author: JONES, Justice.

text:
    Ex parte Bill Shirley TRAVIS. In re WINN-DIXIE KWIK CHEK v. Bill Shirley TRAVIS.
    80-650.
    Supreme Court of Alabama.
    Feb. 5, 1982.
    Rehearing Denied April 9, 1982.

      Augusta E. Wilson, Mobile, for petitioner.
    Daniel A. Pike of Sintz, Pike, Campbell & Duke, Mobile, for respondent.
   JONES, Justice.

We granted the petition for certiorari to review the Court of Civil Appeals’, 414 So.2d 954, reversal of a “slip-and-fall” case on a sufficiency of the evidence ground.

The facts, as stated in the Court of Civil Appeals’ opinion, are summarized as follows:

In June of 1978, Plaintiff Bill Travis slipped, fell, and was injured while pushing a grocery cart in the produce section of Defendant’s store. At trial, Plaintiff testified that he saw a brown paper bag on the floor behind him immediately after he fell and that the bag had dirt and a footprint on it. The trial judge, ore tenus, found for Plaintiff, but the Court of Civil Appeals reversed, holding, in part:

“In the instant case .. . plaintiff offered no evidence that the defendant had actual notice of the article allegedly causing the slip being on the floor at the time of the incident. Likewise, he offered no evidence from which it might be inferred that defendant was delinquent in not discovering and removing the offending article. See, Delchamps, Inc. v. Stewart, [47 Ala.App. 406, 255 So.2d 586, cert. denied, 287 Ala. 729, 255 So.2d 592 (1971) ]. With regard to constructive notice to the defendant, plaintiff argues that his proof of the condition of the brown bag imputes such notice.
“Plaintiff’s testimony was that the brown bag had dirt and a footprint on it. Our cases in some instances have allowed the plaintiff to prove negligence on the part of the defendant by showing that the foreign substance was on the floor a sufficient length of time to impute constructive notice to the defendant. S. H. Kress & Co. v. Thompson, [267 Ala. 566, 103 So.2d 171 (1957) ]. In those instances it was not necessary for the plaintiff to enter direct evidence as to the length of time a foreign substance had remained on the floor; the trier of fact was able to infer the length of time from the nature and condition of the foreign substance. Foodtown Stores, Inc. v. Patterson, [282 Ala. 477, 213 So.2d 211 (1968)]; Great Atlantic & Pacific Tea Co. v. Popkins, 260 Ala. 97, 69 So.2d 274 (1953). Having reviewed those cases where, from the condition of the foreign substance, the trier of fact imputed constructive notice to the defendant, we find that the evidence of such condition in this case provides no reasonable inference as to the length of time the bag was on the floor prior to plaintiff’s fall. That a paper bag, unnoticed by the plaintiff prior to his fall, had dirt and a footprint on it does not tend to show that it had been on the floor any appreciable length of time. In fact, the more logical inference is that the dirt and footprint were caused when Travis stepped, slipped and fell on the bag....” (Emphasis supplied.)

Several general rules of Alabama law are applicable to our consideration of Petitioner’s allegations of error.

I. The axiomatic ore terms rule guides an appellate Court’s review of the factual conclusions of a trial court. Southern States Life Insurance Co. v. Allan, 38 Ala. App. 467, 87 So.2d 439 (1956).

II. A reviewing court may not redetermine the inferences to be drawn from the evidence. Elba Wood Products, Inc. v. Brackin, 356 So.2d 119 (Ala.1978). This rule obtains “regardless of any view the [appellate court] may have as to the weight of the evidence and the [appellate court] must allow such reasonable inferences as the [fact-finder] was free to draw, not inferences which the [appellate court] may think the more proper.” Carraway Methodist Hospital v. Pitts, 256 Ala. 665, 57 So.2d 96 (1952).

III. The function of the appellate court, then, in a case tried without a jury, is to ascertain whether there is any credible, legal evidence from which the trial judge was reasonably able to draw his inferences. Hayes v. Kennedy, 292 Ala. 362, 294 So.2d 739 (1974). The “scintilla” rule applies in these cases. Bonds v. Brown, 368 So.2d 536 (Ala.1979).

IV. The duty of an owner or occupant (invitor) to the customers who come upon the premises (invitees) is that of keeping the premises reasonably safe. The invitor is not an insurer of the safety of the invitees. Great Atlantic & Pacific Tea Co. v. Bennett, 267 Ala. 538, 103 So.2d 177 (1958).

V. The principle of res ipsa loqui-tur has no application to slip-and-fall cases. The plaintiff must show both the negligence of the invitor and that such negligence proximately caused the plaintiff’s injury. Great Atlantic & Pacific Tea Co. v. Bennett, supra.

To summarize these propositions, we restate the familiar: Where the evidence is sufficient to support reasonable inferences which would impose liability and others which would deny liability, and where the factfinder accepts the inferences favorable to one side of the litigation, the appellate court may not substitute its judgment for that of the factfinder as to the reasonableness of the inferences drawn.

The ultimate issue, then, is whether the evidence, taken most strongly in the plaintiff’s favor, supports a reasonable factual inference consistent with the plaintiff’s theory of the defendant’s negligence. If not, the plaintiff has failed to make out a prima facie showing of negligence, thus stripping the trial judge of his factfinding prerogative.

We hold that the evidence here was sufficient to support the trial judge’s factual findings in favor of Plaintiff; thus, we reverse and remand.

The trial court and the appellate court, relying on the same precedential “slip-and-fall” decisions, came to contrary conclusions. While on the surface the case law seems less than altogether harmonious, a brief comparison of several of the apparently inconsistent cases reveals that the holdings are distinguishable on their facts, though, admittedly, their language is often confusing.

In Britling Cafeteria v. Naylor, 254 Ala. 84, 47 So.2d 187 (1950), the plaintiff found a bean on her shoe after falling. No evidence of a foreign substance on the defendant’s floor, before or after the plaintiff’s fall, was introduced into evidence. Reversing a plaintiff’s judgment, the Supreme Court stated:

“Mere proof that the injury could have happened in an alleged way does not warrant the conclusion that it did so occur, where it can with equal propriety be attributed to some other cause from the same proof. Alabama Power Co. v. Pierre, 236 Ala. 521, 183 So.2d 665.”

Britling Cafeteria v. Naylor, 254 Ala. 84, at 86, 47 So.2d 187.

That the Naylor holding is correct is hardly debatable. Because of the remoteness of time between the incident of the plaintiff’s fall and her discovering the bean on her shoe, clearly, the plaintiff’s case rests purely on speculation as to causation. Instead of basing its holding on the “speculative and conjectural” rationale, however, the Naylor Court employed the confusing “with equal propriety be attributed to some other cause” language. Taken literally, this language says the plaintiff bears the heavy, if not impossible, burden of excluding all reasonable inferences inconsistent with the plaintiff’s theory of recovery; or, at least, the probabilities must be unequal and in favor of the plaintiff’s claim.

Taken to its ultimate conclusion, of course, this proposition, in its practical application, would eliminate the factfinding function of the jury. At any rate, the %o (with equal probability) concept is violative of the “any credible, legal evidence,” or “scintilla," rule; yet, it undoubtedly led to the later “more logical inference” language in Thompson, infra, as well as the repetition of this identical language by the Court of Civil Appeals in the instant case. While the “with equal probability” and the “more logical inference” language may well be appropriate as an appellate standard for rejecting a challenge to the propriety of the factual determinations at trial, each expression is inappropriate to characterize the plaintiff’s burden of proof standard.

A plaintiff’s judgment in F. W. Woolworth v. Ney, 239 Ala. 233, 194 So. 667 (1940), was reversed where the evidence showed that a banana peel on which the plaintiff slipped and fell was dark brown, dirty and crushed and that the area had not been swept for two hours. Ney, however, was distinguished eighteen years later in Great Atlantic & Pacific Tea Co. v. Bennett, 267 Ala. 538, 103 So.2d 177 (1958), on the basis that “[i]n the Ney case the offending substance was a banana peel in a ten-cent store, a substance evidently dropped by a customer and not something which might be expected to be found on the floor of such a business.” Bennett at 540, 103 So.2d 177. Moreover, in Bennett, the foreign substance was “vegetable matter in a grocery store. Customers, as well as employees, in a grocery store are likely to be handling and carrying vegetables and dropping matter on the floor. It is a hazard of the business and on the store rests the burden to be on the alert for such hazards.” Bennett at 540, 103 So.2d 177.

The trial court in the three “A&P” cases (Great Atlantic & Pacific Tea Co. v. Weems, 266 Ala. 415, 96 So.2d 741 (1957); Great Atlantic & Pacific Tea Co. v. Popkins, 260 Ala. 97, 69 So.2d 274 (1953); and Great Atlantic & Pacific Tea Co. v. Bennett, supra), applying a consistent standard of review, found in each case an evidentiary basis for an inference as to the defendant’s negligence. These cases are summarized in Bennett:

“The Popkins and the Weems cases held that from the condition of the offending substance upon the floor of the place of business, it could be inferred by the jury that the substance had been on the floor long enough for the defendant, in the exercise of reasonable diligence, to have noticed it and had it removed. We are unable to rationalize any sound distinction between the Weems and Popkins cases and the one at bar. We think there was a scintilla of evidence to support the verdicts here.... ” Bennett at 540, 103 So.2d 177. (Emphasis supplied.)

In Popkins, the lettuce on which the plaintiff slipped was shown to have been dirty, ragged, and bruised; however, the judgment for the plaintiff was reversed on another issue. The evidence as to the foreign substance in Weems was disputed (supposedly lettuce), but the judgment for the plaintiff was affirmed on the basis of Pop-kins. The judgment for the plaintiff with regard to the issue of negligence was affirmed in Bennett, because the evidence showed that the foreign substance was crushed, dirty, and crumpled and was found in an area of customer travel.

The plaintiff in S. H. Kress & Co. v. Thompson, 267 Ala. 566, 103 So.2d 171 (1958), slipped and fell on a smeared, sticky, splattered substance which the evidence never specifically identified but which the defendant contended was “spit-out” candy. This Court reversed the judgment for the plaintiff, because:

“[T]here was no evidence introduced as to how the foreign substance upon which [the plaintiff] slipped was on the floor.... Evidence was introduced to the effect that the foreign substance was ‘scattered and smeared’ and many times bigger than a half-dollar, but such evidence as to the condition and size of the substance would not tend to show that it had been upon the floor for any appreciable length of time. In fact, the more logical inference as to the substance being scattered and smeared would be that this occurred when [plaintiff] slipped and fell on such substance.” Thompson, at 569, 570, 103 So.2d 177. (Emphasis supplied.)

