author: JONES, Justice.

text:
    The HOME INDEMNITY COMPANY v. REED EQUIPMENT COMPANY, INC., Joel Earl, and Leo M. Reed.
    79-235.
    Supreme Court of Alabama.
    March 7, 1980.

      John D. Richardson and Elias J. Saad of Brown, Hudgens, Richardson, Whitfield & Gillion, Mobile, for appellant.
    Irvin J. Langford of Howell, Johnston, Langford, Finkbohner & Lawler, Mobile, for appellees.
   JONES, Justice.

This is an appeal from a suit by The Home Indemnity Company, Inc., for declaratory judgment to determine its liability under a policy issued to Reed Equipment Company. This coverage dispute arises out of the following facts: On February 7, 1977, two Reed Equipment employees, Allen Dean Bradwell and Joel Earl, were operating separate vehicles — Earl in a six-wheel truck and trailer followed by Bradwell in a one and one-half-ton truck — when the Bradwell truck was involved in a collision with an oncoming vehicle driven by Cecil David Turner. Earl viewed the accident in his rearview mirror and returned to give aid. Both Turner and Bradwell were seriously injured and a passenger riding in the Turner vehicle was killed.

Although the manner and time of its discovery are disputed, it was subsequently learned that a wheel came off the trailer being driven by Earl, thereby leading to speculation that the wheel collided with the Turner truck, causing the truck to collide with the Ford truck being driven by Brad-well. The missing wheel was recovered near the accident site a couple of days later and placed under lock and key on the premises of Reed Equipment Company. According to the testimony given by the company’s president, Leo Reed, he first thought that the wheel may have been involved in the accident but later changed his opinion and only kept the wheel upon the advice of his brother who is an attorney.

In any case, though the accident itself was reported immediately to Reed Equipment Company’s insurer, the existence of the missing wheel was not reported to either of the insurance companies involved— Home Indemnity, acting for Reed Equipment and its employees, or State Farm on behalf of Turner, until some eleven months after the accident. In the absence of this information, it appeared to the investigators of both companies that fault lay with the Turner vehicle which had left its proper lane of traffic and collided with the Brad-well truck. Claims were made by both Reed Equipment Company and Bradwell against Turner’s insurer, State Farm Mutual Insurance Company.

Approximately eleven months after the accident — sometime in December, 1977— Bradwell telephoned State Farm’s representative and related what he knew regarding the missing wheel and its possible involvement in the collision. This information was passed on by State Farm to Home Indemnity, which contacted Leo Reed and requested that he sign a “non-waiver agreement” whereby Home Indemnity would undertake to defend any suits brought against its insureds without thereby waiving any defenses it might have to liability (i. e., coverage) under the provisions of the policy. Reed refused.

In January, 1978, Turner and Bradwell commenced separate actions against Appel-lees seeking damages as a result of the February 7, 1977, accident. On January 30, 1978, Home Indemnity wrote Leo Reed and declined coverage as to the suit filed by Bradwell, citing the employee exclusion provision of the policy. The following day, Home Indemnity again sought a nonwaiver agreement from Reed apparently with respect to the action brought by Turner. Reed again refused and retained independent legal counsel. Home Indemnity then brought this action for declaratory judgment.

The trial Court, hearing the case ore ten-us,' decreed that Home Indemnity was liable to provide both defense and indemnification to Reed Equipment Company, Leo Reed, and Joel Earl concerning any suits brought against them arising out of the February 7, 1977, accident. The Court further decreed that Reed Equipment Company, Leo Reed, and Joel Earl were entitled to be reimbursed by Home Indemnity Company for all attorneys’ fees and costs incurred in defending the pending actions brought by Brad-well and Turner. Home Indemnity Company appeals, challenging the sufficiency of the evidence to support the trial Court’s final decree and alleging the trial Court’s misapplication of the law to the facts.

The first issue raised on this appeal concerns the interpretation of the following two provisions of the policy issued by Home Indemnity:

“7. Assistance and Cooperation of the Insured: The insured shall cooperate with the company and, upon the company’s request, shall attend hearings and trials and shall assist in effecting settlements, securing and giving evidence, obtaining the attendance of witnesses and in the conduct of suits or proceedings
“10. Action Against Company — Coverage B: No action shall lie against the company unless, as a condition precedent thereto, the insured shall have fully complied with all the terms of this policy, nor until the amount of the insured’s obligation to pay shall have been finally determined either by judgment against the insured after actual trial or by written agreement of the insured, the claimant and the company.”

The trial Court’s findings and conclusions with respect to the above were, substantially, that neither Reed Equipment Company, Leo Reed, nor Joel Earl knowingly failed to cooperate with Home Indemnity Company and that, in any event, Home Indemnity Company was not prejudiced by the delay in learning of the missing wheel.

We agree with Appellant that the ore tenus presumption of correctness applies only to the resolution of conflicts in the evidentiary facts. The presumption of correctness accorded the trial court, hearing a case ore tenus, has no application where the facts are undisputed; and, under such circumstances, it is solely for the appellate court to determine whether the trial court misapplied the law to the undisputed facts.

Furthermore, we agree with Appellant that much of the evidence before the trial Court in this case was without dispute; and, in large measure, the Court’s findings are a mixture of law and fact, or they constitute factual premises for conclusions of law.

We must reject, however, the notion that the ore tenus rule has no field of operation in the instant case. There are, indeed, substantial areas of evidence in sharp conflict. For example, Bradwell states that Earl told him of the missing tire at the time of the accident. Earl denies this and points to earlier statements of Bradwell in direct contradiction to his later account of the tire incident. Bradwell contends he and Reed held a private conversation in the hospital concerning the tire. This is denied by Reed who counters with the contention that Bradwell’s latest account is self-serving and coincides with his filing of suit for personal injuries against Reed Equipment Company, Leo Reed, and Joel Earl.

Because of the pendency of third-party litigation involving these parties, we follow the more prudent course of not detailing all of the evidence. Suffice it to say, those findings of the trial Court essential to the validity of its final order are sufficiently supported by the evidence of record and the inferences which may be reasonably drawn therefrom. The trial Court, as the trier of fact, was in the best position to judge the credibility of the witnesses testifying before it and to resolve conflicts in the testimony. We cannot say, therefore, that the trial Court was palpably wrong in its finding with respect to Appellees’ knowledge concerning the role of the missing wheel in the accident.

Moreover, irrespective of the presumption of correctness accorded the trial Court’s findings with respect to the disputed facts, Appellant cannot avoid its obligations on this ground because an insured’s failure to cooperate is inconsequential unless it is both material and substantial. General Accident Fire & Life Assurance Corp. v. Rinnert, 170 F.2d 440 (5th Cir. 1948); Auto-Owners Insurance Co., Inc. v. Rodgers, 360 So.2d 716 (Ala.1978); Stonewall Insurance Company v. Perkins, 285 Ala. 699, 235 So.2d 838 (1970); Alabama Farm Bureau Mutual Casualty Insurance Co. v. Cofield, 274 Ala. 299, 148 So.2d 226 (1962); George v. Employers’ Liability Assurance Corporation, 219 Ala. 307, 122 So. 175 (1929).

The rule is elaborated upon in 44 Am. Jur.2d, Insurance, § 1561, as follows:

“As a general proposition the insured must comply with all the requirements of the co-operation clause, but to constitute a breach of a co-operation clause by the insured which will justify the insurer in withdrawing from the defense of the action brought against the insured and in canceling the protection to him there must be a lack of co-operation in some substantial and material respect; a technical or inconsequential lack of co-operation or misstatement to the insurer is immaterial.” At p. 445, citing George v. Employers’ Liability Assur. Corp., supra, at note 18.

We note, initially, that none of the above-cited Alabama cases expressly states the test for determining what is material and substantial with respect to an insured’s alleged failure to cooperate. Implicit in a number of these cases, however, is the requirement of prejudice to the insurer.

In Auto-Owners Insurance Company, Inc. v. Rodgers, supra, the insurer claimed that it had been prejudiced in its investigation of its insured’s accident because of the latter’s failure to meet with the company’s investigators after repeated requests by telephone and by mail that he do so. Specifically, the insurer argued that, as a result of the insured’s conduct, it was practically impossible to locate witnesses. The Court noted that the insurance company had access to the police report, and, also, could have taken the deposition of the accident witnesses; thus, concluded the Court, the insured’s conduct “did not amount to a lack of cooperation in any substantial or material respect.” Auto-Owners Insurance Co., supra, at 719. In George v. Employers’ Liability Assurance Corporation, supra, the Court rejected the insurer’s argument that it had been materially prejudiced because its insured, who had moved to another city, refused to come to court at his own expense. The Court noted that “there were numerous persons known to the insurer who had the opportunity to know and testify to what assured knew.” 219 Ala. at 309, 122 So. at 176.

Here, Appellant alleges that it has been prejudiced by having been denied an opportunity to examine the evidence while still fresh. Appellant also contends that it must now “either seek settlement of the underlying civil actions or defend these actions at trial in an atmosphere tainted by the misconduct” of its insureds. With respect to the first of these claims, Appellant offers no explanation, nor can we discern any, of how the tire and rim (the evidence referred to) could have been any more helpful to the defense of its insureds had it been examined immediately after the accident instead of later. There is no dispute that Appellee Reed kept the tire and rim recovered near the scene of the accident and made them available to Appellant once the underlying civil actions were filed. To the extent that the tire and rim constitute evidence adverse to Appellant’s defense of its insureds, they are neither more, nor less, damaging now than they were immediately after the accident. Appellant’s second claim of prejudice is rendered moot by our affirmance of the trial Court’s finding, in effect, that there was no misconduct.

