author: PER CURIAM. BEATTY, Justice FAULKNER, Justice JONES, Justice

text:
    Correll GOLDEN v. Joe Douglas McCURRY, Jr.
    79-78.
    Supreme Court of Alabama.
    Oct. 3, 1980.
    Rehearing Denied Jan. 9, 1981.

      Francis H. Hare, Sr., Birmingham, and Charles E. Floyd, Phenix City, for appellant.
    Ronald G. Davenport of Ferrell & Davenport, Phenix City, for appellee.
    Lanny S. Vines, Birmingham, for Alabama Trial Lawyers Association.
    Harold F. Herring, Huntsville, and Brit-tin T. Coleman, Birmingham, for Alabama Defense Lawyers Association.
   PER CURIAM.

The significant issue presented by this appeal is whether this Court should abolish the common law rule of contributory negligence and replace it with the rule of comparative negligence.

The basic facts giving rise to the lawsuit are as follows: Plaintiff Correll Golden had ridden home from work in a truck. He alighted from the truck and was crossing Highway 164 to reach his home which was located across the highway. Golden was struck by defendant McCurry’s automobile while he was still on the travelled portion of the highway. Golden claimed in his lawsuit that his injuries were proximately caused by McCurry’s negligence or wantonness. McCurry claimed that Golden’s own negligence contributed to his injuries. Golden asked the court to strike McCurry’s contributory negligence defense and adopt the doctrine of comparative negligence. The trial court refused; Golden then stipulated that he was 1% negligent; McCurry stipulated that he would contend throughout the trial that Golden was contributorily negligent and that Golden’s negligence proximately contributed to his injuries. Both parties conducted pre-trial discovery.

Claiming that he was entitled to a judgment as a matter of law based upon the pleadings and discovery of record, defendant McCurry filed a motion for summary judgment, which the trial court granted. Golden appeals.

I

As we stated before, the significant issue on this appeal is whether this Court should exercise its inherent power to abrogate the common law defense of contributory negligence and adopt in its place the doctrine of comparative negligence, or whether such a clear departure from presently existing law should be deferred to the judgment of the legislature.

The parties and the Alabama Trial Lawyers Association and the Alabama Defense Lawyers Association, amici curiae, have ably addressed the issues in this case in their briefs and at oral argument. Golden and ATLA contend that: (1) contributory negligence was judicially established; therefore, it can be judicially abolished; (2) the trend of the law is toward an apportionment of fault, and (3) the “pure’’ form of comparative negligence should be adopted by this Court, and applied retroactively.

McCurry and ADLA, on the other hand, argue that: (1) Code 1975, § 1-3-1 is a statutory codification of the common law defense of contributory negligence; therefore, the legislature, and not the courts, should change the existing law; (2) more states adhere to contributory negligence than to any one form of comparative negligence; and (3) to permit contributory negligence as a defense to a negligence claim is the most equitable because it denies recovery to the party who contributed to his own injuries.

We have carefully studied the many comments and debates by legal scholars, judges and lawyers on the doctrine of comparative negligence and its relation to the doctrine of contributory negligence. We recognize that the doctrine of contributory negligence has been severely criticized by eminent legal scholars and by judges who have abolished it by judicial decision, but we also recognize that “[t]he great majority of the jurisdictions which have recognized the applicability of the comparative negligence doctrine in negligence actions generally, have done so under statutory provisions expressly imposing the doctrine.” Annot., 78 A.L.R.3d 339 (1977).

The Supreme Court of Illinois, when it declined to abrogate judicially that state’s contributory negligence defense, said:

After full consideration we think, however, that such a far-reaching change, if desirable, should be made by the legislature rather than by the court. The General Assembly is the department of government to which the constitution has entrusted the power of changing the laws.
Where it is clear that the court has made a mistake it will not decline to correct it, even though the rule may have been re-asserted and acquiesced in for a long number of years. No person has a vested right in any rule of law entitling him to insist that it shall remain unchanged for his benefit. But when a rule of law has once been settled, contravening no statute or constitutional principle, such rule ought to be followed unless it can be shown that serious detriment is thereby likely to arise prejudicial to public interests. ...

Maki v. Frelk, 40 Ill.2d 193, 239 N.E.2d 445 (1968).

After due and deliberate consideration, we hold that, even though this Court has the inherent power to change the common law rule of contributory negligence, it should, as a matter of policy, leave any change of the doctrine of contributory negligence to the legislature. By refusing to exercise our inherent power, we follow the procedure common to most jurisdictions. We note that the change from contributory to comparative negligence in most, but not all, jurisdictions has come through the legislative process. Annot. 78 A.L.R.3d 339 (1977).

II

Plaintiff Golden claims that summary judgment was inappropriate as to the wanton count in his complaint, because, he says, contributory negligence is no defense to a wanton count.

Golden is correct in his claim that contributory negligence is inapplicable to a claim of wantonness on the part of the defendant, but he is not correct in his claim that summary judgment was improvidently granted in this case. Golden stipulated that he waived any hearing on the motion for summary judgment, and he offered no evidence in opposition to the motion for summary judgment other than the matters which were in the record at that time.

We have reviewed McCurry’s motion for summary judgment and the materials offered in support thereof, and we are not convinced that the trial court incorrectly found no genuine issue of material fact and that McCurry was entitled to a judgment as a matter of law. We need not address that claim in this case because the parties did not seriously address that issue at trial or appellate level. In this proceeding, it is quite obvious that the plaintiff, in order to raise the theory of comparative negligence, stipulated that he was contributorily negligent. The briefs of the parties, with the exception of a page or two, are devoted entirely to that issue. If plaintiff wanted to preserve his right to a trial by jury on the wanton count, he should have made that point clear at the trial level, and argued the point here on appeal. The record, the briefs and the oral arguments presented lead to the inescapable conclusion that the only meritorious issue on this appeal is whether this Court should abolish the doctrine of contributory negligence. Rule 1 of the Alabama Rules of Appellate Procedure states that this Court’s rules of review are to be construed to assure the just determination of every proceeding.

We have duly and deliberately considered all of the arguments and briefs of the parties, including those of amici curiae. We are clear to the conclusion that the significant and dispositive issue on this appeal was whether summary judgment was appropriately granted on the plaintiff’s negligence claim, when the plaintiff admitted that he was contributorily negligent and that his negligence proximately contributed to his own injuries. We have decided that issue.

The judgment of the trial court is due to be affirmed.

AFFIRMED.

TORBERT, C. J., and MADDOX, AL-MON, and SHORES, JJ., concur.

BEATTY, J., concurs specially.

EMBRY, J., concurs in the result.

FAULKNER and JONES, JJ., dissent.

BEATTY, Justice

(concurring specially):

I agree with the views expressed in the per curiam opinion and wish to add some observations upon another dimension to this problem.

The substitution of the defense of comparative negligence for contributory negligence has much to offer. As Dean Prosser relates, contributory negligence is not really negligence at all, but “contributory fault.” Prosser, Law of Torts at 418. Because “fault” may be relative, or comparative, comparative negligence, or “contributory fault,” would weigh the degrees of legal responsibility and condition recovery accordingly.

Until the decision in Grantham v. Denke, Ala., 359 So.2d 785 (1978), and those cases following the rationale of that decision, e. g., Fireman’s Fund v. Coleman, Ala., 394 So.2d 334 (1980), I believed that this Court had the inherent power to change common law preceptsm instances in which change was clearly necessitous, and the exercise of this Court’s power was appropriate. That view would accord with the positions of some of those states which have made this change, while others have relied upon legislative action to effect that change. The Grantham line of cases, it seems to me, has circumscribed this Court’s power to make that change. In essence, Grantham decided that under Section 13 of the Alabama Constitution the legislature itself could not deprive a person of common law rights and remedies, absent some quid pro quo or a perceived social evil. It should be conceded that a common law defense, such as contributory negligence (see Butterfield v. Forrester, 11 East 60, 103 Eng.Rep. 926 (1809); Smith v. Smith, 2 Pick., Mass., 621 (1824)) is entitled to the same respect as a common law right of action. Thus the reasoning underlying Grantham limits even the legislature’s power to alter the defense of contributory negligence.

Now if the legislature is limited in making such a change, is not this Court likewise limited? It is just as evident under the limitation of Section 13 that this Court is not in any better position than the legislature to change the well established common law rule of contributory negligence. So if such a change is proposed, which body is more suitable under the scheme of separation of powers to effect it?

In Alabama State Federation of Labor v. McAdory, 246 Ala. 1, 9, 18 So.2d 810 (1944), dealing with an attack upon a statute, this Court stated:

[ T]he courts do not hold statutes invalid because they think there are elements therein which are violative of natural justice or in conflict with the court’s notions of natural, social, or political rights of the citizen, not guaranteed by the constitution itself. Nor even if the courts think the act is harsh or in some degree unfair, and presents chances for abuse, or is of doubtful propriety. All of these questions of propriety, wisdom, necessity, utility, and expediency are held exclusively for the legislative bodies, and are matters with which the courts have no concern.

Should not this same reasoning be applied when courts are faced with suggested changes in well established common law doctrines? Does not such a change involve “questions of propriety, wisdom, necessity, utility, and expediency,” the answers to which are better resolved by the broad legislative process which can weigh the competing policies and determine the most beneficial doctrinal form? The Grantham decision appears to answer this question affirmatively. Because Grantham dealt with an exercise of legislative power and held that exercise improper only because of a narrow constitutional limitation, that case implicitly recognized that the modification of well established common law principles nevertheless falls within the legislative realm. Whether that “legislative realm” is the appropriate forum for modifications of such principles appears to have been answered by McAdory. Contrary to my personal sentiments, therefore, we now must defer to those authorities.

FAULKNER, Justice

(dissenting in part and concurring in part).

The majority’s holding that, “even though this Court has the inherent power to change the common law rule of contributory negligence, it should, as a matter of policy, leave any change ... to the legislature” is like shaking the clammy, lifeless, hand of another man. It has no meaning. If the Court has the power to change the rule, a better reason than passing the “buck” to the legislature should be given.