A further argument by the plaintiff in Thompson was that the defendant was negligent in its inspection of the floor. While finding that the porter, whose responsibility it was to inspect the first floor of the defendant’s store, could not be everywhere at once, this Court stated that a finding for the plaintiff on that question would not have altered the outcome of the appeal. “In order to prove that there was a negligent inspection, it is still incumbent upon [plaintiff] to prove, or to offer evidence from which it can reasonably be said, that the foreign substance was on the floor at the time of the inspection.” Thompson, at 570, 103 So.2d 177.

The evidence in May-Bilt, Inc. v. Deese, 281 Ala. 579, 206 So.2d 590 (1968), was that the green bean on which the plaintiff slipped was green, hard, and fresh — evidence of a “nature and condition” which did not, in the opinion of this Court, support a reasonable inference as to the length of time the bean had been on the floor.

In Foodtown Stores, Inc. v. Patterson, 282 Ala. 477, 213 So.2d 211 (1968), this Court quoted the “nature and condition of the offending substance” language from the previous cases, but rejected the defendant’s argument based thereon. (The defendant claimed a reversal of the plaintiff’s judgment was in order because the plaintiff offered no evidence as to the condition of the bean which caused his fall, and, therefore, there was no “sufficient length of time” basis upon which the trial court could have based its inference of the defendant’s negligence.) Patterson went on to hold that:

a) The Court “judicially knows” that produce sections are now self-service in nature and that customers, by law, are not to bear the burden of discovering the additional hazard of vegetable matter on the floor;

b) Many factual questions must be considered in each case with regard to the condition of both the plaintiff and the defendant’s premises. The Patterson Court found “ample evidence” to support an inference of defendant’s negligence. This evidence included an employee’s admitting that six or seven customers were at the produce counter ten minutes before the accident and that no sweeping had been done in the area in that ten-minute period; and

c) A “stop-watch rule as to sweeping, cleaning, etc., is inappropriate in cases such as these because each case must be decided on its own facts; and the duties of the parties will depend upon the facts and circumstances of each case.

The Court’s discussion of appellate consideration of these “factual matters” in Patterson was quoted with approval in Winn-Dixie v. Godwin, 349 So.2d 37 (Ala.1977). Justice Shores, writing for the God-win Court, said:

“Several of these factual issues are, in fact, involved in this case, just as the court recognized as normal in such cases. But the point is: They are factual matters and, therefore, properly left to the jury for a determination of whether the defendant is negligent, and whether such negligence, if any, proximately caused the plaintiffs injury. There was evidence produced which entitled the jury to pass on the plaintiff’s theory of the ease.” Godwin, at 38.

Then, in Winn-Dixie Store No. 1501 v. Brown, 394 So.2d 49 (Ala.Civ.App.1981), the Court of Civil Appeals reversed a judgment for the plaintiff in a slip-and-fall case. The plaintiff offered no evidence that the defendant had actual notice of the foreign substance on the floor, or that the defendant had negligently failed to sweep at “regular intervals.” Furthermore, except for the plaintiff’s testimony that the vegetable matter on the floor “appeared fresh and green,” there was no evidence presented from which a reasonable inference could be drawn as to the length of time the substance had been on the floor.

In the instant case, Plaintiff’s counsel lays heavy stress on the “more logical inference” language in the Court of Civil Appeals’ opinion. Plaintiff contends that the very use of the term “more logical” (which, incidentally, is the exact language used in Thompson, supra) denotes that the evidence supports other logical inferences as to what caused the dirt and footprint on the paper bag on which Plaintiff slipped and fell. While, from a purely grammatical point of view, Plaintiff’s contention is well taken and, while we acknowledge that the “more logical inference” language is somewhat unfortunate, we believe that undue emphasis on this language is an unreasonable interpretation of the real basis of the appellate court’s holding.

A fairer interpretation is that by the use of this language the Court of Civil Appeals is really saying that it finds no reasonable inference from the evidence to support the trial court’s finding of the essential elements of Plaintiff’s claim.

Where the evidence does not rise to the degree of affording any reasonable inferences as to a defendant’s negligence, the factfinder may not indulge in speculation as to mere possibilities. An appellate court may not, on the other hand, usurp the fact-finder’s decision as between two inferences, both reasonable under the evidence.

The fact that one inference is stronger than another is not the appropriate test. The test is whether there was any credible, legal evidence from which the factfinder may reasonably draw its inferences of fact.

Applying this test, consistent with its long standing application as attested by the authorities cited herein, we hold the evidence of record in the instant case is sufficient to support the trial court’s findings; and that appellate review of the judgment, as against a sufficiency of the evidence challenge, is governed by the ore tenus standard.

The judgment of the Court of Civil Appeals is reversed and the cause remanded for judgment consistent with this opinion.

REVERSED AND REMANDED.

All the Justices concur except ADAMS, J., not sitting.

      . It should be noted that these propositions are clearly and aptly set out in the opinion of the Court of Civil Appeals, and that our reiteration of these principles is not intended to signal a variance between the two courts as to the applicable law. Rather, our difference is merely one of interpretation and application of settled legal principles with respect to a given set of facts.

      . Incidentally, the use of the term “with equal propriety,” in all likelihood, is an inadvertence. Naylor’s cited authority (Pierre) uses the term “with equal probability”; and, further, Pierre’s use of the term is in the context of affirming the trial court’s findings.

      . It is interesting to note that the authority cited in Naylor (Pierre), for its “with equal propriety” test, quotes a fuller explanation of the stated doctrine from the earlier case of Southern Railway Co. v. Dickson, 211 Ala. 481, 100 So. 665 (1924);
      “But a nice discrimination must be exercised in the application of this principle. As a theory of causation, a conjecture is simply
      an explanation consistent with known facts or conditions, but not deducible from them as a reasonable inference. There may be two or more plausible explanations as to how an event happened or what produced it; yet, if the evidence is without selective application to any one of them, they remain conjectures only. On the other hand, if there is evidence which points to any one theory of causation, indicating a logical sequence of cause and effect, then there is a juridical basis for such a determination, notwithstanding the existence of other plausible theories with or without support in the evidence.” Dickson, at 486, 100 So. 665.


source: Caselaw Access Project

author: WRIGHT, Presiding Judge.

license: Public Domain

text:
    WINN-DIXIE KWIK CHEK v. Bill Shirley TRAVIS.
    Civ. 2526.
    Court of Civil Appeals of Alabama.
    May 19, 1982.
   WRIGHT, Presiding Judge.

The judgment of this court entered May 6, 1981, reversed the judgment of the Circuit Court of Mobile County, Alabama. The Supreme Court of Alabama, 414 So.2d 954, by judgment of February 5, 1982, reversed the said judgment of this court and remanded the case. In accord with that remand, this court now affirms the judgment of the Circuit Court of Mobile County.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    Sarah Frances WILSON, et al. v. CENTRAL FOUNDRY COMPANY, et al.
    Civ. 2542.
    Court of Civil Appeals of Alabama.
    Aug. 26, 1981.
    Rehearing Denied Sept. 30, 1981.
    John A. Owens and Eugene A. Beatty of Phelps, Owens, Jenkins, Gibson & Fowler, Tuscaloosa, for appellants.
    William J. Donald and Herschel T. Ham-ner, Jr. of Zeanah, Donald & Hust, Tuscaloosa, for appellees.
   WRIGHT, Presiding Judge.

The issue in this case is whether an employee or his dependents may sue the employer’s workmen’s compensation insurer directly for benefits under a policy that specifically authorizes such direct action.

The employee’s widow filed suit against the employer for workmen’s compensation and against the insurers on a third party beneficiary theory based on the insurance contract. The trial court granted motions to dismiss to both insurance companies, and transferred the action against the employer to Tuscaloosa County. This appeal concerns the dismissal of the direct action against the insurance companies.

This court in Read News Agency, Inc. v. Moman, 383 So.2d 840 (Ala.Civ.App.), cert. denied, 383 So.2d 847 (Ala.1980), held that an employee or his dependent may pursue a direct action against the insurer only under § 25-5-8(f)(4) Code (1975). The policy of insurance between the employer and its insurer in that ease contained the same provisions as to direct action as the policy in this case. We consider that case to have settled the issue of direct action under the statute.

Mrs. Wilson relies also on a third party beneficiary theory, contending that the direct action against the insurers is not a workmen’s compensation claim, but a common law suit for breach of contract. Assuming without deciding that an employee is a third party beneficiary, we fail to see an actionable breach. The insurer cannot be liable under the terms of the policy until the employee has established his workmen’s compensation claim against the employer. The policy is written to cover the compensation and other benefits required of the insured (the employer) by the Workmen’s Compensation Law and to pay promptly when due. No amount can be due directly from the insurer since the workmen’s compensation claim against the employer must determine the extent of that liability.

The employee’s widow also claims that if §§ 25-5-8(f)(4), -53 do bar a direct claim against the insurer, these statutes are unconstitutional under Ala.Const. of 1901, art. I, § 13. That section says:

That all courts shall be open; and that every person for any injury done him, in his lands, goods, person, or reputation, shall have a remedy by due process of law; and right and justice shall be administered without sale, denial or delay.

Mrs. Wilson contends that her right to sue under the insurance contract has been taken and no substitute has been given in return. We disagree. Recovery from either the employer or the insurer must be in the form of workmen’s compensation benefits. These are recoverable only under the workmen’s compensation laws of this state. There is no cause of action against the employer, and thus its insurer, except that given by statute. By the terms of the policy itself, Mrs. Wilson could recover no greater amount from the insurance company than from the employer. Consequently, she has lost nothing. Again, we say that her entire argument is founded upon the premise that she is a third party beneficiary. We do not decide that here.

Appellant’s arguments fail to meet the heavy burden to show § 25-5-53 or § 25-5 — 8(f)(4) unconstitutional. To be proven unconstitutional, such must be shown beyond a reasonable doubt. See, Johnston v. Alabama Public Service Commission, 287 Ala. 417, 252 So.2d 75 (1971); and Hester v. Ridings, 388 So.2d 1218 (Ala.Civ.App.1980). Also, this court must indulge every reasonable presumption in favor of the validity of the acts of the legislature. Allen Trucking Company v. Adams, 56 Ala.App. 478, 323 So.2d 367, writ quashed, 295 Ala. 390, 323 So.2d 373 (1975).