It is urged by Appellant, however, that where, as here, the cooperation clause is made a condition precedent in the policy, the insured’s failure to cooperate should absolve the insurer of its obligations under the policy regardless of any showing of prejudice. The case of American Fire & Casualty Co. v. Tankersley, 270 Ala. 126, 116 So.2d 579 (1959), cited by Appellant in support of its position, concerned the failure of the insured to give timely notice and not an allegation of a failure to cooperate. Thus, there are two lines of cases in Alabama — those concerning failure to give timely notice, in which prejudice to the insurer need not be shown, and those concerning an allegation of the insured’s failure to cooperate, which must be material and substantial — resulting in prejudice to the insurer.

The second issue raised on appeal concerns the interpretation of the following exclusionary provision:

“Exclusions
“This insurance does not apply:
“(a) . . .
“(b) . . .
“(c) to bodily injury to any employee of the insured arising out of and in the course of his employment by the insured . . .

Appellant contends, under the above exclusion, it owes no coverage to Leo Reed and Joel Earl with respect to the suit brought by their former co-employee, Brad-well, and that the trial Court erred in holding to the contrary. Both sides concede on appeal the “employee of the insured” exclusion is governed by United States Fire Insurance Co. v. McCormick, 286 Ala. 531, 243 So.2d 367 (1970). The McCormick Court, interpreting a similar provision, coupled with a “severability clause,” held that “[e]ach insured has coverage except with respect to his own employees, and the unqualified word ‘insured’ . . . means only the person claiming coverage.” 286 Ala. at 540, 243 So.2d at 375. Inasmuch as Bradwell was an employee of Reed Equipment Company, Inc., and not of Leo Reed or Joel Earl, Appellant cannot avoid coverage to Reed and Earl (with respect to the Bradwell suit) on this basis.

The third issue concerns the following definition of insured:

“None of the following is an insured:
“(i) any person while -engaged in the business of his employer with respect to bodily injury to any fellow employee of such person injured in the course of his employment;”

This policy provision excludes from the definition of insured “any person while engaged in the business of his employer with respect to bodily injury to any fellow employee of such person injured in the course of his employment.” With respect to this definition, Appellees make three separate arguments: First, noting that Appellant did not urge this “theory” in the trial Court, Appellees cite Vaughn v. Thomas, 372 So.2d 1309 (Ala.1979), for the proposition that a party cannot try his case on one theory and then appeal on a separate theory. Vaughn v. Thomas, supra.

The rule requiring adherence to the theory relied on below, however, does not mean the parties are limited in the appellate court to the same reasons or arguments advanced in the lower court upon the matter or question in issue. 5 Am.Jur.2d, Appeal and Error, § 546 at 32. Here, Appellant brought suit for declaratory judgment as to its contractual obligations toward Ap-pellees Leo Reed and Joel Earl with respect to a suit brought against them by a former co-employee for bodily injury incurred in the course of employment. Appellant’s theory was that, in these circumstances, there was no coverage to Appellees under the terms of the policy. If, in fact, the policy did not by its terms extend coverage to Appellees in the context of the Bradwell suit, it is of no consequence that Appellant improperly identified the applicable language of the policy.

Appellees’ second argument as to why effect ought not be given to the “co-employee” definition pertains to a letter in which the insurer declined coverage because the “policy specifically excludes bodily injury claims by employees.” According to Ap-pellees, this statement refers specifically to the exclusionary clause; and thus, Appel-lees contend, Home Indemnity “waived all other grounds of forfeiture.”

Where an insurer specifically disclaims liability because of one ground of forfeiture, it waives all other grounds of forfeiture which might have been stated but were not. Auto-Owners Insurance Co. v. English, 266 Ala. 80, 94 So.2d 397 (1957). Similarly, an insurer who disclaims liability solely on a theory of noncoverage thereby waives his defenses with respect to any grounds of forfeiture which might have been raised. St. Paul Fire and Marine Insurance Co. v. Smith, 280 Ala. 425, 194 So.2d 830 (1967).

Although the doctrine of waiver may extend to practically every ground on which an insurer may deny liability based on forfeiture, the doctrine is not available to bring within the coverage of a policy risks not covered by its terms or risks expressly excluded therefrom. 43 Am.Jur.2d, Insurance, §§ 1058 and 1184 at pp. 983 and 1102 — 1103. Thus, coverage under an insurance policy cannot be created or enlarged by waiver or estoppel and, if there is no ambiguity, it is the duty of the court to enforce the policy as written. Aetna Ins. Co. v. Pete Wilson Roofing & Heat. Co., Inc., 289 Ala. 719, 272 So.2d 232 (1972). Here, the policy provision in question pertains to coverage rather than forfeiture. It follows that it could not have been waived by Appellant; and, if the provision is without ambiguity, it is due to be given effect.

Appellees’ third contention addresses the merits of the “definition of insured” provision, contending that Leo Reed, as an executive officer of the corporate employer, is not a fellow employee of Bradwell.

Examining this definition in light of the instant facts, we find the Bradwell suit is one brought by a former employee of Reed Equipment Company for bodily injury sustained in the course of employment. Both Leo Reed and Joel Earl are also employees of Reed Equipment Company and are sued by Bradwell with respect to acts alleged to have been committed while they were engaged in their employment. The language of this definition, by its plain wording, excludes as an insured an employee who is sued by a co-employee as a result of bodily injuries sustained in the course of employment. We find no ambiguity in this. It follows, then, that neither Leo Reed nor Joel Earl is an insured according to this definition.

In so holding, we are not unaware of a recent Federal District Court opinion reaching a contrary result with respect to an identical “fellow employee” definition. Mission Ins. Co. v. Barnett, 476 F.Supp. 925 (S.D.Ala.1979), employing the functional test alluded to by way of dictum in Jones v. Watkins, 364 So.2d 1144 (Ala.1978), held that individuals who were acting in the capacity of executive officers of the named insured corporation were not co-employees of the injured company employee, and, hence, were not excluded from coverage under the “co-employee” definition of insured.

The difficulty with this conclusion is in its premise: That, within the corporate structure, there is a corporate employer, and there are employees of the corporation, and others, e. g., executive officers, who are neither one nor the other. This premise stands in contradiction to Barnett’s other holding, in reliance upon McCormick, with respect to the “employee of the insured” exclusion. That is to say, McCormick’s invalidation of the “employee of the insured” exclusion is bottomed on the broad classification, within the employment structure, of employer and employee. Implicit in the McCormick holding that an executive officer is a party “other than the employer” is the premise that the corporate employment structure admits of a single entity as the “employer” — the corporate entity itself— and all others are “employees.”

A supervisory employee of a corporate employer, whatever his function, is not the employer — and, necessarily, falls on the “employee” side of the employer/employee classification line. Indeed, were this not . true, the third-party suit itself would fail. Given the two-category classification of both aspects of McCormick, (the third party “immunity” issue and the “employee of the insured” exclusion issue), the insurance carrier is entitled to a consistent interpretation with respect to the “co-employee” definition now before us.

Our validation of the “fellow employee” provision, of course, does not preclude the parties (insurer and employer-insured) from contracting for liability coverage for executive officers and supervisory personnel, or any other employees. We hold merely that a definition which is expressed in terms of “fellow employee,” in the context of a corporate employment structure, refers to those company personnel other than the employer.

The last issue raised concerns the trial Court’s decree that Appellant reimburse Appellees for their legal expenses and costs incurred to date in defending the underlying civil actions brought by Bradwell and Turner. Appellant'contends the refusal by Appellees to sign a “non-waiver agreement” released Appellant from any obligation toward the defense of its insureds prior to resolution of this coverage dispute.

In view of our holding that coverage under the policy did not extend to Leo Reed and Joel Earl with respect to the Bradwell suit, the resolution of this issúe necessarily pertains only to the legal expenses and costs incurred to date by Reed Equipment Company, Leo Reed, and Joel Earl in their defense of the pending suit brought by Turner. Appellant Home Indemnity contends in brief that Appellees, by refusing to sign a “non-waiver agreement,” forced Appellant either to withhold providing a legal defense or waive its defenses as to coverage.

We find no merit to this contention; and, furthermore, Appellant cites no authority for the proposition that a liability insurer cannot, absent a “non-waiver agreement,” undertake the legal defense of its insureds without prejudicing its rights in a coverage dispute. To the contrary, Campbell Piping Contractors, Inc. v. Hess Pipeline Co., 342 So.2d 766 (Ala.1977), cited by Appellant, makes it clear that only notice to the insured of the insurer’s reservation of its rights is required.

In summary, we affirm that portion of the trial Court’s decree as it relates to the suit brought by Turner against Appellees Reed Equipment Company, Leo Reed, and Joel Earl, with respect to both coverage and the reimbursement of attorney’s fees and costs. With respect to the trial Court’s decree as it relates to the Bradwell suit, however, we reverse and render as to both coverage and reimbursement.

AFFIRMED IN PART; AND IN PART REVERSED AND RENDERED.

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

MADDOX, J., concurs in the result.

BLOOD WORTH, J., not sitting.

      . This appeal involves two separate cases which were consolidated for trial below and which, for convenience, we will treat as a single case on appeal.