The contributory negligence defense in force in this state is nothing more than an adoption of the common law; because the judiciary established the defense, the judiciary has the authority to abolish it. Such an abrogation of case law should not be deferred to the legislature, but should remain in the forum that created it; namely, the courts. See e. g., Hoffman v. Jones, 280 So.2d 431 (Fla.1973); Maki v. Frelk, 40 Ill.2d 193; 239 N.E.2d 445 (1968) (Ward, J., dissenting); Peterson v. Culp, 465 P.2d 876 (Or.1970) (Denecke, J., dissenting).

The question of whether contributory or comparative negligence should be adopted in this state is riddled with economic considerations. Judge Learned Hand formulated an algebraic equation to determine negligence: The defendant is liable if the loss (injury) caused by the accident multiplied by the probability of its occurrence is greater than the cost of avoiding the accident. United States v. Carroll Towing Co., 159 F.2d 169 (2d Cir. 1947). The economically efficient solution, therefore, is to require the smaller cost to be incurred if it will prevent the larger accident cost. R. Posner, Economic Analysis of Law (2d ed. 1977), at 122-25.

In application to contributory negligence, if the plaintiff can prevent a $1000 accident at a cost of $50 and the defendant’s avoidance cost is $100, the economically efficient solution is to refuse the plaintiff any recovery for failure to avoid the total loss at the lesser cost. If the defendant is liable in all instances without regard to the precautionary measures the plaintiff could have taken, there is no economic incentive for the plaintiff to avert the accident. Posner, supra.

On the other hand, if the defendant is able to avoid the $1000 loss at a cost of $50 and the plaintiff’s cost is $100, the defense of contributory negligence (assuming it is applicable) still mandates that the plaintiff cannot recover at all. In essence, therefore, this defense sanctions the least economically efficient solution because it provides no incentive for the defendant to spend the lesser avoidance cost cognizant that, if the plaintiff contributed even a little bit, the defendant will incur no liability (expense) at all.

The doctrine of comparative negligence— where the plaintiff’s damages are diminished by the percentage of his own negligence that contributed to the accident — is not the panacea either. This doctrine tacitly advocates that more than the economically efficient amount of precautionary measures be taken. Using the same figures immediately above, if the defendant would be two-thirds liable and the plaintiff one-third liable, incurring $666.67 and $333.33 of the $1000 loss respectively, then both parties would opt for the lesser avoidance cost at an aggregate prevention cost of $150. This results in economic inefficiency because either amount alone would have been sufficient to avoid the total loss.

Conversely, neither party may decide to opt for the lesser avoidance cost in reliance upon the fact that the other party has an economic incentive to take precautionary measures. This results in compensating a total loss of $1000 that could have been avoided at the lesser amount of $50 or $100, individually, or at a collective amount of $150. Even though the combined expense of $150 is over precautionary, economically speaking, it is at least more economically efficient than incurring the total or partial accident expense. Posner, supra.

This economic analysis becomes more intricate as we approach an examination of the respective forms of comparative negligence. I feel that we do this area of the law — and the public — a great disservice by failing to recognize, work through and resolve the economic issues endemic to this dilemma.

I concur in part II of the majority opinion.

JONES, Justice

(dissenting):

I respectfully dissent.

Prior to addressing the merits of the issue presented, consideration of the question of this Court’s power and authority to replace contributory negligence with comparative negligence is appropriate. Appellee contends that the authority to so change the common law lies solely within the province of the legislature and not in the courts.

It is true that this Court has often deferred to the legislature’s prerogative to change laws, even court-made laws. Indeed, we have acted to alter laws only in circumstances consistent with the doctrine of separation of powers. Beasley v. Bozeman, 299 Ala. 288, 315 So.2d 570 (1975). In the instant case, however, no such countervailing consideration applies. We are dealing here with judge-made common law which is, by its very nature, an ever-evolving creature. It should and must change to comport with contemporary standards and needs.

Contrary to Appellee’s contention, § 1-3-1, Code of Ala.1975, is no bar to such change by the Court. This section states:

“The common law of England, so far as it is not inconsistent with the Constitution, laws and institutions of this state, shall, together with such institutions and laws, be the rule of decisions, and shall continue in force, except as from time to time it may be altered or repealed by the legislature.”

To give it the literal interpretation Ap-pellee seeks would be to make the law a static thing, unresponsive to changing societal needs, and contrary to the very essence of the common law process. Indeed, this Court has seen fit to change such common law concepts as manufacturer’s liability (Casrell v. Altec Industries, Inc., 335 So.2d 128 (Ala.1976); Atkins v. American Motors Corp., 335 So.2d 134 (Ala.1976)); a wife’s right to recover for loss of consortium (Swartz v. U. S. Steel Corp., 293 Ala. 439, 304 So.2d 881 (1974)); the rule of caveat emptor (Cochran v. Keeton, 287 Ala. 439, 252 So.2d 313 (1971)); and the duty of the user of subterranean waters (Henderson v. Wade Sand & Gravel Company, Inc., 388 So.2d 900 (Ala.1980).

Clearly, this Court has the power to do so, and I think it should strike contributory negligence as a viable defense to negligence actions in Alabama and institute in its place a system of comparative negligence.

This Court has long fostered a fault-based tort recovery doctrine. The basic premise of such a system is the logical link between fault and liability. Any facet of this approach which, in the light of contemporary standards of fairness, brings about overt unfairness and injustice should be reformed or struck down and replaced as the circumstances dictate. Contributory negligence as a total bar to recovery defies the basic tenets of a fault system by allowing its presence in any degree to prevent recovery for a fault-produced injury. I agree with the Florida Supreme Court’s statement in its opinion adopting comparative negligence:

“If fault is to remain the test of liability, then the doctrine of comparative negligence which involves apportionment of the loss among those whose fault contributed to the occurrence is more consistent with liability based on a fault premise."

Hoffman v. Jones, 280 So.2d 431, 436 (Fla.1973).

I will not attempt to present a full history of the theories involved herein. They have been amply discussed by scholars for many years. See, e. g., V. Schwartz, Comparative Negligence (1974); R. Keeton, Creative Continuity in the Law of Torts, 75 Harv.L.Rev. 463 (1962); W. Prosser, Comparative Negligence, 51 Mich.L.Rev. 465, 469 (1953); W. Malone, The Formative Era of Contributory Negligence, 41 N.W.U.L. Rev. 151 (1946). Suffice it to say that to date at least thirty-four States have seen fit to adopt some form of comparative negligence as the more equitable approach, and I believe that it is meet and right that Alabama now join their ranks. It “is simply a more equitable system of determining liability and a more socially desirable method of loss distribution.” Hoffman v. Jones, 280 So.2d 431, 437 (Fla.1973).

The theory of comparative negligence recognizes and makes provision for the situation where plaintiff’s negligence contributes to his injuries. If defendant is found liable for negligently causing plaintiff’s injuries and plaintiff has contributed to them in some degree, then his recovery is diminished by the percentage of fault found attributable to him by the finder of fact. In application, this system is consummately fair. It compensates the injured party only to the extent that his harm was negligently caused by another, and it does not penalize the defendant wrongdoer for harm which he did not proximately cause.

By moving to this standard, we would relieve our juries of a tremendous conflict inherent under the contributory negligence doctrine. Jurors tend to find themselves caught between the judge’s instruction on contributory negligence and their own common concepts of the logical link between fault and liability. Finding the concept of contributory negligence offensive to their conscience and reason, jurors, in a case where contributory negligence is insufficient to persuade them against a plaintiff’s verdict, appear to have two choices: 1) To find for plaintiff in the amount sought even if they feel it is excessive; or 2) to compromise the verdict, taking into account plaintiff’s negligence and diminishing the recovery accordingly. The Florida Court in Hoffman summarizes the jurors’ dilemma:

“Those who defend the doctrine of contributory negligence argue that the rule is also not as harsh in its practical effect as it is in theory. This is so, they say, because juries tend to disregard the instructions given by the trial judge in an effort to afford some measure of rough justice to the injured party. We agree with Dean Maloney that,
“ ‘[T]here is something basically wrong with a rule of law that is so contrary to the settled convictions of the law community that laymen will almost always refuse to enforce it, even when solemnly told to do so by a judge whose instructions they have sworn to follow. ...
“ ‘[T]he disrespect for law engendered by putting our citizens in a position in which they feel it is necessary to deliberately violate the law is not something to be lightly brushed aside; and it comes ill from the mouths of lawyers, who as officers of the courts have sworn to uphold the law, to defend the present system by arguing that it works because jurors can be trusted to disregard that very law.’ 11 U.Fla.L.Rev. 135, pp. 151-152 (1958).” Hoffman v. Jones, supra, at 437.

See, also, James, Kalven, Keeton, Leflar, Malone and Wade, Comments on Maki v. Frelk—Comparative v. Contributory Negligence: Should the Court or Legislature De cide? 21 Vand.L.Rev. 889 (1968); 32 A.L.R.3d 463 (1970); and Kennedy v. Providence Hockey Club, Inc., 376 A.2d 329 (R.I.1977).

That Alabama will one day join ranks with the majority of her sister states in adopting the rule of comparative negligence is a virtual certainty. To be sure, neither time nor space is any longer devoted to a debate of its merits. The honesty and forthrightness of its application belong, as an integral part of the whole, to the fault based concept of tort law. Only two conclusions remain: When? And from what source?

That the judiciary is a proper source, with the authority to alter the status quo and effect the change, goes unchallenged by the majority opinion. Whether the majority’s reluctance to change lies primarily in the Court’s traditional deference to the legislative process in matters of long-established substantive rules is pure speculation; but it is beyond conjecture to suggest it is less a blind adherence to precedent than a fateful coincidence of bad timing. Stripped of the mood which decries “too much, too fast,” and given the continued inaction of the legislature, this Court, in a finer hour and farther down the line of time, will undo what it has here done and step forth proudly in the noblest tradition of the common law.

      . “The ‘pure’ form of comparative negligence provides that the damages allowed to be recovered by the plaintiff shall be diminished' in proportion to the amount of the negligence attributable to the plaintiff, whether or not such negligence by the plaintiff is greater than that of the defendant. Thus, in the extreme situation under the ‘pure’ form, a plaintiff guilty of 99 per cent of the total negligence causing his injury could recover one percent of the damages.” Annot., 32 A.L.R.3d 463 (1970).