This burden has not been met and this cause is therefore affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: SHORES, Justice.

text:
    Ex parte Sarah Frances WILSON. (re Sarah Frances WILSON, et al. v. CENTRAL FOUNDRY COMPANY, et al.)
    81-26.
    Supreme Court of Alabama.
    March 5, 1982.
    Rehearing Denied April 9, 1982.

      John A. Owens of Phelps, Owens, Jenkins, Gibson & Fowler, Tuscaloosa, for petitioner.
    William J. Donald and Herschel T. Ham-ner, Jr. of Zeanah, Donald & Hust, Tuscaloosa, for respondents.
   SHORES, Justice.

We granted certiorari in this case because it directly raises an issue of first impression never decided by this Court, viz.:

Is a provision in a policy providing workmen’s compensation which allows a direct action on the policy by the injured employee valid? Or, stated differently, does any provision of the Workmen’s Compensation Act invalidate a contractual provision allowing a direct action? We hold that the contractual provision is valid and enforceable and is not invalidated by the Workmen’s Compensation Act.

A widow filed suit for workmen’s compensation death benefits against her deceased husband’s employer and the workmen’s compensation carrier. The policy provides, in pertinent part:

“Coverage A — Workmen’s Compensation “To pay promptly when due all compensation and other benefits required of the insured by the workmen’s compensation law.”

Condition 8 of the policy provides as follows:

“Statutory provisions — The company shall be directly and primarily liable to any person entitled to the benefits of the workmen’s compensation law under this policy. The obligations of the company may be enforced by such person, or for his benefit by any agency authorized by law, whether against the company alone or jointly with the insured. Bankruptcy or insolvency of the insured or of the insured’s estate, or any default of the insured, shall not relieve the company of any of its obligations under coverage A.”

In Read News Agency, Inc. v. Moman, 383 So.2d 840 (Ala.Civ.App.1980), cert. denied, 383 So.2d 847 (Ala.1980), the Court of Civil Appeals held that an employee or his dependent may pursue a direct action against the insurer only under § 25-5-8(f)(4), Ala.Code 1975. The Court noted in this case that the policy provision as to direct action was identical to the provision before it in Read. Certiorari was denied in Read so, understandably, the Court of Civil Appeals felt bound by its decision in that case.

Why certiorari was denied is not stated, but the petitioner here correctly points out that, although Read so held, the petition for certiorari in Read was not based on the direct action issue and, further, that the issue was not material in Read. In this case, it is the only issue, and it is a crucial one. Therefore, we address it and reverse the Court of Civil Appeals, 414 So.2d 962.

Presiding Judge Wright noted in his dissent in Read that § 25-5-53, Ala.Code 1975, which provides that “[t]he rights and remedies herein granted to an employee shall exclude all other rights and remedies ... at common law, by statute or otherwise on account of said ... death,” does not exclude a direct action against the insurer under a policy provision which expressly allows such suits. As he correctly noted:

“There is no reason why it [§ 25-5-53] should be construed to restrict an agreement between the employer and his insurer permitting the employee to sue the insurer directly if he so desires.
“To do so does not conflict with the intent and purpose of § 25-5-8(f)(4). That statute provides a procedure for the benefit of the employer by which he may [be] released not only as a party but from further liability except in the event of insolvency of the insurer or insufficiency of the amount of coverage. The contractual provision allowing direct suit against the insurer is not binding upon the claimant. If he chooses to take advantage of it, he does not thereby release the employer from liability. To sue the insurer directly does not affect the claimant’s right or remedy. He still must pursue the right and remedies provided by the act. The claimant is better off if he sues an insurer directly as beneficiary of the provisions of the policy than he would be having to sue the insurer if the employer forced him to by complying with § 25-5-8(f)(4).”

383 So.2d at 846-847.

Although there are statements by the Court of Civil Appeals in Thomason v. Midland Insurance Company, 380 So.2d 902 (Ala.Civ.App.1980), and in Den-Tal-Eze Manufacturing Company v. Gosa, 388 So.2d 1006 (Ala.Civ.App.1980), to the effect that § 25-5-8(f)(4) provides the only instance where a direct action may be brought and that, in the absence of a statute authorizing a direct suit against the employer’s insurer, no such right exists, neither of those cases, however, refers to a provision in the policy expressly allowing such actions.

We hold that, where the policy expressly provides, as does the one before us, for a direct action by the employee or his dependent against the insurer, neither § 25-5-53 nor § 25-5-8(f)(4) precludes such suits. In doing so, we endorse Presiding Judge Wright’s dissenting opinion in Read, supra.

The judgment of the Court of Civil Appeals is reversed.

REVERSED AND REMANDED.

All the Justices concur.

       “(4) Direct Actions Against Insurers. —If the employer shall insure to his employees the payment of the compensation provided by this chapter and according to the full benefits thereof and with full coverage under this chapter in a corporation or association authorized to do business in the state of Alabama and approved by the director of the department of insurance of the state of Alabama, and if the employer shall post a notice or notices in a conspicuous place or in conspicuous places about his place of employment, stating that he is insured and by whom insured, and if the employer shall further file a copy of such notice with the department of insurance, then, and in such case, any civil actions brought by an injured employee or his dependents shall be brought directly against the insurer, and the employer, or insured, shall be released from any further liability. In case of insolvency or bankruptcy of said insurance company or in case it cannot be reached by due diligence by process in this state, the employer shall not be released from liability under the provisions of this chapter. Should any recovery be had in excess of the amount of the insurance carried, the employer shall be liable for such excess. The return of any execution upon any judgment of any employee against any such insurance company, unsatisfied in whole or in part, shall be conclusive evidence of the insolvency of such insurance company for the purposes of this chapter, and, in the event of adjudication of bankruptcy or insolvency of any such insurance company by any court of competent jurisdiction, proceedings may be brought by the employee against the employer in the first instance or against such employer and insurance company jointly or severally or in any pending proceeding against any insurance company, and the employer may be joined at any time after such adjudication.”


text:
    Sarah Frances WILSON, et al. v. CENTRAL FOUNDRY COMPANY, et al.
    Civ. 2542.
    Court of Civil Appeals of Alabama.
    May 19, 1982.
   WRIGHT, Presiding Judge.

The judgment of the Court of Civil Appeals, 414 So.2d 962, issued on August 26, 1981, affirming the judgment of the Circuit Court of Pickens County was reversed by judgment of the Supreme Court of Alabama, 414 So.2d 963 on March 5, 1982, and the matter remanded. In accord with such remand, the judgment of the Circuit Court of Pickens County, Alabama, heretofore entered in this cause dismissing plaintiffs’ suit against Employers Casualty Company and Employers National Insurance Company and transferring the case to Tuscaloosa County is hereby reversed and set aside. The matter is remanded to the said circuit court with direction to reinstate said case and proceed according to law.

REVERSED AND REMANDED WITH DIRECTIONS.

BRADLEY and HOLMES, JJ., concur.


author: BRADLEY, Judge.

text:
    Robert BRITTON, et al. v. Billy Ray JACKSON.
    Civ. 2877.
    Court of Civil Appeals of Alabama.
    Nov. 12, 1981.
    Rehearing Denied Dec. 23, 1981.
    Certiorari Quashed, June 11, 1982 Alabama Supreme Court 81-304.

      Charles A. Graddick, Atty. Gen., and Philip C. Davis, Asst. Atty. Gen., for appellants.
    Billy Ray Jackson, pro se.
   BRADLEY, Judge.

This appeal arises out of the denial of military leave by the Alabama Board of Corrections.

Billy Ray Jackson was employed by the Alabama Board of Corrections as a Correctional Counselor I. He worked five days a week with two days off. During all times pertinent to this appeal his five-day work week included Saturday and Sunday.

Jackson is a member of a military reserve unit which requires one weekend a month of training as well as two weeks of training during the summer.

In May of 1979 Jackson made a written request for eleven days of military leave from his job. This request was granted. He later made oral requests for military leave during his weekend training sessions. These requests were denied on the grounds that military leave under Code 1975, § 31-2-13 did not include weekend training sessions.

As a result, Jackson filed suit against Robert Britton and nine others contending that he was entitled to twenty-one days of military leave. Five of these defendants were granted a summary judgment.

The other defendants also filed a motion for summary judgment. Jackson filed an affidavit opposing this motion which was treated as a motion for summary judgment by the trial court. On May 2,1981 the trial court entered an interim order granting Jackson’s motion.

The parties stipulated the days on which Jackson was denied military leave. On June 22,1981 after holding a hearing on the merits, the trial court entered a final order holding that the plaintiff was entitled to twenty-one days of military leave a year, and awarding Jackson back pay in the sum of $1,322.60. As a result of this ruling defendants have appealed to this court.

Code 1975, § 31-2-13 provides the following:

(a) Military leave of absence. — All officers and employees of the state of Alabama, or of any county, municipality or other agency or political subdivision thereof ... who shall be active members of the Alabama national guard, naval militia or the Alabama state guard organized in lieu of the national guard, or of any other reserve component of the armed forces of the United States, shall be entitled to military leave of absence from their respective civil duties and occupations on all days that they shall be engaged in field or coast defense or other training or on other service ordered under the provisions of the National Defense Act, or of the federal laws governing the United States reserves, without loss of pay, time, efficiency rating, annual vacation or sick leave, but no such person granted such leave of absence with pay shall be paid for more than 21 working days per calendar year .... [Emphasis added.]

Section 31-2-13 provides for “other training” as well as for “field or coast defense” training. We have not been given any valid reason why “other training” does not include so-called “weekend drills” when such training sessions are just as important as the extended summer training sessions. A member of the National Guard or Military Reserves cannot remain a member of those organizations unless he or she participates in a certain number of weekend training sessions each year.

The obvious intent of the legislature clearly is to encourage state employees to join military units. The statute provides twenty-one days of military leave regardless of vacation or sick time. If the legislature had not intended for weekend training to be included, the statute could have easily so stated. See generally City of Birmingham v. Hendrix, 257 Ala. 300, 58 So.2d 626 (1952).

