aet-na wrote another letter to Floyd’s attorney concerning settlement and requesting a reply. No reply was made. Aetna’s final offer was by a letter dated March 29, 1979. Aetna says no reply to this letter was received.

At no time during the many letters and telephone contacts was the statute of limitations mentioned, although there is evidence that Floyd’s attorney after being informed why the payments were stopped said he would file suit if temporary total benefit payments were not resumed. The date of the last temporary total benefit payment to Floyd was December 31, 1978 and on December 31, 1979, the anniversary date of the last payment, no action had been filed. In fact suit was not filed until January 14, 1980. On March 7, 1980 the Housing Authority filed a motion to dismiss or, in the alternative, a motion for summary judgment alleging that the statute of limitation had run and the action should be dismissed. After a hearing where testimony was taken and other evidence offered, the trial court dismissed the action because it was filed too late. This appeal is from that order.

Floyd says here that Aetna is estopped or due to its fraudulent misconduct cannot assert the one year statute of limitation set out in § 25-5-80, Code of Alabama 1975. Section 25-5-80 provides in part as follows:

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

In support of her contention, Floyd argues that she had an agreement with Aetna that temporary total benefits would be paid for an indefinite period of time and that Aetna terminated the temporary total benefit payments on December 31, 1978 without giving her or her attorney any notice that such action would take place. The violation of the agreement by stopping the temporary total benefits payments, especially without any notice, brings such conduct on the part of Aetna within the purview of Dorsey v. United States Pipe & Foundry Co., Ala., 353 So.2d 800 (1977). The pertinent rule from Dorsey, is as follows:

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

We have carefully examined the evidence in the case at bar and have been unable to find any facts that would bring it within the Dorsey rule. Aetna did nothing to prevent Floyd from filing suit. Neither did Aetna lead Floyd to believe liability was admitted and would not be contested. On the contrary, Aetna terminated the temporary benefits payments to Floyd when it received a copy of a letter that was sent to her by her doctor stating that she had reached maximum recovery and had a twenty percent permanent disability to the body as a whole. Such termination was in accord with § 25-5-57(a)(1) and Speigner v. McGhee, 55 Ala.App. 384, 316 So.2d 215, cert. denied, 294 Ala. 769, 316 So.2d 221 (1975).

It is undisputed that Aetna did not specifically notify Mrs. Floyd or her attorney that the temporary total benefits were being terminated as of December 31,1978, but the benefit payments checks were being sent to Mrs. Floyd through her attorney’s office and he had requested that she acknowledge receipt of them. Surely it would not be unreasonable to expect either Mrs. Floyd or her attorney to notice the •cessation of the benefits payments sometime during the following year. Furthermore, Aetna’s claims manager testified that' he told Floyd’s attorney on the telephone when he offered to settle that his client’s temporary total benefits had been terminated, and Mrs. Floyd’s attorney replied that suit would be filed if the temporary total benefits were not reinstated. Under these circumstances we must assume that the attorney was aware of the period of limitation within which suit must be filed. See Kuntsman v. Mirizzi, 234 Cal.App.2d 753, 44 Cal.Rptr. 707 (Dist.Ct.App.1965).

We would also note that the evidence is clear that Aetna made all of the offers to settle with no reply from Mrs. Floyd’s attorney. This attorney did tell Aetna that he wished to obtain an independent medical examination of his client and would get in touch with Aetna after such examination. He never did.

Offers to compromise or settle a disputed claim will not be received as an admission of the party making the offer. Langham Small Motors v. Thomas, 390 So.2d 1055 (Ala.Civ.App. 1980), cert. denied, 390 So.2d 1055 (Ala. 1980). We also said in Langham that it was important in workmen’s compensation cases to explore and reach, if possible, extrajudicial settlements.

The evidence fully supports a finding that Aetna did nothing which would lead Floyd to believe liability was admitted and would not be contested nor did Aetna do or say anything that would lead Floyd to believe that it was unnecessary to file suit within one year after the last temporary total payment.

Floyd says, however, that she had an agreement with Aetna that temporary total benefits would be paid indefinitely and Aet-na breached this agreement without notice.

To begin, we are not convinced that Floyd had an agreement with Aetna to pay temporary total benefits for any particular length of time. The so-called agreement is supposed to be contained in a letter sent to Troy Housing Authority on April 5,1978 by Floyd’s attorney. The most that can be said for this letter is that the employer was advised that the employee had been injured on the job and that she was to undergo surgery for the injury. The payment of temporary total benefits was requested to be made or suit would be filed. Temporary total benefits were paid regularly until. December 31, 1978, when Aetna was advised by Floyd’s doctor that Floyd had reached maximum recovery. At this time payments were terminated.

We conclude there is no basis in the evidence for a finding that Aetna had agreed to pay temporary total benefits to Floyd for an indefinite period of time. The most that can be said for Aetna’s response to Floyd’s April 5, 1978 letter is that Aetna undertook to pay Floyd temporary total benefits until she reached maximum recovery or until the expiration of three hundred weeks, whichever occurred first. See § 25-5-57(a)(l), Code of Alabama 1975. This Aetna did.

As to Mrs. Floyd’s contention that Aetna should have notified her that it was terminating the temporary total benefit payments on December 31, 1978, we observe that the evidence suggests that Mrs. Floyd’s attorney was informed by Aetna’s claims manager of the reason the payments were being stopped, i. e., his client had reached maximum recovery and had a twenty percent permanent partial disability. Furthermore, the workmen’s compensation law does not require notice of termination of temporary total benefits before they can be stopped. See § 25-5-57(a)(l), Code of Alabama 1975; Speigner v. McGhee, supra. The cessation of payments should be sufficient notice that the temporary total benefits have been terminated.

Therefore, we conclude that Aetna was not estopped to assert nor had it engaged in any fraudulent conduct which would prevent it from asserting the one year statute of limitation; hence the trial court properly dismissed Floyd’s claim for workmen’s compensation benefits because it came too late.

AFFIRMED.

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


author: MADDOX, Justice.

text:
    Ex parte Margaret Ethel FLOYD. (Re: Margaret Ethel FLOYD v. The HOUSING AUTHORITY OF the CITY OF TROY, Alabama).
    80-345.
    Supreme Court of Alabama.
    April 24, 1981.
   MADDOX, Justice.

WRIT DENIED — NO OPINION.

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