      . “The common law of England, so far as it is not inconsistent with the Constitution, laws and institutions of this state, shall, together with such institutions and laws, be the rule of decisions, and shall continue in force, except as from time to time it may be altered or repealed by the legislature.”


source: Caselaw Access Project

author: FAULKNER, Justice. MADDOX, Justice TORBERT, Chief Justice

license: Public Domain

text:
    Mary JONES a/k/a Mary J. Drain v. SOUTHERN UNITED LIFE INSURANCE COMPANY, a corporation.
    79-259.
    Supreme Court of Alabama.
    Jan. 9, 1981.
    Mayer W. Perloff, Mobile, for appellant.
    Abram L. Phillips and Patricia K. Olney of Reams, Tappan, Wood, Vollmer, Phillips & Killion, Mobile, for appellee.
   FAULKNER, Justice.

Mary Jones was the named beneficiary on an industrial burial insurance policy issued by Southern United Life Insurance Company to Willie J. Drain. The policy provided for a cash benefit of $275.00 payable upon receipt of proof of death. Willie Drain died on April 25, 1979. A death certificate was issued by the Mobile County Health Department on May 17 and received by defendant’s office on May 23. On June 26, defendant insurance company paid the $275.00 benefit to Ms. Jones.

Jones filed suit on July 11, seeking interest due from the date of proof of loss to the date of actual payment and certification as a class action. Various motions were then filed by both parties, including a Rule 12(b)(6) motion to dismiss by the defendant. On September 28, after reviewing Jones’s contentions, and determining that the interest sought by plaintiff was in fact due her under Thomas v. Liberty National Life Ins. Co., 368 So.2d 254 (Ala.1979), Southern tendered payment of interest from the date of death to the date of payment of the benefit. And, on the same day, Southern filed a motion for summary judgment supported by affidavit of its Mobile District Manager and exhibit (death certificate). Subsequently, if filed a motion to deny class status. On November 26, after hearing arguments and reviewing briefs, the trial court granted Southern’s motion for summary judgment on Jones’s individual claim and dismissed the remaining portions of the action. We reverse and remand.

The issue before this Court is whether Mary Jones, whose claim is rendered moot through satisfaction, prior to certifying the class, may be permitted to have the class certified, and proceed to represent that class, even though she no longer has a real interest in the right to be protected.

First, Southern cannot bypass the class action by tendering payment of interest on the claim to Mary Jones, the class representative. Mr. Chief Justice Burger in Deposit Guaranty National Bank, Jackson, Mississippi v. Roper, 445 U.S. 326, 100 S.Ct. 1166, 63 L.Ed.2d 427 (1980), wrote:

Requiring multiple plaintiffs to bring separate actions, which effectively could be “picked off” by a defendant’s tender of judgment before an affirmative ruling on class certification could be obtained, obviously would frustrate the objectives of class actions; moreover it would invite waste of judicial resources by stimulating successive suits brought by others claiming aggrievement. It would be in the interests of a class-action defendant to forestall any appeal of denial of class certification if that could be accomplished by tendering the individual damages claimed by the named plaintiffs.

And, in Roper v. Consurne, Inc., 578 F.2d 1106 (5th Cir. 1978), the Court stated: “By the very act of filing a class action, the class representatives assume responsibilities to members of the class. They may not terminate their duties by taking satisfaction; a cease-fire may not be pressed upon them by paying their claims. The Court itself has special responsibilities to ensure that the dismissal does not prejudice putative members.”

Thus, the tender of payment to Mary Jones did not prevent class certification. See Kahan v. Rosenstiel, 424 F.2d 161 (3rd Cir. 1970).

Next, Southern contends that Mary Jones lacks “nexus” with the alleged class because her individual claim has been paid; that she no longer has a personal cause of action, and thus, she cannot represent the class. We do not agree. Notwithstanding the mootness of the suit as to Mary Jones, it is not moot as to other members of the class, and she can continue to litigate the issues as a representative of the class. See Jenkins v. United Gas Corporation, 400 F.2d 28 (5th Cir. 1968), Cypress v. Newport News Gen. and Nonsect. Hospital Ass’n, 375 F.2d 648 (4th Cir. 1967), Gatling v. Butler, 52 F.R.D. 389 (D.Conn.1971). Mary Jones was a proper representative of the class when the suit was filed, and she was not ousted as a representative of the class when her individual claim was mooted by payment of her claim and tender of the amount of interest due her by Southern. See Roper.

The trial court is reversed, and the cause remanded so that the trial judge can enter the appropriate orders after a class action hearing on (1) whether to permit Mary Jones to proceed as the class representative, and (2) whether to certify the class.

REVERSED AND REMANDED.

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

MADDOX, J., concurs specially.

TORBERT, C. J., dissents.

MADDOX, Justice

(concurring specially).

I concur that the judgment of the trial court is due to be reversed. Pre-certification dismissal of a class action is rarely appropriate. In the interim between the commencement of a class action and the court’s determination, which Rule 23(c)(1) requires to be made “as soon as practicable,” a suit should be treated as a class suit. Comment, Developments in the Law—Class Actions, 89 Harv.Law Rev. 1318, 1421, 1540 (1976).

The plaintiff here had a legitimate claim under Thomas v. Liberty National Life Insurance Company, 368 So.2d 254 (Ala.1979). Satisfaction of the class representative’s claim, therefore, would not authorize dismissal, even at the pre-certification stage. The Court is correct in remanding this cause to the trial court for a certification hearing. At the certification hearing, the court can determine the size of the class, the management problems which class treatment would produce, and whether the class suit would truly carry out the spirit of Rule 1, ARCP — “to secure the just, speedy and inexpensive determination of every action.”

The class action, a creature of equity, developed primarily to provide a procedural device to handle claims where the parties were multitudinous and joinder was impracticable. Naturally, a class action, if allowed, could prevent a multiplicity of suits.

I do not reach the question urged upon us by the appellee that this particular suit was inappropriate for class treatment. Class suits to enforce private contractual rights of the nature here involved could present some problems. Professors Travers and Landers, in their law review article entitled “The Consumer Class Action,” 18 U. of Kan.Law Rev. 811, 835, state: “The large group with small individual damages creates management problems of severe proportions and also raises the spectre of litigation designed to benefit lawyers alone or to punish the defendant — a purpose more easily carried out by means other than class actions.”

TORBERT, Chief Justice

(dissenting).

Where the individual claim of the representative plaintiff in a class action has been mooted, the general rule is that the individual plaintiff no longer has standing and the case is subject to dismissal. “They cannot represent a class of whom they are not a part.” Bailey v. Patterson, 369 U.S. 31, 32-33, 82 S.Ct. 549, 550-51, 7 L.Ed.2d 512 (1962). Also see, Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976); O’Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974).

The federal courts have developed certain well defined exceptions to this rule: issues involving important constitutional rights, Franks v. Bowman Transportation Co., 424 U.S. 747, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976), the mooting of claims due to the mere passage of time, Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975); Sosna v. Iowa, 419 U.S. 393, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975), and where the subject matter of the class action is capable of repetition but evades judicial review, Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973).

In rapidly mooting cases, such as those dealing with residency requirements for divorce (Sosna), pretrial detention (Gerstein ), or abortion (Roe), there is a continuing controversy between the members of the class and their opponent, and the court is not deprived of jurisdiction. Title VII discrimination suits also represent examples of these exceptions. See, e. g., Franks v. Bowman Transportation Co., 424 U.S. 747, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976); Long v. Sapp, 502 F.2d 34 (5th Cir. 1974); Reed v. Arlington Hotel Co., 476 F.2d 721 (8th Cir. 1972), cert. denied, 414 U.S. 854, 94 S.Ct. 153, 38 L.Ed.2d 103 (1973). The U.S. Court of Appeals for the Fifth Circuit has been most liberal in standing requirements involving racial discrimination. See, e. g., Huff v. N. D. Cass Co., 485 F.2d 710 (5th Cir. 1973). See generally 3B J. Moore, Federal Practice ¶ 23.04[2] (2d ed. 1980).

Given the general proposition that where the single individual claim of the representative plaintiff has been mooted (in this case before class action certification determination), the action is subject to dismissal, I fail to find facts and circumstances that come within the exceptions heretofore mentioned. Only four months before plaintiff here filed her suit, this Court decided the issue as to the obligation of the insurer to pay interest after the insured accepted the principal amount due under an insurance contract. Thomas v. Liberty National Life Insurance Co., 368 So.2d 254 (Ala.1979). Within approximately three months from the filing of plaintiff’s action, the defendant determined and paid plaintiff the full amount of interest due from the date of death to the date of the payment of the principal benefit. Here, suit was filed July 11, 1979, and the full interest payment was made September 28,1979. Additionally, defendant insurance company represented through counsel on this appeal that it effected a change in its policy and procedure to comply with the decision in Thomas. This case does not fall within the recognized exceptions; important constitutional rights are not in issue, mootness did not occur due to the mere passage of time, Title VII discrimination is not involved, and the issue is not now one capable of repetition yet evading judicial review.

Furthermore, I believe the majority’s reliance on Deposit Guaranty National Bank, Jackson, Mississippi v. Roper, 445 U.S. 326, 100 S.Ct. 1166, 63 L.Ed.2d 427 (1980), is misplaced. Writing for the majority, Mr. Chief Justice Burger stated:

The factual context in which this question arises is important. At no time did the named plaintiffs accept the tender in settlement of the case; instead, judgment was entered in their favor by the court without their consent, and the case was dismissed over their continued objections.

100 S.Ct. at 1170-71.

Mr. Justice Rehnquist, in his concurring opinion, stated that “[t]he distinguishing feature in Roper is that the defendant has made an unaccepted offer of tender in settlement of the individual putative representative’s claim.” 100 S.Ct. at 1175 (Rehnquist, J., concurring). Roper is clearly not on point with the case before us in this respect, since here Mary Jones accepted the offer of settlement, yet still sought to represent the putative class. I do not believe such a result is mandated by ARCP 23. Therefore, I hereby respectfully dissent.

      . I dissented in Thomas v. Liberty National Life Insurance Company, 368 So.2d 254 (Ala.1979), on the ground that I did not believe that interest was recoverable on an insurance policy between the date when the proof of loss was submitted and the date when the claim was paid, but Thomas is now the law, and the defendant company here recognizes Thomas as being the current authoritative rule of law on the payment of interest on policies of insurance.


author: BEATTY, Justice.

text:
    Timothy MEADOWS, a minor suing by and through his father, Dan Meadows, Jr., as next friend v. COCA-COLA BOTTLING, INC., a Corporation. Dan MEADOWS, Jr. v. COCA-COLA BOTTLING, INC.
    79-289, 79-289A.
    Supreme Court of Alabama.
    Jan. 9, 1981.