We, therefore, conclude that weekend training drills are included within the meaning of § 31-2-13 and a state employee who attends a weekend training session which occurs during his normal work week is entitled to leave with pay up to a total of twenty-one days.

Appellant also argues that to permit Jackson to be paid for weekend drills that occur during his normal work week unfairly penalizes those employees who do not work on weekends and thereby can claim no pay for their weekend drills. We disagree.

The majority of state, county, and municipal employees are not required to work on the weekends as a part of their regular duties. Jackson is in the minority of employees required to work on weekends as a part of their regular duties. Nevertheless, we can perceive of no substantial prejudice to those employees who are not required to work on weekends, because they are still eligible to receive twenty-one days of military leave should they wish to engage in military training sessions during their regular work week. If there is any prejudice, it would be against Jackson because due to his unusual regular work schedule he will be required to use part of his twenty-one days for weekend drills, whereas the employee who is not required to work on weekends can use his twenty-one days in other types of military training.

We, therefore, find that Jackson should be allowed to take twenty-one days of paid military leave regardless of whether it is for weekend training. The judgment below is affirmed.

AFFIRMED.

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


text:
    Eunice Irene GILLEY v. Tom Wright GILLEY.
    Civ. 3017.
    Court of Civil Appeals of Alabama.
    April 14, 1982.
    Rehearing Denied May 19, 1982.

      Eddie L. Lewis, Cullman, for appellant. Stephen J. Pettit of St. John & St. John, Cullman, for appellee.
   WRIGHT, Presiding Judge.

Eunice Irene Gilley and Tom Wright Gil-ley were married in 1938. Two sons, now forty and thirty-one years old, were born of the marriage. Mr. Gilley filed a complaint for divorce on March 3, 1980, based on incompatibility of temperament and irretrievable breakdown of the marriage. He also set out the property jointly owned by the parties and asked that it be sold and the proceeds divided. Mrs. Gilley answered on April 2, 1980, and counterclaimed for divorce on the grounds of incompatibility of temperament. She asked for division of property, and averred that the homeplace should be awarded to her and the remainder of the joint property sold and the proceeds equitably divided. Mrs. Gilley also asked for certain personal property, the Cullman Ice Factory business, $3,000 per month alimony and an attorney’s fee. In addition to the counterclaim, Mrs. Gilley cross claimed against her son, Tommy Gilley, alleging that she, her husband and sons were partners in a construction business known as the Cullman Ice Factory and asking for certain relief concerning that relationship. The husband and the son, Tommy Gilley, responded to the counterclaim and cross claim, respectively. Discovery on the various claims ensued, and on October 8, 1980, Mr. Gilley moved for summary judgment of divorce and severance of Mrs. Gilley’s counterclaim for separate trial.

Partial summary judgment was granted on January 6, 1981, divorcing Tom Wright Gilley and Eunice Irene Gilley. Testimony on the remaining claims was heard ore ten-us. The final judgment as to all issues was entered on September 11, 1981, and divided the Gilleys’ property as follows:

Mrs. Gilley: The homeplace including the home and approximately sixteen acres of land; one-half the net proceeds of the sale of the real property known as the Ice House property; her clothes and personal belongings; all furniture and furnishings, appliances and equipment in the home; the 1974 Cadillac she was driving; a mowing machine; all bank accounts and monies in safety deposit boxes (about $24,000); $1,000 given to her by Mr. Gilley on December 11, 1980; and about $4,400 from the 1980 joint tax return of the parties.

Mr. Gilley: Any title or interest the parties have in the property known as (1) Cato-ma, (2) Smith Lake, (3) Northwood and (4) Gilleyville; one-half the net proceeds of the real property known as the Ice House property; his clothes and personal belongings; a 1978 Chevrolet automobile, a boat, a Winnebago motor home, the Ice House vehicles and equipment, including a 1976 orange pickup truck, an ice box delivery rig, any remaining ice boxes, a backhoe, a little John Deere tractor, an old Ford semi-tractor and trailer, and a dump truck; and any title or interest of the parties in any partnership, corporation or any entity operated by Mr. Gilley individually.

No alimony was provided. From that judgment, Mrs. Gilley appeals. On appeal, she contends that the trial court abused its discretion in its property division and by its failure to grant alimony. She also contends that the trial court erred in its rulings concerning certain evidence.

The first issue before us is whether the trial court abused its discretion as to the division of property. The division of property in a case heard ore tenus is within the sound discretion of the trial court, and will be disturbed on appeal only if it is so unsupported by the evidence as to be clearly unjust, plainly and palpably wrong. Coffelt v. Coffelt, 390 So.2d 652 (Ala.Civ.App.1980). The trial court’s judgment is presumed correct. McLain v. McLain, 384 So.2d 114 (Ala.Civ.App.1980). A property division does not have to be equal, only equitable, and graduated according to the nature of the case. Monk v. Monk, 386 So.2d 753 (Ala.Civ.App.), cert. denied, 386 So.2d 756 (Ala.1980). We find no error as to the property division.

The next issue is the failure of the trial court to award alimony. At this point, we must delve further into the circumstances of the parties. Factors to be considered in determining whether to award alimony are (1) the financial circumstances of the parties, (2) their standard of living during the marriage, (3) their ages, (4) health, (5) length of marriage, (6) sources of their common property and (7) in proper circumstances, conduct of each with reference to the cause of divorce. Schwaiger v. Schwaiger, 392 So.2d 1213 (Ala.Civ.App.1981).

Mrs. Gilley is fifty-nine years old and Mr. Gilley is sixty-six years old. The couple had been married for more than forty years at the time of divorce. Both were apparently in good health. Mrs. Gilley achieved only a tenth-grade education and has never been employed outside the home other than in a family business. She has no special skills and apparently no income. Mr. Gilley, on the other hand, draws more than $600 per month Social Security. He also works forty hours per week at $3.35 per hour as a night watchman for a corporation owned in part by his son, Tommy. He also is well versed in the construction business, and has several saleable lots as a result of the property division. Apparently, his prospects for the future are much brighter than those of Mrs. Gilley.

Like the property division, the award of alimony is within the sound discretion of the trial court. Armstrong v. Armstrong, 391 So.2d 124 (Ala.Civ.App.1980). However, that discretion is judicial, not arbitrary, and is subject to review on appeal. Mack v. Mack, 389 So.2d 1156 (Ala.Civ.App.1980). We find that the trial court abused its discretion by not awarding alimony or at least reserving such decision for a later time. Warren v. Warren, 386 So.2d 1166 (Ala.Civ.App.1980). The refusal of alimony in any original divorce decree forecloses any future order regardless of need that might arise. Gargis v. Gargis, 367 So.2d 476 (Ala.Civ.App.1978), cert. denied, 367 So.2d 479 (Ala.1979). In order to live, the wife apparently must expend capital assets. Those are not so great as to survive long, particularly in the event of illness or other emergency. Under these circumstances, the trial court erred in severing all possible chance of assistance by the husband. Cinader v. Cinader, 367 So.2d 487 (Ala.Civ.App.1979).

The last issues involve the propriety of certain evidentiary rulings by the trial court. In neither instance was the matter so material as to support a reversal. We do not deem it necessary to determine the correctness of the ruling of the trial court. Rule 46, A.R.A.P.

The judgment is due to be affirmed in part; reversed in part and remanded with directions that the trial court either reserve the right to set alimony at a future date or determine a reasonable amount of alimony to be paid to Mrs. Gilley each month.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH DIRECTIONS.

BRADLEY and HOLMES, JJ., concur.

      . Attorney’s fees of $3,500 and $2,500 were to be paid to the husband’s and wife’s attorneys respectively, as well as court costs, prior to division of these proceeds.

      . It is clear that “Cullman Ice Factory” encompassed a home construction business. It is unclear, however, whether the ice making business itself was within that partnership or separate. Any title or interest in any partnership was given to Mr. Gilley, and presumably that portion of the trial court’s order rendered Mrs. Gilley’s prayer for accounting and division of profits moot.

      . We note that Tommy Gilley, the parties’ son, was given all right, title and interest to one piece of machinery that was originally bought by the partnership of the father and two sons. See footnote 2 for explanation as to the rest of the cross claim.

      . This denotes the real property in downtown Cullman which housed the actual ice making factory and is not to be confused with the “Cullman Ice Factory,” apparently a partnership.


author: HOLMES, Judge.

text:
    Hubert HENDERSON v. Larry HANSON, as Assignee of First National Bank of Alexander City.
    Civ. 3091.
    Court of Civil Appeals of Alabama.
    April 21, 1982.
    Rehearing Denied May 19, 1982.

      Ruth S. Sullivan, Dadeville, for appellant.
    Tom Radney of Radney & Morris, Alexander City, for appellee.
   ON REHEARING

HOLMES, Judge.

This court’s original opinion dated March 24, 1982 is withdrawn and the following is substituted therefor:

The plaintiff, Larry Hanson, as assignee of the First National Bank of Alexander City (Bank), sued the defendant, Hubert Henderson, on a promissory note.

The trial court entered a partial summary judgment in favor of the plaintiff, stating in pertinent part:

[T]he Plaintiff is entitled to recover a deficiency judgment against the Defendant. The amount of such judgment cannot be determined at this time, and will be determined in later proceedings in this case.”

Thereafter, the defendant filed a counterclaim against the plaintiff alleging conversion, breach of contract, and violation of section 7-9-501, Code of Alabama 1975.

The issues presented in the counterclaim and the amount of damages recoverable for the deficiency judgment were tried by a jury.

The jury returned a verdict in favor of the plaintiff in the amount of $5,508.82. The jury returned a verdict in favor of the defendant on the counterclaim in the amount of $262.50. The trial court entered a judgment against the defendant in the amount of $5,246.32.

The defendant’s motion for a JNOV or in the alternative a new trial was denied and the defendant appeals.

The following pertinent facts appear in the record:

The defendant purchased a truck from the plaintiff. The defendant financed the truck by signing a promissory note payable to the Bank in the amount of $18,288.72 and pledged the truck as collateral.

Both the plaintiff and an officer of the Bank testified that the plaintiff co-signed this note. The copy of the note attached to the complaint bears the signatures of both the plaintiff and the defendant, although the copy of the note introduced at trial merely contains the defendant’s signature. The defendant testified he had no knowledge that the plaintiff had co-signed the note.