      . In Curran v. Connecticut Indemnity Co. of New Haven, 127 Conn. 692, 20 A.2d 87 (1941), the Connecticut Supreme Court stated the rule and test, together with their rationale, as follows:
      “. • • [T]he condition of co-operation with an insurer is not broken by a failure of the assured in an immaterial or unsubstantial matter . . because they are not included within the fair intendment of the requirement that the assured co-operate, and lack of prejudice to the insurer from such failure is a test which usually determines that a failure is of that nature.” Cited in 44 Am.Jur.2d, Insurance, § 1561, at note 18, pp. 445 — 446.

      . At first blush, the reason for this distinction between an insured’s failure to give timely notice and his failure to cooperate may not be readily apparent. The showing of the prejudice requirement in the one case but not in the other is explainable, however, in this: “Cooperation clauses” as conditions precedent to the insurer’s obligations impose broad, vague requirements, which, in the absence of legally applied standards, would put into doubt the contractual obligations between insurer and insured in nearly every case. On the other hand, the requirement that the insured give timely notice to his insurer is specific and, in most cases, easily complied with. In other words, the former Tends itself to subjective proof while the latter is more readily subject to objective proof.
      Moreover, from the insurer’s point of view, the prejudice resulting from an insured’s failure to give timely notice can be readily assumed though, as a practical matter, it may be difficult to prove. It can be noted', finally, that the apparent harshness of the rule set forth in Tankersley, supra, in large measure has been ameliorated by subsequent modifications of the rule found in later cases which have looked to the reasonableness of the insured’s delay in giving notice to his insurer. See Liberty Mutual Insurance Co. v. Bob Roberts & Co., 357 So.2d 968, 969 (Ala.1978); and Southern Guaranty Insurance Co. v. Thomas, 334 So.2d 879 (Ala.1976).

      . The defendants in the Bradwell suit (Leo Reed and Joel Earl) are the only Appellees concerned with the co-employee coverage issue.


source: Caselaw Access Project

author: JONES, Justice. ALMON, Justice

license: Public Domain

text:
    William Thomas HUNT v. DISCIPLINARY BOARD OF the ALABAMA STATE BAR.
    BAR 79-1.
    Supreme Court of Alabama.
    March 7, 1980.

      J. Louis Wilkinson of Wilkinson, Purvis & Dodd, Birmingham, for appellant.
    William H. Morrow, Jr., Gen. Counsel, Montgomery, for Alabama State Bar.
   JONES, Justice.

This is an appeal by William Thomas Hunt, a practicing lawyer, from the Disciplinary Board of the Alabama State Bar’s order of suspension for one year.

On March 2, 1979, the Grievance Committee qf the Birmingham Bar Association filed formal disciplinary charges against Hunt with the Disciplinary Board of the Alabama State Bar.

Charge I alleges a violation of Disciplinary Rule 6-101(A):

“A lawyer shall not willfully neglect a legal matter entrusted to him.”

The essential allegations of Charge I are:

“2. Following the accident Mr. Martin employed the attorney to represent him and to file a lawsuit in his behalf resulting from the accident against the responsible party or parties to protect his legal rights.
“3. Since the time of the attorney’s employment, the attorney never filed any lawsuit on behalf of Mr. Martin and willfully neglected the legal matter entrusted to him.”

Charges II and III allege violations of Disciplinary Rule 1-102(A)(4):

“(A) A lawyer shall not:
“(4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation, nor be guilty of wilful misconduct.”

The essential allegations of Charge II are:

“2. After he was employed, the attorney, in one or more conversations advised his client, Mr. Martin, upon inquiry from his client when his case would be set for trial, that his case would be set in December, 1977. The attorney misrepresented the status of a legal matter to his client.”

The essential allegations of Charge III are:

“2. In one or more conversations with one Thomas W. Crawford, who recommended the attorney to the client, the attorney acknowledged to Mr. Crawford that he was representing Mr. Martin and intimated to Mr. Crawford that suit in Mr. Martin’s behalf had been filed.
“3. No suit had been filed at the time of this conversation or conversations, and no suit was ever filed. The attorney thus misrepresented the status of a legal matter to Thomas W. Crawford.”

On April 9, 1979, Hunt filed a general denial. On July 27, 1979, the matter was heard, and the Board entered its order finding Hunt guilty of all three charges and fixing his discipline as a suspension from the practice of law for one year. Hunt appeals, challenging the sufficiency of the evidence.

Hunt states the error complained of thusly-

“The Disciplinary Board erred in suspending Mr. Hunt on the basis of his failure to represent Mr. Martin in a civil matter, when in fact Mr. Hunt had never been employed by Mr. Martin, hence there was never an attorney-client relationship.”

The law governing the lawyer-client relationship may be stated, in the context of the instant case and Disciplinary Rule 6-101(A), Code of Professional Responsibility, as follows: Whenever a person consults a lawyer, advising him of the facts concerning a legal claim, and the lawyer agrees to “take the case,” and thereafter assures such person that he is handling the case and that it will be heard at a future date, a lawyer-client relationship is established; and the lawyer is guilty of wilfully neglecting a legal matter entrusted to him if he takes no action on client’s behalf.

Likewise, the legal principle supportive of Disciplinary Rule 1-102(A)(4), in the context of this case, may be stated: Whenever a lawyer falsely assures a client or his agent that he is pursuing a matter entrusted to him by the client and that the case will be heard by a court at some future date when, in truth and in fact, the lawyer has filed no suit on client’s behalf, the lawyer is guilty of conduct involving dishonesty, fraud, deceit, misrepresentation or wilful misconduct.

The scope of review applicable to this case is: Under the present rules of disciplinary enforcement, where the members of the Disciplinary Board hear the evidence and observe the demeanor of the witnesses, the Supreme Court, on review, will presume that the Board’s decision on the facts is correct; and the disciplinary order will be affirmed unless the decision on the facts is unsupported by clear and convincing evidence, or the order misapplies the law to the facts.

The issue, then, is whether the evidence of record clearly and convincingly supports the factual premises upon which the first two above-stated legal principles are based. We have reviewed the record and conclude that the evidence* and the inference which may be reasonably drawn therefrom, support the following findings of fact:

1. Upon a fellow employee’s recommendation, Bradley W. Martin, shortly after his collision with an Orkin Exterminator vehicle, personally consulted William Thomas Hunt, an attorney-at-law, and advised him of the facts and circumstances of his accident and his resultant injuries, including: $1200 damages to his car; “a cut head and busted mouth and a cracked rib”; broken dentures and glasses; medical attention; and ten days’ loss of employment.

2. Hunt remarked to Martin, upon examining an official accident report furnished to him by Martin, that “it looked like a winner and he would take the case.” Hunt told Martin, regarding his fee, that “he would get his when he got mine.” Martin informed Hunt he was in receipt of $1200 from Orkin which he then returned upon Hunt’s advice.

3. After repeated attempts to contact Hunt during a three-to-four-month period following their initial conference, Martin, through his daughter, wrote Hunt a letter inquiring of the status of his case. Other than their first meeting, Hunt never communicated directly by phone or by letter with Martin. On one occasion, Martin’s wife, after many attempts, talked with Hunt by phone and he told her “it would come up in court around the middle of December, 1977.”

4. Martin’s fellow employee, who had referred Martin to Hunt, repeatedly contacted Hunt at Martin’s request and inquired of the status of the claim; and he was advised by Hunt that suit was filed and would be set for hearing at a later date. In fact, suit was never filed.

We are constrained to hold that these factual findings are supported by clear and convincing evidence; that the order properly applies the law to the facts; and, therefore, that the Disciplinary Board’s order, adjudging the Appellant guilty of all three charges and suspending him from the practice of law for one year, is due to be, and hereby, is affirmed.

AFFIRMED.

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

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

ALMON, Justice

(concurring specially).

The majority of the Court has raised the burden of proof necessary to discipline attorneys from the traditional civil standard of “reasonable satisfaction” to “clear and convincing.” The old standard has worked well for many years and I have not been persuaded of the necessity to make a change.

I nevertheless concur in the affirmance of the decision of the Disciplinary Board because the evidence presented was sufficient to satisfy either burden of proof.

TORBERT, C. J., concurs.

      . Both C.J.S. and Am.Jur.2d contain clear and consistent statements of this principle of law. See 7 C.J.S. Attorney and Client § 65, and 7 Am.Jur.2d, Attorney and Client, § 91, and the cases collected therein.

      . See Dodd v. Board of Commissioners of the Alabama State Bar, 365 So.2d 975 (Ala.1978).

      .This statement of the facts is our own summary of the evidence supportive of the Board’s order. The order itself contains no “Findings of Fact.” While not legally required, the practice of making “Findings of Fact” an integral part of the order is encouraged.


author: SENTELL, CLERK.

text:
    OPINION OF THE CLERK, Supreme Court of Alabama.
    Opinion No. 23.
    Supreme Court of Alabama.
    March 10, 1980.
   SENTELL, CLERK.

RULE 7, ALABAMA RULES of JUDICIAL ADMINISTRATION — NO DOCKET FEE — POST JUDGMENT DISCOVERY PURSUANT to RULES 26-37, ARCP; NO FEE FOR SERVICE OF INTERROGATORIES OR REQUEST FOR PRODUCTION IN POST JUDGMENT DISCOVERY

Mrs. Ruth • Gasser, Clerk of the Circuit Court of Cullman County, Alabama, has submitted to me the following inquiry:

“Under Rule 69 of the Alabama Rules of Civil Procedure a judgment creditor may obtain discovery from any person, including the judgment debtor, in the manner provided in Rules 26 through 37.
“What costs, if any, must the judgment creditor or his successor in interest pay on the filing of post judgment discovery? Additionally, what costs, if any, is such creditor required to pay for service of interrogatories or request for production?”