      M. A. Marsal, J. F. Janecky and Kenneth 0. Simon, Mobile, for appellants.
    William E. Johnston and James C. Johnston, Mobile, for appellee.
   BEATTY, Justice.

The plaintiff appeals from a jury verdict in favor of the defendant, Coca-Cola. We affirm.

This case involves injuries to a minor child, Timothy Meadows, which were sustained when a 32-ounce returnable Coca-Cola bottle exploded in his face, severely injuring one eye. These injuries occurred when the 10-month-old child crawled into the kitchen of his home, opened the cabinet door where the unopened Coke was stored, and turned over the bottle. The bottle then exploded. Timothy’s father, Dan Meadows, Jr., filed suit as next friend of Timothy and individually for the medical expenses incurred as well as for physical pain and mental anguish suffered. The plaintiff sought one million dollars damages, and alleged that Coca-Cola:

1) negligently failed to inspect the bottle;
2) negligently filled the bottle with an excessive amount of pressure;
3) negligently failed to warn consumers of this danger; and
4) breached the provisions of the Alabama Extended Manufacturer’s Liability Doctrine.

Coca-Cola denied the allegations of the complaint and alleged that the bottle broke as result of an external blow to the bottle. The jury returned a verdict in favor of the defendant, Coca-Cola. A motion for new trial was denied, and the plaintiff appealed.

The plaintiff first contends that the trial judge erroneously ordered the jury to disregard the testimony of plaintiff’s expert witness, Mr. Lehman, concerning defects in other 32-ounce. Coca-Cola bottles. Mr. Lehman testified that he had examined between 200 and 500 Coca-Cola bottles, and that many of them had surface defects which decreased their strength. While it is true that circumstantial evidence of similar defects in other units of the product in litigation is competent to show that a product is defective, Norton Co. v. Harrelson, 278 Ala. 85, 176 So.2d 18 (1965), before a witness may give his opinion as an expert, the proper predicate for his testimony must be laid. Here, the plaintiff did not lay the proper predicate for Mr. Lehman’s testimony as an expert. Mr. Lehman did not state where he got the 200-500 bottles, when he examined them, how he determined the existence of surface defects or how the defects weakened the bottles. Clearly no predicate was laid which would show this witness to have sufficient expertise and knowledge to testify as to his opinion. Moreover, it is in the sound discretion of the trial court to determine the competency of a witness. The trial court’s decision will not be disturbed on appeal except for palpable abuse. Russell v. Relax-A-Cizor Sales, Inc., 274 Ala. 244, 147 So.2d 279 (1962). There was no such palpable abuse, thus, it was not error for the trial court to order that Mr. Lehman’s testimony be disregarded.

The plaintiff also contends that the trial court erred in refusing to admit into evidence a report of the National Commission on Product Safety which Mr. Lehman testified was a learned treatise and a standard on the subject. In Alabama, a treatise which is testified to by an expert as being a standard on the subject is admissible. Baswell v. Wilks, 57 Ala.App. 98, 326 So.2d 292 (1976). Here, however, Mr. Lehman was not shown to be an expert qualified to introduce the treatise.

Similarly, the plaintiff urges that the report was a scientific report of a governmental agency, and thus an exception to the hearsay rule. While it is true that an exception has been recognized for scientific reports of governmental agencies, the treatise still must be testified to by an expert as being a standard in the field. See City of Dothan v. Hardy, 237 Ala. 603, 188 So. 264 (1939). Thus, since Mr. Lehman was not found to be an expert, the report was properly excluded under both exceptions.

The plaintiff contends that the trial court erred in refusing to charge the jury on Coca-Cola’s negligent failure to warn consumers of the hazardous nature of Coca-Cola bottles. The trial court did, however, charge the jury as follows:

It charges that the defendant negligently failed to warn the plaintiff and other members of the consuming public of the unreasonable danger of explosion in use and handling of the said bottles....

We find that this charge is adequate to submit the issue to the jury. Moreover, the jury obviously found that there was no defect in the bottle.

Neither was it error to charge the jury that the existence of an external blow to the bottle would be a defense. While appellant urges that such charge merely states a claim of contributory negligence, without requiring that the blow be the proximate cause of the injury or foreseeable, in actuality the charge does not state an affirmative defense. It merely points out that an external blow to the bottle could be an independent cause of the accident and would prove that the breaking was not proximately caused by the defendant. Thus, the charge was properly given.

The appellant finally contends that the trial court erred in refusing to allow the jury to utilize in its deliberations a diagram drawn by defendant’s expert witness on a blackboard. Several witnesses had used and referred to the blackboard, which was attached to the wall. While it is true that a formal proffer of the blackboard is unnecessary, since the nature and character of its frequent use compel that it be recognized as valid evidence, Arrick v. Fanning, 35 Ala.App. 409, 47 So.2d 708 (1950), it is within the trial court’s discretion whether to allow instruments of evidence to go to the jury room where they could be given undue emphasis and inordinate weight. Ott v. Fox., Ala., 362 So.2d 886 (1978). Since this matter was within the sound discretion of the trial court, it was not error to refuse to allow the blackboard to be taken into the jury room.

The trial court correctly denied the plaintiff’s motion for a new trial. The evidence presented at trial conflicted and the case was properly submitted to the jury. There was ample evidence to support the jury’s decision. Therefore we will not reverse the trial court for refusing to grant the motion for a new trial. Nix v. Wells, Ala., 355 So.2d 337 (1978).

Let the judgment be affirmed.

AFFIRMED.

All the Justices concur.


text:
    AIR SHIPPING INTERNATIONAL, a corporation, et al. v. STATE of Alabama et al.
    79-493.
    Supreme Court of Alabama.
    Jan. 9, 1981.

      William J. Baxley and James S. Ward of Baxley, Stuart, Ward & Dillard and Claiborne P. Seier and Douglas Rogers, Birmingham, for appellants.
    Ray Acton, Asst. Atty. Gen., Robert W. Ennis, IV, Asst. City Atty., City of Tuscaloosa, Richard H. Peollnitz, Greensboro, Robert E. Morrow, Dist. Atty., Fourth Judicial Circuit, Selma, for appellees.
   BEATTY, Justice.

This is an appeal from the Hale County Circuit Court condemning and forfeiting one DC6-A type airplane, the “Aruba Star.” We affirm.

The two appellants are Air Shipping International Corporation, located in Miami, Florida, and International Aircraft Sales and Leasing Corporation of Ft. Lauderdale, Florida. Prior to the incident in question, Air Shipping had purchased the aircraft from International Aircraft, with the latter retaining a security interest in the aircraft for the unpaid purchase price which at the time of trial aggregated some $90,000.00. Air Shipping had leased the aircraft to International Freight and Trailers, Inc., a California corporation, and this lease was extant when the aircraft was seized.

At approximately 4:00 o’clock A.M. on June 12, 1979 this aircraft landed at the Greensboro Airport in Hale County. City, county and state law enforcement agents seized it and 9,310 pounds of marijuana which was aboard. On June 21, 1979 the State of Alabama initiated condemnation proceedings. Subsequently, Air Shipping filed an answer, and International was allowed to intervene.

A trial on the petition for condemnation occurred on November 13, 1979. Thereafter, on February 8, 1980 the circuit court entered an order condemning the airplane and ordering a public sale. This appeal was taken on March 21,1980 by Air Shipping, as owner, and by International, as holder of a security interest.

The aircraft was forfeited under the provisions of Code of 1975, § 20-2-93:

(4) All conveyances, including aircraft, vehicles or vessels, which are used or intended for use to transport ... for the purpose of sale or receipt of property described in subdivision (1) or (2) of this subsection [controlled substances]; provided, however, that:
c. A forfeiture of a conveyance encumbered by a bona fide security interest is subject to the interest of the secured party if he neither had knowledge of nor consented to the act or omission ....

The record discloses that the State of Alabama proved that the aircraft in question was in fact used to transport marijuana for the purpose of sale or receipt; indeed, this is not disputed by the appellant. Such proof established a prima facie case for forfeiture under our cases:

It is the law of Alabama that once the State makes out a prima facie case to show violation of the statute which prohibits the transportation of [illegal liquors], the seizure, condemnation, and forfeiture of the vehicle used [are] permitted.... [U-Haul Company of Alabama v. State, 294 Ala. 330, 316 So.2d 685 (1975); Mars v. State, ex rel. Black, Ala.Civ.App., 340 So.2d 1131 (1976).]

When that prima facie case was made, it became incumbent upon the appellants/claimants to show that they had no knowledge or notice of the illegal use proved, and could not by reasonable diligence have obtained knowledge of the intended illegal use so as to prevent it. U-Haul Company of Alabama v. State, supra. This aspect of the claimants’ burden has been commented upon in Flint Motor Car Co. v. State, 204 Ala. 437, 85 So. 741 (1920), a case, incidentally, cited to us by both sides:

[1 ] f the claimant knows the character of his vendee or mortgagor, and does not know or has not heard of his violating [the prohibition law] or if he does not know him, ordinary prudence should suggest inquiry, and if he does not gain information that he has been considered a violator of [the prohibition law], then he makes out a prima facie case of no negligence in the sale or disposition of [the car], and would be entitled to a decree of nonforfeiture of his claim unless the state rebuts this prima facie case by contradictory evidence or circumstances, or by showing the happenings of subsequent events which would arouse the suspicion of a reasonably prudent man so as to cause action upon his part to prevent the further use of the property for unlawful purposes, and which he failed to prevent.