Pursuant to the terms of the note, the defendant was to make payments to the Bank on the first day of each month. The first payment was made on July 1. The record indicates the payments from August through January were all delinquent. No payment was made in February.

A witness from the bank testified that the defendant was contacted several times concerning the late payments. According to the Bank officer, the defendant informed the Bank in February that he could not make the payments, and the defendant would put the truck where the Bank could pick it up. When the Bank advised the plaintiff of the defendant’s actions, the plaintiff himself contacted the defendant concerning the truck.

The defendant then parked the truck in front of a service station. The plaintiff contacted several parties about buying the truck. One witness testified he offered the plaintiff $5,500 for the truck. Another witness said he offered $6,000. The plaintiff, without informing the defendant, eventually accepted an offer of $8,000 from Wyatt Motley. The plaintiff allowed Motley to take the truck to Motley’s home for several days before completing the sale.

Several witnesses, including Motley, testified the truck was in poor mechanical condition. These witnesses noted that the engine needed repairs and the tires should be replaced. The defendant disputed this testimony.

Motley paid the Bank $8,000 for the truck. This sum was credited to the defendant’s promissory note, leaving an outstanding balance of $5,508.82. The plaintiff, claiming the Bank had assigned him the note, filed the instant action against the defendant for the balance due on the note.

The defendant, through able counsel, contends on appeal that the trial court erred in granting a partial summary judgment because the plaintiff had no interest in the note. Additionally, the defendant contends the jury verdict is against the great weight of the evidence.

We will first consider whether the trial court erred in granting the partial summary judgment.

An order granting a partial summary judgment provides an opportunity for a trial court to, in effect, make a pretrial order to control and simplify the issues remaining to be litigated. Shades Ridge Holding Company v. Cobbs, Allen & Hall Mortgage Company, 390 So.2d 601 (Ala.1980). To decide an appeal from a summary judgment, this court looks to the same factors the trial court considered in ruling on the motion. Chiniche v. Smith, 374 So.2d 872 (Ala.1979). In a ruling on a partial summary judgment, rule 56(d) ARCP provides that:

If on motion under this rule judgment is not rendered upon the whole case or for all the relief asked and a trial is necessary, the court at the hearing of the motion, by examining the pleadings and the evidence before it and by interrogating counsel, shall if practicable ascertain what material facts exist without substantial controversy and what material facts are actually and in good faith controverted. It shall thereupon make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing such further proceedings in the action as are just. Upon the trial of the action the facts so specified shall be deemed established, and the trial shall be conducted accordingly.

We have reviewed the pleadings and the affidavits in the instant action and conclude there was no issue of material fact concerning the plaintiff’s interest in the note.

Attached to the plaintiff’s complaint was a copy of the promissory note showing both the plaintiff and defendant as co-signers. The amended complaint contained a copy of the Bank’s endorsement of the note to the plaintiff. The plaintiff stated in his affidavit in support of his motion for summary judgment that the Bank had assigned the note to him.

The defendant merely alleged in his pleadings that the plaintiff did not have any interest in the promissory note. In his affidavit in opposition to the motion for summary judgment, the defendant simply claimed he did not “believe” the plaintiff had any interest in the lawsuit and that the pleadings indicated that the note had not been assigned to the plaintiff. Mere belief is not equivalent to knowledge, and a statement in an affidavit that the affiant verily believes will not satisfy the requirements of rule 56(e). Oliver v. Brock, 342 So.2d 1 (Ala.1977).

After a careful review of the pleadings and affidavits, we agree with the trial court that there was no genuine issue of material fact concerning the plaintiff’s interest in the note.

We find no merit in the defendant’s contention that the plaintiff had no interest in the note because the Bank failed to write the endorsement “... on the instrument or on a paper so firmly affixed thereto as to become a part thereof.” § 7-3-202(2), Code of Alabama 1975. The endorsement which was filed with the plaintiff’s amended complaint states in part:

For value received we hereby transfer and assign the attached note and security interest to Larry Hanson.... ” (Emphasis supplied.)

We find no evidence which indicates the above endorsement was insufficiently attached to the note so as to render it ineffective for negotiation pursuant to section 7— 3-202. Put another way, the note was properly assigned to the plaintiff by the endorsement so that the plaintiff became entitled to sue upon the note. Hence, the trial court did not err in entering a partial summary judgment entitling the plaintiff to recover a deficiency judgment against the defendant.

The defendant’s second contention is that the jury verdict was against the great weight of the evidence. Specifically, the defendant contends the jury failed to award adequate damages on the defendant’s counterclaim.

We initially note a jury verdict is presumed to be correct and will not be set aside on the ground of inadequacy unless the amount is so inadequate as to plainly indicate the verdict was the result of passion, prejudice or improper motive. Free v. Palmer, 373 So.2d 1100 (Ala.Civ.App.), cert. denied, 373 So.2d 1103 (Ala.1979). This presumption is strengthened when, as is the case here, the trial court has denied a new trial motion. Harrison v. Mitchell, 391 So.2d 1038 (Ala.Civ.App.1980).

In the instant action, the defendant contends the plaintiff disposed of the collateral (the truck) in a commercially unreasonable manner thereby entitling the defendant to damages under section 7-9-507(1), Code of Alabama 1975. This section provides:

If it is established that the secured party is not proceeding in accordance with the provisions of this part, disposition may be ordered or restrained on appropriate terms and conditions. If the disposition has occurred the debtor ... has a right to recover from the secured party any loss caused by a failure to comply with the provisions of this part....

The procedure for disposing of collateral, in this instance, is controlled by section 7-9-504(3), Code of Alabama 1975, which requires in pertinent part:

Disposition of the collateral may be by public or private proceedings and may be made by way of one or more contracts. Sale or other disposition may be as a unit or in parcels and at any time and place and on any terms but every aspect of the disposition including the method, manner, time, place and terms must be commercially reasonable.... [Reasonable notification of the time and place of any public sale or reasonable notification of the time after which any private sale or other intended disposition is to be made shall be sent by the secured party to the debtor....

Whether the plaintiff disposed of the truck in a commercially reasonable manner in compliance with above provisions is a question for the jury. Wells v. Central Bank of Alabama, N.A., 347 So.2d 114 (Ala.Civ.App.1977). If a secured party failed to conduct the sale in a commercially reasonable manner, he is still entitled to recover for a deficiency judgment, but the defaulting party is entitled to a setoff for damages incurred by the secured party’s actions. Valley Mining Corp. v. Metro Bank, 383 So.2d 158 (Ala.1980).

The defendant contends the plaintiff acted in a commercially unreasonable manner by failing to give the defendant notice of the sale of the truck. Consequently, the defendant contends he incurred substantial damages.

There is evidence, however, from which the jury could have inferred the defendant had notice that the truck would be sold. The Bank officer testified that the defendant said he would put the truck where the Bank could get it. The Bank relayed this information to the plaintiff, whereupon the plaintiff went to the defendant’s house and spoke to the defendant. The plaintiff did not, however, inform the defendant that the truck was going to be sold to Motley.

Finally, as indicated, the record reflects that Motley paid $8,000 for the truck. That was the highest offer made by any of the prospective purchasers.

With these facts before it, the jury determined the defendant had been damaged in the amount of $262.50. The trial court set off this amount against the damages awarded the plaintiff for the deficiency judgment.

We cannot say on these facts that the jury’s verdict was inadequate. The indication that the defendant had some notice of an impending sale of the truck, plus the fact that the truck was sold to the highest bidder, supports the jury’s award of damages.

In that the trial court did not err in granting a partial summary judgment and that the jury verdict was not against the great weight of the evidence, this case is due to be affirmed.

APPLICATION FOR REHEARING GRANTED.

OPINION SUBSTITUTED.

AFFIRMED.

WRIGHT, P. J., and BRADLEY, J., concur.


text:
    SECURITY ENGINEERS, INC. v. DEPARTMENT OF INDUSTRIAL RELATIONS and Lynn Hicks.
    Civ. 2999.
    Court of Civil Appeals of Alabama.
    May 19, 1982.

      Alexander W. Jones, Jr. of Pritchard, McCall, Jones, Spencer & O’Kelley, Birmingham, for appellant.
    George Cocoris, Gen. Counsel, and J. R. Vaughan, Asst. Gen. Counsel, State of Ala. Dept, of Industrial Relations, Montgomery, for appellees.
   WRIGHT, Presiding Judge.

This is an unemployment compensation case. The appeals referee’s grant of full benefits was affirmed by the Board of Appeals. Pursuant to § 25-4-95, Code (1975), the employer appealed to the Circuit Court of Walker County. From the trial court’s order granting full benefits to claimant, the employer appeals to this court.

The record shows that a stipulation was entered, that the claimant was covered for benefits and was available for work during the period of his claim. The trial court proceeded on the sole issue of whether claimant voluntarily left his employment without good cause. The evidence was conflicting. The employer asserted that claimant left his employ to work as an insurance agent. Claimant testified that he left because of a cutback in his hours. At the close of the evidence the following exchange took place:

COURT: Well, I’m sorry, gentlemen, I am not convinced of anything. So somebody wins and somebody loses, I guess. I don’t know why he quit. Now, who has the burden?
MR. VAUGHN: The burden of proof is upon the appellant.
COURT: O.K., they lose then.

The court subsequently entered an order granting claimant full benefits.

The issue on appeal is whether the trial court erred to reversal in placing the burden upon the employer to prove that claimant was disqualified from benefits for voluntarily leaving his work without good cause.

Claimant contends that as he won a favorable decision before the Board of Appeals, the employer, as “appellant,” has the burden in the circuit court to prove that the claimant is disqualified. Although the employer brought the action to the circuit court by way of “appeal,” the applicable statute explicitly provides for a trial de novo. Section 25-4-95, Code (1975) provides in pertinent part:

Within 10 days after the decision of the board of appeals has become final, any party to the proceeding including the director who claims to be aggrieved by the decision may secure a judicial review thereof by filing a notice of appeal in the circuit court.... Trial in the circuit court shall be de novo.

As appeal is to a trial de novo, there is not a review on appeal, but in fact, another trial. Department of Industrial Relations v. Jaco, 337 So.2d 374 (Ala.Civ.App.1976). In the instant case the employer’s appeal for a trial de novo to the circuit court vacated the decision of the Department’s Board of Appeals. In its review, the circuit court does not affirm or reverse the decision of the Board, but instead renders a new, distinct and independent judgment as may be required by the merits shown on the trial. State Department of Industrial Relations v. Page, 362 So.2d 263 (Ala.Civ.App.1978). The employer’s status as “appellant” before the circuit court, therefore, does not shift the burden of proof.