This opinion is given pursuant to Section 12 — 2—19(d), Code 1975.

It is my opinion that the judgment creditor is not required to pay any filing fees or costs for initiating post judgment discovery pursuant to Rules 26 through 37, Alabama Rules of Civil Procedure, and that the judgment creditor is not required to pay for service of interrogatories or request for production in post judgment discovery.

That part of Rule 69, Alabama Rules of Civil Procedure, pertinent to this inquiry, reads as follows:

“ . . . In aid of the judgment or execution, the judgment creditor or his successor in interest when that interest appears of record, may obtain discovery from any person, including the judgment debtor, in the manner provided in these rules.”

The part of Rule 26(a), Alabama Rules of Civil Procedure, that is pertinent to this inquiry, is as follows:

“(a) Discovery Methods. Parties may obtain discovery by one or more of the following methods: depositions upon oral examination or written questions; written interrogatories; production' of documents or things or permission to enter upon land or other property, for inspection and other purposes; physical and mental examinations; and requests for admission . . . ”

Rule 7, Alabama Rules of Judicial Administration, is as follows:

“Pees for miscellaneous filings.
“Any filing for which there is no express cost under the consolidated fee structure shall be treated as an original filing for cost purposes.”

I

Post judgment discovery in the manner provided in Rules 26 through 37, Alabama Rules of Civil Procedure, is part of the case in which judgment was rendered. The word “filing” in Rule 7, Alabama Rules of Judicial Administration, means “filing of a case”. See Opinion of the Clerk, No. 1 (1977), Ala., 345 So.2d 1329; Opinion of the Clerk, No. 12 (1978), Ala., 361 So.2d 534. A filing initiating post judgment discovery under Rules 26 through 37, Alabama Rules of Civil Procedure, is not the filing of a case under Rule 7, Alabama Rules of Judicial Administration. The filing is not treated as an original filing for cost purposes and does not require the payment of any fees or costs.

II

The Alabama Rules of Judicial Administration contain no provision for miscellaneous service fees. Rule 7 does refer, however, to the consolidated fee structure. The words “consolidated fee structure” in civil cases mean the fees prescribed in Sections 12-19-70 through 12-19-138, Code 1975. See Opinion of the Clerk, No. 11 (1978), Ala., 356 So.2d 636; Opinion of the Clerk, No. 21 (1979), Ala., 375 So.2d 1066.

Section 12-19-20(b), Code 1975, provides that “The fees prescribed in this chapter shall be exclusive of all other fees”, except specified fees which are not pertinent here.

There is no cost or fee prescribed in the consolidated fee structure for service of interrogatories or request for production in post judgment discovery. The judgment creditor is not required to pay for service of interrogatories or request for production in post judgment discovery.


author: SENTELL, Clerk.

text:
    OPINION OF THE CLERK, Supreme Court of Alabama.
    Opinion No. 24.
    Supreme Court of Alabama.
    March 12, 1980.
   SENTELL, Clerk.

RULE 7, ALABAMA RULES OF JUDICIAL ADMINISTRATION — FILING FEE IN PROCEEDINGS FOR POSSESSION WRONGFULLY WITHHELD AFTER DEMAND FOR PREMISES

Mr. Allen L. Tapley, Administrative Director of Courts, has submitted to me, as Clerk of the Supreme Court of Alabama, pursuant to § 12-2-19(d), Code of Alabama 1975, the following inquiry:

(1)Should a district court civil filing fee pursuant to Rule 7, Alabama Rules of Judicial Administration, be collected at the time an oath of the facts is made before the district court pursuant to § 35-9-80, Code of Alabama 1975?
(2) Should the first question be answered in the negative, would it be proper to collect a filing fee at the time a writ of process provided by § 35-9-81, Code of Alabama 1975, is issued by the district court pursuant to such affidavit?
(3) If a district court civil filing fee should not be collected in either of the above instances, is it proper to collect such a fee at any time before trial as provided in § 35-9-85, Code of Alabama 1975, and if so, at what time?

Mr. Tapley notes in his inquiry that a list of fees in proceedings for possession wrongfully withheld is provided in § 35-9-88; that there is no specific fee for the filing of the original affidavit; and that § 35-9-88(7) provides a fee for the filing of a counter affidavit.

In my opinion, the first question should be answered in the affirmative. An affirmative answer to Question No. (1) renders unnecessary an answer to Questions (2) and (3).

Rule 7, Alabama Rules of Judicial Administration, is as follows:

“Fees for Miscellaneous Filings. Any filing for which there is no express cost under the consolidated fee structure shall be treated as an original filing for cost purposes.”

The meaning of the words “filing”, “case” and “consolidated fee structure” was stated in Opinion of the Clerk, No. 19, August 20, 1979, Ala., 374 So.2d 273.

The words “an original filing for cost purposes” mean “cases filed” in which docket fees shall be collected in accordance with the fee schedule in § 12-19-71, Code 1975. See Opinion of the Clerk, No. 21, September 27, 1979, Ala., 375 So.2d 1066.

§ 35-9-80, Code 1975, to which the inquiry refers, is as follows:

“In all cases where a tenant shall hold possession of lands or tenements over and beyond the term for which the same were rented or leased to him or after his right of possession has terminated or been forfeited, and the owner of the lands or tenements shall desire possession of the same, such owner may by himself, his agent or attorney-in-fact or attorney-at-law demand the possession of the property so rented, leased, held or occupied; and if the tenant refuses or omits to deliver possession when so demanded, the owner, his agent or attorney-at-law or attorney-in-fact may go before the district court in the county in which the land lies, and make oath of the facts.”

The opinion of the Supreme Court in Hicks v. Longfellow Development Company, Ala., 362 So.2d 219 (1978), indicates that making “oath of the facts” before the district court is the filing that determines the beginning of a case under § 35-9-80, Code 1975.

It is my opinion that making “ oath of the facts” before the district court pursuant to § 35-9-80, Code 1975, is the filing of a case within the meaning of the words “cases filed” in § 12-19-71, Code 1975; and that the docket fee shall be collected when an oath of the facts is made before the district court.


text:
    OPINION BY THE CLERK, Supreme Court of Alabama.
    Opinion No. 25.
    Supreme Court of Alabama.
    March 12, 1980.
   SENTELL, Clerk.

RULE 7, ALABAMA RULES OF JUDICIAL ADMINISTRATION—PREFIL-ING FEES—PETITION FOR RULE NISI; PETITION TO MODIFY FINAL DECREE

Mr. D. L. Cockrell, Register of the Circuit Court, Tenth Judicial Circuit of Alabama, Equity Division, has submitted to me an inquiry based upon the following facts:

“We have attorneys filing Petitions to Modify and Petitions for Rule Nisi in the same pleading in this Court Your Opinion No. 3, dated May 4, 1977, quotes the rule in Alabama concerning contempt proceedings as follows:
“It has been held that a proceeding to punish for other than direct contempt is a distinct and independent proceeding as much so as a new suit and necessitates the giving of notice of all proceedings.”

The question is: “Can a Petition for Rule Nisi and a Petition to Modify be included in the same pleading under our prefiling fee or should there be separate petitions filed and two prefiling fees charged?”

It is my opinion that separate petitions should be filed for rule nisi and to modify a final decree and that two prefiling fees should be charged.

A proceeding for indirect or constructive contempt is a separate and independent proceeding. See Opinion of the Clerk, No. 3, May 4, 1977, Ala., 345 So.2d 1338; No. 17, October 3, 1978, Ala., 363 So.2d 97; No. 21, September 27, 1979, Ala., 375 So.2d 1066.

A proceeding to modify a final decree, such as a decree of divorce concerning monthly alimony payments, child support and child custody on the basis of a change of circumstances since the final decree, is a case within the meaning of the words “cases filed” in § 12-19-71, Code 1975. See Opinion of the Clerk, No. 1, April 26, 1977, Ala., 345 So.2d 1329.

The basic differences between contempt proceedings and proceedings to modify a final decree preclude the inclusion of a petition for rule nisi and a petition to modify in the same pleading.

The two proceedings are commenced in different ways. The proceeding to modify a final decree is commenced by the filing of a petition. See Opinion, No. 1, April 26, 1977, Ala., 345 So.2d 1329.

Contempt proceedings may be begun by issuing a citation or rule nisi to the alleged contemnor to appear and show cause why he should not be held in contempt. See Opinion of the Clerk, No. 21, September 27, 1979, Ala., 375 So.2d 1066.

It was stated in Opinion No. 21 that when an attorney, seeking a contempt order or rule nisi, submits a petition to the judge and obtains a rule nisi or order to show cause against the alleged contemnor, the prefiling fee should be paid at the time of the filing of the signed order in the office of the clerk or register.

The final judgments in the two proceedings are reviewed in different ways.

A decree or judgment to modify a final decree or judgment is reviewed by appeal. Rule 4, Alabama Rules of Appellate Procedure. See Taylor v. Taylor, Ala.Civ.App., 372 So.2d 337.

Contempt proceedings, of the kind of which inquiry was made, are not reviewable by appeal, but by certiorari, if the contemnor is not in jail, or by habeas corpus, if the contemnor is in jail. Parmer v. Parmer, Ala., 373 So.2d 845; Lovelady v. Lovelady, 281 Ala. 642, 206 So.2d 886 (1968); Wetzel v. Bessemer Bar Association, 242 Ala. 164, 5 So.2d 722 (1942).