The appellants’ positions are that they did not know of any illegal use and that they did exercise reasonable diligence in the lease of the aircraft without having obtained any such knowledge or notice. The State of Alabama, on the other hand, maintains that the appellants failed to meet their burdens of establishing proper diligence. The resolution of this issue centers around the conduct of Alvaro Robert, the owner of Air Shipping. Mr. Robert was in the import and export business, and also leased large cargo aircraft. He had purchased the “Aruba Star” from International Aircraft Sales and Leasing Corporation on October 13, 1978 for a price of $185,000.00, approximately $90,000.00 of which was still owed. His testimony reveals knowledge on his part of other aircraft having been used to smuggle drugs, and his awareness that in his area no one was leasing aircraft because of the drug problem. In fact, prior to this incident he had been concerned that his aircraft might be used to transport illegal narcotics. He had, in fact, previously sold two aircraft which were subsequently involved in narcotics smuggling, and was aware that this particular airplane had been involved in a smuggling operation before he acquired it. Nevertheless, before the occasion in question the aircraft had been leased a number of times without incident.

On June 1, 1979 Mr. Robert received a telephone call from a Mr. Hernandez, a business acquaintance whom Mr. Robert had known for about one year. According to Robert, Hernandez told Robert that some people from California were in his office and that they desired to lease an airplane. Their own airplane had broken down and they were in danger of losing a contract, he was told. Robert went to Hernandez’s office where he was introduced by Hernandez to a man named Schwartz and to another man Robert did not remember, neither of whom had Robert met before. Schwartz showed Robert some paperwork concerning his contract, which was for moving construction material from Panama to Venezuela. Schwartz also showed Robert a photograph of his own aircraft, also a DC6-A, which Schwartz said was being repaired in California. Schwartz’s paperwork included stationery with a letterhead and logo of his company.

During their discussion Robert acquainted Schwartz with his business practice of using his own pilots to operate his aircraft under lease, and Robert insisted on his own pilots being used by Schwartz. But, as he explained, Schwartz had his own pilots on salary, and would have expended a large sum of money to pay for two sets of pilots if he were required to employ Robert’s pilots. And so Robert was convinced by Schwartz to forego the use of his own pilots, although this was the first lease under which he did not use his own pilots.

Robert inquired of Hernandez about “the people” and was assured by him of their reliability. Still, Robert was not “perfectly sure that the man was who he represented to be.” Therefore, when the lease was executed about twenty-four hours later, after Robert had filled out the data on his printed lease form, Robert required that their lease be notarized by a Florida notary public because he “wanted to make sure that he was the proper man or that he was authorized to make a lease in the name of his company.” Robert, however, was not present when the lease was notarized. Even so, this was the first occasion on which he had leased his airplane to someone he did not know. In fact, Robert testified that people would come to his office “two or three times a week” attempting to lease his airplane, but he would turn them down because he did not know them. According to Robert, the only reason he executed this particular lease was because he knew Hernandez and Hernandez told him that Schwartz was a “very good businessman.”

When we consider the nature of the property involved and the entire frame of reference in which it was to be used, it is not surprising that Mr. Robert entertained doubts about the identity of Schwartz. Under the circumstances Robert clearly had notice of the facts which would excite suspicion and stimulate inquiry of a reasonably prudent businessman dealing with an aircraft which he had purchased for $185,-000.00, of which he had already paid $95,-000.00. To satisfy this duty to inquire, was it sufficient to rely upon the recommendations of his acquaintance, Hernandez, and Schwartz’s sworn statement that he was who he purported to be? The trial court did not believe that duty was met, and under the facts we cannot state that its decision was clearly erroneous. As was stated in Edwards v. State, 213 Ala. 122, 104 So. 255 (1925):

The notice necessary to excite suspicion and stimulate inquiry may be slight, but, in any event, will necessarily be left to the determination of the facts in each particular case....

We note, in that- connection, that Robert asked for no further identification from Schwartz, made no credit check, did not check the registration of the Schwartz aircraft reportedly under repair in California, did not ask Schwartz for the location in California where the repairs were allegedly being effected, and made no inquiry into the existence, operation or location of Schwartz’s California corporation. These also were facts which the trial court could have taken into consideration in determining the issue of reasonable diligence which would have revealed some knowledge of the illegal use to which the aircraft was to be put.

International Aircraft’s burden was similar to that of Mr. Robert. As this Court stated in Commercial National Bank of Anniston v. State, ex rel. Dorman, 251 Ala. 409, 37 So.2d 644 (1948), when the question is whether the holder of the security interest is entitled to allowance of its claim,

the burden is upon the intervener (1) to establish its superior claim and (2) that it had no knowledge or notice of the illegal use of the [car] and could not by reasonable diligence have obtained notice of the intended illegal use so as to prevent such use....

After the State made out its prima facie case, the intervenor here, International Aircraft, through the testimony of Mr. Robert, had the conditional sales contract with Robert introduced into evidence. Following that, it offered no evidence that it had no knowledge of the illegal use, nor did it go further and show that none could have been obtained through diligent inquiry. Indeed, the trial court could have found that International Aircraft was also chargeable with knowledge that aircraft in its area of southern Florida were not infrequently engaged in drug smuggling, and that Robert himself was in the business of leasing aircraft. Yet the record does not reflect any effort on the part of International Aircraft to inquire about Mr. Robert himself, the operations of his company, Air Shipping, or to place any restriction in its sales agreement upon the use to which the aircraft was put for its own protection. On that point, we are not persuaded, as the appellants would have us be, that the stipulation of the parties in the trial court removed this issue by establishing that the appellants have no knowledge of the aircraft’s use for transporting marijuana. The stipulation itself extends over several pages of the record; however, that portion concerned here followed references to certain motor vehicles, and then continued:

MR. GREENE: I think you ought to put in the amount of marijuana.
MR. BAXLEY: There was 9,310 pounds of marijuana.
THE COURT: Anything else?
MR. BAXLEY: We stipulate this is our plane and we have no knowledge of this. We’ll stipulate that the State would prove that.
MR. BLAIR: That there was marijuana in the plane....

Admittedly, there is some ambiguity in this stipulation, and we cannot be sure of its exact meaning. Taking the entire conversation together, it is possible that the parties stipulated that Air Shipping and International Sales (“we”) have no knowledge of the exact amount, or weight, of the marijuana on board. Or, as the appellants insist, they may have stipulated to no knowledge of any marijuana. This ambiguity was resolved against the appellants by the trial court whose decision under the possible interpretations was not clearly wrong.

In this case, as in Flint Motor Car Co. v. State, supra, 247 Ala. at 437, 85 So. 741:

The trial court saw and heard the witnesses .. . and its conclusion upon the facts is like unto the verdict of a jury, and will not be disturbed by this court unless under similar circumstances the verdict of the jury would be set aside as upon a motion for a new trial; that is, was plainly contrary to the great weight of the evidence....

Applying those principles to this case, we have concluded that the judgment of the trial court is due to be affirmed, and it is so ordered.

AFFIRMED.

TORBERT, C. J., and MADDOX, FAULKNER, JONES, SHORES, EMBRY and ADAMS, JJ., concur.

ALMON, J., not sitting.


author: ADAMS, Justice. EMBRY, Justice

text:
    Henry WEATHERLY v. BAPTIST MEDICAL CENTER et al.
    79-606.
    Supreme Court of Alabama.
    Jan. 9, 1981.

      Jerome Tucker of Newton & Tucker, Birmingham, for appellant.
    Thomas H. Keene of Rushton, Stakely, Johnston & Garrett, Montgomery, for ap-pellees.
   ADAMS, Justice.

This appeal is from the dismissal of a malpractice suit pursuant to Rule 37(b)(2)(C), ARCP, for plaintiff’s failure to comply with the trial court’s order to answer interrogatories. The central issue is whether the trial court abused its discretion in applying the sanction of dismissal. We reverse.

Plaintiff is an 80-year-old patient in a Montgomery County nursing home. The facts surrounding his injury are unclear. The case had been dismissed before any significant discovery had been achieved. However, plaintiff’s complaint alleges:

On or about the 8th day of August, 1978, the plaintiff, Henry Weatherly, was a patient under the care of the Defendants and ... while Plaintiff was a patient under Defendants’ care, Plaintiff needed assistance to go [sic] the men’s restroom. Defendants failed to render assistance or improperly supplied assistance and Plaintiff was negligently allowed, or caused to fall or was struck by defendants and suffered the following injuries:
Plaintiff lost the total use of an eye and said eye was removed by an operation, Plaintiff was caused to suffer mental anxiety and to be continuedly hospitalized.

The actions of the parties during the discovery stage are crucial to a determination of the issue at hand. The sequence of events leading to the dismissal is set out below. Plaintiff filed his complaint on August 3, 1979. Defendant Baptist Medical Center, the hospital at which plaintiff was being treated when injured, initiated discovery by submitting written interrogatories to plaintiff on August 20. These interrogatories primarily sought plaintiff’s version of how the injuries occurred. A few days later, plaintiff requested from defendant hospital production of its medical report and file on plaintiff and copies of any reports made by the hospital to third parties in regard to plaintiff’s injuries.

Having not received a response to its interrogatories as of September 25, defendant moved the court to compel plaintiff to answer pursuant to Rule 37(a), ARCP. The 30 days allowed to respond to interrogatories had passed. Rule 33(a), ARCP. On October 10, the court held a hearing on the motion. At this time, plaintiff’s counsel moved for an extension of time to answer the interrogatories on the ground that plaintiff was in the care and custody of a nursing home and was presently unable to respond. The court denied the motion for extension of time and granted defendant’s motion to compel, ordering plaintiff to respond within 10 days.

The defendant, still not having received answers to its interrogatories by October 23, filed a motion to dismiss plaintiff’s action pursuant to Rule 37(b)(2)(C), ARCP. Plaintiff responded by filing with the court affidavits of his son, James Weatherly, and his attorney, Jerome Tucker. Tucker’s affidavit asserted that defendant would not be prejudiced by the delay in answers to interrogatories since much of the information sought was contained in defendant’s medical records of the plaintiff. The son’s affidavit stated that the son visited with the plaintiff several times at the nursing home and had found his condition vacillating “from good to bad.” The son said he had read the interrogatories to his father but the father was unable to comprehend them and respond. Apparently giving as much information as he knew concerning the injury, the son stated that his father was admitted to defendant hospital on a diagnosis of pneumonia on July 19,1978; and that the father sustained a laceration of the eyeball on August 8,1978, while in the care of the hospital. The son went on to say that his father had had no troubles with his eye prior to his admission to defendant hospital.