A claimant has the burden of proof to establish his eligibility for unemployment compensation benefits. State, Department of Industrial Relations v. Thompson, 359 So.2d 1158 (Ala.Civ.App.1978). The claimant assumes the risk of non-persuasion. State, Department of Industrial Relations v. Downey, 380 So.2d 906 (Ala.Civ.App.1980). Where, as here, it is undisputed that claimant voluntarily terminated his employment, he bears the burden of proving that the termination was for good cause connected with his work. Davis v. Hoggle, 392 So.2d 1190 (Ala.Civ.App.1980), cert. denied, 392 So.2d 1194 (Ala.1981).

Claimant argues that the appeal to this court is from the trial court’s final order of October 1, 1981. Such order contained no reference to the burden of proof, but merely stated that claimant is entitled to full benefits. It is well settled that when an unemployment compensation case is heard orally before the court sitting without a jury, the court’s findings are presumed correct. Payne v. Director of Department of Industrial Relations, 405 So.2d 1322 (Ala.Civ.App.), cert. denied, 405 So.2d 1324 (Ala.1981).

In this case, however, the trial judge stated in the record at the end of testimony that he was “not convinced of anything.” He then proceeded to toss a mental coin to determine a winner. The side labeled “appellant” was declared the loser because “appellant” was thought by the court to bear the burden of proof. That thought was erroneous. That error was the stated basis of the court’s judgment. Therefore the judgment cannot stand. If claimant has not carried the burden of establishing his qualification for compensation to the satisfaction of the court, judgment must be against him and not his employer.

We therefore reverse and remand this cause to the trial court for further proceedings not inconsistent with this opinion.

REVERSED AND REMANDED WITH DIRECTIONS.

BRADLEY and HOLMES, JJ., concur.


text:
    Paul John TAORMINA, Jr. v. James C. MATHEWS, d/b/a James C. Mathews Realty Company.
    Civ. 3099.
    Court of Civil Appeals of Alabama.
    May 19, 1982.

      J. Paul Whitehurst and Walter Henley, Northport, for appellant.
    O. S. Burke, Jr., Marion, for appellee.
   WRIGHT, Presiding Judge.

The issue in this case is whether the trial court abused its discretion in ordering a new trial on the ground that the jury’s verdict was excessive.

This cause arose out of the sale of a home owned jointly by Paul John Taormina, Jr., appellant herein, and his former wife, Sandra Lee Taormina. The home was listed for sale with James C. Mathews d/b/a James C. Mathews Realty Company, appel-lee herein, at a price of $24,500. Betty J. and Otis Moore signed a contract to purchase the home for $26,500. The price was adjusted for certain repairs. Simultaneously, Mr. Taormina bought the Moore’s mobile home, which was also listed for sale through Mr. Mathews. Mr. Mathews arranged financing for Mr. Taormina on the mobile home, the sale was completed and Mr. Taormina received a bill of sale. The model year on the UCC-1 filed by the bank and the installment sales contract was 1973, but the bill of sale said 1971. Mr. Taormina testified that the mobile home was represented by Mr. Mathews to be a 1973 model. There was also evidence that the sales price was $4,700 instead of $6,700. The sale of the home was never closed, although occupied by the Moores. The Taorminas never executed a deed to the Moores.

The Taorminas brought suit against Betty J. Moore, the estate of Otis Moore, and James C. Mathews d/b/a James C. Mathews Realty Company. Betty J. Moore in-terpleaded money into court to pay for the home. She received a register’s deed to the property. The United States of America, which held a first mortgage on the home through the Farmer’s Home Administration, was awarded that money. Mrs. Moore assigned all her rights and claims against Mr. Mathews to the Taorminas, and was dismissed from the suit with prejudice. Various counterclaims and cross claims by the parties are not involved here.

We are concerned here with the claim of Mr. Taormina against defendant James C. Mathews, d/b/a James C. Mathews Realty Company only. The jury was instructed on breach of contract, legal fraud, misrepresentation, deceit, and punitive damages. The jury returned a verdict in favor of Taormina for $10,000. Mathews moved for new trial, including the ground of excessive damages. The court found the verdict to be excessive by $6,500, and denied new trial conditioned on Taormina’s acceptance of a remittitur in that amount. Taormina did not accept the remittitur, thus precipitating the grant of a new trial. Taormina appeals.

The grant or refusal of a new trial is largely in the discretion of the trial court and will not be disturbed on appeal unless some legal right of the appellant has been abused. Sexton v. South Central Bell, 50 Ala.App. 450, 280 So.2d 157 (1973); McCombs v. West End Baptist Hospital, 268 Ala. 291, 105 So.2d 871 (1958). The grant of a new trial is clothed with a presumption of correctness. Central of Georgia Railway Co. v. Steed, 287 Ala. 64, 248 So.2d 110 (1971). Despite these general rules, a verdict should only be set aside for excessiveness when it is so excessive that it demonstrates bias, passion, prejudice, corruption or other improper motive or cause on the part of the jury. See, Lowe v. General Motors Corp., 624 F.2d 1373 (5th Cir. 1980). “The authority vested in courts to disturb a jury verdict on the ground of excessiveness should be exercised with great caution.” Stringfellow v. Rambo, 277 Ala. 349, 170 So.2d 494 (1965).

We find nothing in this record to indicate that the jury’s verdict was based on bias, prejudice, passion or corruption. There was evidence, if believed by the jury, to support Taormina’s claim of legal fraud and deceit with punitive damages. See Ex parte Lewis, 416 So.2d 410 (Ala.1982). See also, Ex parte Smith, 412 So.2d 1222 (Ala.1982). The jury was charged as to punitive damages without objection and there is no specific challenge to such damages in the post-trial motion. Punitive damages are left to the discretion of the jury. There is no set measurement of such damages. New trial or remittitur should not be ordered simply because in the opinion of the court the jury gave too much. Shiloh Construction Co. v. Mercury Construction Corp., 392 So.2d 809 (Ala.1980).

In view of the evidence at trial, and especially the element of punitive damages, we find that the trial court abused its discretion in remitting the jury verdict and in ordering new trial.

This cause is due to be reversed and judgment entered according to the verdict of the jury.

REVERSED AND REMANDED WITH DIRECTIONS.

BRADLEY and HOLMES, JJ., concur.

      . Mrs. Taormina was a plaintiff in this action, received a separate verdict, but accepted a re-mittitur from the trial court, and is not involved in this appeal.

      . Mr. Moore died prior to this suit.

      . The testimony was disputed as to whether the sale of the home and the mobile home were separate. There was evidence that the mobile home was taken as a “trade-in.”

      . Mrs. Taormina accepted a remittitur of $800, leaving her verdict at $2,551.


text:
    Denise GARRISON v. Johnny GARRISON.
    Civ. 3122.
    Court of Civil Appeals of Alabama.
    May 19, 1982.

      William E. Skinner, Montgomery, for appellant.
    Walter Joe James of James & Lowe, Ha-leyville, for appellee.
   WRIGHT, Presiding Judge.

This is a divorce case involving child custody and visitation rights.

The parties herein, Denise and Johnny Garrison, have been married to each other twice, the last marriage apparently beginning in late 1978. Their two-year-old daughter Melissa was born during this marriage, and Mr. Garrison legally adopted Mrs. Garrison’s eight-year-old son, Dennis. The son has a serious health problem. On August 14,1981, Mr. Garrison petitioned for temporary custody of the children alleging that the wife was suffering from a mental disorder and was not competent to have the children. He also asked for a restraining order against the wife. At the time of the petition, Mrs. Garrison was in a hospital in Birmingham. The husband’s petition was granted ex parte on the same day it was filed. Mrs. Garrison denied the allegations and requested a hearing. The husband amended his petition to include a prayer for divorce. He alleged incompatability of temperament and irretrievable breakdown of the marriage based on the wife’s infidelity and misconduct. For the four months between the temporary custody order and the hearing, Mrs. Garrison resided in Michigan with her parents, and was unemployed. The husband is employed as a foreman with Monsanto in Decatur, Alabama.

The court heard the testimony on December 10, 1981, and entered its final decree. The court found that it was in the best interest of the minor children to award their custody to Mr. Garrison. Mrs. Garrison was granted reasonable visitation, but only at the children’s residence. From that order she appeals. She contends that the trial court abused its discretion in awarding custody of the children to the husband, or in the alternative in restricting her visitation to the children’s residence.

The decision of the trial court after an ore tenus hearing is presumed correct and will only be reversed for plain and palpable abuse of discretion. Gorman v. Gorman, 392 So.2d 238 (Ala.Civ.App.1980); Keleher v. Keleher, 389 So.2d 1160 (Ala.Civ.App.1980). Child custody is within the trial court’s sound discretion. Warren v. Warren, 386 So.2d 1166 (Ala.Civ.App.1980); Marr v. Marr, 383 So.2d 194 (Ala.Civ.App.1980). The paramount consideration is the best interest of the child or children. Gandy v. Gandy, 370 So.2d 1016 (Ala.Civ.App.), cert. denied, 370 So.2d 1019 (Ala.1979). We note that the son is not Mr. Garrison’s natural child, but has been legally adopted by him. Despite this fact, it is obvious that the trial court found it in the boy’s best interest to remain with Mr. Garrison. There was ample evidence to support that decision and we find no abuse of discretion.

Visitation rights of the parties are also within the trial court’s discretion. Crane v. Crane, 392 So.2d 242 (Ala.Civ.App.1980). We find no abuse of discretion in that respect either.

We note that both custody and visitation are subject to modification upon changed circumstances at a later time. See Jernigan v. Jernigan, 335 So.2d 178 (Ala.Civ.App.1976).

No attorney’s fees are awarded on appeal.

This cause is due to be affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: BRADLEY, Judge. HOLMES, Judge

text:
    Glenda Burkett Scott WEST v. Wesley Davis SCOTT.
    Civ. 3123.
    Court of Civil Appeals of Alabama.
    May 19, 1982.
    R. Larry Bradford of Zeanah, Donald & Hust, Tuscaloosa, for appellant.
    Robert V. Wooldridge, III of Wooldridge, Wooldridge & Malone, Tuscaloosa, for ap-pellee.
   BRADLEY, Judge.