It is, therefore, my opinion that a petition for rule nisi and a petition to modify can not be included in the same pleading under one prefiling fee and that there should be separate petitions filed and two prefiling fees charged.


author: BRADLEY, Judge.

text:
    STATE of Alabama v. INTERNATIONAL MINERALS & CHEMICAL CORP.
    Civ. 1804.
    Court of Civil Appeals of Alabama.
    May 23, 1979.
    Rehearing Denied July 11, 1979.
    Charles A. Graddick, Atty. Gen., State of Ala., Herbert I. Burson, Jr., Counsel, Dept, of Revenue and Asst. Atty. Gen., State of Ala., John J. Breckenridge, Asst. Counsel, Dept, of Revenue and Asst. Atty. Gen., for the State of Alabama, appellant.
    Robert C. Walthall, Birmingham, for ap-pellee.
   BRADLEY, Judge.

The State of Alabama, Department of Revenue (State) appeals from a judgment of the Circuit Court of Montgomery County holding that International Minerals and Chemical Corporation (Company) is not liable to collect and remit to the State the forest products severance tax as levied by § 9-13-86, Code of Alabama 1975; nor is it subject to the forest products privilege tax as levied by § 9-13-82, Code of Alabama 1975.

The State entered a final assessment against the Company in the amount of $3,182.22 for severance tax, and the Company appealed to the Circuit Court of Montgomery County. The case was submitted to the' court upon the pleadings and a stipulation of facts plus exhibits. The trial court held that the Company manufactured ferro-silicon at its Bridgeport, Alabama plant by the use of the open hearth method; that the end product of the manufacturing process, i.e. an alloy of elemental silicon and iron, results from a series of reactions of silica (as quartzite gravel) and iron (as scrap iron); that wood chips are “primarily used as a contributor of carbon and heat in the raw material charge to produce a complete reaction of silica to silicon . [and] as a conditioner and heat element to maintain the desired permeability of the reacting mass;” and that the Company is not a processor or manufacturer within the purview of the forest products severance tax. From this judgment the State appeals.

The State argues that the Company is a “manufacturer” within the meaning of § 9-13-80(8), Code of Alabama 1975 and, therefore, is liable for the withholding and remitting of the severance tax on the purchase of wood chips. The Company also uses the wood chips in its manufacturing process and is thus liable for the processor’s privilege tax levied by § 9-13-82, Code of Alabama 1975.

Sections 9-13-80(8) and 9-13-86, Code of Alabama 1975, provide in pertinent part as follows:

(8) MANUFACTURER. ... as applied to pulpwood, chemical wood and bolts, the person who operates the paper mill, chemical plant or other plant in which such forest products are processed
At the time of rendering such quarter annual reports, the manufacturer of forest products shall pay to the department of revenue the taxes imposed by this article with respect to all forest products severed from the soil in the state of Alabama and embraced in such report . . .

Section 9-13-82(b), Code of Alabama 1975 provides in pertinent part as follows:

(b) There is also levied a privilege tax against the processor of the forest products or the manufacturer using the forest products in an amount equal to 50 percent of the tax on the severer as set out above.

As suggested by the Company, we shall give to the words of the above quoted statutes their plain, ordinary and everyday meaning unless the context of the statute suggests a different meaning. State v. Crayton, Ala.Civ.App., 344 So.2d 771, cert. den., Ala., 344 So.2d 775 (1977). We are also mindful that courts, in construing statutes, should observe the plain language used by the legislature and not search for an imaginary purpose. Brundidge Milling Co. v. State, 45 Ala.App. 208, 228 So.2d 475 (1969).

We conclude, as did the trial court, that the Company is a manufacturer of ferrosilicon, which is an alloy resulting from the reaction of silica and iron. The Company is not a processor or manufacturer of wood chips within the meaning of §§ 9-13-82(b) and 9-13-86, Code of Alabama 1975, because the Company buys its wood chips from several Alabama suppliers. In other words, the wood logs have been processed into wood chips by someone else, and the Company just buys them for its own manufacturing process.

What use does the Company make of the wood chips in its manufacturing process? As set out in the stipulation of facts and as found by the trial court, the wood chips purchased by the Company are used to contribute carbon and heat to the raw material charge to produce a complete ■ reaction of silica to silicon and as a conditioner and heat element to maintain the desired permeability of the reacting mass. The expected result of the manufacturing process engaged in by the Company is the alloy ferrosilicon, not a finished forest product; whereas the word “manufacturer” as defined by § 9-13-80(8) envisions a person engaged in processing or manufacturing forest products into a finished forest product.

We believe this interpretation of § 9-13-80(8) is called for when one applies a plain, literal meaning to the words of the code section.

Consequently, the trial court’s judgment that the forest products severance tax levied against the Company should be set aside as being invalidly assessed and that the Company is not subject to the forest products privilege tax for the reason that it is not a processor or manufacturer of forest products is correct and must be affirmed.

AFFIRMED.

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


author: PER CURIAM. MADDOX, Justice

text:
    Ex parte State of Alabama. In re STATE of Alabama v. INTERNATIONAL MINERALS & CHEMICAL CORPORATION.
    78-734.
    Supreme Court of Alabama.
    March 7, 1980.
    Charles A. Graddick, Atty. Gen., Herbert I. Burson, Jr., John J. Breckenridge, Asst. Attys. Gen., for petitioner.
    Robert C. Walthall of Bradley, Arant, Rose & White, Birmingham, for respondent.
   PER CURIAM.

AFFIRMED.

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

MADDOX, FAULKNER and BEATTY, JJ., dissent.

BLOOD WORTH, J., not sitting.

MADDOX, Justice

(dissenting).

Is a corporate taxpayer, which uses pulpwood chips in its manufacturing process a “manufacturer” as defined in the Alabama Forest Products Privilege and Severance Tax Act, as amended [Code 1975, § 9-13-80, et seq.] and, therefore, liable for collecting the severance tax from its suppliers of pulpwood chips and for paying the processor’s privilege tax imposed by law?

The facts are uncontroverted. In fact, the case was submitted to the trial court on a Stipulation of Facts and Exhibits. Briefly, they are as follows: International Minerals & Chemical Corporation purchased wood chips for its Bridgeport, Alabama operation from various suppliers located in Alabama. The wood chips were used by International Minerals primarily as a contributor of carbon in the raw material charge to produce a complete reaction of silica to silicon in the process. The wood chips were also added to the raw material charge as a conditioner to maintain the desired permeability of the reacting mass.

The Court of Civil Appeals, in pertinent parts of its opinion, held:

“We conclude, as did the trial court, that the Company is a manufacturer of ferrosilicon, which is an alloy resulting from the reaction of silica and iron. The Company is not a processor or manufacturer of wood chips within the meaning of §§ 9-13-82(b) and 9-13-86, Code of Alabama 1975, because the Company buys its wood chips from several Alabama suppliers. In other words, the wood logs have been processed into wood chips by someone else, and the Company just buys them for its own manufacturing process.”
* * * * * *
“The expected result of the manufacturing process engaged in by the Company is the alloy ferrosilicon, not a finished forest product; whereas the word' ‘manufacturer’ as defined by § 9-13-80(8) envisions a person engaged in processing or manufacturing forest products into a finished forest product." (Emphasis supplied.)

From the language used in the above-quoted portion of the decision, it is clear that the Court of Civil Appeals considered that the taxpayer who turned the wood logs into wood chips was the “processor” or the “manufacturer,” and that the State of Alabama should seek to collect the tax from that taxpayer.

It is also .clear that the Court of Civil Appeals, by holding that the word “manufacturer” as defined in § 9-13-80(8) envisions a person engaged in processing or manufacturing forest products into a finished forest product, limited the definition of a “manufacturer” to that taxpayer who processes or manufactures forest products into finished forest products.

This holding is erroneous and is in conflict with prior decisions of this Court.

This is not the first case in which the question of the taxation of “pulpwood chips” has arisen. In the first case, State v. International Paper Co., 276 Ala. 448, 163 So.2d 607 (1964), this Court decided that the term “pulpwood” did not include “pulpwood chips” which were processed from the residue of logs used in making lumber. The legislature responded to the Internationai decision by amending the taxing statute to specifically include “pulpwood chips” in the taxing scheme.

. The next case reaching this Court was International Paper Co. v. Rabren, 285 Ala. 383, 232 So.2d 627 (1970). In that ease, the paper mill argued that:

“It is the contention of counsel for the appellant paper mill that because the original Forest Products Severance Tax Act, defines only pulpwood as being a forest product, and does not mention ‘pulpwood chips,’ and the section was not changed by the 1967 amendment by adding ‘pulpwood chips’ as a forest product, the paper mill cannot be deemed a ‘manufacturer’ of pulpwood because of its handling of pulpwood chips, and therefore it is under no duty to' collect, report, and pay over any tax relating to pulpwood chips.”

This Court rejected the paper mill’s argument and reached the following decision:

“We think it clear from the full terms of the amendment the legislature, in fixing a measure for the taxation of pulpwood chips, intended that ‘pulpwood’ would apply to the now recognized two forms of pulpwood, i.e., small round logs, and pulpwood chips. This being so, no need arose for the legislature to amend the original Act defining pulpwood as a forest product, nor the further provision in the original Act that, as applied to pulpwood, the paper mill is deemed the manufacturer thereof.”

In Colston v. Gulf States Paper Corporation, 291 Ala. 423, 282 So.2d 251 (1973), this Court held that a corporate paper producer was required to collect the tax from its suppliers of pulpwood chips.