About this time, plaintiff also filed a motion to compel defendant to produce any reports it made to third parties concerning plaintiff’s injuries. Upon plaintiff’s earlier request for production, defendant had only supplied plaintiff’s hospital chart. At this time, plaintiff also requested production from defendant of copies of all written statements procured by defendant from witnesses to the injury. Apparently, neither this request nor the motion to compel was ever acted upon.

On November 1, following an oral hearing on the matter, the trial court granted defendant’s motion to dismiss based on plaintiff’s failure to answer the interrogatories. Several days later, plaintiff filed a motion to reconsider, claiming that the affidavits he had filed earlier clearly indicated that he did not willfully refuse to respond, but rather, was mentally and physically unable to do so. In such circumstances, plaintiff contended, dismissal was not appropriate. On November 28, the trial court denied the motion for reconsideration, since plaintiff had yet to answer the interrogatories and plaintiff’s counsel had failed to appear at the hearing on the motion.

On December 11, plaintiff’s attorney filed another motion for reconsideration, claiming that he was in the courthouse when the last hearing was held, but was 15 minutes late as he was tending to some housekeeping matters of this case in the clerk’s office. With this motion, plaintiff’s attorney filed another affidavit of James Weatherly stating that plaintiff’s condition had worsened and that repeated attempts to elicit answers to the interrogatories had been futile. The son also said that he had authorized plaintiff’s attorney to file a petition to have his father declared non compos mentis. Defendant’s attorney responded with an affidavit that plaintiff’s attorney was 30 minutes late for the hearing. On December 17, the trial court denied this second motion for reconsideration, and from the denial, plaintiff appeals.

Under Rule 37(b)(2), ARCP, the trial judge has several sanctions at his disposal to enforce the discovery process, viz.:

(2) SANCTIONS BY COURT IN WHICH ACTION IS PENDING. If a party or an officer, director, or managing agent of a party or a person designated under Rule 30(b)(6) or 31(a) to testify on behalf of a party fails to obey an order made under subdivision (a) of this rule or Rule 35, the court in which the action is pending may make such orders in regard to the failure as are just, and among others, the following:
(A) An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;
(B) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing designated matters in evidence;
(C) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party;
(D) In lieu of any of the foregoing orders or in addition thereto, an order treating as a contempt of court the failure to obey any orders except an order to submit to a physical or mental examination;
(E) Where a party has failed to comply with an order under Rule 35(a) requiring him to produce another for examination, such orders as are listed in paragraphs (A), (B), and (C) of this subdivision, unless the party failing to comply shows that he is unable to produce such person for examination.
In lieu of any of the foregoing orders or in addition thereto, the court shall require the party failing to obey the order to pay the reasonable expenses, including attorney’s fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.

This Alabama rule of civil procedure is identical in all significant respects to its federal counterpart. Alabama adopted this federal rule subsequent to its 1970 amendment which eliminated the requirement that the failure to respond be “willful.” In explanation of the amendment, the Federal Advisory Committee Notes provide some insight into the criteria still to be considered in the application of the sanctions.

The resulting flexibility as to sanctions eliminates any need to retain the requirement that the failure to appear or respond be “willful.” The concept of “willful failure” is at best subtle and difficult, and the cases do not supply a bright line. Many courts have imposed sanctions without referring to wilfulness. E. g., Milewski v. Schneider Transportation Co., 238 F.2d 397 (6th Cir. 1956); Dictograph Products, Inc. v. Kentworth Corp., 7 F.R.D. 543 (W.D.Ky.1947). In addition, in view of the possibility of light sanctions, even a negligent failure should come within Rule 37(d). If default is caused by counsel's ignorance of Federal practice, cf. Dunn v. Pa. R. R., 96 F.Supp. 597 (N.D.Ohio 1951), or by his preoccupation with another aspect of the case, cf. Maurer-Neuer, Inc. v. United Packinghouse Workers, 26 F.R.D. 139 (D.Kan[s].1960), dismissal of the action and default judgment are not justified, but the imposition of expenses and fees may well be. “Wilfulness” continues to play a role, along with various other factors, in the choice of sanctions. Thus, the scheme conforms to Rule 37(b) as construed by the Supreme Court in Societe Internationale v. Rogers, 357 U.S. 197, 208, 78 S.Ct. 1087, 1094, 2 L.Ed.2d 1255 (1958).

Notes of Advisory Committee on Rules, 28 U.S.C.A. Rule 37, at 64, 66 (Supp.1980) (emphasis added).

As indicated by these comments, the “willfulness” of plaintiffs refusal to answer interrogatories in this case is a key criterion to the imposition of the drastic sanction of dismissal.

The requirement of “willfulness” is fully recognized by the federal case law. See cases collected in Federal Rules Digest § 37d.21 (3d ed. 1980). As this Court has noted recently, “Because the Alabama and Federal rules are virtually verbatim, ‘a presumption arises that cases construing the Federal Rules are authority for construetion of the Alabama Rules.’ Assured Investors Life Insurance Co. v. National Union Associates, Inc., 362 So.2d 228 (Ala.1978)." Smith v. Wilcox County Board of Education, 365 So.2d 659 (Ala.1978).

In Flaks v. Koegel, 504 F.2d 702 (2d Cir. 1974), the Second Circuit rejected the argument that willful refusal to obey an order to respond to interrogatories was not a necessary prerequisite to imposing the sanction of dismissal. The court reasoned:

The 1970 amendments were intended to authorize the court, where it deemed appropriate, to impose more flexible and softer sanctions for Rule 37 violations than theretofore provided. However, there was no intent to eliminate the willfulness element when the harsh sanction of the dismissal of a complaint or the striking of an answer was ordered. This is made clear in the note of the Advisory Committee on the Rules.

504 F.2d at 708.

The court also noted that Rule 37 had constitutional limitations as set out in Societe Internationale v. Rogers, 357 U.S. 197, 78 S.Ct. 1087, 2 L.Ed.2d 1255 (1958). Justice Harlan wrote in Rogers: “[Tjhere are constitutional limitations upon the power of courts, even in aid of their own valid processes, to dismiss an action without affording a party the opportunity for a hearing on the merits of his cause. The authors of Rule 37 were well aware of these constitutional considerations.” 357 U.S. at 209, 78 S.Ct. at 1094. After an examination of the record in Rogers, Justice Harlan concluded:

In view of the findings in this case, the position in which petitioner stands in this litigation, and the serious constitutional questions we have noted, we think that Rule 37 should not be construed to authorize dismissal of this complaint because of petitioner’s noncompliance with a pretrial production order when it has been established that failure to comply has been due to inability, and not to willfulness, bad faith, or any fault of petitioner.

357 U.S. at 212, 78 S.Ct. at 1096 (footnote omitted).

The Fifth Circuit Court of Appeals has also affirmed the rationale of Rogers. In Dorsey v. Academy Moving & Storage, Inc., 423 F.2d 858 (5th Cir. 1970), the court reversed a trial court’s dismissal of plaintiff’s action for plaintiff’s failure to comply with a discovery order. Concluding that the trial court abused its discretion, the court reasoned:

The rule is designed to empower the court to compel production of evidence by the imposition of reasonable sanctions. The court, however, should not go beyond the necessities of the situation to foreclose the merits of controversies as punishment for general misbehavior. B. F. Goodrich Tire Co. v. Lyster, 5 Cir. 1964, 328 F.2d 411; see 4 J. Moore, Federal Practice § 37.03 (1969).

423 F.2d at 860.

Finding no willful failure to comply, the court noted that plaintiff had filed a motion for reconsideration or extension of time, had filed an affidavit explaining the difficulties she encountered in furnishing the information, and had generally made a good faith effort to comply with discovery as indicated by the record.

In Smith v. Wilcox County Board of Education, this Court had an opportunity to address an analogous situation. There we held that the trial court abused its discretion in dismissing plaintiff’s action with prejudice pursuant to Rule 41(b), ARCP, for failure to prosecute the action. Relying substantially on federal case authority, this Court stated:

[ Sjince dismissal with prejudice is a drastic sanction, it is to be applied only in extreme situations. Brown v. Thompson, 430 F.2d 1214 (5th Cir. 1970); Durham v. Florida East Coast Ry. Co., 385 F.2d 366 (5th Cir. 1967).
Therefore, appellate courts will carefully scrutinize such orders and occasionally will find it necessary to set them aside. 9 Wright & Miller, Federal Practice & Procedure, § 2370, p. 203, n.l; see, e. g., Connolly v. Papachristid Shipping, Ltd., 504 F.2d 917 (5th Cir. 1974); Flaksa v. Little River Marine Construction Co., 389 F.2d 885 (5th Cir.) cert. den. 392 U.S. 928, 88 S.Ct. 2287, 20 L.Ed.2d 1387 (1968).

365 So.2d at 661.

After carefully scrutinizing the record in the instant case, we do not find that element of “willfulness” in plaintiff’s conduct to justify the drastic sanction of dismissal. From all indications of the record, the 80-year-old plaintiff, housed in a nursing home and beset with infirmities, was physically and mentally unable to answer the interrogatories. Both the affidavit of plaintiff’s attorney and those of his son testified to this; there was no contradictory evidence. According to the son’s affidavit, when one interrogatory was posed to the plaintiff, the man responded, “Look at those cows.”

The actions of plaintiff’s attorney indicate his good faith efforts to obtain the information sought by defendant. With his client largely incapacitated, the attorney sought the assistance of plaintiff’s son to elicit information from the father. Meeting with no success by this route, the attorney sought his client’s hospital records for information to answer the interrogatories. This was mostly unsuccessful as well, since defendant produced only a hospital chart and claimed the work product privilege for the remainder of the documents sought. The attorney’s motion to compel production of these documents was never ruled on.

Plaintiff’s attorney also sought an extension of time to answer the interrogatories because of his client’s condition. This was the proper step to take. See Annot., 56 A.L.R.3d 1109, 1117 (1974). Unfortunately, the trial court did not see fit to grant the extension.

Plaintiff’s attorney also filed affidavits explaining his client’s condition and the difficulties encountered in answering the interrogatories. The last affidavit indicated an intent to file a petition to declare the plaintiff non compos mentis.

There is no doubt that plaintiff’s attorney could have handled the problem with more skill. Medical affidavits explaining plaintiff’s condition would have been more convincing. A petition for non compos mentis status could have been filed, although apparently it could not have been heard in the time frame of this case.