This case involves a petition to collect an arrearage in child support payments and to modify the amount of child support payments.

Glenda Scott West and Wesley Davis Scott were married on January 22,1971 and were divorced on January 11, 1977. They had one child, Jason, bom of the marriage. Custody of this child was awarded to the mother, and the father was ordered to pay to the mother $100 per month as child support.

Since this decree, both parties have remarried. The wife now has another son. The wife has quit work to devote full time to raising these children.

On September 16, 1981 the mother brought a petition asking that the father be held in contempt because he was $900 in arrears in child support payments. The mother also asked that the child support provisions be modified upwards due to changed circumstances.

At trial the mother alleged that: (1) she was no longer employed, (2) the father’s income had increased, and (3) the expenses of raising the child had increased. The father, however, argued that he and his present wife barely earned enough money to pay their current expenses. Further, he showed that the mother had quit working because her present husband earned enough to support her and the children. The husband admitted that he owed an arrearage of $900.

The trial court rendered its decree on December 15,1981. In that decree the trial court did not hold the husband in contempt; however, it did find that the husband owed a $900 arrearage plus $500 in attorneys’ fees. The court stayed the execution of this judgment, and placed the husband on a repayment schedule whereby he was to pay off this judgment by paying $25 on the 15th and 30th of each month until said judgment was paid off. The court further found that child support should be increased to $150 a month, but this would not be effective until the arrearage was paid off. Finally the court established regular visitation rights for the father. From this judgment the mother has filed a timely appeal to this court.

The mother brings two issues before this court for review: (1) whether it was error for the trial court to stay execution of the judgment for child support arrearage and attorney’s fees pending payment of the ar-rearage in installments; and (2) whether the trial court erred in ordering an increase in child support to be effective some two and one-half years in the future. We find error in both instances and reverse the judgment.

In addressing the first issue, we find the case of Osborne v. Osborne, 57 Ala.App. 204, 326 So.2d 766 (1976) to be dispositive. In that case we held that arrearages in support payments are final judgments which may be collected as any other judgment. Further, we stated that a contempt of court may be purged by making authorized payments upon past-due installments, but such an order cannot be a bar to collection of a judgment by execution, garnishment or any other legal process.

In the present case the trial court, after imposing the installment plan for satisfaction of the arrearage, specifically provided that no execution shall issue so long as the installment schedule is met. By so doing, the court clearly contravened the rule laid down- in Osborne and thus committed error.

With regard to the second issue, we find that the trial court erred in ordering an increase in child support to be effective as of the date the father’s arrearage is satisfied. In determining whether modification of child support payments is justified in a given situation, the most pertinent factor for the trial court to consider is the need of the child, coupled with the father’s financial ability to meet that need. Womble v. Womble, 56 Ala.App. 318, 321 So.2d 660 (1975). It is implicit in such rule that the court can determine only the current financial needs of the child and the present ability of the father to respond to those needs.

In the instant ease the trial court, in modifying the support decree by increasing the payments, obviously concluded that the child’s needs had increased but that the ability of the father to respond to those needs was not presently adequate, because, it postponed the effectiveness of the modification until after the payment of the ar-rearage. It is apparent that the trial court concluded that the father could not pay the arrearage installments and at the same time pay an increased amount of child support.

We said in Osborne that the installment payment of child support arrearages is not a pertinent consideration in the determination of present and future child support. Hence this aspect of the trial court’s judgment is reversed and the cause remanded for a determination of whether there have been sufficient changed circumstances to warrant a change in child support without consideration of the order for installment payment of child support arrearages.

The wife has requested an award of attorney’s fees for this appeal. We grant her request and award $350 as attorney’s fees.

REVERSED AND REMANDED WITH INSTRUCTIONS.

WRIGHT, P. J., concurs.

HOLMES, J., concurs in part and dissents in part.

HOLMES, Judge

(concurring in part, dissenting in part).

I agree with the majority’s holding on the first issue that the trial court’s order permitting the payment of the arrearage in installments cannot bar any other process for collection of judgments. Stewart v. Johnson, 401 So.2d 101 (Ala.Civ.App.1981); Osborne v. Osborne, supra.

I do not agree, however, that the trial court erred in ordering the increase in child support to be effective as of the date the arrearage is satisfied. In ordering the father to make increased child support payments, the trial court obviously concluded that the needs of the minor child had increased. Further, the trial court apparently determined that the father would have the ability to pay increased support after payment of the arrearage. I cannot find that the trial court erred in ordering the increased child support payments be delayed until the occurrence of a foreseeable, certain event, i.e., the satisfaction of the arrearage. Once the father has paid all past due support, the trial court’s order automatically provides for an increase in child support. This determination may obviate the necessity of another judicial hearing after the father has satisfied the arrear-age on whether there should be an increase in child support payments.

I do not believe our cases prevent a trial court from delaying an increase in child support until an arrearage has been satisfied. Our decision in Osborne v. Osborne, supra, stands for the proposition that a trial court cannot order a reduction in child support merely because the father has been ordered to make payments of past due support. In the instant action, there was no reduction in child support, but rather an increase in child support delayed until the arrearage had been paid. Under the facts of this case, I would find it to be within the trial court’s discretion to temporarily postpone the increased child support.

In view of the foregoing, I would reverse the trial court’s judgment on the first issue staying execution on the judgment as long as the father meets the installment schedule. I would, however, affirm the trial court’s order delaying the payments of increased child support until such time as the father satisfies the arrearage.


text:
    Robert L. LAMBERT d/b/a Lambert Food Stores, Inc. Lambert Food Stores, Inc. v. STATE of Alabama DEPARTMENT OF REVENUE and R. E. Brashears.
    Civ. 3230.
    Court of Civil Appeals of Alabama.
    May 19, 1982.

      Jack W. Torbert, Jr. of Torbert, Turn-bach & Warren, Gadsden, for appellants.
    Charles A. Graddick, Atty. Gen., and Herbert I. Burson, Jr., Chief Counsel, John H. Burgess and Charles E. Crumbley, Asst. Counsel, and Asst. Attys. Gen., for appel-lees.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This case involves a declaratory judgment action which was instituted by the appellant taxpayers in an attempt to vacate final sales tax assessments totaling in excess of $136,000. The appeal was transferred to this court by the supreme court.

The following appears from the record: The final assessment for the sales taxes was made by the Department of Revenue (Department) on May 13, 1981, copies of which were received by the taxpayers on May 18. On June 12, the taxpayers filed a pleading in the Circuit Court of Etowah County which, in toto, stated, “Come now the above listed Plaintiff(s) and Appellants and appeal from the final assessment of the Department of Revenue State of Alabama in the above styled cause and file a bill for declaratory judgment.” A copy of that instrument was not filed with the secretary of the Department until June 17, 1981.

On June 18,1981, the taxpayers amended their prior pleading so as to seek a declaratory judgment that the assessment and subsequent tax liens and executions thereon were unconstitutional because the taxpayers were not notified of the day set for the hearing by the Department and that they were thereby deprived of their rights to appear and protest against the assessment. They averred that, upon receiving copies of the final sales tax assessments by mail on May 18, they filed a motion with the Department on June 1 to set aside the final assessments because of such lack of procedural due process and to grant to them the required hearing. When no response to their motion was made by the Department, the attorney for the taxpayers contacted Mr. Brashears, the chief of the collection division of the Department, who advised the attorney that no hearing would be granted, that no appeal could be taken because the taxpayers had not appeared and protested the assessment at the time the hearing was originally set and that executions were being issued against them.

The defendants filed a motion to dismiss. The Etowah Circuit Court dismissed the taxpayers’ appeal and transferred the declaratory judgment action to the Circuit Court of Montgomery County because of a lack of proper venue thereof in Etowah County. The Montgomery court granted the defendants’ motion to dismiss the taxpayers’ action for a declaratory judgment, hence this appeal. We affirm.

The primary issue is whether, under the foregoing circumstances, an appeal was the exclusive remedy of the taxpayers.

The application and interpretation of the following sections from the Code of Alabama (1975) are in controversy.

§ 40-23-17. Notice of assessments generally; hearings; finality of assessment.
Whenever the department of revenue shall make an assessment against a taxpayer as herein provided, the department shall notify the taxpayer by registered or certified mail of the amount of such assessment, and shall notify the taxpayer to appear before the department on a day named not less than 20 days from date of such notice and show cause why such assessment should not be made final. Such appearance may be made by agent or attorney. If no showing is made on or before the date fixed in such notice, or if such showing is not sufficient in the judgment of the department, such assessment shall be made final in the amount originally fixed or in such other amount as is determined by the department to be correct. If upon such hearing the department finds the amount due to be different from that originally assessed, it shall make the assessment final in the correct amount and in all cases shall notify the taxpayer of the assessment as finally fixed. A notice by United States mail addressed to the taxpayer’s last known place of business shall be sufficient. Any assessment made by the department shall be prima facie correct upon appeal.
§ 40-23-18. Appeals from assessments; limitation of actions; agreements for extension of time for collection or refund.
(a) Whenever any taxpayer, who has duly appeared and protested an assessment by the department of revenue, is dissatisfied with the assessment as finally made, he may appeal in all respects in the same manner provided by section 40-2-22. No appeal shall lie in cases where the taxpayer has failed to appear and protest.

The taxpayers contend that they could not appeal since they did not appear and protest the tax assessment. They say that they did not so appear and protest because they had no notice of the hearing as to the assessment as is required by the first sentence of § 40-23-17, supra.

On the other hand, the Department contends that they gave the required notice of the administrative hearing to the taxpayers, and that if notice of the hearing was given, the appeal would be barred by the last sentence of § 40-23-18(a), supra, that a taxpayer may not appeal if he has failed to appear and protest at the administrative hearing. However, if notice of the administrative hearing was not given, the Department argues that such restriction to an appeal would not apply, consequently permitting the taxpayers to appeal and to raise therein the lack of such notice.