In this case, International Minerals & Chemical Corporation argues that it is not a “manufacturer,” and contends “that the decisions of International Paper Company and Gulf States Paper Corporation both recognize the legislative intent to impose a forest products severance tax only upon corporate paper producers which use large quantities of lumber related products in the manufacturing and processing of paper,” and that “ . . . the term ‘manufacturer’ should only include those who process or manufacture woodchips or other forest products into a product which primarily consists of lumber related elements.”

In determining the taxpayer’s liability, this Court construes two separate taxing statutes. One levies a forest products severance tax (Code 1975, § 9-13-81) “. upon every person engaging or continuing to engage in the state in the business of severing timber or any other forest products from the soil for sale, profit or commercial use whether as owner, lessee, concessionaire or contractor.” The “manufacturer” of forest products is responsible for paying to the State Department of Revenue the forest products severance taxes imposed. Code 1975, § 9-13-86. The other statute levies a processor’s privilege tax upon- the “. . . processor of the forest products or the manufacturer using the forest products in an amount equal to 50 percent of the tax on the severer as set out above.” Code 1975, § 9-13-82(b).

As pointed out above, the taxpayer here claims that it is not a “manufacturer” as that term is defined in the taxing statutes.

A manufacturer is defined in Code 1975, § 9-13-80(8) as:

“MANUFACTURER. As applied to forest products suitable for manufacture into lumber, the person who operates the sawmill or plant in which such products are so manufactured into lumber; as applied to pulpwood, chemical wood and bolts, the person who operates the paper mill, chemical plant or other plant in which such forest products are processed. . .."
(Emphasis added.)

I have carefully reviewed the arguments of the State and of the taxpayer and I conclude that the opinion of the Court of Civil Appeals fails to follow the decision of this Court in International Paper Company v. Rabren, 285 Ala. 383, 232 So.2d 627 (1970). The only distinction in this case and the International Paper Company v. Rabren case is that in International Paper Company v. Rabren, the “manufacturer” was a paper mill whereas in this case, the “manufacturer” is a chemical plant. That is a distinction without a difference. In fact, the definition of “manufacturer” as stated in Code 1975, § 9-13-80(8) specifically includes a “chemical plant or other plant in which such forest products are processed . . . .” (Emphasis added.)

I think that the definition of “forest products” includes pulpwood chips, that the taxpayer here is a “manufacturer,” and that the word “processed,” as used in the definition of a “manufacturer,” applies to any taxpayer who uses forest products in the manufacturing of a finished product.

I would reverse the judgment of the Court of Civil Appeals.


author: BRADLEY, Judge. WRIGHT, P. J.,

text:
    Cynthia Marie PATE and Sonia Lee Pate, the natural children of Gary Pate, who sue by their mother and next friend Mary Pate Brown v. MILLER TRANSPORTERS, INC., a corporation, et al.
    Civ. 1810.
    Court of Civil Appeals of Alabama.
    Oct. 10, 1979.
    Rehearing Denied Nov. 21, 1979.

      Walter B. Henley of Henley & Clarke Professional Corp., Northport, for appellants.
    McCoy Davidson of Roberts & Davidson, and Margie T. Searcy, Tuscaloosa, for ap-pellees.
   BRADLEY, Judge.

This is a workmen’s compensation case. On November 12,1977 Gary Pate was killed in an accident arising out of and in the course of his employment with Miller Transporters. Defendant Miller Transporters admitted that Gary Pate was an employee of Miller Transporters, that he suffered an injury, by accident, while in the line and scope of his employment and as a result of those injuries he was killed. Miller Transporters further admitted that it and the decedent were subject to the Alabama Workmen’s Compensation Law at the time of the accident. Notice was given, as required, and Miller Transporters deposited funds with the Clerk of the Circuit Court of Tuscaloosa County with which to pay, in part, the benefits due to dependents who qualify for such awards pursuant to the Alabama Workmen’s Compensation Death Benefits Statute.

The decedent, Gary Pate, and Mary Pate Brown were married on June 24, 1968. Two children were born of this marriage. On June 30, 1972 this marriage ended in divorce, with Mary Pate Brown getting custody of their two children. Gary Pate was ordered to pay $130.00 per month for the support of his two natural children. These two children are now ages eight and seven.

At the time of his death, . Gary Pate was married to Patricia Ann Hocutt Pate, his second wife. Patricia Ann had been previously married, had two children by this marriage, and had been divorced. That divorce decree awarded custody of the children to Patricia Ann and ordered support payments of $100.00 per month to be paid by her ex-husband. These stepchildren resided with Gary Pate until his death and were in some degree dependent on him for their support. The stepchildren are now ages ten and eight.

The action below was brought by Gary Pate’s natural children against the decedent’s widow, stepchildren, and Miller Transporters. The decedent’s widow, Patricia Ann Pate, claimed compensation for herself as widow and for her children as the stepchildren of the deceased. The plaintiffs admitted that the decedent’s widow was entitled to benefits but deny that the decedent’s stepchildren are so entitled.

The trial court made the following findings: (1) the defendant stepchildren were members of Gary Pate’s family and were “dependent” on him within the meaning of § 25-5-1(2) of the Code of Alabama 1975; (2) Miller Transporters should pay $120.00 per week for five hundred weeks to be divided one-fifth to each of the dependents of Gary Pate surviving, which includes the decedent’s two natural children, his two stepchildren, and his widow, Patricia Ann Pate; and (3) the attorneys representing the dependents are entitled to a fee equal to fifteen percent of the recovery of their respective clients. The natural children of Gary Pate appeal the trial court’s decision.

Under the Alabama Workmen’s Compensation Law, minor “children” under the age of eighteen years are conclusively presumed to be wholly dependent upon a decedent, § 25-5-61(3), Code of Alabama 1975.

The primary issue for our consideration is whether stepchildren living with the decedent at the time of his death should be included in the term “children” as used in § 25-5-61(3), Code of Alabama 1975, and should thus be given the benefit of the conclusive presumption of dependency.

The natural children of the decedent argue that this issue has been previously decided in Ex parte Cline, 213 Ala. 599, 105 So. 686 (1925). In that case the court held that “children” within the conclusive presumption of dependency include only those of the first degree. The court defined children in the first degree as children born in the family of the deceased; dependents by nature, for whose care, support and training the law makes the father responsible. We find this case distinguishable. Ex parte Cline did not distinguish between children and stepchildren but presented the question whether a grandchild, who was orphaned at an early age and raised by his grandparents, upon whom he was wholly dependent, could receive workmen’s compensation benefits. Also in Cline the court in its opinion noted that the legislature had included stepchildren within the statutory scheme of dependents. We agree.

If stepchildren are not within the § 25-5-61 definition of “children,” they cannot take under any statutory provision. Section 25-5-62 of the compensation statute lists the different classes of takers under the act and the order of compensation. This provision lists wife, child, husband, mother, father, grandmother, grandfather, sister, brother, mother-in-law, and father-in-law as the “classes” of dependents capable of receiving benefits. Stepchildren are not within this provision; therefore if a stepchild is not considered to be a child under the statute, stepchildren will not be entitled to any benefits under the compensation act. We do not believe the legislature intended such a result.

Section 25-5-1, Code of Alabama 1975, is the definitional statute for the workmen’s compensation act. This section defines the term “child or children” as follows:

(2) Child or Children. Such terms include posthumous children and all other children entitled by law to inherit as children of the deceased; stepchildren who were members of the family of the deceased, at the time of the accident, and dependent upon him for support; a grandchild of the deceased employee, whose father is dead or is an invalid, and who was supported by and a member of the family of such deceased grandparent at the time of the accident.

It is evident that stepchildren are included within § 25-5-1(2) only if they are members of the family of the decedent at the time of the accident and are dependent upon him for support. In the present case the decedent’s stepchildren were living with the decedent and therefore were “members of the family.” The issue turns on whether the stepchildren were dependent upon the decedent for support. Although the stepchildren received court-ordered support of $100 per month from their natural father, the evidence shows that the deceased had furnished more than this amount monthly in support of his stepchildren.

The trial court found as a fact that the stepchildren of the decedent were dependent upon him for support within the meaning of § 25-5-1(2). We agree. We therefore hold that the decedent’s stepchildren were members of his family and were “dependent” upon him within the meaning of § 25-5-1(2) of the Code of Alabama 1975. Thus the stepchildren are within the statutory definition of children and are entitled to an equal share of the benefits to be awarded under the Workmen’s Compensation Act.

A second question for our consideration is whether the trial court abused its discretion in apportioning the workmen’s compensation benefits among the claimants. The trial court is given the discretion of dividing benefits among claimants under § 25-5-60(l)c, of the Code of Alabama 1975, which provides:

c. . . .In its discretion and when it considers appropriate to do so, the court shall at any time have the power to determine, without the appointment of any guardian or guardians, what portion of the compensation shall be applied for the benefit of any such child or children and may order the same paid to a guardian or custodian of such child or children.

The trial court determined that the decedent’s stepchildren were within the definition of “children” under the workmen’s compensation act and, therefore, should take in equal parts with the decedent’s natural children. We can find no abuse of discretion in treating members of the same class equally where such is provided for by statute. See Blansit v. Cornelius and Rush Coal Co., 380 So.2d 854 (Ala.Civ.App.1979).

The third issue presented to this court is whether the trial court should have provided for reapportionment of the compensation award in the event of death or remarriage of the decedent’s widow. Section 25-5-66 of the Code of Alabama 1975 provides for reapportionment in the event of remarriage of the widow and § 25-5-69 provides for the event of death or marriage of a dependent. Both code sections are clear and unambiguous and it would be expected that the mandates of the two provisions of law would be observed. We find that the trial court committed no error in failing to provide for the above mentioned contingencies since such occurrences are covered by statute.