Undoubtedly, the trial court was irritated by these efforts of plaintiff’s attorney and doubly perturbed by the attorney’s failure to appear at a hearing. But mere negligence and inexperience on the attorney’s part do not justify the drastic sanction of dismissal. Addressing a similar situation in Kakuwa v. Sanchez, 498 F.2d 1223 (9th Cir. 1974), the Ninth Circuit Court of Appeals appropriately said:

By our foregoing recital of the plaintiff’s counsel's clumsy efforts to achieve the end which these rules authorize, we wish to make plain our understanding of the exasperation undoubtedly experienced by the trial court. However, the record indicates to us that counsel for the plaintiff adequately revealed the general thrust of his wishes and the circumstances with which he was confronted. Having done so it would be inappropriate to characterize the conduct of either plaintiff’s counsel or the plaintiff as contumacious or in defiance of the court’s authority.

498 F.2d at 1226.

We recognize that matters dealing with the extension of time to answer interrogatories or the dismissal of an action for failure to answer interrogatories are necessarily addressed to the sound discretion of the trial court. Kay-Noojin Development Co. v. Kinzer, 259 Ala. 49, 65 So.2d 510 (1953). However, as we recently noted in Smith, supra, dismissal orders must be carefully scrutinized, and the plaintiff’s conduct must mandate dismissal. Under the circumstances of this case, we find that dismissal was not justified and that the trial court abused its discretion in applying this sanction in the absence of “willful” conduct.

Defendant cites three opinions of this Court, two rendered in the early part of this century, that upheld judgments based on the failure to answer interrogatories. All were rendered before the adoption of Alabama’s Rules of Civil Procedure in 1973. Additionally, each is distinguishable on its face. The factual framework of such cases and the specific conduct of the parties and attorneys involved are crucial to a determination of whether the drastic sanction of dismissal is justified.

In City of Mobile v. Wooley, 278 Ala. 652, 180 So.2d 251 (1965), a default judgment was entered in a declaratory judgment action when respondent did not answer interrogatories simply on the advice of counsel. Several years later in a revival of the suit, the trial court ordered respondent to answer the interrogatories. Finding the answers to be incomplete and evasive, the trial court entered a decree pro confesso which was upheld by this Court. Unlike the instant case, counsel for respondent did not indicate his good faith by requesting an extension of time to answer and by filing affidavits explaining the delay. These are elements that weigh heavily in the choice of sanctions.

In Albert Hass Lumber Co. v. Gibson, 172 Ala. 111, 54 So. 994 (1911), plaintiff was given an additional 90 days to answer interrogatories and was required to pay costs. Plaintiff not only failed to pay costs and answer during this generous extension, but his counsel did not even object to the dismissal of the action. This plaintiff was not even interested in his own cause of action.

And finally, a decree pro confesso was upheld in Kimball v. Cunningham Hardware Co., 197 Ala. 631, 73 So. 323 (1916), only after this Court thoroughly analyzed the merits of the case and concluded that petitioner would have won on the merits anyway. This Court also noted that one of the respondents would not be affected by the decree since he had resigned as administrator and no longer had an interest in the case. Considering the youth of the instant case when it was dismissed, we have no way of knowing whether plaintiff may have succeeded on the merits of his suit.

Although the sanction of dismissal was inappropriate under the circumstances of this case, other sanctions found in Rule 37(b)(2), ARCP, should be considered by the trial court on the remand of this case, consistent with the factual situation here involved.

REVERSED AND REMANDED.

JONES, SHORES and BEATTY, JJ., concur.

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

MADDOX and FAULKNER, JJ., recuse themselves.

EMBRY, Justice

(dissenting):

Respectfully, I am compelled to dissent. From the record, I am not able to conclude that the trial court, in any respect, abused its discretion in applying the sanction of dismissal of this action on the basis upon which it acted.

TORBERT, C. J., and ALMON, J., concur.


author: BRADLEY, Judge.

text:
    Dorothea Qualls Boley ROWE v. Ray M. BOLEY.
    Civ. 2219.
    Court of Civil Appeals of Alabama.
    June 4, 1980.
    Rehearing Denied July 9, 1980.

      George A. Moore, of Johnston, Johnston & Moore, Huntsville, for appellant.
    Macon L. Weaver and Phillip B. Price, of Weaver & Price, Huntsville, for appellee.
   BRADLEY, Judge.

This case involves proceedings filed by the plaintiff, the mother of three minor children, to modify a divorce judgment to require the defendant, the father of the children, to pay a greater amount of child support.

On September 1, 1970 the parties were divorced. The divorce decree approved an agreement of the parties whereby the defendant promised to pay to the plaintiff as child support $300 each month. In 1978 the plaintiff filed her petition requesting that the support payments for the three minor children be increased; and, after an eviden-tiary hearing, a special circuit judge on August 14, 1978 denied the petition for modification. No appeal was taken from this judgment.

In April 1979 the plaintiff filed another modification petition seeking additional child support. The evidence as to this matter was heard ore tenus before a different circuit judge who decided on November 21, 1979 that there had been no material change in the circumstances and conditions of the parties between August 14,1978 and November 21, 1979. The petition was denied by judgment of the court. At the conclusion of the evidence, the then trial judge stated that he probably would have found that there had been a material change of circumstances had he tried the case in August 1978, but that he could not act as an appellate court as to the prior judgment of another circuit judge. He, therefore, restricted his decision timewise as to whether there had been a material change in the circumstances and conditions of the parties between August 14, 1978 and November 21, 1979. It was decided that the fact that the defendant, during said period, received a twelve and one-half percent gross salary raise was a slight change in the parties’ circumstances, not a material change after deducting taxes from such increase.

The dispositive issue here is whether a trial court, in deciding if sufficient changed circumstances exist to warrant modification of a child support decree, is limited to a consideration of the changes that occurred since the last decree that considered the question of modification or whether the court is permitted to consider the changes that have occurred since the last decree awarding child support or actually modifying a support award.

In the instant case the trial court considered itself limited to those circumstances that had changed during the period between August 14, 1978, the date the court denied a request for a modification of the original child support decree, and November 21,1979, the date the court again ruled on a child support modification request.

Appellant contends that the trial court should have considered the changed circumstances that occurred since the last decree that awarded child support, which was the original divorce decree. We agree.

In Frazier v. Frazier, Ala.Civ.App., 342 So.2d 1320 (1977), we said:

The party seeking to modify a child custody decree has the burden of proving a material change in circumstances since the last custody decree which has so affected the welfare and best interests of the children as to require a change in custody. Ponder v. Ponder, 50 Ala.App. 27, 276 So.2d 613 (1973).

And, in Womble v. Womble, 56 Ala.App. 318, 321 So.2d 660 (1975), a case involving a modification of a child support award, we held that the trial court’s consideration of changed circumstances extended back to the last decree in which there had been a modification of the child support award. Also, see Clarke v. Clarke, 47 Ala.App. 558, 258 So.2d 902 (1972).

Although we have been unable to find any specific authority for the proposition that a trial court in deciding a child support modification petition is limited to the period since the last decree, whether it be one denying the modification petition or one modifying a prior child support decree, we think the rationale of the above cited cases persuasively suggests that the period within which the changed circumstances must have occurred extends back to the decree awarding child support or to the last decree modifying child support. Otherwise, a situation could occur, as did occur in the instant case, where the request for modification was denied because there were insufficient changed circumstances during the short period since the last modification petition was denied, whereas if the court could have considered those circumstances that had occurred since the child support award was made, it is likely that a different result would have been reached. The welfare of the children cannot be properly served without consideration of the totality of circumstances since they last received an order for support. The primary consideration is the need of the children. If the needs of the children and the ability of the father to respond to those needs have materially changed since the last award fixing the amount of support, the trial court should be able to consider those changes in fashioning its decree. Therefore, we conclude that the trial court erred in not considering those circumstances that had materially changed since the 1970 child support award.

Plaintiff has requested that she be awarded a reasonable amount as an attorney’s fee for this appeal. We think $500.00 to be a reasonable fee for her attorney’s services and hereby award her that amount.

The trial court’s decree is reversed and the cause remanded for further proceedings not inconsistent with this opinion.

REVERSED AND REMANDED WITH DIRECTIONS.

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


author: TORBERT, Chief Justice.

text:
    Ex parte Ray M. BOLEY. (Re: Dorothea Qualls Boley ROWE v. Ray M. BOLEY).
    No. 79-810.
    Supreme Court of Alabama.
    Jan. 9, 1981.

      Macon L. Weaver, of Weaver & Price, Huntsville, for petitioner.
    George A. Moore, of Johnston, Johnston & Moore, Huntsville, for respondent.
   TORBERT, Chief Justice.

The parties were divorced on September 1, 1970. The divorce decree approved an agreement of the parties whereby the defendant-husband promised to pay the plaintiff-wife $300 each month for child support. In 1978, the plaintiff filed a petition requesting an increase in child support payments. Her request was denied, and no appeal was taken from the judgment. In April of 1979, plaintiff again petitioned the court for an increase in child support payments. A different circuit judge found that there had been no material change in circumstances since the 1978 petition, although there had been a material change in circumstances since the parties’ divorce in 1970. The judge refused to consider any changes prior to the 1978 decree, and denied her request. Plaintiff appealed to the Court of Civil Appeals, which reversed the decision, holding that in considering a modification of child support payments, a court should consider all changes in circumstances since the last decree awarding or actually modifying child support, rather than only those changes taking place since the last decree that considered the question of modification. This Court granted certiorari on August 27, 1980, to review the holding of the Court of Civil Appeals. We now affirm.

We recognize the general proposition that in a child support modification proceeding, the party seeking the modification has the burden of proving that there has been a material change in circumstances since the last decree. Frazier v. Frazier, 342 So.2d 1320 (Ala.Civ.App.1977); Lee v. Lee, 337 So.2d 372 (Ala.Civ.App.1976); Womble v. Womble, 56 Ala.App. 318, 321 So.2d 660 (1975). However, this Court has not heretofore addressed the precise issue here presented.

Alabama courts have traditionally viewed with disfavor repetitive, harassing litigation over child support and custody. Greene v. Greene, 249 Ala. 155, 30 So.2d 444 (1947); Sparkman v. Sparkman, 217 Ala. 41, 114 So. 580 (1927). A former decree is conclusive of the interests of the child and the rights of the parents, so long as the status at the time of the decree remains without material change. Messick v. Messick, 261 Ala. 142, 73 So.2d 547 (1954).