That last sentence in § 40-23-18(a), supra, presupposes that the Department has fully complied with the notice requirements of the preceding code section, § 40-23-17, supra. By necessary implication, the prohibition against an appeal by a taxpayer who fails to appear and protest applies only where the required notice of the administrative hearing was given. If the notice provisions as to the administrative hearing were not complied with, the requirement is ineffective that a taxpayer must appear and protest an assessment as a condition precedent to his taking an appeal. Such a taxpayer could still take a timely appeal to the proper circuit court from a final assessment by strictly complying with the appeal procedure of § 40-2-22 of the Code. The circuit court could then ascertain whether in fact the notice, as required by the first sentence of § 40-23-17, supra, was properly given and, if not, void the assessment and remand the matter to the department for further proceedings in strict compliance with the statute. The circuit court is expressly granted the right on appeal to decide questions as to the legality of an assessment. § 40-2-22, Code of Alabama (1975).

Here, the taxpayers admit that they received copies of the final assessment on or about May 18, 1981, which were dated May 13, 1981. They were required to take an appeal to the proper circuit court “by filing notice of appeal with the secretary of the department of revenue and with the clerk or register of the circuit court of the county to which the appeal shall be taken within 30 days from the date of said final assessment.” § 40-2-22, supra. The taxpayers timely filed their appeal with the clerk of the Circuit Court of Etowah County, but it was not filed with the secretary of the Department within the thirty-day period as is required by the statute in order to perfect an appeal. The Circuit Court of Eto-wah County correctly dismissed the taxpayers’ appeal since it was not timely filed with the secretary of the Department. Dowda v. State, 274 Ala. 124, 145 So.2d 830 (1962).

In this case the taxpayers had a reasonable opportunity to raise the issue of lack of notice of the administrative hearing by a proper appeal. They received proper notice of the final assessment in due time but failed to duly perfect their appeal. Here, the taxpayers actually received the final assessment notice within the same time frame and in the same manner as any other taxpayer could normally expect to be so notified. Had their appeal been timely, their contention regarding lack of notice as to the administrative hearing could have been properly raised and decided on appeal. An appeal was their remedy but it was not taken in compliance with the statute and was properly dismissed.

Here, a declaratory judgment action cannot be utilized as a substitute for an appeal. Sparks v. Brock & Blevins, Inc., 274 Ala. 147, 145 So.2d 844 (1962). In Radue v. Bradshaw, 289 Ala. 481, 268 So.2d 760 (1972), the supreme court considered whether a civil action for declaratory judgment could be maintained even though no appeal was made from the final assessment. There, the trial court had dismissed the taxpayer’s action and it was held as follows on appeal:

We come now to appellant’s third contention, that his declaratory judgment action was maintainable even though he took no appeal from the final assessment made by the State. The appellant contends that the appeal procedures outlined in Title 51, § 140 [now § 40-2-22] need not be followed where the attack is on the constitutionality of the taxing system. We disagree.
In Sparks v. Brock & Blevins, Inc., 274 Ala. 147, 145 So.2d 844 (1962), this Court held that a final assessment of the Department of Revenue, unappealed from, is as conclusive as a judgment of a circuit court of Alabama, and is not subject to collateral attack by an action for a declaratory judgment. See also, State v. Woodroof, 253 Ala. 620, 46 So.2d 553 (1950); Hamm v. Harrigan, 278 Ala. 372, 178 So.2d 529 (1965). In view of Sparks, supra, the appellant’s failure, in the instant case, to appeal the final assessment within thirty days to the Circuit Court of Jefferson County had the effect of foreclosing any attack on the assessment by way of a declaratory judgment action. Thus, the lower court did not err in dismissing the appellant’s bill of complaint seeking to have the assessment declared void, and the appellant’s third contention must fail.

The taxpayers’ declaratory judgment will not now lie and cannot substitute for an appeal. The Circuit Court of Montgomery County properly granted the State’s motion to dismiss.

We affirm.

The foregoing opinion was prepared by Retired Circuit Judge EDWARD 'N. SCRUGGS while serving on active duty status as a judge of this court under the provisions of § 12-18-10(e) of the Code of Alabama (1975), and this opinion is hereby adopted as that of the court.

AFFIRMED.

All the Judges concur.


text:
    Mary C. JOHNSON v. Sanford Douglas JOHNSON.
    Civ. 3269.
    Court of Civil Appeals of Alabama.
    May 26, 1982.
    William E. Swatek, Pelham, for appellant.
    Ernestine Sapp of Gray, Seay & Lang-ford, Tuskegee, for appellee.
   WRIGHT, Presiding Judge.

This is a divorce case. The sole issue on appeal involves the propriety of the property division. Appellant, Mary C. Johnson, contends that the trial court erred in applying the law to the facts of the case and abused its discretion.

The cause arose under the following facts, which were heavily disputed:

Both parties had been married prior to their marriage to each other. Mrs. Johnson divorced her first husband in January 1955; Mr. Johnson divorced his first wife in June 1955. Conflicting certificates of marriage were introduced at trial. One certificate set the marriage date at January 18, 1955; the other at January 18, 1957. Mrs. Johnson contended that she and her husband were common-law married several years prior to any ceremonial marriage. The Johnsons have apparently been separated since 1976 when Mrs. Johnson left the home. She claims that she was forced to leave and was in fear of her life. She testified that she was mistreated in various ways and on several occasions by her husband. Mr. Johnson contends that she abandoned him. The record reveals that he testified several times under oath that he asked her to come home, and that she could still come home.

No children were bom of the marriage. Mr. Johnson worked for the Veterans Administration until his retirement around 1974. He now receives Social Security and some form of military retirement pay. Mrs. Johnson taught school until 1975 or 1976.

The extent of the property holdings of the parties was heavily disputed. Only one parcel, the homeplace in Tuskegee, Alabama, was held jointly. The rest of the property involved was owned separately by Mr. Johnson at the time the final decree of divorce was entered. Two of these parcels were sold to Mr. Johnson by Mrs. Johnson apparently prior to the date of marriage ás determined by the trial court. Much importance was placed on the date of the parties’ marriage because separate property acquired prior to marriage or by gift or inheritance cannot be taken into consideration for a property division unless it is shown that the property or its income has been used for the common benefit of the parties during their marriage. § 30-2-51, Code (1975) as amended.

The trial court in its final decree found that Mr. Johnson was not capable of entering into a marriage until sixty days subsequent to his divorce on June 25, 1955. Additionally, the trial court found that Mr. Johnson was not guilty of any fraud in connection with the conveyances of property from Mrs. Johnson prior to the marriage. The trial court found that Mrs. Johnson was afraid of Mr. Johnson, but that such fear was not the product of any misconduct on the husband’s part. The divorce was granted on the grounds of irretrievable breakdown of marriage. Mrs. Johnson was awarded the homeplace appraised at $46,-600 and the North Greenwood Drive property, which is income producing and was appraised at $18,000. The homeplace was previously held jointly, but the North Greenwood property was acquired by Mr. Johnson prior to the time a possible legal marriage could have taken place as determined by the trial court. It was held separately by the husband.

Mr. Johnson was awarded the remainder of the property which was appraised at approximately $114,000. Court costs including the cost of the appraisal, and an attorney’s fee for Mrs. Johnson’s attorneys of $2,500 were taxed against Mr. Johnson. Mrs. Johnson’s motion for new trial was denied. She appeals.

A division of property is within the sound discretion of the trial court, and will only be reversed for palpable and plain abuse of that discretion. Parker v. Parker, 392 So.2d 229 (Ala.Civ.App.1980). Such a division need not be equal, but equitable and graduated according to the nature of the case. Mack v. Mack, 389 So.2d 1156 (Ala.Civ.App.1980). We find no abuse of discretion.

Appellant seems to argue that the trial court failed to take all the property held jointly or separately into consideration in the property division. To the contrary, the trial court plainly viewed separate property acquired by the husband prior to the marriage as part of the property division. One parcel awarded the wife was so acquired. Assuming knowledge of the statute, the trial court must have determined that the property was regularly used for the common benefit of the parties during the marriage. See, Dees v. Dees, 390 So.2d 1060 (Ala.Civ.App.1980).

We find no support in the record for the contention of the wife that more than $960,000 worth of property was involved in this case. The appraisals introduced into evidence were made and testified to by the wife’s own appraiser.

The wife’s contention that the trial court misapplied the law to the facts is not well taken. We find no abuse of discretion.

Appellee’s contention that Mrs. Johnson’s motion for new trial failed to preserve error is pretermitted.

This cause is due to be affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.

      . Mrs. Johnson owned fifty-four and one-half acres at Warrior Stand that was acquired with her funds during the marriage. She sold it to her stepfather prior to this action.

      . Parcel number 12 is not assigned a value in the record. It is a one-acre unimproved lot in Macon County, Alabama.


author: HARRIS, Presiding Judge.

text:
    John Edward DUNN v. STATE.
    4 Div. 854.
    Court of Criminal Appeals of Alabama.
    Aug. 4, 1981.
    Rehearing Denied Oct. 6, 1981.
   HARRIS, Presiding Judge.

AFFIRMED — NO OPINION.

REHEARING DENIED — NO OPINION.

All the Judges concur.


author: MADDOX, Justice.

text:
    Ex parte John Edward DUNN. (Re John Edward Dunn v. State of Alabama).
    81-57.
    Supreme Court of Alabama.
    May 21, 1982.
    James W. Parkman, III of Parkman & Little, Dothan, for petitioner.
    Charles A. Graddick, Atty. Gen., and Bill North, Asst. Atty. Gen., for respondent.
   MADDOX, Justice.

We granted the writ in this cause to review petitioner’s claim that a void conviction was used to enhance his punishment. The Court of Criminal Appeals wrote no opinion in this case, and petitioner made no request pursuant to Rule 39(k), A.R.A.P., to get his constitutional claim properly presented to us for review; therefore, we are of the opinion that petitioner’s petition was improvidently entertained and the writ of certiorari is due to be quashed.

In quashing the writ, however, we should not be understood as holding that petitioner is foreclosed from filing a proceeding to test the validity of his present sentence on the ground that one of the convictions used to enhance his punishment was void. Ex parte McCurley, 390 So.2d 25 (Ala.1980); Bullard v. Estelle, 665 F.2d 1347 (5th Cir.1982).

By our quashing the writ, the State is not foreclosed from requesting the Court of Criminal Appeals to reopen the case and remand the proceeding to the trial court for consideration of petitioner’s constitutional claim that a void conviction was used to enhance his punishment.

WRIT QUASHED AS IMPROVIDENTLY GRANTED.

All the Justices concur.