The fourth issue before this court is whether the trial court erred in awarding attorney fees. Section 25-5-90 of the Code of Alabama 1975 provides for attorney fees in workmen’s compensation cases and states that such fees shall not exceed fifteen percent of the compensation awarded. The statute also provides that the trial judge “shall fix the fee of the attorney for the plaintiff.” This language indicates that the compensation of each attorney shall be based on the compensation awarded his particular client. The trial court properly awarded the attorneys representing the dependents a fee equal to fifteen percent of the recovery of their respective clients. We therefore find no error with such an award.

On appeal of a case involving a workmen’s compensation claim, this court reviews the findings of the trial court only to determine if they are supported by any legal evidence and reviews the judgment only to determine if it contains the proper application of law to fact. City of Enterprise v. Herring, Ala.Civ.App., 372 So.2d 358 (1979).

We. have reviewed the evidence before the trial court and the court’s findings of fact and conclude that the findings are supported by legal evidence. The trial court’s judgment is affirmed.

AFFIRMED.

HOLMES, J., concurs.

WRIGHT, P. J.,

concurs in the result, but disagrees with expressions in the opinion which may conflict with his dissent in the case of Blansit v. Cornelius and Rush Coal Co., supra.


author: PER CURIAM.

text:
    Ex parte Cynthia Marie PATE et al., etc. In re Cynthia Marie PATE and Sonia Lee Pate, the Natural Children of Gary Pate, who sue by their Mother, etc. v. MILLER TRANSPORTERS, INC., a corporation, et al.
    79-207.
    Supreme Court of Alabama.
    March 7, 1980.
    J. Paul Whitehurst of Henley, Clarke & Watson, Prof. Corp., Northport, for petitioners.
    Margie T. Searcy, Tuscaloosa, for respondents.
   PER CURIAM.

Affirmed.

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

BEATTY, J., concurs in the result.

BLOOD WORTH, J., not sitting.


author: WRIGHT, Presiding Judge.

text:
    Mary Ward ANDERSON, a/k/a Mary L. Anderson v. HOUSTON COUNTY HOSPITAL BOARD, a Corporation d/b/a Southeast Alabama Medical Center.
    Civ. 1898.
    Court of Civil Appeals of Alabama.
    Dec. 12, 1979.
    Rehearing Denied Jan. 16, 1980.

      Winn S. L. Faulk, Dothan, for appellant.
   WRIGHT, Presiding Judge.

This is an appeal from a judgment against defendant in an action upon a promissory note.

The defendant was a patient at Southeast Alabama Medical Center (hospital). Upon discharge on December 19, 1977, she signed a promissory note in the amount of $1,758, which she owed the hospital on open account. The note did not provide for interest on thé principal amount from date. It did, however, provide that upon default the defendant waived all rights of exemption as to personal property, agreed to pay the costs of collection, including a reasonable attorney’s fee and agreed to pay interest at the rate of eight percent per annum on the unpaid balance from the date of default. The note became due on January 19, 1978, but was not paid. Subsequently, the hospital filed suit upon the note in Houston County District Court and was awarded a judgment for $2,344 plus costs. Defendant appealed to Houston County Circuit Court and the matter was tried de novo to the trial judge. The trial court rendered a judgment for the hospital in the amount of $2,280.64. It is from that judgment that defendant appeals.

The issue presented by defendant at trial was whether the hospital is a “creditor” subject to the Alabama Consumer Credit Code (Mini-Code), and that because of its failure to comply with certain provisions of the Mini-Code, this action to collect on the note should be abated pursuant to § 5-19-11, Code of Alabama (1975). The trial court held that plaintiff was not a creditor as defined by the Code. The same issue is now before us on appeal. There have been no previous decisions upon this question in Alabama. We have found no dispositive authority in any other jurisdiction.

The applicability of the Mini-Code to a particular institution or transaction must be determined by considering the definitions found in § 5-19-1, Code of Alabama (1975). “Creditor” is defined in § 5-19-1(3) as follows:

(3) CREDITOR. Such term refers only to creditors who regularly extend or arrange for the extension of credit for which the payment of a finance charge is required, whether in connection with loans, sales of property or .services or otherwise. The provisions of this chapter apply to any such creditor irrespective of his or its status as a natural person or any type of organization.

The hospital has not favored us with a brief. However, it appears that the course followed with defendant is a common one. If a patient is unable to pay his account in full upon discharge, he is requested to sign a note for the unpaid balance of the account. The note by its terms matures at a future time. If not paid at maturity, the note provides for payment of eight percent interest upon the unpaid balance from date of maturity. It also provides for waiver of exemptions of personal property with payment of costs of collection including a reasonable attorney fee. The extension of time for payment of the account upon signing of the note can only be classified as the extension of credit by the hospital. There was no denial that such credit transactions regularly occurred between the hospital and its patients. Thus, it is to be seen that plaintiff “regularly extends credit” within the definition of the “creditor.” If plaintiff “regularly extends credit for which the payment of a finance charge is required,” it satisfies the full definition of “creditor.”

Section 5-19-1(1) defines “Finance Charge” as “[A]ll charges payable directly or indirectly by the debtor and imposed directly or indirectly by the creditor as an incident to the extension of credit, including interest, time price differential, points.or discount paid directly by the debtor, service, carrying or other charge however denominated, loan fee credit or investigation fee,

We have said that the note herein did not carry interest until after maturity and default. We consider such interest not to be a charge for the extension of time for payment, but a charge in event of default in payment. The same is true for the charge of a reasonable attorney fee and costs provided in the note. These are charges for default and expense of collection and are not imposed as a charge for the extension of credit. The unquoted portion of § 5-19-1(1) provides that default or deferral charges, attorney fees and court costs are not included as finance charges.

Defendant contends that as the Code provides a limitation upon the amount of default or deferral charges and upon an attorney fee, any charge exceeding the limits provided for each removes their exclusion from the definition and makes them finance charges, thus causing the plaintiff to become a “creditor” requiring “finance charges” and subject to the Mini-Code. We cannot accept that contention. One cannot be brought under the restrictive provisions of the Consumer Finance Code by such strained construction of its provisions. To do so would cause a creditor not otherwise subject to the Code to be brought under it merely by exceeding the permissible limits of deferral or default charges allowed those who are otherwise subject to the Code.

Though plaintiff hospital does forbear demand for immediate payment of some patient’s account upon discharge and permit an extended time for such payment, there is no charge incident to such forbearance. There is only a charge because of default in the payment at the end of the extended time.

The hospital is not in the business of extending credit and making a profit therefrom. -It is in the business of delivering health care services to patients and securing payment therefor, upon discharge if possible. Its instances of extension of credit are obviously not of choice nor its chosen way of doing business but merely the most reasonable manner of attempting to assure payment at some later time without unacceptable loss through loss of use of the money and cost of collection. We do not consider it was the intention of the legislature that a hospital operating as plaintiff come within the provisions of the Consumer Credit Act and be made subject to licensing and supervision of the superintendent of banks of the State Banking Department. Section 5-19-22.

The judgment of the trial court is affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: ALMON, Justice.

text:
    Ex parte Mary Ward ANDERSON, a/k/a Mary L. Anderson. In re Mary Ward ANDERSON, a/k/a Mary L. Anderson v. HOUSTON COUNTY HOSPITAL BOARD, a corporation d/b/a Southeast Ala. Medical Center.
    79-325.
    Supreme Court of Alabama.
    March 14, 1980.
    Harold E. Hayden of Legal Services Corp. of Alabama, Dothan, for petitioner.
    Randy C. Brackin, Dothan, for respondent.
   ALMON, Justice.

Petition of Mary Ward Anderson for writ of certiorari to the Court of Civil Appeals to review and revise judgment and decision of that court in Anderson v. Houston County Hospital Board, 381 So.2d 68 (1979), is denied.

In denying the petition for writ of certio-rari in this case, this Court does not wish to be understood as approving or disapproving all of the language used or the statements of law made in the opinion of this case in the Court of Civil Appeals. In re Horsley v. Horsley, 291 Ala. 782, 280 So.2d 155 (1973).

WRIT DENIED.

TORBERT, C. J., and FAULKNER, SHORES and EMBRY, JJ., concur.


author: HOLMES, Judge.

text:
    James CARTER, as Director of The Alabama Department of Industrial Relations, State of Alabama v. J. P. KING AND SONS, INC., a corporation.
    Civ. 1906.
    Court of Civil Appeals of Alabama.
    Jan. 9, 1980.
    Rehearing Denied Feb. 13, 1980.

      Richard H. Gill, Montgomery, for appellant.
    Wayman G. Sherrer, Oneonta, Fred Blan-ton, Birmingham, for appellee.
   HOLMES, Judge.

The Circuit Court of Blount County found King, the appellee-employer, exempt from employer unemployment compensation contributions. The circuit court rescinded an assessment made against King. The assessment, made pursuant to Alabama’s unemployment compensation law, totaled approximately $13,000 and covered the period from 1972 to 1976.

The Alabama Department of Industrial Relations appeals from the circuit court’s action and we affirm.

The dispositive issue on appeal is whether King’s egg processing plant employees were engaged in agricultural labor while in the employ of the operator of a farm. If they are so engaged, the law of Alabama provides that such employment is exempt from unemployment compensation contributions.

The record reveals the following: King was a corporation engaged in an egg farming and processing operation. Although it owned no farms, it did own approximately one-half million chickens.