However, the standard for setting child support is the needs of the child as compared with the ability of the parent to respond to that need. Thompson v. Thompson, 337 So.2d 1 (Ala.Civ.App.1976); Donahey v. Donahey, 52 Ala.App. 596, 296 So.2d 188 (1974). Unfortunately, these two factors rarely coincide. Therefore,

[ i]f the ability of the father to pay is so exceeded that he is unable to meet his own cost of self maintenance without sinking into insolvency, the best interests of the children are not served. The equities of each must be weighed by the court.

Pruett v. Pruett, 333 So.2d 580, 582 (Ala.Civ.App.1976).

In the case before us, the problem described above is not a factor. The father is able to pay the extra child support needed by his children. Instead, the father seeks to avoid paying additional child support by resorting to a rather strict interpretation of our previous decisions. In cases involving child support, the Court is not bound by any strict rules of pleading or procedure, Hardy v. Hardy, 250 Ala. 297, 34 So.2d 212 (1948), and the paramount consideration is the welfare of the children. Meadows v. Hulsey, 246 Ala. 261, 20 So.2d 526 (1945). While the party seeking to modify child support payments must show that there has been a material change in circumstances since the last decree awarding child support, Frazier v. Frazier, 342 So.2d 1320 (Ala.Civ.App.1977); Lee v. Lee, 337 So.2d 372 (Ala.Civ.App.1976); Womble v. Womble, 56 Ala.App. 318, 321 So.2d 660 (1975), a. petition to modify untimely filed in the interim should not, as a matter of law, foreclose a trial judge from considering all factors and changes occurring since the amount of child support was last fixed. To hold otherwise would deprive the children of divorced fathers, in some instances, of additional child support that the father is able to pay and of which the children have need. We therefore affirm the judgment of the Court of Civil Appeals.

AFFIRMED.

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


author: WRIGHT, Presiding Judge.

text:
    The COUNTY BOARD OF EDUCATION OF SHELBY COUNTY, Alabama v. The ALABAMA STATE TENURE COMMISSION.
    Civ. 2369.
    Court of Civil Appeals of Alabama.
    Oct. 29, 1980.
    Rehearing Denied Dec. 10, 1980.
    William R. Justice of Harrison, Conwill, Harrison & Justice, Columbiana, for appellant.
    W. Troy Massey of Gray, Seay & Lang-ford, Montgomery, for appellee.
   WRIGHT, Presiding Judge.

This is a teacher tenure case.

Following notice and a hearing held in compliance with § 16-24-9, Code of Alabama (1975), the County Board of Education of Shelby County, Alabama, cancelled the employment contract of Odessa Jackson, a tenured teacher. Miss Jackson appealed to the Alabama State Tenure Commission pursuant to § 16-24-10. The Tenure Commission reversed the action of the Board and the Board filed a petition for writ of mandamus with the Shelby County Circuit Court. The circuit court found that there was sufficient evidence to support the finding of the Tenure Commission and denied the petition. The Board appeals. We affirm.

The tendencies of the evidence reveal the following:

Riverchase Middle School’s first year of operation began in the fall of 1978. In order that the school might operate with a full staff of thirty teachers, the Board planned to transfer a number of teachers from other schools in Shelby County to Riv-erchase. The trustees of Riverchase Middle School protested the transfer of eight of these teachers, one of whom was Odessa Jackson. The trustees filed suit to prohibit the transfer of these eight teachers and the circuit court continued the case until the end of the school year. These teachers, including Miss Jackson, taught at the school during the 1978-79 school year.

During the summer of 1979, after the close of the school year, Miss Jackson was notified that the Board had voted to cancel her teaching contract. The Board stated four reasons for its action. They were:

1. Inadequate lesson plans
2. Inadequate instructional strategies
3. Inadequate classroom management
4. Lack of participation in the PTO

Presumably these reasons, collectively, were intended to indicate incompetency, a statutory ground for cancellation of an employment contract of a teacher with continuing service status under the teacher tenure law (§ 16-24-8).

A termination hearing was held in August 1979. At this hearing both the Board and Miss Jackson presented evidence to support their respective positions. It was on the basis of this evidence that the Tenure Commission overruled the Board’s action terminating Miss Jackson's contract.

The evidence adduced at the hearing may be summarized briefly for our purposes. The Board presented testimony of three persons in support of termination. Two witnesses, who had done evaluations of teachers at the school during the course of the year, testified as to Miss Jackson’s inadequate lesson plans, instructional strategies and classroom management. The principal of the school also testified as to Miss Jackson’s inadequacies in these areas and, in addition, testified that she failed to participate in school activities such as a “disco dance,” and the PTO.

To refute the Board’s evidence of inadequate lesson plans, Miss Jackson offered her lesson plans for the week in which the evaluation by the Board’s witness was made. These plans showed that the school principal had marked “Good, Good” on them in two different places, yet he, at the hearing, testified as to their inadequacy. The assistant principal at the school, with some thirty years’ experience in education and thirteen years in the supervision of teachers, testified that Miss Jackson’s plans were satisfactory most of the time. This witness, whose job it was to supervise and evaluate teachers in the school, also testified that Miss Jackson rated “satisfactory” in terms of her relationship and interaction with students and in her overall performance.

As to the instructional strategies used by Miss Jackson, these were described as “totally unsatisfactory” by the Board’s witness. However, testimony and exhibits were introduced at the hearing which showed that the objectives Miss Jackson employed were almost identical and verbatim to those set out in a teacher’s manual which she was instructed to follow.

Evidence was also introduced by the teacher in an attempt to refute the charges of lack of participation in school activities and the PTO. This evidence was that Miss Jackson attended the first PTO meeting and found a trustee soliciting funds for the lawsuit to have the eight teachers excluded from the school, one of whom was Miss Jackson. Miss Jackson and other teachers refused to attend PTO meetings in the future. Further evidence showed that Miss Jackson had participated in school activities to some degree and that her reasons for not attending a dance were religious in nature. Finally, Miss Jackson introduced evidence that the evaluations prepared by the Board’s witnesses were incomplete and invalid. This was testified to by a witness who was, arguably, as qualified as the Board’s witnesses in the educational field.

In a teacher tenure case the scope of our review is the same as that of the circuit court in its consideration of the petition for writ of mandamus. It has been firmly established in recent decisions of our appellate courts that if there is sufficient evidence to support the conclusion of the Tenure Commission, then its decision must be affirmed. Sumter County Board of Education v. Alabama State Tenure Commission, 352 So.2d 1137 (Ala.1977). The Commission will not be reversed unless it has failed to comply with procedural requirements or unless its judgment is so contrary to the preponderance and weight of the evidence as to be unjust. Schneider v. Mobile County Board of School Commissioners, 378 So.2d 1119 (Ala.Civ.App.1979), cert. denied, 378 So.2d 1122 (Ala.1980); Alexander v. Alabama State Tenure Commission, 358 So.2d 1032 (Ala.Civ.App.1978). Because no question of a procedural nature is presented, we must respond only to the sufficiency of the evidence in support of the Commission’s decision.

As can be seen from the facts summarized above, both sides presented much evidence in support of their respective positions. Having reviewed this evidence thoroughly, we cannot say that the preponderance of the evidence and the overwhelming weight of the evidence is contrary to the conclusion of the Tenure Commission. There was ample evidence in support of the teacher upon which the Commission could base its decision.

Being mindful of the scope of our review, and based upon the facts as found in the record, we affirm the court below.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: FAULKNER, Justice.

text:
    Ex Parte The COUNTY BOARD OF EDUCATION OF SHELBY COUNTY, ALABAMA. (Re: The County Board of Education of Shelby County, Alabama v. The Alabama State Tenure Commission).
    80-200.
    Supreme Court of Alabama.
    Jan. 29, 1981.
   FAULKNER, Justice.

WRIT DENIED — NO OPINION.

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


author: BOWEN, Judge.

text:
    Joel P. FROLIK v. STATE.
    1 Div. 94.
    Court of Criminal Appeals of Alabama.
    April 22, 1980.
    Rehearing Denied May 27, 1980.
    Charles C. Partin, of Stone, Partin & Granade, Bay Minette, for appellant.
    Charles A. Graddick, Atty. Gen., Samuel J. Clenney, III, Asst. Atty. Gen., for appel-lee.
   BOWEN, Judge.

The defendant was charged by complaint with using abusive, insulting or obscene language in the presence or hearing of a girl or woman contrary to the provisions of Alabama Code 1975, Section 13-6-18. Sentence was twenty-four hours in jail and a fine of fifty dollars. On this appeal, the defendant challenges the constitutionality of the code section under which he was convicted.

A thorough reading of Lewis v. City of New Orleans, 415 U.S. 130, 94 S.Ct. 970, 39 L.Ed.2d 214 (1974), Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972), and Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971), convinces this Court that Alabama Code 1975, Section 13-6-18 is facially overbroad and unconstitutional since it is “susceptible of application to speech, although vulgar or offensive, that is protected by the First and Fourteenth Amendments," Gooding, 405 U.S. at 520, 92 S.Ct. at 1105. See Rosen v. California, 416 U.S. 924, 94 S.Ct. 1922, 40 L.Ed.2d 280 (1974); City of Columbus v. Williams, 36 Ohio St.2d 7, 302 N.E.2d 582 (1973); Brown v. Oklahoma, 492 P.2d 1106 (Okl.Cr.), vacated, 408 U.S. 914, 92 S.Ct. 2507, 33 L.Ed.2d 326, on remand, 503 P.2d 571 (Okl.Cr.1972). See also N. Dorsen, P. Bender, & B. Neuborne, Emerson, Haber, and Dorsen’s Political and Civil Rights in the United States 621-636 (4th ed. 1976).

Section 13-6-18 has been modified and succeeded by Section 13A-11-7 (effective January 1, 1980). The commentary to this new section indicates this same result.

On authority of the above cases, the judgment of the Circuit Court is reversed and rendered.

REVERSED AND RENDERED.

HARRIS, P. J., and TYSON and BOOK-OUT, JJ., concur.

DeCARLO, J., not sitting.