In producing its eggs, King used the facilities of local farmers. Under a contractual arrangement, these farmers provided the actual poultry farms while King provided the chickens, medication, feed, and the management of the egg laying. The farm owners were generally paid on the basis of the number of eggs produced. King would retain title to the eggs.

The eggs were processed for commercial sale at a plant within the City of Blounts-ville. King employed approximately fifteen persons at this plant and their job was to wash, candle, grade, and pack King’s eggs. The plant itself was owned by the Industrial Development Board of the City of Blountsville and leased to Lease-King, Inc., as sister corporation to J. P. King and Sons. The employees, however, as indicated, were employees of J. P. King and Sons.

There was testimony that the operation was spread out in this manner for various reasons. Mr. Robert A. King stated that the chickens had to be placed on various farms to reduce the risk of disease. The plant was located within the city to secure an adequate water supply and sewage system and to insure compliance with various governmental regulatory requirements.

The Department, upon determining that King was a covered employer in regard to its plant operations, assessed the corporation for unpaid unemployment compensation taxes covering the years 1972 through 1976. See, §§ 25-4-51, 25-134, Code of Ala.1975. King claimed exemption under § 25-4-10(b)(1), asserting that its employees were engaged in agricultural labor either on a farm or in the employ of the operator of a farm.

After an adverse decision by the Department on this point, King appealed the final assessment to the circuit court, which found in its favor.

At the outset, we address two threshold matters crucial to a decision on the merits.

First, King has filed a motion to dismiss the Department’s appeal contending it was not filed in a timely manner. The record discloses the appeal was filed thirty-nine days after the date of judgment.

King argues that § 25-4-134(b)(3), which mandates a thirty day time limit for filing such appeals, must control and not Rule 4, ARAP, which sets a forty-two day limit. However, our supreme court has ruled that when, as here, the appeal is of right, such time periods are procedural and thus covered by the Alabama Rules of Appellate Procedure, any inconsistent statutory provisions notwithstanding. See, Rule 3(a)(1); Strickland v. National Gypsum Co., Ala., 348 So.2d 496 (1976). The motion to dismiss must therefore be denied.

Next, the Department contends that the proceeding below was before the circuit court on a common-law writ of certiorari and that the decision of the 'Department in assessing the taxes was due to be affirmed if there was any legal evidence to support it. The Department further argues that the circuit court had no authority to reconsider the facts before the Department or to try such question de novo'.

In deciding this question, we note that § 25-4-134(b)(3) denominates the action to be taken by an employer dissatisfied with an assessment as an appeal to the circuit court. This section also provides that the assessment made by the director of the Department shall be prima facie correct and casts the burden on the employer to show it is incorrect.

It is clear to this court that this procedure does not constitute common-law cer-tiorari. This statute allows an appeal and casts upon the employer the burden of demonstrating the invalidity of the assessment. There is no statutory provision mandating the preparation of a record at the hearing before the Department. Therefore, the circuit court, in passing on the assessment’s validity, could conceivably have nothing before it but the very fact of the assessment if no independent testimony was allowed on the appeal.

In Board of Dental Examiners v. King, Ala., 364 So.2d 318 (1978), our supreme court, through Justice Shores, construed § 34-9-25, Code of Ala.1975, which allows a party aggrieved by certain orders of the Board of Dental Examiners of Alabama to “bring an action” in circuit court to “set aside said order on the ground that the same is unlawful or arbitrary.” The court held that under this language evidence not before the Board and therefore not part of the record could be introduced at the circuit court hearing so that the aggrieved party could establish that the Board acted unlawfully or arbitrarily. The court reached this conclusion even though such a hearing does not amount to a trial de novo, the legislature having clearly removed this right upon amending § 34-9-25.

As the burden cast upon the challenging parties is so similar in these two appeal statutes, we hold that under § 25-4-134(b)(3), the introduction of independent evidence and a reconsideration of the facts is permissible. Any other interpretation would render the employer’s task an impossibility and the appeal a nullity.

Likewise, we conclude that the scope of review in the circuit court is not limited to a mere determination of whether there is any evidence to support the assessment. The employer is to prove, through appeal, that the assessment was incorrect; not that there was no evidence at all to support it.

Simply stated, if the legislature had intended that the proceeding before the circuit court was to be treated as common-law certiorari with the corresponding limitations on the introduction of evidence and scope of review, it would have so stated. As it has not, we give the words chosen their intended meaning. Katz v. Alabama State Board of Medical Examiners, Ala., 351 So.2d 890 (1977).

Turning now to the merits, we note that the facts before the learned trial judge were not in conflict. Therefore, the presumption of correctness normally afforded when evidence is heard orally does not come into operation on appeal to this court. As a consequence, it is our function to determine whether the learned trial judge correctly determined the legal operation of the exemption statute on the facts at bar. State v. Kershaw Manufacturing Co., 273 Ala; 215, 137 So.2d 740 (1962).

We find that he did and that King was due the agricultural labor exemption. Basically, the unemployment compensation tax is due from the employer for employment covered and defined by § 25-4-10(a) and the exemption is due if the employee’s services come under § 25-4-10(b) which defines those areas which the term “employment” does not cover.

For purposes of this appeal, the following is the relevant language from § 25-4-10(b):

(b) The term “employment shall not include:
(1) Service performed by an individual in agricultural labor ... if such service was performed:
d. In the employ of the operator of a farm, ... in handling, planting, drying, packing, packaging, processing, freezing, grading, storing . . . any agricultural or horticultural commodities.

As we are construing this exemption for the first time in this case, we turn for guidance to foreign jurisdictions which have previously faced the problem of applying the agricultural labor exemption. We find this approach especially useful as the wording in the statute is nearly uniform throughout the states, being conformed to the Federal Social Security Act. As such, unemployment legislation is an integral part of the national plan for social security, representing a cooperative effort by the states and the national government in working for the general welfare. Agri-Foods, Inc. v. Industrial Commission of Missouri, Mo.Ct.App., 511 S.W.2d 898 (1974).

in Agri-Foods, as here, the court was faced with a claimed exemption by a producer-processor-marketer of eggs which did not own or lease a farm, but which did provide its own laying pullets to contract farmers. There too, the corporation retained title to the layers and eggs, supplied the contract farmers with feed and medication, and supervised operations at the farms.

We would note that a study of related cases reveals that the operational structure employed by King has become very common. See Wirtz v. Tyson’s Poultry, Inc., 355 F.2d 255 (8th Cir. 1966); Etchechoury v. Avi-Simplot, Inc., 93 Idaho 438, 462 P.2d 737 (1969). Indeed, the Missouri Court of Appeals observed that the evidence in Agri-Foods indicated the need for such an operation due to current economic conditions. Noting that similar operations have become typical of egg production throughout the country, the court observed that various regulatory demands preclude a market for eggs unless they are processed as they were in the case at bar.

The court reasoned that the whole character of the employment, not only the place of performance, determines whether an employee is engaged in agricultural labor. Concluding it is self evident that egg production is a farming enterprise and that the chosen device of production does not alter a corporation’s status as farmer engaging in ordinary farming operations, the court held that the processing activity does not lose its character as agricultural labor if done at a plant some distance from the farm.

The Department would distinguish the case at bar on the strength of a Subsequent amendment to both Missouri’s and Alabama’s exemption statute. In Agri-Foods, the exemption was due if the processing of eggs was an activity “incidental to ordinary farming operations.” § 288.034(6)(a)d. RS Mo.1969, V.A.M.S. The Department argues that under Alabama’s present § 25-4-10(b)(1)d., egg processing is exempt only if this service is performed “in the employ of the operator of a farm.” Pointing to King’s admitted nonownership of any poultry farms, the Department would have us hold King is not a farm operator and therefore not due the exemption.

The ultimate question before us can thus be posed: Is King the operator of a farm even though it neither owns nor leases a single farm?

We answer affirmatively. In Naumes of Oregon, Inc. v. Employment Division, 23 Or.App. 57, 541 P.2d 141 (1975), a corporation which managed fruit orchards it did not own was granted the exemption for its packing house employees who processed the fruit, the court concluding that the corporation operated the orchards it managed.

In giving the term “operator” its plain meaning, as we also must do, Quick v. Utotem of Ala., Inc., Ala.Civ.App., 365 So.2d 1245 (1977), the Oregon court defined that term by borrowing from Webster’s Third New International Dictionary, Unabridged (1969):

[0]ne that produces a physical effect or engages himself in the mechanical aspect of any process or activity ... a person that actively operates a business (as a mine, a farm, or a store) whether as owner, lessor, or employee.

The Oregon court went on to say that the lack of a proprietary interest in the farm being managed does not disqualify one as an operator of that farm, concluding the word embraces anyone actually exercising control over farm production.

As our statute clearly includes poultry farms within the definition of “farm,” § 25-4-10(b)(l)e, and as King managed egg production under its contractual arrangements, it was the operator of a farm within the meaning of the statute and entitled to the appropriate exemptions.

This case is due to be affirmed.

AFFIRMED.

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


text:
    Ex parte James CARTER, as Director, etc. In re James CARTER, as Director of the Alabama Department of Industrial Relations, State of Alabama v. J. P. KING AND SONS, INC., a corporation.
    79-389.
    Supreme Court of Alabama.
    March 14, 1980.
    Richard H. Gill, George Cocoris, Montgomery, for petitioner.
    Wayman Sherrer, Oneonta, Fred Blanton, Birmingham, for respondent.
   ALMON, Justice.

WRIT DENIED.

TORBERT, C. J., and FAULKNER, SHORES and EMBRY, JJ., concur.